Copyright Infringement Question

Yes, you will be violating copyright to show it to anyone in a position to purchase or otherwise compensate you.

In fact, I hear that many agents and prodcos will take the time to inform the author, the publisher, and whoever's holding the option on the rights of the violation, not because they're jerks but to protect themselves legally. So it's a really terrible idea.

Even if your script is great and they want to buy it, you've put yourself over a barrel if you do that. They cannot legally buy a work which violated copyright.

Maryn, cobbling together advice heard at various screenwriting boards

Pryce said:

If I write a screenplay based on a novel, the film rights to which are owned by a production company, and send the screenplay to that production company, would I be risking any legal action against me?

Thanks

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You could be in violation just by writing it whether you try to sell it or not. If the screenplay can be considered a "derivitive work," you can write it only with the express permission of the copyright holder of the novel.

To write it is a violation it would seem. Not sell it or give it away, but just write it. In the privacy of your own home. Copyright law is kind of vague on that point, using terms such as "make" and "prepare."

http://www.copyright.gov/title17/92chap1.pdf

Do a search on "derivative" for all the information you never wanted to know.

(I am not a lawyer.)

Yes. Yes you would.

There are people in this world who operate on the assumption "It's easier to get forgiveness, than permission." - But they've never had to deal with a lawsuit... yet. First things first.

Most ProCo's won't accept unsolicited submissions of ANY kind.

If you are interested in doing the screenplay for the production company, send the company a proposal and ask if they would look at your work on spec.

Al Stevens said:

You could be in violation just by writing it whether you try to sell it or not. If the screenplay can be considered a "derivitive work," you can write it only with the express permission of the copyright holder of the novel.

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This is a fairly extreme interpretation. I've never heard anyone say that just writing fan-fic (which is, in essence, what the OP was proposing) is illegal. It's putting it 'out there' in public -- which, yes, includes submitting it to publishers and production companies -- that's a violation of copyright law.

Many young writers cut their teeth by playing in other people's sandboxes. There's nothing illegal about writing stuff, as long as you keep it to yourself if it infringes on other people's copyrights.

(I, too, am not a lawyer. But I am someone who has been involved in a case where my copyright was infringed and the case was settled out of court. I have pretty strong opinions on the subject. )

Pryce said:

If I write a screenplay based on a novel, the film rights to which are owned by a production company, and send the screenplay to that production company, would I be risking any legal action against me?

Thanks

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I'm going to disagree with all the others here.

OK - to be pedantic anyone could start legal action against anyone else for any reason. And no - I'm not a lawyer.

But we are talking about what is standard practise here - not what someone could be sued for in a theoretical worst case scenario.

And - to be blunt - what you are suggesting is standard practise. Everyone does it.

I'm going to assume that you aren't writing the screenplay and making it public - you are effectively writing it as a business proposition and offering it to the company that owns the rights as a demonstration of how you would adapt their work - if they were interested in working with you.

This is extremely standard. When Chris Weekes wrote 'The Muppet Man' & submitted it to Jim Henson's company .. he wasn't really putting himself at risk of serious legal action.

When the 'Alien .v. Predator' screenplay was submitted to the company that owned the rights - the writer wasn't at risk of serious legal action.

Heck - in the TV world it is incredibly common to write 'spec' episodes of existing series to demonstrate your writing capabilities. These aren't on the market - they are just writing samples.

I know that - yes- they are derivative works. But the simple fact is that it is acceptable practise by all sides.

Not only that - but for plenty of jobs (such as the Warner Bros Fellowships etc) they actually insist on you providing these spec scripts.

Yes - from a legal aspect it is a derivative work of someone else's IP ... but they INSIST that you do as a demonstration of your style.

So I'm a bit flummoxed at all of these 'no' answers - it simply doesn't reflect that accepted industry practise.

Mac
(PS: It wouldn't surprise me if they choose not to read it at all .. and if they get the impression it is some kind of fanfic that is going to be distributed they are likely to tell you not to publish it ... but you aren't doing anything that isn't standard practise)

Terie said:

This is a fairly extreme interpretation.

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It's a literal interpretation. It's the one they'd use if they decided to sue you.

Terie said:

I've never heard anyone say that just writing fan-fic (which is, in essence, what the OP was proposing) is illegal. It's putting it 'out there' in public -- which, yes, includes submitting it to publishers and production companies -- that's a violation of copyright law.

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I don't think the OP is asking about fanfic (unless I don't know what fanfic is). The OP asks about writing a screenplay based on a novel. That would be a derivative work.

You can't create, make, prepare, whatever, a derivative work without permission from the copyright owner of the original.

What's legal and what they can't catch you doing are often two different things.

"Everybody does it; it's standard practice" would a lame defense.

What's legal and what they can't catch you doing are often two different things.

"Everybody does it; it's standard practice" would a lame defense.

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I think you misunderstand.

I'm not saying 'they can't catch you' - clearly they ARE going to catch you because you are actually presenting a business proposition to them - showing them a variation of their work.

This really is standard business practise. The idea that you would be sued for it is just bizarre - since it is done thousands of time a year in one of the most litigious businesses on the planet .. and can you name a single time when someone has been sued for it in the last decade?

If you are a graphic designer in a job interview and you create a variation of your potential employer's current logo to show how well you can transform their existing work ... would you be seriously at risk of being sued? Technically, you might argue, you are breaking the law.

Thankfully - however - the law is a little more sane than that. As well as 'fair dealings' (or 'fair use') .. which this would likely be covered under, there's another principle in IP law called an 'implied license'.

So if something is standard behaviour (such as tourists taking photos of themselves in front of the Opera House) .. then by building an Opera House and letting tourists near it then I'm accepting that I'm giving them implied permission to create the minor derivative work of a cheap photo of the landmark. Yes - that photo is a derivative work .. but there is a certain level of 'reasonable behaviour' that gives protection.

If you want some case law to back it up something along the lines of Gracen vs Bradford Exchange might fit. In that case a painter had created a painted version of another artwork to show to the rights holder - with the aim of getting a contract and getting paid for their painted version.

The creation of the painter's version was deemed to be covered under an 'implied license' - but she couldn't exhibit her version publicly without permission. Because while there was an implied permission that she could create a new derivative work to show to the rights holder - that implied permission didn't cover selling the work to third parties.

There's probably dozens of better examples - but the idea that someone is at risk of a real lawsuit over it is pretty absurd.

If they wanted to they'd send you to C&D first - there's no reason I can see that you are more at risk being sued doing that than by driving to office for the meeting.

The law is much more flexible then a simple reading might demonstrate - I suggest 'Nimmer On Copyright' if you want to learn a bit about it.

Here's a quote from Nimmer:

.. There is a tradition in U.S. contract law that mere silence does not generally constitute acceptance. So also in copyright law. But silence and inaction here was found to establish a quasi-contractual license. Parker inverts the meaning of property rights.

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Obviously it would be more covered by 'fair use' (again - read Nimmer for details) but it's a fascinating area.

Mac
(Again - I'm not a lawyer. Last month I was talking to a few of them on this topic as I was one of the industry reps reviewing proposed changes to copyright law - so some of this stuff is still in my mind. Implied Licenses is something that many people aren't aware of but are a pretty important part of making the law usable.

But some things really aren't worth worrying about.)

Here's the deal. It's 'standard practice' to write spec screenplays for series television. Hell, contests award prizes for particular types of series specs. And yes, it's a good idea to submit a 'similar' spec type to a series as a sample. For instance a CSI script perhaps, for a shot at an NCIS series slot.

But the OP was talking about creating a feature script off a novel and submitting it blind to the company owning the novel.

The question was 'is there legal liability' the answer is 'yes'. Beyond that, there is the problem with pouring all that effort into a feature script you have no way of selling. So, you might QUERY the company that owns the novel to see if they're open to it "Permission" vs "Forgiveness".

OR you could write it for the hell of it, for the practice and the fun - but if you don't own the rights to the novel - you really can't send it out as a writing sample.

"I have a sample CSI script to illustrate my dramatic skills." "I have a sample 'When I met your Mother' script to illustrate my comedic chops." - Yes, that sort of thing is 'standard practice'.

But that's not what the OP was talking about.

I was just at the Austin Film Festival - sitting in a panel with writers from Bones, South Park and others. "NEVER send a sample spec for the series you want to write for." - is the 'Standard' practice. However, the writer for South Park - a comedienne who had NO teleplay experience - wrote a sample script for SP and sent it to the producers during the first season. They LOVED it and hired her. "I broke the rule, but it was because no one had any SORT of sample like SP, it wasn't being done - so I was lucky. But if you send a sample spec to a series now - the legal department won't let them open it."

So - bottom line. The copyright police won't break into your home to see if you're writing fanfic or adapting a piece of work you don't own the rights to.

Going 'public' with that work, can carry some legal ramifications. Depending on how public, and the type of work - it can result in a private email "Take this down please" a formal "Cease and Desist" - or being served a nastygram.

So the writer has to decide if the investment in time and energy is worth it. Writing a sample television series script - to serve as an example of your writing skills? That's "Standard Practice" and useful.

Writing a feature script based on a novel you have no rights to? You have to weigh the chance that you'll write something so utterly fantastic that they'll offer you money for it - against the chance that they'll sue you. Somewhere in between is more likely - you'll have spent enormous time and energy on a project that they will either ignore, or write you a polite letter asking you to destroy.