Reboots, Remakes, Rights-Grabs & Reclamations

Remakes permit a studio to utilize previously acquired Intellectual Property, rather than acquiring rights to new, original creations from third parties.

 

 

Patrick Anderson Image by: Patrick Anderson | October 10, 2017

It seems you can’t turn anywhere without seeing news of another remake, reboot, or sequel in Hollywood. Less than five years after the critically maligned Spider Man 3, Sony, licensee of the Marvel character, rebooted the entire franchise, throwing out the Sam Raimi-led continuity in favor of a new vision in The Amazing Spider Man. Sony’s agreement with Marvel required the studio to continue making Spider-Man based films, lest the rights revert back to Marvel. But after the critically maligned The Amazing Spider Man 2 in 2014, the Marvel character was re-imagined in to the Marvel Cinematic Universe just 2 years later in Captain America: Civil War, before being given his own film earlier this year.

Comic book heroes are not alone in receiving the re-make treatment, however. Over the past 10 years, studios have remade or rebooted dozens of classic films, from classic horror movies (including Halloween, Friday the 13th, Poltergeist, and A Nightmare on Elm Street), to science fiction (The Day the Earth Stood Still, Robocop, and Total Recall). Even westerns (3:10 to Yuma, True Grit) have gotten in on the act. Whether studios go back to their own catalogs (e.g., Disney), or simply maintaining rights in a previously acquired franchise, their reasons for revisiting existing properties are as varied as the quality of these films themselves.  In total, an IMDb list identifies 135 remakes in production with projected releases over the next 5 years.

Remakes permit a studio to utilize previously acquired Intellectual Property, rather than acquiring rights to new, original creations from third parties. As with the Marvel example, remakes may also permit studios to retain rights they only possess pursuant to certain conditions. However, another contributing factor may be 17 U.S.C. § 203, which permits authors to terminate transfers and licenses previously granted to their works, and thus reclaim their Intellectual Property rights. However, the act only applies to an agreement executed on or after January 1, 1978 and explicitly states that termination may only be effected between 35 and 40 years after the date of execution. Artists may reclaim their rights by serving advanced notice at least 2, but not more than 10, years prior to an effective date that falls within the 5 year window.

As if all of that weren’t arbitrary enough, revocation under § 203 applies only to US Copyrights, resulting in a patchwork where authors regain their US IP rights, but studios retain rights internationally. Nevertheless, as authors and artists begin to service notices of termination, they initiate a clock that will expire in as little as 2 years, restoring Copyrights to the original authors (or their heirs) with one key exception: under § 203(b)(1), a derivative work “prepared” before termination may continue to be “utilized.” For example, a novel or screenplay licensed by a studio is an example of a transferred work, but the film adaptation is the “derivative work.”

Prolific author Stephen King is but one of many creators taking recent advantage of this procedure, diligently sending out termination notices as early as August of last year. Reclaiming rights to properties like Christine, Children of the Corn, Cujo, and Creepshow, (along with several others not starting with a “C”) King is set to retake ownership of many properties as early as September 2018. However, if these studios “prepare” a new film adaptation prior to the transfer becoming effective, they could conceivably continue to profit from that film pursuant to their original agreement  with King. An example of a film that was in production when a termination notice was served is The Beguiled, released in June 2017. Author, Thomas P. Cullinan’s surviving widow and son served a termination notice in January, with an effective date in April 2022.

 

Naturally, receiving a termination notice with 2 or more years of advanced notice could incentivize studios to complete production for properties in which they have a significant investment, overall helping creators by discouraging rights from being left on the shelf. On the other hand, it may also incentivize studios to limit acquisition of new properties and focus on developing in-house IP as a means of ensuring longevity and stability.

Contrast a Time Warner, which has received well over 1,000 termination notices to date, with Disney, which has an equally large catalog of properties, but fewer than 50 notices. Whether this ultimately helps or hurts creators remains to be seen.

What do you think?

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