Can’t even tell you how many times I’ve been asked something like this:
“So how does it work? Somebody gives you the idea or do you get the movie idea yourself? Does it begin with the studio or the star or does like your agent give you like a book or something?”
“All of the above,” I usually answer.
But for this post, I’d like to focus on the work of others. The fully developed and copyrighted stories written by other word jockeys.
No. I’m not talking about rewrites here. That’s a whole ‘nother bag of cats. I’m talking about books. From comics to nonfiction to novels. Part of the screenwriter’s box of tools is the art and craft of adaptation. We’ve all read that manuscript or hardcover or dog-eared paperback. You know the kind that screams to be a motion picture. The words practically spring off the page as if in search of the nearest movie screen. This happens all the time to me. And it’s often followed by a phone call or email to my agent or attorney. Who owns it? Are the rights still in play? And why is Steve Zaillian or Scott Frank already attached? Damn those guys and their unrepentant talent.
Then again, every so often, the movie rights remain unsold. The property is somehow available. I’ve had countless writers contact me in search of advice on how to handle approaching the author or reps. How best to lock down the IP or intellectual property. What’s the best way to proceed?
One word. Cautiously as hell. Follow.
This tale begins with a general meeting with a young producer who, at the time, was working as the chief development executive for a brand name mega-mogul. He told me of a book that had just come on the market. A thriller. At first blush, I liked the concept. Was willing to give it a read when the exec gave me a bit of a warning.
“Let’s not rush in,” he said. “My boss hasn’t made an offer yet. Don’t want to waste your time if I can’t get him on board with the book.”
I understood. I appreciated the caveat. And heard nothing more about the project until maybe a year later. That young producer had left his weekly paycheck for the risk and reward of life as an independent producer in search of a studio deal. He asked me to lunch and somewhere between the iced tea and chopped cobb salad he brought up the aforementioned novel. As it turned out, the property rights were still available. Was I still interested?
My first concern was why the book hadn’t sold to Hollywood. As a general rule, hopping aboard a project that had already made the rounds and been soundly rejected was not the best recipe for future success. On the other hand, great and successful films were sometimes built from humbler beginnings. And often the missing element required to push a bunch of nothing into a motion picture was little more than somebody to believe.
Somebody like me.
I read the novel and could instantly see why it hadn’t sold. It painted a large, international canvas that was currently out of step with the current movie studio zeitgeist. I imagined a more manageable narrative that wouldn’t feel the need to globetrot. Fewer characters. And winding neatly around the core, a forbidden love story.
If the producer and I could somehow procure the rights, there’d be one of two ways to proceed. We could bring the book to prospective buyers then pitch out our vision for it. Or I could find a work window, adapt the story just as I envisioned it and put both the script and book on the market for auction.
My first choice was the latter. I’m usually more confident when my writing can do the talking.
Then came that sexy thing called kismet. As it happened, the book’s writer and I were both repped by the same three-letter agency; the author by a Hobbit-of-an-agent with whom I’d met a time or two before. In a matter of days, word came back that the author would gladly provide us with a free option that would allow us to bundle the script and the book, and then package it with a star and/or director. More kismet. Packaging was the agency’s specialty.
Skip forward a few months. The screenplay was complete and already getting positive sniffs from talent reps within the agency. And just when I was thinking how nice it was when a plan comes together, I get a phone call from my lawyer, Alan Wertheimer.
“We have a problem,” Werth said.
“What kind of problem?” I innocently asked.
“With the spec you just wrote.” Then he corrected himself. “Not so much the script but the rights to the novel.”
The following afternoon, I was seated in my agent’s modern office. My lawyer and one of his younger, associate partners were present. As were two more attorneys representing the three-letter agency. Also present were the young producer and the Hobbit-like agent who represented the book’s author, both of whom (as happenstance would provide) were also lawyers.
“You know what?” I asked, leaning into my agent. “If somebody threw a grenade in here and shut the door…”
“Nobody would miss us,” finished my agent.
Simply stated, the problem at hand was as described: the three-letter agency, which prided itself in the ability to package intellectual properties with screenwriters and stars, had previously assured the producer, my lawyer, and myself that the book rights had indeed cleared and a deal memo was in place.
Note: A deal memo is a communication between industry attorneys and an artist’s representative essentially agreeing to the principal elements in a contract such as compensation, deadlines, etc. Deal memos are necessary because by the time showbiz lawyers negotiate the details of a contract, not to mention write, revise, and get ink on actual tree-giving paper, the project is often already sprinting down the yellow brick road to success, failure, or development oblivion.
In the case at hand, despite the deal memo, the rights hadn’t ever been fully cleared with the book’s authors.
“Authors?” I asked, emphasis on the plural. “As in more than one?”
“Yes,” said the Hobbit-agent.
“But there’s only one name on the book,” I argued.
“The author had a partner that nobody knew about?” asked the producer.
“No,” said the Hobbit-agent. “I knew.”
“And the rights hadn’t been cleared by this silent author?” continued my lawyer.
“Exactly,” said the Hobbit-agent.
“Wait, wait,” I said, getting aggravated. “This whole thing was vetted. Everybody was onboard. Checked and double-checked before I got the green light to go to spec.”
My agent nodded. So did everybody else in the room but for the Hobbit-agent.
“Okay,” said my lawyer. “Everybody was supposed to do their job. My client gets the go-ahead by you to spend Lord knows how many weeks drafting a script. Only someone decided not to run that little factoid by both intellectual property owners.”
All eyes were on the Hobbit-agent. He shifted his little body inside his tailored Hugo Boss suit.
“That’s correct,” said the Hobbit-agent.
“Why?” asked my lawyer.
“How was I to know?” shrugged the Hobbit-agent. “How was I to know the script was gonna turn out to be so good?”
Yeah. Coulda heard a pin drop. The air was sucked out of the room. It was a vacuum in space. All the silent clichés rolled into one sour sucking moment. Werth was the first to put a pin to the gassy balloon.
“That may be the stupidest thing I’ve ever heard anybody say,” said Werth. It wasn’t hyperbole. He has a knack for cutting directly to the marrow of an issue whether one wants to hear it or not.
“Okay!” shouted the Hobbit-agent in his first act of defense. “I fucked up.”
“Understatement of glacial proportions,” said the angry producer.
Now, the trick in a circumstance like the one I’ve just described is to move forward. There’s no point in trying to get the toothpaste back into the tube. Though that didn’t keep me from fantasizing about picking the little prick up and busting out the third-story Beverly Hills window with his pointy skull.
The dust settled and the situation was such that the authors, who suddenly claimed to be unaware that I was freely adapting their work and that we’d already slipped it to a few A-List movie stars, wanted legal guarantees of untold millions were the book to be sold and produced into a movie. A preposterous sum no studio would ever consider. In an effort to save the screenplay I’d slaved months over, we tried to find some reasonable solution with the rights. The situation was made far worse when the angry authors summarily fired the Hobbit-agent.
In the end, there was little I could do but cry and drain a bottle of scotch. Though I wanted to fire the agency, I was talked out of it, settling instead for the promise that the Hobbit-agent would never, ever have his greasy fingers in my business.
As you might expect, since then I’ve been more than a little circumspect about working on projects with underlying IPs. And it’s amazing what a little detective work can uncover. I’ve discovered unmentioned, invisible producers with ironclad legal claws still attached, WGA-protected screenwriters who’ve already legally adapted the work, and even double-secret underlying rights to the underlying rights.
You’d think agents would want to do their homework. Unfortunately, they’re often going on little more information than they pass along to their clients. And because their liability has (so far) been limited, it’s incumbent on the writer to get the facts.
Is their a moral to this story? Yeah. Lock up the rights or the rights may lock up you.
Read my new thriller, THE SAFETY EXPERT. Available in trade paperback and ebook at Amazon.com and Barnes and Noble.