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|The Reel Deel, Continued . . .
First, make sure you own the film and television rights. In the case of a novel or nonfiction book, whether you own these rights depends on your publishing agreement. The standard agreement often gives these rights to the publisher, as part of the subsidiary rights clause. Under this clause, the publisher has the sole right to market and sell the television and film rights, typically for a 50/50 split with the author. If such is the case, youll generally have to rely on your publisher to sell the movie rights. Most literary agents, however, retain the film and television rights for their clients work, as do knowledgeable authors. Magazine and newspaper writers should verify they have given only serial rights to the publisher. Also remember there are additional issues when you have written a real-life story of a private individual (see sidebar, Who Owns A True Story.)
Second, you must market your story. Most literary agents have film agents with whom they routinely work; you should specifically address this with your literary agent. If you dont have an agent, you can query film agents directly to see if they are interested in representing your work. You also can directly query studios and development executives, at least the small and independent producers; unfortunately, the major Hollywood studios seldom respond to authors who arent represented by an agent.
How Hollywood Operates
What if a producer becomes interested in your book or article? Will you receive a lot of money? No not unless youve written a bestseller. Otherwise, youll find that movie studios and producers will not buy your work; they will option it. This reduces risk while the producer arranges financing and decides on the feasibility of the project. You will be paid a sum of money that gives the producer the right to purchase your work in the future on the terms specified in the option agreement (or in a separate purchase agreement, signed at the same time). The good news is that you get to keep the option money even if the producer decides not to buy; the bad news is that the option money generally isnt very much. The range is wide from as little as $500 to about $50,000, with the average around $10,000. For a hot property, this amount will be about ten percent of the purchase price if the option is exercised. And yes, if the option period expires, you can option or sell the work to another producer.
So whats in the typical option contract? First, the term of the option usually will be 6 to 18 months. During this time the producer has the exclusive right to purchase your story rights. Second, the contract will specify, and the purchase price if the option is exercised. This is critical; its complicated as well. Generally, the purchase price will be either a minimum payment (floor) or a percentage of the budget of the production, with a maximum amount (cap)
Television and movie projects have different formulas, based on the length of production and the type of production planned. For example, a feature film might have a purchase price of the greater of $100,000 or three percent (3%) of the films budget (but not more than $250,000). Often, the amount of the option payment will be subtracted from this price.
In addition, there may be a back-end payment in the form of a net profits participation in the theatrical release of the film a percentage of the producers net, or a royalty payment in the case of television movies (a fixed sum per hour of television time). Most of these back-end payments are illusory, however, due to the creative accounting practices of studios and producers.
Even once youve been offered an option contract, youll also still have to deal with the issue of rights. Ideally, writers should grant only limited media rights, on an exclusive or non-exclusive basis. The producer will want all theatrical film, cable, television, pay-per-view, video, DVD, music, and all subsidiary rights including merchandising. The writer should try to reserve at least sequel, radio, and audio book rights (assuming these rights were not previously granted to the writers publisher).
Your Story Transformed
Lets say the dream comes true and you do indeed sell your story. May the producer alter or adapt your story without your permission? Although this is negotiable, the answer usually is yes. Unlike some European countries, the United States does not generally recognize an authors moral rights to his/her work. Frequently, however, the author will be able to get a consultation clause in the contract, requiring the producer to consult with the writer before making major changes in plot or character.
Will you get to write the screenplay? This is negotiable, but generally the answer is no. Unless you are a proven screenwriter, the producer will want to bring in a veteran to adapt the property. If you have a lot of leverage, you might get the producer to agree to let you write the first draft, usually for the minimum fee specified by the Writers Guild of America (WGA). If the producer likes your draft, great otherwise, the producer will be free to hire someone else to rewrite or draft a new screenplay.
As with all such agreements, you will have to give certain warranties and indemnifications stating that you own the rights to the work, have not defamed anyone, or violated any persons right of privacy or publicity. And last, the agreement will specify what screen credit you will receive, subject to WGA guidelines. In general, unless you write the screenplay, you will receive a "written by," "created by," Story Idea or Story By credit.
Then you can sit in the darkened theater and, finally, see your story on the screen.
Under general privacy law, the rights to a real-life story of a private individual rest with the individual. If you write a story or article based on that life, you must obtain the persons permission. On the other hand, if your article or story is based on news reports or trial transcripts, or the individual is a public figure or deceased, generally you dont have to acquire permission.
If the subject of your story gave you all rights, you will be free to sell your article or story to a movie producer. If, however, the individual retained film and television rights, the producer could bypass you and negotiate directly with the individual. More often in these situations, the producer will negotiate an agreement both with you (for your treatment of the event or story) and the individual. The individual generally will receive the lions share of the compensation.
Public figures such as politicians, movie stars, and professional athletes have a somewhat lessened right to privacy because of the public's legitimate interest in their affairs. For example, you may publish a profile of a politician without fear of being sued for invasion of privacy. The story can even include private facts about the public figure, but care must be taken that these otherwise private facts are within the scope of the story.
Dont confuse an individuals right of privacy with their right of publicity. Most states now have laws that protect living celebrities, and in some states, recently dead celebrities, from the commercial exploitation of his or her name, likeness, or persona. News stories, biographies, and fiction, however, are protected by the First Amendment. To the extent you portray a celebrity in such works without defaming him or his family -- and it is absolutely clear your work is fiction, news, or biography -- you need not seek the celebrities' permission.