Wednesday, 3 July 2013
Acquiring rights for adaptations
written by Toksvig
Someone asked me about obtaining rights to something you want to adapt. Before I start, be warned that this is based solely on my own experience, and your mileage may vary enormously. Also, I'm talking about something that immediately and instantly falls under legal agreements and, as such, you're wise to ignore what I say and hire a good lawyer to advise you. I am not a lawyer. Nor am I a legal professional. This stuff can get really complicated and tricky. And expensive. Note that every situation is unique, and should be approached as such.
Here's my personal tuppence ha'penny. It's quite long, I'm afraid.
Is it in the public domain?
Films, novels, poems, paintings, comic books, cartoons, TV, plays - whatever it is, the first question you should ask yourself is whether or not it's in the public domain.
Basically, copyright protects a work for a specific length of time - usually for the creator's lifetime and then a number of years beyond their death - after which it is said to be in the public domain, and freely available for anyone to use, adapt, collaborate with, in full or in pieces.
I recommend using Google for the latest info on copyright duration, because it can differ according to what kind of property you're looking at. (Photographs differ from books, etc.) Here is a link to the government's Intellectual Property Office that worked the day I wrote this blog post.
Who owns / controls the copyright?
Once you've established that it's not in the public domain, you have to find out who owns and/or controls the copyright.
If only one creative person wrote, painted or otherwise created the source material you're looking at, then find out who represents them, and make contact. Some tips for that are below.
Bear in mind that it's often not as simple as the copyright being owned by one writer, end of story. There are often layers and layers of copyright ownership, especially in movies, which may themselves have been adapted from a novel or something else.
The Original Source Material
Do yourself a favour and find out what the original source of the story was, and then make an informed decision about whether you're interested in adapting that original source material, or adapting someone else's adaptation of it.
The Princess Bride is a novel that claims to have been written by S Morgenstern. First, you'd have to discover that the name is a hoax, and it was actually written by William Goldman. This novel is the original source material.
Don't assume that it's the original source material just because it's a novel. Many novels and plays are adaptations of other stories. Shakespeare adapted history and folk tales. Even the Bible stories aren't necessarily the original source material. For Noah's flood, see also the earlier tale of the flood of Gilgamesh, and so on.
The Princess Bride was adapted into a movie, during which process, several bits of the novel got left on the cutting room floor. If you wanted to make that story into a musical, you could either choose to adapt the original novel and make your own cuts in the process, or you could say that you liked the cuts made in shaping the movie, and you could adapt the movie.
There are upsides to adapting the movie. For one, you get a story which has already been adapted into a genre that requires a more succinct narrative than a novel, so you might feel that much of the work of the adaptation has already been done for you.
Plus, the movie of the book may be a more familiar version of the story to a broader audience than the novel. If the movie differs in any way from the novel, your broad audience might feel hard done by that the scene they loved in the movie isn't in your musical because you adapted the novel, and it's not in the novel but was added for the movie.
Some of the downsides of adapting someone else's adaptation are that you might find it inhibitive being limited to choices that someone else has already made about the story, and you will certainly find that it is much more challenging to get stage adaptation rights to a movie than a novel.
If you go right back to the very original source material, you might find it more freeing to make a clean creative approach from scratch. You might also find that the movie with which you fell in love is nothing like the novel at all, and in fact, what you fell in love with was the adaptation itself.
You should choose as your source material whatever feels right to you, but it's really useful to be informed about where in the process your choice of source material stands, and who might have a claim to the rights in that material along the way, starting with the very original source. It's likely they will all have some ownership or control, from that person onwards.
The Rights Holders
To adapt the novel of The Princess Bride, you'd have to find out who William Goldman's literary agent is, and contact them. If you can't find the info on Google, which is often tricky, you can try calling the book publisher and asking them whom to contact.
If you wanted to adapt the movie - well, in this case it just so happens that William Goldman adapted his own book into a screenplay, but it could just as easily have been a screenwriter, who may have a literary agent. There might have been several screenwriters, some of whom may have been fired from the project but still retained some copyright in the work.
To get even more complicated, some or all of the screenwriters may have signed over their copyright in the work to the film company, so you might have to contact the film company that released the movie, since they may own some or all of the adaptation rights in that screenplay.
A quick Wikipedia will tell you that The Princess Bride has several distribution companies: 20th Century Fox, Vestron Pictures and MGM. You then have to go through what can feel like an endless process of Googling and calling people (abroad) to find out exactly whom you should be contacting to inquire about rights.
It can be frustrating, time consuming, expensive, and you may never reach the right person.
Here are a few tips and tricks I've discovered along the way, that have helped me get my request to the right sort of person, in the right sort of way.
Ask if, who, and how
For movie companies, ask to speak to the legal department, and then when they put you through, ask to speak to the person who deals with stage adaptation rights. See if you can actually speak to the person in question, not their assistant.
For literary agents, ask to speak to the person who represents that author. You'll often be put through to their assistant. In this case, don't ask to go further. Just start making your enquiry via them.
Once you get to the right person, ask:
a) if they are in fact the right person to approach about this work.
b) to whom you should specifically make your approach. Get a name, make sure you have the spelling right, and find out what their direct email address is. Or, if you can only get this far, at least find out who their assistant is, how they spell their name, and what their email address is.
c) how they prefer to be approached. You can helpfully suggest an email with a basic enquiry and some brief info about you. Then if they want something else, they'll tell you, but otherwise they're not having to think about it, just saying yes to you.
Always be as brief as you can. THEY DON'T CARE about your creative plans to make a masterpiece that changes the face of musical theatre for ever. They care that you know what you're talking about, won't cause them any extra work, and might make them some money.
(It's okay that they don't care. It's not their job to care. If they did care, they would interfere in your creative process, and that would be bad.)
Types of rights: exclusive and non-exclusive
Rights can be granted as exclusive or non-exclusive.
These two mean exactly what they say on the tin: being granted some kind of exclusive right to something means that no-one else will be granted that same right. Being granted a non-exclusive right means anyone else could also be granted that same right.
My personal advice is always to ask for non-exclusive rights first, for several reasons.
You don't want to give yourself a huge responsibility before you've even started addressing a project. Suddenly being the only person in the universe who is solely responsible for bringing to the stage this story which you think is the most incredible thing that might just make the best show ever - you do think that, right? - is just more responsibility than you need at the start.
You're not setting out to get married to the material tomorrow. You haven't even said hello yet, let alone gone on a first date with the story. Give yourself, and the story, a little time to get to know each other before you make a big commitment. You might find you don't get on as well as you thought you would, and it's better to be in a place where you can politely say thanks, but this isn't working out, without feeling like you're going back on some big promise.
Non-exclusive rights tend to be cheap, or even free. Exclusive rights tend to cost money.
So you could start by saying:
"I'm interested in acquiring some non-exclusive rights in your novel…"
Some. Not even all. Just some.
Length of rights granted
It can really help to limit the length of time for which you're asking rights to be granted. How long you need the rights for depends on your intention for the show.
If you want to do a quick adaptation of it for a charity concert next Wednesday, you don't need the rights for more than a week.
If you have longer term hopes for the show (not plans, yet - no first date yet, remember?) then you could just talk about the first stage of the process, because that might be the only stage you actually know about.
A first date with a new adaptation might be a rough first draft, culminating in an informal reading to see if you like the piece, and some friends like the piece. Or a potential collaborator likes the piece.
So you might go on to say:
"I'd like to do a musical stage adaptation, beginning with a very rough first draft culminating in a private reading in six months. This would give me the chance to explore my approach to the adaptation."
And you could invite the rights holder to the reading. Or production, or industry showcase, or you could just offer to send them something to look at.
Six months might be too long for you. Maybe you'd prefer a couple of weeks to sketch out an outline? Or write a couple of songs. It all depends on how long it takes you to see if you like something. How long you want to devote to the project. How far in advance you can be sure you'll feel that you've made the right commitment to the right show.
Or maybe the rights holder seems reluctant to let you have six months, so you suggest less time, and offer to send some material after a couple of weeks.
It's all about negotiating with them, so be very certain that your first suggestion to them is actually the best choice for you, and be prepared to compromise that if need be. It's good to know what you'd be willing to compromise whilst still reaching your goal, and what you wouldn't be able to compromise.
Of course, you might want to say that you've been commissioned by the National Theatre to adapt the latest Times Bestseller, and you're asking for exclusive rights for the next five years. In which case, get a legal professional and let them sort it out for you.
When it comes to money, it's really useful to think about your application for rights in terms of the rights holder, who is obviously going to be interested if there's likely to be an income for them.
If you're asking for non-exclusive rights to prepare material for an informal private reading, within a very limited time frame, then there's clearly not going to be any profit in that at all. So their decision will be based on whether or not they care about, or are interested in, you adapting their work. And whether or not an adaptation by you might some day make them some money.
When you're granted non-exclusive rights to, say, a novel, the rights holder can still say yes to that big film company which suddenly wants to make it into a movie. So they're not that worried.
Exclusive rights are different. They'd have to say no to that big film company, and that will potentially lose them a lot of money. As insurance against that sort of thing happening, they may ask you for a fairly substantial chunk of money if you're asking for exclusive rights. And you (or your producer) may be willing and able to pay it, which is fine.
I would put some examples of amounts here, but there really are no ball-park examples. The amount of money might be anything from a penny to a million quid, depending on what the property is, who you're dealing with, who you are, what kind of deal you're asking for…
You simply have to weigh up the potential financial value of the whole experience, and see if the request seems fair and reasonable. And affordable.
What if they ask to see some stuff before they grant rights?
Ask them what they want to see, and send them a reasonable amount of stuff, without overloading them with material, and without overloading yourself with work that may come to nothing.
You could send them a page outlining your ideas for the adaptation. Maybe also send them an mp3 of a song, with a lyric sheet. (Not a score.) Link them to your other work online. Give them enough of an idea of you and your intentions for their property.
Mark everything you send them as very clearly your copyright, and send a copy of it to yourself, someone else - preferably a lawyer or legal professional - so that you have an independent record of having sent it.
Here are some other frequently asked questions:
Should the writer or the producer go about getting rights?
If the writer gets the rights, and then approaches the producer, what the producer does is option the work.
If the producer gets the rights, and then approaches the writer, what the producer does is commission the work.
The difference between the two is important. A commission might carry with it some expectations of future ownership for the producer in the show, even when they're no longer producing it, because they were instrumental in obtaining the rights and hiring someone to adapt the material for them.
An option is simply that: the writer (or writing team) already has the right to adapt the material, and they offer a producer the option of putting that show on. The producer didn't have the idea for the show, and didn't go about acquiring the rights.
Again, it's worth stressing that this is a very complex legal area. Getting professional legal assistance for this stuff is vital.
What about a story about a real living person? What about the copyright in work that's devised in the rehearsal room by the performers?
Ask a lawyer.
(Worth noting here that the performers who devised the original material which became A Chorus Line still receive a royalty in the show.)
Terminology you might come across
Advance: payment up front that is recoupable later on
Billing: how the original author's name is presented on all print / publicity
Commission: a request for a specific new work from a producer to a creative artist
Duration: length of time
Exclusive: no-one else can have that same agreement
High-profile: very valuable / famous / celebrated
Non-exclusive: anyone else could have that same agreement
Option: a limited opportunity to exploit a property
Property: a novel, a film, a piece of creative work
Rights: literally having the right to do something, permission
Royalty share: a percentage of profit
Territories: countries, parts of the world
Warranties: guarantees (eg: a clause in which the author warrants that they have the right to grant you these rights in this work)
Once again: this is intended as a general guide only. It's not specific advice, and I am not responsible for anything that goes horribly wrong for you if you're just relying on this info. Really, don't listen to me. Ask a legal professional. I reserve the right to continually edit this, and encourage you to comment on it with your own experiences. Also, like all the posts on this blog, this information went out of date the moment I posted it.