Q: Who owns the copyright to a script when it’s based off someone else’s originally created characters? Should the screenwriter register the screenplay so long as the original creator of the characters is given credit?
Well, first I’m going to presume you got permission to use the characters in your screenplay, right? And you got it in writing, correct? Great! Assuming both of you agreed in writing on the use of the characters in the script, here’s what you need to know about copyright ownership.
A script based off pre-existing characters that you did not create is what we lawyers call a “derivative work.” The Copyright Act defines a “derivative work” as an adaptation, translation or modification to a pre-existing copyrighted work that becomes its own original copyrightable thing. You see them all the time without even realizing it. A film based on a book, a photograph of a sculpture, a cover of a song, an English translation of a Russian novel, a collage of cat meme pictures… all of these are derivative works.
But the tricky thing about derivative works is that, if you author one, you will only own the copyright in the parts of the work that you invented, such as new storylines, new characters, new ideas. The copyright to the pre-existing material—such as the characters, their traits, histories and designs—will still remain with the author. Or, as The Copyright Act puts it:
“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.”
This weird overlap creates dual ownership rights that neither of you can fully exercise without permission from the other. That’s why it’s so critical that before you begin writing, you get permission from the original author in a licensing agreement. See, under our copyright law, only the original author has the right to make derivative works. That’s one of a handful of exclusive rights granted to creators of original work (the others being the right to reproduce the work, distribute copies for sale, publicly display or perform the work, and sell the copyright outright). Without the author’s permission in writing, you could end up being liable for copyright infringement. Nothing kills a studio’s interest in a script faster than a potential third-party lawsuit.
So you need a licensing agreement with the original author. What should be in it? A comprehensive list of your rights and responsibilities towards each other, of course! For example:
- Your roles. Is the author co-writing the script with you or he/she merely an advisor you’ll periodically consult with? When the script is done, who is responsible for registering it and/or pitching it to production companies?
- Level of input. Will the author have veto power over your narrative choices?
- Level of creative control. Do you have control over what direction the narrative takes, even if it means changing the characters or does that vest with the author?
- Frequency of consultation. Must you meet weekly to discuss the project or will the author leave you to your devices, only checking in periodically? Whose job is it to initiate the meetings, yours or the author’s?
- Exclusivity. Did the author grant you an exclusive license to use the characters (i.e. you’re the only one allowed to use them) or is he/she hedging bets by allowing other writers to write scripts too?
- Payment. Did you pay the author for the rights? What is your percentage if the script sells?
- Type of Credit. How will you credit each other when you register the script with the Copyright Office or the WGA? Oftentimes, the creator will get something like a “story by” or “based on characters by” credit. Other times they get a co-writer credit.
- Duration of Rights. Most licensing agreements have time limits on them. How long do the rights remain with you before reverting back to the author?
The more detailed the licensing agreement is, the more harmonious your working relationship will be, because there’s less room for ambiguity or mistake. When you write a script based off someone else’s work, you’re paired with that person, for better or worse. This is not like writing an original script, where the success of the thing lives or dies only with you, where you’re beholden to no one. This is going to be a team effort. So make sure you treat your teammate with respect. You wouldn’t be working on this project without them. MM
Gregory R. Kanaan, Esq. is a New England-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.
The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.
Still from Miss Peregrine’s Home for Peculiar Children, directed by Tim Burton from a novel by Ransom Riggs. Photograph by Jay Maidment, courtesy of Twentieth Century Fox.