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Copyright of Adaptation versus Original

Posted: Tue Jul 11, 2017 8:11 am
by leica
I wanted to do a stage adaptation of a film that's been in the public domain for quite sometime.

However, the play that the film was based on is still in copyright for another couple of years. The film has a different title, and the characters have different names.

If I make sure I don't replicate any of the dialogue or stage directions or title, etc. of the original play, is it legal to make an adaptation of the film, particularly the title of the film?

Thanks for any help.

Posted: Tue Jul 11, 2017 10:37 am
by AndyJ
Hi leica,

There are two fundamental things we need to sort out before trying to answer your question.

The first is, which jurisdiction are we discussing? As you say the film is in the public domain but the stage play isn't, this suggests that we are talking about the situation in the USA, because of the old registration system which used to apply there prior to 1976. It is possible, but less likely that something similar could apply in the UK for some films which were made and published in the 1930s. Prior to the 1956 Copyright Act, films per se were not protected in the UK, but the components that made up a film, namely the sound recording and the individual frames, could be protected; there was also the likelihood that if it was a fiction film it would be protected as a dramatic work (like a play), based on provisions in the 1911 Copyright Act.

The next thing to clarify is that copyright in a film, in UK law at least, lies in the whole film as it is shown in a cinema/movie theater: it is the protection afforded to the enterprise. But there is separate copyright protection to be found in the script or screenplay (as a literary work) and any music score. Irrespective of the duration of copyright in the whole film (which might be 50 years from the date of publication in some cases), copyright in the script and score will be based on the lifetime of their repective authors plus either fifty or seventy years depending on the period we are talking about. Clearly your proposal does not involve copying the visual or aural nature of the film, but it might copy some or all of the script.

The jurisdiction in question matters a lot because the UK and USA's approach to adaptations is very different. If we are talking about works in the USA, then you may find that elements of the story (of both the play and the film) enjoy greater protection than would be the case in the UK. On the other hand the scope for making a derivative work is much greater in the USA because of the doctrine of fair use, one of the factors of which is the extent to which the adaptation is transformational. The UK's fair dealing exceptions really don't help with making adaptations. Where you are based is also important. A work which is out of copyright in the USA can be in copyright in the UK or vice versa. Therefore you cannot always make the assumption that the work you want to adapt is actually free of copyright if you live in a different jurisdiction.

Before trying to go into any detail, it would therefore be helpful to know which legal jurisdiction we are talking about, where you are based, and some details about the dates of the underlying works. You don't have to name the play and the film if you don't want to,

Posted: Tue Jul 11, 2017 8:56 pm
by leica
Thank you very much for your help and such fast response. The film is American, and the original play and its authors, are all American.

Regarding the film in question the IMDB says:

Countless distributors, large and small, have released this film. [It] fell out of copyright and into the public domain, which means any distributor can legally sell copies without paying royalties

So that's that's not really regarding the screenplay, but the sound and frames themselves. It is fiction, so by the sounds of it, it would be protected as a dramatic work under UK law; there has been less than 70 years after the writers death, as well as the writer of the original play.

So at best I could do a something vaguely similar, since you can't copyright an idea, as I understand it, only what's actually been written. Or try to hunt down the copyright holder(s)?

Am I understanding this correctly?

Many thanks again for all your help, I'm just starting out and this has all be quite confusing so far.

Posted: Wed Jul 12, 2017 5:43 am
by AndyJ
leica wrote: So at best I could do a something vaguely similar, since you can't copyright an idea, as I understand it, only what's actually been written. Or try to hunt down the copyright holder(s)?

Am I understanding this correctly?
You should be fine using the basic story but told in your own words. That would clearly avoid the problem of possibly copying the script/screenplay.

Even if you were able to track down the film script writer(s) or more likely their descendants, it is most likely that they signed over all their rights to the film company or producer. That would mean that, today, the film production company or its successors will be the owner of any copyright in the film script. However if you do track down the author of the play, then there is a much better chance that they retained the copyright in their play.

Posted: Thu Jul 20, 2017 9:50 am
by Nick Cooper
I think I know which film/play is being discussed here. The specific film - one of a number of adaptations of the play - is public domain in the United States, but not necessarily elsewhere. The original play is still protected for a few more years in the US under a term of 95 years after the end of the year of first performance, and for a few more years after that in Europe, 70 years after the end of the year in which the longest-living co-author died. The latter was by no means obscure, and so it should be fairly easy to contact his estate or their agents.