Q&A: Can I Create a Film That’s “Inspired By” a Short Story Without Acquiring the Rights?

by Greenberg Glusker Fields Claman & Machtinger LLP
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[author:Matt Galsor]

Q:  I was wondering if you could help me with a problem I am having with the rights to a short story.  I have been in touch with the relevant owners of the copyright and they have been told by the author’s estate they are not allowed to do anything with the rights to the story.  However, what I am wanting to do with the story is not a direct adaptation — but more of an “inspired by.”  What I am wanting to do is a 60 minute TV one off.  The only thing I am desperate to hang on to is the short story’s “twist” and elements of the central dilemma. Where would I stand with moving ahead with different character names, different structure, but retaining the twist and profession of the central character from the short only – crediting only “inspired by”?

A:  Copyright law doesn’t protect ideas – it protects the expression of ideas.  This is a simple concept in theory, but applying it to a particular situation could be challenging.  For several excellent, definitive, and thought provoking discussions of this topic, please see our blog

The key question in your situation is:  are you copying (or are you “inspired by”) the basic idea in the short story or the expression of it?  You want to use the short story’s twist and “elements of the central dilemma.”  In using the twist and these elements, are you using just the idea or also its expression?  Depending on the short story you’re inspired by, the answer to this question could be very clear or very murky or a bit of both or neither.

Let’s say the short story is about aliens landing on Earth and starting a cable shopping network to compete with QVC.  There is an infinite number of ways to express this idea — to tell a story based on this idea.  But as long as you create your own story based on this generic idea, copyright law can’t (unfortunately, in this case) stop you from making as many TV movies about this as you like.

What you want to use, however, is the short story’s twist and “elements of the central dilemma.”  A “twist” might be intimately intertwined with the unique specifics of a particular story, and you’re running a risk of copying more than just the basic idea.  It’s impossible to know in the abstract whether what you want to use goes beyond using just an idea in the story or the expression of the idea.  The more unique elements you use, the more elaborate the twist, the more likely you’ll be using the expressions of ideas from the short story and not just ideas.

To give you some guidance, here is an example of a twist.  Let’s say you’re inspired by one of my short stories (yes, I’ve published a well received collection of short stories about the secrete and exciting life of a handsome entertainment lawyer — it’s under a pen name, so don’t try to find it).  My short story is a dark tale about a hugely unsuccessful artist.  He can’t sell any of his paintings, his house is about to be foreclosed on, and his wife (right after she viewed his most recent painting of her, which portrayed her, not entirely fairly, as someone whose health would benefit from weight loss) has just left him.  He wants to commit suicide and in desperation calls his lawyer — the only friend he has, even though the lawyer fired the artist long ago because the artist was slightly late on his legal bill.  The lawyer takes the call by accident (he tries to pick Line A, but picks Line B by mistake).  The lawyer tells the artist not to kill himself but instead to fake his death — once art connoisseurs think the artist is dead his art might be worth something.  (As an aside, the moment an average artist dies, his art goes up in price an average of 800% — simple supply and demand.)  Anyway, the artist follows the lawyer’s advice, his art becomes hugely popular (and expensive), and the lawyer and artist make millions (mostly the lawyer).

That’s a story with a twist.  The twist is embedded in the details of the story — the lawyer, the artist, etc.  But if you strip the twist of its context entirely and boil it down to its clever essence — an artist fakes his death to inflate the value of his bad art — you end up with just an idea.  For you to use it, however, you’d have to tell a story based on this idea in a very different way, so that you don’t copy any of the expressions of this idea in my story.  You could, for example, retell it as an over the top comedy:  a desperate artist unsuccessfully attempts suicide and because of a series of wacky and highly unlikely coincidences it’s widely reported that his suicide attempt succeeded.  Before the artist can correct the record, the value of his art goes through the roof and he decides to play hilariously along.

So the bottom line for you is:  if you distill the twist you want to use to its bare essence, to its basic generic idea, and if you tell a different story based on that idea, then you won’t be using anything from the short story except for an idea.  But if you use actual elements from the short story, then you may cross the line between the morally frowned upon but legal use of an idea, and its first-cousin-no-longer-invited-to-family-events, the copyright infringing use of an expression of an idea.

This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.

Tags: Copyright, Film and Television, Idea Theft, Q&A, Writers

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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