Dear Rich:
I am a music and drama director for a tiny K-8 private school in California. Every other year, we put on an all-school musical for parents, friends and families. I often have trouble finding musicals that work for our age group -- most musicals are written for high school-aged kids or older -- so I would like to write my own. Currently, I'm interested in adapting the movie/novel "Whale Rider" for our kids. If I don't publish it, and don't charge for tickets to the show, how much material, if any, can I use from the movie and/or book for our play?
Thanks! I'm so glad you asked. You'll be violating copyright law if you don't obtain permission. It doesn't matter that you are not charging and won't publish the final work. Those may be mitigating factors if you're sued, and they may influence a fair use defense, but they won't prevent your actions from infringing the
performance and derivative rights of the copyright owner. Since you'll have to take the major characters, plot, and dialogue elements if you wish to conjure up the original, whatever you take will likely amount to an infringement. Asking for permission seems challenging and you would need to determine who to ask -- the novelist, the publisher (who may have acquired those rights), the movie company, or a third party. If the
movie differed materially from the book -- and you used those movie-specific elements -- then you'd likely need more than one permission. So, from a legal point of view, it looks like a lot of hassle (and little chance of success). That said, you could attempt to contact author
Witi Ihimaera, explain your situation, and seek his blessings/permission (assuming he still possesses those rights).
All that legal stuff aside, the
Dear Rich staff would really like to see you make this musical. It seems like a sweet idea and could be very rewarding. So what's a music director in a tiny K-8 school supposed to do? It reminds me of the time my mother called a big music publisher lawyer and asked for permission to perform a song at a nonprofit benefit. The lawyer's response: "As far as I'm concerned, I never got this call." In other words, when a copyrighted tree falls in the forest, sometimes nobody hears it. That appears to be the approach taken by
some musical directors.
It would be unwise and unprofessional to advise you to go ahead without permission. However, should you choose to assume the risk -- and it does involve some risk -- you can lower the odds of seeing lawyers on opening night by doing the following:
- consider using only material from the book (to reduce the chances of the movie company coming after you)
- indicate on promotional material that the program has not been authorized by the author (it won't prevent a lawsuit but at least you're not misleading consumers)
- follow the steps you mentioned as those are all mitigating factors -- that is, don't charge admission, don't publish the musical, and don't distribute video or audio copies, and
- make sure that the administration at your school is aware of your course of action (CYA).
Unless the author or someone from the movie company reads the Dear Rich blog (
Hello!) it's unlikely that your efforts will be the subject of a
cease and desist letter. If you do receive one, don't blow it off; respond immediately and halt production until a resolution occurs. Finally, have a
backup musical ready, just in case.
Dear Rich: Are all works created by the federal government
or agents of the federal government automatically in the public domain? Specifically, when the Inauguration Committee commissioned John Williams to
arrange "Air and Simple Gifts" is this new work automatically in the
public domain and is the recorded inaugural performance also in the public
domain? The short answer to your
question is that no, not all federal government works are in the public domain.
Those created by federal employees and federal officers in the course of their
duties are in the public domain; but contractors who create federal government works sometimes reserve copyright in their work. According to public domain expert
Stephen Fishman, it all depends on what the government decides at the time the
independent contractor is hired. If the government wants the work to be in the
public domain, it can require it; otherwise, the contractor would own the work that's created. That seems to be the case with John Williams' Air and Simple
Gifts which is owned by Williams' publisher Warner-Tamerlane/Marjer Music Corp and can be licensed for
reproduction from the Harry Fox Agency. You may also be interested to know that
the underlying theme of the piece is borrowed from a shaker hymm, "Simple Gifts"
(The Dear Rich Staff assumes that Williams contributed the "Air") "Simple Gifts" was also used by Aaron Copland in
his Appalachian Spring. Okay everybody, have a safe Fourth of July. You don't want to have to call on the PI lawyers! (And has it really been a year since we posted this?)
