The Legal 411 for Screenwriters

           As a practicing entertainment attorney for nearly two decades, I have represented many writers. I have counseled them on the legal issues related to their writing endeavors, negotiated their agreements with agents and managers, helped them sell their screenplays, and settled their disputes with other writers and producers.

            You need to be diligent when it comes to dealing with the legal issues that may arise while you are writing and selling your screenplay, including hiring an agent and manager. Otherwise, you may end up jointly owning your screenplay with another writer, though it was not your intention; may be sued for copyright infringement for incorporating copyright protected material into your screenplay that you thought was in the public domain; could waste your time writing a derivative work based on an original whose rights you cannot acquire; may not be paid compensation and rights you’re entitled to when you sell your screenplay; may not be able to shop or sell your screenplay; and may find it impossible to replace your current agent or manager. Overall, consulting with an entertainment attorney up front is much more cost efficient than attempting to fix mistakes and settle disputes that could have been avoided. Whenever I say “attorney” herein, I mean “entertainment attorney.”

            This chapter endeavors to inform you of the legal issues that exist as you navigate through the process of writing, shopping, selling your screenplay, and hiring an agent, manager, and attorney. This is not a full exploration of the law, nor is it intended to make you an expert in the field. Rather, it is meant to help you spot the issues that may require legal counsel and the important deal terms of the agreements into which you may enter into as a screenwriter. There is a primer on the basics of copyright law up front. Thereafter, I have organized the information in a sequential manner that guides you on your journey, start to finish. 

COPYRIGHT

             A “copyright” is a form of protection for the authors of original content which, with few exceptions, bestows upon authors of intellectual property, such as a book, play, magazine article, news story, video game, screenplay, motion pictures, etc., the exclusive right to reproduce, distribute, perform, prepare and sell their creations.[1] Copyright protection does not extend to ideas – only to their expression. The current term of copyright is the life of the author plus 70 years.[2] Copyright is automatic the moment the work is fixed in a tangible medium, like a printed page, a hard drive, a flash drive, digital recording, film, etc.[3] Copyright law may impact your use of any of the source material you incorporate into your screenplay, and the ownership of your screenplay if you collaborate with another writer.

            Copyright protection means that you own the object of your creation and that anyone who wants to use it needs to acquire the right to do so from you. In fact, absent an exception, anyone who uses your copyright protected work without your assent is infringing on your copyright. Likewise, you cannot use another’s work without permission unless said work is in the public domain, or you are claiming your use is a “Fair Use.” This exception to the Copyright Act allows you to utilize another’s work without permission for the purpose of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without infringing copyright.[4] I advise that you proceed with caution and consult with an attorney if you are claiming a Fair Use exception to the Copyright Act, since the exception is far narrower than most people realize.

            Though copyright protection is automatic, I strongly urge you to spend the $35 it costs to formally register a copyright for your treatment (if you are going to be pitching it prior to writing the screenplay) and screenplay, once you have completed them. You can register a copyright at any time, but I recommend you do so before you start shopping and submitting your treatment and/or screenplay. The benefits that you gain from the registration far outweigh the cost and time it takes to complete the registration form online. Copyright registration within five years of first publication provides proof of ownership and affords you the opportunity to litigate against infringers, since registration is a prerequisite to filing a legal claim.   Registration within three month of first publication and prior to an infringement allows a court to award you statutory damages of up to $150,0000 (or actual damages and profits, if they are more than the statutory damages) as well as attorneys’ fees. You may only be awarded actual damages and profits if you do not register within the first three months of publication or prior to an infringement.[5]  

             Registration of your copyright with the U.S. Copyright Office is the only registration that affords the benefits in the preceding paragraph. The “poor man’s copyright,” which entails you mailing your screenplay (or other creation) to yourself and you saving the unopened package, provides no more protection than the unregistered copyright. The Writers Guild of America (“WGA”) script registration service, which allows you to register ideas, treatments, screenplays, and teleplays, may serve to potentially provide proof as to the day of existence of your registered material. I recommend registering with WGA when a production company requests it, or when what you have created is not entitled to copyright protection, e.g., an idea. WGA registration costs $20 for non-members and $10 for members. Note that WGA script registration does not trump the Copyright Act.

             Note that in order for anyone to infringe on your screenplay’s copyright they actually have to copy it. There is no infringement unless the party you are accusing had access to your screenplay and there is substantial similarity of the copyright protected elements in your screenplay and the screenplay or picture you are claiming is infringing on yours. You have no copyright infringement claim if someone independently creates a screenplay that is similar to yours.

READY, SET . . . PAUSE

             You have come up with an idea for a screenplay which you want to begin writing. I suggest that you stop and ponder what you intend to write and the potential legal issues that may exist at this juncture.   Pausing long enough to consider what may be required legally of you at the start of every writing endeavor will help you avoid legal errors and costly mistakes that may undermine your goals.

             Ask yourself the questions that follow in order to determine if you need to consult with and/or hire an attorney. Are you writing by yourself or with a writing partner? Is the story you want to tell completely fictional and original to you?   Is your screenplay based on, or inspired by, outside source material, like a book, play, news article, magazine article, or trial transcript? Are you writing about a living person? It is important that you ask yourself these questions at the outset so that you do not waste time writing something you cannot sell.

            Resist the temptation to use a boilerplate agreement not specifically drafted for you by an attorney. Chances are you do not know enough about the law, or crafting an agreement, to revise the agreement without creating a litigation worthy mistake, or one that forces you to shelve your screenplay. The time that you are investing writing warrants the cost of hiring an attorney to do things right.

WRITING THE SCREENPLAY

 Collaborations

             A “collaboration” occurs when you write with another writer. You have to consider the long-term implications of any writing partnership because the term of copyright, in the proceeds of your collaboration, is your life plus 70 years. As such, it is important that your writing partner and you share a similar vision for the screenplay you intend to write, that you agree on the deal terms of your partnership, and that you assess the relationship and its long term viability. Note that your writing partner and you will equally co-own the screenplay you write together the moment you fix it in a tangible medium, since copyright automatically attaches regardless of oral agreements or intention to the contrary.

            I strongly urge that you retain an attorney, if you do not already have one, and that you enter into a “Collaboration Agreement,” a three to four page agreement that addresses all of the pertinent terms of your writing partnership, e.g., split of copyright and revenues, who gets the first position credit, who gets to make the final decision if you disagree on a creative or business issue, who will be responsible for shopping the screenplay, who approves the sale, etc. Your attorney will help you compromise when your writing partner and you cannot seem to agree on a deal term so that you both feel fairly treated. When a client and collaborator cannot agree on the credit, I suggest that one take the first position credit on screen and the other in ads. When both want final approval, I suggest that one have it on business decisions and the other on creative ones. You can start writing once you have executed the Collaboration Agreement. If you cannot agree, despite the attorney’s efforts, then you both just walk away, only having expended the legal fees. This is a small price to pay to avoid a time-intensive and potentially costly dispute down the line.

            What happens if you started writing without a Collaboration Agreement and now realize that you do not want to complete the screenplay with your writing partner? You may not have to shelve what you have written thus far if your writing partner is willing to assign it to you. To “assign” means to transfer an asset. You want the other writer to transfer his/her interest in the screenplay to you. This is done via an “Assignment,” since copyright law requires that a transfer of a copyright interest be affected by a written document signed by the party assigning rights.[6] I suggest that you execute an Assignment, even if what you have written does not qualify for copyright protection.   In addition to drafting the Assignment, an attorney can motivate a recalcitrant collaborator by negotiating terms whereby he/she is paid a portion of the screenplay’s sale price. Unfortunately, you may have to chalk this experience up to a lesson learned if your collaborator and you are at an impasse. The alternative, in such a circumstance, is that you assign the results and proceeds of your collaboration to the other writer.

Original Fictional Screenplays

             You can proceed to write without regard to any legal issues if you are writing a completely original screenplay either on your own or with a writing partner, as long as you have entered into a Collaboration Agreement. For the purposes of this chapter, “completely original to you” means that you are writing a work of fiction that is not based on outside material, be it a book, play, magazine article, life story, video game, etc. If you are doing research, then it is best that you determine if any of the other sections of this chapter apply to your use of the source materials you may be incorporating into your screenplay.

Screenplays Based on Public Domain Material

             You may write a screenplay that is an adaptation of, or based upon, a work that is in the public domain without infringing its copyright. A work is in “Public Domain” when no one owns that work’s copyright or if the work never qualified for copyright protection. A work is in the public domain because it was not registered for copyright at a time when an actual registration was mandatory, did not comply with the formalities of the Copyright Act, or the copyright term has expired. You can use a work that is in public domain without securing permission to do so from the author. Works in the public domain include the following: Works published between 1923 and 1977 that were never registered for copyright; works published prior to 1923; works published between 1923 and 1963 that were registered for copyright but published without a copyright notice; works published between 1978 and March 1, 1989 without a copyright notice and without a subsequent registration (within 5 years); unpublished works from authors who died prior to 1944; unpublished anonymous or pseudonymous works created prior to 1894; unpublished works created prior to 1894 when the author’s date of death is unknown; and, foreign works that are in the public domain in their country of origin.[7]

             Facts, numbers, events, government works (written by government employees), and ideas do not qualify for copyright protection and are, therefore, also in the public domain. Keep in mind that though the aforementioned are in the public domain, their expression and any theories that are original to the author may be protected by copyright. Be extremely careful when using material in historical biographies. Do extensive research in order to separate the historical facts from the author’s theories and expression thereof.

             Keep your notes and research and annotate your screenplay if you are including any public domain works or information in your screenplay; this may seem burdensome, but you will be grateful you did it if you are ever accused of copyright infringement, since you may have to provide it to prove your innocence. Furthermore, whoever produces your screenplay is going to purchase Errors and Omissions Insurance which, among other things, insures producers against copyright infringement law suits.   The insurance carrier may require an opinion letter from an attorney, who may request the annotated script from you. It is far easier to annotate a script as you write than to try to piece it together after the fact.

             You are not required to credit the source of your public domain materials. Notwithstanding, I recommend that you credit the author and work if your screenplay is an adaptation of it, or if your screenplay is based upon the work. You do not need to credit your research sources for facts, numbers and such.

Derivative Works

             You need to secure the author’s or publisher’s (“author/publisher”) permission if you want to adapt or write a screenplay based upon or inspired by another literary work, such as a book, play, magazine article, essay, etc. Do not take the risk of writing first and attempting to acquire rights afterwards. You are not only infringing copyright when you do this – you are also potentially wasting your time because the author/publisher of the literary work may refuse to let you acquire the rights you need to proceed. They do not always want to have their literary works adapted to the big screen and, even if they do, may prefer to do business with a studio, which is more likely to pay them hefty option fees and purchase prices.   If that is the case, it is best that you discover it up front before you invest your time.

             Copyright protection applies to that portion of a derivative work created by you, but not to the original work itself. If you adapt a book, your adaptation is protected by copyright, but you acquire no rights in the original materials from the underlying book. In other words, the characters, locations, dialogue, storyline and other elements from the book belong to its author/publisher. The same goes any for public domain facts you incorporate into your screenplay; they remain in the public domain while your expression of those facts is subject to copyright protection.    

            You acquire the rights to a literary work by entering into an “Option/Purchase Agreement” whereby you have the exclusive option to buy said literary work for a determined period of time. The Option/Purchase Agreement has two components: the Option Agreement (“Option”) itself states how much time you have to buy the literary work, and the purchase agreement includes the sale price and rights to be granted. You purchase the literary work by exercising the Option and paying the purchase price prior to the Option’s expiration date. You do not actually purchase the literary work until the commencement of principal photography – when you know that the picture is being produced.

             Options usually run in one year increments (“option period(s)”) and can have one or more extensions. I recommend a one year initial option period with a minimum of two one year extension periods. You pay an “option fee” at the commencement of each option period. Option fees are considered advances and, therefore, may be applicable against the purchase price. If you have paid $20,000 in applicable option fees, when you exercise the Option, you pay $80,000 of the total $100,000 purchase price. If you do not make the option fees applicable, then you would pay the full purchase price irrespective of the option fees paid. The Option expires if you let it lapse due to non-payment of the applicable option fee, so be sure to extend the Option one week prior to its expiration; to avoid any mishaps mail the option fee and notice of extension via registered mail return receipt requested.

             My clients have paid option fees as low as $1 and as high as $25,000 per option period. Expect to deplete your bank account if you are entering into an Option/Purchase Agreement on behalf of a best- selling book or play, or a magazine article or news story from a well known publication. Authors/publishers in the know expect an option fee equal to 10% of the purchase price. Some may consider this an industry standard – I do not because this is a point of negotiation versus a hard and fast rule. If you cannot afford to pay an option fee equal to 10% of the purchase price, then offer what you can pay, keeping in mind that you do not want to insult the author/publisher. Among other things, I may offer to make one or more of the option fees non-applicable if they are on the low end and it seems like they may be keeping the author/publisher from agreeing to the Option/Purchase Agreement. A “free” Option may be possible if you are acquiring a self-published or obscure book or play, or an article published in a relatively unknown publication. Notwithstanding that the Option is free, you should pay at least one dollar per option period so that the Option/Purchase Agreement does not fail for lack of consideration of some kind. “Consideration” is necessary for the formation of a binding contract – each party to the transaction needs to get a benefit.  

             The Option/Purchase Agreement for the literary work upon which you are basing your screenplay will determine whether you can sell your creation upon its completion. You will not be able to sell your screenplay if you go about it incorrectly or offer too high a purchase price. I advise that you hire an attorney to help you negotiate and draft an Option/Purchase Agreement that provides you with all the rights you need to deliver to your screenplay’s buyer.

Remakes and Sequels Based on Pre-Existing Pictures

             Do not write a screenplay based on a previously released motion picture or television show. This is not only copyright infringement – it is a monumental waste of your time! Under no uncertain terms will the motion picture studio or television network (“studio/network”) which produced the original ever give you permission to write a sequel or remake based on their original motion picture or television show; they do not let third parties acquire an interest in their library. When the studio/network is ready, it will develop the remake or sequel in-house, with writers of their own choosing. Delete the screenplay if you have already written it, since you cannot use it as a writing sample or share it with anyone due to copyright infringement.   Do not waste your money hiring an attorney to attempt to make a submission for you since the studio/network always responds with a resounding, “no.” They do not want to read your screenplay because they do not want to risk you filing a copyright infringement, unjust enrichment, and/or breach of implied contract law suit against them, when they produce a remake or sequel that contains elements that were in your submitted screenplay. This happened to MGM and Sylvester Stallone when a writer submitted his version of “Rocky IV” to them. MGM and Sylvester Stallone prevailed over the writer because the “Rocky” characters were entitled to copyright protection.

LIFE STORIES

“Private Persons”

             Every living person has the “right of privacy” – the right to be left alone and the right to keep private facts from the public. As a consequence thereof, you need to enter into a Life Story Agreement if the subject of your screenplay is a “private person” whose story has not been in the national news and, hence, is not known by the general public. Do not commence writing until you have entered into a Life Story Agreement. The only exception here is if you are writing about a deceased person, since the right of privacy terminates upon death.

             A Life Story Agreement is an agreement whereby the person whose life story you are writing (the “subject” of your screenplay) gives you permission to base your screenplay on his/her life story. It also allows your screenplay’s buyer to produce and distribute the picture based on your screenplay. The Life Story Agreement is an Option/Purchase Agreement which takes into account the personal nature of the rights being acquired. The option fee and purchase price for a private person’s Life Story Agreement are generally on the low end, because the life story is arguably not in big demand. Both tend to be far lower than the subject usually expects. It is more likely that the purchase price will be in the $80,000 range than the $1 million – the sum a subject asked of a client of mine a couple of years ago. You will not be able to find a buyer for your screenplay if you overpay for the rights, so that is something to always keep in mind.

             The Life Story Agreement will give you access to the subject’s life story via any news clippings, journals, and interviews. Do not be surprised if the subject wants “final approval” of the screenplay. You can grant the subject the right to comment on a draft of your screenplay, but never final approval. The former is just feedback, the latter means that the subject can stop you from producing any version of the screenplay he/she does not like. Needless-to-say, you never give a subject final approval of the screenplay.

             The Life Story Agreement conveys upon you the right to write the screenplay, but it does not give you permission to defame or portray the subject of your screenplay in a false light without legal repercussions. You can take certain dramatic license with the story, but cannot depict the subject in an untrue and in an inaccurate manner – especially one that would be offensive or damaging to him/her.   Let the subject comment on the screenplay so that you know where you have potential issues. It is much easier and cost efficient to fix the issues during the writing process than to address them in a court of law. Note that defamation and false light are not the same thing: the former is making false statements that harm a person’s reputation and the latter is making untrue statements that depict a person in a false light and are offensive or cause the person embarrassment.

“Public Persons”

             Celebrities, politicians, and other persons in whom the general public has great interest are all considered “public persons” because they have disclosed their private facts and live so much of their lives out in the public. As a consequence, public persons have a more limited right of privacy than the private person, and have a lesser expectation of it.

             You have a lot of leeway to write about a politician because of the First Amendment and the public’s right and need to know about any individual running for, or in, political office.[8] You may disclose truthful facts about politicians, e.g., that a politician is taking bribes, is an alcoholic or drug addict, has cancer, etc. Limit disclosure to facts that impact the politician’s ability to do his/her job or how he/she carries out the responsibilities of office. You do not have the same berth where a living celebrity is concerned. If you want to avoid a costly judgment in favor of a celebrity, use facts that are already in the public consciousness, garnered from the likes of a trial transcript, news story, magazine article, biography, autobiography, television interviews, etc.

             In the category of public persons are criminals whose crimes have catapulted them to celebrity status. Casey Anthony, Amy Fisher, Ted Bundy, and David Berkowitz aka the Son of Sam are what I call “celebrity criminals.” The aforementioned have all had pictures produced about them, but not all entered into Life Story Agreements with the television networks that produced movies about them. In fact, two of the three networks that produced pictures about Amy Fisher, the “Long Island Lolita,” did so without a Life Story Agreement. You can write about a celebrity criminal as long as you stick to the facts disclosed in court during a trial and/or in the public domain.

             Notwithstanding, since the public person has a right to privacy, limited though it may be, I always recommend that you consult with an attorney and that you enter into a Life Story Agreement rather than proceed without one. In order to sell your screenplay, you are going to have to warrant and represent that you have not invaded anyone’s right of privacy, and will be required to agree to indemnify and hold harmless the producer if you breach that warranty and representation. This means that you have to reimburse the producer for any damages the producer suffers due to your breach of the right of privacy via your screenplay. The Life Story Agreement greatly eliminates the risk of litigation and a costly judgment, as long as you do not defame or portray your subject in a false light (there has to be an element of maliciousness where celebrities are concerned). The producer and distributor may want the assurances and rights granted via the Life Story Agreement and may make it a condition of financing and distribution. Also, you may want the public person’s cooperation either because you may want to interview him/her to gain access to information that was not previously disclosed and/or need his/her help in securing any releases from other individuals integral to the life story.

The Right of Publicity

             Every person, be they private or public, also has the “right of publicity,” which gives everyone the right to control the commercial exploitation of their name, likeness, voice, and any other identifying aspect of their persona. In other words, your screenplay’s producer cannot advertise and distribute a picture based on your screenplay unless you acquired the subject’s right of publicity. This is best done via a Life Story Agreement, which grants the buyer the right to use the subject’s, name, voice and likeness to produce, advertise, and distribute the picture.  

             Also, though the right of privacy terminates at death, the right of publicity does not always because state law determines whether the right dies or survives. For example, in New York, the right of publicity is extinguished at death for persons domiciled there[9] and, as per California statute, the right of publicity is a descendible property right that survives death by 50-70 years (for persons who died there prior to 1985).[10] You need to know where the subject of your screenplay died in order to ascertain whether the right of publicity ended with, or outlived, your subject’s life.

             The above is an excerpt from the Hollywood Screenwriting Directory (2014) which you may purchase at http://www.writersstore.com/hollywood-screenwriting-directory/. The remainder of the chapter includes the following: Writing with a Partner (Collaboration Agreements), Original Fictional Screenplays, Screenplays based on Public Domain Material, Derivative Works, Remakes and Sequels Based on Pre-Existing Pictures, Writing the Life Story (Public versus Private Persons, the Right of Privacy, the Right of Publicity), Signing with an Agent or Manager, Shopping and Submissions, Protecting Your Ideas and Screenplays, Selling your Screenplay (the Option/Purchase Agreement), Getting Paid to Write, Becoming a WGA Member, and, Hiring an Attorney.

www.writersstore.com/hollywood-screenwriting-directory/

             The above is not a complete review of the subject matter. You should consult with an attorney if you have questions, need additional information, or require legal representation.

Dinah Perez is available for consultation and legal representation. She may be reached by phone at (323) 935-7955, via her website at www.dinahperezlaw.com, or email at dinahperezlaw@gmail.com.

 
Sources:

[1] 17 U.S.C. §302.

[2] 17 U.S.C. §102

[3] 17 U.S.C. §102.

[4] 17 U.S.C. §107.

[5] U.S. Copyright Office, Copyright Basics Circular 1, Library of Congress, May 2012.

[6] 17 U.S.C. §107.

[7] http://www.unc.edu/~unclng/public-d.htm

[8] Michael C. Donaldson, Clearance & Copyright (Silman James Press 2008), 332-335.

[9] N.Y. CVR. LAW § 50 and 51.

[10] CAL. CIV. CODE §3344.1