Back to the Future: Intellectual Property Issues in Adapting a Film into a Stage Musical

To create a trouble free, original stage musical based on a film, a producer must secure the underlying rights from the copyright and trade mark owner(s) of the film.

The film studio (e.g., Universal for Back to the Future) usually owns or is head licensee of the:

• Screenplay and dialogue (literary work)

• Film itself (cinematographic work)

• Characters (if sufficiently distinctive and protectable under copyright, unfair competition law and/or Consumer Law)

• Music and songs (if used from the original soundtrack) including orchestrations and arrangements.
  

These elements are usually licensed under an adaptation agreement, giving the musical producer(s) the right to retell the story on stage. Depending on the circumstances, it may also be necessary to seek permission from an original author if the film was based on a literary work (e.g. Dirty Dancing, Eleanor Bergstein and Jacobsen Entertainment Group).

Recreating Characters on Stage

When the musical puts Back to the Future characters Doc Brown, Marty McFly, etc. on stage, it is potentially using copyright-protected characters.

Assuming that the film actor contracts do not say otherwise, these rights belong to the studio not to the actors who originally portrayed them.

As long as the stage production has the proper licence from Universal (or the relevant film rights holder), it is legitimate to present Marty McFly and other characters on stage.

The advertising for the current stage version of Back to the Future now touring the world gives the impression that Universal has licensed the producers in each country based on the book (a theatrical term for the stage story and production requirements) created for the original Manchester and West End productions.

What About the Actor (Michael J. Fox)?

Here’s where it gets nuanced:

Performance vs. Character

The character Marty McFly belongs to Universal (via the script and film rights).

Michael J. Fox’s specific performance (his gestures, mannerisms, vocal inflections) is protected as part of the film, but not as a legal right that prevents other actors from playing the role (e.g. Michael J. Fox taking over the role from Eric Stoltz). Having said that, his performance is so iconic that it would be prudent to ensure that Michael J. Fox and his management had no objection to the reproduction of Marty McFly on stage.

In practical terms, a producer would ask the rights holder to clear the rights and indemnify the producer against any potential claims. This would be a minimum requirement of insurance providers for the stage version.

Right of Publicity / Personality Rights

If a stage show marketed itself as starring “a Michael J. Fox lookalike” or implied endorsement by Fox without permission, that could infringe his personality rights (called the right of publicity in the US, or passing off/misleading conduct under Australian law). There is no concept of a right of publicity in Australia.

Casting an actor who resembles Fox is not infringement — but trading off his likeness or name would be problematic without prior permission.

Referencing Michael J. Fox or other Film Actors Explicitly

If the musical directly referenced Michael J. Fox or other film actors such as Christopher Lloyd (e.g., a line in the script or marketing copy saying “as played by Michael J. Fox”), that reference would likely require permission, because it crosses from portraying a character into exploiting an actor’s identity.

Summary of Intellectual Property Issues

Copyright: Covers the script, characters, and film content. The stage musical needs permission from the copyright owner (usually the studio).

Trade Marks: If the film title (Back to the Future) is a registered trade mark (it is), the producers also need permission to use it as the name of the musical.

Personality rights: Belong to the actor. The musical can use Marty McFly, but not Michael J. Fox’s name, image, or identity for commercial gain without consent.

Passing off / unfair competition / consumer protection law: Even without explicit image use, if marketing implies endorsement by the original actor, there’s a legal risk.

In short: the film rights holder (Universal) controls the character; the actor (Michael J. Fox) controls his personal image. A licensed musical can legally recreate Marty McFly on stage, but it must avoid trading on Fox’s name or likeness without permission.

Final note: Bob Gale, co-writer of the original screen play, is said to have admitted that the character Biff Tannen was based on Donald Trump. Issues arising out of that admission depend on whether Mr Trump served as inspiration only and may fall into the area of US defamation, right of publicity, and copyright law.