Wednesday, March 14, 2007

A Novel Approach to Distribution and the Public Domain

Jonathan Lethem, the popular author of "You Don't Love Me Yet," and "The Fortress of Solitude" has hit upon a novel way (pun probably intended) to sell rights to his book. According to an article in the New York Times, and subsequently in Variety, he plans to give it away with no option fee, but with the stipulation that he eventually be paid 2% of the budget (once the film gets a distribution deal); and that after 5 years of exploitation, the ancillary rights enter the public domain. According to his website (and I first saw this quote in the NYTimes), he is "fitful of some of the typical ways art is commodified."
Bravo. Lethem is doing two really cool things. One, he is making it possible for smaller indie producers to take a chance on this, because they don't have to pay an extraordinary fee upfront. You agree to pay him based on the budget, but only if it sells. So, let's say you end up making the film for $2-Million, you sell it and owe him 2% which is $40,000. If you end up only raising $500K then you owe him less, and if for get the point. This in itself is a good model to consider for other aspects of film. For example, what if you could use stock footage in your doc based on this model, or even a richer variant - what if you agreed to pay a percentage of your royalties back to the stock footage holder based on the length of time the clip runs in your film (in proportion to the film) and on how much it sells? This would take away a lot of risk for producers (my film may never make a dime), and for rights-holders (I get nothing up front, but get more if the film is a success, and get my fair share proportionally). Anyway, it's a cool idea.

Second, he is preempting many copyright issues from the beginning. The film could be remade, an adaptation could be made, a etc without a lawsuit, or the possibility of being stopped by a lawyer. Why care about this? Well, think of "The Wind Done Gone." The book, a parody of "Gone with the Wind" was almost halted because of Lawsuits claiming that it wasn't fair use. It was, but without a really good lawyer (Joe Beck, of Atlanta, one of the best), many authors would have caved in to the legal threats and a valuable cultural conversation would have been missed. Imagine further if Disney couldn't have made "Snow White" because it copies the Brothers Grimm. (You don't have to imagine the irony that they then over-protect the resultant work, Snow White, in a manner that stifles creativity, we're living with those copyright laws).

Lethem cares about this deeply. He recently wrote a brilliant article for Harper's on this issue, and he understands that the ever-increasing copyright/commerce regime is harming creativity. He thus creates a legal way to ensure that his work can contribute to culture in an ongoing manner, and simultaneously allows the producer to exploit their rights for five years and make back their money.

It would be interesting to know if he intends for the DVD, etc of the work to enter the public domain after 5 years. I don't think this is what he intends, from the wording on his website, but that too would be a good idea. Yes, it limits the profit potential, but it allows a profit to be made, and ensures that the work could be used for education, etc and that it won't end up "stuck on the shelf" like so many films.

Anyway, what Lethem is acknowledging is that all authorship, all creativity, stems from something else. He is building upon other stories, other knowledge - perhaps creatively, but always, already having been done. Lethem's article in Harper's ends with a pretty nifty quote, itself referring back to a Saul Bellow quote, which nicely sums up his thinking:

As a novelist, I'm a cork on the ocean of story, a leaf on a windy day. Pretty soon I'll be blown away. For the moment I'm grateful to be making a living, and so must ask that for a limited time (in the Thomas Jefferson sense) you please respect my small, treasured usemonopolies. Don't pirate my editions; do plunder my visions. The name of the game is Give All. You, reader, are welcome to my stories. They were never mine in the first place, but I gave them to you. If you have the inclination to pick them up, take them with my blessing.

This is just one small new business model, but it's an interesting one and one that should be explored further.

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