Q: A production company optioned my script. They wanted a few changes, and they paid me to do a rewrite. I liked some of their changes, but many I didn’t. So I only made the changes that I liked. I think the script is much stronger now, but they let the option expire. I thought that I can now sell the script to someone else, but a friend told me that, because I had a separate writing agreement, the production company owns my rewrite. How can that be?
A: Unfortunately for you, your friend could be right. This is easier to discuss around a concrete example. Let’s say your original script was a Raymond Chandler style film noir about a pair of unshaven LA cops named Bill and Bob who have a drinking problem, drive a hugentic SUV, and date two women named Betty and Barbara who smoke and have jealous husbands. The production company loves it but feels the story would work even better if re-imagined as a buddy comedy in which Bill and Bob are clean-shaven security guards at a Cleveland shopping mall who have a drinking problem, drive a tinicious Smart Car, and date two women named Betty and Barbara who don’t smoke but still have jealous husbands. And the best part is the production company will actually pay you to rewrite it this way. So you go to work, and in a few short weeks Bill and Bob wreak hilarious havoc at the mall.
Just as you finish the rewrite, the production company gets a new owner who decides to produce nothing but straight-to-Cinemax “documentaries.” Your Red State buddy comedy doesn’t fit this vision so the production company lets the option on your script expire without exercising it. You think you’re now free to sell your laugh-out-loud Ohio buddy comedy to the highest bidder.
The problem is most likely you can’t. Here is why. The original California noir script that was optioned is in fact now yours to do with as you please. You own it outright so you can sell it or burn it (I’d say burn it); it’s your prerogative. But the revised, clean-shaven Ohio Bill and Bob most likely are owned by the production company. Since the production company hired you to do the rewrite (unless the production company doesn’t know what it’s doing), the rewrite is a “work-for-hire” for the production company (which means they are owned by the production company).
Your only hope is that your option and writing agreements were well-negotiated to provide that if the option is not exercised, then the rewrite will either revert to you (in which case if you ever sell the rewrite you will repay the production company what they paid you and maybe some other amounts with interest) or you will at least have the right to buy back the rewrite at roughly what the production company paid you with interest. But unless your agreements provide this, the now straight-to-Cinemax production company owns the Ohio Bill and Bob, while you still own the California originals. If that’s the case, it means that you can do whatever you want with your noir script, but you can’t touch the buddy version.
If it’s any consolation to you, the production company can’t do anything with the buddy script either – that script is a so-called “sterile” script. They own it, but, because it’s based on the underlying script that you own and they don’t, they can’t make the Ohio Bill and Bob movie without violating your rights. Therefore, if the production company changes course again and wants to do the Ohio Bill and Bob movie after all, they will have to get your permission to make it (and you should be able to turn your permission into dollars). In a similar vein, if you find another producer who wants the Ohio Bill and Bob movie with a ‘few’ tweaks they’d like you to write, that producer will have to buy it from the original production company before they can work with you to get those tiny Smart Cars on the big screen.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.