Q: I am optioning a German film to do an English-language remake. Anything special I need to worry about?
A: Well, apparently you need to worry about broccoli. Does your film have anything to do with broccoli? Are you going to be eating broccoli while filming? What’s the broccoli status of your film? Do you even like broccoli? Honestly, I’m not even sure I’m going to be able to answer all the concerns you may need to address if broccoli is involved.
If broccoli is not involved, you’ll still have some issues you’ll need to address. Because copyrights can be divvied up, and you’re dealing with a pre-existing movie with its entire bundle of rights, you have to worry about exactly what rights you’re getting and what rights they’re keeping.
The right you’re definitely getting is easy to deal with — the right to make an English language remake. Even an E. Coli-crazed German during Oktoberfest can understand that. But are you only getting the right to exploit in English-speaking countries, or are you going to have the right to exploit it worldwide, including in Germany? The German filmmaker may not appreciate seeing your Americanized (e.g., explosions versus uncomfortable German moodiness) version of his movie in his home theatres dubbed or subtitled in German. Germans may go see your movie in the theatres instead of buying his DVD (even though in reality they’re probably all just watching the recently released Das Boot Blu-ray). Obviously, you want worldwide with the right to dub/subtitle in any language, even German in Germany. You should make this clear in this contract language.
The next issue is whether you’re getting the right to make one movie or if you’re going to have the right to also make prequels/sequels of your movie. This is Hollywood. If you’re film is even a moderate success, you’re going to be tempted/expected to make a sequel. Does the German filmmaker want to see a sequel he didn’t create to the film he did? The answer may be nein. It may be like watching someone else give birth to the sibling of his child. But, again, this is something you will want and should specifically address in the rights grant language in your option agreement.
Speaking of sequels, what happens if the German makes number zwei? Even if you have the right to make a sequel to your remake from scratch, if a German sequel already exists by the same great mind who made the original, you’ll most likely want the right to create an English language version of that sequel. Even if you don’t care for the German sequel and want to do an original sequel to your movie, you’ll still want to avoid the German claiming your sequel copied his film. In other words, you’re going to want/need the rights to the German sequel. If you don’t account for a method to acquire those German sequel rights in your agreement for the German original, you could risk some other brash American (or, god forbid, Frenchman) swooping in and taking the rights from you.
There are three different things you can build into your agreement for the original German film to give yourself the ability to acquire the rights to German sequels: (1) give yourself a right of first negotiation/last refusal for sequel rights; (2) set a price now in the agreement for which you can acquire sequel rights (e.g., for the same purchase price as the original); or (3) acquire the rights now. These are in order of worst for you to best. If your American film or the German sequel is hugely successful, the price to acquire the foreign sequel might be astronomical so even if you have a first right negotiation/last refusal (option 1), you’re still going to get stuck with a high price, which is why setting it now before anything happens would be in your best interest (option 2). Better yet, you should try to convince the filmmaker to do option 3, which is an infomercial-style deal where if you act now and buy one right (to the original), he’ll throw in some extra sequel rights for no additional charge (or for a minor premium). If you somehow convince the filmmaker to go for this (it will be tough), it’s got to be very clear in the rights grant language that upon paying the purchase price, you’re acquiring rights in not only the original movie but also to any and all sequels or prequels to that movie.
Just like Hollywood in the summer, we’re not done with sequels yet. Unless you’re a crafty devil and somehow prohibit the German from making sequels to his film, you’re going to want to at least address how the German can release his sequels. You don’t want hipsters to show up at the Landmark and have to decide between your American remake of the German original (which their film snob friends have invariably told them is better than yours) and the German original’s sequel (which the film snob says is not as good as the German original but still worth seeing). Therefore, you should demand a holdback on the German’s right to make a sequel to his film (e.g., he can’t release a sequel within X years from the release of your English remake of the German original).
Finally, just like a Schwarzenegger nanny, you’ll have to deal with the German’s involvement (okay, I know he’s Austrian, but, come on, I’m American, I’m not supposed to know such subtle differences). Do you want the original filmmaker involved on your film? It may help you stay true to what made the original great, but you may also lose some control as the original auteur is surely going to be watching over your shoulder and offering opinions.
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.