Rights and Copyright

I’m writing a spec akin to [The People vs. Larry Flynt](http://imdb.com/title/tt0117318/combined) or [Catch Me if You Can](http://imdb.com/title/tt0264464/combined) that involves several real people, the FCC and a major U.S. company. There’s a lot on record regarding the incident in newspapers etc. I’ve hunted down the main character (a private citizen) and will talk to him about rights to his story. Assuming there hasn’t been a book written about the incident, what is the protocol for using real people (high profile like the former head of the FCC, etc) as characters?

I’m going to guess anything transcribed in a public hearing is available as dialogue but of course it’s the juicy stuff behind closed doors that I will have to infer to progress the story along. And what about using the major company’s name? Could I use, say Kmart, if the film is about an incident with Kmart?

— Matt
San Diego

John’s Standard Advice applies here: if you’re writing this as a spec, just write the best possible script you can. Yes, down the road, there may be some legal hurdles. You might have to change a company’s name, or lose/combine/alter a character for icky defamation reasons. But those are all making-the-movie concerns, not things to freak out about while writing the script.

However. You seem like a diligent guy, so there are things you can do now to save yourself some trouble down the road. First off, make a list of “facts” as you understand them. Who is who, who knew what, when things happened. For each of these facts, make a note of how you know this. Is it a matter of public record (i.e. you’re looking at court testimony), a newspaper story, or an interview you conducted yourself? Basically, pretend you’re a fact-checker working on a major story for the New York Times. Be detailed. Be obsessive.

Then tuck this list away. Don’t even think about it while you write.

A lot of what makes a script interesting isn’t fact. It’s the stuff in-between the facts: conversations that probably took place, motives that make sense but aren’t documented. While you’re writing about real people, you’re writing characters, and characters can’t be found in court testimony. You’re going to have to make some stuff up — so make it compelling. Find a point of view. You’re trying to create two hours of great movie, and great movies are rarely objective.

Do people sue when movies are made about them? Sometimes. But the fact is that no one is going to sue you, Matt Screenwriter from San Diego, for writing your script. It’s only when a script becomes a movie that the fear of lawsuits really merits any attention. And by that point, you’ll have more studio lawyers than you can handle. Hand ’em that list you made and let them do their job.

See also:

[Based on a true story](http://johnaugust.com/archives/2003/based-on-a-true-story)
[Third-party storytelling](http://johnaugust.com/archives/2003/third-party-storytelling)
[“Fictional events” disclaimer](http://johnaugust.com/archives/2003/fictional-events-disclaimer)

I’ve looked through all your replies to rights questions, but didn’t see one
that quite answered mine.

A friend of mine tried to write a memoir a few years ago, but ended up with
a hodgepodge of notes and thinly connected chapters. It never came together,
but while trying to help him ferret out a through-line, I started thinking
of it in terms of a screenplay. So I adapted it, devising an entirely new
story to bind the fragments together. I haven’t told my friend because he’s
hideously critical (I once dreamed he was a snotty French midget who made me
carry him around on my back), so I don’t want to breathe a word of it until
I have a half-decent script to show him.

In the meantime, I want to submit it for a contest whose prize is a
month-long workshop, but they require that adapted scripts include written
proof that the rights have been obtained. Do you think this sounds necessary
in my case? My understanding is that since it’s just for a workshop, the
sponsor organization isn’t in any position of liability anyway — am I
correct in believing rights needn’t really come into play until money
changes hands?

— Lara

There are two issues at work here. First is legal liability. If you were simply appropriating bits and pieces of your friend’s life from stories he told you, and constructing a new narrative, then I think you’d be relatively well-justified in thinking yourself safe. But the fact is, your friend wrote this stuff down. You read it. No matter how badly written it is, his hodgepodge memoir is his intellectual property, not yours. So if your script is based on the stuff he wrote, you need his permission. While it’s true that there’s not a lot of consequence to this kind of copyright infringement until money changes hands, that doesn’t mean it’s harmless, or okay.

The second issue here is moral responsibility. You’ve read through my other answers about copyright, where my standard advice is generally write first, ask questions later. I think you wrote in specifically to get the same counsel, and keep your conscience clear.

No such luck.

I think you’re a pretty crappy friend. So what if the French midget can’t write a good memoir? That doesn’t give you the right to make the movie version of wee Napoleon’s life without consulting him first. Does the title page even acknowledge that it’s based on his life? Or is that something that doesn’t matter “until money changes hands?”

My advice: tell him what you did, and show him the script. Maybe he’ll love it. Maybe he’ll hate it, and stop being your friend. I can’t say I’d blame him.

An alarmingly high percentage of reader questions contain some variety of the phrase, “Do I need permission to…”

The short answer is generally, “Yes.” The long answer continues, “…but don’t worry about it so much.” People get unnecessarily freaked out about copyright and trademarks, out of fear that Nabisco is going to sue them for millions of dollars. That’s simply not going to happen.

But to help you sleep a little easier, I’d highly recommend a new book from [Nolo](http://www.nolo.com) called [Getting Permission: How to License & Clear Copyrighted Materials Online & Off](http://www.nolo.com/lawstore/products/product.cfm/ObjectID/4835B5AF-0C35-4540-A4FE20738596443E/catid/2EB060FE-5A4B-4D81-883B0E540CC4CB1E). That’s a lot of ampersands for one title, but it’s a very good reference for the super-diligent writer who wants to make sure his Bob Dylan musical is on the up-and-up. (Section 5, page 21)

The book has all the forms you’re likely to need for most purposes, although it’s not film-centric. There are no rights-option agreements, for example.

Nolo has books on a wide variety of legal topics, which is of course catnip to the do-it-yourself-er like me. [How to Buy a House in California](http://www.nolo.com/lawstore/products/product.cfm/ObjectID/2B3C9AA5-19FF-45F8-B0E47338DEECD3F3/catid/AAFB97A1-F23E-4D6F-98DBD8C64C478126) was by far the most useful thing I read before I bought my first place a few years ago — I’ve lent it out to many friends. Even if you live outside of California, it’s a very good primer. In my case, I had dramatically mis-estimated what I could afford to buy, and would have ended up in the wrong house without it.

What is the best method for optioning a script? I recently came across a script I’d like to develop, in hopes of pitching the project to production companies in L.A, and was wondering how this is actually done.

Do I offer the screenwriter monetary compensation for a one year’s option, with a second year option available if I want to keep working on developing the script? What happens after I option the screenplay? Can I make changes to the script?

–Arturo Tapia
Down To Earth Productions
Chicago, IL

Your assumptions are all correct. But for readers unfamiliar with options, a bit of explanation. From [Dictionary.com](http://dictionary.com):

>**option**
>The exclusive right, usually obtained for a fee, to buy or sell something within a specified time at a set price.

You often hear about options in terms of investments, but it means exactly the same thing in the film industry. When you option a script, a book, or some other piece of material, you’re making a deal that says basically:

* I’ll pay you X amount of dollars right now.
* In return, you promise that for a certain period of time (called the “option period”), you won’t sell this (script/book/whatever) to anyone else.
* At any point during this period, I can choose to buy all rights to the (script/book/whatever) for the pre-determined price of Y.
* At the end of the option period, I can elect to renew (or extend) the option for pre-determined amount of time, at a pre-determined price.

A sample option for a novel might be described like this: $5,000 for a two-year option, renewable twice at the same terms, with a buyout of $100,000. The details would be spelled out in full legalese in a contract known as an option agreement, signed by both the producer and the writer.

Why would a producer option a novel, rather than buy it outright? As you can see, it’s cheaper. In this case, for 1/20th the money, the producer has gotten the rights to the book he wanted. What’s different is that there’s a “ticking clock.” Unless he can get the movie set up within two years, he’ll have to pay another $5,000 to renew the option.

In Arturo’s case, he wants to option a script, then do some work on it — presumably with the original writer. That’s pretty common. Contracts would need to clarify who owns the new writing performed on the script in the event the option lapses. The most hard-core version might say that the producer owns any-and-all-revisions, while the more moderate version might allow the screenwriter to claim any work he or she did during the option period.

What if Arturo decides he needs to bring in another screenwriter for a rewrite? Well, unless he’s signed something stating otherwise, he can. He’s pretty much free to change anything he wants. That is, until the option lapses, and the original writer gets his original script back.

This is why a screenwriter needs to pay particular attention to the renewal clauses when signing option agreements. A one-year or two-year option with one chance to extend for a year should be adequate for most situations. You don’t want your script caught in an endless cycle of renewals with a producer who can’t get your movie made.