Last year a much beloved directing professor passed away and some of us are working on creating a DVD of her teaching for educational purposes. Her class was filmed one semester before she passed away and we are using this material as the basis for the DVD which will eventually be for sale to teachers and film students.
In her class students used scenes from previously produced screenplays, and directed actors using those screenplays. No clips from the actual films were used.
So the question is this, in order to put a section on the educational DVD of her discussing the breakdown of a script, or actors performing a scene from the script, who do we need to get permission from? Is permission from the author of the screenplay enough? Do we need permission from the studio who owns the screenplay for the film? Is this considered fair use?
Often the most interesting questions are the ones I can’t really answer. I’m hoping some readers with experience on the vagaries of copyright and entertainment law will weigh in with opinions and guidance. Craig? Ted?
In the meantime, I can offer some framework for what we’re discussing.
Studios own copyright on the underlying screenplays behind their movies. The scripts are considered works-for-hire — even if they were originally written as specs. But the credited screenwriter(s) retain the ability to publish the script, which is why I can offer my scripts in the Library without getting a call from Sony legal.1
I recently licensed a scene from my script for Big Fish to be published in a literature textbook. The fact that the publisher went through a lot of hassle to license one fairly short scene suggests that their legal folks believe that use of even a single scene falls outside of fair use. You may disagree, and the truth is I’ve given permission a lot of times when I didn’t think it was even necessary. But my hunch is that if you went to a copyright attorney, she’d say you had to get permission.
But from whom? Here’s where I suspect there’s an important distinction between printing and performing.
If you were simply projecting a page from a script on screen while you discussed it, that feels very close to printing. In fact, studios pay screenwriters a flat fee for the option of including the screenplay on the DVD.
But since your product includes actors performing the scene, you may cross into different territory. In my experience, studios seem to have all rights to film, stage, or otherwise mount a performance of material they own. For example, if Warners wanted to make a Charlie and Chocolate Factory musical, they could use any part of my screenplay without paying or even acknowledging me. That not hypothetical; Karen Lutz and Kirsten Smith wrote the screenplay for Legally Blonde, yet their names are nowhere on the Broadway show. The author of the screenplay material is considered to be MGM.
I think fair use should cover you, but I suspect it doesn’t. I look forward to hearing other opinions.
- I’ve avoided publishing scripts that are in limbo — abandoned but still owned by somebody — since they could theoretically be made at some point. Just this week I heard rumblings about Tarzan, a movie I thought long dead. ↩