In the wake of the recent screenwriters' strike, I should like to propose a relatively simple piece of legislation which I tentatively submit could have the most benign effect on the quality and variety of films available to the public.
But first, let us consider some background. I became aware of what I consider to be a deep problem in the film industry in 1994, when I sold the rights of my screenplay The Rationalist, based on my novel of the same name, to a large and powerful American studio. More than twelve years later it is no closer to being made, and the chances that it will ever be made are minimal.
The particular story of why it should have slipped into obscurity and virtually disappeared need not concern us here. What I propose to address instead is the extraordinary fact that the vast majority of literary properties whose film rights are bought by studios or production companies are never made into films. It is difficult to obtain precise data, but, according to various accounts, including the best sources of industry insiders, only 10% of all literary properties whose rights are bought by producers or studios are ever filmed. In other words, for every contracted book or screenplay which is filmed, there are nine contracted books or screenplays which languish unmade.
From the perspective of producers and studios, there are good commercial reasons why this situation should have arisen. Purchasing screen rights is relatively inexpensive compared with putting the film into production. Making a film requires a significant and often major investment. Only those screenplays which the producer believes will justify this heavy investment should be made. The remainder (in fact the large majority) will lie on the shelf unused.
This is more than merely another variation of the age-old theme of flowers blushing unseen, however. The point is that these contracts, because they are almost invariably based on the purchase of exclusive rights, are actively preventing other film versions being made of the properties under contract. The exclusive rights generally act in perpetuity or, more accurately, until the author has died and his work is out of copyright. Thus the strange fact is that the chief impact of most film contracts is that they do not help to make a film, but actually block the vast majority of contracted film properties from ever being made.
On closer examination, there are two sides to the average film contract. The first (which I support) occurs when the owner of a literary property negotiates permission to a second party (a producer or studio, say) to make a film based on the property in question. The second, darker side, is that almost inevitably there will be incorporated in that contract a number of clauses aimed at preventing any other party from making a film based on the same material. I believe that these two aspects should be separated, treated entirely differently, and that for the benefit of the entire film industry the incorporation of exclusivity should become, if not illegal, then non-enforceable.
To some extent this argument runs counter to my own deepest beliefs. As both a liberal and an advocate of the free market, I believe people should be free to make any contract they like, and to dispose of any rights they possess in any manner they choose. For this reason I would not advocate that the proposed legislation should act retrospectively to nullify the exclusivity clauses in any existing contract. But I do believe that a change in the law which made it clear that, in future, the exclusivity clauses in a film contract would no longer be enforceable in a court of law, would have a profound and almost wholly benign effect on the industry.
But first, let us consider some background. I became aware of what I consider to be a deep problem in the film industry in 1994, when I sold the rights of my screenplay The Rationalist, based on my novel of the same name, to a large and powerful American studio. More than twelve years later it is no closer to being made, and the chances that it will ever be made are minimal.
The particular story of why it should have slipped into obscurity and virtually disappeared need not concern us here. What I propose to address instead is the extraordinary fact that the vast majority of literary properties whose film rights are bought by studios or production companies are never made into films. It is difficult to obtain precise data, but, according to various accounts, including the best sources of industry insiders, only 10% of all literary properties whose rights are bought by producers or studios are ever filmed. In other words, for every contracted book or screenplay which is filmed, there are nine contracted books or screenplays which languish unmade.
From the perspective of producers and studios, there are good commercial reasons why this situation should have arisen. Purchasing screen rights is relatively inexpensive compared with putting the film into production. Making a film requires a significant and often major investment. Only those screenplays which the producer believes will justify this heavy investment should be made. The remainder (in fact the large majority) will lie on the shelf unused.
This is more than merely another variation of the age-old theme of flowers blushing unseen, however. The point is that these contracts, because they are almost invariably based on the purchase of exclusive rights, are actively preventing other film versions being made of the properties under contract. The exclusive rights generally act in perpetuity or, more accurately, until the author has died and his work is out of copyright. Thus the strange fact is that the chief impact of most film contracts is that they do not help to make a film, but actually block the vast majority of contracted film properties from ever being made.
On closer examination, there are two sides to the average film contract. The first (which I support) occurs when the owner of a literary property negotiates permission to a second party (a producer or studio, say) to make a film based on the property in question. The second, darker side, is that almost inevitably there will be incorporated in that contract a number of clauses aimed at preventing any other party from making a film based on the same material. I believe that these two aspects should be separated, treated entirely differently, and that for the benefit of the entire film industry the incorporation of exclusivity should become, if not illegal, then non-enforceable.
To some extent this argument runs counter to my own deepest beliefs. As both a liberal and an advocate of the free market, I believe people should be free to make any contract they like, and to dispose of any rights they possess in any manner they choose. For this reason I would not advocate that the proposed legislation should act retrospectively to nullify the exclusivity clauses in any existing contract. But I do believe that a change in the law which made it clear that, in future, the exclusivity clauses in a film contract would no longer be enforceable in a court of law, would have a profound and almost wholly benign effect on the industry.
Most importantly, it would open up that vast future store of unmade films which would otherwise be kept in the dark through exclusivity contracts. Unlocking this huge store of prohibited material would give a new lease of life to the industry.
There are, I admit, good counter-arguments to my proposal, which should be considered here. Traditionalists will say that the market supplies its own release mechanisms. For example, films which producers or studios do not make are sometimes put in “turnaround” — the rights are offered to other studios or producers. This, it might be proposed, is a natural method of releasing the property from the grip of a particular production party, which does not wish to make the film, to another party which does. It is a reasonable argument, in theory at least. The problem is that there is no guarantee that the party to whom the producer sells the exclusive rights will make the film either. There are numerous examples of exclusive film rights which have passed from one studio to another over and over again without a film being made. In practice, the occasional “turnaround” does not alter the fact that nine out of ten film properties which are contracted and bound by the usual exclusivity clauses are never made.
The deeper question is, should producers and studios be allowed to deal in contracts which effectively prevent other versions of the film from being made? Isn’t this a clear example of restraint of trade? It would be much better, I would argue, if producers were able to negotiate and purchase the right to make films — the positive rights, if you like — but not the negative rights, the rights to prevent others from contracting with the owner of those rights to make films from the same material.
Do these exclusivity contracts actually benefit the producer or studio? I for one do not believe so. The current chief problem which I submit the proposed new legislation should resolve, to the benefit of all parties, is that existing film contracts are based on the contractual forms of an earlier era, when the main outlet for movies consisted predominantly of a relatively static and finite number of cinemas. During that era, in order to protect the rights to show films in a highly delimited number of outlets, the tradition was to base film rights on exclusivity.
However, it could be argued that more recent developments in visual media render this traditional view redundant. In our era the emergence of new digital TV stations, satellite television, the internet, DVDs and other developments has led to a massive expansion of types of media and world viewer base for movies. Together these developments mean that the international market is potentially infinite.
This in turn means there is no pressing commercial need to protect through exclusivity. In a rapidly expanding media market of almost infinite extent, it doesn’t matter how many variations of a particular film may have been made, the only significant limit to commercial and critical success of a movie is the quality of the work and its capacity to entertain.
Traditionalists will argue that a fundamental shift in the way film contracts are treated in law will have unpredictable and potentially detrimental consequences. They will suggest that the principle has not been tested, and that alone is sufficient reason to view the proposed legislation with suspicion. The market is not passive, they will continue, and it may react in unexpected ways in order to counter such legislation.
I believe these doubts can be set aside, and genuine critics reassured. The chief elements of the system which I advocate already exist in the case of material which is out of copyright — I am thinking in particular of material in which the author died more than seventy years ago. Here there is no exclusivity, and the results are truly liberating. In this second market — the market in properties out of copyright — we can observe the powerful benefits of the system I am proposing.
Take the case of Jane Austen. When a producer or studio makes a new movie version of Pride and Prejudice, say, there is little or no fear of the existence of earlier adaptations. If the new version is effective, and entertains an audience, it is on a level playing field with all the other movies in the world. This means that fine narratives such as Pride and Prejudice can be constantly reinterpreted, viewed afresh, and that a huge variety of adaptations are possible. We — in particular the international audience for movies — are all immeasurably enriched by the freedom to make variations of her work. Whatever our view of her original books, we are far more likely to find something which we would like to see — from more classical versions which attempt to be true to the original such as the much-loved BBC series with Colin Firth as Darcy, to the celebrated 1940 MGM movie starring Greer Garson, to more free-wheeling or wide-ranging adaptations such as the successful series of films based on Bridget Jones’s Diary — which overtly utilises Austen’s central plot, even to the extent of calling its male hero Darcy.
While we are on the subject, consider too the rich variety of screen interpretations of another Austen classic, Emma, ranging from various film and TV versions to the entertaining and well-reviewed teenage movie Clueless, in which the original story of a beautiful but somewhat arrogant match-maker has been entertainingly transformed into a modern coming-of-age parable.
If Austen were a contemporary writer whose works were subject to standard exclusivity contracts, little if any of this array of rich offerings would be available to entertain the film-watching public. Instead, if we were lucky (remember that 90% of film properties under contract are never made) we would perhaps have a single screen version of one of her works, which (since she published only six full novels in her life) would be a very poor return on a great body of literature. This single film, “protected” from alternative versions by the usual exclusivity clauses, might or might not be any good. And that would be that.
There are, I admit, good counter-arguments to my proposal, which should be considered here. Traditionalists will say that the market supplies its own release mechanisms. For example, films which producers or studios do not make are sometimes put in “turnaround” — the rights are offered to other studios or producers. This, it might be proposed, is a natural method of releasing the property from the grip of a particular production party, which does not wish to make the film, to another party which does. It is a reasonable argument, in theory at least. The problem is that there is no guarantee that the party to whom the producer sells the exclusive rights will make the film either. There are numerous examples of exclusive film rights which have passed from one studio to another over and over again without a film being made. In practice, the occasional “turnaround” does not alter the fact that nine out of ten film properties which are contracted and bound by the usual exclusivity clauses are never made.
The deeper question is, should producers and studios be allowed to deal in contracts which effectively prevent other versions of the film from being made? Isn’t this a clear example of restraint of trade? It would be much better, I would argue, if producers were able to negotiate and purchase the right to make films — the positive rights, if you like — but not the negative rights, the rights to prevent others from contracting with the owner of those rights to make films from the same material.
Do these exclusivity contracts actually benefit the producer or studio? I for one do not believe so. The current chief problem which I submit the proposed new legislation should resolve, to the benefit of all parties, is that existing film contracts are based on the contractual forms of an earlier era, when the main outlet for movies consisted predominantly of a relatively static and finite number of cinemas. During that era, in order to protect the rights to show films in a highly delimited number of outlets, the tradition was to base film rights on exclusivity.
However, it could be argued that more recent developments in visual media render this traditional view redundant. In our era the emergence of new digital TV stations, satellite television, the internet, DVDs and other developments has led to a massive expansion of types of media and world viewer base for movies. Together these developments mean that the international market is potentially infinite.
This in turn means there is no pressing commercial need to protect through exclusivity. In a rapidly expanding media market of almost infinite extent, it doesn’t matter how many variations of a particular film may have been made, the only significant limit to commercial and critical success of a movie is the quality of the work and its capacity to entertain.
Traditionalists will argue that a fundamental shift in the way film contracts are treated in law will have unpredictable and potentially detrimental consequences. They will suggest that the principle has not been tested, and that alone is sufficient reason to view the proposed legislation with suspicion. The market is not passive, they will continue, and it may react in unexpected ways in order to counter such legislation.
I believe these doubts can be set aside, and genuine critics reassured. The chief elements of the system which I advocate already exist in the case of material which is out of copyright — I am thinking in particular of material in which the author died more than seventy years ago. Here there is no exclusivity, and the results are truly liberating. In this second market — the market in properties out of copyright — we can observe the powerful benefits of the system I am proposing.
Take the case of Jane Austen. When a producer or studio makes a new movie version of Pride and Prejudice, say, there is little or no fear of the existence of earlier adaptations. If the new version is effective, and entertains an audience, it is on a level playing field with all the other movies in the world. This means that fine narratives such as Pride and Prejudice can be constantly reinterpreted, viewed afresh, and that a huge variety of adaptations are possible. We — in particular the international audience for movies — are all immeasurably enriched by the freedom to make variations of her work. Whatever our view of her original books, we are far more likely to find something which we would like to see — from more classical versions which attempt to be true to the original such as the much-loved BBC series with Colin Firth as Darcy, to the celebrated 1940 MGM movie starring Greer Garson, to more free-wheeling or wide-ranging adaptations such as the successful series of films based on Bridget Jones’s Diary — which overtly utilises Austen’s central plot, even to the extent of calling its male hero Darcy.
While we are on the subject, consider too the rich variety of screen interpretations of another Austen classic, Emma, ranging from various film and TV versions to the entertaining and well-reviewed teenage movie Clueless, in which the original story of a beautiful but somewhat arrogant match-maker has been entertainingly transformed into a modern coming-of-age parable.
If Austen were a contemporary writer whose works were subject to standard exclusivity contracts, little if any of this array of rich offerings would be available to entertain the film-watching public. Instead, if we were lucky (remember that 90% of film properties under contract are never made) we would perhaps have a single screen version of one of her works, which (since she published only six full novels in her life) would be a very poor return on a great body of literature. This single film, “protected” from alternative versions by the usual exclusivity clauses, might or might not be any good. And that would be that.
In the case of work which is out of copyright, the absence of exclusivity has an extraordinary liberating effect on the range of interpretation which a strong narrative offers. Because of this, it is not perhaps surprising that the most successful Hollywood screenwriter in history, judged by the number of movies made of his work, is not some modern master of screenwriting such as William Goldman, but a certain William Shakespeare, who was born more than 400 years ago.
The great narrative virtues and vivid characterisation of Shakespeare’s works do not need my advocacy. But there can surely be no doubt that the number and variety of interpretations of his oeuvre which are now available have been immeasurably enlarged by the fact that his work has not been subject to the dark, inhibiting arts of legal contracts based on exclusivity. Instead we can enjoy, in the case of a single play such as Romeo and Juliet, offerings which range from a classic MGM version starring Moira Shearer and Leslie Howard, to more recent variations from talented directors such as Franco Zefirelli and Baz Luhrmann, not to speak of freer interpretations which include one of the greatest musicals of all time, namely West Side Story. Here again is an object lesson that the absence of exclusivity liberates an author’s work for the cinematic arts.
The example of Shakespeare should also teach us, once and for all, that the great medium of cinema is not a finite market, and that the presence of one film does not limit the success of another variation on the same theme. Cinema is not a zero-sum game, in other words, in which one film displaces another, but an expanding sum game.
At the risk of labouring this point, take two classic movies based on the same Shakespearean play. Laurence Olivier’s great Henry V, produced in Britain at the height of the German blitz during the Second World War, was also a paean to patriotism. When 28-year-old Kenneth Branagh’s version appeared in 1989, was its potential audience limited by the presence of the earlier film? On the contrary, the brash young pretender’s attempt to make an alternative to Olivier’s screen classic merely added zest to its reception. Did one film limit the audience of the other in any significant manner? The opposite, surely. Having thoroughly enjoyed Branagh’s darkly brutal and rain-sodden version, I cannot have been the only one to go back and admire afresh Olivier’s wartime film. In hindsight both works are widely regarded as superb contributions to cinema in their own right. They do not displace but, rather, burnish one another, as certain sporting events are burnished by great competing champions. Above all, they are a lasting monument to the values of not being satisfied with just one interpretation, however great it might be, but of allowing a thousand flowers to bloom.
The clear and obvious lessons to be drawn from a highly restrictive market dominated by exclusivity is that it is deeply impoverished relative to a free market in which exclusivity plays no part. I believe that if we legislate effectively, such legislation would represent the start of a benign revolution not only in cinema but in visual media in general. Furthermore the revolution (which I believe is now long overdue) would be an entirely logical response to the rapid expansion of visual media outlets and audiences over the last several decades. In the 21st century, the main obstacle in bringing quality entertainment to as wide an audience as possible is that despite an unprecedented expansion of media, the range of content remains highly limited.
Almost everyone would benefit from such legislation. Writers and owners of literary properties would know that selling the film rights to one production party would not represent their last chance of making a viable film; they would retain the right to negotiate and licence rights to other parties. Directors, too, would not live in fear of capricious critical opinion which likes to state that since their movie version is the only version, it must be true to the spirit of the book. On the contrary, by working in an environment where other variations are possible, directors would feel they have much greater latitude to make their own individual cinematic interpretations – in other words, not to act as the guardian of the literary work, but to make simply the best film that they can. For the rest of us, the mass of general moviegoers, we could be assured that – as in the case of Shakespeare and Austen – both more films and a wider variety would be made for our entertainment using the finest modern narratives.
The only people who perhaps would suffer are those studios and producers who might continue to attempt to prevent others from negotiating rights to make films on the properties they have contracted. But perhaps, knowing that their exclusivity clauses would be likely to be overturned in a court of law, that would be poetic justice.
The great narrative virtues and vivid characterisation of Shakespeare’s works do not need my advocacy. But there can surely be no doubt that the number and variety of interpretations of his oeuvre which are now available have been immeasurably enlarged by the fact that his work has not been subject to the dark, inhibiting arts of legal contracts based on exclusivity. Instead we can enjoy, in the case of a single play such as Romeo and Juliet, offerings which range from a classic MGM version starring Moira Shearer and Leslie Howard, to more recent variations from talented directors such as Franco Zefirelli and Baz Luhrmann, not to speak of freer interpretations which include one of the greatest musicals of all time, namely West Side Story. Here again is an object lesson that the absence of exclusivity liberates an author’s work for the cinematic arts.
The example of Shakespeare should also teach us, once and for all, that the great medium of cinema is not a finite market, and that the presence of one film does not limit the success of another variation on the same theme. Cinema is not a zero-sum game, in other words, in which one film displaces another, but an expanding sum game.
At the risk of labouring this point, take two classic movies based on the same Shakespearean play. Laurence Olivier’s great Henry V, produced in Britain at the height of the German blitz during the Second World War, was also a paean to patriotism. When 28-year-old Kenneth Branagh’s version appeared in 1989, was its potential audience limited by the presence of the earlier film? On the contrary, the brash young pretender’s attempt to make an alternative to Olivier’s screen classic merely added zest to its reception. Did one film limit the audience of the other in any significant manner? The opposite, surely. Having thoroughly enjoyed Branagh’s darkly brutal and rain-sodden version, I cannot have been the only one to go back and admire afresh Olivier’s wartime film. In hindsight both works are widely regarded as superb contributions to cinema in their own right. They do not displace but, rather, burnish one another, as certain sporting events are burnished by great competing champions. Above all, they are a lasting monument to the values of not being satisfied with just one interpretation, however great it might be, but of allowing a thousand flowers to bloom.
The clear and obvious lessons to be drawn from a highly restrictive market dominated by exclusivity is that it is deeply impoverished relative to a free market in which exclusivity plays no part. I believe that if we legislate effectively, such legislation would represent the start of a benign revolution not only in cinema but in visual media in general. Furthermore the revolution (which I believe is now long overdue) would be an entirely logical response to the rapid expansion of visual media outlets and audiences over the last several decades. In the 21st century, the main obstacle in bringing quality entertainment to as wide an audience as possible is that despite an unprecedented expansion of media, the range of content remains highly limited.
Almost everyone would benefit from such legislation. Writers and owners of literary properties would know that selling the film rights to one production party would not represent their last chance of making a viable film; they would retain the right to negotiate and licence rights to other parties. Directors, too, would not live in fear of capricious critical opinion which likes to state that since their movie version is the only version, it must be true to the spirit of the book. On the contrary, by working in an environment where other variations are possible, directors would feel they have much greater latitude to make their own individual cinematic interpretations – in other words, not to act as the guardian of the literary work, but to make simply the best film that they can. For the rest of us, the mass of general moviegoers, we could be assured that – as in the case of Shakespeare and Austen – both more films and a wider variety would be made for our entertainment using the finest modern narratives.
The only people who perhaps would suffer are those studios and producers who might continue to attempt to prevent others from negotiating rights to make films on the properties they have contracted. But perhaps, knowing that their exclusivity clauses would be likely to be overturned in a court of law, that would be poetic justice.
In the 21st century, it is surely difficult to contradict the argument that the world of the exclusivity clause is a false world, based on outdated fears and deeply flawed premises about the market. It assumes that the outlet for movies is small, fixed, finite, whereas in practice it is enormous, constantly expanding, effectively infinite. It assumes that by preventing other films from being made, it protects its own material. In practice, it merely confines the great majority of that material to darkness. It assumes that one film on a given subject satisfies the market, whereas in practice a good film on any subject whets the public appetite for an author’s work and increases interest in the subject matter.
In addition, the presence of one film on a particular subject is more often than not a fine marketing platform for another film on the same subject. The example of Austen and Shakespeare, whose cinema presence has flourished mightily in the absence of exclusivity contracts, demonstrates that even in the case of multiple versions of a single work, the public demand for effective and entertaining variations is effectively without limit. And that is the heart and burden of my essay. When we abolish the shadowy world of exclusivity clauses, we abolish an entire false world.
No grand subsidies, no national or state or regional interventions would be needed to generate this benign revolution, merely a simple and precise piece of legislation which would allow exclusivity to be challenged and overthrown in the courts on the grounds that the practice is greatly detrimental to the free development of the cinematic arts.
There are other examples in history of clear and well-judged interventions in markets whose benefits have been profound and unambiguous. To mention only one, the Plimsoll line, ensuring that ships were not dangerously overloaded, has had clear and almost wholly benign effects. Far from inhibiting the market by making ships safer at sea, the effect of the Plimsoll line was not only to save countless lives but to significantly increase international marine trade.In addition, the presence of one film on a particular subject is more often than not a fine marketing platform for another film on the same subject. The example of Austen and Shakespeare, whose cinema presence has flourished mightily in the absence of exclusivity contracts, demonstrates that even in the case of multiple versions of a single work, the public demand for effective and entertaining variations is effectively without limit. And that is the heart and burden of my essay. When we abolish the shadowy world of exclusivity clauses, we abolish an entire false world.
No grand subsidies, no national or state or regional interventions would be needed to generate this benign revolution, merely a simple and precise piece of legislation which would allow exclusivity to be challenged and overthrown in the courts on the grounds that the practice is greatly detrimental to the free development of the cinematic arts.
Make exclusivity agreements in movies unenforceable in law and eliminate the practice entirely from future movie contracts. Let the quality and entertainment value of a movie be the chief criteria of success. Set the movie industry free.
