n this increasingly competitive media landscape, companies are seeking to create entertainment brands that can endure, serve as the basis for dozens of hours of content on the new generation of owned-and-operated premium platforms, and extend across various forms of media. However, transmedia deals are seldom straightforward, and may create issues that one is less likely to encounter when negotiating a relatively simple deal for a book-to-film adaptation.
One such issue is character exclusivity – the idea that when an entertainment property has multiple rightsholders, certain characters (or, in hyper-complex instances, certain characteristics of certain characters) are owned exclusively by only one rightsholder. The phenomenon of character exclusivity (and the schism in a property that it tends to create) tends to arise from one of three main deal-making circumstances, as follows:
Traditionally, a purchaser in a rights deal acquired only one “installment” of a property, such as a novel. In the event that the author of that novel decided to write a sequel, the film and television rights in that sequel would typically be “held back” for a period of time (usually between three and seven years), and the purchaser of the first book would have a first negotiation right and some kind of matching right to acquire the rights in the sequel.
That structure is fine when one is acquiring a discrete novel for which a sequel is a hypothetical future possibility, and which would be (if written) a direct continuation of the original story. It works less well when a property is conceived from the ground up as a series, an anthology, or a shared universe (more on that below). However, even this relatively simple traditional structure begs the question: what happens if the original purchaser does not acquire a sequel?
Most studios include some form of the below language in their option agreements with respect to the creator’s reserved sequel rights:
“If Purchaser does not acquire any Author-Written Sequel, then Owner’s right to dispose of any rights in such Author-Written Sequel shall not include the right to produce or cause the production of any audiovisual production which contains any of the characters or incidents contained in the original Property.”
In essence, this language provides that a creator can sell sequel rights to a third party (subject to the holdback and first negotiation/matching right), but not rights to any characters that appear in the original work. So, to illustrate, the author of Bridget Jones could sell the screen rights to the second Bridget Jones book, but would not be permitted to grant rights to the character Bridget Jones (feel free to replace “Bridget Jones” with “Harry Potter,” “Harry Bosch,” “Frodo” or any other character of your choosing).
Suffice to say, this creates instant character exclusivity and in many instances makes the development of a sequel by a new buyer unworkable.
On the subject of “creator sequels,” it is also worth mentioning that contractual standards that were very simple when formulated to address the acquisition of discrete works such as novels or plays may be much less elegant in the modern world. For example, it may be difficult to discern the line between the “original property” and a “sequel” when you have an ongoing comic book series with multiple spinoffs. How about a true crime podcast anthology that presents multiple “seasons” focused on different crimes, under one united brand? Or what about a video game where updates are presented via a series of continuous downloadable updates, as opposed to individual and clearly separate releases at brick-and-mortar retailers?
These are issues that we are thinking about and addressing on a daily basis and should evidence why it is important that rightsholders and purchasers alike engage experienced rights counsel!
“Studio Created” Elements
Another provision commonly found in rights purchase agreements reads substantially as follows:
“The Reserved Rights do not include, and Owner will have no right to exploit or use, any new or changed element created by or for Purchaser and/or any new characters, new characterizations and other new elements from any production produced by Purchaser.”
Think of this as the “Daryl Dixon” clause. When AMC optioned and developed “The Walking Dead” comic books for television, they created Daryl as a new character. Daryl promptly went on to become one of the most popular characters in the series.
Because of the clause above, the comic book writer and publisher were not permitted to use Daryl in the source material – or in connection with any other reserved rights (such as video games and merchandising based on the comic book, as opposed to the TV series).
Historically, there were good reasons for this clause. It does not make sense for the author to be unjustly enriched by the studio’s creativity and investment, and the inclusion of a new character back in the original source material could trigger additional guild or contractual obligations (in essence, putting the purchaser on the hook for exploitation that it doesn’t control).
However, we are finally moving towards a paradigm where characters move fluidly across media and different forms of exploitation – where new movies are promoted in Fortnite, and where Freddy Krueger, the Demogorgon, and Michael Myers can all appear as killers in Dead by Daylight. In gaming in particular, there may be a compelling reason for a game publisher to be able to use a character in their games who initially appeared in a television series. Moreover, the expectation of audiences is increasingly that there will be some level of coordination and consistency across media, and so it may be necessary to reexamine the necessity of this clause in very specific circumstances.
The concept of character exclusivity becomes particularly complicated in the instance of a “shared universe” – a vast sprawling story world that may encompass dozens of separate narratives that could be tied together by relatively obscure or minimal narrative threads. Think Brandon Sanderson’s Cosmere or, of course, the Marvel Universe.
For a shared story universe, it is possible, or even likely, that different characters or story elements will be controlled by different rightsholders. This concept has become familiar to audiences due to the X-Men and Avengers living (up to now) in completely separate story universes – or via the high profile and very public negotiations that were necessary to bring Spider-Man to the Marvel Cinematic Universe. Absent special arrangement, characters are “stuck” in one universe and cannot “cross over” – even if they did so routinely in the source material. This may lead to audience confusion and frustration.
Of course, there are exceptions to every rule and in addition to the aforementioned Spider-Man example, two characters were “shared” by Fox and Disney pre-merger – Scarlet Witch and Quicksilver (who appeared in the X-Men franchise starting with Days of Future Past, and in the MCU starting with Avengers: The Age of Ultron (after a brief post-credits appearance in Winter Soldier). However, the two iterations of the characters were played by different actors and, there were purportedly very specific contractual stipulations on how they could be characterized in each universe.
While the concept of a “shared universe” applies mostly to superhero and fantasy worlds, there are still potential repercussions for creators in other genres. For example, an author who writes crossovers between two book series (as Michael Connolly has done with the Bosch and Lincoln Lawyer books), or includes an Easter egg type cameo in their romance novel with a character from another book may be inadvertently creating rights and contractual issues that must be carefully addressed (and may be potentially headache inducing). Of course, the most successful US author of all – Stephen King – does this routinely. But creators must be careful because it is unlikely that they have the leverage that King does over his intellectual property!