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).

  • http://aspoke.com/ Antoin O Lachtnain

    Have you followed the Da Vinci code case? What it seemed to come down to was that the defendant had based his book on the ‘history’ book written by the plaintiffs. The case seemed to be made that it was ‘speculative’ history rather than ‘regular’ history. (http://books.guardian.co.uk/danbrown/story/0,,1749361,00.html)

    One other reason why it would be worth buying the rights is because of the unlikely possibility that the story might have been fabricated in whole or part. A false, fabricated newspaper newspaper story would enjoy a much greater degree of protection than a true one.

  • http://www.chuckivy.com Chuck Ivy

    It also brings to mind the case I mentioned to Prof. Lessig a few years ago involving Paramount asserting exclusive film rights to H.G. Wells’s “War of the Worlds”, even though the story itself has fallen into the public domain. (Wells heirs having signed a contract with Paramount in the 50s bestowing such rights, and the courts upholding that contract (trumping copyright law?) within the last 10 years.)

  • http://www.frozennorth.org/ Shivering Timbers

    They’re probably buying cheap lawsuit insurance, so that if anyone ever tries to assert rights to the story, the studio can point to the fact that they based the movie on a particular newspaper article and paid for the rights.

    Along the same lines, if you have a fictional character in the movie named “Joe Schmidt,” you can go find a real person named “Joe Schmidt” and pay him ten bucks for the right to use his name. That effectively insulates you from being sued by any of the other fifty thousand “Joe Schmidts” in the country.

  • http://ourfounder.typepad.com Jim Benson

    I agree. This sounds like a hedge to me. Partially law-suit insurance, partially payola for the media. They may also be buying the time of the reporters that worked on the story – but in a way that doesn’t appear to compromise their integrity. With the purchase of the rights, the studios probably get some face time with the reporters who aid the screenwriters.

  • Bruce

    Tim, interesting post, I wasn’t aware of this practice either. But it doesn’t strike me as deeply puzzling and I doubt we need to resort to cynicism to explain it. Your questions all presume that there is no copyrightable expression in the original New York Times story, which is false. Granted, the facts of the subject’s life are not copyrightable, but distinguishing between where the facts stop and the expression begins is going to be difficult if it ever gets litigated. Suppose the reporter’s colorful description of Owens makes it into the movie, or a few select quotes that were taken (compiled?) from an hour-long interview. For a short article, the likelihood of a successful infringement claim is probably low, but that’s what the nominal fee reflects.

    The explanation here is that, as much as copyright scholars often focus on licensing’s effects on small producers and individuals, the major studios deal with the same problems. No one wants another 12 Monkeys case; particularly if it means an injunction that could threaten the incredibly careful timing of when the movie opens. Avoiding even an infinitesimal risk to that schedule is worth a few thousands.

  • nerpzilla

    I have always felt these kind of deals are simply an attempt to create rights through custom and broaden claims to their own IP. If the large media companies “play nice” with each other when it comes to broad copyright, perhaps they can build a precedent for an outrageous claim of copyright protection or assertion of rights later. If sombody wanted to steal the “rockstar” movie idea, WB could threaten to sue, claiming they had purchased the rights to it. Obviously, once you got to the appellate court, WB should lose miserably on the claim, but maybe the perception of a protectable right is enough to squash the competition.

    Similarly, there’s the cross-licensing and patent sharing amongst big software companies. Any one of them has the resources to challenge the sham patents of the others, but they don’t so that their own sham patents don’t get challenged. But if the little guy tries to challenge one, the whole group can demonostrate how much the patents are worth – why else would they have paid for a license for them? PR more than legal, but maybe every little bit helps.

  • http://nancyscola.com scola

    Without having read the story you mention, there’s something to be said for the idea that the what they’re paying for isn’t facts — it’s the writer’s narrative. I mean, the Perfect Storm is just an account of a real boat that really sunk, but Sebastian Junger deserved to get paid to turn it into a movie. Not only did he do the interviews and fact gathering that turned history into a story, he also dreamed up the outline and decided what bits of fact and color were relevant. Hard work. Doesn’t matter, I think, if it’s non-fiction — if it’s (well-done) creative non-fiction then it makes sense that the author created a great deal of expression that he or she has rights to.

  • SP

    This is only kind of related but when a movie studio buys a popular book (i.e. Harry Potter), it will also buy the rights to the foreign language tranlations of that book from the various translators. Why? My best guess is that so when the movie comes out in a territory and is dubbed into the local language, the translator won’t sue the movie studio for dialogue that was similar to their book translation.

    Does this seem a little odd to anyone else?

  • Bruce

    A translation is a derivative work, and there can be separately copyrightable expression in a derivative work (the new bits — in this case, the necessary alterations needed in order to make a translation work). If the translators own the DW rights, that must be what the studios are paying for — although I would have thought with most recent works, e.g. Harry Potter, the translations would be works-for-hire owned by the publishing companies.

  • http://bblfish.net/blog Henry Story

    It could be that they really want to add extracts of the story into the film. After all many hollywood movies love to say that their “story is based on real facts”. Having the article from the newspaper flash across the screen or appear in their advertising campaign could be very useful.

  • http://www.davecopeland.com/blogger.html Cope

    Hmmm….interesting discussion all around, but I’m not sure movie studios actually buy the rights to the story from the newspaper. I’ve been a journalist for more than 10 years and I am currently working on a nonfiction book that will hopefully one day result in a sale of movie rights.

    Usually what will happen is the subject will be paid for the rights to his or her story. That gives Hollywood the right to bend facts and weave a narrative that will work better given commerical and narrative constraints. In the example you gave, the rights were bought so the story could be fictionalized; in other cases, the facts might only be altered a bit, but they are still presenting something different than what actually happened. THe payment to the subject prevents future lawsuits.

    The Insider is a good example of a Vanity Fair magazine article that was made into a movie. In that case, both the subjects and the writer received payments because the writer’s work and access to information was so crucial to telling the story. Yet even in that case there was some manipulation of facts.

    But generally speaking, if a studio is going to make a movie that sticks solely to the facts of an incident they do not have to and will not have to pay the publication that reported it. They will probably will still pay the subject because facts are sometimes open to perceptive intepretation.

  • Tim Wu

    The points made here are good. I didn’t suggest there is nothing copyrightable about newspaper stories, but obviously not the underlying facts.

    But perhaps the argument is that just in case they want to life turns of phrase from the story, they have the license.

    A Jennifer 8. Lee ancedote inspired this posting. She has people interested in licensing her article called “Man date,” which is about how guy friends sometimes feel akward going to dinner together. Great story, sure, but why would someone want pay for a film license for it?

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    I find that these things are best discovered by asking the actual people involved what it’s about. Otherwise you only create a silly game of Chinese Whispers. So, what did Jennifer 8. Lee’s (is that a real name?) prospective customers have to say about this? And do you know any other film studios that licensed facts? What did they have to say when you contacted them?

    The reason why it seems so appealling to believe that there are companies out there that buy non-sellable things, is undoubtedly because we have all heard people assume that copyright laws are stricter than they really are.

    BTW, I too have (unanswered) questions to the copyright lawyers, and added one to the list: who owns the copyright to an interview?

  • Bruce

    But perhaps the argument is that just in case they want to lif[t] turns of phrase from the story, they have the license.

    I’m not sure “want to” is the right verb; I think the concern is with “lift subconsciously,” or “are alleged to have lifted.” Determining where the copyrightable expression is and whether bits of a film are “substantially similar” is hard, either ex ante or ex post; much easier just to get a license. Maybe I’m missing what’s driving your concern, but it really seems pretty straightforward to me.

    Branko, “8″ is her real middle name; and great question about interviews. There’s surprisingly little case law. There’s an old case involving Hemingway, but the court found that Hemingway granted the interview with the understanding that it would be published, so without deciding the issue of interviewee ownership, they concluded that even if he owned the copyright he had impliedly licensed the reporter to publish it. The case pre-dates the 1976 Act, which is why it discusses “common-law copyright,” which no longer exists.

  • Tim Wu

    The copyrightability of an interview was on an exam of mine, featuring Ali-G.

    The hard question is, what if the interviewee does something like compose a limmerick during the interview?

    The many joys of copyright.

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    OK, so I did some Googling myself, and this publisher’s organisation’s lawyer has some info on the subject. According to him, things aren’t as clear cut and their have been courts that have found either way. He also mentions that the copyright could be joint, or split over the different parts of an interview.

    BTW, I am going to steal you guys’ comments for my blog, if you don’t like it, my hosting provider is a known walk-over.

  • Iain MacKinnon

    On the issue of who owns copyright in an interview, in Canada (and UK) the law is fairly clear that the author (or interviewer) owns copyright. An Ontario Court of Appeal case involving the estate of Glenn Gould upheld this principle where an author published a book based on photos, notes, and tapes recorded from interviews he did with Gould 40 years earlier. The estate argued that it owned copyright in those materials. The court found that the author owned copyright.
    Short summary of case:
    http://en.wikipedia.org/wiki/Gould_Estate_v._Stoddart_Publishing_Co._Ltd.
    More details of facts and judgment:
    http://www.robic.com/publications/Pdf/142.094.pdf

    A subsequent Federal Court of Canada case made the same finding where a publisher took parts of a book on Shania Twain and used those parts in a new book on Twain. The publisher argued that the parts taken could not be subject to copyright protection by the original author because they lacked originality and were simply facts about Twain’s life. The court distinguished the U.S. law in this area and followed Gould. It found that the original author/interviewer owned copyright in the interview with Twain and that the publisher infringed the expression of the facts, not the facts themselves.
    More details here: http://tinyurl.com/mdmr6
    and here: http://www.dww.com/articles/fedcourt.htm

  • http://www.socallawblog.com Justin Levine

    “The industry custom of obtaining ‘clearance’ establishes nothing, other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits such as this one.”

    [Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318]

  • Iain MacKinnon

    On the issue of who owns copyright in an interview, in Canada (and UK) the law is fairly clear that the author (or interviewer) owns copyright. An Ontario Court of Appeal case involving the estate of Glenn Gould upheld this principle where an author published a book based on photos, notes, and tapes recorded from interviews he did with Gould 40 years earlier. The estate argued that it owned copyright in those materials. The court found that the author owned copyright.
    Short summary of case:
    http://en.wikipedia.org/wiki/Gould_Estate_v._Stoddart_Publishing_Co._Ltd.
    More details of facts and judgment:
    http://www.robic.com/publications/Pdf/142.094.pdf

    A subsequent Federal Court of Canada case made the same finding where a publisher took parts of a book on Shania Twain and used those parts in a new book on Twain. The publisher argued that the parts taken could not be subject to copyright protection by the original author because they lacked originality and were simply facts about Twain’s life. The court distinguished the U.S. law in this area and followed Gould. It found that the original author/interviewer owned copyright in the interview with Twain and that the publisher infringed the expression of the facts, not the facts themselves.
    More details here: http://tinyurl.com/mdmr6
    and here: http://www.dww.com/articles/fedcourt.htm

  • JD Houston

    Their purchase isn’t based on copyright at all. It is a relatively cheap
    defensive move against legal actions based upon invasion of privacy, defamation or libel, and the right to publicity. Although the preferred mechanism is to make a deal with individuals who are part of the story, when this isn’t possible, it is good to have a deal with a “paper of record” that reported upon the story. This provides at least one addition to a defense based upon pre-existing facts. A newspaper has somewhat greater protection under the first amendment for reporting a story than does a work of entertainment for telling a story.

  • ted

    The movie “Rock Star” had a reference to Judas Priest and Rob Halford, by showing “Metal God” during one of the film’s montages. All Priest references were not removed.

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