BY:
Neil J. Rosini, Michael I. Rudell(Originally published in the Entertainment Law column of the New York Law Journal, June 22, 2007)
Most of us have seen movies that diverge markedly from the novels on which they are based, leaving us wondering about the cause of the disparity. Novelists, too, are concerned about substantial changes when films are adapted from their works. They desire to preserve the creative integrity of their work, the longevity and personality traits of continuing characters, and the goodwill associated with their own names. For these reasons and others, novelists often seek a contractual right to influence the way their books are adapted to the screen when negotiating film rights with producers.
The degree of possible creative involvement for an author in the filmmaking process ranges broadly across a spectrum: from a mere right to be advised of changes; to a right to be consulted before changes are made; to a right to have meaningful consultation with specific procedures in place to facilitate it; to a right of approval over key elements that may include the screenwriter, director, producer and lead actors. Not surprisingly, film companies do not readily acquiesce to these requests. Only the most elite ranks of authors can hope to obtain a meaningful level of input, and even for them an approval right is rare. The vast majority of authors must decide whether or not to take a chance that their books will be treated in a manner that suits them. They weigh these concerns against the promise of substantial cash payments for their film rights and a hoped-for expansion of their readership.
Of course, film studios need to protect a creative work of their own as well as the huge investment that goes into it. According to “Variety,” the average production cost of a U.S. studio film now is about $66 million, and when marketing costs are added, the average rises to $100 million.[1] From a producer’s perspective, that kind of economic risk dwarfs the authors’ concerns. Studios view filmmaking as a very different process from writing a book. A film is a collaborative effort in which the underlying property is just one of many elements, while a book is a solitary endeavor in which the author has ultimate control. Studios also point to the obvious differences between the two media and the filmmaker’s need to think visually rather than verbally. They also fear that their ability to complete a film on time and on budget may be impeded if they need to indulge the opinions of book writers. Nevertheless, some authors with sufficient leverage and a clear vision as to how their books should be adapted, are unwilling to make a deal without at least some creative input.
One such author, Clive Cussler, obtained true rights of approval in an agreement with a production company that planned to create a James-Bond-style franchise of action films from his series of novels featuring the character, Dirk Pitt. However, a recent trial of Cussler’s California lawsuit[2] against that company, and its counter-claims against him, shows why this concession — even to best-selling authors who command millions of dollars for their film rights – still can be the subject of bitter controversy.
The Cussler Case
Cussler entered into an agreement with defendant Crusader Entertainment, LLC[3] in 2001 under which Crusader purchased rights in Cussler’s novel, “Sahara,” plus a second novel to be named later and further novels if certain conditions were satisfied. According to Cussler’s complaint, the agreement gave him “an unqualified right of approval” over the screenplay of the first film, and prohibited changes without his written consent with the exception of “certain limited changes of the kind customarily made ‘on the set’ by the director and actors or required by any ‘exigencies of production.'” And even in those rare instances of excepted changes, consultation with Cussler was still required.
An earlier film based on a book by Cussler, “Raise the Titanic,” was not a success. It embarrassed Cussler, according to his lawyer, who said at trial that the unhappy experience made Cussler averse to parting with film rights again. But he ultimately succumbed to an “unprecedented” $10 million per film combined with (as “Variety” described it[4]) “exhaustive approvals” on the first picture and more limited approvals thereafter. According to Cussler’s pleading, his right to control the content of the first screenplay was “of the essence to,” and a “but for” cause of, the parties’ agreement.
Cussler approved a version of the screenplay even before he signed the agreement, and he gave his written approval to subsequent screenplays as well. But Cussler complained that Crusader made “numerous material changes” that lay outside the contractual exceptions to his right of approval and resulted in significant departures from the screenplays he approved. According to Cussler’s pleading, Crusader then filmed and distributed a version of “Sahara” based on a screenplay it knew Cussler had disapproved, and even failed to make a payment that became due toward the purchase price of the second film.
Cussler sued, expressing concern that ‘”Sahara’… has been and will be perceived by knowledgeable persons in both the motion picture and publishing industries as a manifest failure.” Among other relief, he sought a declaration that Crusader had no further rights in Cussler novels; and he included claims for breach of contract and for fraud, alleging that Crusader never intended that Cussler be allowed to exercise his approval rights. At trial, Cussler sought cancellation of any further right of Crusader under the agreement and damages of almost $40 million.[5]
In true “Rashomon” style, the defendant’s cross-complaint against Cussler painted a very different picture of the same events. Crusader countered that “Sahara” was indeed based on Cussler’s book and that it presented “a faithful depiction of the ‘Dirk Pitt’ character.” The company asserted that the film adaptation received “favorable critical and audience reception” and denied that Cussler’s contractual approval and consultation rights had been violated. Portraying itself as the true injured party, it complained that Cussler’s “continuing, material and substantial breaches of his contractual promises, as well as his intentional torts, precluded ‘Sahara’ from achieving its full commercial potential.” Furthermore, Cussler’s “wrongful conduct” allegedly deprived Crusader “of the opportunity, for which it paid dearly, to develop a ‘Dirk Pitt’ film franchise.” Even a second film was no longer feasible according to Crusader.
Crusader acknowledged that its agreement with Cussler gave him “certain consultation and approval rights regarding screenplays, screenwriters, directors and actors” and it expected Cussler’s “good faith collaboration and his fair dealing to facilitate production of the ‘Dirk Pitt’ films” in return. Instead, according to Crusader, Cussler “arbitrarily, irrationally, and destructively pursued his consultation and approval rights” with the effect of delaying production of “Sahara,” markedly increasing its costs and harming its commercial prospects. The cross-complaint said that Cussler rejected one screenplay because the screenwriter did not travel to Arizona to receive Cussler’s comments in person. On another occasion, Cussler allegedly “feigned a glance at the first few pages” of an unread screenplay and then “theatrically tossed the screenplay over his shoulder” to show his disapproval. He allegedly “reversed his approval of one director and caused yet another agreed-upon director to noisily withdraw from the project.” Cussler also let it be known publicly that “Sahara” did not meet his standards. He was alleged to have “intentionally poisoned the environment for the film” with derogatory comments” that often included the word “disaster,” which was alleged to be his “favorite epithet for the film.” Last but not least, Crusader complained that Cussler and his agent represented falsely to them that 120 million copies of his books had been sold when the actual number was about a third of that.
Crusader alleged that Cussler’s motive for all this was to cause Crusader to let him write the “Sahara” screenplay himself. Moreover, according to Crusader, Cussler wanted to prevent Crusader from making more films so that the film rights would revert to Cussler, who could then re-sell them and collect payment a second time. Crusader’s claims included breach of contract and breach of the covenant of good faith and fair dealing; breach of fiduciary duty; injurious falsehoods/trade libel; fraud; and intentional interference with contractual relations and prospective economic advantage. The company sought to be relieved from any obligation to make payment for the second film and also requested a refund of the partial payment already made. In money damages, Crusader demanded $65 million at a minimum plus punitive damages.
The trial took nearly three months of testimony. According to “Variety,”[6] Crusader’s witnesses hotly disputed Cussler’s interpretation of the contract, and asserted that his rights shifted from approval to consulting once the director was hired, even for “Sahara.” Cussler reportedly testified that he was relegated to a consultancy position by the director and felt the agreement had been breached. “The New York Times” reported7 that on the stand, Cussler admitted telling Crusader that a total of 100 million of his books were sold, even after he was informed by his literary agent that the figure was inflated.
The trial ended with a split decision in mid-May after eight days of jury deliberations. They awarded $5 million to Crusader for past and future economic loss and they returned further film rights to Cussler in accord with a contractual provision, because principal photography on “Sahara” did not begin on time. A further hearing was required to determine whether Cussler would receive money damages, the jury having advised the judge by special verdict that they thought Crusader was still liable for the $8.5 million balance for the second book. Both sides claimed victory but, according to “Variety,” the jury foreman later observed that there were “obviously problems on both sides.” [8]
The Realm of Possibilities
The dispute between Crusader and Cussler probably has heightened the concerns of both authors and production companies over approval rights, which are not likely to be absolute in any event (as suggested in the Cussler case). Even when a right of approval is granted, protections will be afforded to the production company when “exigencies of production” occur. For example, if the author has the right to approve the director, and he dies or walks away from the production shortly before principal photography is to begin, the author’s approval rights probably will be sharply curtailed.
In lieu of an approval right, studios frequently offer an author the right to be consulted about certain creative aspects of the production. Because of the vagueness of this concept, an author with some stature — but not enough to obtain approval rights — might bargain for the consultation to be “meaningful.” In the abstract, “meaningful consultation” may not provide significantly more input for the author than consultation unless the contract elaborates on the details. For example, the author might be given advance notice of any key creative decision, have an opportunity to attend key meetings and to meet persons being considered for a key creative role, and be sent screenplay drafts on a dependable basis. The author’s contract also might provide for sufficient advance notice and a reasonable time period to comment so that his or her comments can be given good faith consideration. The studio, however, will have final control.
An additional or alternative approach for the author is to seek a listing of forbidden script elements. For a teen property, use of drugs or sexual activity might be ruled out. For key characters in a book series, disfigurement and death might be banned from the screen. Studios willing to accept clauses of this kind might only do so when the prohibited action is unambiguous and compliance is not subject to debate, especially when injunctive relief is available to the author and non-compliance by the producer must be shown clearly and quickly. (It should be noted that studios vigorously attempt to prohibit injunctive relief as a remedy, even in situations in which a listing such as above is included in the agreement.)
Conclusion
In the last analysis, the best protection for an author whose book is being adapted for the screen, is to select with care a producer with whom a mutually respectful and collaborative relationship can be enjoyed. The author’s risk that such a relationship will not materialize can be reduced by well-written provisions covering rights of consultation and/or approval.
But as Clive Cussler might advise, getting that provision is not the end of the story.
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Endnotes
1. Variety.com, posted March 16, 2007.
2. Cussler et al. v. Crusader Entertainment, LLC et al., Cal. Superior Ct., Los Angeles County, Case No. BC 309114.
3. Crusader has since changed its name to Bristol Bay Productions, LLC; but for convenience, we will refer to it consistently by its original name.
4. Variety, May 1, 2007, at 13.
5. Id.
6. Variety, May 1, 2007, at 1, 13.
7. New York Times, May 16, 2007.
8. Variety.com, posted May 15, 2007.