Unravelling screen rights and the Copyright Act

Renée Luus

The question of who owns which rights and consequently who is entitled to recognition (and, more importantly, revenue) has been the subject of various disputes, not only between the David and the Goliaths of the entertainment industry but also between the Goliaths themselves.

In South Africa, the Copyright Act of 1978 protects the original work of an author. This is a virtually automatic right (subject to compliance with the Copyright Act) that exists once the work, or the story, has been reduced to writing.

The Copyright Act

As soon as an author has copyright in his work ("story"), the Act protects him by prohibiting all other people from using, commercially exploiting and benefiting from his copyright. Copyright, in its simplest form, protects your property and prohibits others from using what is yours. The nature of copyright lies in the ownership of property (albeit intellectual) and should be looked at in the exact same way as owning a VW Polo or a pumpkin pie.

The law specifically affords the owner of the copyright the right of adaptation. This means that the owner of the copyright can sell, or give others the right, to adapt his story. One oftentimes sees the words "Based on the original book by John Doe" in the credits of a movie or TV series. The Copyright Act accords the author has the right to be identified as the author of the work.

How the author chooses to deal with his right of adaptation is completely up to him, with some particular about the manner in which their story is to be adapted. JK Rowling, for example, herself negotiated the rights to edit the adaptation of the Harry Potter series.

Author rights

Under South African copyright law the author has the right to object to any adaptation of the work that would reflect badly on him or her. The golden rule is that consent and agreement between the copyright owner and whoever adapts his/her work for whatever medium should be reached.

For writers, it is obvious that any opportunity to expose their work (by adapting the story and potentially creating earnings, recognition and possible royalties) is a dream come true. In this context, it is astonishing that many writers do not, when creating a story, think of its possible adaptation.

Problems sometimes arise when works are adapted (usually when the author was not approached for permission or consent) by copying all or part of an original work. Once the owner of copyright decides to confront a third party who adapted his work without having been granted the rights to do so, the copyright owner has to prove his copyright. And that could prove difficult, bearing especially in mind that South Africa does not have copyright registration like the US, which, in terms of Federal Law, affords specific copyright protection for derivative works.

Courts the world over have been asked to decide on infringement of copyright. An example is the UK case of Michael Baigent & Richard Leigh vs the Random House Group dealing with the Da Vinci Code.

South African laws

South Africa's courts, which have adopted a similar approach when dealing with copyright infringement, choose not to protect the general idea or concept underlying the work but to afford protection of detailed collections of ideas, or patterns of incidents which form such a substantial part of the work that to copy it would be a copyright infringement.

Once the adapted screenplay has been written, new copyright subsists as a literary work. Similarly, the owner of the new copyright has exclusive rights in the adapted screenplay. Once the screenplay has been performed, filmed, directed and edited, a bouquet of different rights (for example in the film, the soundtrack and the performances) arises and becomes open to exploitation.

Copyright owner, exclusive rights

In short, the copyright owner has the exclusive right to adapt his work. He can decide what rights (and, if so, in what way) he wants to grant someone else. This position has to be protected by clearly defining what he gives away and what he expects in return.

Be aware that this is not an agreement that can be signed on a napkin in a picturesque French fishing village. It should be drafted by someone who understands rights and how they can be exploited.

Be that as it may, collaboration between writers based on mutual respect and interconnectivity has the potential to create tomorrow's wonderful cinematic and stage performances. Who knows, there could well be a South African writer who ends up as a million dollar baby?