Protecting Diverse Content: 4 Deal Suggestions

The 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 team.

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.