Q&A: What’s the Difference Between a Screenplay Option and a Book Option?

by Greenberg Glusker Fields Claman & Machtinger LLP
Contact

Q:  Is there a big difference between an option for a screenplay and an option for a book?

A:  Did you ever get the magazine Highlights when you were a kid? The one they had in dentists’ offices which had Goofus and Gallant and the hidden pictures game?  If so, you probably played the other game in the magazine where you’d be shown two similar pictures side by side and you’d have to spot the differences.  If there were a Highlights for lawyers, we could play the game with a screenplay option and a book option because the two do appear so similar on the surface.  On closer inspection, however, you’d find a few subtle differences and one major one:  the book option would include a section referring to the author’s “Reserved Rights.”

A screenplay option provides that, on the exercise of the option, the optioning party (e.g., producer, studio, etc.) acquires ALL rights in the script, including the right to turn the script into a movie, a stage play, or even a roller coaster ride.  In an option for a book, on the other hand, the author of the novel reserves certain rights in the book.

The most obvious of these reserved rights is the “print publication” right.  Regardless of whether the book is an unpublished manuscript or a popular published novel, the author (and his publisher) would have to retain the right to publish it (or continue publishing it) as a book.  Therefore, that right is not granted to the producer but is instead reserved by the author.

Other rights reserved by the author are related to non-traditional publication rights such as “book on tape” rights and (welcome to the future) “e-book” rights.  The author may also retain certain rights that may have been really useful in the 1920’s, including “recital” or “straight reading” rights (the right to have someone read the book live in front of an audience) and “radio” rights (the right to read the book on the radio).

A much more important right that is actually still relevant today and may or may not be reserved by the author is the “Legitimate Stage” right, which is the right to have the book turned into a play (intended for “legitimate” stages, not stages whose parents weren’t married).  If you’re an author these days, you’re probably not going to win the fight to reserve this right unless you’re an author of some prominence.  Producers and studios want (and, thus, need) to be able to turn your book into a play, especially if their movie based on your book was a success.  Think Twilight the Musical starring this year’s winner of American Idol.

Another right that should be and is typically reserved by the author is the “Author-written Sequel” right which, in case the name is unclear, is the right of the author to write a sequel (or many sequels) to the book.  The fact that the author reserves this right usually goes without saying, but it’s what the author can do with the sequel is often an area of detailed negotiations.  Of course, the sequel can be published, but can the author sell the movie rights to the sequel?  If you’re the producer with movie rights in the first book, you certainly don’t want some other producer to be making a movie based on the second book.  Therefore, the producer optioning the first book will demand two major protections on the author-written sequels:  (1) a “holdback” which restricts the author from selling movie rights in a sequel for a certain period of time (note:  there’s also generally a similar holdback for the other non-publication rights); and (2) a “first negotiation/last refusal” right which essentially gives the producer the first opportunity to purchase the movie rights in the sequel or, if the author and the producer can’t agree on a deal, the right to match any other party’s offer.

It should be noted that even if the author reserves this right to make movies based on author-written sequels, this right is very often limited to the point that it’s almost worthless.  This is due to the fact that many agreements state that even if the producer who bought the movie rights in the original novel does not acquire the movie rights in the second novel (pursuant to his first negotiation/last refusal right), the author can only exploit the second novel as a movie if the movie does not contain any characters from the first novel.  Kind of defeats the purpose of turning that sequel into a movie, doesn’t it?

One final important note:  if you’re ever optioning a book originally published by a foreign publisher, be aware that unlike in the U.S., foreign publishers often acquire a broad spectrum of rights in a novel that go beyond the publication right.  Such rights can include the motion picture rights.  Therefore, the author may not even have the right to sell movie rights in his book; such rights may need to be acquired from the foreign publisher.

Wow.  Who knew such a short question could produce such a long-winded answer?  I guess I’m now at the point where I get as excited about option agreements as I used to get about Highlights magazine (ugh).  Now it’s up to you to decide whether to be Goofus and remain thinking that book and screenplay options are the same, or Gallant and recognize the major difference.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP
Contact
more
less

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!