Rights of choreographer/director adapting book to performance

[6finches]

What is the name of your state? Pennsylvania

If a choreographer/artistic director of a dance company has adapted a book to be a performance and the author has agreed to let it be done and has said they will not ask for any cut of profits from the performance, does the illustrator have the right to demand money, even if sets do not copy of reference the illustrations in the book?

[quincy]

It depends.

It could depend on how closely the characters in your performance resemble the way the illustrator depicted the characters, and it also depends on how the book was copyrighted.

When two or more people combine their talents to create a work, they can copyright the work as a "joint" work - where all parts combine to make an inseparable whole. All contributors, then, are considered joint copyright owners.

If this is the case with the author and illustrator, each would own the right to commercially exploit the copyright - but they would each get an equal share of any proceeds from the commercial exploits of the other. And they each have an equal right to enforce the copyright.

I am not sure if you have obtained a license from the author, but I definitely would, to avoid any misunderstandings - and, if you find the author and the illustrator are joint owners of the copyright, you would need to license the work from the illustrator, as well. In fact, I would get one from the illustrator, for sure, if there is any indication the illustrator objects to your use of the copyrighted work now. A license will transfer some of the rights of the copyrighted work from the copyright holder to you, so that you can use the material for your performance without fear of an infringement suit.

[6finches]

Thank you. But would this still need to be done if the scenery does not use images that look like those by the illustrator in that book? What if the scenery was completely original and only referred to the original folktale from which the book was adapted?

[quincy]

You are basing your performance on an author's book which is based on a folktale? Is this author's "take" on the folktale original - as, say, the tale of Little Red Riding Hood from the wolf's perspective? If it is just a re-telling of a folktale, folktales are in the public domain and can be used freely, as long as you do not copy the author's expression of this particular folktale.

As for the illustrator, again, your use of the copyrighted work really depends on what rights the illustrator has to the work as a whole - how the illustrated book was registered and if there were any separate agreements made between the author and the illustrator. If the work, for instance, was registered as a collective work, then the author would own the rights to the text and the illustrator would own the rights to the illustrations. If it is a joint work, however, you may not be able to separate the illustrations from the text without violating the illustrator's rights.

This may be a situation where you will need to sit down with an entertainment lawyer and go over all of the material. Determine who owns the copyright and go from there. It is highly possible that the illustrator can prevent your performance, if it affects the market for the copyrighted work as a whole, unless you obtain the illustrator's permission and compensate him for the use.

[6finches]

Thanks for your help.

[ecmst12]

If the artist is an owner of the copyright, she can sue you REGARDLESS of whether the sets look like her artwork. It would be up to the judge to decide the merits of the suit.

[quincy]

Of course anyone can sue for any reason, ecmst, but the illustrator would probably not have a legitimate case if she only held a copyright in the illustrations, as would be the case if the book was registered as a collective work and not as a joint work.

With that copyright, she would be able to share with the author in the profits of the illustrated book, and profit off her own illustrations separate from the book, but she would hold no rights to the author's text as separated from the book. . . . unless there was some agreement between the author and the illustrator to the contrary.