The Reel Deal

So You Want To Be In Pictures?

It’s every writer’s fantasy — Hollywood buys your story and before you know it, you’re watching your name roll down the credits of a summer blockbuster.  Likely? Of course not.  Nevertheless, the chances of your work being considered for film or television might be greater than you think — if you know the ropes. 

Film and television producers acquire their properties from novels, nonfiction books, short stories, newspaper and periodical articles.  Most writers believe that a novel is their best chance of selling to Hollywood, and in the case of the bestseller, it’s true.  Bestsellers have a built-in audience and (usually) a fully developed story full of strong suspense and characterization —  the studio need merely bring in a screenwriter, hire Tom Hanks or Julia Roberts, and rake in the cash. 

Unfortunately for Hollywood, there just aren’t enough suitable bestsellers to supply all the studios, not to mention the television and cable networks.  Studio producers and development executives are forced to look elsewhere for good film properties, primarily relying on agents to submit material.  Producers also scan book trade publications like Publisher’s Weekly, publisher’s catalogs, and the book review sections of major newspapers.  Some studios even pay editors and readers at publishing houses to tip them off when they see a suitable property.

Producers especially look for compelling real life stories, often published in magazine articles or newspaper features.  These often become very successful movies.  Remember Top Gun?  The producer, Jerry Bruckheimer, got the idea from a magazine article about the true-life Top Gun naval air school. Many recent releases, such as The Perfect Storm, Erin Brockovich, A Civil Action, The Insider, and The Hurricane, were based on real-life events or stories. 

 Know Your Rights

 Let’s say you have published a novel, book, or magazine article that might make a good movie.  How do you sell it? . .

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 below, “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.