Friday, August 3, 2012

Why optioning your characters may be a horrible idea

If anyone asks to take an option on your characters as opposed to on your next project of whatever type, you might be tempted to say yes. Think hard before you do.

The general rule of entertainment contracts is that buyers want to buy as much as possible and sellers want to sell as little as possible. So a character license may seem like the best of both worlds: if you work with the same characters then the publisher/studio/whatever gets a first pass (I'll use publisher to keep things simple), but if you don't work with those characters then the publisher has no claim on whatever you do and you can take it wherever you'd like.

Or so you may think.

In an ordinary option clause, the company taking the option is reserving for itself the right to be the first one to consider the next thing you do that meets the criteria of the option. So the important thing in any option clause is defining what is and isn't covered. And character options risk giving you a false sense of certainty here.

If you've written a thriller where your lead character is a detective in his early 40s and then you move to a young adult romance about a girl in high school, or a from video game about World War III to one about jousting cartoon animals, you shouldn't see many issues here. But most of us specialize in our content creation pretty quickly. You probably won't see me talk about criminal or divorce law on Legal Minimum, for example. And if you've been successful writing one police procedural or creating a tower defense game, the odds are you'll return to that genre.

That's where the problems can hit.

Remember how I mentioned that these options give you a false sense of certainty? This is why. Because it's too easy for someone to argue that, although you've changed your hero's name and job, really your new character is the same as the one under option. You may think they're totally different, but if a publisher doesn't agree (or just cynically wants to make sure no one else gets access to your book) then you'll end up in front of a judge. And unfortunately this would be a really expensive lawsuit: believe it or not you'd need expert witnesses to testify why the characters are different, which means both that you have to hire someone to do that and that you will absolutely have to go to trial.

You might think this is a hypothetical issue. But if you manage to sell tens of thousands of copies of your next book and reviewers start talking about similarities in the characters, your publisher may make this very non-hypothetical very quickly.

If you do end up considering a character option, use these four criteria to help you get the specificity you'll need:

  1. Specify the relevant characters. Don't let the clause be broad enough that it covers any character, even the taxi driver who only appears for 3 paragraphs on page 42.
  2. Specify the relevant name in the clause. If you've specified that your publisher gets your next book involving John Smith, then that's who they get. Characters with other names aren't covered.
  3. If you can't specify the name, specify the character traits. If John Smith was a detective in his early 40s, then try to put those facts into the clause. That way if you do a story about a detective in his early 30s it shouldn't be covered. The more traits the better.
  4. If you can't get either of those, then at least specify that the character has to be doing the same activities. John Smith was a detective solving crimes in New York. If your book involves a person on vacation in Florida, then no one should be able to argue these two characters are the same, even if the characters do have some accidental characteristics in common.
And one thing to do if you've had to give a character option: make sure when you write the new bios, you spell out enough characteristics that you won't accidentally draw on the same characters twice.

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