Q: Let’s say there’s a book (like a “how to” book)… and I want to write a screenplay about a guy who uses that book (the film title would be same as the book)… do I still need to option that book? I mean, I understand that if the book itself is a story, and I want to translate that story into a screenplay, then I need to option it. However, in this case, it’s not a story… it’s like, “An Instructional Guide to Something.” I would be creating the fiction (people, places and events) about a guy who is using that book to propel him through the plot. So does that require me purchasing the option?
A: Is the instructional book How to Ask Difficult Legal Questions that Would Make a Law Professor Proud? (If so, I think you’ve taken that book to heart, but I must confess that I probably won’t be seeing your movie.)
One of the most important rights held by a copyright owner is the exclusive right to create derivative works based on her original copyrighted material. Derivative works are new original works that contain copyright-protected elements from a pre-existing copyrighted work. A movie based on a book is considered a derivative work because it will share with that book many of its copyright-protected elements (like characters and scenes). Therefore, at the outset, every author of a book owns the exclusive right to create a movie based on that book. The reason you option a book is so that you can acquire from the author that exclusive right to create the derivative work movie.
The question here is whether a movie about a guy following an instructional guide is a derivative work of that book. Unlike a typical situation in which the movie is going to contain many of the copyright-protected elements of the book on which it is based, your movie is simply using the book as a plot point and likely won’t be making use of elements such as the plot and characters (since such elements likely don’t even exist). Therefore, you may not need to acquire the movie rights to the book like you would in the traditional sense.
That being said, chances are, for both practical and legal reasons, you’ll need some sort of agreement with the author of the book to use the book in your film. That agreement just may not be a traditional option agreement.
The practical reason for this is that studios/distributors are not known for their lax attitude when it comes to clearance. The fact that there are clearance specialists whose jobs consist of going through a script with a fine tooth comb in order to tell you every single tiny detail you need to clear highlights the “anality” of the business (yes, I made up that word). If a distributor is going to have a conniption fit over an uncleared Nike logo showing on an extra’s hat, it is certainly going to want to know that you have some sort of permission from the copyright owner of a book before using that book as a major plot point. If you don’t, you may have a hard time getting your movie distributed.
Legally, there may be certain aspects of your use of the book in the movie for which you’ll need permission from the copyright owner. If your movie is going to make use of any quotes from the book, you’ll want to get permission from the author to reproduce those quotes. Additionally, if you’re going to show the book (i.e., display the cover), you’ll need permission from the copyright owner of the cover art (unfortunately, the owner of that cover art may be the publisher instead of the author so you may need an agreement with it as well).
You’ll also need permission from the author to base the title of your movie on the title of the book. While the title of a single book is theoretically not accorded trademark protection (only the reoccurring title of a series is accorded such protection), chances are that if your movie shares a title with the book, the consuming public is likely going to think the author is somehow involved with the movie, which could lead to problems for you down the road if you don’t have the author’s permission to use the title.
Therefore, while you may not need to option the book (which would give you the ability to acquire the exclusive right to turn the book into a movie), what you do need is an agreement, akin to a release, in which the author grants you permission to use the book in the manner in which you want to use it (e.g., to use it as a plot point, to reproduce certain quotes, to use the title). You probably will have to pay some money to the author in exchange for this permission, but it shouldn’t be anywhere near the amount you’d have to pay if you were going to acquire the exclusive movie rights.)
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.