Turning Books to Movies: Three Copyright Tips for Authors
What do “The Notebook,” “It,” “The Bourne Identity,” “Twilight,” “The Pursuit of Happyness,” and “The Color Purple” all have in common? You guessed it—they were all first literary works before being adapted into movies. Many of our favorite blockbuster classics began bound by a spine, printed, published, and placed on bookshelves. For authors who spend countless hours and incalculable amounts of energy expressing themselves through the creation of books, essays, short stories, graphic novels, and other literary works, hoping that one day their work might make it off the bookstore shelves and into movie theaters or onto television screens, it is possible. However, when the dream manifests itself, and these authors are approached with an opportunity to turn their work into a movie or television series, what should they know about copyright when negotiating?
In this blog, we’ll cover three copyright-related tips that authors should keep in mind when adapting or looking to adapt their literary works into works for the big and small screens. But before we get into our three tips, it’s important to know what a transfer of a copyright entails.
Transferring Copyrights: Exclusivity
The Copyright Act grants authors exclusive control over rights in their literary works. A copyright owner of a literary work has several exclusive rights: (1) the right to reproduce the work, (2) the right to distribute the work, (3) the right to create derivative works of the work, (4) the right to publicly perform the work and (5) the right to publicly display the work, as discussed in our Copyright Law for Writers webpage. These rights can be transferred or licensed to others, in whole or in part.
A transfer is the conveyance of one or more rights from the copyright owner to a third party. A license is a type of transfer where the owner grants a third party permission to exercise the owner’s rights under copyright law. In copyright, there are two kinds of licenses, non-exclusive licenses and exclusive licenses.
A non-exclusive copyright license is a license where the owner gives the licensee permission to exercise the rights but retains the right to authorize others to use the rights or to use the right themselves. A copyright owner could license their work to multiple parties.
An exclusive copyright license is a license where one or more rights is transferred by the copyright owner to a third party in manner such that only that third party can exploit that right or rights. The owner does not retain any rights throughout the duration of the exclusive licensing agreement. Under copyright law, an exclusive licensee is also able to sue for copyright infringement of the rights it has exclusivity to.
Authors can decide to retain the entire bundle of rights or transfer some or all rights to others. For instance, a writer can transfer all the rights to their novel, or they can agree to singularly transfer the right to make a derivative work of that novel. For example, when a movie is based on a book it is considered to be a derivative work in copyright law. However, we more commonly refer to such a work as an adaptation. For example, season one of the Netflix series Bridgerton is a derivative work of the book by Julia Quinn, Bridgerton: The Duke & I because the series is based on the book but reworked to a screen to appeal to viewers.
Whether the author transfers all rights to the work or just the right to make a derivative work, the terms must be negotiated and described in an agreement. The agreement must be made in writing signed by the copyright owner or the owner’s authorized agent. So, what should an author keep in mind about copyright law as they negotiate opportunities for adaptations?
Tip 1: Register Your Work with the U.S. Copyright Office
The first tip is that authors will want to register their works with the U.S. Copyright Office. Under copyright law, works are protected the moment they are created as long as they are original and have been fixed in a tangible medium of expression. Though registration is not required for copyright protection, it is beneficial, and may even be required in an agreement when transferring or licensing rights to a third party.
Registration Provides Information to Prospective Licensees
Registration with the Copyright Office creates a public record that includes key facts about authorship and ownership of a work, including information about the work, such as the title, year of creation, and publication date. The public record also includes information about the author, such as the author’s name and address. If a prospective licensee, like an entertainment company, were interested in using an author’s work to create an adaptation, the public record would be a valuable resource for locating the author’s contact information and other information about the work. This means that opportunities for the author could come to them more quickly. If the work is not registered, prospective licensees may not have any idea how to find the author to license the work.
Additionally, having this information be part of the public record can help producers determine whether they are securing all rights necessary from all parties who may have an ownership claim. For example, if a producer found out that the literary work has derivative elements, that producer might do additional research to secure any additional and necessary rights for the underlying work in order to make their screen adaptation. Similarly, if a work was registered as a joint work, a producer may need to negotiate with more than one person.
Registration is Evidence of Validity
Registration serves as evidence of the validity of the copyright and the facts stated in the certificate of registration regarding ownership. The author of the registered work would not have to scramble to find proof of ownership to conduct negotiations because a registration certificate can serve as proof. In fact, an interested third party may require one as part of the agreement. Having a registration certificate in hand assists in negotiations because ownership information could be quickly verified.
Tip 2: Specify the Rights Being Transferred
The second tip is that authors should specify and understand what rights are being transferred. A first step for adapting a literary work into a film or television series is usually for a producer to seek an option to purchase the exclusive rights to adapt the work from the copyright owner for a period of time.
An option agreement, or “option,” is an exclusive agreement to start developing a work, such as a novel, into a film or television series. In return for the option to develop, the author or owner of the copyright is compensated. If the producer successfully secures funding and other elements necessary to produce the screen adaptation, the option is further negotiated and becomes an agreement to transfer and exclusively license the rights to the producer or film company.
A purchase agreement is the final agreement that transforms option agreements into a more long-lasting licensing agreement. Producers and other types of prospective licensees may desire exclusive licenses over non-exclusive licenses because under an exclusive grant only the licensee can use the copyrighted work. The exclusivity gives producers a sense of security in knowing they are the only party allowed to adapt the literary work without pressure from competitors.
Specifying which rights the author intends to grant is crucial at the option stage. Under copyright law, the copyright owner may either transfer ownership of all or some of the rights. To maintain their rights, however, the author should carefully understand and appreciate what rights they are transferring in the agreement as well as the scope of those rights.
For example, an author may choose to reserve their right to continue merchandising or their right to create future adaptations such as stage rights, and sequels in connection with the literary work. But wholesale transferring all rights leaves the author without the right to control where, how, or in what form their work appears. Ensuring that the terms and conditions of the copyrights transfer are very clear at the onset of the process helps to avoid future issues.
Tip 3: Enlist an Agent or Attorney to Help with Negotiations
Authors should consider enlisting the support of an attorney, literary agent, or film rights agent to negotiate on their behalf. A film rights agent is an agent who specializes in negotiating film terms. Typically, literary agents specialize in book publishing, but some literary agents also serve as film rights agents. Attorneys can help with specific copyright issues and contract negotiations. An attorney, literary agent, or film rights agent will have experience and background knowledge to help authors negotiate terms for film or television adaptations that align with their dream outcomes and future planning. If enlisting the help of an attorney sounds enticing, you can find an attorney using our Find a Copyright Attorney Directory.
Conclusion
Although the Copyright Act allows authors to transfer or license copyrights in whole or in part, authors should be aware of copyright law fundamentals and be prepared when negotiating and contracting their rights. That’s why authors should (1) register their works with the U.S. Copyright Office; (2) specify and understand the rights being transferred in their agreements and; (3) enlist an agent or attorney to help with their negotiations. These three tips related to copyright law will hopefully help authors prepare for when they negotiate film or television adaptations.
To learn more about how copyright law applies to writers, visit our webpage on What Writers Need to Know About Copyright Law. To access additional copyright law materials and resources, join the Copyright Alliance for our free creator membership.