The Art of Adaptation

by Linda Seger

  You can also take a calculated risk when showing certain scenes. You might decide that your scene is so benign that it doesn’t defame the wife, that you have taken many of the elements from the public record, and that this is the only time you create any scene around her. Just to protect yourself further, you decide to portray her very positively. With this in mind, you don’t think you will be sued, so you create the scene. Remember, though, making someone better than she is doesn’t free you legally. If you make the wife into a very good, loving wife, knowing that she wasn’t, she could sue you for misrepresenting her.

  PREPARING FOR THE MEETING WITH YOUR SUBJECT

  Once you’ve decided whose rights you need, you’ll need to contact the writer of the book, play, or article, or the subject of your true-life story. Make an appointment with the person, but before you go to the meeting, make sure you’re well prepared.

  First, consider having a discussion with an entertainment attorney to help you strategize the meeting. It could save you considerable money later. Although lawyers are not cheap (most will cost between $150 and $350 an hour), you do want to be wary of making costly mistakes that could be avoided.

  A lawyer can help you determine whose rights you need, what questions to ask, and what kind of contract you want. He or she can advise you about what to say, and what not say, and what kind of promises it’s all right for you to make. The initial meeting with the writer or subject is really preparation for the next step, which will be the drafting of a specific contract or a deal memo.

  Be well prepared for the meeting. You want to be in control of the interview from the beginning, and know exactly where you’re headed from start to finish.

  If you’re optioning a book, naturally you should be familiar with it, and perhaps with other books by the same author. If you’re optioning a true-life story, you should find out as much as you can about this person. Before the meeting, you should study an option agreement so you know the kinds of issues that can arise when optioning. This first meeting is going to set the stage for the whole relationship. If it is not handled well, promises may be implied that will cause difficulties when the option agreement is being executed.

  Whether you use a lawyer or not, when you go to the meeting, clarify exactly what you are asking for. Try to make an agreement for the widest possible use of the material. You can tell the person, “I am trying to acquire the exclusive motion picture and television rights, and will also want to discuss cable and cassette rights and possibly stage rights to your story.”

  If the person’s story is not already the subject of any written material (and many true-life stories are not), you may also want to acquire the publication rights, which could include books, magazines, or even feature newspaper rights. Remember, you want to be able to control this project. You don’t want anyone else to come along later and acquire some of the rights because you weren’t smart enough to tie them up. If you don’t acquire them, someone else could do a feature story about your subject, which would create a separate group of rights that can be optioned. So get all the rights to the story. You want an exclusive option because you don’t want anyone else developing the story separately. Nonexclusive rights are meaningless.

  Make sure that you truthfully and candidly portray yourself. If you’re a film student seeking rights, a producer with produced films, or a first-time screenwriter, say so. Give the subject your credentials and credits, and explain your situation in detail.

  Share your vision with the subject. Where do you want to go with the story? What are you going to do to make the story work? Someone might want to option his or her rights to you because your vision and commitment seems better than what’s being offered by others.

  Emphasize the positive and deemphasize the negative, but tell the truth. If it’s the only project you’ll be working on for the next six months, say so. But don’t make promises that you can’t keep, or it could be construed as an inducement to enter into the agreement. If you lie about your commitment, or about how you’re going to tell the story, you can be liable to a lawsuit for breach of contract.

  You can be sued if you renege on promises about the depiction of your subject. Some of you may recall the book or miniseries Fatal Vision. When Dr. Jeffrey MacDonald asked Joe McGinnis to write a book about him, McGinnis felt that the doctor was innocent and promised to depict him in a positive light. As he continued to research the story and observe MacDonald, he began to question his innocence and took a more negative viewpoint in his writing. When the book was published, MacDonald sued McGinnis for reneging on his promise. McGinnis lost the case.

  Once you promise you’ll depict someone in a certain way, you need to follow through on that promise, even if you change your mind once you start writing the material. These promises may have been oral rather than written, but if there are any witnesses or letters or documents that say you made a promise in order to get an option, and then didn’t portray the subject in the manner promised, you can be liable for fraud or breach of contract. If you have made promises, and then try to sell the story to a studio or network, they may not honor them and you’ll be in the difficult position of not being able to sell that particular story. So be careful what you promise.

  In the agreement, the subject waives the right of privacy, right of publicity, and any other civil claims. Some subjects will add that you are not allowed to say anything false and defamatory about them or to depict them in any unfavorable way. Or they might allow you creative control provided you don’t depict them in certain ways, such as a drug addict, an alcoholic, or a person with a bad temper (even though they may have these traits).

  Be careful of promising a percentage of profit. You can tell a subject that you will use your “best efforts” to get them profit participation, but you are not in a position to promise a percentage of net profits, since that will be up to the studio. Of course, you can if you wish give them a share of your profit, if you want to take money out of your own pocket for their rights.

  Be careful of contracts that promise one percent of “profits,” since it’s not clear whether that means net or gross. Net profit is what is left over after all bills have been paid—to the production company, the producer, the writers, and the actors as well as any deductible expenses. You can only give away what you control. You may want to add a clause that says, “I will pay you one percent of the net profits received by me, if any, after deducting and recouping any and all development and production expenses and overhead.” Each of these terms will then need definition. Few people make money on percentage points, because of the studios’ “creative bookkeeping”; this refers to studio practices that “prove” they haven’t made a profit, even though the film may have grossed $150,000,000 or more. (“Creative bookkeeping” practices have come under scrutiny since Art Buchwald won a copyright infringement case against Paramount Studios and the film Coming to America, which has grossed well over $150,000,000, although Paramount Studios says it’s still “in the red.”) Let your subject know that you probably won’t be making any extra profits, and he or she probably won’t either.

  If you need other rights from subsidiary characters in order to do the story, ask the subject to help you obtain these rights. Sometimes the option agreement can require a subject to get a release from his or her spouse, or parents to get releases from children. Make it clear in this meeting if you’re going to need help, and ask the subject for his or her cooperation.

  Follow up the meeting with a respectful letter, confirming that you and the subject have reached an agreement (if you have). This would then be followed by the actual option agreement, which both of you would sign. For your own protection, document that you met the subject and clarify what happened in the meeting. If there is ever a lawsuit, you want to have clear notes about every step in the process.

  HOW LONG SHOULD THE OPTION BE?

  Generally speaking, you want an option long enough for you to research a project, to write a treatment or script, and to su
bmit it for development to a production company, studio, or network. This process can take years. It took five years to develop the Silkwood story, it took almost forty years for White Hunter, Black Heart, it’s taken over twenty years to try to bring Christy to the screen, and it’s already taken several years to work out details for The Phantom of the Opera. So you will want to tie up the rights for as long as possible.

  You will want an option for at least one year, along with the right to renew it for a series of additional years if you so choose. At some point, in order to renew the option you may have to show that you have written a script or treatment or have a development or production commitment. Such proof shows objectively that you are still interested in the project, and that you haven’t just put it on a shelf.

  If you can’t pay a great deal, you usually will need to have a shorter-term option. A short-term option of one to nine months will allow you a minimal amount of time to see if there’s interest in your project. If someone is wary or unsure of giving you the option, he or she might give you a short option in order to see what you can do with the material, and how committed you are to making the film.

  HOW MUCH, AND WHO PAYS?

  Options can cost anywhere from nothing or $1 to $100,000 and more. You can sometimes get a free option on certain rights. Perhaps you’ve read a novel that has sold only a few copies, but you tell the author that you want to explore the possibility of turning this into an Academy Award-winning film. Maybe you’ve read a little-known but fascinating true-life story and want to option it. You may be an unknown, but you’re planning on putting in the time and effort to develop his or her story; that’s worth something to the subject—particularly if no one else has expressed interest.

  Although in many states you can have a free option, it’s usually a good idea to pay something for the rights, even if only $1. This protects you, since in some states some cash compensation is necessary. In California it’s not necessary if the option is in writing.

  The price of the option will also depend on how much material you need to option in order to tell your story. You may need to option several books or articles to get the needed information. Sometimes you need to option the life stories of several people in order to do your film.

  Chances are you are optioning the project in hopes of selling it to a studio or network, or raising independent money to produce it yourself. You are optioning the project because you love it, and because you want to guarantee your own participation in the film—as either a writer or producer.

  It’s important when you option a project that you first negotiate the purchase price. Simply saying that you’ll “agree to agree” at a later date isn’t adequate to protect yourself, since the subject might later disagree with your terms, void the contract, and go off and make a deal with someone else.

  Make sure that the purchase price you write into your contract is a price that is reasonable. Typically, a studio or production company might pay about $50,000 to $100,000 for the rights of the person who will be the major character in your story. The rights of the people who will be supporting or minor characters in the story will range from nothing to $25,000.

  Studios will generally pay $20,000 and up for a novel. (Writers such as Sidney Sheldon get $1,000,000 or more.)

  In your contract mention the option price and the purchase price. Suppose you make a deal with the subject to purchase his or her rights for $50,000 when you exercise the option. When you sell the project, you could make a deal with the studio for $70,000 for the rights to your subject. Now, you may think of the $20,000 as profit, but you are actually paying yourself for what was probably six months or more of work, expenses, time, and talent.

  Generally what you pay for your first year’s option is applicable against the purchase price, but subsequent options may not be applicable. Let’s say that the purchase price is $50,000 for the rights, and you pay $5,000 for a one-year option. If you sell the rights to a studio or company within one year, the $5,000 is applicable to the price, so the subject receives $45,000. But let’s say it takes over a year for you to make a deal with a producer or studio. For the second year’s option you pay another $5,000, but this is not applicable to the purchase price. When the rights are sold, the subject still receives $45,000, even though you’ve paid an extra $5,000. The rights have now cost you $55,000. You will also want a clause in the contract that says if the project has gone into development, the subjects can’t pull out of the agreement. When you have done all the work, have finally closed a deal, and are ready to sell the rights, you want to make sure that the subjects don’t pull out of the deal because they think they might be able to get a better price on their own.

  In the option agreement for the true-life story, you will want the full cooperation of the subjects. You may want to engage them as technical consultants on the project. You’ll certainly want them freely to give you information and interview time and provide you with diaries, scrapbooks, documents, insights, and entree to others who figure in the story. However, it’s dangerous to make absolute promises to them. Not everyone sells rights just for the money; often there’s a hidden agenda that might be related to a desire to be part of show business. Maybe they want to write a script, or to have a role in the movie, or to be an associate producer. If you’re not the producer, you don’t know what this project will look like a year from now, so you can’t make any promises. You can agree to “best efforts” to help them get whatever else they want out of this project.

  If you want the subject(s) on the project as technical consultants, decide on their salary during the negotiations for their rights. That way you know you’ll have them when you need them. At that time, specify a daily or weekly fee for their services, remembering that this will come out of your pocket. Perhaps the company or studio who buys the project will pay the fee rather than you. It might be important to tell the studio that you have these persons available to help, since most projects need technical expertise and research. If you haven’t worked out a technical consulting fee beforehand, the agreement isn’t binding and your subjects could desert you just when you need their help the most.

  One or two of the people whose rights you need to tell the true-life story you’ve chosen might not give them to you. In this case, you could write them out of the story or try to write their characters from public domain material. If you had to portray a jury, and one person out of twelve wouldn’t give you their rights, you could make that person the juror who sits quietly and never says anything. If you have five panelists and only four will give you their rights, the other one could just be introduced, but never have any lines of dialogue, or perhaps only say what is in the public record.

  GET CREATIVE CONTROL

  If you are serious about an option, you need an airtight contract that allows you to do the creative work you need to do to adapt the property. Whether you work with a lawyer or not, you will want your option agreement to give you creative control. Hopefully you want to option something because you loved it, and you will probably want to stay within the spirit of the material. But after reading most of this book, you know that adapting material usually means making changes, including some that the author of the work or subject of the true-life story might not like or understand. The author might think that you are going “to do the book,” not realizing that the material will change in the adaptation. This is not to say that authors never like the films about their work (although many don’t), but sometimes the film isn’t successful because the writer tried to stay too close to the original material. Sometimes the best adaptations are those that keep the spirit of the original, but make many dramatic changes.

  Some producers and writers make the mistake of giving script approval to the original author of a book or play, or to the subject of a true-life story. Most people have definite opinions about how they want their story told, but few have any knowledge of how to create a dramatic storyline. With script approval, they can stop or delay a project, or make demands
that will ruin it, even though the film may eventually get made. You may have to give script approval if somebody is very famous (Sidney Sheldon has script approval on all the adaptations made of his books), but in most circumstances it will work against you. Although you will want to retain creative control, you can give the author or subject certain consultation rights. This means he or she does not have the right to approve the script, but can participate in discussions or meetings and give advice.

  You need a contract to protect your rights so you can adapt the material as you see fit. Don’t promise creative control. The decision will only return to haunt you when you’re trying to do your creative work.

  MISTAKES MADE IN OBTAINING RIGHTS

  There are many stories of how Hollywood producers and writers descend on a person or a place in order to get rights to “hot” stories that have appeared in the media. When Reverend Thomas Bird and his mistress, Lorna Anderson, were arrested in Emporia, Kansas, for murdering their spouses, scores of producers and executives descended upon the town to try to obtain their rights (their story became the miniseries Murder Ordained).

  When Eugene Hasenfus returned to Marinette, Wisconsin, phone calls from would-be producers came in by the dozens, and he had to get an unlisted phone number.