Q: Hello, wondering if you could help me with a point regarding film rights for a book from a foreign writer (non-U.S.):  Do you require the rights from the estate or the original publishing house in Europe or the U.S.?  Also, how long should the rights be held for? What is the standard? 25 years or more? How do parties usually settle this particular issue?

A:  Our faithful readers appear to be predisposed to optioning books that were written by foreign authors who are now deceased.  You guys like to make things difficult on yourselves, don’t you?!

With respect to your first question, you need to acquire the rights from whomever holds the rights you’re looking for.  There’s no set-in-stone person to whom you can look. In this case, it’s unclear if the book’s film rights are held by the publisher, the author’s estate, or some other third party which may have acquired them at some point in the past.  This is a chain of title issue.  For more information on that, I must point you to a recent blog which covered a very similar situation: http://www.filmindependent.org/legal-ease/1229.  (Wow, linking to my blog in my blog makes me feel like I have either arrived in the blogosphere or become a complete narcissist.  I’ll decide which one over lunch at the Ivy.)

To answer your second question, there really shouldn’t be a limit as to how long you hold the rights after you acquire them.  When you acquire a property outright, subject to a contractual provision to the contrary (as discussed below), it’s yours in perpetuity, just as if you had just purchased a Sham-Wow.  There’s no time limit on your ownership of the script, just like there’s no time limit on your ownership of that German-engineered miracle cloth (I just hope the party selling you the rights in the book conducts themselves a little differently than does Vince the Sham-Wow guy).  (Of course, not to mislead you with all this perpetuity talk, your rights can’t outlast the copyright in the book; and so once the book enters the public domain anyone can make a film based on it.)

This holds true even if you plan on optioning the book instead of purchasing it directly.  In an option you have a limited amount of time to acquire the book (the option period).  However, if you exercise that option by paying the stated purchase price, you acquire the property outright and it’s yours in perpetuity (i.e., for as long as copyright protection lasts).

One exception to this can be contractually negotiated by the party who is selling the property to you.  They may request a reversion.  If you agree to one, you’ll be agreeing that if you have yet to exploit the property after a certain number of years after acquiring it, all the rights will revert back to the original owner and you’ll no longer have any rights.  This is fairly common so don’t be alarmed if they ask.  If you agree to it, make sure you build in some way for you to get the money back that you’ve spent to purchase and develop the property.  For example, you may get a first priority lien on the property so that you’ll recoup all of your costs from the first dollars made from the exploitation of the reverted rights.  Alternatively, instead of reversion, a better option for you is to give the original owner a limited period of time to buy back the rights from you if after a certain number of years you haven’t done anything with them.

LEGAL EASE is FIND's weekly advice column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here. If you have a question for our lawyers, Jesse and Matt, please send them to Carolyn at CCohagan@filmindependent.org

© 2008 Greenberg Glusker Fields Claman & Machtinger LLP (“Greenberg Glusker”). All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. Greenberg Glusker does not represent or warrant that this Blog contains information that is true or accurate in all respects or that is the most current or complete information on the subject matter covered.

Matt Galsor and Jesse Saivar are attorneys in the entertainment transactional department of Greenberg Glusker Fields Claman & Machtinger LLP.