Can I use a book without permission?
I’m currently writing a spec-pilot loosely based on a novel — not a best-seller, but one people have read. I plan on sending out queries to agents to try and get represented, but I don’t know if I need to ask permission by the author to use the ideas expressed in the novel.
The idea I’m borrowing is basically “the assistant works for the evil boss” and I don’t plan on using the same character names. I also intend on adding more characters and plots. But…and a big but, is I want to keep the title of the book as the title of the show. Seeing as nothing is really the same, I’m confused if I need to ask permission.
– Quentin
Essex, Iowa
There’s no gray area here. You are flat-out stealing, and brazenly at that. Stop.
You have a few options at this point. First and least defensibly, you can change so many of the details (and the title!) that the story feels like it’s “in the vein of” but not actually based on the book in question. National Treasure isn’t based on Dan Brown’s books, but it’s comfortably and legally within the same microgenre. It’s not the same story, but it’s the same kind of story.
In your case, there’s endless precedent for evil bosses. Do you own version. Don’t crib anything from the book at all.
A second choice is to actually get the rights. This feels like a longshot — why would a somewhat-successful author give an unproduced writer the right to adapt his book for TV? But it sometimes happens. I’ve written about how to do it.
A third choice is to simply acknowledge on the title page, “Based on the novel Title by This Author.” This doesn’t give you the right to make this pilot. You couldn’t sell it. You couldn’t produce it. But you could feel reasonably secure that no one would come after you, the same way legions of Buffy fan-fic writers don’t worry about Joss Whedon sending cease-and-desist orders. Particularly in television, there’s industry precedent for scripts that are simply writing samples. That’s what you’d have.
Filed under: Adaptation, Books, QandA, Rights and Copyright
Articles
September 30th, 2009 at 11:34 am
wow. here are my bigger problems i have with that (stealing intellectual property aside). of course you have to add characters and plot elements, it’s doubtful if you adapted any novel word for word it would carry more than a season (twenty two hours will probably cover everything) so changes are a result of the medium. but if you’re going to add plots, characters and change character’s names… why are you keeping the title?
either the title is so damn ridiculously great or you’re trying to draw an association with the source material which then asks, why are you changing the character’s names? i love comic books and nothing makes me more furious than when someone takes the name of something and jettisons the rest. i’m looking at you CATWOMAN. it’s kind of like saying i want the fanbase’s money but i’m spitting on all the rest of it.
i am not trying to be mean but quentin, how would you feel if someone took your novel, changed the characters names, plots and dynamics and still kept the title and expected to sell it?
September 30th, 2009 at 11:51 am
“the assistant works for the evil boss” Doesn’t he know that The Devil Wears Prada has already been adapted to a movie?
September 30th, 2009 at 12:28 pm
I’ve just started a new screenplay, I’m calling it Satan Dons Versace
September 30th, 2009 at 2:57 pm
Thank you so much for this, John. I work as the assistant at a script analysis company, and “I am writing a script based on a property I don’t own. What do I do?” is the #2* question I get. I tell people they should either option the rights or use their screenplay as a writing sample – that writers cannot sell something they do not own. I will start linking my future replies to this entry.
*#1 is “Will you sell my script?” and it is frequently not phrased as a question. Emails regarding question #2 without fail include question #1.
September 30th, 2009 at 3:58 pm
no no no… Beelzebub Sports Marc Jacobs… Lucifer Is Decked Out In Armani…. ahhh shit that’s all I got…
September 30th, 2009 at 4:01 pm
If he couldn’t get the rights to it, couldn’t he do this adaptation and use it as a sample? Or is that still legally out of bounds?
September 30th, 2009 at 4:49 pm
Why is no one questioning why he is writing a spec pilot script in the first place? It would be a writing sample at best.
September 30th, 2009 at 9:53 pm
I read a book, and I couldn’t stop thinking about it as a film. I googled the author, found his site, emailed him, and I’ve had the rights to adapt for 16 months now…
September 30th, 2009 at 10:17 pm
I just mugged a guy for his iPhone. Can I open up an Apple store, or is that in poor taste?
September 30th, 2009 at 10:22 pm
I would suggest trying public domain works.
On the other hand, adapting The Enchiridion might not make for much box office.
September 30th, 2009 at 10:25 pm
Quentin,
Enough with the plagiarism game in Iowa. Get your tossed salad back to LA and finish that Pulp Fiction prequel you’ve been talking up for the last 12 years.
October 1st, 2009 at 1:09 pm
I feel like this may have been a joke question making fun of Inglorious Bastards and Quentin Tarantino.
October 1st, 2009 at 2:19 pm
Yeah, I’m pretty sure John just got Baba Booey’d
October 1st, 2009 at 5:56 pm
@ Hunter
Now you made me doubt the sincerity of this question.
October 1st, 2009 at 9:37 pm
To folks who doubt the sincerity of the question: I omitted the title and author of the book in question. It wasn’t The Devil Wears Prada, nor anything Tarantino-related. I left out the specifics because I didn’t want it to be just about That Specific Book.
Readers invariably think their situation is unique, and usually, it isn’t.
97% sure Quentin’s question was legit, at least to him.
October 1st, 2009 at 10:05 pm
Fair enough. In any case, it’s good advice. A lot of my fellow film students keep talking about ideas that aren’t ideas so much as adaptations of other people’s ideas. I think I will guide them towards this entry.
October 2nd, 2009 at 9:27 am
John, I do think should have elaborated on fictional revisionism (a la Wicked) and public domain. Maybe if Quentin were to look for public domain properties, he could find something in the same vein.
October 2nd, 2009 at 11:00 am
It’s an interesting twist on the pilot spec writing sample, but I’m not sure the industry would be interested in it. You write specs for existing shows to show you can absorb the hidden rules of the show. You write a pilot spec to show your originality. Writing a pilot spec based on someone else’s fictional world doesn’t show either.
October 2nd, 2009 at 5:38 pm
Quentin, I’ve got a few specs that I’m not going out with sitting around collecting dust. Why don’t you just take one of those, cross my name out and put your name on it– this way you don’t even have to bother going through the formality of actually writing…? Call me: 555-1234.
October 2nd, 2009 at 9:56 pm
Wow. You guys are really mean. I had a legit question I needed an answer to almost all of you have poked fun at it. I’m young, but not stupid. I know what plagiarism is. I’m not directly copying the orignal author’s work.
Now that I think about it, I’m not even using ideas in the novel. I’m using the same old Hollywood cliche of “the assistant works for the evil boss”. The title was clever, and I wanted to use it, but I didn’t know if I had to ask permission.
October 3rd, 2009 at 1:54 pm
Quentin, yes. Writers are mean.
October 3rd, 2009 at 2:15 pm
Quentin, I’m sure no one intended to hurt your feelings – but the tone of your questions suggests that it’s no big deal to borrow things from other people – whether you’re directly copying or not.
You’re a writer, so you must realise how much effort and time goes into creating a piece, not to mention the blood, sweat and tears that go into querying a literary agent, finding a publicist, doing a thousand edits, and then having to promote your book…it’s a huge task, and a labor of love, which is why people get upset when you suggest that your plan “use the ideas expressed in the novel.”
Generally a good rule of thumb is that if you have to ask, you probably shouldn’t be doing it.
Also, I don’t know about television, but I know in the publishing world, the writer rarely gets to pick the title. That’s for publishing companies to decide. They know what sells.
October 3rd, 2009 at 2:54 pm
Quentin,
We all view ourselves as professionals, we take pride in what we do. That said, if I were a novelist who’d spent two years of my life writing something only to watch a young man take my work as influence, use my title and create a TV show based on my work, it would really piss me off. I’d probably hire an attorney. I’ve never met a bad person from Iowa, and I’m sure most folks in Essex have hearts of gold, but that wouldn’t stop me from suing the hell out of you.
Assistant works for an evil boss. Take the premise, craft a story that’s your own, and run with it. Good luck.
October 3rd, 2009 at 6:40 pm
Quentin,
I’m not sure that you DO know what plagiarism is, if only because of you asked the question, “Can I base my spec off of someone else’s work, and use their title?” That is clear cut plagiarism there.
I took your name, and your question’s proximity to the release of a Tarantino movie that did something very similar to what you’re suggesting as a cue that this could have been a fake question. I mean, if it were a joke, it would actually be sorta clever. In any case, I’m sorry if my accusation offended you.
I don’t mean to insult you, or demean you, or belittle you, or even to talk down to you. Hell, you and I are probably about the same age with the same amount of life experience. All I’m saying is, this case here is plagiarism. And not just “kinda” plagiarism but total plagiarism.
The fact that you couldn’t determine this on your own means you might think you know what plagiarism is, but you don’t actually know. If you got caught doing this in a business situation it might well be the end of your career. The jokes might be at your expense, but they are also for your benefit.
October 3rd, 2009 at 10:55 pm
Okay, new question. Completely legit. I’m still learning. Let’s say, for instance, I wanted to use an idea based on the idea that a female assistant works for a female exec at a major fashion magazine. Has nothing to do with “The Devil Wears Prada”. Nothing is the same except the idea that the female works for the female exec at the fashion magazine. Considered plagiarism? (Also note: this is not my idea for the script, in case you were wondering). According to John’s answer this fits into the area of “in the vein of” right?
October 4th, 2009 at 12:42 am
Quentin,
This is not a good road to go down. As others have said, use the “cliche premise” and run with it yourself. Forget the book altogether.
October 4th, 2009 at 8:00 am
“I’m young, but not stupid”
How young? Fourteen? Twelve? ‘Cause this attitude and question both suggest someone whose ouvre so far largely consists of “Battlestar Galactica” and “Dollhouse” fanfic.
October 4th, 2009 at 9:59 am
@Quentin (#25):
A young woman working for a female exec will inevitably be compared to Devil Wears Prada, or Ugly Betty. So it’s hard to say it has “nothing to do with” these shows But it’s not necessarily infringement. (Plagiarism isn’t really the right term. Plagiarism is more academia; infringement is the legal world.)
A current example is the CW’s Vampire Diaries, which is based on books that predate the Twilight books, but covers a lot of the same territory. You can’t say it has “nothing to do with” Twilight, but it’s not infringing, either.
However, to go back to your original example, had they chosen to title the show any variation on “Twilight,” there would have been some legal thunder.
October 4th, 2009 at 4:21 pm
Everybody knows that titles are NOT copyrightable, but they may “be protected by unfair competition law and possibly trademark law if the publisher can demonstrate that the title has acquired secondary meaning. Secondary meaning, with regard to literary titles, is only found when in the minds of the public, the particular title is associated with a single source of the literary work. Although blatant attempts to pass off another publisher’s title as one’s own may be protected by unfair competition law, it generally is not an easy process to protect a single title. It is much easier for a publisher to protect a series title under unfair competition and federal trademark law; in fact, federal trademark law permits the registration of a series title.”
Source: http://www.publaw.com/titles.html
October 5th, 2009 at 12:49 pm
And here I thought that this whole thing was a jab at Inglorious Basterds (although, what a crazy coincidence that the questioner’s name was Quentin and he did exactly what the question describes).
October 5th, 2009 at 1:40 pm
Re:Eve
I would think a story about a tortured assistant called “Swimming with Sharks” (for example) would lose in court. Yes, you cannot copywrite a name, but if you have a name and a similar premise i think you’re on thin ice legally. And even if you were this side of the illegal, I think the prospect of a legal battle might deter anyone from purchasing the project. Sure, if it’s good enough it will still sell, but what is the likelihood this scenario producing an indelible work of art?
October 5th, 2009 at 4:36 pm
Wait, I thought securing the rights was presumptious and amateurish… why would a successful writer advise to do this while completely disregarding choice 3a… to write it, play nicey nice with the author and have someone else buy the rights for you?!
October 9th, 2009 at 8:13 am
@ Greg: If he wants to start a career in TV, these days he’ll need both a spec (or two) and an original pilot.
@ Quentin: I’d suggest that you come up with your own title and write this as an original. Putting my lawyer cap on for a moment (I am a lawyer by training, a writer by profession), you are right that what you’ve described is not an infringement of the “underlying” work because you are not basing your idea on that work. Ideas are not protected under copyright, only unique expressions of ideas, so you’re free to use a familiar trope in any way you want.
Using the title of the other book, however, would be a red flag suggesting that your finished work was indeed based upon the book. If this is not the case, drop the title and drop your concerns.
If you were inspired by the book, but are not using the characters and situations (other than the generic situation of assistant works for evil boss), so what? I’m writing something right now that was inspired by all kinds of things (articles, radio interviews, etc). Of course, I’m combining them in wholly original ways and creating wholly unique characters who do not exist in any of my research materials. And that’s the key. Assuming that you really are creating original characters and original scenarios, think of the book as research material only and come up with your own title as well as your own characters.
A final question: Why are you attached to the title? Do you think it will improve the marketability of the project? I ask because you may be mistaken about how much mileage you can get from using the title. In fact, depending on your goals, it could work against you to do so. That said, sometimes this makes sense. For example, I’m developing an original idea but recently came across a book of essays with a killer title that takes on similar themes. I’ve not read the essays yet, but I am considering the possibility that I may want to incorporate a story line from the essays if it serves the story that I’m already thinking about. If so, I would need to acquire the rights, and with it I would also acquire the right to use the title. BUT, I am just as likely (more so actually) to not do that and come up with a title of my own. I will only do it if it serves the story and if I can get the rights. But note, I never would have done this with a spec that I was using to start my career. Because I am building the second act of my career and am not in, say, John’s position, this project is third in line, even for me, behind two other projects that are both more commercial and not in any way linked to underlying material for which I might need rights.
October 9th, 2009 at 9:04 pm
I really have to say that the best person to consider talking to about this kind of thing isn’t a screenwriter, as wonderful, experienced and talented as John is. If you have serious practical copyright concerns, you should consult an attorney before making any major investments of labor or money in a spec project. Even the development of a spec script based on another’s intellectual property even for entirely benevolent and non-profit purposes can get you in trouble. You can’t always hide under “fan fiction” or “fair use.”
Your local state “Lawyers for the Arts” or “Legal Aid” society can hook you up with free legal advice on the subject.
Remember, legal advice comes from lawyers. You can sue a lawyer for malpractice, but you can’t sue John.
October 13th, 2009 at 10:10 am
Jesse, very good point and great reference. The one benefit of him having asked John is that he may have learned, from John and various comments, that he’s not actually basing his work on underlying material and that he can avoid this issue altogether by not making it seem like he is (e.g. by using the same title, which it sounds like is the only thing his idea and the book he read have in common.
And, of course, there’s the question he didn’t ask but that many people spoke to — which is rather an idea this familiar is a good idea for a pilot coming from an unknown. It may be, though, that his take is so original that it is. Only he can tell for sure.
October 13th, 2009 at 10:12 am
I meant “whether” an idea this familiar is a good idea.
October 16th, 2009 at 1:27 am
I think people are being a bit harsh on Quentin. When you’re starting out you have to learn what the boundaries are. Example: over here in the UK, the BBC produced a drama last year called ElvenQuest. Here’s the writer’s own description:
“ElvenQuest is a sitcom about a misanthropic writer of fantasy novels who finds himself whisked away into a parallel universe by an elf, a dwarf and a warrior princess, where he must undertake to find the Sword of Asnagar in order to save Lower Earth from the evil Lord Darkness before he can get home.” http://www.bbc.co.uk/blogs/comedy/2009/04/elvenquest.shtml
So… is that “in the vein of” Galaxy Quest or it is just a rip-off? And when even professional networks are pulling off this kind of thing, how are the up-n-comers like Quentin supposed to learn what’s right?
October 22nd, 2009 at 4:40 am
Thats awsomeHey, this reminds me of Dreamworks character design. ,
October 23rd, 2009 at 3:41 am
Assuming that the stakeholders of the organization agree then that instruction is indeed the solution to the given problem, we can begin designing. ,