Asked and Answered: How to acquire underlying rights

Errata (01/15/2010):  I've updated this post to reflect that the duration of copyright protection for works created after Jan. 1, 1978 is life+70 years, not 50 as I inadvertently stated. (Thanks to Jonathan Handel for catching my error)

Q: IF I was willing to write a spec script based on a novel and say to the producer, “Yeah, I've got the right to this”, how would I go about getting those rights?  What if it's a John Grishom vs. an unknown writer whose book had some cinematic possibilities?  Also, what constitutes being in the “public domain”.

A: Obtaining the rights to a novel (or any other underlying work) is simply a matter of contacting the rights-holder(s) (usually the Author, but sometimes the publisher) to negotiate a license.   The most common approach is very similar to that involved with a producer obtaining rights to a screenplay.  The deal is most often structured as an option, where for a small payment, the book Author grants the screenwriter,  for a specified period of time,  the exclusive right to obtain the movie rights in the book, upon the occurrence of some event (usually payment of a larger, “purchase price”).  The process is exactly the same, regardless of WHO the writer is, but the price for such a license will vary depending on the relative bargaining power of the parties, whether the work is famous or obscure, etc.

When a work is described as being in the Public Domain,  we are saying that the work is no longer protected by copyright law.  Works fall into the public domain for several reasons:  (1) expiration of copyright protection (nowadays, works created after 1977 are protected for 70 years after the author's death)   For works created prior to 1978, the analysis is more complex, and merit consultation with an attorney.   (2) dedication to the public domain by the author (expressly, in writing), or; (3) failure of some formalities  (under the OLD copyright law, works published without copyright notice fell into the public domain, as did works for which copyright registration was not renewed after the first 28 years).

If you're considering adapting a book or other underlying work, it's important to determine who, (if anybody) owns rights that need to be obtained.  The help of an experienced entertainment lawyer is invaluable in such determinations, and can speedily resolve any doubts.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.
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