Guest Post from Beth Orsoff: Protecting Your Film Rights

This interview was originally posted on 08/05/2013 on my previous blog. Reposting.

I briefly posted about my recent experience with someone who was interested in the film rights to my book, No Good Deed. As you can imagine, when I read the email, I felt a thrill of excitement. Within minutes daydreams fired up with visions of how No Good Deed would appear on screen. Who would be cast as Mark Taylor? What about Jim Sheridan? Would I get to watch filming? *sigh* Sadly, my little dream bubble popped this morning when I couldn’t come to an agreement with the guy who asked about the rights.

As soon as I was approached about the rights, I activated
the BethSignalto get in touch with Beth Orsoff. Beth is not only a bestselling author, but also an entertainment lawyer. I learned from the would-be matchmaker (known from here on out as John Doe, or JD for short) that he wanted to basically option my book so that he could pitch it to some big name producers. He has interviews lined up for a PBS series. The producers he listed in an email are seriously legit, so I was really getting excited but I’ve learned to be wary over the last few years. JD already had produced one short series where he interviewed successful business owners who started small businesses.

Beth has graciously offered to be interviewed for this blog post, so, I’ll begin with my first question right after I received the email where JD named the producers and outlined his idea. Of course, it sounded good, but I knew there were things I should ask him, but I had no idea what those questions should be. Am I the only one who is clueless? (Hey, I see you nodding!)

All joking aside, we’re talking about my book here, and I didn’t want to screw it up so I asked Beth some questions. Here they are along with Beth’s replies:

Before I answer questions I just have to state for the record to anyone reading this that I am NOT giving anyone legal advice.  You, reader, are not my client and I am not your attorney. That said, as someone who works in the entertainment industry and has drafted many book option-purchase agreements, I can give you some general pointers so you (hopefully) don’t get scammed.  It’s important to remember that anyone can call himself or herself a “producer.” It doesn’t mean they actually know anything about how the industry works, have any contacts, or have any ability to get your book made into a movie.  Hundreds of books are optioned every year; only a handful of them are ever produced as feature films or TV shows.

What is the first thing an author should ask someone who approaches them about film rights?

Ask for a list of their credits/credentials.  You should also google them and look up their name on IMDB. If you can find no information about this person other than their Facebook page and Twitter handle be suspect. Producers are not generally known as humble people who try to hide their accomplishments.

If, as in my case, the interested party doesn’t have money to pay an option, is that a deal breaker?

No, not necessarily.  But in that case you’re better off entering into a shopping agreement. This document would give the interested party the right to “shop” your project to other interested parties (e.g., studios, major independent production companies, major producers with a track record) who have the money to actually option your project and develop it. Three important points to remember when negotiating a shopping agreement is: (1) it should be for a limited period of time (i.e., 6 months)—you can always agree to extend it if you want to; (2) you are only granting this person the right to shop your project, you are not granting this person rights in your project i.e. there should be no language assigning rights or copyrights, and all deals should be subject to your approval; (3) you should not be paying this person anything – if he/she incurs costs, they are his/hers to bear.

I know that there is probably no such thing as a ‘usual’ film option, as the terms can vary, but can you give us an idea what kind of option that would be something to consider?

I work for studios and major production companies so those are the sorts of agreements I am most familiar with.  These are not parties who are going to make a feature film for $500K and then enter it into film festivals hoping to find a major distributor.  That’s an entirely different scenario.  In a typical deal with a major studio/production company/producer (I’m going to use the term “studio” to represent all three) the studio will option the book for a 12-month or 18-month period with the right to extend for an additional 12-month or 18-month period. The first option payment will be applicable against the purchase price, extension payments usually are not.  Option payments vary, but a good rule of thumb is 10% of the purchase price. In terms of actual numbers, these vary hugely depending on the book, the producer, the studio, whether lots of people want to buy your project or you were lucky to get one offer.  It’s a negotiation. A purchase price of $100K would be on the low end.  A purchase price of $1M would be on the high end.  And often times when the option-purchase agreement is with a producer instead of with a studio or production company the deal will contain a “set-up bonus” i.e., an additional payment to the author when the producer sets the project up with a studio or production company.  Deals can also include bestseller bonuses, box office bonuses, profit participations, and passive payments for additional productions; plus there are lots of other non-monetary points that have to be negotiated including the all-important rights grant i.e. what rights are you, the author, keeping and what rights are you granting to the studio.

One thing I didn’t care for in the option offered me, other than the $1 payment, was that there was a purchase price already written in the contract. Is that normal?

Yes, that’s normal. It’s not an option agreement, it’s an option-purchase agreement. There can be some variance in the purchase price e.g., a percentage of the budget of the film with a floor of a certain dollar amount and a ceiling of a certain dollar amount, but there should be a purchase price—and more importantly, that purchase price needs to be for an amount that is acceptable to you.

If someone offers one like that, how do they arrive at the purchase price?

I don’t know how the person who approached you arrived at the dollar figure that he did. Usually these deals are negotiated by book-to-film agents (who represent the authors) and business affairs executives (who represent the studios). The number will be based on all the items I noted above (i.e., who the parties are and how much interest there is in the project), plus everyone will look at their precedent –what they’ve received/paid out on other similar deals. The point is it’s a negotiation. The person who approached you made you a take-it-or-leave-it offer. That’s not a negotiation.

General comment – As I mentioned above, I come at this from the perspective of a studio lawyer.  But there are hundreds or perhaps even thousands of low budget films produced every year by passionate people who enter their films into festivals and competitions with the hopes that the film will get picked up by a major distributor.  And sometimes they do.  It may not be likely, but it’s definitely possible.  So, if you’ve been approached by one of these people who has passion for your book but not a lot of money, don’t dismiss them out of hand. And if you want to option your book to one of these people for little to no money, that is your choice.  Just understand what you’re giving up—which is the right to maybe one day sell your work to a major for substantially more money. Because once you assign your rights to someone else in perpetuity those rights are gone for good—unless you negotiate a reversion clause and/or benefit from a copyright termination, but that’s a whole ‘nother blog post.

And just one more myth I’d like to dispel: There seems to be some oft-repeated rumor out there that in order to get a studio interested in your book you have to write a screenplay (or hire someone to write it for you).  THIS IS ONE HUNDRED PERCENT FALSE.  In fact, the existence of a screenplay written by the author/author’s friend/author’s cousin/random stranger just complicates matters.  The studio only wants to option the rights to your book. The studio will then hire a screenwriter of its own choosing to write the screenplay based on your book.  That’s called “development” as in “my book has been in development hell for ten years!”  If you retain nothing else from this blog post retain this:  DO NOT WRITE A SCREENPLAY BASED ON YOUR BOOK—not unless you’re actually a working screenwriter (and no, reading Syd Field’s entire collection of screenwriting books does not make you a working screenwriter).

Thank you so much, Beth, for taking the time to answer my questions as I’m sure you have helped a lot of authors out there.

Beth Orsoff  has been been published by Penguin, Amazon Publishing, and has also self-published. 
For more information about her books, visit  Beth Orsoff.