The Skinny On "Separated Rights"
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.
Then, according to that #2, does Peter Jackson (or anyone else, for that matter!) owns “some” right to the Toronto’s staging of a theatrical version based on LOTR, trilogy or story and certainly re-written otherwise?
Or is it still Tolkien’s estate?
Separated from initial holder or who actually bought control of these rights.
Craig,
To split hairs, that don’t need to be split, I think that “three of those things are not like the others.” Specifically, #4,5 & 6 seem to me to be contractual rights not derivative works. As I understand how you’re using the term, a seperated right represents a right to produce something that would normally be considered a “derivative work.” I’m not sure if the end result is any different if we call them roses—but I’m curious why you consider them derivative works. Or am I mistaken and that “seperated rights” is just being used as a catchall here?
Cheers, T
Sylvain:
No, Tolkein doesn’t receive separated rights for the screenplays of The Lord Of The Rings trilogy because they are typical adaptations, rather than original works.
Trevor:
“Separated rights” don’t just cover the right to prepare various derivative works. The term is, indeed, a catchall.
C.
Forgive my density.
Are these separated rights mine by default (so long as I meet one of the three criteria) or do they have to be negotiated at the time of sale?
And what if the adapted work does not have a story? Can I then get the credit “Story By” or do I have to settle for “Screen Story By”? The latter seems to imply that I adapted a story that already existed for another medium.
Trey
As long as you meet the criteria and your contract is covered by the MBA, they are yours, as they have essentially been negotiated on your behalf through collective bargaining.
The rules defining “story by” and “screen story by” are a bit tricky. The simplest definition is that “screen story by” is for a story that is a significant departure from the story contained in the adapted material, and “story by” is to demarcate authorship of a story that is not significantly different than that contained in the adapated material.
If the adapted work is of a non-story nature, the arbiter can determine whether or not “story by” or “screen story by” is appropriate. I’ll probably do an article about those arcane rules soon. This stuff is mind-bendingly annoying sometimes. :)
Thanks, Craig. This is all kind of fascinating. I had no idea there was a real difference between “screenplay by” and “written by.”
Michael:
I was just talking about that fact yesterday (that people don’t know the difference) with our head of credits.
The easiest way to put it is that if you’ve earned “story by” credit and “screenplay by credit”, they simply combine the two and call it “written by”. However, you can’t have “written by” one guy and “screenplay by” another guy on the same movie.
So if I wrote the story and half of the screenplay, and you wrote the other half of the screenplay, it would be: story by Craig Mazin, Screenplay by Craig Mazin and Michael Brown.
If you hadn’t been involved, it would simply be “written by Craig Mazin”. Fun, huh?
Craig My agts urge me to adapt my own play (an award winner from Kennedy Center) into a screenplay, but the screenplay is a little different as you would expect. If agt sells my screenplay, do I lose rights to my own play? If another writer comes own, does s/he own rights to my play? I’m so confused. Thanks.
LW:
You own the copyright on your play. Therefore, you control the right to prepare a derivative work from that play…in this case, a screenplay.
If you sell the screenplay, that’s all you are required to sell. The studio will only own the screenplay, and not the play itself. The studio may ask for exclusive film rights to the play, i.e. they may say, “Sell us this screenplay AND agree to not license anyone else to prepare a screenplay of this play.”
Subsequent writers will write versions of your screenplay (which the studio will own outright). Neither they nor the studio will own the rights to your play.
Nice explanation. As I understand it, a determination of separated rights can also impact important negotiated terms of writers’ contracts well beyond the minimums of the MBA. For example, the amount of contingent compensation (money you get if the movie is actually produced) often depends on whether you are determined to have separated rights.
Fuck you C.
I didn’t forget about separated rights. Ted just acts like they are a logical result of the studios stealing copyright from screenwriters. (Okay, maybe it wasn’t Edison but the West Coast mob. I guess Edison didn’t want to cut them in on his deal and went too far.)
Why do we get such separated rights for plays on original screenplays? (And only after two years.) Was it one of the ten commandments? There is nothing logical about copyright or tax code. It simply is a question of who has the power to screw who, legally.
And original screenplay is not a work for hire. We just pretend it is in order to sell it.
I can’t believe it took you THIS long. :)
The work for hire bit isn’t really a lie. We don’t pretend that it’s a work for hire when we write it. However, when we sell it, we acknowledge that it is commissioned for use in the making of a motion picture.
That is to say…it wasn’t commissioned to be written, but rather, we are accepting money so that it may be commissioned for use as something other than what it is. As such, it becomes a work made for hire. At least, that’s my understanding.
See you Monday night, yo.
Robert Rodriguez and Frank Miller co-directed Sin City, did they? Even integrating a third on the deal! Does that fact include similar “separated” rights of credit since DGA forced one into resigning his license?
Split creative control and off… we go wild and mild again!
And along with by have whole new meanings all of a sudden. While putting writers’ separated issues (as discussed above) in quite a puzzling perspective.
Sylvain:
Robert Rodriguez resigned from the DGA so that he could co-direct with Frank MIller.
Craig —
Care to extrapolate on double-meanings or the initial assumption i was trying to make with multiple directing shares over credit?
Under DGA or WGA rules which proves collaboration can actually dump anyone right off such recognizable work(s).
Re-writing the story of Sin City or re-directing it, in fact.
J.F. —
I really do not understand what you mean by “studios stole copyright from screenwriters.” Copyright in what? There was a never a point in time when screenwriters had a legitimate claim to copyright in the movies; the copyright in any work created in the course of employment is owned by the employer, a legal principle that far pre-dates the invention of movies and screenplays; a studio cannot acquire the copyright in a screenplay written outside any employment unless the screenwriter agrees to the price and terms offered by the studio.
Since none of those things can possibly be considered “stealing” copyright from screenwriters, and since you consistently suggest that, in some way, the law itself was jiggered to accomplish this theft, please, could you explain to me:
What part of U.S. copyright law allows or even mandates that studios can take ownership of the copyright in screenplays against the will of the screenwriters?
-
There’s a newish “kinda-almost-separated” right that you might want to look into. It has to do with derivative works created for theme park attractions.
WGA Legal can fill you in more fully than I can — ask them about the Waterworld case at the Uni theme parks.
Mr. Pabulum:
Thanks for the tip. I’ll look into it.
C.
My pleasure.
By the way, I’m not Mr. Pabulum; I’m just one of his lowly associates.
Mr. Pabulum doesn’t know how to work the internets.
Hello,
I have a complicated situation. My father, a WGA member, died recently and we just received a call from a producer who read one of his novels and wants to option it. The producer’s attorney is perhaps the most well-known in Hollywood. It has been so long since my father published anything he no longer had an agent or attorney, although one of his novels was made into a Paramount movie in the 60’s.
What the producer didn’t know at first was that my father also wrote a copywrited screenplay of the novel. My father owned the copyright to the novel as it had reverted back to him.
We plan to STRONGLY push for screenwriting credit for my father, even if it is shared, as this was a big issue to him, and also for residuals. Since the screenplay is not “original” per se, but IS based on his original novel, is the estate still entitled to residuals and how does this situation effect separated rights?
Thanks, Chuck
Chuck:
I’ll give you my layperson’s opinion, but this is something worth discussing with the credits department at the Guild.
First off, when you say that copyright reverted back to him, do you mean the copyright for the screenplay? The copyright for the novel was never transferred (they never are). Rather, your father either licensed the film rights to the book at some point, or wrote a spec screenplay of the book, or was employed by a studio to write a screenplay.
If your father was employed to write the screenplay adaptation of the novel, then he will mostly likely be a participating writer in any ensuing screen credit determination.
If he just wrote it but didn’t sell it, then it’s just as likely that he will not be considered a participating writer.
Generally speaking, screen adaptations of novels do not confer separated rights unless the screenwriter(s) craft a story that is distinctly different from the story of the underlying novel.
Typically, novelists receive a “based on the novel by” sort of credit. Their compensation for licensing the film rights is determined on a per-contract basis, and novelists are not protected or restricted by any collective bargaining agreement.
Residuals are entirely the product of our collective bargaining agreement. As such, if you wish to retain some kind of stake in the profits of the resulting movie, you must negotiate those as part of the licensing of the film rights of the novel.
Ok, I will sign your blog. I really love your site.
Online Poker
Dear Artful Writer:
I am trying to gain stage play rights to a book about my life that was made into a film in 1998. I am wonderfing if Separated Rights might be a wedge for me to gain that right back which the studio has assumed. Although there is no mention of stage plays in the deal contract, there is this line under OTHER RIGHTS in a final paragraph:
“All other rights of every kind and nature whatsoever not specifically reserved by owner.”
The only reserved rights for me in the contract has to do with publication of the book the film was based on.
Since the release of the film, the studio has expressed no interest in doing anything with the property whatsoever. When asked, through my agent, for release of the stage play rights, there has been no answer other than the wrong person is being asked. Who would be the person to ask? No one seems to know. No one seems to want to talk about it at all. They would rather I just went away.
Do you think separated rights might work for me to claim stage play rights?
Thanks for all you do.
Homer Hickam
Craig: If I wanted to write a new screenplay, based on a 1945 RKO movie. Could I?
Also if the names are changed and the storyline is different but has basically the same plot. Can I do it?
Ric:
See, this is why I leave comments open, even months after publishing these things. :)
Obviously, the issue isn’t whether you can write something, it’s whether you can sell it (i.e. exploit it), but I assume that’s implied in your question.
My guess is that RKO pictures have been sold. Film libraries are real assets. It is rare that they are orphaned. Furthermore, all films made in the 40’s are still covered under the original copyright (or transferred copyright).
However, rights owners will sometimes license remake rights for little or nothing up front, because the property isn’t doing anything anyway. A good lawyer should be able to track down who owns the rights. At that point, you could attempt to interest them in your script.
One things for certain: no rights rest with the original screenwriter, as separated rights did not exist in 1945.
Ric (Craig, too):
A little research (that damn internet is amazing) shows that RKO Studios is now RKO Pictures LLC and is owned by Dina Merrill and Ted Hartley and primarily does re-makes of all the RKO films in their library, of which the year 1945 would be included.