Protecting your Script/Screenplay

[FantasySciFi]

A friend of mine was talking to me the other day about protecting screenplays. I thought it might be good just to share some basic information.

For new screenwriters (and old!) it's important to DOCUMENT and REGISTER your work. While there has always been incidents of "idea theft", it is usually been confined to less established businesses. Unfortunately, there has been a number of recent cases that have thrown question to the practices of larger studios. This may be more of the result of specific individuals, but it negatively impacts the whole industry. As a writer, you need to take steps to protect your own work. I thought I'd share a few recent cases. There may be more, but these writers took steps to document their efforts so they were able to move forward with their litigation for copyright, intellectual property and contract violations.

3/24/11 Disney/Pixar sued over Infringement for 'Cars' by Screenwriter
Jake Mandeville-Anthony v. The Walt Disney Company, CV11-02137 VBF (C.D. Cal. 2011)

In essence, in 1992, he submitted storyboards, sketches, sample script and treatment to Disney and individuals at LucasFilm Ltd. He met with an employee at LucasFilm who later moved to Pixar according to the report. When "Cars" was released by Disney/Pixar, it had several characters both named and in appearance to his earlier submitted work. Several features of the story/treatment also were present.

In August 2011, the Court rejected the screenwriter's claim stating that "the protectable elements of the parties’ respective works are dissimilar in plot, sequence of events, pace, themes, dialogue, mood, setting, and characters." It further highlighted that under California Civil Code, there is a statute of limitations for filing for a breach of contract, two years [Cal. Code Civ. Pro. 339(1)]. If he had filed sooner about the breach of contract upon the original release in 2006, he may have won barring the copyright concern.

2010, Montz vs. Ghost Hunters/Pilgrim Films
Montz v. Pilgrim Films & Television, Inc., __ F.3d __ (9th Cir. 2011) (en banc)
Montz v. Pilgrim Films & Television, Inc., 606 F.3d 1153 (9th Cir. 2010)

In this case, a paranormal investigator came up with a television show idea which he pitched to several studios including NBC and SciFi which indicated they were not interested. Later, SciFi comes out with "Ghost Hunters". Montz filed a suit alleging copyright infringement, breach of contract, and several other violations. The court initially dismissed the charges but then decided to revisit the decision. In reversing their decision, they cite Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956). While a television/movie idea cannot be copyrighted, the concept can be stolen if there is an implied contract to pay the writer if used.

1. When you write your screenplay, keep copies of your drafts. Your computer will automatically create a date stamp. I will save every few revisions as a separate draft to document the crafting.

2. When you are satisfied and ready to actually submit, go through the steps of copyright registration. Registering with the Writer's Guild provides some protection but your saving grace will be the documented drafts you've created that show the history of your writing.

3. When you submit or pitch the idea, document to whom and when. As in the above cases, you are never certain when that information may be critical. Pitchfests tend to have the worst reputation for having ideas "creatively acquired". Knowing who you pitch to can help provide some basis for an implied contract of confidence and implied contract in fact, depending on the discussions.

It doesn't help to be paranoid about submitting your material. These cases are high profile but emphasize the importance of documenting. It's also important to realize that some story ideas and elements ARE common; not everyone is stealing ideas. Just realize that a few extra steps upfront give you some protection.

 

[Sucramdoow]

I've heard of the registered post method. But I don't know how much that will stand up if it goes to court.

 

[Morris]

You can't copyright an idea.

 

[FantasySciFi]

I've heard of the registered post method. But I don't know how much that will stand up if it goes to court.

** I am not offering legal advice. If you have specific questions about intellectual property, check with someone who practices intellectual property law in your location. This is based on my understanding and training on US copyright as it applies media. While most countries have adopted the new copyright provisions, each country has different provisions for enforcement. So please check with your country to see the specifics regarding copyright. **

"Poor Man's Copyright" is generally NOT PROTECTION. If you have a script that you really believe in, it is worth the small cost (USD 30.00) to get the copyright which lasts for a lifetime or the cost of registering it. There are those who ask (and argue) about the value of each.

To prove copyright infringement, you need to show that (1) you are the creator, (2) the other person used it to profit without your consent, and (3) the use was not within permited fair use.

Registration is NOT PROOF of authorship only rights ownership. Remember, you need to transfer copyright when you sell/option your script. Your draft history documents your process of creation. When you register, you are stating that you are the creator but may be called upon to prove it.

There are situations where your work may be used WITHOUT your consent. If it is being reviewed or parodied, it can fall under fair use guidelines. In some cases, under the Digital Millenium Copyright Act (DMCA), archival copies may be made provided the original work was properly purchased. Personal use becomes a bit more problematic. Here it is important to document who and where you pitch/submit your document.

While copyright is conferred upon creation nowadays, in the past the rules were more structured. So you can legitimately put "(c) 2012, First M. Lastname" on your script. However, that doesn't provide much protection if you don't document the creation.

Copyright registration USED TO BE SLOW. You had to mail the typed copy to the Library of Congress along with additional paperwork and wait to receive your confirmation. This process could take up to two months or more. The Writer's Guild sped up the process for its members. While not providing the same level of protection of rights, it recognized that most authors were shopping out their work. It provided a proof of registration valid for five years. The turnaround was faster. It also recognized that if optioned or bought, the writer would be transferring the copyright anyway. Two options would typically run about three years. At that time, the writer could opt to fully copyright the work. The other feature of WGA registration is that modest modifications to the script were possible. With copyright, you are basically copyrighting the piece as submitted. Any substantive changes require a new copyright. So writers would (and do) often use WGA registration to do a quick protection to get the script out. They can make changes. And when finally satisfied, they can get the copyright.

Both Copyright registration and WGA registration are now online. WGA registration is easy. Copyright registration involves a bit more work but is more powerful. Many established writer/directors prefer to just copyright everything. This may be needed several times in the course of a production which can be expensive but offers extended protections. Many of the writers I know prefer to use WGA registration. They are looking to option/sell the script within the five years with the flexibility of making minor changes. I can see it from both sides. If you are producing/directing your own movie, copyright is a better option. Since I tend to document my work, I feel comfortable using the WGA for works I intend to move along quickly. Both registrations cost about the same. It depends largely on your particular needs. HOWEVER, if you were to file for copyright infringement at the federal level, you would need proof of Copyright registration. In general, Copyright Registration is the best option.

If I write a short, I might go with the WGA to get it optioned. If I write a feature, I'd likely copyright it. If I'm going to have the feature critiqued, I might register it with the WGA just so I can have intermediate protection knowing that I will likely make substantive revisions based on the feedback. Your literary agent may recommend you copyright everything. In perspective, $30 or $60 upfront against a $7500 option or more later is a wise investment.

Just mailing it to yourself has no validity. As easy as it is to steam open an envelope, what would it really prove? You are better served by saving computer-time stamped drafts written to CD (which also gets time stamped irreversibly!). Registration is a solid move when you start sending it out for review.

Copyright is a double edged sword, especially in work for hire. In the case of a work for hire, you cannot copyright your material. This is particularly common for the motion picture industry. The Writers Guild has established its Minimum Basic Agreement which leads to a "separation of rights" for qualified professional writers. Under this agreement, the copyright belongs to the employer but certain rights are returned to the author in the contract. This offers some protections for the writer. The link takes you to the full document. While a work-for-hire author cannot apply for copyright, most studios do recognize the MBA.

Recall the recently filed lawsuit with Eric Ryder vs James Cameron. Eric Ryder wrote and received approval for a script "KRZ 2068" while an employee at Lightstorm Entertainment owned by Cameron. According to his statement it was about "an environmentally themed 3-D epic about a corporation's colonization and plundering of a distant moon's lush and wondrous natural setting." In his script, the "corporate spy" falls in love with the alien and becomes their leader in a revolt against the mining corporation. After working on the project for two years in 1999, Cameron's company pulled the plug. Then "Avatar" appears several years later with many identical themes. Again, rather than pursuing copyright infringement (work-for-hire), he's pursuing breach of implied contract and similar issues. Sometimes it's not about copyright but the contract of compensating the idea's creator. Cameron alleges he started writing "Avatar" before 1999. The proof will be in the documentation. And even if it's not a question of 'idea', it will come down to determining if there was a breach of implied contract for a substantially similar body of work.

 

[jax_rox]

I'll make thr same disclaimer as above: I'm not a lawyer, especially not a specialist entertainment lawyer and my words should not be taken as gospel, not relied upon, nor used s a guide to making decisions about your own work. You should always consult a specialist entertainment lawyer.
My law knowledge comes from my father's long background as a journalist, and also my law studies as part of my own journalism minor whilst I was attending film school.

To my knowledge, artistic works are automatically copyrighted as soon as you make them.

If you paint a painting, then someone copies it exactly and you sue them, you'll win as long as you can prove that yours was done first. It doesn't necessarily need to be registered with anyone.

Registering with the WGA will give you some help, but even if someone by chance happens to write the exact same (or even very similar script to you), if you wrote yours in 2010 and registered it in 2011, and the other guy wrote his in 1992 and registered it in 2012, as long as he can prove with records that he wrote it in 1992, then he'll win, regardless of when (or if) it was registered.

You see this a lot with songs - both artists hold their own implied copyright on each of their songs, but they can still sue each other if they believe the song copies from their own.

Copyright only holds to your specific imagining of an idea - you can't copyright the idea itself, so it really depends on how similar the script and the characters etc are.

Take for example a photographer - He can go and take a photo of the Grand Canyon. I could then go and stand in the same spot and get a similar photo. He can't sue me for that, as he hold no copyright over the location, or what have you. If I, however, decided I couldn't be bothered going to the Grand Canyon and just used his photo for my work, he could sue me.

The registered post method does not work and will not hold up in court AFAIK.

As a more general note on copyright, at production you need to get copyright clearances from brands, locations, songwriters etc.
I know some Producer's who get frustrated when they read:

'The Rolling Stones blares on the radio. A Corvette speeds down the highway. In the background, we see the LA courthouse. MIKE sits in the front seat wearing a t-shirt with NIKE emblazened on it in large lettering. He picks up a can of coke and sips from it.'

In a couple lines, you're making them source 5 different copyright releases. If it's important to the story (ie, mike's a sports junkie who only ever wears Nike branded clothing and has to come to terms with wearing another brand when he runs out of money) then keep it in, but it's much better (and easier for Production) to write:

'70's rock music plays on the radio. A flashy sports car speeds down the highway. In the background, we see large courthouses and regal buildings. MIKE sits in front seat, his shirt covered with a large brand name. He lifts a can of soda to his lips and then starts sipping from it.'

Especially because then different, perhaps cheaper copyrights can be sourced - ie, we'll get cheaper library music that soudns like rolling stones, we won't show the corvette logo, we'll find buildings that will sign our releases for free, we'll get our Prod Designer to come up with our own brand name and soda can..

 

[FantasySciFi]

You can't copyright an idea.

You're correct, but an idea can be 'stolen' if it meets certain criteria as referenced in the link above:

"An idea for a TV show cannot be copyrighted; however, the concept can still be stolen if there’s a violation of the implied-in-fact contract to pay the submitter for using it. Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257 (1956) (California Supreme Court held that, given the entertainment industry norms, plaintiff had alleged an implied-in-fact contract to pay for use of his pitched idea for a movie inspired by the “life story of Floyd Collins who was trapped [in a cave] and made sensational news for two weeks.”)

The Desny innovation serves to give some protection for those who wish to find an outlet for creative concepts and ideas but with the understanding that they are not being given away for free. Without such legal protection, potentially valuable creative sources would be left with very little protection in a dog-eat-dog business. See Woody Allen, CRIMES AND MISDEMEANORS (Orion Pictures 1989) (“Show business is worse than dog-eat-dog. It’s dog-doesn’t-return-other-dog’s-phone-calls.”).

The majority opinion disagreed with the dissent’s distinction between those who seek payment for the idea submission as opposed to those who seek a “piece of the action and contractual agreement on the terms of the defendant’s use.” Further, the Court found that the breach of confidence claim also survived copyright preemption because “the duty of trust or confidential relationship between the parties, [is] an extra element that makes it qualitatively different from a copyright claim.”

There aren't many unscrupulous directors and producers out there, but there are some. Some don't even realize that what they are doing is wrong. The point is, that if you profit from someone else's idea, they deserve to be compensated fairly. That is the purpose of copyright and contract law. As a protection, writers need to document their creations. If a producer hears an idea s/he likes, they need to pay for it if they plan to profit from it. At a pitchfest, writers pay to sell their ideas, not give them away for free. A rejection implies that the story concept will not be used, not that it will be repurposed.

Once the idea has been written as a treatment or script that is physically available. During a pitch, it becomes a property that can be purchased or optioned. After that, the purchaser has the option to re-purpose the concept as s/he pleases. To choose to use the idea without paying is "conversion". To have a writer create a work and then use the idea without compensation is a breach of an implied contract. Using a substantial portion of someone's work may be an infringement of copyright depending on the degree of disclosure and relationship.

For shorts and most indie films, this isn't an issue. You're making your own film. I've never heard of someone stealing an idea for a short. There's no commercial advantage. For those who will be submitting work to others to produce (feature or television), it is a concern to bear in mind.

 

[jax_rox]

You're correct, but an idea can be 'stolen' if it meets certain criteria as referenced in the link above:

"An idea for a TV show cannot be copyrighted; however, the concept can still be stolen if there’s a violation of the implied-in-fact contract to pay the submitter for using it.

Also this. If I hired someone at $20/hr to write me a script, then after two days said actualy I'm not making a movie right now, thanks for your ideas but we don't need you anymore, then went and made a movie based on his idea (especially if it made $100million ) he would have grounds to take action against me.

If, however, the only similarities were perhaps the main character's name, or the country in which the story took place, he wuold have a much harder time trying to take action.

 

[arrodiii]

Great advice - thanks, FSF

 

[petercarr]

I was browsing posts and came across your question re. protecting your screenplay via registered mail-will it hold up in court?.

The answer is no. Mailing your script to yourself certainly does help establish a date you created the script but wont protect it.

There is no 100% protection guarantee. Everything has been written and all that makes it 'original' is what 'vehicle' the writer and/or creator has used to develop the synopsis. I've worked professionally in Canada & the UK's film and television production industries for 28 years on various US / UK and Canadian feature film & television series. Series I've created, developed and written have been optioned and three of them produced by major US studios.

If you are worried about your story being, for lack of a better term, 'ripped-off', the only documentation(s) that hold up in a court of law is a Notice of Copyright and a script / synopsis / treatment or what ever you have registration document from The Writers Guild of America. I would never recommend anyone submit their script/synopsis/treatment to any producer/production company/agent/competition or festival without first registering it with the WGA or copyright.
Here are links for Screenplay Copyright in the UK:
Intellectual Property Office
Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ
Tel: 0300 300 2000
www.ipo.gov.uk

http://www.wcauk.com/copyright-work

Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: psi@nationalarchives.gsi.gov.uk.

http://www.nationalarchives.gov.uk/doc/open-government-licence/

The Writers Guild of America's script/synopsis/treatment on-line registration address is: http://www.wgawregistry.org/webrss/

Let me know if this helps& if I can help you out in any other way please feel free to ask me!.

By the way, are you studying film or a film maker?. I got my BFA from Saint Martins College of Art & Design in London but that was waaaaayyyyyy back in 1987 (lol).

Peter Carr
Creative/Development Producer
Vancouver,BC,Canada