Adaptations, derivative works, and underlying rights

What is a derivative work?

The Copyright Office defines it plainly. A derivative work is "a work based on or derived from one or more already existing works."¹

A screenplay adapted from a novel is the standard case. So is a film based on a short story, a series based on a podcast, and a stage play turned into a script. The category is wide, and it catches material writers do not always think of as source: a magazine article, a set of interviews, another person's memoir.

The definition matters because a separate rule follows from it. Only the owner of copyright in a work "has the right to prepare, or to authorize someone else to create, an adaptation of that work."¹ Permission is not a courtesy in this arrangement.

What does copyright in an adaptation actually cover?

Only the new part. Copyright in a derivative work "covers only the additions, changes, or other new material appearing for the first time in the work."¹

It does not reach backward. Protection "does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party."¹

A screenwriter adapting a novel therefore owns the scenes, structure, and dialogue they wrote, and owns nothing of the novel. Those two facts sit in the same document, separated by who wrote what.

That division is also why an adaptation is registered as its own work rather than as a version of the book. What gets registered is the new material.

What happens if the adaptation was made without permission?

The Office states the consequence directly. Where a copyrighted work has been used unlawfully, "copyright protection will not extend to any part of the work in which such material has been used unlawfully."¹

That is more serious than it sounds at first reading. A script written from a novel without permission is not merely unsellable, since the portions built on the novel fall outside protection entirely.

Writers occasionally proceed anyway, reasoning that permission can be sought once a producer shows interest. The risk in that sequence is that the rights may already be held by someone else, and the work has then been done for a project nobody can make.

Producers know this, which is why the first question about a spec adaptation is usually about rights rather than about the script.

Do the competitions and labs care?

They say so in their rules. The Nicholl Fellowships require that a submitted script not be based, in whole or in part, on any other fiction or nonfiction material, published or unpublished, produced or unproduced.² Adapting your own original material is permitted, and has to be noted in the required logline.²

Sundance Institute takes a different position on the same question. Its Development Track accepts adaptations, provided the applicant has secured the underlying rights.³ Its FAQ also states that scripts submitted elsewhere are not thereby excluded.³

Those two rules point in opposite directions, which is why the answer to whether an adaptation may be entered is always specific to the program. One excludes adaptations of other people's work outright, and the other admits them on proof of rights.

Does an editor check whether the rights are cleared?

No, and nothing on this page should be read as advice about a particular project. Whether a work is in the public domain, whether an option is valid, and whether a particular use requires permission are questions for an attorney who works in this area.

What an editor can do is mechanical and still useful. A script drawing on a source can be checked for quoted material, song lyrics, lines lifted verbatim, and character names taken from the source. Whoever is clearing rights then has a list rather than a memory.

That list is worth having before a producer asks for one. Assembling it from a finished script takes an afternoon, and assembling it from recollection three years later takes longer and misses things.

Epigraphs and song lyrics are the two that catch people. Both are short and feel incidental, and both belong to somebody who did not agree to appear in the film.

What does an editor do differently on an adaptation?

Watch the seams, mostly. A script assembled from a novel over months tends to carry the novel's names, dates, and details inconsistently, because the writer is working from two documents at once.

Common faults are specific. A character renamed for the screen keeps the original name in three scene headings. An event moved from 1974 to 1981 stays 1974 in a line of dialogue. A location merged from two places in the book appears under both names.

Fidelity questions are the writer's rather than ours. Whether a change serves the adaptation is a judgment about the work, and it belongs to the screenwriter and to whoever is developing the project.

What we supply is a record of where the two documents disagree. That is a different thing from a view about whether they should, and the writer is the one who wanted the changes.

What about adapting your own book?

The rights question is simpler and does not disappear. A novelist who has sold a book to a publisher may have signed away film rights, retained them, or granted a right of first refusal. Which of those applies is in the publishing contract rather than in the fact of authorship.

Nicholl treats self-adaptation as permitted with disclosure, which indicates how the distinction is generally drawn.² Writing from your own unpublished material raises no third-party question at all.

Coauthored source material is the case worth checking. A book written with someone else, or an article assigned to a publication, may not be yours alone to adapt.

Every document a client sends us is treated in confidence. A script, the book it came from, and any correspondence about rights are held on the same terms.

What we will not do

Advise on whether a work is in the public domain, whether a use is fair, whether an option has lapsed, or whether permission is required for a particular scene. Those four are legal questions, and an editor answering them is answering outside the job, however reasonable the answer sounds.

Reporting what the Copyright Office publishes, as this page does, is a different act from advising on a project. The circular quoted here is short and free, and it repays reading before an adaptation starts rather than after.

The work that is ours begins once the rights question has been settled by someone qualified to settle it. After that point the script is a document like any other, and it gets the same treatment.