May 3, 2006 · Tim Wu
A relatively little-known fact outside of copyright practice is that movie studios regularly purchase the film and television rights to newspaper stories. Yes, newspaper stories, which by their nature, report on facts or ideas, two things the copyright law does not protect. So what are studios buying?
In 1997, the New York Times reported on the story of Tim “Ripper” Owens, who rose from being a lifelong Judas Priest fan to becoming the actual lead singer of Judas Priest. As Times writer Andrew Revkin wrote:
Mr. Owens has risen from devotee to icon, from metal-head to metal-god. He is about to be transformed from a hard-working singer in a cover band and a suit-wearing traveling salesman of office supplies into Ripper Owens, the new lead vocalist for the band he once worshiped. It is as if a sandlot baseball player not only got a chance to play in the majors but got to be Cal Ripken Jr.
Great writing and a great story. Good enough to inspire the 2001 film Rock Star, starring Mark Wahlberg and Jennifer Aniston, for which, I am told, Warner Bros. paid the New York Times for the movie rights.
But wait — what movie rights? According to basic copyright law, and as interpreted by the Supreme Court, the facts of Ripper Owen’s life are free to be used by anyone. There is, according to the law, almost nothing to purchase. Reading the story out loud during the film would be a copyright violation, but under U.S. law, little else would borrow the expression as opposed to the facts.
So the existence of these licenses are, from principle if not practice, something of a mystery. I’ve heard a few explanations, though perhaps a reader has a better explanation than what I’ve heard.
One answer is that the rights aren’t expensive — the New York Times typically asks for several thousand dollars. In return, perhaps the reporter will help with the movie. So why not just buy the rights? Yet that’s still money. Why would anyone pay several thousand dollars something that doesn’t exist? Its like buying property in never-never land.
The supplementary answer is that studios are preventing even a remote risk of a lawsuit brought by the New York Times. This answer, if it’s true, is interesting, because it suggests that even if the law clearly says these rights don’t exist, people will still pay for them as if they do — its as if there’s no use even having the idea exception in copyright. It also suggests that the studios may be getting incredibly conservative legal advice, and wasting money thereby.
A final answer might be that the purchase is just an industry signal. It is no secret that preventing excessive competition is helpful to the film industry, like any industry. Two versions of Rock Star might make everyone’s life difficult (though maybe good for consumers). So by pretending that the rights actually mean something, the market can be divided between what would otherwise be competitors.
That’s a rather skeptical view. As things turned out, Judas Priest also, eventually, wanted more creative control over the movie — though of course they had no relevant rights to the story. Warner Brothers eventually took out all references to Judas Priest, and the resulting film though I haven’t seen it, was panned by critics. The usually generous Hollywood Reporter wrote “This is a completely generic movie that hits all the expected notes in a pat, formulaic way.” Oh well.
(Thanks to Jennifer 8. Lee for passing on the Judas Priest “Rock Star” example).