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Legally Speaking, It Depends: Ins and Outs of a Novel Adaptation

Entertainment attorney Christopher Schiller gives tips on acquiring rights for a novel adaptation.

Many of you probably wanted to throw the book at me after the last column's admittedly brief listing of potential problems or pitfalls to avoid when pursuing a novel adaptation. I admit I had to cram a lot into little space, nearly running over my word limit, to barely scratch the surface and so ended up with a scary overview of a complex and vast array of expression possibilities.

It really shouldn't be an intimidating endeavor and it can often be uniquely rewarding (like in a separate “adapted screenplay” award) if you just go about the task with an awareness of what is in play. Let's narrow down the focus to a single kind of adaptation to make the discussion less unwieldy. Let's examine the task of adapting a novel into a screenplay.

Someone Else's Story, So Ask First

The first major element to recognize is that the material you will be writing is forever intertwined with someone else's work. And that relationship will always be a dependent one. This is statutorily memorialized in the right given to the original copyright holder of the novel, namely the ability to authorize and/or create Derivative Works.


A Derivative Work is anything that derives from, as in is inspired by, carries on from or otherwise uses, creative and protected elements of an original work. Most common examples are conjured when considering sequels or parts in a series. But when a work changes form, like novel to screenplay, it is also a derivative work and therefore the rights to create one are controlled completely by the original copyright holder.

This is an absolute and highly restrictive right. If an unauthorized screenplay is written and the original author/copyright owner hasn't approved or doesn't want it to exist, they can halt its production, keep the screenwriter from showing it to anyone and in extreme cases even require the screenwriter to destroy all copies. All the work, sweat and talent put into writing an unauthorized adaptation would be completely wasted. It is in the screenwriter's best interest not to attempt to write an adaptation of a novel without first getting permission from the copyright owner. But instead of this being an obstacle or burden the writer should look at this as a good thing, as long as you approach it properly.

Lone Wolf vs. Part of a Pack

For one thing when you write an adaptation you don't stand alone with untested product (e.g. a spec script) to try to sell. An adaptation has hypothetically calculable sales potential building on the proven success of the novel. A producer likes to know that someone has already shown interest in the subject matter before they spend money to make the film. It makes things less complex and producers are always looking to make their lives simpler.

Keeping that simplicity is a strong reason why a screenwriter should not just somehow get the rights to a novel and go away and write it. From a producer's perspective an independent screenwriter who has acquired the film adaptation rights to a book becomes an obstacle more times than an asset. Even if the script is one the producer would like to produce and the writer someone they want to work with, there will be two levels of negotiations that will have to be navigated. In addition to the screenwriter's demands, the owner of the underlying rights in the derivative work will need to be approached for using their material in the various forms that a film production exploitation takes (i.e. marketing, sequels, spinoffs, Broadway, fast food tie-ins, etc.) Not to say that it won't work, but, be aware that you are creating an uphill battle to getting your screenplay made into a movie.

Collaborative Agreements

Joining forces with the novelist is a better tack. Not only do you get the creative collaborative boost working with someone who knows the story and characters intimately, but, much of the groundwork of smoothing the legal path has already been done. (For example, the people whose life rights need to be acquired have already been sussed. You just need to ensure that their authorizations cover an adaptation into a movie and you as the writer.) This collaboration can be organized in a myriad of ways, but, regardless of which path is chosen, make sure to get the roles each party will play set in a Collaborative Agreement.

I use the admittedly ill-defined umbrella term Collaborative Agreement to cover the various forms of arrangements that the novelist and screenwriter can take on. The variations are nearly infinite and usually convey some reflection of the collaborative compatibility of the writers, their skill sets, egos, clout and various and sundry other minutia that are important to one side or the other. You might say,

“Why bother since everyone is gung-ho to make a movie out of this book and putting an agreement down on paper only slows the creative process? If the end result is a successful film, we all win.”

And I'll reply, “Win what, exactly?” Everyone goes into an exciting new venture with expectations and assumptions. It is easy to overlook what might be motivating the other participants in a collaborative endeavor because you are so focused on your own motivations and the joint goal. Whenever you are setting out to work with others the perfect time to sit down and be explicit about what you expect, what you are willing to do and what you are anticipating in reward is right at the beginning when everyone is in a good mood, enthusiastic and agreeable. (This is a general tenet that is applicable in a wide array of situations, by the way.) There are always surprises to be found about why someone is willing to work with you to achieve something and what they expect in return. Getting them straight and out in the open will avoid a lot of future headaches, bad blood and disgruntlement even if things go well. (Especially if things go well.)

Once you have figured out the share of the workload, who can speak to what issues, what compensation splits are expected, and a list of other things that are specific to each unique partnership, you'll be ready for that big break in whatever form. Just make sure you take some of the quirks of an adaptation into account.

Potential Complications With Derivative Works

A film adaptation of a novel presents unusual issues that should be addressed before they become sticking points in negotiations. With the screenplay being a Derivative Work of the novel there is the significant question of what elements fall under the copyright of the original and which elements are part of the screenplay. If a new character is created, can the novelist use that character in the sequel novel version of the story? (Can there even be a sequel version of the story? Were the rights reserved or were they included in the studio's agreement?) This can get even more complicated if there is a series of books and movies. One character dies in the original book, survives in the movie, then is alive again in the second book taking off from the movie. (Can you name the movie/book series where I got this example? It's a monster of a franchise which has gained dimensions of late and hasn't died yet.) And if the novelist and screenwriter collaborate in a traditional way of writing, they become what copyright law terms Joint Authors.

Joint Authors all intended to contribute to the whole of a copyrighted work, no author's work stands alone independent of the others (usually) and they share in the rights and privileges of copyright ownership together. If the script qualifies as a joint authorship, the writers should be aware of the special rules that apply to joint authors, such as, without an agreement to the contrary, ANY joint author can make decisions about the work including selling all rights to a third party, as long as the decision maker shares the gains from that decision with the other authors. And no joint author can sue a fellow joint author for copyright infringement of the work. Taking the special cases of joint authorship into account in the Collaborative Agreement is paramount to not being blindsided later.

And even novelists who take on the adaptation of their own works by themselves have things to keep in mind with regard to the derivative work. For example, a producer may love the book, but not the script and bring in another scriptwriter to do another pass. The novelist must be clear about what rights he or she still retains being the author of the novel while not overstepping authority for claims that only came from the original screenplay. And all parties must make sure that the rights to the novel that are involved in making a movie actually are still in the possession of the writer, since publishers often take many of those same rights for themselves.

As always... it depends.

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