Can i register and copyright a screenplay based on others' intellectual property?

I've written a screenplay based on existing, published comic-book characters. I sent the companies concerned e-mails weeks ago inquiring as to a procedure to follow, but they have not answered. How should I proceed?

Asked almost 8 years ago in Florida
Categories: Patents, Trademarks, Copyright

Answer Now

Lori Hardaway

Answer by Lori Hardaway

VerifiedMissouri lawyer

Copyright law is a very complicated area of intellectual property law.  Under copyright law, a copyright owner has the exclusive right to 1) reproduce the copyrighted work, 2) prepare derivative works based on the copyrighted work, 3) distribute copies of the copyrighted work, 4) perform the copyrighted work publicly, and 5) display the copyrighted work publicly.  In short, the owner has the exclusive right to copy, adapt and distribute the copyrighted work.  Others who copy, adapt or distribute the copyrighted work of another are subject to legal action.
 A derivative work is work derived upon a pre-existing work.  A common example in todays world is when a movie is created based on a book.  In this case, the movie is a derivative work of the book.  Because the copyright owner of the book (the author or publisher) has the exclusive right to create derivative works from that book, Hollywood producers must negotiate a license with the publisher or author before making that next blockbuster film.
 You say that your screenplay is based on existing, published comic-book characters.  These characters are copyright works, and I’m fairly certain that the companies you contacted are the copyright owners and that the copyright has not expired.  While it’s hard to say definitively without reviewing your screenplay and the comic-book characters, I think it is safe to say that you have created a derivative work from a copyrighted work.  This is not something you had permission to do from the copyright owners.  You may have violated the comic-book characters copyright by creating this derivative work.   
 The determination of what is a derivative work versus an original work is a very fact specific task- one that cannot be done with so little information.  Your safest course of action is to consult a copyright lawyer.  If you proceed to try to distribute or commercialize your screenplay, you could run into big legal troubles with the comic book characters copyright owner.  And your inquiry to them, has provided them a heads-up to your name, your work and your intentions.  
 Please also don’t make the mistake of thinking that because you didn’t intend to violate the copyright (“But I didn’t mean any harm!”) makes this any less of a violation.  The  state of mind makes no difference in an infringement action.  
My advice: 
1) Get a copyright lawyer to review your situation before you do anything more with this screenplay. 
2) Do not contact the comic book character copyright owners again. 
3) Write your next screenplay based on your own characters. 

Posted almost 8 years ago

Lori Hardaway, PharmD, PhD, Esq Director, Averture Licensed in California and District of Columbia

Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact Lori Hardaway, or search the Lawyer Directory.


<br />Thank you Ms. Hardaway.

Posted almost 8 years ago

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