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“Getting the rights:” What it means; when it’s necessary; how to do it.

So, do you need “rights” to create your project?

So you want to create a new project? Maybe it's a film or play? Or a podcast, a book, or a game, or some other kind of product.

Thing is, it's based on something else.

Somebody's life story or characters from some other kind of previous work.

It's an adaptation or a remake, a reboot, sequel or spin off Maybe it's based on the story, the characters or the “universe” from the other work in which your characters and story exist.

First, it's important to determine whether the underlying material is protected under the law. (“Underlying” is the way we refer to the pre-existing material that something is based upon. And, the “underlying rights” are the legally protected rights that someone may own in that material. )

Our inquiry starts by asking what, exactly, you're adapting, remaking copying or basing your project on, and whether it's actually entitled to some kind of protection. Is it intellectual property? Or is it merely an idea that is embodied within that other item of intellectual property that you're adapting? You see, ideas, facts, concepts and themes are not entitled to legal protection under copyright law. It's the particular ways in which those things are expressed by an author that can be protected.

The events of a person's life are facts, so, they're not entitled to any particular [copyright] protection…

So, suppose you're basing your project on a person and their life story? You need life rights, don't you?

Not so fast.

It's true that in Hollywood, producers often do get people to sign “life rights contracts”, but “life rights” isn't really a thing… it's not a form of property at all.

Remember that I said facts aren't protectable under copyright law? Well, the events of a person's life are facts, arent they? So, they're not entitled to any particular protection (unless they're private and have been kept secret).

So, why then do we hear all this talk about purchasing life rights?

Simple: Fear. Risk management.

When it's possible, we do a life rights deal with the person who is the subject of a project to avoid the risk and expense of lawsuits claiming that the project invades their privacy, or is false, and thus amounts to libel (defamation). What the purchaser gets in a life rights deal are: (1) A promise not to sue; (2) access to the person, their family, photographs, etc. (3) cooperation (and a promise not to cooperate with others), and (4) the right to embellish or change the events and portrayals and even to fabricate things. That little bundle can be very valuable. But it isn't always necessary. If you're telling a story about a person,that it is true, based on factual events , and does not invade the person's privacy or create a false impression about them, it's quite possible to proceed without a life rights agreement. And thus, you wouldn't need to clear any rights.

Works of authorship created since 1978 are protected for the life of the author plus 70 years

But if the work you're using as source material is subject to copyright law, we need to do a little bit of a deeper dive. We have to ask whether they are still protected? Works created more than 95 years ago are not. They've ‘fallen' into the public domain. But most newer works (those created between 1927 and 1977) are protected. And, under the most recent copyright law, Works of authorship created since 1978 are protected for the life of the author plus 70 years, so they're certainly protected.

Okay, so you've determined that you do, in fact, need some rights. Now what?

Well, the process is actually relatively simple (which is not necessarily to say ‘easy').

We start by identifying the correct owner of the rights that you need. And this is often the most challenging step. Research the copyright office's records, check with the publisher, and sometimes it's even necessary to review probate court records to find the current owners.

Once you've found them, make contact, and just basically, ask for the rights that you need.

How you ask will depend somewhat on whom you're contacting: If you're dealing directly with the the author or the author's heirs, it may be as simple as reaching out with a phone call, an email, or a personal interaction.

But many literary estates are represented by agents or managers or attorneys. In that case, it's best to submit your inquiry your request in writing.

And sometimes, the rights in the material that you're looking for will be owned by a company, perhaps a publisher. In that case, again, submit your request in writing.

What rights should you ask for?

Well, that's as simple as telling them what you intend to do. Are you writing a screenplay? Then you'll want to inquire about the adaptation rights for a motion picture and/or television project. Writing a stage musical? Then you need the rights for live performance in that medium, as well as publishing the play, and even filmed adaptations.

When should you ask?

There are several schools of thought about this. Some say, just go ahead and create your adaptation and hen go get the permission. That way, they reason, you can show the rights holder your work, which may convince them to say “yes”.

But others suggest making just a pitch, a short summary of what you intend to do, sometimes in the form of a slide-deck or a “look book”, along with proposed terms of the deal.

And the third school of thought says that you shouldn't really spend your time, energy, money, or any other resources on doing adaptation work until and unless you've locked in the rights and thus the opportunity to monetize your efforts.

Personally I land somewhere between the second and third options. Craft a simple pitch, but don't invest too much time or energy. There are too many good ideas and freely available materials to spend time and resources without knowing that there's a chance you'll be able to generate earnings from it. Focus on what you can definitely use.

Conclusion

For now, the bottom line is this: If you want to create a project, whether it be a film a play a podcast, a book game, or something else, and it's based on something else that pre existed your work, it's likely you'll need to obtain some rights. Consider this carefully, and don't waste time and energy investing in projects until those rights are secured.

Navigating rights related questions and deal terms is always easier with the help of an experienced entertainment lawyer. If you'd like help, please reach out to us and schedule a consultation.

What can you do if forced out of your podcast?

Legit Podcast Pro

“What can you do when you're forced out of YOUR podcast?

That's the question of the week on Legit Podcast Pro (the Podcast) – with The Podcast Lawyer™ Gordon Firemark

Join me as I begin a new podcast, just for podcasters. Y

ou don’t have to BE a pro, but if you're committed to approaching things like a pro, this show is for you.

I'll be answering questions, sharing legal and business topics around the podcast arena, and interviewing legit podcast pros. Recording live on Thursdays at 4pm Pacific. Join me each week.

Got a question? Post it in the comments and I'll respond in a future episode.

January 2022

January 2022

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/141

PUBLIC DOMAIN DAY 2022

EMERGING SPLIT OF AUTHORITY REGARDING ORIGINALITY DETERMINATIONS

DISNEY STILL HAS TO LITIGATE OVER ORIGINALITY OF JACK SPARROW

THE  “DARK TOWER” CASE – CERT DENIED

ERIC CLAPTON GOES AFTER BOOTLEG SALE

NEVERMIND BABY COMES BACK WITH AMENDED COMPLAINT

SPOTIFY WINS TRADEMARK LITIGATION AGAINST POTIFY

UPDATE: MUSICOLOGISTS AROUND THE WORLD SUPPORT KATY PERRY IN LITIGATION

FAT LEONARD PODCASTERS ORDERED TO HAND OVER RECORDINGS

Suzanne Wilson Named General Counsel of U.S. Copyright Office

2021 Year end roundup

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