SCREENPLAY BASICS

Introduction to Options and Acquisitions of Source Material

By Brandon A. Blake, Entertainment Lawyer

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 person’s heirs.

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 extension.

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.
 
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