Business Musings: Knowing What You Want (Agents/Negotiation)

Business Musings: Knowing What You Want (Agents/Negotiation)

In the late 1980s, some functionary at a record label fielded a call about a song called “Private Idaho,” by the B-52s. The song was never a major hit, although by the time that phone call got made, the B-52s were topping the charts with a song called “Love Shack.”

The caller wanted to use the song in an upcoming movie written and directed by Gus Van Sant. The functionary at the record label told the caller that the label needed X dollars to license the song. The caller told the functionary that this was going to be an independent film and that the film had a very small budget.

The functionary essentially said Tough luck, and ended the negotiation.

In a recent issue of Entertainment Weekly, Fred Schneider of the B-52s says this about what became the movie My Own Private Idaho, and the song:

I saw the movie, and Gus thanks us at the end, and some idiot in the audience shouted, “Well, why didn’t you use the song?!” Story of our career.

The B-52s had signed away control of the licensing of that song. Maybe of all of their songs. Now, granted, this was the 1980s, when the record labels (and I do mean record labels) reigned supreme. But Jimmy Buffet has controlled his catalog since the 1970s, and Janis Ian branched out on her own around that same point.

The reason that these missed opportunities are the “story of [the B-52s] career” is because the person in charge of licensing was someone who didn’t care at all about any opportunity. All that person cared about was money. And even then, that functionary might not have cared.

I talked to a lot of people in charge licensing rights in the 1980s, when I worked for a textbook publishing company. Most of those people had no stake in the property. Those people were working a day job, and did it with as much diligence as the average employee had.  They had a minimum amount they would license the rights for, and if we didn’t meet that minimum, then we were sent on our way, no matter how much we argued.

That’s it, end of story. Even though the B-52’s “Private Idaho,” as part of a film soundtrack, and as the inspiration of the film itself, probably would have sold and sold and sold and sold. To understand that would have taken foresight.

From Schneider’s comment, he knew that. I’ll wager that had the B-52s retained the licensing rights to that song, the group would have  licensed the song to the movie and the story of the B-52s career would have been a lot different.

I read that comment the same day I saw an article in the Hollywood Reporter about the film Crazy Rich Asians. You’ve probably seen a variation of the same article, since this news I’m about to impart to you is part of the film’s marketing campaign.

Kevin Kwan, the author of the international bestselling book Crazy Rich Asians, turned down a major seven-figure deal from Netflix, a deal that included filming the trilogy and artistic freedom to produce the films. Instead, Kwan and the director of the film, John Chu, accepted a much smaller deal from Warner Bros., a deal that included distribution to movie theaters around the world.

By this point, Kwan and Chu had done a lot of the development work on the film themselves. They had a team in place, along with a script. They were handling a bidding war. Kwan had lawyers, Chu had lawyers, and so did the producers. The article estimates that 22 people were weighing in on these offers from Kwan’s side alone.

The producers said that the decision was Kwan’s and Chu’s, not theirs. (Which is pretty amazing right there.)

Kwan and Chu decided to take the smaller deal because it included something they really, really wanted.

I’ll let Kwan take it from here:

“I could sense every lawyer on the call shaking their heads: ‘Ugh, these stupid idealists.’ Here, we have a chance for this gigantic payday instantaneously,” he says. “But Jon and I both felt this sense of purpose. We needed this to be an old-fashioned cinematic experience, not for fans to sit in front of a TV and just press a button.”

Kwan and Chu knew that if this film did well in the American market—not just the gigantic Asian market—the film might change the game for Asian-American movies. Heck, for movies. The Hollywood Reporter article cites both Black Panther and Get Out as films that changed the way Hollywood looked at diversity.

But when Kwan and Chu were making this decision, they had no idea that those two movies would change the landscape. (And, to be frank, we still don’t know if the changes are real or a blip. We’ve been here before—in the 1970s, in the 1990s. That studio-generated myth that only white males from 18-35 see movies is a hard one to kill.)

Kwan and Chu were taking a gamble. They went from a sure thing—three films and creative control and enough money to move “to an island and never worked another day”—to something really risky: the chance that a major studio would continue to back this film no matter what the headwinds against it.

The article mentions Kwan’s lawyer, sitting in his car on the shoulder of the Pacific Coast Highway, frantically texting Kwan. I can only imagine the texts. The payday alone was enough to make everyone rich, and then they could do what they wanted with the money, including funding other Asian-American projects.

But this project was special to Kwan and to Chu. They wanted to see faces like theirs on the big screen, and not as sidekicks, but as the center of a genre film. The genre was even more surprising. It’s a romantic comedy, being made in an era where the bros in charge of the studios believe that no one wants to see rom-coms.

(Netflix is disproving that too. They have a slate of romantic comedy movies that are outperforming almost everything on the platform. But that’s a story for another day.)

I’ve been told by writer after writer, agent after agent, publisher after publisher, that no writer gets creative control. Last year, when I spoke to the friend of a friend in Hollywood, a man who gets creative control on all that he does, he said to me, “No one gets creative control because no one asks for it.”

I ask for it on every deal. Sometimes I get turned down. Sometimes the people in charge throw even more money at me, but refuse to give me any say in the project. I walk away, just like Kwan did.

In fact, Kwan knew what he wanted from the beginning.

Crazy Rich Asians became a worldwide bestseller, and …

While Kwan had lucrative offers, he optioned his book to Color Force and Ivanhoe for just $1 (with triggers in place for him to earn more as the project got made) in exchange for the right to remain involved with development decisions — a rare opportunity for a first-timer.

Rare, because he requested it, and most don’t. And, I should add, that some writers want to have their fingers too deep in the pie. They want to write screenplays, even though they don’t know how. They want their book to be filmed as is (which is impossible), and they want this or that movie star, because they believe that star would be perfect for the film.

Kwan isn’t that kind of writer. What he wanted was to prevent the film from destroying the point of his novel. From Vulture:

Even before the book was published, Kwan had a round of meetings with producers, including one who suggested turning Rachel into a white woman. (“It was a very quick conversation that I shut down,” he says.)

He turned down the opportunity to write the screenplay:

I felt way too close to the material, and I was not an expert screenwriter at that point. (He’s now writing a pilot for an original one-hour TV drama set in Hong Kong but refuses to share any more details.) He had input into the film’s casting, though…

The input on casting is for obvious reasons, as you can see.

Kwan is having the kind of moment that the B-52s never did. He has a project in development with Amazon, and I’m sure he’s being approached on other things as well.

You’ll note as you read through these pieces—and I suggest you do—that Kwan has a lawyer. He’s also repped through ICM, although the articles do not say agented by. (There’s a reason for that, which is too complicated to discuss here. And no, I’m not saying much in the comments either. You’ll misunderstand me without a series of long articles, and I’m not going to write them.)

I have written a lot of blogs about bad representation, about writers who let “their people” handle everything. Then I get told, over and over again, that writers have no choice.

Sure, writers have a choice. They can handle the negotiations themselves, with back-up from lawyers, just like Kwan did.

Had Kwan’s lawyer been 100% in charge of the negotiation, he would have taken the excellent super-amazing deal from Netflix. Netflix offered tons of money and creative control.

It sounds like a perfect deal. And maybe it was. Maybe Crazy Rich Asians won’t do well. (Although, as I write this, the week before the movie gets released, the preordered tickets are at $20 million, which is, according to The Hollywood Reporter, “a solid number that’s ahead of most recent rom-coms.”

The numbers indicate that this gamble will pay off. But even if it doesn’t, Kwan can say that he tried. He had a specific goal in mind with the film version of this project, and he knew, the moment he put it in a large studio’s hands, that the success or failure of the project would be out of his control.

He controlled what mattered to him.

That’s how negotiation gets done.

Did he handle the nitty gritty of the contracts and the fine points of the deal? No. He wasn’t on the phone arguing points. But I’m positive that he saw each iteration of the contract, and knew exactly what was being discussed.

At a certain point, you bring the experts in. They know the language, and how it should be laid out in a contract.

That’s how you handle your representation.

The person in control of the license and the project is the writer. The representation then handles the deal that the writer wanted and ultimately approved.

I have found a million examples of how this kind of negotiation is done wrong; I have never before seen such a clear example of the negotiation done right.

I love how the turn-down of a major Netflix deal has become part of the marketing of this film. It gives those who pay attention a feeling that this thing is hot, hot, hot.

But it also puts the gamble front and center, letting interested parties know that they should go to the film on opening weekend, to help with the box office numbers.

It’s a great strategy, and one that will help the film in a myriad of ways.

Most writers have the kind of career that the B-52s had—all those missed opportunities, and a vague feeling that something has gone horribly, terribly wrong, but the writers don’t know exactly what.

Each missed opportunity was probably handled by a different functionary of a different company, especially when the representation for the artist took the biggest cash payout rather than a deal that made more sense for that artist.

When I finally got rid of my agent(s), I learned how many opportunities had gone whooshing by, as licensors told me how long they’d been trying to reach me.

Sometimes I do big money deals. Mostly, though, I do control deals. I want a say. I don’t want to take over the project, because I’m not a filmmaker or a game designer. I just want to make sure that whoever is putting the project together doesn’t gut the heart of the project—like that producer Kwan mentioned who wanted to make his Asian-American heroine white.

I’d pause to shake my head, only I’m too jaded. This kind of thing happens every single day, not just in film, but in book publishing too. It’s racism, based on the incorrect assumption that non-white groups don’t read or see movies or listen to music or whatever.

One of the Crazy Rich Asian’s stars, Constance Wu, wrote an incredible open letter about this. You should read the whole thing, but this is one of the important parts:

My friend Ava DuVernay says, “I work in an industry that really has no regard for my voice and the voice of people like me and so, what do I do? Keep knocking on that door or build your own house? My dear Asian American friends, we are building our own damn houses. We got the tools, the ability, and we definitely got the style. Just because others don’t see it, doesn’t mean we don’t have it. We do. I’ve seen it. I hope Asian American kids watch CRA and realize that they can be heroes of their own stories.

In order to build your own house, for your own work, you need to keep control of that work. And letting control go to first your agent or some other representative slowly takes your work down the path that the B-52s walked. Somewhere, some functionary is turning down the project that will enhance your work. The functionary might be doing it for what they consider to be all the right reasons.

But those won’t be your reasons.

And that’s why I keep telling writers to retain control of their copyrights and to negotiate their own deals.

If you do that, sometimes you get the chance to change the world.

And sometimes, you just get the chance to be part of a small but fun project.

The thing is: you won’t know in advance what will pan out and what won’t. But you have absolutely no chance of being part of something great and cool if you leave the control of your work in the hands of others.

Just sayin’

***

It’s scary to make the decisions on your work. Kwan references that in the Hollywood Reporter article. But scary isn’t a reason to punt your responsibility to your work. Imagine how angry his readers would have been to have the main character of his novel become a white woman in the film. It would have been ugly. But some functionary would have made that decision for all the “right” reasons.

Yeah, yeah, I know. I’ve said this before. But I’m hoping you’ll pay attention, and keep control of your writing. So many writers never do. I’m trying to change writer culture, one little blog at a time.

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I couldn’t have done this without all of that support. I feel lucky every Thursday, when you continue to participate.

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“Business Musings: Knowing What You Want,” copyright © 2018 by Kristine Kathryn Rusch. Image at the top of the blog © Can Stock Photo / theblackrhino.




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11 responses to “Business Musings: Knowing What You Want (Agents/Negotiation)”

  1. Pardon my ignorance – but I am wondering just what “creative control” (as NetFlix was supposedly offering) means in whatever language they use in Hollywood? Obviously not English, as to me it would mean Kwan could say “No, an Asian woman is absolutely necessary in this role.” With or without the clue bat emphasis.

    One of the few places that I tolerate racial discrimination – either “traditional” or “reverse” – is in acting. There are a multitude of roles that absolutely require a black, an Asian, a Hispanic – or a white – actor/actress. Note “racial” there. The current screams about a heterosexual actress playing a transgender, or following some religion being a disqualifying or qualifying factor are, to me, sheer bunk. An actor is supposed to play many roles that they are not in real life, sometimes completely the opposite (a good thing I realize this, too, or there would be a lot of Hollywood people on my “shoot on sight” list. Especially horror film villains.)

    • Yes, creative control might include casting. (It might not. It depends on the contract.) But if you read the entire article, you’ll understand what Kwan wanted. I can’t stress enough that you should read that whole article, and not my excerpts from it.

  2. […] Rusch has a fascinating post on how creators should focus on what they want to get from a deal and let the experts handle the […]

  3. “I tell the people I’m negotiating with that I bring in a lawyer when it’s clear that the deal is worth my lawyer’s fee. Everyone I’ve negotiated with understands that.”

    I feel like the hesitance to say that kind of thing (in contrast to the universal understanding on the other side) is a clear contrast of impostor syndrome versus professionals who know the reality of business negotiations.

    It’s a great illustration of how (especially in the beginning) acting like a professional can be the simple thing that makes you a professional. Public speaking was similar–I had to pretend to be a public speaker a couple of times, but now I just am one. (I was one the first time–but it sure felt like a child playing “dress up” the first couple of times.)

    In any case, what feels ostentatious or arrogant for a beginner is often just everyday business for professionals who do that sort of thing every day. There’s a difference between arrogance and confidence, and sometimes you have to break through to the other side before you can distinguish between the two.

  4. Geoff Palmer says:

    Hi Kris. Another great column. Thanks!

    I read it right after reading this piece: “Musicians only got 12% of the $43 billion the music industry generated in 2017, and it mostly came from touring.” (https://amp.businessinsider.com/musicians-received-12-percent-43-billion-generated-by-music-industry-study-2018-8).

    Really, what more is there to say …?

  5. Chandi says:

    Hi Kristine,
    Thanks for the thought provoking post. When you say, “And that’s why I keep telling writers to retain control of their copyrights and to negotiate their own deals” does this necessitate that an author NOT have an agent and NOT have a traditional publisher? I imagine that’s a yes regarding copyrights, but in your mind could an author have an agent & traditional publisher, and still have the possibility to negotiate their own deals, or at least be quite involved in the negotiations?

    • No agent. Ever. So yes, on that part.

      You can have a traditional publisher and negotiate your own rights—provided you had a favorable book contract, and retained those rights. That’s becoming impossible in the big traditional publishing, which is one reason I don’t sell books to big publishers any more. (I make way more money this way.) But if you have a good IP lawyer and can walk away from a deal that’s not in your favor in traditional publishing, then you can still have a trad publisher and handle your own subsidiary rights negotiations. If you’ve licensed all of those rights to your traditional publisher, well, a lot of other people will make money on your property/book. You won’t. Bottom line.

  6. Mars Dorian says:

    I’ve read that article on Hollywood Reporter and was amazed by Kwan’s clarity and goals. Most writers would have jumped for joy receiving a big $ deal AND creative control, but the goal to promote Asian-American actors in the movie world was more important to him than riches. It’s a big risk, but I hope it pays off for him and the actors involved.

    Thanks to articles like yours, I’m learning more and more about the important of owning your IPs. I’ve recently read an article about comic book creators ending up poor even though they invented iconic characters, just because the company they worked for owned all the rights.

    What’s your opinion of new authors getting representation when dealing with selling rights? Should one get a media lawyer, an agent or someone different?

    • Hire representation at the point you personally feel you need it. You need an attorney familiar with movies/TV, and one that comes highly recommended. See my answer to Prasenjeet about how to handle it. Never, ever, ever, ever, ever, EVER hire an agent to handle your negotiating. EVER. I’ve written a million posts on this, and will write more. But if you want to end up with a bad deal, then hire an agent. Otherwise, handle it yourself with an attorney as a backstop.

  7. Prasenjeet says:

    Hi Kris. Once again a great post. But I have a question. If you’re handling your own negotiations, how do you know the market rates? i.e. Suppose you’re being offered a $ 100,000 by someone who wants to make a movie out of your novel. Now how do you know that’s a good enough amount (even if you think it’s good) or just pocket change?

    • That’s a learning curve that you’ll need to handle on your own. Start reading, start paying attention, consult with people who are farther on this path than you are. If you read the article, you’ll see that Kwan optioned the property for a $1 at one point. That was a strategy (one I would not do). You learn by reading and paying attention, which I do all the time.

      And you can hire a lawyer as a backstop. Meaning you do the negotiations, but the lawyer is behind the scenes giving advice, telling you if in the lawyer’s experience, that is good or bad. It’s cheaper than having the lawyer negotiate early on (and safer, because you make the decisions), but it’ll still cost money. I tell the people I’m negotiating with that I bring in a lawyer when it’s clear that the deal is worth my lawyer’s fee. Everyone I’ve negotiated with understands that.

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