James Napper

Right of Publicity, Reversion Rights and Turnaround

by James Napper, III on July 16, 2014

Letters-of-the-Law-Header-webIn Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to lettersoflaw@scenelouisiana.com. To contact James Napper directly, email jnapper@napperlaw.com or visit www.napperlaw.com.

A well-known actress bought a shirt from my store and my employee took a picture of us! I’d love to use it in any way possible to help promote my business. What kind of restrictions are there? Can I use the photo on my website? Can I use it in an ad I’m running?
The short answer here is, no, you may not use the image in any commercial way. This presents an intellectual property issue known as the right of publicity. Stated simply, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

Without the express written authorization of the actress, the proposed uses of this candid photograph would be an unauthorized commercial use of this actress’s likeness, name and persona.

I am a young screenwriter and I have a production company seeking to option one of my screenplays. I was told by a colleague that I should ask for reversion rights or a turnaround provision. What are these?
First, let’s discuss reversion rights. When a producer is optioning a property, they do not acquire the actual rights in that property until they exercise the option, meaning they exercised their exclusive right to purchase that property outright in the designated period of time wherein they had an exclusive option to purchase the property. The most common form of reversion rights found in an option agreement simply requires that if the producer does not exercise the option within that period of time covered by the option agreement, the option rights held by the producer will terminate and all rights revert to the writer.

Additionally, many writers will request reversion rights even after the option has been exercised and the property purchased by a producer. For example, some may request that if the property is not produced within three years of the exercise of the option, the rights revert to the author. At this stage is where you might see a turnaround provision.

If the producer has exercised the option and paid the purchase price, they have then acquired all rights in and to the property that were granted in the option agreement. They now own those rights wholly. For this reason, many producers are willing to agree to a reversion should the property not be produced within a specified timeframe, provided that they are paid the purchase price plus any verifiable out-of-pocket expenses for development of the property.

This is usually accomplished in one of two ways. Firstly, the rights revert back to the author upon the expiration of the designated time period, subject to a lien for the purchase price and development expenses. Or secondly, a turnaround provision that grants the author a turnaround right, which is a right for a designated period of time in which the author can exercise the right and pay the purchase price and any development expenses as agreed to in the option agreement, and the rights will then revert.

I hope this has provided some clarification to you on what reversion rights and turnaround provisions are and the purposes they serve in an option agreement. It would behoove any screenwriter trying to sell or option any of their properties to seek the counsel and guidance of an experienced entertainment attorney as these are very specific areas of the law and protection is essential.

About James Napper, III
A Louisiana-based attorney who specializes in intellectual property and entertainment law, James Napper, III, J.D., LL.M. is a graduate of the The George Washington University Law School in Washington, D.C., where he studied intellectual property law. He is a recipient of the Stephen T. Victory Memorial Award for “Who Dat: The NFL, New Orleans, and the Implications of LSU v. Smack Apparel,” and the author of “Life as Art: How Technology and the Infusion of Music Into Daily Life Spurred the Sound Recordings Act of 1971,” which was selected for inclusion in the 2010 Entertainment, Publishing and Arts Legal Handbook.

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