REPRINT: The Skinny On Separated Rights
Posted by Craig Mazin on 27 Dec 2005 at 02:46 pm | Tagged as: The MBA
Novelizations
are covered…Ed. Note: This article was published earlier this year. A commenter in another thread asked a question about novelization rights, which are covered by separated rights, so I thought I’d reprint this as a refresher course for our newer readers.
It’s probably a sad commentary on my own curiosity that I’ve been hearing the phrase “separated rights” since 1995, but only really understood what they were about a year ago.
Separated rights sound kind of complicated, but once you look closely at them, you’ll see there’s nothing too difficult about it all. However, since one of our commenters who happens to be a Board Member (his last name rhymes with “Mawton”) displayed a shocking…I say shocking!…unawareness of one of the basic separated rights, I figured it was time for a brief primer. Mind you, this article is only about theatrical (i.e. movie) separated rights. The TV version will have to wait for another time.
First, let’s remind ourselves (because it’s been four whole days) that when we sell literary material or are hired to create literary material for the studios, we do so as a work made for hire.
As the de jure author of the screenplay, the studio would essentially hold all rights that come along with copyright ownership. However, writers have managed to carve out a few of those rights for themselves. They’ve separated those rights away from the large list of the rights the companies have not given up.
Before we get into what those reserved, or separated rights are, let’s first discuss who gets them.
In order to receive your separated rights in movies, you basically need to do one of the following:
- Write an original story (treatment) or screenplay and story, and receive “story by” or “written by” credit for doing so.
- Write a story (treatment) or screenplay based on underlying material (novels, plays, etc.), but create a substantially different story than the one contained in the underlying material, and receive “screen story” or “written by” credit for doing so.
- Write a story (treatment) or screenplay based on underlying material that you do not have access to (e.g. an out-of-print book).
Given those rules, you can see that the most typical way a writer receives separated rights is by being a credited writer on an original. Another important point is that separated rights are assigned for story authorship, not screenplay authorship. “Screenplay by” isn’t enough to get you separated rights. You need to either receive “story by” for an original or “screen story by” for an adaptation. Since the “written by” credit includes a credit for story authorship, that also qualifies.
Now that we know what you need to do to qualify for your separated rights, let’s look at what they actually are.
Publication Rights: You control the right to publish the screenplay and books based on the screenplay. The studios still have the right to employ a writer to create a novelization of the screenplay, but they must offer that job to you first, and even if you decline to write the novelization, they must still pay you a minimum fee.
Dramatic Stage Rights: This is the one Mr. “Mawton” forgot about. After the release of the film, the company has two years in which to produce a stage version of the screenplay. If they fail to do so, the writer now controls the right to produce a stage version.
Sequel Payments & Credit: If the company produces a sequel to the screenplay (for theatrical or television), the writers with separated rights receive WGA minimums for those sequels. In addition, the writers get a “Based on Characters Created By” credit for theatrical sequels.
Mandatory Rewrite: This one’s sort of a cool one. If you sell or option a spec, you must be offered the first rewrite. What’s interesting is that this separated right is obtained prior to the awarding of credit. Obviously, it ceases to be relevant once the first rewrite is complete.
Meeting With A Production Executive: Works on the same basis as #4. If you sell or option a spec and then do your rewrite, the company must let you meet with an executive before they fire you. This is the “right to grovel for your job,” so let’s move quickly past it to…
Reacquisition: I just wrote an article about reacquisition here, so follow the link for the full skinny on this separated right.
So, now you know. Go impress a lawyer. But more importantly, when you begin a new assignment or take a new job, ask yourself whether or not you’re going to receive separated rights. True, published screenplays aren’t exactly bestsellers, and it’s rare for films to be made into stage plays. Nontheless, it happens (see this new play for instance). What’s more, those sequel payments can come in very handy.
Gracias from a new reader.
So many questions.
Starting with publication rights.
You write an original spec.
You sell it, (cue the chorus of angels singing “HAAAAAAL-lelujah!”), and…
Now the studio owns it. They are the de jure author holding the copyrights since you have now (retroactively) created a work for hire.
(I feel kinda naked using all these lawyerly terms w/o wearing the requisite suit & tie here.
Miracle of miracles it not only gets green lit, but even made, it hits theaters, entertains millions, makes bucket loads of money for all involved (Wa-HOO!), and just to add icing to the cake a check for the sequel & credits rights is practically a forgone conclusion in a few years.
O.k., so lets back up a bit here.
You’re still a couple of months from release of the picture. The director is great, the cast is blowing your socks off, the production values are just killer, life is very VERY good.
At this point, maybe just me, but I’d sure as sh!t be thinking NOVEL.
I mean crimany why not? 60 to 80% of the work is already done. The story is there, the characters are there, it’s got a SOLID beginning, middle, and end, you know where to start, you know where each scene is going, and MORE than that, you’ve got all those fabulous scenes and moments it practically KILLED you to cut to get the story down to a filmic runtime, not to mention all those ideas for scenes you never wrote, but wanted to, and would have, if you had 50 more pages to work with.
Well now you can.
You can indulge. Instead of that one short scene that set-up in a concise visceral visual emotional and filmic way, the fact that your main character is terrified of spiders (which pays off in third act), you can now tell the creepy skin crawling story of why your main character is so terrified of spiders.
This is the part of the story that only you, as the writer, ever knew. The part where your main character and his sister got trapped in the crawl space under their grandfather’s garage as kids, and spent the whole night in the dank dark filth with dozens of spiders crawling all over them, up their pants legs, down their backs, repelling from a lock of hair on their forehead to grip their cheek and skitter down their neck under their shirt, and how they got bitten, every time they so much as moved.
It’s back-story, and as creepy as it is, and as fun as it might be to put to the page, and as badly as you may have wanted to share it with an audience, many times, with a script, when you’re pushing the ‘ol bladder limit, you just can – not – get – to it. It’s just not critical to forwarding the story, other things are, and so it’s gotta go.
Sucks, but that’s life when you’ve got to write short ’cause you don’t have 400 luxuriant pages to spread out in and do all you want, or could do, with a story.
And I’m getting off the point here. (Sorry)
First question -
Since the studio is now the “de jure” author of the story and holder of the copyrights, I’d assume at least, that even though, as the writer with the written by (or story by), you might have essentially “first refusal rights” to any novelization contemplated, but those (for lack of a better legal term) “first refusal rights” do NOT mean you get to just make a call to your lit agent or the head editor of the publishing house you’ve been working with for several years, and tell them to stand by the fax ’cause you’re sending over the submission package for “your” next novel.
‘Cause it ain’t “your” next novel. Not anymore it’s not. You’ve been paid babe. The studio now owns that story, the characters, and any of the unique elements of the world they inhabit.
So fine, if the studio wants a novelization, great, they have to offer YOU the job of writing it first, I get that part… BUT!
(And this is one hell of a critical “but”)
If the studio isn’t interested in doing a novelization, well,.. basically, you’re fu@ked. You got paid, they own it, if they don’t want a novel, that’s it, game over, go home, try to forget those characters, enjoy them in your dreams, but forget ever working with ‘em again, they’re as good as dead to you, so find a bar, have a drink, greave for their passing, and get on with life.
Now if that’s the case, (and I can’t see how it wouldn’t be if the studio owns the copyrights), then I can also see how things could get ugly quickly if you do something like the novelization to a film, if you’ve been working in novels.
If you’re going to do that, it seems to me at least, that if you’ve been working in novels under your real name, you’d BETTER do the novelization under a pen name, and if you’ve been working in novels under a pen name, or even several pen names, you’d better be sure none of those pen names wind up on any novelization of the film.
Here’s why…
If you’ve been working with pretty much ANY publisher for a few years, man, they are NOT going to be happy seeing YOUR NAME (or one of your pen names) under somebody else’s imprint.
Suppose for example that the studio you sold the spec to is a subsidiary of a company that also owns a publishing house (which these days is much more the rule than the exception), and that publisher is a direct competitor to the publisher you’ve been working with for years. Now if the studio owns the copyrights they get to pick the publisher that’s approached. If they pick and cut a deal with a publisher that’s a direct competitor to the one you’ve been working with, and developed a great working relationship with over the years, you’ve got a problem.
The publisher you’ve been working with for all those years has spent plenty of those years doing all they can to turn your name (or any of your pen names) into something that moves books off shelves on a regular basis, not to mention fighting like hell for shelf space at Barnes & Noble for that (or those) names.
So how do you THINK they’re going to feel about seeing that name, a name they’ve put a lot of trouble into making marketable, being used to sell a direct competitor’s books?
They’re going to positively SH!T themselves, and who can blame ‘em?
Thus the second question -
How do “pen names” (or whatever the functional equivalent in film would be) work?
I seem to recall hearing something at least about the idea that Hollywood doesn’t take the same view that print does when it comes to using “pen names”. Something about you can write under a “pen name”, but then you have to use ONLY that pen name, or something like that.
But even that sounds wrong. Harlan Ellison writes under both his real name and
“Cordwainer Bird”. 
Any clue on this works?
Craig will probably have the definitive answer, but since I’m still developing both novels and screenplays I’ve learned a bit about novelizations for the “when.”
A studio does own the novelization rights, or I should say most often and usually… (see below). To produce a novel from a script they will hire someone. You get first refusal. Now if you want to do one and they have no interest in a novel (or in hiring you), they will most likely agree that you can write the novelization on spec and under certain provisions. (As in they still control it) Not sure of the Guild provisions…
On your second point, a couple of things. If you are a seasoned novelist, there is a good chance your agent should be able to get you the Separated Novelization Rights. That’s one of the reasons they are there, and then you write it for your publisher or whomever you want. Actually your publisher would likely be privy to all the proceedings and probably have a say in those rights as well.
But wouldn’t a novelist (who wants to, or already does write screenplays) usually write the novel first? Then sell the movie rights with a first run on the screenplay thrown in as well?
I think some of your questions make sense in laymans terms but wouldn’t play out like that in the industry. As for pen names, both industries are full of them. I think people stick to them to build a following, and keep it. And pen names are often for working in different genres or writing with different “voices.” Joyce Carol Oates writes thrillers under a pen name.
“But wouldn’t a novelist (who wants to, or already does write screenplays) usually write the novel first? Then sell the movie rights with a first run on the screenplay thrown in as well?”
I don’t know Sean, I really don’t. That’s why I’m asking these questions.
And as far as “layman’s terms” go, no ‘fense taken, and none meant, but I know a hell of a lot of novelists, and believe me when I tell you, none of ‘em I know know jack sh!t about film, the film industry or, how ANY of these things work.
You’d be STUNNED, and I mean bowled right over, ass over tea kettle, by most of what novelists think they know about Hollywood.
And if you’re ever at all interested in getting really BAD advice about film or the film industry, THE very best way to get it is to talk to a lit agent, an editor, or most novelists, that haven’t actually had any paid experience dealing with film.
And that’s a fact bro, believe it.
I was actually going to list these provisions in my comments regarding the post on why we’re not treated like playwrights, and the issue of being able to retain copywright.
When your WGA contract provides these rights, it makes me wonder what all the hooplah is about in regards to copywright. These rights seem like they should keep one content (more would be nice of course). Getting paid for a screenplay that you didn’t write and own the copywright to? No arguments here.
A couple of years ago, when I found out about these rights, I was relieved. It doesn’t make up for the abuse writers receive, but they do lean towards “authorship.” Sort of.
MAN this is confusing as all hell!
I’m trying to slog my way through this:
http://www.wga.org/subpage_writersresources.aspx?id=119
It’s over on the WGAw site.
And I get down to this:
“a. Publication rights. The writer obtains the right to publish the script, or book(s) based on the script, subject to a holdback period. The Company, however, has the right to cause a novelization to be published in conjunction with the release of the film, for the purpose of marketing the film. If the Company wishes to cause a novelization to be published, it must first approach the writer(s) who has Separated Rights to see if the writer(s) wants to negotiate with a publisher regarding the rights and services for the novelization. If the writer with Separated Rights does not want to write the novelization or fails to conclude a publishing deal within prescribed timeframes, the Company may publish the novelization but must pay the writer not less than WGA minimum for the right to publish.4 (Article 16.A.3.a.(3))
Trying to parse this-
It seems as though, at least at first glance, that if you qualify for Separated rights, then, after the “hold back period” expires:
1) You do not have to seek the studio’s permission (as the “de jure” holder of the copyrights), to publish books based on the screenplay.
2) If you decide you want to seek out a publishing deal for a book based on the screenplay you can in fact approach any particular publishing house you want.
(I get the impression that under these particular conditions the studio, basically, doesn’t give a damn about “books” or who you do or don’t cut a publishing deal with. That’s your business if you want to go to the trouble, and they’re not interested in getting involved in any of the particulars. It’s off their radar screen, and they’re happy to keep it that way.)
HOWEVER (cripes these “howevers” pile up fast)…
If the studio wants to “cause a novelization to be published in conjunction with the release of the film, for the purpose of marketing the film”, then they do have to ask you if you want the job of writing the novel before asking anyone else to do it, but what’s *not at all clear” are things like…
1) Who cuts the deal with a publisher? Does the studio decide which publishers are approached? Or does the writer that’s accepted the job of writing the novelization have a say in that?
2) Who collects the royalties from the publisher? The studio (who then passes a negotiated % of those royalties on to the writer)? Or does the check go from the publisher directly to the writer? If the check goes directly from the publisher to the writer, does the writer have to then pass along some negotiated % of those royalties to the studio? Or do all the royalties go to the writer?