A matter of fact: non-fiction and copyright

Writers and filmmakers will often rely on research material when creating a new work. Whether they are creating a non-fiction book or film, or merely using historical facts as the backdrop for a fictional work, they are likely to rely on a range of source material, including historical texts, newspaper articles, diaries, and transcripts of interviews. While it is certainly possible to infringe copyright in non-fiction works, copyright will not be infringed merely because the facts dealt with in the non-fiction work are incorporated into the later work.

Copyright does not protect the facts themselves, but only the way in which those facts are expressed. This distinction is important. A filmmaker making a docu-drama about a dancer who died in the 1960s may rely on newspaper articles, interview transcripts and several biographies to find out information about her. There is no legal restriction on the filmmaker weaving that factual information into her script. If that same filmmaker, however, adapted one of the biographies into a film script by using its structure and closely copying particular incidents described in it, copyright in the biography may be infringed. The reason that the filmmaker may have overstepped the boundaries of what is legally permissible, is that she has not just used the biography as a source of facts, but she has sought to copy the way in which the biographer has presented those facts.

If a writer relies on a wide range of sources to research the subject, the risk of a successful claim of copyright infringement in relation to use of any one source is likely to be lower than if there is only one biographical text on the subject available. In the latter case, where the writer is relying on one source, the writer must be particularly careful that they do not reproduce elements of the text or copy the way in which the biographer has organised, compiled or selected the information in their biography.

If a writer intends to write a work based substantially on an historical text, and copyright in that work has not yet expired (that is, the author is still alive or it is less than 50 years since their death), the writer should approach the copyright owner of that work for permission to do so. The copyright owner will normally be the writer (or the writer’s estate), but sometimes the publisher of the work will own the adaptation rights to it. If permission is being sought to adapt the non-fiction work into a fictional literary work such as a novel or short story, a licence agreement should be entered into with the copyright owner of the non-fiction work. Where permission is being sought to adapt the work into a film, permission will be generally obtained by entering into an option and purchase agreement with the copyright owner. This is an agreement by which the owner of rights in a literary work grants permission to a filmmaker to adapt their work into a film. The first part of the agreement, the ‘option’, is where the copyright owner gives the filmmaker the option to buy the film rights to the work within a certain limited period. The second part of the agreement, the ‘purchase’, contains the terms on which the filmmaker may exercise their option and actually acquire the film rights to the work.

If a writer wants to reproduce specific elements of a non-fiction work, such as diary extracts or letters written by third parties that have been reproduced in the text, permission to reproduce them must be obtained from the copyright owner (usually the author) of each of those original works.

When using non-fiction material, remember that the writer of that material will generally own copyright in it. While they do not own rights to the subject matter about which they have written, they do own rights to the way in which they have written their work.

Alison Davis is a former legal officer at Arts Law.

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