Q: I wrote, directed and produced a sci-fi action short that I think would make a great big budget feature. In the meantime, I have a friend who works for a small video game developer who absolutely loves the concept of my short and thinks it would make for a great game. I think it would be very cool and am thinking about putting together some sort of deal with my friend, but I don’t want to do anything that could jeopardize my ability to someday make a studio film based on my short. Should I just pass or do you think there’s a way I could make this work?
A: For you and your friend’s sake, I hope your short doesn’t involve a chubby, mustachioed Italian plumber with a love of coins who’s intent on saving a princess from mushroom and turtle creatures… in space. If that’s the case, we may have a problem. If not, there’s a chance you can make this work, but you’re right to be concerned about the possibility that your granting of rights to this video game developer could later affect your ability to produce a big screen adaptation of your short film.
First a quick note to those readers who think this may not apply to them because it involves video games: the majority of these issues would arise with respect to a production of any type of derivative work based on something you own, whether it be a video game, a book, a stage play, etc. so don’t be afraid to keep reading!
Back to the question at hand. Here are your biggest concerns: let’s say you simply assign all video game rights from your short to this developer. The developer then creates an original game based on your short. The game, while based on your story, will almost definitely have numerous elements that were originally created and added by the game developer and thus would be owned by the developer. Because you assigned video game rights to the developer, it would also own the exclusive right to create video games based on your story. Additionally, the developer likely would have the right to create sequels to the game and may, depending on the language of your agreement, even have the right to create a movie based on one of its games (if, for example, your grant of rights states that it has the right to make a video game and any derivative works based on that video game).
These would obviously all be problematic to a movie studio to whom you may later pitch your short. First, studios do not like to run even the slightest risk of producing something that could lead to a copyright infringement claim by a third party. Therefore, the studio is going to be wary of turning your short into a feature because of the risk that the developer may later claim that aspects of the motion picture were taken from the original elements of the game.
The second issue is that almost every blockbuster movie is going to have a video game associated with it, especially if your concept already lends itself well to a game format. Studios see games as an opportunity to make more money and generate more publicity for a movie (and every once in a while they actually make a decent game — my thumbs still have blisters from GoldenEye 007). The value of your short to a studio is going to be lower if the studio does not have the right to make a game based on your movie (which it would not if the developer owns that exclusive right).
The final issue is that studios want to control everything related to their movies and would hate the idea that some third party could be exploiting a game not approved by the studio and using the success of the movie to make money the studio will never see.
To address these issues, the following are some suggestions. First, in your grant of rights to the developer, you should specifically state that you are only granting it the right to create one video game based on your short, but nothing more. No sequels and no movies, comic books, toys, etc. based on the game.
Second, while you will retain ownership rights with respect to all elements of your story, the developer is going to own the game and everything it adds to your story in the process of creating the game. Therefore, in your agreement with the developer, you should set up a “license back” from the developer to you of any of the unique elements for you to use in a motion picture. With this, the studio would be free to take any elements it liked from the game and would never have to worry about the developer claiming the motion picture infringed upon its rights.
Third, you should limit the time the developer can exploit its rights in the game. For example, you could state that its can only distribute the game for a period of 2 years. Another option would be to retain a termination right so that the developer could only continue to distribute the game until a date which is, say, 6 months from the date you give them notice that its right is terminating. What this would do is give you the ability to cause the developer to stop distributing at some point prior to the release of the motion picture. This will give the studio comfort that there’s not going to be a third party game out there sharing a plot and the spotlight with its movie.
Finally, you need to retain the right to make a video game based on a full length motion picture. This may give the developer pause. To sweeten the deal, you could agree to some sort of “First Right of Negotiation” right which would obligate the studio to at least give the developer the first right to negotiate a video game development deal if/when the movie-based game is created.
Whew. I know what you’re thinking. You and your friend wear t-shirts and Vans and hang out at Spaceland and just wanted to come to a casual agreement over your iPhones. Here comes the lawyer throwing out all these complicated caveats that are going to make your friend uncomfortable. Unfortunately, sometimes complexity is necessary; especially if you’re trying to make a deal work when both sides have unique sets of concerns. The good news is that, from your description, it sounds like your friend probably works for a small independent developer which means this deal has the potential of actually happening (a larger developer likely would not touch this deal with these demands because it would eventually have to answer to a publisher, which are about as easy-going as studios). If you can explain your valid reasons behind your requests, you two can work out a deal that benefits both parties.
Of course, you can always ignore me and instead search the Mac store to see if there’s an “app” for putting together this kind of deal. According to those smug commercials, there probably is.