PRODUCTION TIPS: Get the Right to Make Changes... Or Else
So you're a producer with a hot property optioned from a novelist who gave you the right to shoot a film based on her novel. You have all your agreements signed by your above-the-line and below-the-line people and your production is ready to start. During the development of your film, you choose to make major changes to the story that you think will make it more engaging, more artistic and/or more marketable. Then your phone is blowing up with calls from the original author on which your production is based. She's pissed off with the changes but you're not worried because she signed your contract and she can't do anything to stop you.
Or so you think.
You and your lawyer look at the contract and he notices the following: that while you did obtain the right to represent the work, you DIDN'T obtain the right to make alterations, changes or modifications to the characters, stories or text created by the original author in the first place.
As Gordon P. Firemark makes clear, the original author (or a copyright licensor like a publisher) can stop your production IF your contract isn't bulletproof. Although he is speaking directly to producers of plays and musicals, this is still good advice for independent film producers.
You see, nearly every production agreement contains a clause saying, essentially, that no changes to the material may be made without the prior, written approval of the author (or licensor, if dealing with a publisher like Samuel French, Tams-Witmark, MTI, etc.) these approvals aren't often granted. The expectation is that the material will be presented
So, any changes that are made without approval amount to the creation of unauthorized derivative works. And therefore, copyright infringement.
Additionally, most contracts between licensors and producers explicitly provide that any violation of the above provision is grounds for immediate termination of the production license. And, once the license is terminated, any further presentation of the play amounts to another infringement of copyright
Since copyright law provides for injunction as a remedy, the authors and their representatives have the power to require that offending productions cease and desist, and wise producers comply. If they defy, and the Courts become involved, they could wind up paying hundreds of thousands of dollars in damages, and be enjoined from further infringement. But, equally important is that producers don't want to burn bridges with playwrights or licensors. They want to be able to produce another show next year, etc. So, quick compliance and an apology only make sense.So what should you do?
- Present the work as written. Contracts with creative staff, like director, music director, and designers, should specify a requirement that no material changes to the work may be made without approval, and that the producer must be notified of all proposed changes BEFORE they're made, and with ample time to seek and obtain author approval. Failure to comply should be grounds for termination, since it exposes the producer to a significant risk of loss if the show is shuttered. This isn't rocket science, but the help of an experienced entertainment lawyer can certainly make things easier.
- If you do obtain approval for your changes, stick to what's been approved. And, get the approval in writing, make sure it's specific, detailed, and clear. Have your lawyer review the permission and advise you.
- Never produce without a license.