A few weeks ago, I got a survey from the Global Licensing Group, the people in charge of the Las Vegas Licensing Expo. They wanted to know my opinion (and probably hundreds of other people’s opinions) about content.
Is it important? Why is it important? How should I/we/they handle it? Oh, and am I a content provider (licensor) or someone who licenses content (licensee)? I suspect (just like they did) that our answers would differ a bit.
I smiled when I saw the survey, because I knew where it was coming from. “Content” has gone from a buzzword to a must-have. In fact, the whole key to everything licensing isn’t just accessing content. The key is controlling content.
Before I go any farther here, let me note that controlling content isn’t about controlling the story or the characters or the plot. It’s about owning the copyright. We writers create content, and when we do, we control the copyright. Releasing the content into the world requires us to license bits and pieces of that copyright—if we do it properly, that is. Most writers don’t.
To understand what I’m talking about, please read Part One of this series “A Cautionary Tale.” The problems in that piece occurred—all of them—because the Big Name author involved didn’t understand copyright or business or negotiation.
When we discuss licensing of any type, you need to know all of those things. When we talk about licensing your work to movies and TV, you really need to know this stuff.
(And, as I noted in the earlier piece, I use the shorthand “Hollywood” for movies/TV even though the word isn’t accurate. Force of habit. And believe me, it’s easier to use one word than a whole bunch of them. So bear with me on that.)
What started this whole short series was a piece in the Los Angeles Times last fall titled “Hollywood has gobbled up book rights during the pandemic. Here’s why.”
You have to really read the article to find out why. Because the article starts out with something true, but that something does not answer the question posed in the title.
Because of the pandemic, people who work in rights and rights management and content acquisition and all of those boring-sounding fields that really are how deals get made in Hollywood, couldn’t take meetings except on Zoom, like the rest of us. No five-star lunches. No schmoozing at “required” parties. No verbal pitches.
Instead, an hour here and an hour there, often interrupted by the kid or the dog or the occasional internet outage. People in Hollywood actually read a few books or, more likely, some pitches. And scripts. Lots of scripts that in the before time had someone else scan and summarize them actually got read.
What happens when things get read? They get optioned. Or maybe even bought.
I have been working with three separate producers—one in Spain, one in Wales, and one in Hollywood—for a few years now and they all reported this reading phenomenon to me with wonder in their voices. Our projects all moved forward once the initial panic about the pandemic and the industry settled down a bit. Realize that these are established projects with a long history, not something new.
However, I did see a lot of new this past year. The week I’m writing this, I saw three announcements on Twitter of movie/TV options from my traditionally published friends and acquaintances. (For those of you reading the blog on my website, “the week I’m writing this” is about four weeks ahead of when you’re reading this. The blogs are going live on Patreon as I write them, more or less.) These folks are very, very, very excited that their literary agent negotiated this deal for them, and they can’t wait to be the next George R.R. Martin. Sure, sure, Netflix is going to make their movie or Hulu will make their TV series. Right.
I cringe whenever I see this. I don’t announce when projects of mine get optioned. Projects get optioned a lot. It often runs in waves. A group of things will get optioned, and then nothing for a few years. Then another wave. I was heading into a new wave in January of 2020, and then…most of the people who expressed interest were laid off from their studios or agencies or management companies.
Fine by me. It’s a lot of work to field those offers, because most of them want something for nothing. I try to make these people go away. If they stick, then we start talking about lawyers and available rights and whether or not we even want to work together. Yes, I do my own negotiating in the early stages. As I tell the people who contact me, I bring in my lawyer as soon as I’m assured there’s enough money in this deal to pay the legal fees.
I do my own negotiating—because I know copyright. I also know what I want and how to get ask for it. Most writers do not, and most are afraid to learn. Here’s the secret, people. Everyone who negotiates Hollywood deals had to learn how to do it. Everyone. Every. Single. Person.
None of them are as interested in your project as you are. And most of them aren’t as smart as you are. But they know how to negotiate and what to negotiate for. Until you know this, don’t do what I do. You get some interest in your property, whatever that interest is, hire a lawyer who specializes in film and TV to handle that interest, in consultation with you.
Do not let the lawyer do this on their own. They must check with you, because only you know what you want. Otherwise, they might be too aggressive or not aggressive enough. They might ask for things you don’t want and ignore the things you do want.
Do you know what you want? You think you want, using a phrase coined by a friend of mine from Clarion, “to be rich and never have to work again.” Um, no. That’s not what you want.
What you want is to license as little of your copyright as possible. You want to retain everything from literary rights to merchandising rights. For some studios/producers, this is not possible. If you’re me, you’ll walk away from someone who won’t let you retain most of the rights in your project. All of you should walk away from anyone who refuses to let you put this phrase in any agreement:
All rights not enumerated in this document are retained by the author.
The other thing you want? Your name, and the name of the property licensed, in a prominent position in the credits, preferably above the line, always in what is currently being called the “opening” credits (even if most of them now occur —in movies, anyway —somewhere around the end). This is a deal point, made at the very beginning of a negotiation, just like the way the rights being licensed get discussed right away.
Why do you want this? Because the value of film and TV is in the advertising, baby, not in the upfront payment. You indie writers will make more money on the sales of your books should your little TV/movie get produced than you ever will on the TV/movie—even if said TV/movie pays you millions.
There are many other things to negotiate for, some of them dealbreakers for me. But I’m not going to get into them here, because every deal is different, every producer is different, every writer is different.
Here’s one other thing you absolutely need to know. Never, ever, ever, ever, ever license anything for free. Do not give someone a free option in your work. Do not allow them to market your work for free. Ever. Free marks you as a complete sucker, and you will get screwed royally from the moment you say yes. Maybe even from the moment you consider a free offer and don’t try to shut down the asshole who made that offer.
Yes, I said asshole. Professionals treat each other professionally. No one who is a professional ever asks someone to license something valuable for zero dollars.
Back to our scary little article from the LA Times. The Times reports this fact:
CAA [Creative Artists Agency], for instance, has packaged and sold about 175 book titles for film and TV so far this year — about five times the agency’s volume during the same period of time in 2019, the company said. Rival agencies, including WME and United Talent agency, also reported significant bumps.
Sounds good, right? Sounds real good. I’m sure you want a piece of that. I’m sure you are envious of the writers I know on Twitter who are announcing their deals in this environment.
I’m not envious. I feel so sorry for them. I really do.
Because here’s what’s really going on. From the LA Times:
The two biggest talent giants — WME and CAA — are still trying to resolve their more than-a-year-long standoff with the Writers Guild of America over longstanding agency practices such as collecting packaging fees and investing in affiliated production companies. Working with book authors is one way agencies have been able to continue packaging projects during the feud.
What? What is this “standoff” involving places like CAA? Well, from the LA Times in 2019:
Packaging is a longstanding industry practice whereby agents assemble writers, actors and intellectual property for a given project, then collect a fee from the studio when the project is sold (a portion of the licensing fee and a piece of the “back end”). Agencies argue that writers benefit from packaging because they do not need to pay the typical 10% commission fee to their agents. But the WGA argues such fees create inherent conflicts of interest, giving agents an incentive to put their own financial interests before their clients. The sides have turned to the courts to settle the dispute.
I’ve been screaming about this kind of packaging for years. Because I know dozens—and I mean dozens—of writers, from screenwriters to book writers who have made at most a few hundred thousand dollars from produced projects while their agents got above-the-line credit in a variety of roles, making money as packager, executive producer and getting a cut of the writer’s earnings (maybe not 10%, but usually something). In other words, the agent makes millions while the writer maybe makes a hundred thousand.
Seriously. This is what the Writers Guild of America has been fighting against more than a year.
So what have CAA and the other agencies done? They went around the WGA. They went to book agents for content. And then hired the writers of the books to produce the screenplays as part of the package. That’s not as nice as it sounds. Because these writers aren’t WGA members, so they don’t know about the niceties of contracts—how to negotiate for rewrite payments for example and credit and other issues. I’ll deal with that a little bit in the next article.
Here’s the point: these agencies—and a lot of independent producers—are going to book agents to cross a picket line, essentially. They’re strike busting. They’re using fiction writers as scapegoats and paying them peanuts and buying the entire copyright.
How do I know this? Hell, it’s in the original LA Times article, if you know how to read it. Jill Gillett of WME (William Morris Endeavor) says it flat out and makes it sound oh, so beneficial for the writers. She told the Times:
“We’re not just thinking about the film and TV deals, we’re thinking about the holistic careers of the authors,” Gillett said.
At that point in the article, I cringed. I literally cringed. Because this is the paragraph above that self-congratulatory statement:
Studios are also more willing than ever to boost the authors’ careers by including “based on the novel by” language in advertisements for shows and movies. Networks, studios and streamers also use tie-ins to hype the books and movies, such as releasing the book ahead of a show’s premiere with cover art from the production. Those kinds of marketing commitments have become more routine for sellers to demand during negotiations.
Okay, the “based upon” thing is exactly what I told you to get. You should also get the cover art from the production. These things should be standard for writers licensing their work to Hollywood. Standard.
As an indie writer, you will get 70% of each book sale. Traditional writers will, if they are lucky and don’t have some screw-you clause in their traditional contract, will get maybe 10% of each book sale. Maybe less. Maybe a lot less if these “tie-in” projects are sold at some kind of discount.
But here’s the kicker. The marketing commitments are all good and fine—for the agency—but the writer usually has licensed away any marketing rights. One writer I know even gave the movie company the tie-in rights to his novel—meaning that they could produce a novel based on the movie (yes, you’re reading that right) and market that instead of his novel, which started it all. And he didn’t even get credit for that, or payment for any of the sales. He also didn’t get money for any of the sequels, the graphic novel, the comic book and his name was on none of it. Not a single product produced because he wrote a novel that got sold to the movies years before.
Movie deals negotiated by literary agents are movie deals negotiated by ignoramuses. Or, if they are partnering with someone who actually knows what they’re doing, they’re partnering with agents who are part of CAA or WME or those other agencies that the WGA is fighting. Remember, the WGA is trying to protect writers.
Right now, book agents are undercutting the WGA. Which means book agents are undercutting writers.
Okay, and what else is going on here? Holistic careers. Now, these companies are asking for the writers to get some credit for their book projects, probably to entice the book agents…or maybe just because more than one author has asked.
The problem with a holistic deal is this: the big Hollywood agency representative will ask to license “all the rights needed” to make these holistic deals, which usually means all or most of the rights in the project. The writer will lose those rights for years even if the movie/TV project never gets made.
That’s right: the license will tie up the book rights for decades. Why? Because most places will take the entire copyright if they can. Why? Because of the whole content thing.
Content adds value to the bottom line. The more content a company has, the more worth it can claim in its portfolio. All book content has the potential to become a film, particularly if the writer of the book was paid $5000 for a two-year option or $50,000 for the out-and-out contract (with loss of copyright) for a short story.
$50,000 sounds good, right? Especially if most options/contracts never make it to film.
If that’s your attitude, then you’re really screwed. Because, guaranteed, the project you took the crap-ass deal on is the one that will become a film or TV series. Imagine if it’s a series. Imagine if the series goes on for years, but you get no credit for your story. Imagine if people love that series. They buy t-shirts and card games and video games and tie-in novels and hats and figurines and, and, and…all based on your story.
Imagine if all you earn, even in that instance, is $50,000.
That happens all the time. One way to know who it happened to? Check the closing credits. If the book author is listed as a “creative consultant,” usually that means someone on the film felt sorry for the poor ignorant writer, and decided to throw them a bone so they get some money, anyway.
Why? Because the writer lost all rights to the project, and only got paid $50,000, nothing more. When someone on the movie/TV series for your book feels sorry for you, you really screwed up.
These Creative Consultant writers will have to do some “work” for that bone. Often it is to consult about their original intent for the characters or the way that the book is constructed. Creative consultant is a catch-all phrase in film-credit land, one that filmmakers can use anyway they want.
I have a number of friends who needed that bone because their agents screwed them over. Some of those friends also got to write the first-draft screenplay. Lucky them. Not. (We’ll discuss this next week.)
Which brings us back to last week’s homework. I trust you did it. I trust you’re trying to figure out the ins and outs of the court case. That’s how you learn what not to do.
A lot of negotiation, business, and copyright law is learning what not to do. You will make mistakes in your writing career. You’ll probably make a lot of them. But the key is to avoid as many as possible.
If you can learn from the costly mistakes of other people, then do so.
The thing you should always ask yourself as you read these cautionary tales is this: What would I do in that situation?
Then be very honest with yourself. If you would take $50,000 flat for a short story and lose all rights to it, then you need to figure out how you would feel if that story becomes the most famous thing you’ve ever written.
Both writers (above) that got screwed sold their projects on the advice of their book agents, who told them that most film/tv projects almost never get produced—which is true. So, the book agent said, take the money. That’s all you’re going to get from this deal.
That’s exactly the wrong attitude. You have to plan for the success of the project as well as the failure of it.
Notice I didn’t talk a lot about money here. I’ll talk about it a bit in the final post in this series. But remember this if you remember nothing else: the more rights you keep to your work, the more money you will make down the road.
Educate yourself. Then hire a really good lawyer. Not an agent. Notice who the agents are screwing in the above examples.
Or let’s put that in a more positive way. Notice who the agents benefit.
It ain’t the writer. The writer is being screwed.
All of my traditional writing friends who are making these deals right now…oh, I hope they had lawyers backstopping them. I saw one deal just last week and the writer thanked their literary agent—a noted scam artist. Think that writer got a good deal on that movie deal?
Yeah. Me neither.
These things make me sad. I’m sad that a writer-friend didn’t listen and has trusted this agent for years. I’m sad that many writers right now are happily “selling” their books to the movies because they believe that it’ll make them rich, without understanding why there’s a feeding frenzy on novels right now. I’m sad that most writers refuse to educate themselves, even when they go up against some of the biggest and most powerful conglomerates in the world.
I’m worried that many of these writers will become cautionary tales, just like the writer in last week’s post.
Control your content. Learn, learn, learn, learn. Be willing to walk away because someone is offering a deal that doesn’t offer you what you want when it comes to rights and credit.
Take care of yourself and your business. Make choices that are the best for you.
If you do that, you’ll make good choices—most of the time.
And you won’t become some smartass blogger’s cautionary tale.
I am not a lawyer. I will not give you advice on your movie deal or your TV deal. I will not tell you the secrets of my deals. It’s all too damn complicated.
Please take my advice above: get a good lawyer, one who knows the movie/TV industry in whatever country your offer comes from (if you have an offer). And educate yourself. I can’t say that enough. Do things like I had you do last week. Read about other people’s screw-ups. Read how they got taken. Try to figure out what you would do in similar situations. That really does help and it’s the best way to learn.
So are articles like the ones from the LA Times. Try to figure out what’s really going on, underneath all of that PR.
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“Business Musings: Content, Content, Content (Hollywood Part Two),” copyright © 2021 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / pegasustudio.