Should I ask author/publisher for permission if I want to create a free game out of the book?

Question

I want to create a free and open-source (licensed with GNU (A)GPL v3) using the plot and maybe the title of the book. I won't sell it and will have no income from it. I have some questions:

1. Should I ask the heir of the book author (he died) for permission even if I won't sell the game? If no, what law/international convention does allow me to do so?

2. If I have to ask, would it be enough to get permission via email or should I sign a contract with the right holder?

3. If I got permission for non-profit use of the book plot (or if I don't have to get that permission), can I collect non-binding donations on the game's website?

Thank you very much.

Answer 1

You don't just want to ask, you are required to obtain a license (or in other terms: the OK of the author*).

Your game is based on a book. That makes your game a derivate work. Under berne convention, any signer state has to make sure that the author* has the right to authorize any derivate. That includes translations, films, or games.

Without a license, you violate copyright law. It doesn't matter if your game is free. To stay safe, you need to obtain a license.

Quite some authors would be happy to cut a deal, license or guidelines for fan-projects. As an example, the late Sir Terry Pratchett OBE has specific guidelines on what is ok and what not.

Ask your author* about these questions and consult a Lawyer! Only then make your fan project!

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_{* This means the author, their estate or whoever they assigned their rights in the work to. Some examples: For that teenage wizard in a private castle charter school that'd be a certain J.K. Rowling. For those hairy-halflings running all over the continent hunted by orcs that'd be the J.R.R. Tolkien-Estate. And for those space wizards using blades from solid light that'd be The Walt Disney Company or one of their subsidiaries.}

Answer 2

It depends on what you take out of that book. Any graphic images are protected by copyright. The text itself is also protected. But the ideas, i.e. the plot, is not protected by copyright. As noted in that answer,

a motion picture about the South Bronx would need to feature drunks, prostitutes, vermin, and derelict cars to be perceived as realistic, and therefore a later film that duplicated these features of an earlier film did not infringe. These elements are not protected by copyright, though specific sequences and compositions of them can be.

(Citations Citing Williams v. Crichton, 84 F.3d 581, 583 (2d Cir. 1996), commenting on Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir.), cert. denied, 476 U.S. 1159 (1986)).

Copyright law protects specific expression, and does not grant general ownership of everything contained in a work. Without being more specific on how you plan to "base" a game on a book, there is no way to determine if permission is required.

Answer 3

I'm assuming that you think that because you are not earning any income from your proposed derivative work then you don't need a license from the author.

But what's to stop you from later deciding to charge? And then if successful, charge more? In perpetuity - or however long your game lasts? What about the rights of the author then?

The author has a right over his intellectual work. This is what authorship is about. If he has deceased then you need to seek approval from his estate.