Rights

Breaching copyright (intentionally or otherwise) by writing and trying to sell a screenplay based upon previously published material can have serious legal consequences down the line. Our Writing the Fact-Based Film 101 series does a whistlestop tour of “rights” to highlight some key issues.

Note: The following is not a comprehensive guide. You are always advised to seek specialist advice and to conduct your own investigations into rights ownership.

Original story or based on…?

Look at the list of Academy Award nominees for screenwriting over the years and you’ll see two separate categories – original and adapted.

As a writer, you can come up with a completely original idea or you can adapt a novel, stage-play or other source material to which you (or the producer/studio) need to own the rights. This gets a little less clear with the fact-based film, as they can fall into either the ‘original’ or ‘adapted’ category.

Sometimes a fact-based film is based upon a credited source, such as a non-fiction book or magazine article, or several such sources. In other cases, the story has been pieced together from a combination of historical and journalistic sources. In all cases, there is an element of “making stuff up” (i.e. creativity), which can muddy the waters even more.

Obtaining the rights to source material

If you want to adapt specific source material, you need to have the rights. This means “optioning” the material from the rightsholder. Rights are usually granted for a set period of time, giving you the opportunity to write the script and sell it within a defined time-frame. Extending this period may be possible, if needed.

Rights, more often than not, come with a fee that you (or a lawyer working on your behalf) negotiates. For high-profile material, this could extend into four or five figures, whereas for more obscure material, it could be far less.

Whether you want to go this route is up to you, but we would always recommend seeking legal advice before proceeding. A contract will be involved and it’s important both parties are clear about their rights and obligations before proceeding.

No-one owns the right to history, but…

The good news is that, in general, you are free to tell a story based on historical events where all the information is widely and publicly available via multiple sources.

Likewise, ideas and concepts are not protected by copyright. There are historical incidents that actually happened, and you are free to exploit these for creative purposes and to adapt them for a screen narrative.

What copyright does is protect the expression of ideas, i.e. the way a certain author chose to write their book or article. This is where it gets complicated. In general, the more specific or obscure the story you choose to tell, the shakier ground you are on, and the more likely it is that you will rely on fewer sources.

Public domain

One big exception to rights infringement that may apply to material you want to adapt is if that work has entered the public domain. This is freely available published material that anyone can adapt without obtaining the rights.

Generally, a work enters the public domain after a set period of time following the author’s death or when the copyright expires. Authors can also choose for their work to be placed into the public domain. The good news is that additional material enters the public domain each year.

A few common questions on copyright

If I don’t own the rights to the source material, can I still adapt it?

Yes, but if you want to sell the screenplay or publish it, etc., you may well run into problems, unless it’s in the public domain.

But isn’t this kind of thing the studio/producer’s job?

Technically, yes. Much of it depends on the stage you are at in your writing career. If you have representation, you can talk your agent about rights issues. However, if you’re just getting started and are writing spec scripts with the aim of getting representation or winning competitions, etc., you’re likely on your own.

If your script gets attention from the industry, always be upfront about sources. Studios have legal departments, which will scrutinize all aspects of the scripts it buys. It also shows professionalism if you demonstrate an understanding of rights issues as they relate to work you want to sell.

Do I need the rights to tell someone’s life story?

Potentially. If the person is living, there are issues including defamation, privacy, and other legal protections that you could be violating.

If you come across an interesting living person whose life you want to fictionalise, you might wish to consider a Life Rights Agreement. This is a document the subject signs, which basically gives permission to fictionalise their life and offers the filmmakers involved legal protection.

Can I adapt material I wrote myself?

Again, potentially. However, you need to check whether the rights to that material have passed to another party. For example, if you wrote an article or book that was subsequently published, the publisher may own the rights. However, if you wrote the article for your own blog or self-published the book, you should be fine.

Can I take a real-life character and put them into a fictional situation?

Possibly. Again, you have to watch for issues such as defamation and privacy. You also need to be aware that fictionalising events may not be enough to protect you from copyright claims.

This is not to dissuade you from taking a creative approach to telling someone’s life story. It’s how you go about it that’s important. Telling someone’s life story on screen is an extremely grey area and expert advice is best sought before you proceed.

If in doubt, fictionalize.

There’s also nothing to stop you from basing a fictional story against a historical backdrop. So, if you’re in doubt about whether you need to obtain the rights to the true story you want to tell, it may be time to consider going the route of writing an original story to avoid any issues.

Overall…

If you want to base your screenplay on published material and don’t own the rights, you can get into a lot of legal trouble if you go ahead, while torpedoing your chances of commercial success.

So, do your homework and seek out the advice of experts (which we are NOT). There is plenty of information online on this topic, but it is important that you don’t rely on random sources.

Sources / useful links