Protecting Diverse Content: 4 Deal Suggestions


he homogenous nature of Hollywood’s output has been a
source of frustration for some time, especially taking into consideration that
the stories it has been telling (largely told from a white, cis male,
heterosexual, US-centric point of view) do not reflect the composition of the
world or its audience. The entertainment business has made some progress
recently, with the likes of Black Panther,
FX’s Pose and Atlanta, Netflix’s To All The Boys I’ve Loved Before, Always Be My Maybe, Dear White People and Orange
Is the New Black
, Killing Eve,
Hulu’s Shrill and HBO’s upcoming Euphoria, all of which feature diverse
casts and generally include women and people of color among the core creative

However, we are not there yet. Per UCLA’s
2019 Hollywood Diversity Report
, only two of ten lead actors in film are
people of color (2.2 of 10 in broadcast TV), while only 1.3 of 10 film
directors are female. Transgender actors are virtually invisible in lead roles
on television.

This is not only important in the name of fairness, equality
and an accurate depiction of the world we live in. Diverse stories also perform
well commercially. Per the same UCLA report, “Films with casts that were from
31 to 40 percent minority enjoyed the highest median global box office
receipts….films with the most racially and ethnically homogeneous casts were
the poorest performers.”

With that said, the following reflects some posts from the
perspective of rightsholders (such as book authors, or podcast creators) with
some suggestions as to how they can help protect their diverse content in the
journey from book (or stage, or podcast, or even video game) to screen. We do a
huge amount of rights deals on both buyer and seller side, so we’re quite well
positioned to offer observations on trends that we’re seeing.

  1. Get in
    the Room
    . There is no better way for an author to protect his or her
    source material than to be involved in the process of adapting it. Fifteen
    years ago, it was virtually unknown for a book author without prior TV credits
    to have an opportunity to be involved in the adaptation of his or her book.
    Now, studios and networks are much more amenable to giving an author some level
    of involvement in the process in certain circumstances, in part due to the
    likes of Gillian Flynn (Gone Girl, Sharp Objects) blazing a trail. This
    involvement can take various forms based on the stature of the author, nature
    of source material and the parties involved. In certain circumstances, the
    author may be engaged to write a format, story step and/or pilot script for a
    television show, sometimes with a more experienced partner or supervisor (which
    opens the door to potential credit-based entitlements). In other circumstances,
    an author might be engaged in the writers room and/or given the opportunity to
    write episode scripts on a freelance basis. It’s not always possible or
    preferable – and some authors are not interested in writing for TV – but we are
    seeing this on an increasingly frequent basis.

    2. Be Consulted. Even if not
    involved in the writing process, Authors can always request a level of
    consultation over the material creative process. Whether this is granted or not
    depends on the policies and parameters of the specific studio or network, but
    higher level authors can usually make the request on the basis that they are
    more familiar with the source material than anyone else. This does not
    guarantee that the author will be able to control issues like the treatment of
    diverse characters, but it will hopefully give the author a voice.

    Authors should be aware that approval (as opposed to consultation) is an
    extremely high level ask, typically reserved for authors who have sold millions
    of books (think: Steven King). Generally, authors should be aware that they
    will not get approval rights (which doesn’t mean there isn’t something they can
    request contractually – see the next point).

    3. Require Diversity. One
    thing that authors should absolutely consider requesting is a stipulation that
    certain characteristics of a character are maintained in the adaptation. For
    instance, requiring that the lead character is cast with an Asian American
    female or an African American man, or is depicted as gay, or transgender (or is
    cast with an actual transgender person in some circumstances). Again, this kind
    of stipulation would generally have been rejected outright by buyers until
    quite recently, but authors and agents have begun pushing for it in the wake of
    multiple examples of egregious “whitewashing” of diverse stories (and other
    misguided casting). Some studios will still not agree to it contractually, but
    it is uncertain as to how long they will be able to maintain that position
    given societal pressures and the strong commercial and critical performance of
    diverse stories.

Additionally, a much harder sell – but one
that certain authors could consider requesting – is some level of targeted
approval over the personnel (or the characteristics of the personnel) in
certain key roles. For instance, the director of a movie, or the pilot script
writer of a television show. This is most appropriate in circumstances where
the story has a particular point of view that may be enhanced by having the
story be told by a creative who shares a similar perspective. This is not to
say that it is impossible for a man to direct a female-focused story (for
example), only that in certain circumstances it could potentially be the better
choice – and could help increase the diversity of storytellers. Again, this is
not something that we expect to see happening on a widespread basis
contractually in the near term, but if rightsholders press for it, they could
affect change.

4. Meet the Team. Finally,
authors can always request a creative meeting with the team before closing a
deal. This doesn’t guarantee anything and may not give contractual protection
(given that personnel and creative direction can always change), but it does at
least help an author get comfortable with the people that the author will be
trusting with his or her property.

Filed in: Legal Blog

June 7, 2019