Literary Rights a Balancing Act

Giving life to her ‘baby’ while upholding your moral obligation.

You’ve been looking for it your whole life—that perfect novel, ripe for exploitation. You know that you are the producer to bring this gem to the big screen. However, the author has spent the better part of her life writing this wonderful novel and is naturally reluctant to simply pass over her ‘baby’ to some slick movie producer.

Convincing an author to grant the film rights to their work is often a matter of balancing the author’s desire to maintain the integrity of the original story with the producer’s need for flexibility when producing a film.

Producers need the right to make changes to a work to adapt it for the screen. Successful adaptations are rare and, therefore, a producer’s right to make any changes may understandably worry an author. The last thing they want is an unfaithful interpretation of their work.

In Canada, the Copyright Act grants authors “moral rights” (or “Droit Moral”) to their work, providing them with the right to maintain the integrity of their work. Moral rights are retained even where the rights in the work are transferred to another party, such as a film producer. However, it is possible for authors to waive their moral rights to their work. This waiver is a necessity for producers if they are to make any changes to the author’s work.

In addition to the many practical and creative issues facing a producer when producing a film, he or she may also be required, by his or her financiers, insurers and completion bonders, to ensure that all authors of pre-existing literary works on which the film is based have clearly waived their moral rights.

How then can a producer give comfort to an author that their work will not be compromised in the film adaptation? Preferably, the author is simply willing to hand over the rights, with no strings attached. Producers may agree to meaningfully consult with the author in respect of any material changes, which in some cases may be of benefit to a producer wishing to reflect the author’s vision onto the screen.

However, in the heat of production, this can be a cumbersome and often difficult obligation to fulfill. In other cases, producers have allowed authors the option to have their name excluded from the final picture or to agree to state in the credits that the film was not a direct adaptation of their work. (John Irving was reportedly so disappointed with Disney’s inaccurate adaptation of A Prayer For Owen Meany that he insisted the credits state it was a movie “suggested by the novel” and that the title be changed. It was ultimately released as Simon Birch.)

Many authors are willing to tolerate substantial changes to their work if the price is right. Ideally, acquisitions of film rights should be a balanced process in which the acquisition price is not so high that the producer cannot possibly finance the film yet has an option fee that provides enough incentive that the producer will actively develop and produce the film.

Many writers enter into acquisition agreements with that age-old “pray for the best and fear the worst” attitude. In the end, the best matches always occur when an author finds a producer whose approach to the work is compatible with the author’s overall vision.