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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.


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.

Promoting your show with sweepstakes, contests and  lotteries

Promoting your show with sweepstakes, contests and lotteries

Running a contest or a giveaway is a brilliant, and cost-effective way to get your audience engaged and get fresh leads, drive lots of meaningful actions, Attract people to your content, get them to share it, and more. 

But it's important to exercise caution and make sure that you're complying with the relevant laws. You want to make sure that what you're doing, the kind of promotion, whether it's a contest or a giveaway doesn't amount to an illegal lottery. 

How to stay legal with your contest or sweepstakes

A promotion will be considered an illegal lottery if it has all three of the following components, those are:  Consideration, an element of chance,  and a prize.


Consideration refers to ways that people can essentially purchase their entry by some monetary or non-monetary action 

Monetary actions are ways that people enter that require them to make some kind of a financial contribution or payment, whether by purchasing a product or by buying an entry or a ticket or similar.

 Non-monetary actions are ways for people to enter promotions that require them to give up a significant amount of their time  other resources.  Things like having to fill out a  lengthy, complex survey making multiple visits to a store. 

These  non-monetary actions are often a gray area. So you'll want to avoid those if at all possible.


The element of chance is the fundamental difference between a contest and a sweepstakes. A sweepstakes is a luck-based promotion where the winners are chosen at random, such as by drawing a name out of a hat or, or a numbered ball from  a basket. 

Contests, on the other hand, are skill-based promotions where the winners are chosen on the basis of some kind of merit; they've entered a, a writing contest or a piece of artwork or, or engaged in challenge of some sort where skill, creativity, or effort is required.

In  most jurisdictions, it is permissible to require consideration for entry into a contest, where the winners are chosen on some merit based criteria and not randomly, 


A prize is the value that the winner of the contest or sweepstakes receives when they are identified as the winner. Normally, even a minimal value is enough to constitute a prize for the purposes of the illegal lottery analysis.


So, in order to avoid having your promotion classified as an illegal lottery, it must exclude one of these elements.      Sweepstakes (prize drawings and giveaways) typically exclude a requirement of consideration, while contests exclude the element of chance.


In the United States, there are other important laws and regulations to consider.  These may require some kind of a free alternative means of entry. If you're going to allow people to enter sweepstakes with a purchase, you should also make a way for them to enter without buying anything. But beware.  If you require submission of a name and an email address or a phone number or other personal identifying information, you also need to be aware of privacy laws that regulate the collection of that kind of data. 

Regulations may also require that the sponsor of a promotion:

  • Announce the opening and closing dates for entries
  • Disclose when and how winners will be selected.
  • Publish the rules of the contest or sweepstakes (this is a good idea even if not required in your jurisdiction, so that there's transparency about what's going on. 
  • Announce when the prizes will actually be awarded. 
  • Contact all the winning entrants.  And in some jurisdictions
  • Publish or post  the names of all the winners. 


Finally, you need to follow through on all the prizes.  Running a contest, or a sweepstakes does form a binding contract with the entrance. The rules are binding and the obligation to select a winner and actually furnished. The prizes are binding contractual promises as well. And breach in this kind of situation could very easily be considered a fraud, which can have both civil and criminal consequences.


There are a few U.S. state by state variations  to the  above-referenced general rules. For example:

  • Tobacco related promotions are not permitted in the States of Massachusetts, Michigan, and Virginia.
  • In Texas. It is against the law to automatically enter purchasers in a contest or a sweepstakes when the prizes have a value in excess of $50,000.
    (And you'll also want to be aware of other state and international privacy regulations that can make automatic entry. Illegal.) 
  • Several States require registration of your promotion.
    • in Florida, a sweepstakes having prizes over $5,000 has to be registered seven days before the promotion begins.
    • in New York. You have to post a bond and register 30 days before the promotion begins if  it's over $5,000.  
    • In Rhode Island, if the prize pool is over $500, you have to register. (This only seems to apply to retail stores that run sweepstakes and contests, but it’s important to verify, as such rules change frequently)
    • Publication of the winners is required in the state of New York, where you have to post a list of winners. In most States, if you're running a contest where some skill or merit is involved in being selected as a winner, it is okay to require a purchase.

Some states do not permit any purchase requirement, even for contests. And that purchase requirement might actually apply to  any form of consideration. 

Those States are:

  • Colorado, 
  • Maryland, 
  • Michigan (where even a visit to a store requirement can be considered consideration), 
  • Nebraska, 
  • North Dakota, 
  • Vermont, and 
  • Virginia (which also treats a store visit as consideration required)

 And in Tennessee, it is illegal to require entrance to grant a publicity release “in perpetuity”. (Presumably a “reasonable amount of time” might be permissible, but this requires further inquiry).

In other States like California and Indiana with strong property rights in name, likeness and so on, such a release might also be treated as valuable consideration, so caution is advised.


The bottom line is running a contest or giveaway is a great way to get an audience engaged, generate leads and get your audience to help you promote and grow your business or program. But you do have some legal requirements to comply with. 

Be sure to check with your lawyer before you launch anything that might be considered an illegal lottery.

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My appearance on This Week in Law!

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