Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: What's the proper procedure in trying to secure the rights to a feature property owned by a major distributor?
Answer: First, determine if the distributor or owner of the rights is willing to option or sell any rights to you. If a major studio has decided not to pursue the project itself, the producer who brought that property to the studio may have a turnaround or reversion clause enabling him/her to regain rights to the property. Moreover, if a distributor optioned a property, and the option lapsed without being exercised, the rights to the property may now reside with the author.
Question: I recently learned of a French book I would like to try and set up as a film here in the U.S. The publisher informed me a French production company is making a French version of the film right now. Is it possible to get English language rights from the producers in France and make the film here in English, or are the film rights tied up in one film/one language?
Answer: You need to contact the owner and review the deal made by him/her with the French company. If the owner licensed all rights to the French company, then you will need to negotiate with the French production company. If the owner, reserved English language rights, you could license them.
Question: I am currently working on an animation project that we have just pitched to a large animation production company. Till this point every company that has seen our project has been interested by the merchandising potential of our character(s) and concept. (We have heard the words "Teenage Mutant Ninja Turtles" many a time over the past year.)
The problem we have had up until this point is that we want to retain at least a good portion of the ownership and rights to our characters and concept. So far we have walked twice just for that reason. We were told it was not possible to keep the rights to our characters and ownership was unheard of in the industry. We have just pitched our idea, and though we have not heard if they plan to develop our concept, I am wondering if we are going to hit the same roadblock. They have told me off the bat that ownership was negotiable, but that was before they saw our material. My questions are: (1) What can I expect in reference to ownership? (2) How much is an idea worth in this business? They have told us that should they decide to develop our idea, they had the capability to finance it in-house (something they say they previously have not been able to do) and I'm almost anticipating them downplaying our idea for the reason of getting more out of the deal. We are essentially greenhorns, and I don't blame them for trying such a thing, but what is a good way to deter or counterattack such a tactic. Any suggestions would be greatly appreciated.
Answer: It is possible to retain merchandising rights. George Lucas did that on "Star Wars." However, your ability to retain merchandising rights will depend upon your negotiating clout and stature in the business. If you are just beginning, you may find it difficult to retain ownership rights.
Besides retaining ownership rights, there is also the issue as to how revenues from exploitation of the material are to be shared. If you gave up ownership rights, but were entitled to significant participation in revenues that were derived from your work, that might be a deal worth considering, if the company is reputable and if you have adequate assurances that you would actually be paid the money due to you.
Question: I've been offered an opportunity to write a screenplay under a Work Made for Hire agreement. I have written several screenplays of my own—the writing isn't the problem—it's the Work for Hire arrangement. Thus far, I've been given a very brief treatment and a contract stating that I essentially claim no rights to the "Owner's" film, which is fine. (I have not signed the contract as yet, by the way.) However, the treatment is very sketchy and in discussion with the owner I've been able to show him where particular aspects of his story might not work.
After researching the issue, he agreed that he had some flaws in his treatment and wanted to know how I thought they should be fixed. Basically, my question is this: What are my responsibilities in this type of relationship? To me it seems there should be a clear line between putting someone's developed story into script format and developing the story, plot, back-story, etc., which is what he's trying to have me do. If I'm developing the story, plot, etc., doesn't that then make me a co-writer? Or is this what "Work Made for Hire" is all about—the writer comes up with the story and the "Owner" gets all the glory?
Answer: The issue of who gets the glory and the credit is separate from who owns the property. In a work-for-hire arrangement, typically the employer owns the copyright to the work. The writer, however, may be entitled to sole or shared screenwriter credit. Keep in mind that if this is a Writers Guild agreement, the producer doesn't have the final say about the writing credit anyway. That's subject to Writers Guild arbitration.
Question: I am writing a book and within the book I would like to include a monologue from a major motion picture. How would I go about getting an "okay" from the motion picture company to do that? Who would I contact?
Answer: The studio that released the major motion picture most likely owns the copyright to it. Sometimes, however, a production company might retain the copyright and simply arrange for distribution by contract. At any rate, you should start by contacting the legal department at the studio that has released the picture to find out who owns the rights to the script. You cannot use a monologue from a major motion picture on another work without violating the copyright of the motion picture. There are a couple of exceptions. If the copyright for the motion picture has expired, then you can use the dialogue, or if you are using just a very short portion of the monologue, it might fall within the fair use doctrine.
Question: I am interested in remaking a variation of an old Hitchcock film. Would you direct me on how I should proceed so as not to incur any legal problems?
Answer: It is unlikely that the old Hitchcock film is in the public domain. Therefore, you will need to secure permission from the copyright owner. A good place to start is the studio that released the film. You should contact their legal department to determine who owns the copyright to the film. It is probably either the producer or a distributor. Then, you need to determine who owns the remake rights.
Question: How does Lucasfilm own the merchandising/licensing rights to all of the "Star Wars" episodes? Wouldn't the studio have control over that? Or do you have to be a heavy hitter like George Lucas to negotiate for that? My real question is this: Say I have a potential franchise movie idea and I would like to control (or at least participate in) the merchandising/licensing opportunities. Who controls those rights to begin with?
Answer: George Lucas was shrewd to reserve the merchandising rights when negotiating his deal with 20th Century Fox. Undoubtedly the studio did not realize how successful his picture would be, and how lucrative the various merchandising spin-offs would become. There is nothing preventing you when you negotiate with a distributor to reserve these rights. That being said, most distributors have awakened to merchandising potential from feature films, and they often insist on controlling these rights. If they pay you enough money, you may want to relinquish the rights.
Question: I am currently working with a member of one of the most popular bands of the Sixties on his story as a screenplay. I need to know what rights and clearances I need to use certain material. I don't mind controversy; I just don't want this project in any legal trouble. Thank you for your time, knowledge, and help.
Answer: The rights you need depend upon what you are planning to do. Certainly if you are going to be using the music of one of these bands, you will need to obtain various rights from the music owners. This may include composers, record companies and publishers of the music, as well as any musicians, vocalists, and lyricists. If you are going to be showing any footage of the band from prior performances, then you will need permission from the copyright owner of those film clips. If you are simply doing a documentary about the band, and not planning to incorporate any of their music, you may not need any rights. Assuming you don't defame them or invade their privacy, you may be protected under the First Amendment. But it seems to me to be particularly difficult to do a movie about a band without using some of their music.
Question: How does one go about obtaining the rights for movies for public viewing as does such stores as Blockbuster and home rental centers?
Answer: Tapes you rent from Blockbuster and other retail home video outlets are for home use only. These retailers do not have the right to license public performance rights. For this you need to contract directly with the copyright owner or licensee, which is often the distributor of the film. Any source
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