Producing for Film and Television E-Book

Sue Austen

• Herausgeber: Crowood
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Veröffentlichungsjahr: 2019

Beschreibung

Producing for Film and Television offers a comprehensive overview of the different stages of film production, from development of an idea to delivery, distribution and festival entry. Written from the producer's point of view, the book guides the reader through each stage of the process, offering helpful tips, industry guidance and example paperwork. Supported with over fifty illustrations and photographs, this new book includes advice on copyright and working with writers; pitching your idea; raising production finance; budgeting and scheduling; risk assessment and health and safety management; the roles within production teams; post-production work and marketing and distribution. With helpful information on industry terms and timeframes, this essential guide is aimed at film students and aspiring producers who want a greater understanding of the role of the independent producer or is planning their own production, whether feature length, short film or drama series. A comprehensive guide to the different stages of film production, from development of an idea to delivery, distribution and festival entry, it is fully illustrated with 23 colour photos and 34 line artworks.

Leseprobe

PRODUCING FORFILM AND TELEVISION

SUE AUSTEN

The Crowood Press

ACKNOWLEDGEMENTS

I would like to thank everyone whose advice and expertise has helped me to write this book. Particular thanks are due to Steve Coombes, Tracy Bass, Richard Kwietniowski, Rose Cussen, Nigel Bristow, Gemma Dempsey, Andrew Woodyatt, Matthew Button and the students of the London Film School and MA Filmmaking at Goldsmiths University of London.

PHOTOGRAPH CREDITS

My grateful thanks to Matthew Button, Frederic Kau, Robert Smith and Dheeraj Malhan for permission to use their work and photographs in this book.

First published in 2019 by

The Crowood Press Ltd

Ramsbury, Marlborough

Wiltshire SN8 2HR

www.crowood.com

This e-book first published in 2019

© Sue Austen 2019

All rights reserved. This e-book is copyright material and must not be copied, reproduced, transferred, distributed, leased, licensed or publicly performed or used in any way except as specifically permitted in writing by the publishers, as allowed under the terms and conditions under which it was purchased or as strictly permitted by applicable copyright law. Any unauthorised distribution or use of this text may be a direct infringement of the author’s and publisher’s rights, and those responsible may be liable in law accordingly.

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.

ISBN 978 1 78500 532 9

CONTENTS

INTRODUCTION

1WHAT IS A PRODUCER?

2DEVELOPMENT

3SCHEDULING AND BUDGETING

4PRODUCTION TEAMS BY DEPARTMENT

5RAISING PRODUCTION FINANCE

6PRE-PRODUCTION

7PRODUCTION

8POST-PRODUCTION

9MARKETING, FESTIVALS AND DISTRIBUTION

USEFUL WEBSITES

GLOSSARY

FURTHER READING

INDEX

INTRODUCTION

HOW I BECAME A PRODUCER

I have been lucky enough to have worked in the film and television industry for thirty-five years. I am continuing this work now at film schools, sharing my knowledge and experience with another generation of filmmakers.

The industry has changed a lot over these years. There have been huge technological advances, and the way we physically make and view films continues to evolve. When you read this book more changes will have happened, though some fundamentals will remain. Films are still created, financed and produced in broadly the same way as they always have been. We still need writers to provide us with inspiring stories, and directors to interpret them for the screen. We will always need directors of photography, production designers, editors, sound designers, composers, actors and skilled technicians to deliver this vision. And, more than anything, we still need creative producers to bring all these different and diverse talents together to give their best work.

I left university in 1980 with a degree in English and European Literature, and no very clear idea what I wanted to do with the rest of my life. After a brief spell in publishing, I secured a temporary secretarial job at a now legendary company, Goldcrest Films and Television Limited. I spent four years there in different departments, working my way to the position of script editor in the television production division and learning a lot along the way. The story of Goldcrest’s rise and fall is meticulously told by the company’s founder Jake Eberts in his co-authored book My Indecision is Final. Anyone interested in the business of film should read this book.

For me personally, Goldcrest was a wonderful place to understand film and television at a time when the industry was changing significantly in the UK and in Europe. Whilst I was there, the UK’s fourth television channel went on air, sourcing its programmes for the first time from independent production companies such as Goldcrest, rather than making them solely ‘in house’ as the BBC and ITV had done until then. There was the first of many revivals of the British film industry, and Goldcrest won multiple Academy Awards for Gandhi and The Killing Fields. It was an exciting time to be starting out in what became my chosen profession.

After Goldcrest closed its television division I moved to become Head of Development at Granada Films. From working in the television part of a film company, I was now in the film part of a major television company. At Granada we developed and produced only a handful of films before being shut down in a company reshuffle. But it was great experience, and for me the highlights included meeting a real Hollywood legend, Lauren Bacall, and making the enormous leap from development into becoming a producer.

One of the projects I had developed for Granada Films was a medical thriller, Paper Mask, based on a novel by former doctor, John Collee. I optioned the novel before publication and developed the screenplay with John, who had no previous screenwriting experience at the time. Christopher Morahan came on board as director and producer, and with his support, I left Granada to be the co-producer of the film. I was thirty years old and doing something I had never dreamed possible. A year later Paper Mask was selected as the closing film of Director’s Fortnight at the 1990 Cannes Film Festival.

Since then I have continued to earn a living in the precarious world of film and television. I never had another permanent job after Granada and remained a self-employed freelancer. I have produced many kinds of films and television dramas over the years in many different places. These have included single films, drama serials, continuing drama series (soaps) and children’s dramas, as well as features. On some productions I have worked as a ‘producer for hire’, and on some I have devoted years of my life to bring them to the screen. Some of my favourite projects are still waiting to be funded. Like every producer I haven’t given up hope that they will be made one day.

HOW TO USE THIS BOOK

In this book I have tried to explain some of the fundamentals of producing for film and television. All these basics can be equally applied to the production of documentaries and short films. The book will mainly refer to ‘film’, but most of the information applies equally to the production of dramas for television or streaming services. Where there are specific variations they will be discussed. But overall the process of filmmaking is more or less the same, whether you are making The Queen for theatrical release or The Crown for Netflix.

The book uses gender-neutral titles throughout. So for example, the term ‘actor’ will be used whether the individual is male or female. One of the biggest changes since I first entered the industry is the opening of all roles to a more diverse workforce, and I celebrate this development.

I apologize for any errors or mistakes in what follows. I hope you will both enjoy this book and find it a helpful guide as you begin your own journey to becoming a creative producer.

Sue Austen

1WHAT IS A PRODUCER?

A producer is a man with a dream. I say ‘I don’t write, I don’t direct, I don’t act, I don’t compose music, I don’t design costumes’. What do I do? I make things happen.

David Wolper, Producer(Willy Wonka and The Chocolate Factory, LA Confidential, Roots)

Many people have no idea what the producer of a film actually does.

Most people interested in film and television, whether they are a consumer or a practitioner, know broadly speaking what a director does. He or she directs the cast towards their Academy or Emmy award-winning performance, designs the set-ups and shots, supervises the edit and much more. Many people also have an understanding of the job of the production designer, cinematog-rapher, editor, sound recordist, screenwriter and other key roles in filmmaking. But many of these same people have only a very sketchy idea of what the producer of a film actually does.

The traditional image of the Hollywood producer is typically of a large rich man (and yes, it was then always a man!) smoking a huge cigar. Nowadays this is a long way from the truth. This book will mainly focus on the modern independent producer, the person I describe as a ‘creative producer’. This individual does not have major studio backing, and is probably earning their living on a project-by-project basis. They may very well be working across film and television, drama and documentary. They will be someone who develops film and series ideas, works closely with the writer or writers, finds the right director and talent with whom to collaborate, raises the finance to make the project happen, hires the team to work with, produces the film or series, supervises the post-production, delivers the finished work, and is still involved when it comes to distribution, festival screenings, marketing and transmission.

I think of production as a drama in five acts. As will become apparent through the next chapters, the producer will have a crucial and evolving job to do throughout these different stages, which are:

Act One: DevelopmentAct Two: Pre-productionAct Three: ProductionAct Four: Post-productionAct Five: Distribution

DEFINING THE PRODUCER’S ROLE

One of the difficulties of precisely defining the producer’s role is that it is ever changing. There are as many different types of producer and as many titles as there are formats and genres. At the start or end of most feature films and more and more drama series and documentaries, there will be a number of people – sometimes as many as ten – who have some kind of producer credit. In addition to the term ‘producer’, we often see credits for the following:

Executive producerLine producerDevelopment producerAssociate producerCo-producer

The rest of this book will focus on the creative producer, but who are all these other people, and what do they actually do?

EXECUTIVE PRODUCERS

The credit of ‘Executive Producer’ is in reality a courtesy title. This doesn’t mean that this person is not very important: they most definitely are, and without them the film or series would probably never get made. But they don’t necessarily have a tangible role on the production. The executive producer may have invested money into the film or series. They may work on the permanent staff of one of the major funders of the film – for example a film fund or broadcaster. They may represent the production company. They might be the writer. They might be a piece of key talent, such as an actor, whose commitment to the project has been instrumental in getting it funded.

They may work for the distribution company, the studio, or even the bank who is cash flowing the shoot. They have definitely earned their credit. But if you are working as a member of the crew on the film you may never see them, except at the film’s premiere or on Oscar night.

LINE PRODUCERS

By contrast the ‘Line Producer’ has a vital and very tangible role in making dramas and documentaries happen. All productions need a line producer and their team. One way of understanding the line producer’s role is to think of the top sheet of the standard film budget. It is divided into two main sections: ‘above the line’ and ‘below the line’. ‘Above the line’ sit the fees and payments to the writer, director, producer, executive producers and main cast. ‘Below the line’ is everything else.

The line producer is essentially responsible for the ‘everything else’ part of the budget. He or she runs the production office, manages the budget, negotiates deals with facilities houses, personnel, suppliers, studios and key locations. The line producer also shares responsibility for certain health and safety requirements, including risk assessments and insurance. They must also ensure that all departments are accurately reporting their spending on a weekly basis. Ultimately it is their job to make sure the shoot is completed on time and within budget.

This is a complex and critical job. On some very low-budget films, shorts and dramas, the producer may do some of the line producer’s work, and there might be a production manager instead. But this is more or less the same job, just less well paid. On very large productions with multiple units there might be both a line producer and a production manager.

DEVELOPMENT PRODUCERS

It is becoming increasingly common to see the credit of ‘Development Producer’ on films and series. Usually this means the person who has developed the project up to the point when it has been ‘green lit’ for production. In some cases this may be someone who works on staff at a production company or studio or broadcaster, and whose job it is to find, develop and sell ideas.

Development producers have important key relationships with agents, publishers and writers. They know when a ‘hot’ book is coming out and how to get advance copies. They know which writers sell, and they nurture these relationships to make sure they get a first look at their new project. They will work on the scripts, may attach directors and other key talent, and may be involved in pitching and fun-draising – but they will then step aside when the film or series goes into production. Normally they will be working on multiple projects at once.

ASSOCIATE PRODUCERS

An associate producer is often a more junior job, and the title may be offered to a promising young producer with limited experience. In documentary and factual programming, the ‘Associate Producer’ credit may be given to a person stepping up from being a researcher but not quite ready to be made a producer. The role may involve development, research, packaging or supervising other departments. In fiction and drama the ‘Associate Producer’ credit might be given to someone from a small production company who initially developed the project but is not considered experienced enough to be the sole producer or to be offered a ‘Co-Producer’ credit.

CO-PRODUCERS

The term ‘Co-Producer’ is another catch-all title. Almost all film and television drama now involves some kind of co-production. Aside from studio pictures, which may still be fully funded from a single source, the majority of films have multiple investors. Some of these may be described as co-producers, but as we have seen earlier, they are as likely to be given the title of producer or executive producer on the credit roll. A co-producer may also be a junior producer, or an individual who is not quite important enough to have a full ‘Producer’ credit, but has still made a valuable contribution to the production.

There is more about co-production in Chapter 5, ‘Raising Production Finance’.

THE WRITER AS PRODUCER IN US TELEVISION

The US television system for creating drama series is somewhat different from that which has traditionally operated in the UK and Europe. On this side of the Atlantic we tend to commission individual writers to create new dramas, and to credit them with the authorship of the work. If other writers are brought in to write further episodes in the series, this is normally in consultation with the original writer. Writers take ownership of their episode, and receive a credit as the writer or screenwriter on it. The original writer may receive an additional credit, such as ‘based on an idea by’, or ‘series created by’.

In the USA, however, a system is operated known as ‘the writers’ room’. A number of writers, usually between eight and twelve, gather together every day to conceive, create, plot and write the series. The lead writer and originator of the series is known as the ‘showrunner’, while the other members of the room will range in experience from those with a lot of network credits, to those who have just graduated from film school. Vince Gilligan (Breaking Bad, Better Call Saul), David Simon (The Wire, Treme, The Deuce), Matthew Weiner (Mad Men) and Alan Ball (Six Feet Under, True Blood) are examples of American showrunners.

On US drama series everyone who belongs to the writers’ room and has contributed to the final script of an episode of the series receives an onscreen credit as a producer. This may be as executive producer, producer, or co-producer. This situation has come about because of restrictions placed on the credit system by the all-powerful Writers Guild of America. All writing credits have to be approved by the Guild, so to get around this restriction, the writers customarily take a producer credit instead. This is despite the fact they may have had nothing at all to do with the production processes other than as a writer. The actual producer of the show is listed under the credit ‘produced by’.

WHO IS THE PRODUCER?

At the 2017 Academy Awards ceremony in Los Angeles there was an unprecedented and embarrassing mistake when Faye Dunaway announced the winner of Best Picture as La La Land when in fact Moonlight had won. The person who stepped forward to correct the error was not La La Land’s director Damien Chazelle, but its producer, Jordan Horowitz. This is because the Academy awards its highest honour, the prize for Best Picture, to the film’s producers. In Hollywood’s profit-driven world they understand very well that it is producers, and not directors, who make films.

In the early days of the cinema industry the studios controlled all aspects of production. They owned the studios, the back lots, the directors, the writers, the actors, the technicians, the laboratories and processing plants, and the cinemas. They paid their staff to write scripts, employed their staff to direct and film them, they cast the actors they had under contract, and finally they showed the films in their own cinemas. This was known as ‘vertical integration’, and the early movie moguls (the producers) made a lot of money this way.

But in 1938 the US Department of Justice brought an anti-trust case against the studios, accusing them of creating a monopoly. The main defendant was Paramount Pictures, which at the time was the largest of the Hollywood studios. But in reality, the case was brought against them all – namely MGM, Warner Bros, RKO, 20th Century Fox, Universal Studios, Columbia Pictures and United Artists. The studios resisted change, entered into a bitter battle, and appealed for almost ten years. Finally, in 1948, the case reached the US Supreme Court, which ruled against the studios, insisting that they give up some of their control over the industry. They were forced to sell their cinemas and give up the exhibition side of their businesses.

Although initially the move caused a slump in audience figures, it opened the way for independent distributors and allowed independent producers to get access to audiences for the first time. Now it was possible for talented individuals to create films and put them before a paying public without having to go to a studio and have the studio interfere in how the film was made. This was the birth of the independent producer.

At the same time as the Hollywood studios were losing some of their grip on the industry, a new medium was emerging: television. In the USA there were three main networks or broadcasters: NBC, CBS and ABC. There was also a much smaller public broadcasting system known as PBS. Television production soon moved from the east to the west coast, and live broadcasting made way for filmed dramas and documentaries as well as sporting events, news and entertainment shows.

In the UK there was just one channel to begin with: the British Broadcasting Corporation, known as the BBC. Then in 1956 an alternative channel known as ITV was launched. The critical difference between the two networks was that the BBC was publicly funded via a compulsory tax known as ‘the licence fee’, and ITV was a commercial station whose income derived from selling advertising slots. But both networks operated a production system not dissimilar to that of the US film studios. They made programmes ‘in house’, and then showed them on their own network. There were producers on staff, directors on staff, cameramen (no camerawomen then!), editors, designers and sound recordists, all on staff. Only the actors and writers were hired on a project-by-project basis. This is how all UK television programming was created until the early 1980s.

In 1982, the UK’s first new channel for more than a decade was launched as Channel Four. The important difference between C4 and its predecessors was that it did not intend to make any of its own programmes, but rather would source them from independent production companies. C4 operated like a publishing house, in that its commissioning editors chose the projects they liked, and then handed over control to the producers, who were expected to deliver back completed programmes on time and on budget. If there was a shortfall between the sum that C4 paid for the series and its cost of production, it was up to the producer to fill that gap. But the producer also benefited from the opportunity to exploit the programmes in other territories or markets by selling them to other networks and stations.

This new model created a whole new breed of independent producer and production companies, and a new industry was born. But C4 was a small broadcaster with limited funds. The independent sector lobbied for more access, and in 1990 the UK Government passed legislation that forced all the channels, including BBC and ITV, to take 25 per cent of their programming from independent producers.

As new markets and channels have continued to emerge from the 1980s onwards, there have been more and more places to sell and pre-sell ideas and projects. Cable channels such as HBO, Showtime and Canal+ have commissioned some of the most ambitious and bold stories. Netflix, Amazon and Hulu’s entry into the market has recently had a major impact. All have deep pockets and are investing heavily in new drama series, documentaries and feature films, and this has created even more opportunities for ambitious creative producers.

To be a successful producer you will need a range of skills and talents, and by far the most important of these is a love of film and television, and a determination to produce the best new work. Nobody can survive in this industry without the passion to keep going. The next quality you will need is the ability to spot an excellent idea or script. It will be you, the producer, who will turn a story idea into a finished film, and it will be you who must raise the money to enable a brilliant script to be shot.

Throughout this book we will see how the producer steers the project from start to finish. To do this, he or she must have infinite patience and enthusiasm, and be ready to play the long game. In one way or another, the producer is always selling the project, so they must also be persuasive, articulate and charming. The producer’s main job is to convince others to share their vision and to join them on the journey into production – whether these others are investors, contributors, distributors or audiences.

Producers must be trustworthy and reliable. If they are not, nobody will work with them a second time. They must be part entrepreneur and part nanny. They must nurture talent and promote it with confidence and authority. They should be clever about how to raise money, and keep themselves continually informed of new streams of funding. They will have to work under pressure, but must remain smiling throughout. They need to know when to intervene, and when to hold back. Above all, the producer must always be looking for creative solutions to any problem.

2DEVELOPMENT

A producer is a marathon runner who plods along, believing against all reasonable hope that at some point he or she is going to go through the tape and actually win.

David Puttnam, Producer (Chariots of Fire, The Killing Fields)

The time it takes to nurture a project from the seed of an idea to the start of production may be many years. In the film industry this period is known as ‘development’, and it is frequently described as hell. The development period is frustrating and unpredictable. Things can – and definitely will – go wrong for all kinds of reasons. During this time it is the producer’s job to keep the ship on course and to keep the goal – making the film – in everyone’s mind. Along the way there will be many icebergs, and it will be his or her job to navigate a course through these.

FINDING YOUR PROJECT

Every great drama or documentary starts with a good story. As a producer, stories will come to you from many different sources, and part of your job is to sift through them and make decisions about which ones to pursue and develop, and which ones to pass on or let go. All the best producers have passed on a project that went on to become a brilliant film. This is not necessarily because they failed to spot the potential, it may be that their slate was already too full, or they didn’t like or trust the talent associated with the project, or the agent was asking too much money, or something else.

Every great drama or documentary starts with a good story.

The first and most obvious place to start looking for a project is to meet and talk to writers. As a creative producer, your most important asset is a good relationship with talented writers, and the trust and respect of their agents. Writers’ agents are powerful people and can strongly influence their clients’ choices. Over time, producers develop relationships with writers and their agents. Sometimes these may be formalized into what is known as a ‘first look deal’, when the writer is obliged to offer all their new ideas and projects to the producer first, before shopping them around on the open market. But in most instances there is a more informal arrangement between friends and colleagues. A writer whose last film or series was successfully and happily delivered by a particular producer may very well choose to take his or her next project to the same company. Equally, a writer who is disappointed by the final product may choose never to work with that producer or production company again.

Many producers start their career path in the industry working as script readers, script editors and development producers. This gives them a head start in knowing writers with whom they want or like to work. If you have been to film school or studied with writers, you may know those you would like to work with again. Maybe you produced a short film and can talk to the writer about the feature film idea they have been burning to write for years. Or there may be a writer whose work you greatly admire whom you may approach via his or her agent and ask for a meeting.

In many of these cases you will be talking to them about an original idea, which belongs to the writer. At the time it first comes to your attention, the idea may already be written down as a script, or it may be in the form of a treatment. Or it may be something that exists only in the writer’s imagination, and which is pitched to you verbally. Whatever the form, if you decide to pursue the project you need to draw up a contract with the writer, clearly setting out the terms of your arrangement with them. The process for doing this is described later in this chapter.

But original ideas are not the only, or even the most likely, source material for films, drama series or documentaries. The majority of films produced in the UK and in North America are based on a previously published work or on a real story. This means they were based on something that already existed in another form. In most cases that form is written material – a novel, published work of non-fiction, biography, short story, comic book, graphic novel or similar. In some cases the form may be a play written for the theatre or for radio. It may also have been originally a television series or a film. For example the television series Fargo is derived from the 1996 film by the Coen Brothers, and the Netflix original series House Of Cards began life as an adaptation of an old BBC television series of the same name, which was itself based on a novel by Michael Dobbs.

So, let’s start by assuming that you (the producer) have read something in print, which you think could form the basis of a drama. The first thing you have to do is find out if the material is still in copyright or not, and if it is, who owns that copyright.

UNDERSTANDING COPYRIGHT

Copyright law originated in the UK from a concept known as ‘common law’. In 1911 the British Government passed the Copyright Act. The current act is the Copyright, Designs and Patents Act 1988. The Copyright (Computer Programs) Regulations 1992 extended the rules covering literary works to include computer programs.

The law gives the creators and authors of certain types of work the right to control the ways in which their original material may be used, and to object to unauthorized reproductions, misuse or distortions of their work. The works covered include literary, dramatic, musical and artistic works, sound recordings, broadcasts, films and magazines. The rights cover broadcast and public performance, copying, adaptation, renting and lending copies to members of the public.

Music copyright is an important area for producers to understand, and is covered in greater detail in Chapter 8, ‘Post-Production’. The use of other copyright works, such as photographs, artistic works and logos, is discussed in Chapter 6, ‘Pre-Production’. The Berne Convention of 1886 is an international agreement that established some of the ground rules of copyright, maintained today. Amongst these are the concept of non-registration and fixed copyright, and a requirement that members of the convention recognize the copyright of citizens of other countries.

What this means in practice is that when an author creates an original work it is ‘fixed’ and therefore automatically in copyright. There is no need for the work to be formally registered for the copyright to be theirs. However, to qualify, the work must be regarded as original and ‘exhibit a degree of labour, skill or judgement’, which is unique to the author (or authors). This is generally interpreted to mean the independent creation or treatment of the subject, rather than the idea itself. So, as an example, you may be inspired by the story of Romeo and Juliet. Shakespeare died in 1616, so his play is out of copyright and you can reinterpret his story. But if you choose to do so by setting it on New York’s West Side, making the Capulets and Montagues into rival street gangs, and turning it into a musical, you are infringing copyright. Updating Romeo and Juliet may be an original idea but your interpretation is not, because the copyright in West Side Story doesn’t belong to Shakespeare but instead belongs to Arthur Laurents, Leonard Bernstein, Stephen Sondheim and Jerome Robbins.

The same may apply to characters. When Walt Disney named the seven dwarfs, he created the copyright to their story, even though the fairytale of Snow White had existed for centuries before. If you write a book on a subject, the content is yours. This won’t prevent someone else writing another book on the same subject, but they cannot directly copy or use your words to do so.

It is worth noting here that there is no copyright in titles. You can, if you wish, develop and produce a film and call it 2020 – A Space Odyssey. Whether or not you should is another matter. Names, titles, slogans and short phrases are not generally considered unique or substantial enough to be covered by copyright law. In the USA you may be permitted to trademark a title but will need to prove that it is a genuine brand first. For example, J.K. Rowling has trademarked the title Harry Potter to protect not only her work, but also those who consume it. If you see a book, film, play or series with the words Harry Potter in the title, you (the consumer) have a right to expect it to have been created by her.

The US Patent and Trademark Office states that a trademark protects words, symbols, designs and logos, identifying the source of the goods and distinguishing them from others. Pepsi is protected and so is the Nike tick. But unlike copyright, which is automatic, if you want to register a trademark you must apply for the right to do so. And your application may not be successful.

LENGTH OF COPYRIGHT

For all literary, dramatic, musical or artistic works the length of copyright is seventy years after the death of the author (or the longest living author if the copyright is shared). To be more precise it is actually seventy years from the end of the calendar year in which the last surviving author of the work died. If the work was published posthumously then it will be seventy years after publication. For films, copyright expires seventy years after the end of the calendar year that saw the death of the last principal director, author or composer who is credited as a creator of the work.

It is important to remember this, as some writers live a long time after their work is first published. J. D. Salinger published Catcher in the Rye in 1951 when he was a relatively young man of thirty-two. But he did not die until January 2010, when he was ninety-one. So Catcher in the Rye will remain in copyright until the end of 2080, 130 years after it was first published.

The length of copyright may be different for other forms of work. For example, some photographs, magazines and musical scores may only be in copyright for fifty years. So it is important to check precisely before assuming that copyright has expired. Infringement of copyright is serious, and authors have every right to seek redress from production companies and producers if they think this has occurred.

FAIR USE

The concept known as ‘fair use’ refers to limited and clearly defined circumstances when copyright material may be used without first obtaining the permission of the original authors. It is also sometimes known as ‘fair dealing’, and, if the rules are followed, it will not necessarily be considered an infringement of the copyright. Unfortunately there is no statutory definition of what exactly constitutes fair use, nor the percentage of the original work which that be quoted or used ‘fairly’. Cases will be judged on the extent to which the copyright has been infringed (how much was used) or the context in which it was used. One major criterion will be whether the use has negatively impacted on the sales of the original work, or if the author is likely to have lost potential revenue as a result. But fair use may apply in the following circumstances:

• If the work is being used solely for private study, educational or research purposes. For example, sections from a film might be shown to a class of students to educate them on style or technique. Or a student may be permitted to photocopy a chapter from a published work for their own research purposes.

• For criticism, review and news reporting. For example, if a clip is shown when reviewing a film during a broadcast programme, or during a news story about the making of that film or one of the actors appearing in it. However, this use may not be considered ‘fair’ when applied to the inclusion of a still photograph in a report.

• Format shifting, or back-up of a work you own for personal use.

• Time shifting: in other words, recording of broadcasts for the purposes of listening to, or viewing, at a more convenient time.

• Caricature, parody or pastiche: meaning that it might be OK to use someone else’s material, provided you use it in a way that is clearly for satirical or artistic purposes. For example, if the popular long-running NBC television series Saturday Night Live broadcasts a sketch that is a parody of an episode of Friends, this is fine, provided it is short and clearly intended as comedy or parody.

• Homage: where a film or television drama explicitly and obviously references an earlier work. Like parody, homage depends on ‘intent’. If you openly acknowledge the influence of Alfred Hitchcock or Stanley Kubrick on a particular sequence, you are not stealing their work but paying tribute to it, and this counts as fair use. Martin Scorsese does this in Shutter Island, and Mathew Weiner does the same in Mad Men when he slyly reworks Douglas Sirk and other iconic films from the 1950s and 1960s.

WHAT NEXT?

If you know that the author of the published work has been dead for seventy years or more, you still have a few more things to check before planning your production. There are circumstances where copyright belongs to the company who commissioned the work, and not to the author him- or herself. If a writer was ‘on staff’ or employed by a company when he or she wrote it, then they may not be the owner of their own work. They may have signed a contract agreeing that all work created during this period of employment belongs to the company who hired them. This could apply to work written by staff journalists at a newspaper or magazine, the creators of comic strips and cartoon characters, or to writers working as employees of a production company.

In 1937 F. Scott Fitzgerald was broke, disillusioned and in debt. He signed a contract with Metro-Goldwyn-Mayer Films to become a staff writer, and turned up every day at their studio for two and a half years to write for them. Very little of this work ended up on screen, but it is still the property of the studio, whose assets and film library are now owned by Warner Brothers. Although Fitzgerald died in December 1940 and most of his novels and short stories came out of copyright in 2011, the work created for MGM does not form part of his literary estate and remains their property ‘in perpetuity’ – in other words, forever.

It may also be useful for you to undertake research into any previous film versions based on the original novel or play, and assess whether or not there is anything in them that may be considered in some way ‘definitive’ and that you should avoid copying. So far there have been seventeen screen versions of Jane Austen’s Pride and Prejudice, including the 1940 version starring Greer Garson and Laurence Olivier, a Bollywood musical version, Bride and Prejudice, and one with Zombies. However, the BBC television adaptation released in 1995 was the first to reveal Mr Darcy, in the form of Colin Firth, emerging semi-clad from a swim in his own lake wearing a dripping wet white shirt. This scene is not in the book and comes from the imagination of the screenwriter Andrew Davies. If you chose to include it in your own adaptation you could be accused of stealing another filmmaker’s ideas.

If the work that has inspired you is still in copyright, then the next step for you to take is to find out who now owns it. In many cases this will be the living author, and he or she will almost certainly have a representative appointed to deal with his or her work. This is normally a literary agent. To find out who represents your author is relatively easy, and a quick internet search should reveal it. If not, then your best next step would be to contact the publishers’ rights department and ask them. If the author is dead, you may find yourself dealing with a literary estate manager. This could be a lawyer or agent, but in some cases may be a living relative of the author, who has inherited the estate on the author’s death.

When an author dies the rights to his or her work will pass on as part of their estate. In most cases this will be to their husband or wife, children and grandchildren, but the author may have written a will bequeathing the rights to someone else or to an institution. For example, when J. M. Barrie died he left the rights to his play Peter Pan to Great Ormond Street Hospital. GOSH benefited significantly from the income this bequest generated until the copyright expired in 2007. George Bernard Shaw left the rights to his estate to be shared equally between the British Museum, the National Gallery of Ireland and the Royal Academy of Dramatic Arts (RADA). As an aside, it is worth mentioning that the greatest benefit these three institutions have earned from the Shaw estate derive from the film musical My Fair Lady rather than any theatrical productions of his plays.

There may also be circumstances in which a living author no longer owns or controls the rights to their own work, usually because they have already signed them away. In February 2018, author Margaret Atwood revealed in an interview that she had not benefited from any profits from the hugely successful Hulu adaptation of her novel The Handmaid’s Tale or any sequels to it, because she sold the rights for a film adaptation over thirty years ago to MGM, who produced a film based on the book in 1990. The ten-part series for Hulu was produced by MGM Television who still control the rights, and they were not obliged to pay the original author any more money or royalties. Atwood has made money from new sales of her original book and was apparently paid as a consultant to the series.