Case Studies

Joe Betros: I want to write a screenplay based on a short story — will I infringe copyright?

A birds eye photograph of vintage books laid out covering a table.
Photo by Patrick Tomasso on Unsplash

Joe Betros, a freelance film writer and director from Melbourne, had found a story in an anthology of Australian short stories which he wanted to adapt into a screenplay. He wanted to know what sort of permission he needed and so, in 2014, he approached Arts Law seeking legal advice.

Herbert Smith Freehills, which assists with the Arts Law telephone advice service, advised Joe that the copyright owner of the short story would normally have the exclusive right to control reproduction and adaptation of the work. This meant Joe would have to obtain the necessary rights from the copyright owner in order to adapt the short story into a film or risk infringing copyright. It was likely the author of the short story was the copyright owner, but it was possible that the author may have given some rights to the publisher of the anthology as a part of his or her publishing contract. Joe was told to be aware that he might need permission from both the author and the publisher.

Joe was advised to seek an exclusive licence of copyright. Under an exclusive licence the copyright owner still retains ownership of the copyright (so can control use of the story in other ways – such as inclusion in a different anthology or adapting it for stage), but the person obtaining the licence (the licensee) has the right to use the work in certain ways to the exclusion of all others. For a film adaption this means that no one else, including the copyright owner, can adapt the work into a film for the duration of the licence.

The usual way of obtaining a licence to adapt a book or a short story into a film is to enter into an Option and Purchase Agreement – see Arts Law’s sample Option & Purchase Agreement.  Because developing a screenplay and finding funding for a film is often time-consuming and uncertain, an option and purchase agreement allows a filmmaker to buy an exclusive “option” to purchase the film rights to a work later down the track. The option is for a set period of time (usually one to two years) and an option fee is paid to the copyright owner of the work to ensure that no one else will be given film rights during that period. If the screenplay is developed and funding secured within the option period, the filmmaker can then complete the “purchase” of the right to make the film.

Joe was advised to contact the publisher of the anthology to find out who the copyright owner of the short story was. If the author was the copyright owner then Joe could ask the publisher for the author’s contact details. Alternatively, if the publisher retained rights in the short story, Joe could negotiate directly with them for the option to purchase the film rights.

Joe commented that “Arts Law were very helpful with my inquiry into gaining rights for adaptation, something I had limited experience in. The team were friendly and concise and were able to effectively answer my questions.”

Joe was encouraged to use Arts Law’s Document Review Service to review any contract that he managed to negotiate. Joe has since put this adaptation on hold while he focuses on other projects.

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