I Want to Sue!

Q. I am filing a lawsuit against a movie studio who I believe stole my pilot for their movie [...].  I have a copyright from 2010, and the movie was released in 2012.

Would you know of any good entertainment lawyers...?

A couple of things to consider: If their movie was released in 2012, it was presumably shot in 2011, which means there would have likely been a script in 2009-2010. Most projects go through several rounds of rewrites; development typically goes on for years.

There are many many scripts with similar elements. Many writers have similar ideas. Some ideas are just in the air. Some follow from the subject material. Can you prove that any specific person at the studio read your script? For example, Art Buchwald was able to sue Paramount over Coming to America because they’d signed a contract with him to work on the project.

If you did submit a script to a studio, they almost certain had you sign a release form. Release forms are not 100% effective (they are arguably unconscionable), but they are written specifically to insulate companies from "you stole my idea" suits.

Actually, you can legally steal any idea. Ideas are not copyrightable. You can only copyright the expression of an idea:  plot, characterization, dialog, unique action sequences. You would have to prove that their movie has so many specific similarities to your script that they surely must have used your script. 

Bear in mind: movie studios have lots of very fancy lawyers on retainer, who do nothing all day but fend off lawsuits. Unless you can invest $100,000 in your lawsuit, you’ll probably get swamped by their legal team no matter what the merits of the case are.

(I am not a lawyer; this is not legal advice.)

Registered?

Q. Should I put "WGA registered" on my title page?

I don't think so. I've never seen a script from a professional writer that had that on the title page.

As I've mentioned before in my FAQ, I believe it is more important to copyright your script than to register it with the WGA. It costs the same, but the Library of Congress copyright carries statutory damages if your copyright is violated, while registration only provides some evidence that you're the original writer.

But if you must register the script, there is no need to put that on your script. It sort of says, "Hey, if you're planning to STEAL my VALUABLE SCRIPT, you CAN'T, because it's REGISTERED! You BASTARD!!!!"

It just looks amateurish.

(More posts about copyright here.)

Register

Q. Should I copyright my spec with the US Library of Congress, or register it with the WGA?

There is no reason to register or copyright a spec episode. You don't own the underlying rights. No one would steal your spec 30 ROCK from you because they can't sell it.

They could, I suppose, pretend they wrote it, but I've never heard of something like that happening.

It wouldn't hurt to copyright your spec pilot, but bear in mind that there are not so many legit places to send a spec pilot, and your agent is likely going to send your spec to most of them. So if someone stole your spec pilot, they would likely be sending it to the same exact people, who will then say, "WTF are you sending me someone else's script for?"

If you don't have an agent, then you're probably sending your spec to agents in order to get an agent. Agents don't steal ideas, they represent writers with ideas.

And you can't really send a spec pilot to production companies without an agent. It's possible, though very difficult, to break into features without an agent. But I am not sure it is at all plausible to break into TV without an agent.

So bottom line, copyright your script with the Library of Congress if it makes you feel better. You can even do it online, I believe. But for tv scripts, it's probably not necessary.

Copyright

I find that some people say that to register a copyright with the U.S. office, as opposed to registering with the WGA, is frowned upon in the Hollywood industry, and that it makes you look like a paranoid amateur. They state that copyrighting is only something the production company does when they want to buy a script from a writer, and that having an already existing copyright can even sour a potential sale because the executives won't want to go through the hassle of having a lawyer do more work to transfer your copyright to the studio.

Writing "registered with the Library of Congress" might come off as a bit paranoid, but you don't have to tell anyone you've done so. At least not until you option your script. And at that point, should it come up, it's trivial (a one page document) to assign the copyright to a new owner.

Does anyone have contrary information?

Re-enactions?

Q. Is it legal to re-enact and film scenes from major motion pictures and television shows and broadcast online?Could this be possible grounds for the "rights"owners to sue?

Legally, this is a violation of copyright. Realistically, people do this on YouTube all the time. My guess is that the most that could happen is they ask YouTube to take the video down.

(I am not a lawyer, and this is not legal advice.)

Will an Agent Sign My NDA?

Q. I am the owner of a film company based in [non-coastal state]. I have a chance to present ideas to the producers of the X franchise, and maybe have one picked that they will produce with me, funded by the Y agency.

My attorney (who isn't familiar with this industry) has crafted an NDA [non-disclosure agreement] regarding this, but the agent at Y isn't willing to sign it, citing that it's not customary for agents to sign them and that our material is protected by default in California law because agents can't do anything with the ideas anyway. Is this true? Is there a way to protect the treatments we are going to send them? What law is he speaking of?

By California law, agents can't produce. Therefore there is no incentive for agents to steal ideas. What would they do with them?

Agents don't sign NDA's. In fact, no one you want to send your script to will sign an NDA. They will likely ask you to sign a release form that works in the exact opposite direction. The release form protects them if they wind up later being involved in a movie similar to yours.

Mostly, people in showbiz don't steal work. It's so easy to option a screenplay; why let yourself in for a lawsuit? There are occasional high-level cases, often involving stars who think they wrote stuff they didn't write, but they're rare at most levels.

That's not to say that all agents and producers are saints and none of them ever screws* anybody or lies. But even the naughty ones rarely steal. It's just not worth the trouble.

UPDATE: Robin R points out that the whole reason you have an agent is so they'll tell people about your stuff. If you don't want them to tell people about your stuff, why are you hiring an agent?


* As the old joke goes, two producers are walking along Rodeo Drive when they see a hot chick. One says, "Boy, I'd like to screw her!" The other one says, "Out of what?"

Protection

Q. I just talked with a fellow writer at length about my series idea. She asked a whole bunch of highly pertinent questions about it, and I was eager to test out the work I've been doing over the last few months by giving her strong, crisp answers, and seeing her response. But as I hung up the phone, I grew nervous that I'd basically just handed over my bible to her. She seems like an ethical person, and I don't think the friend who put us in touch would have connected me to someone sleazy, but nevertheless, it would be devastating if my ideas were stolen. Is there anything I can do? Perhaps I can send an email thanking her for the call, and reiterating some of the details of what I've mentioned, so that there is a written record of my having been the originator of the ideas?

Sure.

I generally don't worry too much about people stealing my ideas. Usually I worry about how I can possibly get people interested in them. When writers gather, they generally don't complain about idea-stealing, but inane-note-giving.

But it's not a bad idea to protect yourself.

You could protect yourself by copyrighting your material at the Library of Congress, but that would get expensive if you did it every time you wrote a pitch. Generally what I do is send my material to a few people. My agents, obviously, and a few people I trust to read my stuff. If you just get your pitch out there to a handful of people, it is going to be easy to prove that you wrote it first. And that's all I think you really need.

Go Guild or not Go Guild?

Q. Does the Canadian writers guild require a writer to get something more than the purchase of rights to a screenplay? It looks like I'm on the verge of selling a script to a Canadian studio, and I'd like to know if I'll be getting a percentage of the budget, a percentage of box office receipts, etc... something more than just the purchase price of the script.

Yes. The WGC Independent Producer Agreement (IPA) requires that writers be paid a Production Fee, payable on production of the movie, of about 2.5% or so of the movie's budget. On a $10,000,000, it's $230,000, minus whatever else you've been paid so far. Also, you get a distribution royalty.

Are you a member of the WGC?

Q. I'm actually not a member of the Guild, although my script is registered there. Do I need to be an actual member of the guild in order to get the production fee?

Er, yes. Registering a script can be used as evidence that you wrote a script, but it doesn't entitle you to WGC minimums. (Copyrighting a script is much better than registering one, but that's another post.)

If a producer is signatory to the IPA, then you must get a WGC contract, and you are entitled to join the WGC. You can choose not to join the WGC on your first contract, but c'mon, don't be a putz. The WGC also protects writers' credits, and will talk to producers for you if the producer is not abiding by their agreement. That's handy since you don't want to sue producers if you can avoid it.

You can always try to negotiate WGC minimums whether or not you are a member of the Guild; just put the same payments in your contract. But producers will rarely give them to you when they don't have to.

The executive producer (who is also my agent) is in the States, but the studio who's financing the movie is in Canada.

Uh oh. Your producer is your agent? That's not good. That's a clear conflict of interest. Who's negotiating your deal with your producer? Your producer?

Under California law, an agent can't be a producer, for just this reason. (A manager can be a producer, but the law requires that your deal be negotiated by an agent or lawyer.)

Would you recommend I become a member of the Writers Guild of Canada in order to get the most money I can out of this deal? Or would that matter a whole lot?

I can tell you of at least one screenplay deal I signed, long ago before I joined the Guild, where I wound up having to accept $15,000 instead of $50,000 because I wasn't Guild yet.

I only know one busy writer who's not Guild. He's always doing low-pay gigs for overseas producers. I can see that he's concerned that he'll lose out on some gigs if he went Guild. And maybe he would. But I think he'd get at least as much money overall, and that would mean he could spend more time on fewer gigs and take more time with each screenplay. I think he'd be a better writer, and possibly a richer writer, if he went Guild.

So yeah, I recommend going Guild if you can. Also, get a real agent.

(Full disclosure: I'm the Quebec Delegate to the WGC National Forum, so I won't pretend to be neutral. But if I didn't fervently believe in the WGC, I wouldn't have run for the job.)

How to Protect Your Blog Content

This site has a terrific rundown on how to protect your blog from copyright infringers.

HB2U

According to Robert Brauneis's extensively researched "Copyright and the World's Most Popular Song," "Happy Birthday to You" is not under copyright after all.

This will come as a shock to most of you, to whom it had never occurred that "Happy Birthday to You" was ever under copyright.

However, if you've ever wondered why people were singing "For He's a Jolly Good Fellow" at a birthday party in a low-budget movie, the specific reason has been that Warner Chappell claims it owns the song, which brings in a staggering $2,000,000 a year in royalties. That, in spite of the music dating back to 1893.

The general reason is that Disney, in its efforts to keep a certain mouse under copyright, has convinced Congress to extend copyright to a ridiculous 95 years, thus slowing the spread of culture.

Brauneis's paper is a step in the right direction. But I doubt any Errors and Omissions lawyer will be willing to take a chance on not paying royalties to Warner Chappell; at least until someone actually gets a judgment that HB2U is public domain.

So we'll probably continue to hear "For He's a Jolly Good Fellow" in student films and D2DVD movies. Though, arguably, you could have people hum it...

Do You Know Your Rights from Your Lefts?

Q. I wrote for a producer a while ago on an indie film. It was unorthodox, the idea being that a bunch of unknowns write it (5 of us in total) for no money. Shares would then be distributed to the writers for the film's company, thus profits going to them as well as other independent investors. The producer himself was principal writer.

Now this producer has become power-hungry. Bigger names have been brought in, rewrites have been done to the script etc. I'm now down on the script as an "associate writer". I wondered if you ever came across this term before and if you know exaclty what this means? I understand that I have no 'rights' as such but I'm considering requesting some form of payment (other than film shares) and wondered what your personal opinion was on the matter.

a. There's no such thing as an "associate writer." The WGA and WGC allow credits of "Written by," "Story by" and "Screenplay by". If you were involved in creating the original story, you would normally be entitled to a shared "Story by" credit at a minimum.

The exception would be if you guys served really as story consultants. Did you and the other guys actually produce written script materials? Or did you just kick ideas around? In that case you wouldn't necessarily be entitled to a story credit, just a script or story consultant credit.

b. It is not true that you have no rights. Did you sign a contract? If so, you have whatever rights your contract gives you.

If you did NOT sign a contract, then you still own the copyright to your work, and you can prevent its being used. The producers do not own your work unless they paid you something. You can potentially stop production or distribution of the picture if they use your work without your contractual agreement.

In your case, there seems to have been some vague kind of promise. Promises are an oral contract, but no bank or completion guarantor is going to accept a producer's word for it. If you kick up a fuss, then the producers will have to get something on paper with you, because they have to sign all kinds of documents saying they own all the rights to the script, and if they don't, in fact, own all the rights to the script, they'll be in trouble.

c. I wouldn't be too excited about receiving film "shares" in a script. Most films never go into profit, even if they make money for the production company and studio. Production companies have weird definitions of profit that mostly amount to "no profit." Net profits are commonly referred to as "monkey points."

Screenwriting Collaboration Agreement

Here's a pretty good, basic Screenwriting Collaboration Agreement. If you're considering co-writing with someone, you probably ought to sign one of these.

Or, if you have something else in mind, alter it accordingly. For example, we could draw up an agreement where you have a 50% stake, but I have control over the rights, and can decide to sell or option or not sell it as I choose. You could have a financial stake but I could retain final say over the creative form of the screenplay. And so on.

There are fewer things more frustrating for a writer than to have a good script tied up because your ex-partner no longer agrees with you about a screenplay. Get the main points in writing, even if you're writing with a friend. It will never be easier to make a fair deal than when neither of you has put any work into the project. Later on, people start to feel a sense of ownership, and things get sticky.

How Can I Own a Title?

I just read an article regarding the Stan Winston directed 'Pumpkinhead' where the producer states that he 'owned the title Pumpkinhead.'

Is it possible to own a film title?

ie, I have a cool title - how can I own it?

You can't copyright a word, and I'm pretty sure "pumpkinhead" was in the dictionary before the movie. Moreover, there are any number of movies with the same title, especially if it's a common word or phrase. I have a credit on a picture called WARRIORS, which is not the famous one.

The producer may have registered the title with the MPAA. I'm not actually sure what this does, but I imagine there are some restrictions on putting out similarly-titled movies at the same time; of course all the MPAA can really do is withhold their rating.

The producer may also have trademarked the title, at least as it applies to horror movies about big rangy ugly monsters. I'm not sure how much protection that gives; I think it just entitles you to threaten a lawsuit, not necessarily win one. But who wants to buy a lawsuit?

I don't think you can practically "own" a film title without producing a movie. Otherwise people would just get our their BREWER'S DICTIONARY OF PHRASE AND FABLE and squat on movie titles the way they squat on Internet domains.

Inspired By

I am writing a script about a soldier who fought in WWII and passed away recently. While I don't want to necessarily write a story about his life specifically, I do want to use his achievements in battle as the basis for my script. I'm assuming he has living relatives. How should I handle this? Am I safe with just a name change? How much would I need to change his story to not worry about acquiring rights/permission? Do I need to worry about it at all in the first place?

My suspicion is that you are going to change the details so much the guy isn't really recognizable. If what you're doing is "inspired by" true events, I think you're clear, even if your source of inspiration is still alive.

You're right that death is a bit of a dividing line in some rights issues. Keeping in mind that I'm not a lawyer and this is just my understanding: in general, the dead have no privacy rights. I suspect that you could actually tell this guy's actual story and you'd be okay so long as no one in the movie is still alive (readers, can you check me on this?).

Their likeness rights do pass down (you can't put Marilyn Monroe in an ad without talking to her estate) but that doesn't apply here.

You will hear from time to time about relatives suing over this and that. Whether they win their suits is another question. Anyone can find a lawyer to sue about just about anything.

In general, I prefer to go the "inspired by" route for almost anything. People's lives make much better stories when you don't owe the truth anything. Then you can concentrate on the story. Then I don't have to worry about life rights. By the time I'm done with a story, it often has very little bearing on the source material.

That goes for novels, too. I've adapted a bunch of books and by the time I'm done, in most cases, I could just as well have skipped the novel and just liberated some of the insights and ideas and territory (none of which are copyrightable).

Note that public figures have reduced privacy rights. You can make a movie about George Bush without his permission, as Oliver Stone has. Dead public figures have almost no rights -- e.g. Malcolm X, Martin Luther King, etc. But their non-public-figure lovers, wives, secretaries, etc., probably still have privacy rights and you'll need them to sign off, or (I'm not sure how this works exactly) make their characters so unutterably bland that they have nothing to complain about.

Where you really need the rights creatively (as opposed to legally) is when you have an "inspiring true story" -- e.g. ERIN BROKOVICH. Sometimes the audience really wants to know that this actually happened, and it's a selling point. Then get the rights. But in most cases, I think you're better off taking liberties with the truth and adapting the truth broadly enough that you don't need anyone's permission.

What Does Copyright Protect?

Q. I wrote a play which contains a Superman-type superhero. I understand that I can protect this play through the copyright office or the Guild. But, will this also protect my superhero? Or, would I need to copyright my hero separately?

As I've written in my book, registering your work with the Library of Congress gives you much stronger protection than registering it with either Guild.

Copyright protects the expression of your idea, which includes characters. No one can put Harry Potter in their own novel or movie without permission of J. K. Rowling. It does not protect the basic idea, e.g. 14-year-old wizard fights evil dead wizard with the help of his disturbingly hot 14-year-old female wizard friend.

You'll note that D&D had "orcs" but not "hobbits." That's because "orc" is an old English word for a goblin, and therefore not copyright-able, as is "halfling," but "hobbit" was an invention of J. R. R. Tolkien. Although D&D borrowed heavily from THE LORD OF THE RINGS, it kept away from his characters, and his invented character classes. (Which does not prevent you from putting Shelob in your home game.)

Once the merchandising companies get involved, they tend to also trademark characters. Superman is trademarked. The big "S" logo is trademarked. The bat logo of Batman is trademarked. If you make action figures, you'll trademark them in addition to copyrighting the text you wrote about them.

Now: how the hell are you going to make your character in your play fly?

Copyright a Spec?

Is it possible to copyright a spec script based on an existing television series? (using the same characters, personas, etc. and even listing as a speculative script for the show)

I suppose you could theoretically register your script with the US Copyright Office. But what would be the point?

Copyright protects you from someone else publishing your work. But no one is going to publish your spec, whether under their name or yours. They can't; it's based on someone else's property. And copyright doesn't stop someone sending your script around with their name on it. Nor would you even need copyright to protect yourself. If someone were poaching your spec, all you'd have to do is call their agent, who would promptly fire them as a client.

People steal original material much less commonly than people outside the business suppose. Who wants a lawsuit? But spec scripts? I've never heard of someone stealing a spec.

If, on the other hand, your idea is to copyright your story idea, in case the show later uses it -- forget it. You can't copyright an idea. And the show is not going to read your spec for that show. And if they did, they'd ask you to sign a release form that basically acknowledges that they've probably already heard more or less the same idea pitched to them five different ways from Sunday.

Old Copyright

Q. I read your FAQ about writing sequels. The movie I would like to write would be at least 22 years after the original. Isn't that long enough to expect that the original producer has given up on a sequel?

Copyright now lasts almost a hundred years, thanks to Sonny Bono and the Mickey Mouse Protection Act. The producer may have given up on a sequel, but the studio still holds the copyright.

Q. I expect you may say that if it hasn't had a sequel, then it wasn't successful enough to merit a sequel. However, the original does appear to have a huge fan base. Can you give me any hope on this situation?

Old movies get remade all the time. And, for that matter, 22 years is not particularly old. THE THOMAS CROWN AFFAIR (1968) is getting remade, for example. And didn't they do a TV sequel to GONE WITH THE WIND (1939) in the past few years?

Q. If it is worth my time, would this be a rights infringement if I approach Warner Brothers about it, with a story using existing characters?

No. It is not a rights infringement to approach the copyright holder. It's not even a copyright infringement to write a script based on it. (It may be a waste of time, but not a copyright infringement.) The odds are small of you getting anywhere with WB if you're not a producer they know, but that's another matter.

If it were the material and not the fan base you were in love with, I would say write a great story as if you were writing a sequel, but change the names and a few of the circumstances. Last year I saw a pitch about two washed up drunks who used to solve crimes when they were teenagers. They were obviously The Hardy Boys, Twenty Years Later. You can't use The Hardy Boys without permission. But you can riff off The Hardy Boys. Then, later, if you get the copyright holder's approval, you can call them The Hardy Boys. And if you don't, the concept still works. And this frees you to make all the changes you need to make artistically.

THAT LOOKS FAMILIAR

Q. I have written a screenplay inspired by the universe originally created by [writer] in which [critters] have taken over the world. Although my own hook, story, characters and dialogue differ from any of his currently made films, there is one similarity in the opening sequence of mine to the opening sequence in one of his.

This is a question of fact, not of law, and facts are determined by juries. And you want to stay away from juries.

Does one similarity constitute illegal violation of copyright? Probably not.

Can they sue you? Probably. Anyone with a thousand bucks can file a suit.

Will they sue you? Probably not. Who needs the headache?

Will it get thrown out of court? Maybe. But probably not -- cases are usually dismissed only if the judge believes the plaintiff would lose even if the facts are as he alleges.

So you gotta ask yourself a question: are you feeling lucky?

One the other hand, movies rip each other off all the time. If your [critter] film has a similarity to another [critter] film, many will consider an homage, a parody or a shout-out. George Lucas doesn't get to copyright the idea of an opening crawl that recedes into the background, though he could probably sue you on trademark grounds, unless you're doing a parody, in which case you're probably okay.

But copyright is not your main problem. The script will get rewritten before it gets to the screen anyway. But anyone reading your script who likes [critter] films will remember [writer]'s opening sequence and think, Jeez, this guy didn't even bother to come up with a fresh opening! And chuck your script into the recycle bin.

Your first idea is rarely your best. Why not use the similarity as a wake-up call. Come up with something fresher -- and more personal to your own creative perspective!

"CLICK AND COPYRIGHT"

I got an email from someone asking if I'd like to partner with them to promote their "Click and Copyright" site where, for only $97 dollars, they will file your screenplay with the US Copyright Office. Or $147 for their bonus services. I wasn't too clear on what their bonus services are. But they have obviously Google-bombed their own site because

One of our sites, [snip], provides online copyrighting, (and is number 2 and 3 on google's natural results for the term "copyright your screenplay"

I'm afraid I did not partner with them. Because all you need to copyright your screenplay is a copy of your script, a copy of the Library of Congress's FORM PA, a check for $30, an envelope, and some stamps. Just go to the handy Library of Congress page on Performing Arts copyrights and download the form.

Filing with the US Copyright Office at the Library of Congress is many times more effective than registering your script with either Writer's Guild. It provides a statutory registration, rather than evidence that you wrote the material. Registering your Form PA gives you legal rights that no third party, no matter how well intentioned, can give you.

You can read more at Filmmakerstore, where they seem to be trying to earn an honest buck. I've also written at length about copyright in my FAQ.

COPYRIGHT INFRINGEMENT

Some readers have asked me about the possibility that Bedford Diaries poached from our show Naked Josh. I haven't seen the show so I don't know if they poached just the concept, or more than the concept. I'll know more March 29 when the show airs.

You can't really copyright a concept. You can copyright the expression of that concept. We would have to show that a substantial amount of the structure of the show is poached, not just the concept.

In the case of Cold Squad/Cold Case, the similarities were clear. Not only was it a squad investigating cold cases, it was a squad headed by (I forget the exact details but let's suppose they were:) a blonde divorcee who used to be a doctor. (Does anyone know what the details were there?) It was also clear (if I recall correctly) from testimony that the US show "creator" had visited the CFC and asked students what shows were good, and had been told explictly about the Canadian show.

What was so shocking to me was that the US show "creator" didn't have the urge to change anything about the original show, and the network didn't seem to want anything changed. That's rare. The urge to meddle is strong. Look at the British and US editions of Coupling and The Office. Personally there's no show I could rip off where I wouldn't change characters, format, tone ... something. You all know how I feel about Meredith Grey.

In the case of Bedford Diaries, I have the impression from what I've heard that the show is more about the students and less about the professor's personal life, for example. If so, they may just have stolen the concept. If on the other hand the professor is still in love with his college crush, or hangs out with a friend who's a bartender, then you start thinking about calling your lawyer.