AboutBarry Pearson Expertise I`m a credited writer on nine feature films. My latest movie, IRON ROAD, which stars Peter O'Toole and Sam Neill,is being offered to festivals. Sun Li, the Chinese star, won the best actress award at the Roma Fiction Fest recently. www.ironroadthemovie.com)
I`m also the writer of over 40 hours of television drama for major networks in North America, and I`m a producer of three feature films and over 50 hours of television prime time drama.
I've received Best Screenplay, Best Picture awards at international film festivals around the world.
I've been coaching screen and television writers in person, and on the internet, for over ten years, and I've answered over 1000 All Experts questions!
Experience I've been in the business of writing and producing feature
films, television series, and MOW's for over 20 years. You
can check me out at this URL
http://www.createyourscreenplay.com/aboutbp.htm
Here are two q&a's from my archives that address this problem.
I'm not a lawyer and I am not competent to give legal advice, but the main issue, as I understand it, is whether or not you use the embodiment of an idea. If you do you could be infringing. Your best bet is to get advice from a lawyer before you start.
HERE ARE THE Q AND A'S:
Q--I'm working with a great film concept, but I'm a little worried it's too similar to a book I've read. How similar is it allowed to be? Where do they draw the line? I can't buy the adaptation rights, I don't have any money.
A--The question is, what is the similarity? And how did the similarity come about.
Did you derive any of your ideas from this book? Or was the similarity inadvertently coincidental? If coincidental you're probably immune from copyright infringement.
I'm not a lawyer, nor do I give any kind of legal advice whatsoever.
It's my belief that copyright law provides that if you use the "substance" of another writer's work you are guilty of copyright infringement, no matter how well-meaning your use might be.
If you wrote a script about a boy who attends a private school, likes to wear his baseball cap backwards, who has a little sister he's very protective of, and who goes awol in New York because he lost the equipment for the school's sports team, you might be sued for infringing Catcher in the Rye.
But if the hero is a girl, plays soccer, lives in Chicago, goes to a co-ed school, has an older brother who's mentally challenged etc. etc., then the substance has been changed enough to be original with you.
The general rule is that you cannot copyright ideas themselves, but you can copyright your "embodiment" of those ideas.
If you took the seed of your idea from another work, you need to transform the written work so that the embodiment of the idea in your work is unlike the original work.
My suggestion is to change significant things, like the sex of the hero, the time period -- move it from 1890 to 1990 (or vice versa). Alter details, like the murder weapon, the locale, the socio economic levels, the vehicles, the occupations, the supporting characters, etc. etc. so that the work becomes truly your own.
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Q -- Suppose I write a screenplay on Hitler or George Patton and the only sources available are books and documentaries available on something like National Geographic or PBS specials. Would I need to option any of these works beforehand?
I won't use any of the words directly from the material because my writing is more of a reinvention like "The Pianist."
But then how would I have gotten the information without their blueprint, right?
A - I'll first give you my standard disclaimer: I am not a lawyer and do not give or purport to give legal advice. I strongly recommend that before you write an adaptation or a screenplay based on other works, you seek legal counsel.
It is my understanding that if someone sues you for copyright infringement,one of the things they need to prove is that you had access to (or likely had access to) the allegedly infringed work. But I have been told that they would also need to prove that you used the EMBODIMENT of their ideas. The way I understand this is, for example, if the PBS Special narrative said,"George Patton epitomized the spirit of the frontier gunslinger," and if one of the characters in your screenplay said. "George Patton epitomizes the
spirit of the gunslinger," that sentence is close enough to their original embodiment of the idea that you could be deemed to be infringing their copyright.
If, on the other hand, your character said, "Patton carries a silver .45 on his hip like a gunslinger," you could have derived that sentence from any
number of sources, and the only word in common is gunslinger, which is probably not distinctive enough to claim infringement. But if you had 50 such similarities to an original work, you still might have a problem.
I have been told that when one relies on source works for facts or information, especially if those facts are available from several sources,you would be safe to use them, but you must be careful to present such ideas in your own words.
Since screenplays consist mainly of speeches and descriptions of events and actions, infringement is less of a likelihood if your subject matter is historical and is a popular topic about which much has been reported in the past. In my movie THE BOYD GANG I relied on quotes from people that were published in newspapers. (Quotes from newspaper news reports, I have been told,are in the public domain). My second source was a taped interview that I did with Boyd, under a contract wherein I paid him for the interview and for using his material.
My recommendation would be that if you're doing a very public figure, go to your public library or archive and pillage newspapers for actual quotes that you can use as dialogue and then invent the rest. In the case of your PBS special, I'd be surprised if most of their material did not come from newspaper and other public domain documentary accounts.
Also, if the books that are your references cite their sources as newspapers, it seems you would be free to use such quoted material even though you didn't get it from the original newspaper because it is public domain material. (When one writes, publishes, and copyrights a book that uses public domain material, the copyright protection only extends to the material in the book that is NOT in the public domain).
Q--Also, for fiction works, do you need to own the rights to adapt it? Are Shakespeare and Jane Austen the exceptions?
A--As to your second question, published works fall into the public domain after a certain period of time, or in special cases, where the original authors failed to renew their copyright. See the Web Page at this URL http://www.unc.edu/~unclng/public-d.htm
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