If you’re a writer and you’re about to sign a publishing agreement with any type of publisher, it is imperative that you have the contract reviewed by a Book Option and Purchase Agreement Attorney if you want to have any chance of having your book optioned for a film or television movie, special or series.
There are a number of pitfalls faced by authors faced with signing a publishing agreement that hasn’t been reviewed by an experienced literary lawyer, among which are the following:
Publishers know that first time authors as a rule either don’t have the resources or don’t realize the importance of having a publishing contract reviewed by an experienced publishing attorney. As a consequence, they will provide in the contract they send you that on signing their contract, you explicitly agree to allow them an option to publish not only your next book, but any sequels, expansions or abridgments of your first book.
Even worse, they will provide that you agree not to write any other book on the same subject which is likely to affect the sales of your first book.
There are ways around such provisions, but even they can result in fighting expensive litigation brought by a publisher to prevent you from getting out of your contract with them when you are no longer naive or enamored with your publisher after seeing how little effort they’ve made to publicize your work and market your first book.
However, when it comes to being able to obtain an option of your book for a film or television movie or series, publishing contracts can be even more oppressive when not reviewed and negotiated by a literary attorney in ways an author would never dream of when reading their publishing agreement.
Book Option and Purchase Agreement Attorney Sebastian Gibson
In my capacity as a Book Option and Purchase Agreement Attorney, I have had the pleasure of reviewing not only a Short Form Option Agreement signed by an author but also a subsequent Long Form Literary Option and Purchase Agreement provided to the same author after the first two options contained in the Short Term Option Agreement expired. This is unusual in my experience, but as an option agreement attorney, you never know what an author will bring into your office when they call to have a book option reviewed.
The first two options contained in the Short Form Literary Option and Purchase Agreement which the author had already signed had expired and the option and renewal were each for two years. Small option advances had been paid but the options given to an independent producer had not been exercised. Consequently, the author was provided with a second Option and Purchase Agreement.
This second option agreement again provided for two additional, two-year options for the producer to exercise at their choice in time, if ever. But instead of the option amounts increasing, the amounts being offered to the author decreased to only a small percentage of the amounts of the options in the first option agreement, an indication the producer’s resources might be very limited.
Given that even after an option is exercised, it can commonly take from 3 to 8 years, if not longer before a book will be made into a motion picture given the difficulty of getting financing, commitments by directors and major stars and finally getting the green light to make the film, the author would likely not see any considerable reward for her book being made into a motion picture for another 10 to 15 years, if at all.
If an author is already eligible for Medicare and has already given the producer 4 years (two 2-year options in the first Short Form Option Agreement), it the author provides a producer with another 4 years (two more 2-year options), and signs a subsequent Book Option Agreement with an unlimited time to get the film produced (lets assume 8 years if the author is lucky) with no right to have her rights reverted back to her at any point in time, no matter how many years the producer tried to get the film produced, the author could be reaching her eighties before she sees a reward for her writing efforts. Even if the author’s book was produced say in 8 years, with no right to obtain motion picture profits as opposed to the producer’s illusory profits, it might require an additional three years of litigation or more to obtain.
If you add up what an author can be asked to give an independent and relatively small budget producer for only a few thousand dollars for eight years of options, even if the producer’s fourth option is exercised, and the film made eight years later, the author may well be facing a long delay of many, many years before the author ever sees a pot of gold at the end of the rainbow.
The moral of this analysis is that an author should never, never grant options of such length (8 years total), for so little money, with so little recourse to get their rights reverted back to them. It is imperative that any option agreement be reviewed and negotiated by an experienced entertainment and publishing lawyer who can ensure, as much as it’s possible in today’s entertainment industry to see that an author receives a fair accounting and reward for their hard work in writing a literary work that can become a great motion picture or television series.
In my opinion as a Book Option and Purchase Agreement Attorney, a book author should sign a literary option which provides for no more than 12 to 18 months for the first option, 6 to 12 months for the second option and if the producer has still not exercised either option and paid the purchase price within the specified amount of time of the first Option and Purchase Agreement, the option agreement should provide that the author retains all rights and they should walk away from this producer and find another either by themselves or with the assistance of a film agent. If a producer has so little clout and resources that they want another four years of options for only a few hundred dollars, run, don’t walk.
If the producer has to their credit only one or two films produced for a video on demand entity such as Amazon, Netflix, Hulu or Apple TV and their film(s) received less than stellar reviews, this is a major red flag that an author hoping that the book option agreement provided to them will result in a highly profitable major motion picture will be severely disappointed.
A Book Option and Purchase Agreement Attorney experienced in reviewing, negotiating and drafting book option and purchase agreements can do their due diligence and investigate the track record of a producer to see whether they have the clout to obtain financing, distribution, to convince major actors and a name director to commit tot the project, or if the producer is likely to only have the fiances and clout to make a small budget film on only a slightly greater scale than a student film in which the producer is also the lead actor, the director and the producer.
Some of the key provisions and terms to look out for in a Book Option and Purchase Contract are whether the key terms are defined. If the agreement refers to the purchase price as being a floor and ceiling amount with some percentage of an undefined “direct cost budget” or of the producer’s net profits defined and accounted for and paid in accordance with the Producer’s standard definition thereof, but which is not defined in the contract and the Producer has so little experience that they have no standard definition, the author has very possibly been given the right to receive nothing in the way of a percentage of the picture’s profits, net or gross. In that case, the floor purchase price is the most the author will likely ever see for waiting as much as 20 years to see a film made of their literary work, if at all.
Authors must understand the difference between being paid a percentage of the producer’s net proceeds and he picture’s net profits. They can both be illusory, but if defined properly and explicitly, the second term has at least a chance of providing the author with a share of the profits of a film that makes money, and even then the term must be explicitly defined with the author’s interests in mind.
If the Producer hasn’t seen the author’s Publishing Agreement with the Author’s Book Publisher, the Producer will provide in the Book Option and Purchase Agreement publishing rights the author has already given away to the Book Publisher.
An author who signs such a Book Option Agreement with the Producer will be breaching their Publishing Agreement.
Additionally, the Producer may be attempting to obtain other rights already given away by the author such as the right to Publish Print Editions such a coffee table books, recorded or audio rights, radio rights and rights to sequels all of which may already be in the hands of the Publisher.
A Book Option and Purchase Agreement routinely provides that the author represents they have these rights. While an experienced Producer will seek to have the Publisher sign a release providing that the author has these rights before making the author’s book into a movie, they are less likely to obtain such a release before the author signs the Book Option and Purchase Agreement in which they have now breached their Publishing Agreement.
Literary Option Agreement Lawyer Sebastian Gibson
In a perfect world, the author never lets their rights languish in the hands of a producer who can’t or won’t be able to get their film or television project be made and the author holds onto their print rights (to the extent they haven’t already given them away to their Publisher), the author does not breach their Publishing Agreement by giving rights to the Producer they’ve already previously given away, and the author holds onto electronic, audio, sequel, cable, syndication, pay per view, video, DVD, music, interactive, incidental, subsidiary, merchandising and dramatic stage rights. (Unfortunately for the author, many of these rights, if granted to a producer, help the producer get financing, production and distribution).
In a perfect world, all of these things are also provided in the Literary Option and Purchase Agreement:
All rights in the book revert to the author if the project is not produced within a specific number of years.
The Purchase Price once the Book Option is exercised is fair and any percentages of profits are defined in such a way that the writer obtains a fair percentage of the picture’s profits and the right to an accounting that can be verified without costly litigation.
A percentage of net profits is almost always going to be zero. If the author of a work is to receive a fair shake, they need to be given a percentage of the picture’s gross profits.
The Option amount should be 10% or more, and can be much more depending upon a number of factors, of the purchase price. Renewals of the first option should be more than the first option period and both option periods should be considerably less than two years each.
The purchase price for an option for television is calculated differently than when an option is exercised for a motion picture. However when a book is optioned for a television series, an author can and should be richly rewarded. Think in terms of royalties.
The author obtains an agreement that the Producer will consult the author on major plot and character changes (and if the book is a about a boy who goes to a wizarding school and eventually defeats who shall not be named, the author also has the right to read every script, make changes, choose the cast and provide input during every step of the project).
An author never gives free or nearly free options to a Producer. Either the Producer demonstrates they are financially solvent enough to invest their own considerable finances in the project or they can’t or won’t.
Subsequent options are conditioned on progress in the production such as a completed screenplay, written commitments from a lead actor and name director, and/or a development agreement with either a studio, television network or entity such as Amazon, Apple, Hulu, HBO, Netflix or the like, or with financiers.
An author only gives a producer one option extension, not three or more.
The Purchase Price is a percentage of the final written approved budget of the picture, excluding contingency, completion bond fees and financing fees.
An author never signs a Book Option and Purchase Agreement with a producer who has no budget and who is producing a self made production without any major financing.
The author never assigns rights to a producer before they pay the purchase price. They only grant an option and a right to renew the first option contingent on progress and payment of a higher price for the second option, with the floor of the purchase price being paid within 30 days of the Producer’s exercise of the option and the remainder within thirty days of the first day of principal photography.
The project’s final written budget, as defined, excludes overhead.
In addition to the author having a purchase price with a floor and ceiling based on a percentage the final written approved budget, the author receives 5% of the Picture’s Net Profits, properly defined.
The author receives a set up bonus when the producer enters into an agreement for the development or production of the book, with a studio, TV, cable or other network or entity such as Amazon, Apple, Hulu, HBO, Netflix, or the like, or with financiers.
The author receives box office bonuses as the picture generates levels of box office gross receipts.
The author receives a Best Seller Bonus if the author’s book gets listed on the New York Times Best Seller List or another list.
If the project is not made within 5 years after the Producer exercises an option, all rights revert back to the author.
The Producer, Studio, Television Production entity and all subsequent licensees and distributors don’t screw up the credit being given and provided as provided in the Purchase Agreement to the author in advertising, publicity and whenever the motion picture or television project is shown to the public.
In the event the project isn’t made within a set number of years, not only do all rights revert back to the author, but the author has the power as Producer’s Attorney-in-fact to execute assignments and documents to effectuate a reversion of rights to the author.
The Book Option and Purchase Agreement provides for mediation and if that does not resolve a dispute, for arbitration before a retired judge in California with experience in matters involving publishing, film, television and entertainment matters who has been named one of the top 100 neutrals by a prominent published legal newspaper.
All of the above advice applies whether you live in the Coachella Valley, Newport Beach or elsewhere in Orange County, San Diego, Malibu, Los Angeles, San Francisco, or anywhere in California. The same advice applies if you live anywhere in the U.S. or throughout the world and you’ve been offered a Publishing or Author Agreement, or having previously had a book published, you’ve now been offered a Book or Literary Option and Purchase Agreement for your book to be turned into a motion picture or television project.
If a Producer in Los Angeles, Hollywood or anywhere else in California has offered you an Option Purchase Agreement, Book Option and Purchase Agreement Attorney Sebastian Gibson is the entertainment attorney and the book option and purchase agreement lawyer to call in order to have your publishing agreement and book option reviewed.
California Book Option and Purchase Agreement Attorney Sebastian Gibson has over 40 years of experience as an attorney in California and in London. With law degrees both in California and Great Britain, Book Option and Purchase Agreement Attorney Sebastian Gibson has been awarded a rating of “Superb” (their highest rating) by Avvo, which rates attorneys across the nation. He has also been named a Top Lawyer for the last 13 years in a row by the prestigious Palm Springs Life Magazine.
For over 40 years, Book Option and Purchase Agreement Attorney Sebastian Gibson has focused on the entertainment industry, first as a musician, international performer and screenwriter, and for the last 40 plus years as an entertainment attorney in London and in California. Today, he is a highly recognizable attorney in a number of facets of the entertainment industry including all aspects of modeling and publishing. Today the firm represents models and writers throughout the world and a wide range of artists involved in the entertainment industry in California.
Book Option and Purchase Agreement Attorney Sebastian Gibson is a former musician and stage performer as well as a published author. At the age of 16 he graduated early from high school to join an international musical show in which he performed on the stage internationally and on national TV with an Oscar-nominated actress. He later wrote and recorded a musical in London where he also practiced law for a number of years in London with Wall Street firms.
After leaving the international cast of a stage show, Book Option and Purchase Agreement Attorney Sebastian Gibson went on to obtain his undergraduate degree and graduate cum laude at UCLA, and then to obtain two three-year law degrees in only four years, the first at the University of San Diego School of Law and his second law degree at Cardiff University in Wales where he graduated magna cum laude.
After practicing law first in San Diego and then in London for a number of years, in 1984, Sebastian Gibson opened his own law firm in Palm Springs and today has offices in Palm Desert and Newport Beach. On occasion he also meets with clients at his private location in the Malibu area, in London or elsewhere as needed. In 2012 he wrote his first published novel which received rave reviews and today is at work on a second. Among the superlatives thrown his way, Sebastian has been called “Brilliant and A Legend.”
No matter what state in which you live and have written a book for which you’ve been provided a literary option and purchase agreement which may have a title such as an Option Agreement, a Short Form Option Agreement, a Long Form Option Agreement, a Purchase Agreement, an Exclusive Purchase Agreement or an Option and Purchase Agreement by a Producer in California, call Book Option and Purchase Agreement Attorney Sebastian Gibson.
In addition to reviewing Book Publishing Contracts and Literary Agency Contracts, California Entertainment Lawyer and Publishing Attorney Sebastian Gibson not only drafts, reviews and negotiates both Book Option Purchase Agreements but also drafts, reviews and negotiates Book Shopping Agreements for authors whose books producers want to develop into a film or television project.
You can reach Book Option and Purchase Agreement Attorney Sebastian Gibson in either of his California offices by calling (760) 776-1810 or by email at SgibsonEsq@aol.com Sebastian Gibson has over 45 years of experience and has been named a Top Lawyer by the prestigious Palm Springs Life Magazine for 13 years in a row.
