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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,
you’ll generally have to rely on your publisher to sell the movie rights. Most literary agents, however, retain the film
and television rights for their client’s 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 don’t 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 aren’t 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 you’ve written a
bestseller. Otherwise, you’ll 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 isn’t 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 what’s 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; it’s 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 film’s 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
producer’s 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 you’ve been offered an option contract, you’ll 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 writer’s publisher).
Your Story Transformed
Let’s 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 author’s
“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 Writer’s 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 person’s 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.
Who
Owns A True Story?
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 person’s 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 don’t 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 lion’s 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.
Don’t confuse an individual’s 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.
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