CAN I USE THAT?
William from NYC asks:
I’ve been playing with the idea of writing a spec screenplay based loosely on an obscure made for TV movie. I’ve done some searching and haven’t come across any production of it or future production of it. Should I just write my screenplay that will probably bear very little resemblance to this film anyway?
[Disclaimer: Nothing contained on this website should be interpreted as specific legal advice. You need to consult with an attorney about your specific situation for that. This is just thoughts on a weblog.]
I am assuming your question relates to whether you have the legal right to create and sell such a screenplay. The answer depends upon what you mean by “based loosely on”. Although much is written about the laws protecting intellectual property, in practice, the extent to which the influence of a prior work is protected from subsequent use is a grey area. While the law seeks to protect the owners of intellectual property from unauthorized use, it also seeks to protect the free-flow of ideas. No idea is actually “original”. Rather, all ideas are inspired by other ideas. The question is, when does “inspiration” become “theft.” Here are the basic rules applicable to your situation.
The literary material upon which the television movie is based (the screenplay or teleplay) is protected by copyright, as is the television movie itself. However, U.S. copyright protection protects only “the expression of ideas” and not the ideas themselves. In a practical sense, that means a story about a heist during a hurricane does not violate the copyright of another story about a heist during a hurricane unless it borrows specific expressions of that idea, such as characters, plot elements, dialogue, or other concrete manifestations of the idea. Here is an extreme example of a work that clearly violates a prior work’s copyright.
In your case, whether you can legally create and sell such a screenplay will depend upon what aspect of the original teleplay or television movie you use. If it is as general as a general idea for the story, you are likely safe. If you intend to borrow plot elements, characters, or dialogue, then you are more likely to have a problem. If, as you say, your screenplay will bear little resemblance to the teleplay, then it will be an original work and the fact that you were inspired by this previous work will be of no legal significance. I suggest that, from the outline stage up, you look to make sure you have not borrowed plot, dialogue, characters or other elements from this prior work that inspired you.