Navigating the Murky Waters of Intellectual Property

By May 30, 2017Main

Intellectual property, or IP as it is commonly referred to, has come to dominate the moviemaking landscape. Or at least, the current majority of it. Put simply, IP implies ownership over the rights to a story or an idea. And the more famous or profitable that IP has been in other realms, the more attractive it is to prospective producers who want to capitalize on its inbuilt fanbase. The biggest and brightest examples of this are the Marvel and DC superheroes, and their global box office dominance. IP can be more than just comic books, however. Novels, true stories, video games, news articles, even toys can be optioned for use in a movie (or a franchise).

If you’ve ever wondered what the process of “optioning” a book, story, or even a board game actually entails, and why everyone is so gung ho about it nowadays, read on. After the legalese, there’ll be jokes. Promise.

To option, or not to option

Let’s say you read a novel. You like it, and think it could make for a great movie. What next? In the US, the author of a book, rather than a publisher, usually reserves motion picture rights. So your goal would be to contact the author or their representation to discuss purchasing an option to acquire film rights. But before you make the call – do your research. Check the US Copyright Office to make sure the author has a copyright registration for the book, and that nobody else has already purchased a conflicting option. Here is where a lot of heartbreak happens. But don’t give up hope if the book has already been optioned, because options expire.

When you make an option agreement, you’re purchasing the right to produce a film based on the IP for a limited time. Then, one of two things happens. Either time passes, and no production happens (the rights reverting back to the copyright holder), or, the option is exercised and a film is produced. Usually, this means the copyright holder gets paid again to agree for the ongoing right to use the IP in the film.

Think of it like this. An option agreement is a deposit that gives you time to get a production together. Then, you pay to make the production happen. It gets a lot more legally complicated than that, but that’s why entertainment law is a thing. In broad strokes, the process of obtaining the rights to adapt IP into a screenplay for production isn’t that different from obtaining the rights to an original screenplay. In fact, for the seller one thing remains exactly the same. Whether you sell an option to produce an IP or sell a script – know when you get paid, and how much. If you’re looking for horror stories about what can go wrong on either end of an IP dispute, do a quick google. They’re everywhere.

Standing on the shoulders of giants

But why go through all the hassle? If original screenplays are everywhere (and they are) why go to the trouble of obtaining the rights to a book or a game or a robot that turns into a cassette player? Well, because there’s no such thing as a sure thing in Hollywood, but intellectual property feels a lot surer.

Once a novel or a game sells enough units, studios recognize all the free buzz those properties could provide for a movie adaptation. And not just buzz, but a preexisting fanbase that will (probably) buy opening weekend tickets and tweet about doing it. For something like an article or a true story, the resulting adaptation has established credibility. For Transformers, you can sell new Transformers. Like maybe now the cassette player turns into an iPod, or a George Foreman Grill. What’s not to love?

What’s not to love are the added costs, and potential fan backlash. Bestselling novels cost a lot to option, so you’re going to pay more upfront in the hopes of capitalizing on an inbuilt audience. Also, some stories and media might be less suited to adaptation than you’d hoped. Think about how few truly successful video game adaptations there have been. Sometimes, what makes a game fun to play isn’t as fun to watch. Also, sometimes the movies have no idea how to make a story about past lives and Assassins work. Sorry Fassbender.

And those fans we were talking about? If they don’t like some of the decisions you make adapting your IP, they can turn on you. Now, free buzz has become bad word of mouth. The risks are real. Any schmoe on the internet can talk trash about your terrible Assassin’s Creed movie, and how it didn’t make any freaking sense.

None of these potential drawbacks are slowing down the industry’s addiction to IP. The budgets for IP-based features are on average much bigger than the budgets for other films, and profit is still being made on a lot of IP offerings. The fifth movie based on a theme park ride is coming out this weekend, for example, and later this year there’s going to be a movie based on Emojis. 

Still, while it’s easy to view the process cynically, remember this: for every critical dud (or five), we get a Game of Thrones, or a Handmaid’s Tale. Genuinely engaging, worthwhile adaptations that satisfy pre-existing fans while creating legions of new ones.  So, y’know. It cuts both ways.