LEGAL EASE: OPTIONING A FOREIGN FILM FOR AN ENGLISH REMAKE
I am optioning a German film to do an English-language remake. Anything special I need to worry about?
Well, according to the Greeks, you may have a lot to worry about. The German may grant some rights to you but only if you agree to fire your gardener, cancel your Xbox Live subscription, eat all meals at taco trucks, and never even think about stepping foot on Robertson Boulevard again.
But even if we ignore the Greeks on this one (besides, what have they ever done for humanity?), you’ll still have some issues you’ll need to address. Because copyrights can be divvied up, and you’re dealing with a pre-existing movie with its entire bundle of rights, you have to worry about exactly what rights you’re getting and what rights they’re keeping.
The right you’re definitely getting is easy to deal with – the right to make an English language remake. Even an austerity-crazed German during Octoberfest can understand that. But are you only getting the right to exploit your film in English-speaking countries, or are you going to have the right to exploit it worldwide, including in Germany? The German filmmaker may not appreciate seeing your Americanized (e.g., explosions versus uncomfortable German moodiness) version of his movie in his home theaters dubbed or subtitled in German. Germans may go see your movie in the theaters instead of buying his DVD (even though in reality they’re probably all just watching the recently released Das Boot Blu Ray). Obviously, you want rights worldwide with the ability to dub/subtitle in any language, even German. You should make this clear in this contract language.
The next issue is whether you’re getting the right to make one movie or if you’re going to have the right to also make prequels/sequels of your movie. This is Hollywood. If you’re film is even a moderate success, you’re going to be tempted/expected to make a sequel. Does the German filmmaker want to see a sequel he didn’t create to the film he did? The answer may be nein. It may be like watching some ugly American give birth to the sibling of his child. But, again, this is something you will want and, therefore, you should specifically include the right to make sequels in the rights paragraph of your option agreement.
Speaking of sequels, what happens if the German makes number zwei? Even if you have the right to make a sequel to your remake from scratch, if a German sequel already exists by the same great mind who made the original, you’ll most likely want the right to create an English language version of that sequel. Even if you don’t care for the German sequel and want to do an original sequel to your movie, you’ll still want to avoid the German claiming your sequel copied his film. In other words, you’re going to want/need the rights to the German sequel. If you don’t account for a method to acquire those German sequel rights in your agreement for the German original, you could risk some other brash American (or, god forbid, Frenchman) swooping in and taking the rights from you.
There are three different things you can build into your agreement to give yourself the ability to acquire the rights to German sequels: (1) give yourself a right of first negotiation/last refusal for sequel rights; (2) set a price now in the agreement for which you can acquire sequel rights (e.g., for the same purchase price as the original); or (3) acquire the rights now. These are in order of worst for you to best. If your American film or the German sequel is hugely successful, the price to acquire the foreign sequel might be astronomical so even if you have a first right negotiation/last refusal (option 1), you’re still going to get stuck with a high price, which is why setting it now before anything happens would be in your best interest (option 2). Better yet, you should try to convince the filmmaker to do option 3, which is an infomercial-style deal where if you act now and buy one set of rights (to the original), he’ll thrown in some extra sequel rights for no additional charge (or for a minor premium). If you somehow convince the filmmaker to go for this (it will be tough), it’s got to be very clear in the rights grant language that upon paying the purchase price, you’re acquiring rights in not only the original movie but also to any and all sequels or prequels to that movie. [Note: this is different than giving yourself the right to make sequels to your English-language remake of the original movie – as discussed in the third paragraph above. This is giving you the right to make an English-language movie based on the German-language sequels to the original German movie. Confused yet?]
Just like Hollywood in the summer, we’re not done with sequels yet. Unless you’re a crafty devil and somehow prohibit the German from making sequels to his film, you’re going to want to at least address how the German can release his sequels. You don’t want hipsters showing up at the Landmark and having to choose between your American remake of the German original (which their film snob friends have invariably told them is better than yours) versus the German sequel to the German original (which the film snob says is not as good as the German original but still better than yours). Therefore, you should demand a holdback on the German’s right to make a sequel to his film (e.g., he can’t release a sequel within X years from the release of your English remake of the German original).
Finally, just like Greece, you’re going to have to deal with the German’s involvement. Do you want the original filmmaker involved on your film? It may help you stay true to what made the original great, but you may also lose some control as the original auteur is surely going to be watching over your shoulder and offering opinions. You may not share his sensibilities.
© 2008 Greenberg Glusker Fields Claman & Machtinger LLP ("Greenberg Glusker"). All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not beconsidered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. Greenberg Glusker does not represent or warrant that this Blog contains information that is true or accurate in all respects or that is the mostcurrent or complete information on the subject matter covered. Matt Galsor and Jesse Saivar are attorneys in the entertainment transactional department of Greenberg Glusker Fields Claman & Machtinger LLP.