Q&A

Q: I read in the trades that Fox bought the rights to the nonfiction book The Floor of Heaven which is based on an historical figure during an historical event. If historical events/figures are open game for the public to write about, when is it necessary to secure nonfiction book rights? Holy Blood Holy Grail was used in the research for Dan Brown’s Da Vinci Code — they sued him and lost. So I’m really confused as to when it applies. And am asking because I have a script based on an historical figure and used one particular book heavily in my research — should I inquire about the rights? If not legally necessary, is there any benefit in doing so?

A: We get two types of questions very frequently. The first, of course, is: “are you single?” The second involves the making of movies based on historical people or events. I had no idea so many filmmakers were interested in making movies that are generally incapable of a sequel. What’s the point of making movie if you can’t follow it a few years later with a derivative, unimaginative rehash? I’m still waiting for Thirteen Days 2: The Bangkok Missile Crisis but I’m pretty sure it’s never going to happen.
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Q: I have just had a novel published by a small publishing house in Montreal, and there is already talk of adapting this into a film. The original publishing agreement does not include subsidiary rights, and the publisher — who is in touch with the movie interests — wants to write a separate deal between me and him over the movie rights. I have no fundamental objection to this, but don’t know what the split between author & publisher should be. Can you tell me what is usual/standard in such cases?

A: The usual/standard in such cases is to try hard to develop a fundamental objection to this. It’s customary for many publishers in the US and Canada not to acquire film rights to the books they publish. The custom in Europe and elsewhere is just the opposite: publishers acquire not only publication rights but also film, TV, and other “subsidiary rights.”

It seems that the only rights the publisher acquired to your novel are the publication rights. And you retain film and other “subsidiary rights.” If that’s the case, the split between you and the publisher should be 100/0, in your favor. Film rights to your novel are your property, and there is no reason why you should cut in the publisher. Why stop at film rights? Maybe you should also split with the publisher the proceeds from the sale of your boat?
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Q: I’d like to use some audio from an old radio show. My research so far reveals the show…like many old radio shows…was never copyrighted. How does one determine the copyright status of something like a radio show?

A: Let’s first talk about where copyright law is today with respect to the need for copyright registrations. Remember those old SAT questions where they asked you to find the two pairs of things that were most alike? Well, under current U.S. copyright law, copyright registrations are to copyright owners as permanently affixed Bluetooth earpieces are to morons. You don’t have to have a copyright registration to be a copyright owner, but if you do have a registration, you’ve put the public on notice that you are, indeed, a copyright owner.
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Q: I’m a documentarian. If I were to record a live show as part of a documentary — audio and visual — am I free to use it even if there’s live music being played in the background?

A: Look, I’m no math magician, but one of the things I always liked about math is that it’s a world of definitive answers. In my simplistic view, the world to a mathematician is one big black and white cookie. It may be a complicated black and white cookie, but it’s black and white nonetheless.

I, for some reason, chose to be a lawyer. In the world of law, nothing is black and white. It’s all grey. And if we’ve learned anything from grey gooMay Grey, people who spell grey “gray,” and Grey’s Anatomy, it’s that grey sucks.

Unfortunately for us lawyers, most people assume that the law is black and white… that there are simple yes and no answers to legal questions. But there rarely are. Lawyers are paid big bucks to always find a counterpoint to every point raised by their opponent — and counterpoints usually exist. To make matters worse, sometimes legality and reality diverge. Even if you find yourself on the right side of one of those rare black and white legal situations, it may not matter unless you’re willing to pay a lawyer to enforce your rights, or defend you, in court. Proving you’re right, even when it’s painfully obvious that the law is on your side, can be an expensive endeavor, especially if the party on the other side has money and a bad attitude.
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Q: I read in the trades that a studio bought the rights to a nonfiction book based on a historical figure during the Gold Rush – Deadline. If historical events/figures are open game for the public to write about, when is it necessary to secure nonfiction book rights? If not legally necessary, is there any benefit in doing so?

A: Nikki Finke has taken over Hollywood (news) and has become the “trades.” Just like this blog has taken over ultra lucrative entertainment law blogging, I’m pleased to report, bankrupting, forcing into foreclosures, and running out of town most of our feeble competition. No wonder Nikki is a devout fan of this blog. (Or so I’m told by our go-to anonymous, ax-to-grind source; or maybe the source was talking about Nicky Hilton? It’s hard to know; the source was wasted.)
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Q: I wrote a screenplay as a collaborative effort with three other people, and the four of us have a signed agreement regarding our collaboration. I registered the work with WGA (listing all four of us on the registration) and one of the other people took care of copyrighting the work. Well, he took the work and copyrighted it as him being the sole author. He did not put my name or either of the other two people’s names on it. It was not his idea, he is not the producer, and he did not write the screenplay. He is simply one of four that has developed the story. Now what do we do?

A: See, this is the problem with people. You try to work together, everything appears to be going along swimmingly and then one of them runs off and does something like this. Faithful readers, this is why your Law Law Land bloggers never interact with anyone, let alone each other. We find people as pleasant as the razor blade scene in A Prophet. That’s why we sit in our respective offices with the doors closed, shades drawn, pouring over legal documents, writing blogs, pounding 5-Hour Energies, and trying desperately hard to post humorous comments beneath the photos at http://www.awkwardfamilyphotos.com/.
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Q: I am about to sign an option agreement with some of Hollywood’s best independent producers. I wrote the screenplay with a WGA writer. I own the source material. The screenplay is based on my life story. I think I should be entitled to backend profits. The producers keep the international distribution rights and sell off the domestic. I don’t think I have a chance of the domestic profits but it is the international profits that this question is addressing.

A: The good news is you should be able to get some backend. The bad news is the backend you’ll be able to get will most likely amount to bupkis. But bupkis is still better than completely nothing.
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Q: I want to make an independent film about a video game character by mixing the original storyline and characters with my own ideas. I didn’t know if I needed to obtain permission or rights to make it even though its going to be non-profit. I just want to be able to put it on YouTube and stuff. Thanks!

A: Your gracious author is wondering if you somehow stumbled upon his Xbox Live Gamertag and discovered that when he’s not faithfully answering legal questions or playing the role of human punching bag for his two young children, he’s sneaking off to his man hovel (i.e., his living room after everyone’s gone to bed) to play Halo 3 online with his similarly maturity-stunted friends. This mild addiction to a videogame has lead to an introduction to the world of guerilla videogame cinema known as “Machinima.”
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Q: Assuming a producer, verbally only, at the time of the shoot, promised a co-producer a percentage of the film’s profits, does the co-producer have any legal rights to demand anything, since there is nothing in writing to prove it?

A: “An oral contract isn’t worth the paper it’s written on.” Goldwyn was absolutely right but also very wrong. There are few contracts that must be in writing to be enforceable. We have a beautiful blog on this, but there’s always more to say. So let’s say more.
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Q: There’s a script I’ve been interested in for a while. I’ve been trying to raise some financing so that I can produce it. I think I’m close to successfully putting some financing together but I just found out that there’s another producer that’s suddenly interested in it. I’m afraid that I’m going to lose it. I want to option it but don’t have the money yet. Anything I can do?

A: If you don’t have the money right now to option it, unfortunately your options are limited. Pun intended (as always).
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