For purposes of this article we will assume that we are talking about a book and that the producer will either write the script himself or hire a writer to do so. We will also assume that the producer does not yet have financing and other arrangements made for the film. So, what to do? Answer: get an option on the film rights for the book. And what should be in this option? Let’s start with the parts that are subject to real negation

ELEMENTS OF THE OPTION CONTRACT

Option Price and Term. From the producer’s standpoint, this should be “as cheap as possible and for as long as possible.” Since a producer is not sure that the film will be made (financing considerations, availability of actors, other projects, etc) he will naturally want all the leeway possible while still controlling the film rights to the book. A producer might even ask for a free period, but that is a bit of a stretch. The author on the other hand wants just the opposite, as much as possible for as short a term as possible, since the signing of the option essentially keeps him from pursuing other filmmakers. These are the dynamics in play and the final contract provisions are just a matter of what the parties finally agree upon. (A year or even two are frequently where the term of the option is finally settled).

The Rights to be Granted. While these can vary, the producer will want to include all motion picture rights including sequels, new versions, remakes, adaptations, trailers for advertising and promotion, and the right to broadcast and distribute the movie in every kind and form of media. The distribution rights are very important as technology continues to advance and new methods of viewing become available.

Reserved Rights. Generally the author will reserve the right to publish printed versions of the work (paperback versions, translations, etc.) and author-written sequels in book form. Also frequently reserved are publication rights to things such as periodicals, magazines, and comic books. What the producer should not allow to be reserved to the author is script approval.

Credit. While this is not usually the subject of a great deal of negotiation, the parties should agree upon the wording to be used (“Based upon the book written by ABC”) and location, and size of this credit. Usually it will appear in the main titles of the movie, and in most paid advertising.

Purchase Price. The sky is the limit here for creative negotiation. The price can be a flat fee, a percentage of the budget, a fee plus percentage of gross/net profits. No guidelines here.

THE BOILERPLATE

Now for some of the boilerplate provisions. These provisions should be a part of the agreement in almost all cases and in essentially the form described.

Name and Likeness. The producer should have the right to advertise and use the name and biography, pictures and other likenesses of the author in connection with the advertising and promotion of the motion picture. I even recommend having the right to use this information in presentations a producer might make before potential investors.

No Obligation to Produce. This is a statement the producer is not required under the agreement to make, produce, release or distribute a motion picture based upon the work optioned. Technically this is probably not necessary, but by including it there is no basis for claiming any misunderstanding about making the film.

Representations and Warranties. It is important that the producer obtain certain representations and warranties from the author, including:

(a) That the book is an original work of the author, not filched from
someone else;

(b) That the book does not violate or infringe any personal, proprietary or other intellectual property right of some third person (meaning there aren’t going to be any libel, slander, privacy or publicity suits as a result of the film); and

(c) That the granting of the option does not breach the rights of another (meaning the author has not granted an option or some other rights to the book to someone else).

Follow these guidelines and a Hollywood producer’s life could be yours:

As an actor he was a loser
So he quit and became a producer
And it’s easy to tell
That he’s doing quite well
‘Cause his chief pastime now is seducer

* A proud graduate of Purdue University.