Dear Rich: I am a music and drama director for a tiny K-8 private school in California. Every other year, we put on an all-school musical for parents, friends and families. I often have trouble finding musicals that work for our age group -- most musicals are written for high school-aged kids or older -- so I would like to write my own. Currently, I'm interested in adapting the movie/novel "Whale Rider" for our kids. If I don't publish it, and don't charge for tickets to the show, how much material, if any, can I use from the movie and/or book for our play?Thanks! I'm so glad you asked. You'll be violating copyright law if you don't obtain permission. It doesn't matter that you are not charging and won't publish the final work. Those may be mitigating factors if you're sued, and they may influence a fair use defense, but they won't prevent your actions from infringing the performance and derivative rights of the copyright owner. Since you'll have to take the major characters, plot, and dialogue elements if you wish to conjure up the original, whatever you take will likely amount to an infringement. Asking for permission seems challenging and you would need to determine who to ask -- the novelist, the publisher (who may have acquired those rights), the movie company, or a third party. If the movie differed materially from the book -- and you used those movie-specific elements -- then you'd likely need more than one permission. So, from a legal point of view, it looks like a lot of hassle (and little chance of success). That said, you could attempt to contact author Witi Ihimaera, explain your situation, and seek his blessings/permission (assuming he still possesses those rights).
All that legal stuff aside, the
Dear Rich staff would really like to see you make this musical. It seems like a sweet idea and could be very rewarding. So what's a music director in a tiny K-8 school supposed to do? It reminds me of the time my mother called a big music publisher lawyer and asked for permission to perform a song at a nonprofit benefit. The lawyer's response: "As far as I'm concerned, I never got this call." In other words, when a copyrighted tree falls in the forest, sometimes nobody hears it. That appears to be the approach taken by
some musical directors.
It would be unwise and unprofessional to advise you to go ahead without permission. However, should you choose to assume the risk -- and it does involve some risk -- you can lower the odds of seeing lawyers on opening night by doing the following:
- consider using only material from the book (to reduce the chances of the movie company coming after you)
- indicate on promotional material that the program has not been authorized by the author (it won't prevent a lawsuit but at least you're not misleading consumers)
- follow the steps you mentioned as those are all mitigating factors -- that is, don't charge admission, don't publish the musical, and don't distribute video or audio copies, and
- make sure that the administration at your school is aware of your course of action (CYA).
Unless the author or someone from the movie company reads the Dear Rich blog (
Hello!) it's unlikely that your efforts will be the subject of a
cease and desist letter. If you do receive one, don't blow it off; respond immediately and halt production until a resolution occurs. Finally, have a
backup musical ready, just in case.
