This blog post was inspired by the fantastic speakers at the Rights2gether event in January 2021, Adele Parker, Head of Rights at Taylor and Francis and Emma Topping, Literary and Multimedia Agent, owner of Viv Loves Film.
Getting a request from a TV or film production company can be very exciting. It feels great to know that the ‘entertainment business’ has noticed one of your books and securing these potentially high value deals can pay financial and reputational dividends. However, licensing film and TV rights can be a complex and time-consuming process, and not without risk.
Having spoken to rights professionals with experience of dealing with television and film rights on a regular basis, we have compiled 10 top tips to help you understand more about the process involved.
1. Make sure you have the right rights
The very first thing to do when considering how to handle a request for TV or film rights is to make sure that you have the relevant rights. Where an author has an agent it may well be that the rights have been retained and do not form part of the publisher’s agreement. Remember that there may be other rights holders involved in your project so check all the agreements covering the work concerned carefully to ensure that you are very clear about what you can or can’t put on the table for discussion.
Even where you do have rights, TV, film and/or documentary rights may not be enough. For example, those contracting with you for the film rights are likely to expect merchandising, live performance rights and others to be included. Be mindful of the author’s moral rights and their copyright and how any use in TV, film or performance may affect their intellectual property. You may need to request additional rights from authors or to clarify contractual terms. (see below). Keeping accurate contractual records is essential so you can prove a Chain of Title (a clear contractual paper trail showing the rights in all the elements of a project flowing to you) in addition to records detailing any rights you may have already licensed.
2. Do your research
It is worth finding out a bit more about the person or business making the request before you get into the detail of a negotiation. You may be approached by people with a number of job titles, including:
- Literary scouts
- Lawyers/Legal team members
Ensure you understand exactly who is making the request and their exact role within the project. Get to know them a bit, find out why they have chosen your book, what their plans are at this stage, who else is working with them and ideally what their budget is. You can ask about the ‘production slate’, which refers to what else they are working on, to gauge where your work fits in, and how it will be scheduled. This will give a good sense of the timescales you might be looking at. Try to dig into what their intention is. Finding out as much as possible up front will help you make decisions on terms and fees for the deal.
Asking lots of questions will flush out queries that may look like television or film rights requests, but turn out to be for other forms of licensing, such as permission to use specific parts of a work (e.g. illustrations) or digital licensing for apps.
3. Involve your authors
Once you have checked out any request and are sure it is legitimate, share the details with the author at the earliest stage. Even if you have all the rights it doesn’t mean that you can make a deal without consulting the author who will play a key role in ensuring the success of any potential deal. Sometimes authors may not even realise they have granted film and television rights to the publisher (particularly in academic and professional publishing). Making contact with them and ensuring the author has not already used those rights in an informal capacity or had parallel discussions is important. Talking to the author at the very earliest stage also allows you to find out from them how involved they want to be and whether they have any particular concerns. Furthermore, if the author is fully involved in the process from the outset, they will be more willing to trust you with the final negotiations on terms and fees.
In the event that an agreement is reached it can be useful to structure a deal to include the author as a co-party. This is because the new production will create new intellectual property (IP) and, unless the author has assigned copyright to you (which is unlikely), they will need to permit a new IP adaptation of their work, given that the underlying copyright resides with them.
Whilst some authors may be flattered and delighted that a TV, film or performance company is interested in their work, this is not always the case. Be aware that some may have concerns about how their material will be used and, depending on the sensitivity of the topic, how it will be adapted or handled. If the author wants extensive control or involvement, this may not fit with the way that those producing the film or television adaptation want to work and this can cause a deal to collapse. These are all things to clarify and then discuss with your authors.
4. Shop carefully
Sometimes you will be asked for a shopping agreement rather than an option. A ‘shop’ gives the other party the right to investigate the feasibility of a project, for example to have discussions with relevant parties: financiers and distributors, possibly potential directors and writers. A shopping agreement should only allow them to have those discussions and it should not give any option to adapt; that is the preserve of an option agreement (see below). Shopping agreements could be exclusive or non-exclusive and, importantly only for a short fixed term (e.g. 3-6 months). You may be able to make a charge for this, particularly if it is an exclusive agreement or if it is for a very ‘hot property’ since it is effectively taking the work off the market. You might agree that this fee could be recoupable by the Licensor against future fees.
In some cases, there may be a request to produce supporting materials (e.g. pitch), but you should ensure that you retain copyright right for any such materials. If you allow someone to create their own IP on the back of your/your author’s work, it may become an obstacle for someone else who wants you to confirm that the work is ‘clean’ and has not already been adapted.
5. Know your options
When you are approached by someone who wishes to acquire film or television rights they will usually request an option. An option agreement gives them an exclusive period of time (the work being ‘off the market’ to other prospective purchasers) to begin the process of bringing together the necessary components to allow an adaptation for film or TV production to commence (including raising finances). The option agreement sets out the terms for the full deal should the rights be exercised within a certain period, including the ‘purchase price’ and should include an exclusive licence or assignment of rights that will come into force. An option lasts for a fixed period of time but may be extended periodically with agreement of both parties. It will be exercised when the purchaser informs you that they now wish to acquire the full rights and pays the purchase price. It is worth noting that when you grant an option you are also agreeing the full terms of the deal should the option be exercised, therefore once exercised there is no way to terminate as the rights will already have been granted. The only possibility of getting the rights back would be if there is express provision in the licence that rights will revert if the licensee does not commence principal photography within the specified period of time.
6. Be Patient
It can take time for the person who has secured the option to obtain financing for a project, but that does not mean that you have to agree to a long option period, or even to keep extending option periods. It is common for ‘options’ to sit for a very long time before exercise. This is why they should have a term limitation, with provision for renewal. Options usually attract a fee with an additional fee being paid at each renewal. A complete project from exercise to commencement of principal photography could be at least 8 years for a big budget film, especially if you are dealing with a production company that needs to get a financier on board. It is important to be aware of the stages of production and to try to avoid tying up rights for too long. It is not uncommon for production companies to acquire options simply to remove a potential competitor project from the market, so make sure you have done your research carefully (see tip 2) before agreeing to anything.
7. Evaluate cost vs benefit before committing – proceed with caution
Look very carefully at the cost vs benefit of handling requests for film and television rights. Contracts can take a lot of time to agree and may involve paying costly legal fees with no guarantee that the project will make it all the way to production. If you can build in fees from the earliest stage of the agreement this will help mitigate some of your costs as well as incentivising the Licensor to pursue the project further, since they will already have made a significant investment.
In some cases, it may be more beneficial to revert rights to the author, perhaps with a royalty clause for a share of income if the deal is agreed. Agencies and lawyers can offer support, but it can be hard to get external advice for low value deals. The risks of exposure to liability are the same no matter what the value of the deal, so it is extremely important to proceed with caution.
8. Keep on top of payments
It is likely that there will be a series of payments from option fees and renewal to purchase price which may be split into several instalments with add on fees for various other elements of a deal. The payments ‘timetable’ can sometimes end up being very complex with payments triggered at various stages of the agreement, depending on the progress of the project. Keeping on top of the production process and which stage the project has got to is important, so that you can ensure you are receiving payments when you should be and can chase if they have not been received. Be cautious when agreeing any fees that are based on a % of budget or profits. Ensure you understand the precise basis on which these are to be calculated and any deductions that may be made prior to the % being applied. Reporting can be opaque and “Hollywood Accounting” hard to untangle!
9. Get to know the industry
If you want to pursue opportunities for licensing TV and film rights, it is well worth immersing yourself in the industry so that you can get into the detail of how it works and start building contacts.
The following books may prove useful background reading:
The Movie Business – Crabb
Selling Rights – Lynette Owen- 1 chapter
Understanding the Business of Entertainment – Bernstein
You can also learn a lot from following the trade press – i.e. Variety, Deadline and Screen International which will help you keep on top of trends and get to know who the key players are. Attending events that will bring you into direct contact with producers and others in the industry will help you to grow your network. Film festivals like Sundance and MIPCOM (Children’s) and even bookfairs which have television and film areas provide great opportunities for getting to know people – especially with many more of them moving on-line recently. Social media can also provide a wealth of good information and contacts.
10. If in doubt seek help!
There is a good deal of complexity in the licensing of film and television rights and if it is not an area with which you have a lot of experience then it might be sensible to seek help. There are specialist agents who can deal with film and television rights on your behalf as well as freelance consultants and legal firms who may be able to offer assistance.
It is an exciting time to be licensing film and TV rights with the rapid growth in digital channels and streaming services creating lots of opportunities for books of all kinds, even non-fiction. We look forward to seeing many more books successfully adapted for the screen (big or small) in the coming years – maybe one of yours will be amongst them?
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