Q: I have a question regarding the rights needed to make a film “based on” a book, and/or “inspired by” a book. First of all, is there a legal difference between these two terms? It seems that one implies a more direct adaptation (“based on”) and the other a looser connection to a book, but is there some legal basis for determining this? Also, does one need to purchase the rights to a book that “inspires” their film? How about a book that it is “based on”?

A: In answer to your first question, while technically there is no legal significance to the specific words “based on” or “inspired by,” there is legal significance to what each term may imply.

If a movie is “based on” a book, it is implied that the film is an adaptation of a preexisting book. This is such a common practice that at some point in the 5 hour 37 minute Academy Awards telecast, between shots of Jack Nicholson, I believe they may even present an Oscar for the “Best Adapted Screenplay.” Most of those screenplays are based on books.

We can assume that any screenplay based on a book is going share unique characters, plots, scenes, etc. with that book. We may never have been graced with the presence of Kate Winslet’s sex starved, Nazi cougar had that character not first been fully fleshed out in the book The Reader. The filmmaker who makes a movie that shares a prior book’s copyrighted material must get rights from the copyright owner of the book in order to make that movie. Without obtaining the necessary rights, a movie based on a book likely would be considered copyright infringement.

It gets a little bit trickier when you say “inspired by.” This could mean a whole lot of different things. Let’s say you read the short story “Flowers for Algernon.” You finish the story crying, inspired to write a movie about a man who overcomes obvious mental shortcomings to become president of the United States. You didn’t include any of the unique elements from the story in your film, it simply served as the inspiration for your script (you also read a lot of newspapers over the last eight years). In a case like this, you wouldn’t need to obtain any rights from the author of “Flowers for Algernon.”

On the opposite side of the spectrum, “inspired by” may only be one small step below “based on.” Perhaps you decide to make a statement about North Korea by writing a script inspired by the book 1984. The plot is essentially the same but the characters are now Korean and it’s set in modern day North Korea. You’ve taken a lot of creative liberties with the story and added your own unique elements but you use nearly identical plot points and many of the same scenes from the book. In this case, your film will likely be seen as a derivative work based on the original classic novel. Therefore, you would need the necessary rights in order to make your film.

The toughest call are those situations in between. Theoretically Clueless was inspired by Jane Austen’s book Emma. Now unfortunately I’ve never read Emma, but I have seen Clueless, and I’m fairly certain that the song “Rollin’ with the Homies” was not a part of the book. Cluelesswas entirely original except for the underlying concept. More recently, it could be said Disturbiawas inspired by Rear Window. Again, you had a unique new movie that essentially shared a concept with a prior work. In these “inspired by” cases, it’s not always entirely clear if you need permission from the copyright owner of the materials by which your film is inspired.

There’s a great quote by some great person, neither of which I can remember, but it basically said that no piece of art is truly original, because no artist can help but be inspired by art that they love. Whether or not you are going to need permission for the owner of an underlying work depends on the situation and requires a fact specific analysis. If your film is “based on” a book, it’s almost certain you’ll need permission. If a book only serves as your “inspiration,” you may be in somewhat dangerous territory so I would recommend treading lightly and carrying a big lawyer.

It should be noted that if a once-protected work is very old, it may be in the “public domain,” meaning that the period of copyright protection has lapsed and anyone can copy it without permission. In other words, if the book you’re interested in is in the public domain, you won’t need to obtain permission to use it as the basis or inspiration for your film. In my example above, the creators of Clueless didn’t have to worry about whether their film was close enough to Emma to require permission because Emma is old enough to be in the public domain.

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.

Legal Ease