Q: I have the opportunity to option the rights to a screenplay based on a published book written about actual events (real crime genre) that deals with forgery and murder. The book author owns the underlying rights, the screenwriter has worked on spec without legal documentation. Having read both the book and the screenplay, it seems that the screenwriter has relied heavily on materials other than the original underlying material (the book). There have been a number of other books and many articles written on this story. From a legal perspective how uphill will this battle be? As an independent producer attempting to package and sell the project, should I be concerned with clearing all the rights now — or would you advise finding a party interested enough to pursue the story who has the muscle to get it done? To give you an idea, a good example of this kind of movie would be Shattered Glass, which was the true story about a journalist who fabricated stories in the New Republic Magazine.
A: This is a story about forgery, murder, and … possibly copyright infringement. You can get away with forgery and, often, murder. But I’d shy away from copyright infringement — it’s uncool and generally looked at negatively in Hollywood.
Actual events, or any facts for that matter, are not copyrightable. In 1924, Leopold, a law school student, and Loeb, who was about to start law school, murdered a teenager just to see if they could commit a perfect murder. Aside from the fact that this is the kind of people who go to law school, the fact is the facts of the Leopold and Loeb case are not protected by copyright. And so Leopold and Loeb inspired a play, a number of movies, a book, and even a graphic novel. Leopold and Loeb is also a law firm in Century City.
Actual events are free for anyone to use, but a book about actual events is protected by copyright. For example, a book about real life forgery and murder — let’s call it “Laura and Kate” — can’t be copied. You can use the actual events described in the book, but not the descriptions of the events. To illustrate, imagine that instead of a book there is a poem about the true story of how Laura, a simple Texan gal, gets tragically and criminally tangled up with Kate, a mysterious Hollywood socialite. While you can make a movie about the true story of Laura and Kate, you can’t copy the poem without permission. You’d be surprised how many films were based on poems. And even now, a major studio is about to greenlight a 3-D trilogy based on “Roses are red, Violets are blue, … .” (Michael Bay producing.) And Apatow is developing a mockumentary based on a raunchy haiku.
So the copyright question is: is the screenplay based on the book or is it merely about the same events? If the screenplay is based on the book, then of course, you will need the right to use the book. But if it’s simply about the same facts and doesn’t copy the book, then you don’t need the book rights. It could be obvious if the script is based on the book, but it could also be very difficult to figure out. If large chunks are lifted from the book, then you need the book rights. But if, with the exception of “a,” “the,” and “sauerkraut,” there are no other words in the book that also appear in the screenplay, then you’re in the clear. In most cases, it’s probably somewhere in between and hard to determine. You also mentioned that the screenplay is based on the book, but maybe you used “based” to mean “loosely inspired?”
By the way, speaking of your Shattered Glass example, the rights to the article about that case were acquired. That’s because, to be safe, studios typically acquire the arguably underlying rights. But in your case, playing safe is more difficult because there are a number of books and articles about your story. Theoretically, to be 100% safe, you’d have to option all of them. Not a realistic scenario for an “independent producer.”
It seems that if the screenplay is clearly copying the book, not just the facts, you should option the book, if you can. If you can’t, then your idea of generating interest elsewhere may be a good one. If someone with cash wants this project, then they will deal with this problem. Of course, once cash enters the scene, the book deal will be much richer for the author. But first you should option the screenplay. While the book rights may or may not be necessary to make a movie about your story, a script is certainly necessary (and the script you have an opportunity to option is certainly necessary if the movie is to be based on it).
Also, don’t forget about life story rights, if anyone in your story is still alive. Even Leopold tried to stop one of the movies about his murder. He unsuccessfully argued the movie defamed him. It’s not easy to defame a convicted murderer. I hope your story is about a forgery-murder-suicide, which would ease your life story rights worries. As to whether the forged materials in your story are protected by copyright, that’s a whole different blog.
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.