Q: I'm in the process of purchasing a two-year option on a biography. Here's the scoop: The author is dead, but his widow is still alive and now lives in Mexico. Their last agent lives in England (where it was originally printed), and that's who's handling this now. It was last printed by [Well-known Publishing Company]. It's not in print anywhere anymore, and at the moment, it seems as though the author's widow retains all rights. Before I send money and sign the agreement, I'd sure like to make sure there are no ugly surprises waiting for me.

A: You would make a law school professor proud with that question. I’m looking at these facts and my head is about to explode with all the potential issues. If we peel this onion down to its pungent core, what we have here is a question about “chain of title.” Chain of title is the chain of ownership from the first owner of rights to you. You want to know that what you’re purchasing is linked back to the first owner. If any links are missing, you may be buying something that’s worthless.

Even though today’s economy is based around purchasing things that are worthless, I’m assuming you’d prefer not to. That could be the case, however, if you don’t make sure that the widow actually owns the rights you think you’re buying.

As you mentioned, there was a publisher. Although the book may be currently out-of-print, this doesn’t necessarily mean the publisher holds no rights that you need to acquire (a publisher may retain rights in perpetuity, even if it allows the book to go out-of-print). To know the extent of the publisher’s rights, you would have to get your hands on the publishing agreement. Reviewing this agreement would be a standard step in a review of the chain of title of a book. I would hope the agent has a copy.

You should know that if it’s a U.S. publisher, it may still have rights, but those rights likely would be generally limited to the right to publish the book. If this is the case, you won’t necessarily need any rights from the publisher to make your movie, because the movie rights you need would remain with the author (or his heirs as discussed below). However, publishers in other parts of the world often acquire all rights in a book, including movie rights. Therefore if this is a U.K. publisher, you may need to acquire the movie rights from it, not from the widow.

Let’s assume, however, that you see the publishing agreement and it states that the movie rights remained with the author at the time he entered into the publishing agreement. Unfortunately, that author went the way of the buffalo. So who has his rights now? You’ve probably made a good assumption that they are held by his widow, but that is by no means guaranteed. If he made a will or had an estate plan, he could have willed his rights to anyone. Perhaps his wife was his beard and he left the rights to the book to his true lover. If that was the case, you’d have to get the rights from the lover. In other words, you will have to see the will or estate plan documents to make sure the widow inherited the rights to the book.

Now let’s assume the author didn’t have a will or an estate plan (i.e., he died “intestate”). What to do then? The intestate laws of the state in which he died would determine who inherited the rights in the book. To make it even more complicated, based on your facts, he may have died in another country, possibly Mexico. I know some good places for Mexican food (they’re all in San Diego, by the way), but I don’t know the first thing about Mexican intestate laws. So if the author died intestate, you’ll have to find out how the applicable jurisdiction’s intestate laws determine who inherited the rights.

As if I haven’t given you enough red flags, there is one more: you mentioned that the book is a biography. In other words, you want to make a movie about someone’s life. Even if the author obtained the right to write a book about this person’s life, he may not have obtained the right to make a movie about that person, whether or not based on the book. Therefore, even if you get all the rights you need in the book, you may still need to acquire “life story” rights from the subject of the book (and possibly from other real people in the book). Whether you actually need these “life story” rights depends on many factors (too many to go into here).

The bottom line is that it sounds like you have some work to do. In your efforts to confirm the chain of title, I highly recommend ordering a copyright search report (you can find them through companies like Thomson Compumark). Such reports scour US copyright office records and other databases in an attempt to discover any transfers of ownership that may have occurred with respect to a particular work. Outside of that, be diligent in asking for documentation to back up claims of ownership. Finally, make sure you get the right to make a movie about the subject or subjects if you need to. In circumstances like this, serious chain of title mistakes are common. If you want to make sure your money actually buys something, you should get an entertainment lawyer experienced in these situations to handle this for you.

Sorry for the sobering news. Hey, on the bright side, Paul Rudd is really funny in “I Love You, Man.” (I know this has absolutely nothing to do with your issue, but I just wanted to end on a positive note!)

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.