Plenty of filmmakers are inspired by their favorite novels, but does copyright law allow filmmakers to make movies based on an author’s characters or plot?
Let’s assume that you are a tremendous fan of the Fifty Shades of Grey series of books (don’t worry, we won’t judge you). Let’s imagine that, in particular, you think protagonist Christian Grey would make an excellent spin-off character for a storyline about a man who tried and failed at love, and redeemed himself by going on a year-long backpacking adventure across Southeast Asia. Shunning his misogynistic ways, Grey’s travels led to his self-discovery, where he learned to practice faith and charity and did his part to end hunger in the region. Sounds like a total departure from the original storyline Grey was given in Fifty Shades, right? Sure, but that doesn’t mean you’d be able to write the movie without express permission from author E.L. James. We’ll discuss why below.
Copyright Law and Derivative Works
Copyright Law protects original works of authorship, fixed in a tangible medium, with a minimal degree of creativity. Copyright is applied to the work from the moment it’s created, meaning a copyright holder wouldn’t necessarily have to register a work with the Copyright Office in order to have copyright protections (of course, it always helps when you do). As a copyright holder, you are guaranteed certain protections. For example, you are the only person who can reproduce, distribute, display, publicly perform or make derivatives of the work.
Right about now, you may be thinking “Great! I’m not copying this work, I’m just taking a character and making a totally new work.” Not exactly, because what you’re doing would be considered a derivative work under copyright law.
According to U.S. Copyright Law, derivative works are “works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.'”
If you’re taking a character from someone’s novel and adding it to your own story, you didn’t create that character yourself – meaning you are now creating a derivative work of someone else’s protected copyright. And the only way you will have permission to do so is by getting express permission from the copyright holder themselves, unless you can show that your use of the character can be considered fair use.
Fair Use and Derivative Works
As we’ve outlined in our Law of Creativity e-book, fair use is a doctrine used by courts to determine whether a work that infringes on a copyright has a higher meaning that can excuse the work from infringement liability. In 1976, the U.S. Copyright Office created a Fair Use Index of the overwhelming case law on the subject. Courts tend to measure fair use by these four prongs:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; does the new work change the meaning of the copyrighted work for a new audience?
- the nature of the copyrighted work; is it informational or just entertaining?
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; how much of the original work is used in the derivative?
- the effect of the use upon the potential market for or value of the copyrighted work. Would the sale of the derivative work affect the original author’s profitability?
It’s important to note that these factors aren’t exclusive, but rather a court can make their decision if they find that just one or two circumstances are met. For example, a court may decide that the use of one character in a larger storyline is considered fair use or they may refuse to decide its fair use unless another prong can also be met.
In our Fifty Shades example, a court might decide to proclaim that it’s fair use if you can sufficiently show that your movie had some higher purpose than entertainment, but you would probably be hard-pressed. You see, fair use has been decided so differently by so many courts across the country, that it’s almost impossible to know which way they’re going to rule. In most cases, unless you can show that your use of a character from a novel in a film has some informational or educational purpose, you’re probably out of luck for a fair use finding. In that case, you’ll have to go the traditional route and simply ask for permission.
Who Owns the Copyright in a Derivative Work?
For all intents and purposes, let’s assume you asked E.L James for permission to use the character and she’s both flattered and thrilled that you chose to do so. But once you create your self-discovery film using the character Christian Grey, will you own the copyright in that work?
The answer is a little more complicated than ‘yes’ or ‘no.’ While it’s true that the new work will be copyrightable, you won’t be its sole copyright owner. According to the Copyright Act:
“The copyright in a… derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”
In other words, both you and E.L. James will have dual copyright ownership in the work, and neither of you can reproduce, distribute, perform or make derivatives of the movie without the express permission of the other. So how do you resolve the issue? The best thing to do is to make a licensing agreement, so each person’s rights and obligations attached to the movie are defined.
A licensing agreement grants one or both parties the exclusive ‘license,’ or right, to use a work. Licenses can be granted for use of an entire work, or grantors can choose to license only a specific element of a work. In this case, for example, the author would grant a license to use the main character of her novel. You still wouldn’t have permission to use any other aspect of the work.
Your licensing agreement should be as detailed as possible so there are no future issues. Some central tenets to your licensing agreement will the scope of your roles and the level of input. Will James co-write the script with you, or will they be completely hands off? If they don’t like the direction the character is headed, will they have veto power? Does James have any type of creative control over the story, or are you completely in charge? You should also map out how often you’ll meet in accordance with the project, if at all.
Most importantly, you’ll need to work out payment with the author, to ensure that they are fairly compensated for the use of their character. In some instances, the author may want a cut of your earnings if the film is successful – unfortunately, this is probably something you will have to yield to, since the movie wouldn’t exist unless you had permission to use the character in the first place.
You’ll also need to work out credits and bylines for the film since the author will undoubtedly want others to recognize that the character is her creation. Lastly, you should map out the duration of your rights – does your ability to use the character expire after a certain time period? Does the author’s right to claim copyright in the film expire? Once you’ve hammered out all of the relevant positions, you can create with peace of mind.
Finally, you may be wondering, how do all those fan fiction films get away with using characters from other movies or books? In our article, How Can Fan Fiction Authors Use Other Author’s Works?, we discussed how fan fiction has much more to do with public relations than it does law. While technically copyright infringement, authors generally don’t sue their fans. We said:
“The likely reason probably has more to do with public relations and less to do with law. Creators really don’t want to anger their biggest fans, especially with the gossip box that is the Internet. It isn’t hard to see how suing a fan, whose only desire is to be part of the magic, could be a PR nightmare. The backlash could turn fans against the author. “
Also, the hallmark of fan fiction is that the works do not generate any income for the producers. Once the producers start making money from another author’s work, the next step is usually a cease-and-desist letter and possible lawsuit. So, if you want to make a film from other authors, you may be able to get away with making fan fiction, but if you want to your film to be a commercially available for a fee, then you should work out a licensing agreement with the author.
Got any other copyright questions? If you’re a filmmaker thinking about adapting a book’s characters for a movie, we’d like to hear from you!
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.