Monthly Archives: February 2013
It’s often said that they’re not making movies the way they used to. That’s a matter of opinion (it happens to be mine), but if it’s true, the decline can be attributed to the fact that they’re not adapting books the way they used to. Since the golden age of filmmaking in the 1930s, the ratio of theatrical films based on books to those made from original screenplays has been steadily shifting to the latter. Today the odds that your novel will be made into a movie are distressingly low, even if your novel becomes a best-seller.
I can’t believe there are fewer adaptable books today than there have been in the past. Why, then, aren’t they making books into movies anymore?
One reason facetiously offered by book people is that nobody in Hollywood reads. Relying on my own experience, I’d have to say that’s untrue. What is probably closer to the mark is that movie people don’t have a lot of time to read, but then, neither do book people. Most of us are so busy reading manuscripts for business that we can’t spare a moment to read for pleasure. While I, like so many of my colleagues, can read three or four book-length manuscripts in one evening, I have been plodding through a published biography, at a rate of a few pages a week for over two years; it’s taking me longer to read that sucker than it took the author to write it!
At any rate, what little reading time movie people have is usually spent reading screenplays. Books are synopsized for them by readers, and only if a reader’s recommendation makes the book sound as if it has strong movie potential will a producer read the book itself. And sometimes not even then.
The downward trend in film adaptations follows the decline of the studio system and the corresponding rise of one revolving around independent producers. Under the old arrangement, all-powerful studios acquired best-sellers and other literary properties and adapted them for producers, directors, and stars belonging to the studio “family.” The studios were self-contained entities possessing financing, production facilities, and distribution capability—the three elements essential to making commercial films. After World War II, however, producers, writers, actors, and others challenged the studios in a bid for more artistic independence and a bigger piece of the profit pie. They succeeded to a degree in weakening the studios’ absolute power and control, but at a high cost: the loss of efficiency. Today’s producers cannot simply scoop up all the talent they need from one studio pool, but instead have to assemble “packages” out of a fiendishly complex and far-flung tangle of artists, agents, lawyers, unions, guilds, financiers, smaller distributors, and other elements.
This radical change has taken its toll on adaptations of books. Let’s see how.
The hardest part of getting a movie made is raising the money. It is easier to raise a sunken treasure galleon than to raise money for a movie. These days a film budgeted at $20 million is considered a home movie; indeed, $20 million is now the salary of a superstar. Still, it’s a lot of money, and anyone furnishing it to a filmmaker expects either an excessive participation in profits or an excessive say in the way the movie is made, both of which are abhorrent to a producer. Studios are not disposed to back films until all elements of the package are in place, or at least a “bankable” star or director has made a commitment.
In short, few independent producers have any money. Not long ago—twenty or twenty-five years—we used to see a number of outright purchases of books for movies. Though an outright purchase doesn’t guarantee a movie will be made, the size of the outlay, often hundreds of thousands of dollars, certainly guaranteed an earnest effort would be made to recoup the investment. Today, one seldom hears about outright sales. Everything is optioned. When independent producers start piecing together a movie deal, the item on which they least want to spend what little money they possess is the book; for them, the key item is the screenplay.
In part 2 we’ll focus on that screenplay.
In the first two parts of this article we’ve been talking about bonus advances known as “escalators.” Let’s take up the ones called movie bonuses, which are usually payable upon national release by a major distributor of a theatrical motion picture based on your book. There’s a mouthful of contingencies crammed into that sentence, so let’s analyze it.
First, the movie has to be released. Of course! you say, but many authors believe that a movie deal on their book ought to be enough to garner them a handsome bonus from their publishers. I’m sorry to tell you otherwise. Although there is some promotional value for a publisher to be able to boast, “Acquired for motion pictures by Universal,” it scarcely does a thing for sales. Thus, escalators are usually not payable when movie rights to your book are optioned, or when the option is exercised. In fact, they are not even payable when your movie goes into production.
Publishers have seen too many movie deals fall through to get excited when a star actor or producer takes an option on a book property. They have learned to their sorrow that many movies that go into production are not completed or released. So, in order to trigger that escalator, the film must be distributed.
And it must be distributed by one of the big distributors, Universal or Warner or MGM and the like, rather than any one of the thousands of little ones that service the movie community. And finally, the movie must be released nationally, as opposed to locally or regionally. The premiere of a film, even a high-budget one made by a great director with superstar actors and actresses, is not going to boost sales of the book from which it is adapted if it’s shown only at a few elite showcase theaters in New York and Los Angeles. In order for the film to have impact on mass market book sales, it must be shown at hundreds or thousands of theaters around the nation.
Again, the prices for movie escalators vary widely, from modest—in the low five figures—to very large in the case of authors with long track records in the area of books made into hit films.
Related to theatrical movie bonuses are television-movie escalators. But while the market for television adaptation of books is a very active one, the stimulus to book sales is usually minimal. Even though the exposure is tremendous, far greater than that of a theatrical movie, it is also ephemeral: an evening or two (repeated once, six months or a year later) and it’s gone. For publishers this presents serious problems of distribution and promotion. The books must be in the stores precisely on the day of or the day after the airing of the film, and the film must be so heavily publicized that consumers will be motivated to buy the book at the time of the airing. This is expensive, inefficient, unpredictable, and usually, therefore, unsuccessful.
For a television movie to mean anything in terms of tie-in value, it must first of all be an event, one absorbing a minimum of four hours, but preferably spanning a whole week of evenings. It should also be based on a best-selling book such as The Winds of War or North and South, so that viewer recognition of both the book and movie stimulate each other: you’ve read the book, now see the television movie, you’ve seen the movie, now read the book. Because very few books are converted into television events on the magnitude of, say, Shogun, the prices for escalators in this medium are considerably lower than they are for release of a major theatrical film adaptation of your book. The conditions are that the TV film be of at least four hours, run on consecutive evenings, and be aired originally on a major television network.
Escalators fall into a number of categories. The most common is the bestseller bonus. The best-seller list usually used to determine escalators is the one in the book review section of the Sunday edition of the New York Times, though sometimes the one in Publishers Weekly is also used. There are several ways to structure best-seller bonuses. One is the length of time that a book is on the list, another is a book’s position on the list. It is desirable for a book to be on the bestseller list for a long time, of course; it is also desirable for a book to be high on the bestseller list. Bonuses can be structured to reward length or position or both.
A long run on the list, even at the bottom, can be significant, both because it means the book is selling strongly over a long period of time, and because it enables the publisher to boast, “_____Weeks on the Bestseller List!”
Just as important is position on the list. The higher your book rises, the better it is, naturally. But the book that reaches the number one position causes a quantum leap in promotional value, even if it drops down or off the list the very next week. Therefore, many escalator schedules in book contracts are heavily weighted in favor of the number one slot.
The actual sums paid at the various stations of the list can vary widely. I have negotiated bestseller escalators for as little as a few thousand dollars and as much as high six figures.
There are a couple of other features of escalators I should mention. Almost all such provisions place a limit on the total extra money payable to the author, called a “ceiling.” The other aspect is that escalators, or escalator installments, are payable within a short period of time after the event that triggers them. Thirty days is as long as it should take for most bonuses to be paid, otherwise the publisher will be taking back in interest what he owes you in bonus money. If a publisher waits until royalty time to pay you your escalators, that’s not much of a bargain.
Another form of escalator is book club or paperback reprint, wherein your publisher agrees to pay you additional advance monies if a book club or paperback reprint deal on your book exceeds a certain amount of money. As we’ve seen, such escalators are almost invariably of the pay-you-with-your-own-money variety, because your publisher is guaranteed recoupment of the bonus out of the money he will eventually collect from the book club or reprinter. The only thing he loses is interest on the prepayment to you of money he would otherwise have paid in the normal six-month royalty cycle.
Last stop on this escalator tour – movie bonuses.
A term commonly heard in discussions of book deals is “escalator.” For instance, “Her book was bought for an advance that, with escalators, could exceed $1 million.” Escalators are additional advance payments made by publishers to authors if and when certain contingencies occur. What are those contingencies? How much are they worth? And what, if anything, is their real value?
Escalators were created, among other reasons, to bridge the gap between author and publisher when negotiations reach an impasse. You strongly believe your book will be a best-seller or will be bought by a major book club or made into a motion picture, and you feel that your advance should reflect the same optimism on your publisher’s part. Your publishers, on the other hand, hope and pray you’re right, but have seen many a slip ‘twixt the cup and the lip. They cannot afford to overpay authors on the strength of hope alone. Of course, if your track record justifies it—if your last five books have soared to the top of the best-seller list; been main selections of major book clubs, and been made into hit movies—they will be greatly disposed to pay you a lot of money up front. But let us say, for the sake of argument, that this is not the case.
The answer is for the publishers to offer you escalators. These bind him to pay you scheduled sums of money if, and only if, your optimism turns out to be justified; if it doesn’t, they owe you nothing beyond whatever royalties your book may earn over its original advance.
It takes a lot to leave me speechless but when I read that Amazon was contemplating selling used e-books I was too flabbergasted to make sense of it. Luckily Brian Merchant, a freelance writer, editor and blogger (http://www.treehugger.com/author/brian-merchant/) expressed his dismay, in a posting on Motherboard, better than I could ever hope to. So, with his kind permission, I reproduce his piece in full below.
By Brian Merchant
Amazon has a patent to sell used ebooks. When I first scanned that headline, I thought it must be some Onion-esque gag, and I’m sure I wasn’t alone. Used e-books? As in, rumpled up, dog-eared pdfs? Faded black-and-white Kindle cover art, Calibri notes typed in the margins that you can’t erase?
Barely-amusing image aside, used ebooks are for real. Or at least have a very real potential to become real. See, Amazon just cleared a patent for technology that would allow it to create an online marketplace for used ebooks–essentially, if you own an ebook, you would theoretically be able to put it up for sale on a secondary market.
The approved patent describes the process:
Digital objects including e-books, audio, video, computer applications, etc., purchased from an original vendor by a user are stored in a user’s personalized data store … When the user no longer desires to retain the right to access the now-used digital content, the user may move the used digital content to another user’s personalized data store when permissible and the used digital content is deleted from the originating user’s personalized data store.
Used ebook shoppers could buy your digital copy, directly from you, and Amazon would facilitate the transfer of files–and it would pocket a fee.
It’s a fascinating concept, really, but it could ultimately be devastating to the publishing industry and, potentially, to authors. First, the elephant-sized absurdity in the room: a “used ebook” is identical to a new one. It is a precise digital reproduction. The file does not age, it cannot be damaged, it cannot be altered–therefore, it is worth no less than any other copy, and the only premium purchasers of “new” ebooks would be paying for would be the right to read it first.
And that’s where we start running into problems. Nobody, besides die-hard fans of a given author on a big release date, would ever care enough to pay extra for digital dibs. Used ebooks would eliminate nearly all the incentive to buy “new” ebooks. And Amazon could be banking on that, even though at first blush it might appear to undercut its own business.
Bill Rosenblatt, a copyright expert and witness in numerous digital content patent cases, argues that the online retail giant may be angling to push publishers out for good with such a move. He explained his case to Wired:
Rosenblatt believes that a digital resale marketplace wouldn’t ultimately make Amazon a lot more money on books or music, at least not at first. But he thinks it would move much more of Amazon’s digital content business beyond the interference of publishers, just as publishers can’t dictate the terms of, for example, the sale of used physical books on Amazon. Just as with physical books, publishers would only have a say — or get a cut — the first time a customer buys a copy of an e-book. The second, third and fourth sales of that “same” e-book would be purely under Amazon’s control.
“If Amazon is allowed to get away with doing resale transactions without compensating publishers, then what they can do is say, ‘hey authors, sign with us and we’ll give you a piece of the resale,’” he says. “That could attract authors who might otherwise sign with traditional publishers.”
It would be an exceedingly brazen move on Amazon’s part, and would likely require the combined strength of every copyright lawyer its side of the Mississippi, but it’s entirely possible. And it’s bad news for authors too.
Because, what if they don’t sign on? Well, on the grounds that publishers and authors don’t get a cut of physical used books, Amazon could easily seek to justify refusing to pay writers for secondhand transactions. That’s what worries John Scalzi, the president of the Science Fiction and Fantasy Writers of America.
“I’m awfully suspicious that it means nothing good for writers who want to get paid for their work using the current compensation model,” he writes on his blog. Scalzi foresees writer-led class action lawsuits aplenty should Amazon ever try to cut out author royalties on ebook resales. And Scalzi agrees that it’s trouble for the traditional publishing industry, too: “if I were a publisher I really wouldn’t have any doubt Amazon wants me dead,” he writes.
Still, the whole phantom of a secondhand ebook marketplace might not ever amount to much. As Marcus Wohlsen notes, Amazon may have secured the patent simply to bury it, to eliminate any possible threat of a secondhand ebook market to its standard business. It may deem the legal threats too great and deign not to push on. Or it may realize that if it ever admits to boxing out authors, consumers may revolt and just download pirated files or directly from author sites.
If Amazon does try this stunt, however, it will be attempting to seize on our nostalgic understanding of physical secondhand marketplaces: many readers love used bookstores and swapping well-worn paperbacks. Thanks to the cloud and increasingly bottomless RAM, the bookshelves of the future are near-infinite–we have no need to “swap” files. We can copy and forward them. Amazon would be relying on the notion that our habits of buying and selling tangible goods are deeply inculcated enough that we’d overlook the absurdity and potential exploitation of a secondhand ebook market.
Used ebooks are a paradoxical anachronism, a cannily capitalistic construct whose only aim is to squeeze authors and publishers. Again, it’s fascinating–but it’s also complete bullshit.
In the first installment of this article we discussed the circumstances in which authors voluntarily give up all rights to their copyrighted work. There are numerous situations in which work-for-hire may be considered reasonable and acceptable by normal ethical standards.
Another application of the work-for-hire concept that most of us accept unquestioningly is ghostwriting. Authorities or celebrities who cannot write well or are too busy to write their own books engage writers to draft books for them. Although the principal author may agree to share some of the proceeds of the book with his ghost, the principal is the sole signatory of the contract with the publisher, thus making him the copyright owner. He then signs a separate agreement with the ghost, removing that person from claim to copyright and direct participation in revenue generated by publication of the book. Occasionally, what may have seemed a fair fee at the time it was negotiated with the ghostwriter may not seem so if the work demanded of him turns out to be excessive, or if the book becomes a runaway best-seller. Under ordinary circumstances, however, the ghostwriter accepts his lot as a worker-for-hire, and may at least secure more work for himself by telling publishers, “That book was actually written by me.”
If one were to compose a Bill of Rights for authors, ownership of copyright to their works would certainly be close to the top of the list. We hold self-evident the truth that if a person produces an original book-length work, he or she is entitled to proprietorship under the law, and to full benefit of its commercial exploitation.
Yet, it has not always been so. The piracy of literature by printers, publishers, and booksellers has been common practice throughout the world from the dawn of the printed word, and was prevalent in this country until well into the present century. Until the establishment of the first International Copyright Convention in 1891 and its refinement after World War II, respect for the sanctity of copyright was largely a matter of gentlemen’s agreements based strictly on self-interest—don’t steal from me and I won’t steal from you. There are still vast areas of our globe where publishers think nothing of stealing and distributing works of literature from authors and publishers of law-abiding countries, and the emergence of electronic and online media have made it a big business. Piracy of books, videotapes, music, and other intellectual property may be condoned if not sponsored and supported by some governments.
Lest you become too smug that such barbarities cannot happen here, I am compelled to report my observation that the appropriation of authors’ copyrights by publishers and book packagers seems to be on the upswing. Nothing so gross as piracy, mind you. More, I would say, like extortion. But the effect is the same: the deprivation of authors’ rights to enjoy the fruits of their labors. The fruits of an author’s labors include such bounties as royalties on copies of books sold, participation in reprint income, and revenue deriving from the exploitation of serial, translation, dramatization, electronic, and other subsidiary rights. Not everyone shares the conviction that the enjoyment of these monies is a natural and God-given right, however. Indeed, not everybody behaves as if the enjoyment of these monies is protected by statutory law.
The engagement of writers for flat fees falls into a category of employment known as “work-for-hire.” Work-for-hire is a doctrine defining the relationship between a copyright owner and a writer. Note that the owner may or may not be an author; he, she, they, or it may be a corporation (like a movie studio or television production company), a syndicate of investors, or an individual who is not a writer. These entities hire writers to perform a service in pretty much the same way a homeowner hires a cabinetmaker, a painter, or a gardener, except that in this case the task is writing a text for the “boss”—the creator or owner of the idea. The owner is then free to exploit the text in any way he desires with no further obligation to the author.
Some provisions of the 1976 Copyright Act attempt to define the work-for-hire concept, but they do not do so very clearly and have left the door open to unfair exploitation of authors.
Having alienated the legal profession in my previous blog (see Lawyers (Groan), I hope to return to grace with some high praise for one branch of the species.
It may be hyperbolic to refer to the legal counsels of publishing companies as “gray eminences,” a term one usually assigns to the shadowy power brokers who manipulate the controls of vast corporate or political networks. But it would be no exaggeration to state that tremendous influence resides in the hands of the attorneys who counsel publishing executives on the legal aspects of their companies’ operations. Few significant corporate decisions are made without clearance by a publisher’s lawyers, and no book is published that has not somehow been affected by procedures originating in the firm’s legal department. To the degree that the men and women of those departments are seldom colorful, their eminence may indeed be depicted as gray. But it must never be underestimated, because the power they wield over the fate of your book is both total and final. However headstrong the chief operating officer of a publishing company may be, he or she will almost never override a house counsel’s advice.
Owing to the enormous number of legal affairs confronting every publisher, attorneys must be engaged to advise the firms’ executives. Small houses with little money to spare for lawyers may hire a small firm or sole practitioner on an hourly or flat-fee basis to perform specific tasks such as drawing up incorporation papers, writing a lawyer-letter, or rendering an opinion about a specific situation. Larger publishers may engage an outside law firm for an annual retainer, which is adjusted if the time spent by the lawyers exceeds a prearranged ceiling. Fees and expenses of litigation are always a matter of separate arrangement, as they absorb extraordinary amounts of billable time.