Legal Q & A for October 2002

This article is used by permission of Mark Litwak, Esq. and is taken from www.marklitwak.com.

Q: I have adapted a screenplay, but in checking www.copyright.gov I have found that someone has a copyright of the same name and at least a similar idea to my own. The description of the copyright is very unclear and it makes me wonder whether this other claimant and I have the same idea or not. Is there a way to find out more information about this other person's copyright submission? What if this person just copyrighted the idea because they thought it was a nice idea at the time but have no intentions of developing the idea to fruition? Is there a way to transition the rights to my name?  -Glenn Robertson

A: Copyright law does not protect ideas, concepts, titles, themes or historical facts. Several different authors can express the same idea in their work. What copyright law protects is the expression of the author; which is the particular manner that the author tells his/her story.

So 12 authors can write a biography of George Washington, and then a 13th author can borrow from the ideas and facts mentioned in the prior works, and write his own book. It is the craftsmanship of the writer, his voice, how he embellishes upon the basic facts, that is protected, not the underlying concepts or ideas. No one is given a monopoly on ideas. So as long as the 13th writer told his story in his own words, and didn't copy the verbatim text of another author, nor closely follow the plot of a prior author, there would be no infringement. Even a small amount of verbatim copying is sometimes allowed under the fair use doctrine.

So it doesn't matter that a prior author has written on the same topic or idea that you want to write about. You should write your story in your words. In other to prevent inadvertent copying, I would recommend that you not read the other work before you complete your work.

You mentioned that you had "adapted" a screenplay. If you have written a script based on someone else's copyrighted work, such as a book, and the book has not gone into the public domain, you may be infringing on the rights of the book author.

Just because another may be similar to your work, there would not be an infringement if each author did not copy the expression of the other author. For a more detailed explanation of copyright principles, visit my website and read the section on licensing content in my article titled: Legal Roadmap for Multimedia Producers (www.marklitwak.com).

—Mark Litwak (www.marklitwak.com).

Mark Litwak is a veteran entertainment attorney and producer’s rep based in Beverly Hills, California. He is the author of six books, including the recently published Risky Business, Financing and Distributing Independent Film (Silman-James, 2004). He is the author of the CD-ROM program Movie Magic Contracts, and the creator of the Entertainment Law Resources Web site: marklitwak.com. He can be reached at law@marklitwak.com.

Disclaimer-Any material sent to or provided by Mark Litwak is for illustrative and educational purposes only and should not be relied upon as legal advice, or be considered confidential or the basis of an attorney client relationship.  This material may not be suitable for your particular situation and different legal advice may be appropriate depending on your jurisdiction or circumstances. Therefore, you should not rely on this material, or any part of it, without the advice of competent legal counsel.