Introduction to Options and Acquisitions of Source Material
By Brandon A. Blake,
When a filmmaker or producer decides to produce a film, he or she must first
acquire the rights to the underlying story before going on to develop the
project. Films may be based on any number of underlying properties, such as
novels, short stories, games, or even newspaper articles. Typically, source
material is divided into four categories; concepts, stories, treatments, and
screenplays. Concepts can not be protected by copyright law alone.
Concepts: A concept is simply an undeveloped, often unwritten, idea
for a movie. A short synopsis of a proposed film may also fall into this
category. A concept is not copyrightable under current copyright law. A producer
or writer may still be able to protect his idea or concept through contract law,
but care must be taken not to reveal the concept before an appropriately drafted
contract is executed by all parties.
Stories: Stories may come from newspapers, short stories, or novels.
Before commissioning the writing of a screenplay that is based on an underlying
story, the filmmaker must ensure that the author of the underlying material is
interested in selling. Typically the filmmaker will first option the underlying
story, and then acquire the rights, in the same manner that a screenplay is
acquired. Even when a film is based on the unwritten life story of someone, the
filmmaker must still acquire the rights to that story from the person or the
Treatments: Treatments are materials written with an eventual
screenplay in mind. When a filmmaker finds a treatment to develop, he or she
will option the treatment and acquire its rights as is done for a screenplay.
Even if the screenplay eventually only vaguely resembles the treatment, the
underlying property must be acquired. This is how a chain-of-title is developed
for a screenplay.
Screenplays: A Screenplay will be the material that the producer and
director work from in producing the film. Screenplays must be optioned and
acquired from the writer before a film can be produced from it (see below).
Typically the original screenplay submitted will be altered substantially before
and during production. The filmmaker may or may not arrange for the screenwriter
to be a part of these alterations.
ACQUIRING THE SCREENPLAY
Options and Extensions: If a filmmaker seeks to acquire a spec script,
as opposed to hiring a writer to compose a screenplay to certain specifications,
the work may be optioned. An option is
literally an agreement to agree. The screenwriter agrees that for a certain
price, he will give the filmmaker the exclusive option to purchase the
screenplay, at a designated price, sometime in the future. The filmmaker is not
bound to ever make the film or buy the rights; he simply acquires the right to
do so later.
During the option period time, the screenwriter refrains from exploiting the
screenplay in anyway. At the end of an option period the filmmaker may have
negotiated for the right to extend the term of the option for a period of time
for an additional payment. The filmmaker is free to exercise this extension or
to let the option expire. When the option expires, all rights in the film remain
with the screenwriter and the filmmaker has no further interest. At the
expiration of an extension, the filmmaker may negotiate for yet another
Acquisition of Rights: At anytime during the option or an applicable
extension period, the filmmaker has the right to purchase the screenplay at a
previously designated price. If the filmmaker decides to acquire the rights, all
of the rights negotiated in the option contract will transfer to the filmmaker.
The filmmaker may decide to produce the screenplay, or, depending on the
contract language, even assign, or sell, the screenplay to a third party.
The filmmaker may also have negotiated to acquire the screenwriter’s
services, either for drafting revisions, or for consulting purposes during the
production of the film. Screenplay revisions may include a second draft, a final
draft, and a polish, which is a revision of a final draft.
© COPYRIGHT BLAKE & WANG, P.A. ENTERTAINMENT LAWYER SERVICES. ALL RIGHTS RESERVED
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