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Copyright

Q: Literary rights when previously made into feature films

Is it correct that literary copyright lasts until 70 years after the author's death? If so, does the situation change when a work has been filmed? Does copyright in the screenplay of a film have implications for the original copyright of the novel? I have in mind two novels. The first, written in 1890, appeared as feature films and TV adaptations several times between 1910 and 2007. The author died in 1900. The second was written in 1959 and filmed in 1962 and 2004. The author died in 1996.

A: I am afraid the answer to your question is a little complex. Prior to 1911, copyright in a literary work subsisted until seven years after the death of the author, or 42 years from date of publication, whichever was later. From 1911 until 1956 copyright in a literary, dramatic musical or artistic work subsisted until 50 years after the death of the author, extended in 1956 to 50 years after the end of the calendar year in which the author dies, and this 50 years was subsequently extended to 70 years from January 1, 1996.

In the case of a film, the 70-year period is now calculated from the end of the year of death of the last to die of author of screenplay, author of dialogue, principal director or composer of any music specially created for the film, as the case may be. Prior to 1996, the 50-year period for films was calculated from the end of the year in which the film was made or released.

There are special provisions relating to works which were still in copyright on January 1, 1996, or whose copyright had then expired but were brought back into copyright by the 20-year extension, and also for works of unknown authorship.

A novel cannot lawfully be turned into a film without permission from the author of the novel or his successors in title to the film rights in the novel, but if that permission is given, then once the film is made and released, separate copyright will subsist in the novel, the screenplay, the film and the soundtrack, though possibly they may all end up in the same hands. Thus, copyright may have expired in a play or novel, but may still be alive in respect of the film based on it, and there may be several different films and several different screenplays and soundtracks, each with its own copyright. It is common practice, however, for a film producer to insist for obvious reasons on acquiring all ancillary copyrights arising from the making of the film, including those in the screenplay and soundtrack. In the case of a film, the first joint owners of copyright in it are the producer and the principal director.

Take, for example, a play by Shakespeare. Several films and possibly stage musicals may have been made from it already and new ones may be made from it in future. Each will have its own copyright but that alone cannot stop an entirely new version being made, provided it does not infringe the copyright material created for any previous one. The two film versions of Henry V, one starring Olivier and the other, Branagh, are good examples of this. Shakespeare's play was well and truly out of copyright so his permission was not required for either and a third film version could still be made.

Of course, if, as is often the case, a film producer is granted an exclusive right to turn a novel (being one still in copyright) into a film, then that producer will own, not just the copyright in his film, but also the film rights in the novel, and therefore, so long as the novel remains within copyright, no other film of it can be made without his permission.

Turning to the two particular cases you have mentioned, the 1890 novel is on any view out of copyright since the author died in 1900, but at least some of the films based on it will still have copyright protection under the 50 and/or 70 year rules. In your second case the novel and both films will still be in copyright.

The above applies, of course, to works of British origin or authorship, though copyright law, in the European Community at least, has now been well and truly harmonised.

First published May 24th 2007