BY:STEVEN C. BEER AND NEIL J. ROSINI
This Q&A was originally published in the Fall 2019 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
The answer to this question depends on what’s being borrowed: the idea, the facts or the expression of the story.
If your documentary, podcast serial or TV series (which I’ll refer to collectively as an “Inspired Work”) simply takes the idea of the original story—which is to say, the concept of covering the particular subject matter—there is no need to ask permission. Copyright does not protect ideas or concepts, and once they are made public the law treats them as public domain material, free as the air. (This assumes, of course, that you’re accurately identifying your work as coming from you and not from the source of the original work.) There is no need to credit the author of the original story, either.
Similarly, if your Inspired Work takes facts from someone else’s piece but not its “expression,” no permission is required from the author or publisher. Like ideas and concepts, facts are not protected by copyright and once made public, the original author has no ability to monopolize them. Only the expression of facts is subject to protection.
These principles are consistent with the fundamental purpose of copyright, which is to benefit society. It would disfavor society if facts could be owned because that would prevent others from building upon and developing those facts more broadly or in new ways. The hard work of an author in researching and assembling facts does not in and of itself merit copyright protection. On the other hand, copyright also aims for society’s benefit to give authors a financial incentive to create, which would be subverted if third parties could take the wording of copyrighted nonfiction works and convert them wholesale to their own use without asking permission or making payment. That is why copyright protects “expression” of facts.
Accordingly, you generally can’t take the words of an original story verbatim in more than limited, attributed quotes in a context of comment or criticism, unless there’s only one way to express a fact. (For example, the sentence “The front of the building is white” is not subject to copyright protection.) Even close paraphrasing can bring trouble. If the structure of the original story is distinctive—say, with flashbacks and flashforwards that depart significantly from chronological order—you can’t take that. And for some types of pre-existing works, a distinctive set of authorial choices in aggregating facts could be subject to copyright protection.
Notwithstanding your privilege to use facts without asking, it still makes sense to interview additional witnesses and experts, research a subject beyond a single source, and draw facts from multiple references (if available), all as an extra layer of protection against claims by a particular author that you took much.
And not being required to obtain permission from the author of the original piece doesn’t mean there aren’t advantages to doing so. For one thing, if the original work has a famous title, you likely will need permission to use it. It’s well known that copyright doesn’t protect a title, but there are other legal theories that do protect a title if the public associates it closely with a particular author or source. (For example, if the first dozen or more pages of Google results associate the title Law & Order solely with the Dick Wolf TV franchise, you would be well advised not to use the same title for your documentary or podcast series about criminal justice. Yes, “law and order” is a common English phrase, but that doesn’t help you. Further, Law & Order is a federally registered trademark for the TV series.)
Getting the author of the original work on board in some capacity with your Inspired Work can also bring other benefits, such as obtaining access to the author’s files, gaining extensive interviews with the author, saving time and trouble by consulting with the author, avoiding any grumbling or claim of plagiarism by the author, however unfounded legally, and making it easier to attract financing. (Investors, studios and other platforms love to hear that you optioned another property, especially if it has a following.) You also can use the opportunity to preclude the author contractually from lending talent, memory and research to someone else’s competing story.