BASED ON:
A Non-Lawyer’s GUIDE to Acquiring Film and Televisions Rights from Everywhere.
A preview of my new book, now available everywhere books are sold.
INTRODUCTION
Why This Book
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.” Intellectual property, or “I.P.” as it’s sometimes called, is a generic term that refers broadly to several areas of the law protecting “creations of the mind.” Just take a look at the top box-office films for any given week and you will see that half (or more) originated as a novel, a play, a comic, another film or a video game, etc. And it’s not just the movies. Plenty of television series are based on pre-existing I.P. — series such as “The Walking Dead,” “Fargo,” “Game of Thrones” and “Homeland” are all based on something that previously existed in another form. And the list goes on and on. We are not living in the golden age of original ideas in Hollywood.
There are two primary reasons this is so.
First, as the world media marketplace has exploded, consumers have plenty of choices, and getting the consumer’s attention can cost a lot of money. So, if the pre-existing I.P. has an established consumer awareness — or better yet, an established fanbase — this can be a huge advantage when it comes time to market the resulting motion picture or television series.
Second, a good idea is a good idea, right? And we’d be foolish not to take advantage of whatever creative inspiration we can get our hands on, no matter what the form or when it was originally created.
As a result, ambitious filmmakers are always scouring pre-existing I.P. as source material for their future motion picture and television projects. And there’s plenty of examples where making the effort can pay off — big time.
For example, screenwriter Eric Heisserer fell in love with a sci-fi novella by Ted Chiang called “Story of your Life” and thought it would make a great film. Eric pitched the idea to twelve different buyers, but all of them passed. Undeterred, Eric (with two producers) decided to acquire the film rights to the novella and Eric then wrote his screenplay adaptation on spec. The resulting sci-fi film, about an international crisis that arises when twelve mysterious extraterrestrial spaceships appear on Earth, was called “Arrival.”
Although most filmmakers are aware that major films and television series are sometimes based on legally-protected source material, I am sometimes surprised to learn that some aspiring filmmakers are unaware (or unconcerned) that their own works might require legal permission, if based on someone else’s work. I have found this especially true with some student filmmakers. Spend a little time on YouTube, where copyright infringement is rampant, and you might get a clue why they think this way. “Hey, everyone is doing it, right?”
Of course, this is not true, and the use of someone else’s legally-protected work as the basis of your own work requires permission. In most cases, this legal protection refers to a work’s copyright. In America, copyright law emanates from the US Constitution and it allows creators (or “authors”) to own and profit from the “works” they have created. In showbiz, when one of these creative works becomes the basis for another creative work, it is said that the rights to original work “underlie” the newer work.
The book you are about to read is a how-to guide 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. There have also been a few songs that have been used as the underlying rights for films.
When a screenplay or teleplay is created, based on one of these underlying works, the resulting work is called a “derivative work,” in legal circles. In showbiz, calling something “derivative” is also a colloquial insult — as in, it’s a bad and overly familiar copy of something better - but that’s not what I’m talking about here.
Of course, many of the steps I describe in this book can also be used to acquire the rights to an existing original screenplay where, by definition, there are no underlying rights. I could have included original screenplays in the topics covered by this book, but most of these original screenplays exist in the “regular marketplace” of the entertainment industry, actively marketed to be sold and produced. Tracking down original scripts in Hollywood, and making a deal, is like asking, “How do I buy a Ford truck?” Answer: “There’s a dealer just down the block.” And a large number of people in the entertainment industry make a living by selling unproduced original scripts. There’s still plenty you need to know about buying original screenplays, and for sure this book can help, but knowing how to track them down is not one of them. Metaphorically, the fish are jumping in the boat.All rights are currently available!
Keep in mind, while copyright protects the rights of authors, 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. More on it later.
I subtitled this book, “A non-lawyer’s guide to acquiring film and television rights from everywhere,” and if you were expecting to read this book and then be able to draft contracts like a lawyer, I am sorry to disappoint you. But writing contracts is just one part of the process, and there is often a lot of work to be done before your lawyer goes to work, and I will repeatedly recommend that you work closely with an entertainment lawyer when it comes time to draft legal agreements. In fact, you should have legal representation by an entertainment attorney before you start the process of acquiring motion picture and television rights to something.
This book will mostly focus on all the other steps in the process: tracking down rights, contacting the rights-holder and starting the process of deal-making. For some reason this kind of information is very hard to find.
Although this book is mostly intended for film students and other aspiring filmmakers, some established professionals, such as writers, directors, and producers, also have limited experience with tracking down motion picture and television rights. So, you’re not alone.
Sometimes, the pros will ask their agent, manager, or a producer like me, to help them out. But, with the exception of producers, it is usually not the jobs of agents and managers to locate and acquire underlying rights for their clients. If you were hoping you could hand off the job to a lawyer, it’s possible, but it can get expensive, especially if the process becomes protracted. Most often, entertainment lawyers for filmmakers just do the negotiating associated with the drafting of contracts. And there’s a whole lot more to the process than that.
The good news is that, with some knowledge, it’s possible to locate and acquire underlying rights substantially on your own, or at least do most of the initial work on your own, limiting the amount of time your lawyer will be required to complete the agreement. And for the latter, time is money. I am assuming most readers want to hold on to as much of their own money as possible. But if not, sure, hire an entertainment lawyer to do it all.
Otherwise, keep reading. Two last points I want to make.
First, some of you will be tempted to only read the chapter that deals with just the kind of rights you want at this moment. Don’t do this. There’s a lot of information you’ll need to know in the other chapters that will be critical to getting the rights you want. And I didn’t want to keep repeating the same advice over and over again in each chapter. Read the entire book so you get a complete picture.
Second, if you’re expecting some of this book to be a tedious version of “Law School 101,” well, you’re probably right. But again, I’m not a lawyer, so keep that in mind. I will also include plenty of non-legal, practical advice about tracking down the rights to different kinds of works, and what happens next. For sure there’ll be some legal stuff, but I’m no fancy-talkin’ lawyer. So, uh, caveat emptor.
Ken Aguado is a screenwriter, producer and author. His most recent films are the award-winning PBS documentary “Miracle on 42nd Street” and the theatrical film “An Interview with God,” which he also wrote. Ken is also the co-author of The Hollywood Pitching Bible, with screenwriter Doug Eboch. You can follow Ken on Twitter @kaguado.
Copyright 2019 — Ken Aguado — All rights reserved
