Adapting work for the stage: Navigating the law

What is the process of obtaining the rights to adapt something for the stage? How do I legally translate a text for performance? Who owns the Intellectual Property in the adapted work?


Adapting or translating work for the stage is common practice in the theatre industry. An intriguing novel, found by an inspired and talented theatre-maker, adapted and re-worked to make what was intended to be read in solitude, a stimulating performance text to be experienced by a new community of theatre goers. The practice has the potential to breathe new life into printed words: new interpretations as they are uttered from the mouth of a talented performer. One thing to be clear about is that there is a legal framework that you must operate within when taking on the role of the adapter of a text. As an adapter, you are working with the intellectual property of the rights holder of the original text, this comes with a fair amount of legal responsibility as the onus is on the adapter to ensure due diligence in relation to their adaptation.

An adaptation right is an enabling right. It is important for anyone wishing to adapt work for the stage to seek permission before commencing with the adaptation. The adaptation right gives the adapter the legal authority to change, translate or adapt the work as per the terms and condition outlined in the adapter agreement between the rights holder and the adapter.

The rights holder of a work has complete control over how and when that work is exploited, reproduced or changed as it is their intellectual property. There is little someone wishing to adapt or license a work can do if permission is refused by the rights holder as this is their prerogative. Permission may be refused for a number of reasons, such as the rights holder’s own plan for the title, another adaptation which may be in process, or quite simply a desire by the rights holder for the work to go unchanged in its original form. This is why it is important to seek permission prior to starting the project.

The first step is determining who the rights holder of the source material is. This may be the author, the publisher, the author’s heirs, or a third party to whom the rights have been assigned. South Africa’s current Copyright Act allows for copyright to subsist in a work for the life of the author plus fifty years following their death. If the work is published, the publishing house may have the power to authorise adaptations through their publishing agreement with the author. It is also important to note that just because an author has been deceased for more than fifty years, does not automatically mean that the rights in that text have entered the public domain. This is especially important if there are recent publications of the text or the planned stage adaptation is based on an existing adaptation where the original adapter is still under copyright protection. DALRO administers adaptation agreements on behalf of our rights holders on a regular basis. It would be wise to contact a licensing agent like DALRO to determine where the rights in a particular text are vested.

Once the rights holders have been determined, the adapter agreement would need to be negotiated and signed by both the adapter and the rights holder or their agent. Adapter agreements tend to be standard and would need to include certain parameters: 1. The title, author and details pertaining to the source work(s) to be adapted; 2. Clauses pertaining to rights holder approval of the adapted work once completed and prior to public performance, if desired by the rights holder; 3. Proposed title of the new adaptation; 4. The ownership and royalty division between the rights holder and the adapter in respect of use, reproduction of the new adapted work.

On the point of royalty divisions of the adaptation. Standard practice allows for the lion’s share of the division to go to the rights holder of the source work as this is the content and material upon which the adaptation or translation has been made. The rights holder may also choose to charge a fee for the enabling right to adapt their work, though this is less common for stage adaptations. If the work is adapted by more than one person or through devising with the cast on the “floor of the rehearsal room”, the adapter agreement should clearly specify what royalty splits would exist in relation to those who contributed to the adaptation. In a case where the source work is completely out of copyright protection, the adapter would then retain 100% of intellectual property rights in the new work. The adaptation would be seen as an independent work and copyright would subsist in the adaptation separate from the source work. I.e. under current law, copyright protection in the new work would last for the duration of the adapter’s life plus fifty years and would have no bearing on when the copyright has lapsed in the original source material.

Elroy Bell is Supervisor of the Theatricals and General Licensing Department at the Dramatic, Artistic and Literary Rights Organisation (DALRO). For more information about adaptations, translations or advice about licensing your work for performance, the Theatricals team at DALRO, will be happy to assist. Please contact This email address is being protected from spambots. You need JavaScript enabled to view it. or +2711 712 8330.

The Dramatic, Artistic and Literary Rights Organisation (DALRO) is responsible for licensing the rights to the world’s most loved musicals, plays, literary and artistic works. As the first port of call for anyone wanting to produce and license works for performance, DALRO Theatricals administers the rights of authors, visual artists, poets and playwrights. DALRO’s theatre licensing services include the supply of scripts, musicals and other theatrical resources to schools and theatres, both amateur and professional, in Southern Africa. The DALRO catalogue represents thousands of shows including iconic South African theatre works, hits from the Broadway and London stages, musical revues and shows written and adapted for young performers.

This article was originally published by PEN Afrikaans here.

Artists’ Resale Rights

Like fine wine, art appreciates with age. As the profile of an artist grows, so too does the value of that artist’s work. When Robert Scull sold a painting he bought for $2,500 from artist Robert Rauschenberg for $90,000, the artist publicly castigated and shoved Scull over his dissatisfaction at not receiving any compensation for the secondary sale. Jean-Michel Basquiat’s Warrior sold three times in seven years, its price climbing 450 percent to $9 million. Artsy’s Margaret Carrigan also notes collector François Pinault’s coup when an ‘Adrian Ghenie painting he bought in 2008 – just as the Romanian artist’s career was starting to heat up – sold for $9 million.’ In circumstances such as these, the only party that loses out on the deal is the artist.

In the current South African context, visual artists are one of the only members in the creative community who do not receive residual payments from the secondary sales of their works: composers’ royalties are distributed by SAMRO, while DALRO is responsible for distributing playwrights’ public performance royalties.

In the visual arts sphere, the primary market is one in which works are sold by galleries, resulting in the artist retaining a portion of the selling price, after the gallery has taken its cut. On the secondary market, which is driven by auction houses and art collectors, works tend to be sold at an exponentially higher rate than the initial purchase price – depending on the strength of the artist’s profile – without any compensation for that work’s creator.

Most of us are familiar with high-profile disputes between art collectors, auction houses and artists, but these are only part of the story. There are nuanced and systemic operations that affect artists at all levels of wealth and commercial presence. At the centre of this discussion are artists’ rights.

Legislative discussions around the arts market tend to omit the voice of artists, and it is for this reason that DALRO, in partnership with the Bag Factory, hosted an Artists’ Resale Rights Forum on 22 June. Specifically aimed at artists, the forum focused on the current review of the Copyright Amendment Bill and encouraged artists and arts organisations to submit recommendations – in the form of petitions, letters, video clips and so on – to Parliament.

Artists’ resale rights have been effectively legislated and implemented in over seventy countries, including Australia, Burkina Faso, France, Norway, Russia, Senegal and the United Kingdom. Studies have shown that these rights do not have any negative effect on the arts market. In fact, the only affected party is the artist, who receives compensation on any secondary sales of their works.

If these rights are omitted from the Copyright Amendment Bill, South African artists will continue to suffer. When Irma Stern’s Arab in Black sold for R17.5 million in the UK, Stern’s estate was not able to collect royalties on her behalf, despite the fact that UK artists benefit from the resale rights legislated in their country. This is only one of countless examples that demonstrate the immense value of such protections.

In a recent Mail and Guardian article, DALRO’s Managing Director Lazarus Serobe spoke of the recent boom in contemporary African art and the urgent need to protect artists’ rights: “In the mainstream economies, what they call the First World, the art scene has reached saturation; we kind of know what to expect. Art lovers in general – everybody is looking for a new thing, that’s one side of it. On the other hand, African artists have found their voices as well. It goes without saying that the things that are being produced are awe-inspiring. Art fairs are now incomplete without African artists. It’s a situation where we are no longer begging for inclusion.” (M&G 23 March 2018)

It is the duty of South African artists and arts professionals to champion artists’ resale rights for the benefit of ourselves and the South African art market. To send a submission to parliament, please use the following contact details. The deadline for submissions is 9 July 2018.

By email: This email address is being protected from spambots. You need JavaScript enabled to view it.

This email address is being protected from spambots. You need JavaScript enabled to view it.

This email address is being protected from spambots. You need JavaScript enabled to view it.

By telephone: Mr A Hermans 021 403 3776 or 083 709 8482

Mr T Madima 021 403 3822 or 083 709 8419

Images from the recent DALRO/Bag Factory Artists' Resale Rights Forum, 22 June 2018.






LATEST TWEETS

MULTI MEDIA

Partners & Associates

  • cipc
  • bsa
  • samro