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.
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.