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Asked & Answered: Is it safe to write a new work based on a deceased author’s book?

Q: I have an excellent screenplay concept I'm into – Inspired by a previously published literary book, written by a now-deceased author & screenwriter whose trade and screen writing professional work was quite successful.  The publisher of the original “book” is contemporary

The author's literary affairs are now handled by an “estate Trustee,” and a capable Hollywood industry literary agent is still in the picture, having worked on the author's other activity, although nothing has been done with these “properties” in years.

Is it safe to write new work (screenplay) based on a previous book done by a deceased author?  Does one need permission from original rights owner to create a new work based on the old work, PRIOR to doing any new work?

From whom should such permission be sought? Or does/should the “permission” (and time-assurance) come from the publisher of the original book? From which/whom would/should such permission be sought?   How structured?
How does one protect oneself on such a new work which is based on an older  work?

What “protection” or “agreement” is needed (for the new writer) at this stage, to avoid losing the new spec work?

Is this a “hopeless or workable situation?”

A: You absolutely MUST obtain permission before adapting existing works into new screenplays, unless the old works have fallen into the public domain.  (i.e., the copyright on the work has expired).

Permission should be sought and obtained either from the publisher or the estate of the author, depending on the terms of the publishing agreement between those parties.  It will probably be easier to start by contacting the publisher… who will tell you whether they control the motion picture rights, and if not, whom to contact for a license.

The type of documentation you need is probably a license to adapt the work as a screenplay.  Without such a license, it may be very difficult, if not impossible, to sell the screenplay.  You could also propose an “option” on the underlying rights, with the proviso that you're going to develop the screenplay during the option period.

The situation isn't hopeless, but whether it is “workable” depends on the author's estate and the publisher, and whether they're willing to grant the necessary rights.  Of course, this is a situation where offering some money can smooth the process, and having a skilled and experienced negotiator  (probably an entertainment lawyer familiar with the  independent film industry) helping you is certainly worthwhile.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

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