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in Filmmaking
on Mar 14, 2007

To complete my series of posts about author Jonathan Lethem and his recent work thinking about — and practicing — a sort of “open source” approach to creative rights management, here’s news of his new novel, You Don’t Love Me Yet, and how he’s handling the film rights.

From his website:

On May 15th I’ll give away a free option on the film rights to my novel You Don’t Love Me Yet to a selected filmmaker. In return for the free option, I’ll ask two things:

I’d like the filmmaker to pay (something) for the purchase of the rights if they actually make a film: two percent of the budget, paid when the completed film gets a distribution deal. (I’ll wait until distribution to get paid so a filmmaker without many funds can work without having to spend their own money paying me).

The filmmaker and I will make an agreement to release all ancillary rights to the film (and its source material, the novel), five years after the film’s debut. In other words, after a waiting period during which those rights would still be restricted, anyone who cared to could make any number of other kinds of artwork based on the novel’s story and characters, or the film’s: a play, a television series, a comic book, a theme park ride, an opera – or even a sequel film or novel featuring the same characters. For that matter, they can remake the film with another script and new actors. In my agreement with the filmmaker, those ancillary rights will be launched into the public domain.

If you’ve been reading this blog, you’ll remember that Lethem recently released the film rights to a swatch of his short stories for free on a non-exclusive basis to makers of short films and plays. In that announcement, and in his great Harper’s essay, linked to in my post below, he discusses what has inspired his offer. Again, here’s Lethem from his site:

Lately I’ve become fitful about some of the typical ways art is commodified. Despite making my living (mostly) by licensing my own copyrights, I found myself questioning some of the particular ways such rights are transacted, and even some of the premises underlying what’s called intellectual property. I read a lot of Lawrence Lessig and Siva Vaidhyanathan, who convinced me that technological progress – and globalization – made this a particularly contemporary issue. I also read Lewis Hyde’s The Gift, which persuaded me, paradoxically, that these issues are eternal ones, deeply embedded in the impulse to make any kind of art in the first place. I came away with the sense that artists ought to engage these questions directly, rather than leaving it entirely for corporations (on one side) and public advocates (on the other) to hash out. I also realized that sometimes giving things away – things that are usually seen to have an important and intrinsic ‘value’, like a film option – already felt like a meaningful part of what I do. I wanted to do more of it.

Lethem’s proposal has already generated buzz. Bloomberg News has a story with more details, including news that Lethem, his wife Amy Barrett, and Maria Full of Grace director Josh Marston are scripting Lethem’s last novel, The Fortress of Solitude, for Marston to direct.

From Bloomberg:

“In terms of mainstream filmmaking, this is completely unprecedented, and if it actually happens it would be a groundbreaking model,” Creative Commons Creative Director Eric Steuer said in a phone interview about Lethem’s proposal. “For a writer of his clout and prominence, it’s really cool that he’s the one to take the charge on something like this.”

Variety, in a piece by Stephen Zeitchik, has more in a piece that tries to put a pecuniary spin on Lethem’s offer:

For You Don’t Love Me Yet, his L.A.-based, music-themed novel that sees release this week, Lethem will give away the film option to a “select filmmaker.” By eliminating the option fee, he hopes he also has removed a deterrent faced by some producers.

But in what amounts to a variation on a backend deal, he wants to be paid 2% of the budget once the pic’s made — and that’s no small sum, if the budget starts to climb.

Arrangement gives Lethem control over who would make the film; he says he hasn’t decided on anyone in advance or made a secret deal with a producer.

For those not familiar with book rights deals, it’s pretty typical to negotiate in addition to an upfront option fee, which gives the holder the exclusive right to develop a script and raise production financing for a specified period of time, a “purchase price” that is usually paid when the film goes into production. This purchase price is most often a percentage of the budget (anywhere from one to three or four per cent). So, Lethem’s deal points on this issue aren’t, as Variety seems to imply, that out of the ordinary.

(Often there will also be a “ceiling” on the purchase price, but for a novelist of Lethem’s stature that would be at least $400,000 or $500,000, which equates to $16 or $20 million film budget — quite a large one for the kind of character-based film this novel would most likely generate. And, significantly, most book deals come with a “floor” — a minimum amount the book can be bought for. Lethem’s doesn’t. So, I really don’t think he is scheming for some kind of hidden upside here.)

While all of the news reporting has focused on the offer of a free option and the release of the ancillary rights after five years, I think the media has missed some of the other crucial elements of Lethem’s offer.

1) Lethem has made the proposal himself and is negotiating the rights himself. Rather than require filmmakers to contact his agent and go through a lengthy negotiation, Lethem has streamlined the whole process and is, through his assistant, presumably deciding all of this personally.

2) Lethem has pre-announced a May 15 date by which he’ll give away the rights (although he is reserving the right to extend the deadline for various reasons he details on his site). Instead of trying to engineer a bidding war type situation in which an agent goes back and forth between various producers, Lethem, by removing the financial aspect and by setting a firm date, is putting the focus on the creativity and persuasiveness of the filmmaker.

3) Finally, and most importantly — he is giving away the rights to a filmmaker. In Hollywood, most film rights are bought by producers who acquire a property and then bring in a succession of writers and directors who pitch their “takes.” A writer is hired who (sometimes working underneath an attached director) generates a draft and a polish. That writer is let go; another writer does a draft, sometimes starting from scratch. The attached director often moves on to another project, and the cycle continues ad infinitum. Lethem’s giving the rights away to a filmmaker who is genuinely enthused about the work, who has good ideas of how to realize it, and who is free to make it for $50 million with a studio or $50,000 with his friends — that is his truly radical idea.

As for the ancillary rights release, I’m with Lethem on this. Years ago my partner Robin O’Hara and I produced a film directed by Jesse Peretz based on Ian McEwan’s First Love, Last Rites. McEwan and his agent were extremely reasonable about the terms but insisted on non-exclusivity after seven years. We figured, who else is going to make a movie about two young lovers and the rat that lives inside their apartment walls? We agreed to the terms, and several (more than seven) years later two young film students from Sweden contacted me because they wanted to make a 40-minute version of the same story. Although they didn’t have to, McEwan and his agent had them contact me as a courtesy. I was happy to wish them the best with the proviso that they send me a copy of the film when it’s done. I got it not too long ago, it’s very differrent, and I think it’s cool that two versions of the same McEwan story exist in the world.

If you are a filmmaker interested in the film rights to You Don’t Love Me Yet, email jonathanassistantlucy@gwi.net.

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