Issue 3: Lesson 3—Legal Rights (Part Two)

In the first of our two lessons on legal rights, we explored some issues around whether you might need to obtain the rights to use source material for your screenplay. In this second lesson, we outline the process for obtaining rights to use a copyrighted work…

First, a quick recap
You’ve identified a non-fiction book or other published work that you think will make a great fact-based screenplay. After conducting a little detective work, you’ve identified who owns the copyright. You’ve also decided that you really do need to obtain permission to adapt that work. So what do you do next?

Approach the rightsholder
Contact the copyright owner (for argument’s sake, we’ll assume it’s the publisher – although in the US it’s more likely to be the author) and ask whether the rights are available. The answer will be either:

1. Nope (this means don’t use the material – some other party might have obtained the rights)
2. No, because the material is actually in the public domain (we discussed what this means in the last lesson – basically, you’re free to proceed)
3. Yes (the rights are available)

Attempt to secure the rights
If the answer to your initial inquiry is that, yes, the rights are available, the next step is to either purchase the rights outright, or negotiate what’s called an ‘option’. The first gives you unlimited rights to adapt the work; whereas the option give you the right to adapt the book/article for a period of time (say, one year). Most option contracts include extensions that allow you to extend the option if the project hasn’t progressed during the initial period.

Purchasing rights outright or via an option will usually require a fee to be paid to the rightsholder. It’s difficult to generalise as to the amount – some rights might cost pennies while others might cost 1000s. To get an idea of how much it’s likely to cost, consider the material. The more famous the subject; the more popular the book; the more renowned the author – all these things are going impact on the price of the option. An additional fee will usually be payable if the option is extended beyond its original timeframe.

If you decide to proceed then you’ll need to get the rightsholder to sign what’s called an option agreement, a contract which sets out the parameters of the deal. Be sure to understand the terms before you sign anything.

What if the source material is a life story?
If you simply want to tell the unpublished life story of someone interesting who you’ve met or heard about then the situation may be a little different. Facts aren’t copyrightable, so technically permission isn’t needed. However, it’s worth considering getting an agreement that:

  • sets the parameters of the story you intend to tell
  • secures permission to fictionalise events out of their life
  • confirms their willingness to participate in the process
  • sets out the compensation they’ll receive

Of course, there are unauthorised biopics in the world; but if you go ahead without an agreement, the producers of the film might leave themselves open for claims relating to defamation or invasion of privacy. As such, they might be more willing to take a second look at your script if you can deliver a signed life rights agreement.

In addition, be aware that the subject might decide to write their autobiography at a later date, meaning you may need to secure the rights to that too ahead of time to ensure you don’t encroach on another film studio/producer/writer’s agreement.

It’s also important to consider whether you’ll need to secure an agreement or release for other people you plan to portray in the film so the filmmakers don’t incur their wrath when the film comes out.

Basically, you need to ensure that when you approach producers or other parties with a view to selling your script, you can deliver both an excellent screenplay and signed legal agreements that show you have the right to tell the story.

Should I engage the services of a lawyer?
If you’re serious about your screenwriting career, plan to sell your script and want to make sure everything is airtight before proceeding, then approaching a lawyer might be a good idea (if you have the funds, of course).

It really depends on what source material you wish to obtain the rights to and how complicated you envisage the process to be. It also depends on whether you realistically foresee a market for your finished script.

Be aware that nailing down the specifics of a deal and coming to an agreement that suits both parties might require slick negotiation tactics as well as the ability to analyse and amend the fine print.

If you’re hoping to tell the story of shy and retiring Bob down the road whose secret past life would make an excellent film and who’s simply tickled at the idea of seeing his life made into a film, you might be able to manage by yourself.

However, if you want the secure the rights to a non-fiction work published by renowned author Mr Hugh Jass, whose latest New York Times bestseller you want to adapt, it might make sense to call in the professionals (a sizable lottery win might be required in this case too).

Either way, it’s sensible to do all the legwork you can yourself, as lawyers work on an hourly rate.

There is plenty of free information available online and even standard template forms and letters available that you can download and amend with your own details. We’ve included some links below (the example forms are to be used for illustrative purposes only).

Conclusion
As we mentioned in our last lesson, securing legal rights is not essential in every case; such as if you plan to base your screenplay on historical documents or other material in the public domain.

However, if your film is based on material that has copyright attached, proceeding without permission is only going to prove to be a waste of time as no producer will take your script any further – no matter how much creative talent you’ve poured into it.

Further information
As you can imagine, there are resources galore on the internet and in print relating to this topic. To get you started, here are a few links to check out.

Whose Story Is It, Anyway? Obtaining a Subject’s Life-Story Rights – a useful article written by Tom Isler that focuses on documentaries but contains information on optioning ‘life rights’

Life Story Rights in the United Kingdom – written by UK law firm Field Fisher, this sets out the legal necessities of acquiring the rights to tell a life story.

Acquiring Story Rights – written by US law firm, Lehmann Strobel, this is a good article on obtaining rights to tell a story based on copyrighted material or a person’s life story

How to Option a Book for Film Adaptation – an extensive article written by US entertainment attorney Robert Zipser (reproduced by Filmmaker magazine) which spells out the process for obtaining the rights to a US book

What is a Screenplay Option Agreement & How Does it Work? – useful overview from Bang2Write with additional links

Example life rights form (US) – for illustrative purposes only (from Megadox)

Example option agreement (US) – for illustrative purposes only (from Sonny Boo)

Sample Screenplay Option Contract – for illustrative purposes only (from Absolute Write)

Example option and assignment agreements (UK) – for illustrative purposes only (from Raindance) Word format

Now that we’ve dealt with the basics of legal rights, in the next lesson we move on…to the exciting world of screenplay research.

Issue 4 of RSL is out on 6 July 2015.

(Image: ‘Stack of Copy Paper’ by Jonathan Joseph Bondhus)