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Entertainment Contracts 101: Creator Owned vs. Work for Hire Deals

Added on by Gamal Hennessy.

 

by Gamal Hennessy

In the creative marketplace, one of the first things that an artist needs to learn is the difference between a license agreement and a work for hire agreement. These are fundamentally different animals and signing the wrong one at the wrong time could be devastating to your future.

Definitions

work for hire (WFH) is an agreement where you offer your creative services to intellectual property that you do not own in exchange for a fee.

license is an agreement where you give someone else the right to distribute your intellectual property in exchange for various types of payments.

Example

WFH: You are an artist. Marvel Comics hires you to draw an issue of Spider-Man. You do the pencils. They give you money.  You walk away. You don’t own Spider-Man. You don’t even own the pages you created. Your name will appear as the artist, but that’s as far as it goes. This is pure mercenary work.

Creator Owned License: You are an artist. You have an idea for a new story. Dark Horse likes it and gives you a CO deal. You create the book. You might even eat the cost of creation. They sell the book. You get a cut, they get a cut. When you walk away, you walk away with the property. You can do whatever you want with it because you own it.

Historical Example

Frank Miller offers one of the best examples of the difference between these two types of deals. In 1986, Miller signed on with DC to release The Dark Knight Returns. That book reanimated the Batman franchise, solidified a darker vision of comics across the board and was instrumental in redefining the genre of super hero movies. But at no point could Miller claim to own Batman. He had no rights to any of the subsequent film, video game or merchandise revenue that came out of the Batman property. To the best of my knowledge, he got a page rate and he got credit for doing the work. That’s it.

Actually, that’s not it. Because he got so much exposure and critical acclaim for the work he did on Batman (as well as other properties) it was much easier for him to land creator owned deals later on. Frank Miller owns most if not all of the Sin City and 300 franchises. He had major input, control and license fees from those books and subsequent films. That was money he was entitled to because he owned the rights to that intellectual property.

Take Away

There are several successful writers and artists who have done work for hire deals first to establish themselves in the industry and then done creator owned deals once they had the right leverage. Many of them jump back and forth from one type of deal to the other depending on the project. Jim Lee, Todd McFarlane and Greg Rucka are all good examples of this. I’m not suggesting that an artist should never sign a WFH. I am suggesting that you need to know the difference between the two and make sure you are not signing a WFH for your own property because then you are signing away all your rights for little or no money.

And keep in mind, just because a contract says Creator Owned Agreement or License Agreement on the top doesn’t make it a creator owned agreement. It is the language in the agreement and the way the rights are divided that is the key to the contract. When you analyze your agreements (or ask me to do it) always keep in mind who has control over the property. This will be vital when your idea becomes a movie.

Best

Gamal

PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE A LICENSEING OR INTELLECTUAL PROPERTY ISSUE, DISCUSS IT WITH YOUR LEGAL ADVISOR OR CONTACT C3 AT gamalhennessy@gmail.com FOR A FREE CONSULTATION.

Losing Control and Loving It

Added on by Gamal Hennessy.

By Gamal Hennessy

Reading isn’t the main media for storytelling in the 21st century. Film and TV have replaced the written word as the primary source of entertainment. This means if a writer wants to reach the widest audience possible, the best thing she can do is have her story optioned for adaptation into a movie or TV series. Stephen King, Frank Miller, J.K. Rowling and Joss Whedon are just a few authors who ascended to the next plateau of success by jumping from the page to the screen.

But there is often an inverse relationship between commercial success and creative control. While some creators have enough leverage in TV and film to have a major impact on the transformation of their stories, many don’t. Even the authors who do get to write the screenplay or act as producers give up much of the control over their story’s direction. This occurs for several reasons:

  • Collaboration: Writing is often a solitary art. TV and film almost always have various layers of artists, each with their own talents and vision for your story. When screenwriters, directors, actors, editors and dozens of other people put their stamp on your story, what comes out on the screen will be very different from the image you created sitting alone at your desk.
  • Transference: Different media lend themselves to different types of conflict in a story. (See What is the Best Media Outlet for Your Writing) Prose has a superior ability to explore internal conflict. Theater has a strong emphasis on interpersonal conflict and film has the ability to render extra-personal conflict to an amazing degree. When your book becomes a film, the story has to be adapted to fit the new medium.
  • Time: Your book might take a reader hours, days or weeks to finish. You could write one hundred or two hundred thousand words and fill your story with flashbacks, subplots and other tangential elements that work perfectly on the page. But even a long movie is less than three hours. A TV series might only be fifteen episodes. A lot of material from your book might have to be discarded to fit the time constraints of the screen. Your story might need to be altered yet again to create a logical connection between the remaining elements. Readers of the book will, and often should, see a different story on the screen than they did on the page.
  • Cost: Ideas are free. Words are almost free. You can imagine and write about any scenario, setting or creature you want without worrying about cost. But locations, special effects and actors are not free. The things you imagine might cost millions to translate onto the screen. Production budgets rise with each new summer movie season, but your story can and will change to fit the budget constraints of film production.

There are, of course, extremes on both sides of this experience. Frank Miller’s stories are known for their dogmatic adherence to the source material. Watching Sin City or 300 is really just watching the graphic novel in motion. But authors like Barry Eisler have a different experience. Although he’s been a best-selling author for more than a decade, he doesn’t expect to have much input on the adaptation of his John Rain series by Keanu Reeves. In his own words “If they think my involvement will be useful, I’m sure I’ll be involved. Otherwise, I’m looking forward to making popcorn and enjoying the show like everyone else. Either way, I’ll be happy.”   

Keep in mind, it is rare for an author to get their book optioned for a screenplay or TV series in the first place. There are thousands of screenwriters pitching work created specifically for the screen and they often take precedence over novels. Most books don’t translate well enough into the mainstream to justify the financial risk, so often only the runaway bestsellers (or books made in the same style) find their way to movies. For the thousands of authors who never find financial success in books, there are thousands of profitable book authors who never make it to the screen. And authors who navigate those hurdles will often lose much, if not all, of the creative control over their work. But in this scenario, popularity and revenue can replace creative control. Just be sure your contract gives you enough compensation for you to sit back and enjoy your work on screen with everyone else.

Have fun.
Gamal