What if we make a podcast based on the movie?

Julia Martínez Zaragoza, lawyer at Bardají&Honrado, addresses from a legal perspective the adaptation of audiovisual works to podcasts, an increasingly common means of exploitation with its own problems.

It is a reality that the consumption routes of the audiovisual content are in constant evolution. You just have to look back and think who would have imagined, 15 or 20 years ago, that it would be possible to consume “on demand” content through audiovisual platforms.

Consumption habits change at a dizzying pace and, therefore, both content creators and the networks and platforms for broadcasting audiovisual content must adapt to these successive changes to not to be left behind. Reaching new segments of the public involves searching new forms and windows of exploitation, which sometimes goes through a true transformation of the original audiovisual work. Ultimately, it is about maximize the performance of the audiovisual work through derivative exploitations that exceed the audiovisual field in the strict sense.

Within these derived exploitations, the podcast creation from audiovisual works; specifically, from movies.

A new adaptation

One might think, at first glance, that this exploitation does not pose any problem to the producer from a legal point of view since the usual thing is that he has made sure to obtain all rights to the scripts to be able to exploit them as it deems appropriate, including its novelization or adaptation to dramatized audio formats.

It must be assumed that, in general, the podcast will not consist of a mere interpretation of the film's dialogues, but will require a -even minimal- adaptation to the sound environment.

However, problems arise when the audiovisual work has been created from a previous literary work, which is a fairly common assumption. In this case, the producer will have to verify if the rights holder over the literary work, he transferred the necessary rights to carry out this type of exploitation, which - on the other hand - is not common.

It must be assumed that, in general, the podcast will not consist of a mere interpretation of the film's dialogues, but will require - even minimal - adaptation to the sound environment. This adaptation constitutes a transformation of the original work which means that we are faced with a different work -the podcast-, which will probably take elements of both audiovisual and literary works.

Podcast: the derivative work of the derivative work

In legal terms, we would be faced with three different works, all of them generators of rights, which do not necessarily have to belong to the same owner: first of all, there would be the original work (the literary work on which the film is based), in second place in chronological order would be the derivative work of that, that is, the film, and finally the podcast, which would be a derivative work of said derivative work.

Although it may seem like a tongue twister, the Intellectual Property Law regulates this framework of rights in the articles 11 and 21. And specifically, the second section of article 21 establishes that “The intellectual property rights of the work resulting from the transformation will correspond to the author of the latter, without prejudice to the right of the author of the pre-existing work to authorize, during the entire term of protection of his rights over it, the exploitation of those results in any form and especially through their reproduction, distribution, public communication or new transformation.

To the extent that the podcast exploitation involves the use of elements present in the literary work, authorization will be required of whoever holds the rights over it.

We see in this provision that, although the Law obviously grants the intellectual property rights of the derivative work to its author, it preserves also those of the author of the original work, since the exploitation of the derivative work necessarily (and even indirectly) entails the exploitation of the work on which it is based.

Returning to the scenario analyzed, it would turn out that for the exploitation of the podcast it is necessary that the author of the literary work has transferred to the producer -beyond the right to produce an audiovisual work- the right to transform that audiovisual work and, specifically, the possibility of make a podcast out of it. In other words, cannot be started from the premise that since the owner of the rights to the literary work (the author, the publisher or the third party who has acquired them) does not have any rights over the audiovisual work, their consent is not required to make the podcast. To the extent that the exploitation of the podcast involves the use of elements present in the literary work, authorization will be required of whoever holds the rights over it.

Is it possible to acquire this right in advance in the audiovisual adaptation contract?

The Intellectual Property Law establishes in its article 89 a presumption of transfer of rights to the producer necessary so that it can normally exploit the audiovisual work, but that does not cover the right of transformation. This does not mean that this transfer of the right of transformation cannot be expressly provided for, but in that case it must be be specified in the audiovisual adaptation contract What specific transformations will the producer be able to carry out based on the audiovisual work.

It is quite common, for these purposes, to provide for the possibility that the producer can carry out prequels, sequels, remakes, spinoffs and other audiovisual works derived. In these cases, it is also normal to foresee a author/owner participation of rights to the literary work in the benefits that the producer receives from the exploitation of these derived products. Nothing prevents it from being included in the transfer of rights the possibility of making podcasts.

However, as we say, it is a power that the author and/or the publisher usually reserves since it may come to collide with normal editorial exploitation, which in most cases and with increasing frequency, provides for the creation and marketing of audiobooks. In any case, it is a faculty that - as happens with the rest of the transformative exploitations - must be expressly provided for.

That said, there could be the possibility that the podcast was based on elements added only in the movie and not present in the audiovisual work. In this case, the producer could make the podcast without needing to request authorization to the author of the literary work to the extent that its own elements are not used. However, this course would be the exception, it being normal for the podcast to take elements present in the book and requiring, therefore, a express transfer of rights.

Julia Martínez Zaragoza

Lawyer at Bardají&Honrado