BASED ON (part 2)
A non-lawyer’s guide to acquiring rights for film and television.
by Ken Aguado
Please be sure to read part 1 first. Remember, I am not a lawyer. If at any point you feel you’re getting in over your head, consult with a qualified entertainment attorney. You can follow me on Medium and on Twitter @kaguado.
Tracking Down the Rights
Now that you’ve endured my introduction with its sly taunts, I know you appreciate the importance of obtaining the legal rights when using someone else’s intellectual property as the basis of your own work.
In this section I’ll discuss how to locate the film/television rights to various works and how to approach the rights-holder, or their representative. In most cases, it’s really very easy. But not always, which is why I will go into so much detail in the multiples parts of this article.
You’ll see that I separated the various kinds of works by type: books, plays, comics, etc. (Most of which I will get to in part 3.) I did so because getting the rights to a musical play is a little different from getting the rights to a comic book, for example. But as I said in part 1, many of the tips that apply to one will also apply to others, so please make sure you read the entire article for a complete picture.
I’m sure much of my advice will seem like common sense. I hope so. But some information will be specific to the customs of the entertainment business and, if you’re just starting out, why would you know this stuff?
The good news is that almost everyone can learn how to locate film and television rights, and no special training is required. It’s usually easy, and even kinda fun! If you’ve seen the 2013 film Saving Mr. Banks (the only movie in history about film rights acquisition), you’ll know this process can be a delightful romp, full of witty banter and comic misunderstandings.
So, who’s with me? Either way, moving on.
“I read this novel I love…”
That’s the first thing I hear before I’m asked, “So, how do I get the rights?”
First of all, you’ll need to be clear what you mean by “rights.”
If you call someone and ask about the “rights” to their novel, they might reasonably ask which rights you’re talking about. There’s a common misconception that “rights” are just one, single thing. They’re not. “Rights” refers to a large collection of things. Or, if it helps, you can think of “rights” as a pie that can be sliced into smaller and smaller pieces. And everyone likes pie, right?
Of course this article is about “film and television rights,” and most entertainment professionals will know what you mean if you say it that way. But you should know that, even there, you’re really talking about a whole bunch of rights which must be specified at some point. For example, you might get the “film and television rights” to a novel, but it’s not a given that the television series rights will be included.
I’ll talk more about this topic in an upcoming part of this article, but for now just make sure you have “film and television rights” at the tip of your tongue when you start your search.
Once you are clear about what you want, you need to start a little investigation to uncover who owns or controls the rights.
TIP: Start with Google, or Bing, or some other search engine.
Let’s say you want to acquire the rights to the famous young-adult novel The Goats, by Brock Cole. Most likely this title will come up in the search results at the US Copyright Office website. But if not, you can start by Googling “brock cole the goats movie,” or something similar. This might lead you to learn if a film has already been made based on the book, or reveal a news article related to the film/television rights. If you searched for The Goats as I described above, you would quickly discover that the Cole novel was made into a wonderful film called Standing Up, by writer/director D.J. Caruso.
If a film or television project has already been produced, based on the novel you want, you’re probably out of luck, unless it’s the remake/sequel/prequel rights you want. But if nothing comes up related to an existing film or television production, or you only find an old news article about someone else merely acquiring the rights, start digging as I describe below.
In many cases you’ll want to contact the original publisher.
These days many books are self-published. Some of these books will have the author’s contact information in the front or back of the book - perhaps just a P.O. box. And many self-published authors have a fan website or a Facebook page. In either case you should have little trouble contacting the author and finding out who represents them. But in most cases, self-published authors will have no formal agent.
If not self-published, and you have a copy of the novel, start by looking at the page right after the book’s inside title page. You’re looking for the original publisher of the book. If your novel is the hardcover version, there’s a good chance this will be easy to find - it will be right there in black and white.
If, on the other hand, you’re looking at a paperback copy, there’s a chance that the publisher of the paperback is not the original publisher. (After being published in hardcover, paperback rights are sometimes sold to other publishers. But of course many books are also originally published in paperback.) If originally published in hardcover, most paperback versions will also list the original publisher on the page right after the title page. It might say “Originally published by HarperCollins,” or Simon & Schuster, Penguin Random House, or the like. If it does, bingo, you’re on your way.
Once you know the original publisher, go to the publisher’s website. You’re looking for the contact information for the “sub rights” (short for “subsidiary rights” department).
If you can’t find it, try emailing or calling the publisher. Ask for sub rights contact information, or ask to be connected to them, if you’re calling. When you get ahold of someone in sub rights, give them the name of the novel and the author and let them know you are inquiring about film/television rights. (In some cases you will be required to submit your request in writing. Getting an answer can take a while.)
If all goes well, the sub rights department will be able to tell you the name and phone number of the author’s “agent.”
Side Note: In this article I will sometimes use the term “agent” generically, meaning any person who controls (or reps) the rights. But it could be a lawyer, a manager, a publisher, the heirs of the author, an actual literary agent or, occasionally, the author him or herself. I suppose I could have just referred to them collectively as “the controller,” but that’s what I call the Alien Overlord who speaks to me through the microwave oven.
Sometimes there will be two agents: a book agent, and a Hollywood literary agent representing the film/television rights. If so, the latter is whom you want. But if just one, call that agent and explain what you are looking to do. Sometimes it’s better to give the agent’s assistant a heads-up about what you want and let them do some legwork, researching the status of the film/television rights within their organization. This can save you some time, and frequently the assistant will be more accessible and responsive than their boss.
If the novel is popular or well-known, it’s possible the rights are “tied up” -controlled by someone else who, like you, is trying to produce a film or television project based on the work. If so, here’s a tip.
TIP: Ask the agent who else controls the rights.
See if you can get the agent or assistant to tell you the name of the current rights-holder and when their rights “lapse.” The current rights-holder might be a writer, producer or perhaps a studio. But it might be a director or actor. You never know.
A good novel will sometimes have many suitors for the film/television rights. But it’s very hard to get film and television projects made, and the film/television rights will almost always (eventually) revert back to the author/agent, giving you the opportunity to make a deal for the rights at that time. (It’s very rare that another suitor will have obtained the rights in perpetuity because of the prohibitive cost of doing so.)
Sometimes the agent will treat the identity of the current rights-holder as confidential information. If that happens, here is a trick that’s worked for me: Politely tell the agent you understand their dilemma, but can they at least “suggest” when you should check back? Wink, wink. Sometimes the agent will say something like, “Hmm, maybe call me back in September,” which is code for “The other guy’s rights expire in August.” If so, buy a calendar, make a note, and check back then.
TIP: If the agent does identify the current rights holder, make a note.
Sometimes the current rights-holder will be a well-established player in the entertainment industry. If possible, you can try to contact them. (The agent may even be willing to make an introduction.) It’s unlikely the player will hire you to collaborate on the project (unless you are also well-established), but maybe they will! Or, if you’re a writer, maybe they’d be willing to read your adaptation of the novel after they lose their rights and you acquire them. In any case, you now know there’s someone else out there who loves the same novel you love, and that might be useful information to have someday. Especially if you control the rights at that time.
If the film/television rights are available, I’ll talk about your next step -“making a deal”- in part 4 of this article. I find this delaying tactic is annoying, but suspenseful.
While most publishers don’t themselves control film/television rights, sometimes they do. (If so, it might show up in your original copyright search.) Or they might represent the author for the film/television rights, as they did on a film I produced a couple of years ago that was based on a novel. It just depends. The sub rights department should be able to point you in the right direction.
The preceding was the best-case scenario, and it can get much tougher to track down book rights. Here are a few tips if you can’t find the publisher.
TIP: Start by searching for the author.
As I said, there’s a good chance a Google search will lead to the author’s fan website with personal - or agent - contact information. Easy. Or if it’s an older book and the author has died, there might be a fan site run by the author’s heirs, listing contact information for inquiries.
TIP: Authors can be eccentric.
If the result of your search puts you in direct contact with the author, be aware that some authors can be, uh, what’s the polite word… quirky? Frankly, some authors can be very cautious when it comes to the rights to their work. Of course this can be the case even if your only contact with them is through their agent.
I’m not implying that the author may not be an intelligent and delightful person. Truly, most are. And I’m sure they will appreciate your passion for their work. But giving up any part of their precious work to Hollywood? Sometimes not so much. I’ll talk about how to handle this problem in part 5 of this article.
The flip side of this problem is that some authors get dollar signs in their eyes and can’t wait to sell out to Hollywood. This is mostly good, unless they have unrealistic expectations about how wealthy they are about to become.
TIP: Beware of heirs.
Heirs are greedy, and sometimes there’s more than one and they will disagree with each other about the disposition of the rights they control. But regardless, be warned: heirs are usually in it for one thing. And making a deal with them will likely be all about how much money you can pay. (“But isn’t it always about the money?” you say. Amazingly, no. Keep reading.)
Another problem with heirs is that sometimes they are hard to locate, or have no legal representation. If someone has no legal representation, it’s can be very hard to make a legal agreement with them.
Or the heir might be elderly, as was the case with film remake rights I was trying to acquire a while back. In this case, the sole heir was a 90+ year-old widow in Palm Springs, who was essentially a shut-in. I got her on the phone but it was soon apparent that she was not a fully functional person, nor did she have a lawyer (but she thought one of her nephews might be an accountant). Making a deal with her would have been difficult at best, elder abuse at worst. For all my flaws, I’m not that guy, so I dropped the project.
Locating heirs is less of a problem with a well-known novel, and usually the publisher will have the contact information for the heir, or the heir’s agent. And in many cases the heir might continue to be represented by the deceased author’s agent, if the agent is also still living. But with many kinds of works, this may not always be the case.
Sometimes the easy path to locating the publisher or author is not available. This might be the case with obscure older books, or books published in foreign countries, or where the book’s original publisher is long gone, or the publisher was sold, and resold, and resold, and now all records reside in a warehouse in Trenton, New Jersey that’s owned by a bank that you’ve never heard of. (This happened to me.) In these cases, I suggest you use Google and try to research the trail of publishers as best you can, trying to get to the present. It can take some effort. Which brings me to one more tip:
TIP: Know when to fold ‘em.
Sometimes tracking down film/television rights to a novel (or something else) will be next to impossible. And it’s okay to give up. There are two reason to consider doing this:
1) Is this the only project you like? (How much spare time do you have?)
2) Sometimes a complex trail to the rights is a good leading indicator that there may be a problem with the rights themselves, if you do locate them.
Rights can become fractured and problematic over years or decades. And it sucks to spend a year tracking down film/television rights, only to learn there’s a black cloud over the “chain of title.”
Chain of title refers the history of the ownership of a work, beginning with the original author (i.e., Point A) and ending with who owns the work today (i.e., Point Z).
If a clean chain of title can’t be established, it will be very difficult for your project to get financed or distributed in a professional manner. (This is usually the first thing a financier or distributor will ask to see.) Think about it: If you make a deal for the rights, but it’s not completely clear you actually have all the rights, what then?
“Cleaning up” the chain of title will usually require the services of a legal expert, as when I hired entertainment attorney Steven J. Peña to perform a miracle on the fractured chain of title to the 2002 film “Crazy as Hell.” The underlying rights to the novel (that the film was based on) were split between two different studios, and a bank. It was a mess. I don’t recall what we paid Mr. Peña for this miracle, but it was worth every penny.
Fortunately, in most cases, tracking down the film/television rights to a novel is pretty easy. And if not, a little extra effort is usually all you need. Remember, you’ll be motivated by your passion for a book you love. When you factor that into the equation, the task will seem far less daunting.
To be continued…. Next: