Based On: Tracking Down Film and Television Rights
One of the most frequent questions I’m asked by aspiring filmmakers is, “How do I get the film or television rights to … something.” And it’s not hard to understand why. In addition to the creative inspiration artists derive from works that already exist, Hollywood is deep in the throes of capitalist puppy-love with pre-existing “intellectual property” (IP) as the basis of the things they produce. We are not living in the golden age of original ideas in Hollywood. Hence, there’s a perception among artists that creating a film or television project that is based on something that already exists can give them a leg up in the marketplace.
By and large, this is true.
When a screenplay is created based on an existing work (like a novel or comic or play, etc.), the rights to the existing work are said to “underly” the screenplay from a copyright perspective. This article is an overview for acquiring these “underlying rights.” As mentioned, this could be a novel, a play, a short story, a comic book, an existing film, video games, a true story or perhaps someone’s life story, although these latter two categories may not involve copyright, as you will see.
If you don’t know, copyright is the area of law that allows artists to own and profit from the works they create. Copyright law is beyond the scope of this article, but it’s easy to learn more at the Library of Congress website. In fact, a good first step in any rights search is to do a copyright search at the Library of Congress website. The important thing to know is that, generally, you can’t use someone else’s copyright-protected work for your own purposes without permission. And often that means paying for the rights.
That said, while copyright protects the rights of authors (as they are referred to), it doesn’t do so forever, and when this protection expires, the work is said to become part of the “public domain.” Perhaps you’ve heard of this.
What follows is a brief overview for tracking down various kinds of underlying rights. I go into much greater detail in my book Based On: A Non-Lawyer’s Guide to Acquiring Film and Televisions Rights from Everywhere but the following might push you in the right direction. As the title of my book suggest, this article assumes you are interested in film and television rights, and this is how you should refer to it when you reach out to rightsholders and their representatives.
So, you have something you think would be the great basis of a film or television project. What next? Here are some tips for tracking down the rights.
Novels, books and short stories: These are commonly referred to as “literary” works. In most cases, tracking down the rights is pretty easy. With the book in hand, look for the original publisher, usually listed at the top of the page just after the title page. Contact the publisher and ask for the person who handles “sub rights.” When you connect to that person, give them the title and author and ask who represents the film and television rights. This will usually be a literary agent or lawyer, but on rare occasions, the publisher might control these rights. If the literary work is very old, it might be much harder to track down. If the author has been dead for over 75 or 100 years, there’s a good chance the work might be in the public domain. In which case, hire an entertainment attorney to help you verify the rights status. If the work you want is in the public domain, you might be free to use the literary work with no rights involved. If the book is self-published, there's a good chance the author will have some kind of internet presence to market their work. Also easy. By the way, you might have noticed I listed novels and books in the section header above. Not all books are novels, of course. Many books are non-fiction. Be aware that facts and history are not protected by copyright, but a non-fiction book on such facts and history might still be protected. It’s a little complicated. Ask your attorney, or read my book.
Comics and graphic novels: The film and television rights are usually owned by either the comic’s publisher or the comic “creator(s).” In most cases, start by doing an internet search for the comic creator. They’re usually not hard to find. If you can’t find the creator, you can contact the comic’s publisher. The publisher will often control the rights you want, but not always, and you might get more reliable information from the creator, if you get my meaning. Some comic publishers are sketchy.
Theatrical works and plays: A little tougher but some plays are published. Check Samuel French bookstore. If not there, then contact the Dramatists Guild or search Doollee.com. Keep in mind that many playwrights do not have agents, so these searches might connect you directly with the playwright themselves. But some playwrights have been members of the WGA East or West, so try a search on their websites as well.
Remakes: This is admittedly a long shot, but it’s conceivable you might want the remake rights to a film or series that exists. It’s a long shot because most such rights are controlled by established productions companies and they themselves are in the business of making media. If you’re a well-established player, these rights might be approachable, but it’s a high bar. In any case, you’d start by inquiring with their business affairs or their legal department.
Life rights: As I said earlier, facts and history are not protected by copyright. But if those facts and history involve living people, you get into the areas of law related to privacy, publicity and defamation. Because of this, a life-rights agreement can be more like a “you promise not to sue me” agreement. It can get tricky and complicated by the fact that you are dealing with someone’s life (or a chunk of it) and people can get nervous about how they will be portrayed. Another complicating factor is that most life rights involve dealing with people who are not media savvy and do not have entertainment savvy representatives. This makes their learning curve very steep. You’ve been warned.
You’ve tracked down the right, so now what?
Well, if you are savvy about entertainment rights you can start the ball rolling on your own. But more likely you’ll want an experienced entertainment attorney helping you out.
Typically, there are two stages.
First, a negotiation that establishes the “top line” or “material” deal points. These are the costs, the duration of the agreement, the specific rights you’re getting, etc. Once these main points are agreed upon, the second stage is drafting an actual long-form contract which will go into much more detail.
If you’re savvy, it’s possible you can get the ball rolling on the first step but will then want to hand off the second part to your attorney. So, have an entertainment attorney before you start. Just make sure you agree on the price of their services before you do.
*Feature photo by slhnalhfz (Pexels)