Copyright Infringement Considerations for Filmmakers

April 2004

Filmmakers are always looking for inspiration. But what happens when that inspiration comes from source material in which other people hold rights? No script is 100% original. How much can you borrow from a book, or even another script or film, before you cross the line and permission is required from the person who holds the rights? The last thing any producer wants is a third party crawling out of the woodwork on the eve of a film’s release, threatening to stop the show, or demanding a cut of the profits after the fact. A bit of knowledge about the fundamental principles of copyright and copyright infringement might help you decide how to approach the initial stages of that new project and to decide whether, and if so at what point, you contact third party copyright owners of material you have drawn on. This article discusses those general principles, and gives examples of some cases already decided in the courts. It also has a brief look at securing rights in the event you need them.

The most common context for filmmakers in which the question of infringement comes up is the use, or adaptation, of written source material for a screenplay or a film. The legal principles are essentially the same however if you were considering whether one film infringes the copyright in another film. It helps to summarise what those principles are. The law of copyright, and in particular the Copyright Act 1968, protects the rights of owners of copyright subject matter, which includes amongst other things literary works and cinematograph films. The copyright owner of a literary work has certain exclusive rights, including the right to reproduce the work in material form, and to make an adaptation of a work. Dramatising a literary work such as a novel, by writing a screenplay, is an adaptation of the novel, and would thus be an infringement unless done with the copyright owner’s permission. Similarly, making a film of a literary work is deemed to be a “reproduction in material form” of the literary work. It is worth mentioning at this stage that it is not always the author of a book who is the copyright owner. The author may have assigned or licensed his or her rights to a publisher for instance, which should be kept in mind if it comes to making enquiries of the rights holder.

So for instance if you set out specifically to make an 'adaptation' of a novel, you will require the copyright owner’s permission. But how much of the original work do you have to take across before you have an 'adaptation'? Do you have to reproduce the dialogue of the novel directly in the screenplay? What if you alter the dialogue slightly? What if you pick some of the main story or themes, but write your own dialogue, or mix up the order in which things happen? At what point are you “copying” in a manner which the law will not allow? Unfortunately, as with many things in the law, there are no hard and fast rules, only general principles, which have to be applied to the particular circumstances of each case.

It is often said that copyright doesn’t protect “ideas”, only the particular form of expression of an idea. As an overly simple example of what this means, if I made a film of a monkey driving a car, copyright would exist in my particular film, but it would not stop anyone else making their own film of a monkey driving a car (assuming they could teach the monkey to drive!). This concept has however been refined such that literal or exact copying is not necessary for copyright infringement. All that is required is that a “substantial” part of the copyright work is taken. The courts have made it clear that when looking at what is a “substantial” part of a copyright work, they look more to quality than quantity. This has opened the door for aspects such as plot, themes, situations and characterisation to be considered when looking at whether one work infringes another, things which might otherwise be described as “dramatic ideas”.

One of Australia’s best known film copyright cases, the “Jaws” case¹, illustrates the point well. In 1982 Universal Pictures took action, both in Australia and in other countries around the world, to stop the showing of a film called Great White, which they argued infringed their copyright in the book, screenplay and film Jaws. While the dialogue was different, the similarities between the films went well beyond the simple idea of the plot, i.e. a shark terrorises a coastal community. The original judge in the Jaws case remarked that:

“Practically all the principal situations and characters in Jaws are faithfully reproduced…the same stretch of coastline in the same country is reproduced as the location… Then, one after the other, easily recognisable characters appear and recognisable incidents occur.”²

This was enough for the judge to hold that a “substantial” part of the original work had been taken. Great White was held to be a copyright infringement of Jaws, and the Italian producer was prevented from screening the film in Australia.

Similarly an earlier English case³ has held that the copyright in an Oscar Wilde story was infringed by a dramatisation in the form of a ballet. Copyright was infringed even though none of Oscar Wilde’s words were used, and the dramatisation was not even written down, but it was enough that the ballet substantially reproduced the series of dramatic events from the original story. It is important to consider however the elements of the original work which are taken, and how distinctive or original they are in themselves. For example, another case involved two plays where the extent of similarity was restricted to the very general plot. It involved the theme of a young man who risked losing his inheritance to an evil relative if he were not married by a particular time, and to prevent this he marries a beggar girl. The way in which the stories of the two plays unravelled and finally resolved was different in each case and no copyright infringement was ultimately found⁴. An American judge has summarised the principles involved about as succinctly as it can be put:

“It is doubtful whether incidents per se can become copyrightable literary property, but it does not take many of them, nor much causal connection thereof, to make what will pass for a plot, or scene, or constitute the action of a play; and that a scene has literary quality and can be copyrighted, and piracy may consist in appropriating the action of a play without any of the words, is well settle.”⁵

His words have equal validity when applied to film. A more contemporary example is the Goggomobile case⁶. A lot of people would be familiar with the successful Yellow Pages advertising campaign during the 1990s which featured a character, who later came to be known as “Mr Goggomobile”, on a difficult search for parts for his rare “Goggomobile”. In 2002 a subsidiary of Royal & Sun Insurance produced an advertisement for car insurance featuring the same actor playing the same character. There were similarities between the later TVC and the earlier Yellow Pages one, namely that they both involved Mr Goggomobile on a search, using the telephone, for something concerning his Goggomobile. In both advertisments he encounters frustrations because no-one knows his Goggomobile. This is then resolved humorously when he discovers that the advertiser knows his car and can help. While the later advertisement played on the humorous traits of the earlier one, and involved a similar general situation to the earlier advertisement, the dialogue was different. The court held that even though the later advertisement may have conjured up the recollection of the earlier one in the mind of a viewer, the “ideas” which were taken were too general to be a substantial part of the original TVC or its script. The fact that the original script was a short one-page work (as opposed to, say, the lengthy or involved plot and developed characterisation of a novel) may well have been a factor in the court finding that what was taken was not “substantial enough”. As a final note, Royal & Sun’s TVC was in fact held to be illegal on totally different, non-copyright grounds, namely that it risked misleading consumers by implying a connection between it and Telstra, or between it and the earlier ad campaign, which did not in fact exist.

While it is now clear that plot, characterisation and themes can be a “substantial” part of a work, the case is less clear where the source material being used is based on historical fact or other information in the public domain. Just because one person writes their particular account of a historical event, it does not prevent another person writing their own account, or for that matter making a film which deals with that event. There may be objective similarities between the two accounts because they are both based on what actually happened. This on its own will not be enough to find copyright infringement. There is a line however, and if the later work, be it film or novel, copied the literary structure of the earlier work, used the same literary or dramatic devices, or treated certain historical events in a sufficiently similar way, then that line may well be crossed, and copyright infringed. As an example, even the use of “freeze-frame” devices in a film might infringe copyright in a historical novel which included drawings or photographs of similar scenes.

The considerations involved in copyright infringement are not only objective ones. There is another “rule of thumb”, which even judges have been known to refer to on occasions, namely “if it is worth copying, it is worth protecting”. That saying reflects one of the aims of copyright law, which is to stop people taking unfair advantage of the work and skill put in by someone else. A filmmaker cannot escape the fact that the extent to which he or she actually does use an earlier work, whether fictional or historical (as opposed to other sources from which information or inspiration may be available) will always be a crucial factor. If you are basing a script or film primarily on one particular source, the reality is that you will probably need the permission of the original copyright owner to do it.

The safest option is always, if in doubt, get permission. That will also help to satisfy investors or funding bodies by showing that no stone has been left unturned. The form of any permission will depend on the nature of the source material and the use to be made of it, but the usual method of acquiring rights, particularly for feature films, is by way of an “option” agreement. The specifics of option agreements have been covered elsewhere⁷, but essentially involves the producer having the option to acquire the film rights in a work at any time within a set period, usually a number of years. During that time the producer is entitled to develop a script and seek production funding to get a film up, but can’t actually make the film until the option is “exercised”. Similarly during that time the copyright holder in the original work cannot sell the film rights to anyone else.

Peter Karcher

¹ Zeccola v Universal City Studios Inc (1982) 46 ALR 189; 67 FLR 225.
² Ibid.
³ Holland v Vivian Van Damm Productions Ltd [1936-45] Macg Cop Cas 69.
⁴ Rees v Melville [1911-16] Macg Cop Cas 168.
⁵ Frankel v Irwin 34 F 2d 142 (1918) at 143.
⁶ Telstra Corp Ltd v Royal & Sun Alliance Insurance Aust Ltd [2003] FCA 786.
⁷ The Write Idea – Film Options for Beginners, IF Magazine, November 2000.