Q:   I am currently researching a story that occurred in the 1700s in France. I have used a number of different sources to put together a time-line of  the heroine’s life, from which I have plotted out the story. My question is, do I need to obtain any rights, given that the story occurred more than 200 years ago and I am simply using the research to determine factual events?

Also, once I have written the script, I am hoping to enter it into a screenplay competition. Am I able to describe it as an original work even though it is based on a true story, given that I have come up with the structure and created composite characters and the like?

A:  The short answer is:  “Probably Not”.  Given that the persons depicted in the story have been dead for more than 100 years, it is unlikely that anybody could  succeed in bringing a lawsuit against you for telling the story.  Of course, I’m not familiar with the laws of every jurisdiction, and it’s possible that France or some other country has a peculiar law that might give rise to a lawsuit, so it’s worth having an attorney research the situation a bit… but, basing your story on a person who lived hundreds of years ago, and with the events corroborated from multiple sources is about as safe as you can get when writing about true people and events.

It’s probably appropriate to characterize your work as an original screenplay, but you should also be clear that it’s ‘based on the life of…’ or ‘based on true events…’.  If you fail to disclose this, you might find yourself disqualified from competition, or worse, refunding the prize if you’re later found out.  Full disclosure is usually the best approach.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


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Well, this is often very attractive to the client, as it helps them climb the showbiz food chain.  In fact, many folks in the entertainment industry view credit as more important than compensation, in the short run.  By taking a ‘higher’ credit, they’re establishing precedent, so their next job can be at the same, improved credit and they can earn a more appropriate fee.

But accepting a producing credit is not without its perils.  In preparing to teach my Theater Law course, I was reminded of a case in which a party who bargained for “producer credit” and got much more than he bargained for… a lawsuit.

In Redgrave v Stuart Thomson Productions (NY, 1999, unpublished) ,  Actor Corin Redgrave was  injured when exiting the stage in the dark.  He sued the producers and the  ‘General Manager’ of the  of the show for damages.

(The General Manager is the producer’s front-line operative in the production of the show.  Responsible for the day-to-day administration  of the production, the GM will, in consultation with the Producer(s),  of course,  supervise  the preparation of a budget for the show, along with the activities of the accountants, press agent, Company Manager, box-office,  advertising, marketing, promotions, contract negotiations, staffing and personnel matters, and any other business matters that may arise.)

You see, Thomson had, in addition to his fees for General Management services, received a co-producer credit for the play as well.     So, in ruling on Thomson’s Motion for Summary Judgment, the Court refused to dismiss the case because there was  an issue of fact as to whether  Thomson’s credit made him a partner in the production, and therefore liable for Redrgrave’s injuries.

So, in evaluating an offer that includes a producer credit in lieu of some or all of the compensation a party would otherwise seek, it’s important to consider not just the career benefit, but also the risk involved with being credited as a producer.

This summer, ANMT has undertaken  an ambitious  schedule of programming.  If you’re a theatre lover, or a creator of theatrical material, this means that great opportunities abound.

• 38 Days of New Musicals at the NoHo Arts Center this summer features 38 days of productions, workshops, concerts, and conferences all celebrating new musicals! July 16 through August 22.     The summer starts off with:
  • “40 is the New 15″ – our full scale production of the hit show we presented as a workshop last Summer., Opening July 16th, at 8:00 pm., and
  • “Aging Out” – a brand new musical workshop production Opens Wed. July 21
• Musical Theatre Summer Bootcamp Crash courses for writers, actors, and producers.  Runs July 11 through Aug. 22.
• Biz of the Musical Theatre Biz Conference features producers, directors, artistic directors, writers, agents, union reps, marketers, all talking about getting musicals produced.  Runs July 23-25
• Biz of the Musical Theatre Biz Conference for Actors August 6-8

I hope you’ll attend some (or get a Golden Ticket to  all) of these programs, and, please let me know what you think!

Q: Writers are encouraged to share their work with friends and family prior to submitting to publishing or film industry professionals. At what point does a family member’s or friend’s contribution considered sufficient to be considered collaboration? In other words, if a family member suggests changes that results in a substantial re-write, is that sufficient to warrant inclusion as co-author or collaborator? Should authors have an agreement with family members or friends who comment on their work to specify what types of contributions will result in a copyright and compensation arrangement?

A: In order for a work to become a “joint work” under copyright law, there are two elements that must be satisfied.  First, the contribution of each purported author must be independently copyrightable, and second, the parties (all of them) must have manifested the intent that the results and proceeds of their contributions would be a work of joint authorship.

In the situation where a friend, family member, agent, or even a producer suggests changes, offers ideas, or helps shape a concept, the test fails on the first prong… ideas, suggestions, and concepts are not copyrightable subject matter.  Similarly if the material isn’t “fixed” (i.e., written down or otherwise recorded in some medium), it is not copyrightable.

The second prong of the test really depends on the factual situation.  Again, where a friend makes suggestions, or a family member offers an idea, it’s unlikely that any of the parties have the intent to be treated as co-authors or collaborators.  In most of the cases where joint authorship is found, the required intent comes from shared credit.

So, once you agree to give a shared or courtesy credit to someone who offers input, you open the door to the possibility that you’ll have to share ownership of the material, and the money that it generates.

Of course, the best practice would be either to NOT accept or incorporate input from friends and family.  The next best approach is to very clearly establish that it is and will remain YOUR script, and that you won’t be sharing any of the proceeds from its exploitation.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

Q: I’ve sent my script to an agency and have got response they wanna represent me. The CEO of agency advices to do grammar edit and to change the title of the script.
I’ve registered my rights with original title in WGA and Copyright as well. The question is if I change the title or agree to change the title what happens with my rights?

A: correcting grammar and changing the title of your script will not impact your ownership of the copyright in the work. It might be worthwhile to either register the copyright in the newly titled, corrected work, or file an amendment to your existing copyright registration to reflect the changed title, and just to make sure that the chain of title to your work is clear and easy to follow.

If you make major, material changes to the story line, dialogue, or other components of the script, you’d do well to register the copyright in that new work, as well.

Consulting a lawyer is always a good idea in these situations, and doesn’t have to cost a great deal.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

In this Episode:

• Follow up on Hot News
• Viacom loses suit against YouTube.
• Hurt Locker Suit(s)
• Idea Theft
• Tribute Band Names
• Celebrity Rights of publicity

GET CLE CREDIT for this episode.

Go to  Entertainment Law Update podcast page

ANMT BOOTCAMP

First, this August, I’ll be teaching a 2-night workshop  entitled “HOW DOES A MUSICAL GET FINANCED?” as part of theAcademy for New Musical Theatre’s Musical Theatre Boot Camp. The course is offered over two evenings, August 10th and 17th, from 7-10pm at the  Academy’s facilities in North Hollywood.  I’ll share some nitty-gritty about the ways theatre producers raise the money they need to mount successful productions, and the legal paperwork required to make these financing structures a reality.

On August 13th, I’m also appearing on an “ask the entertainment attorneys” panel  at ANMT.  My colleagues and I will try to answer all of your questions about copyrights, collaborations, production agreements and anything else you throw at us.  I hope you can join us for an informative evening session.

ANMT is a wonderful organization that is dedicated to the development and promotion of new musical theatre projects.  I’m so committed to this nonprofit organization that I volunteer as a member (and current president) of its Board of Directors.  If you’d like more information about ANMT, I hope you’ll drop me a line.

If you’re looking for some good Theatre this summer, you owe it to yourself  to check out ANMT’s “38 Days of Musicals” .  Featuring something for everyone.  Last Summer’s workshop production of “40 is the new 15″ is being produced as a full-scale production, and we’re workshopping a new project called “Aging Out”, that asks “What happens to foster-care kids when they turn 18 and age out of the System?”

Theater Law class for attorneys seeking an LLM degree.

Then, starting this Fall, I’ll be teaching a course on Theater Law at Southwestern Law School’s Biederman Institute on Entertainment Law, in its new online LLM degree program.  The course covers all of the various aspects of practicing in the world of theater, which differs dramatically (pun intended) from working in film, television or other media.    If you’re an attorney interested in practicing entertainment law, you owe it to yourself to investigate this new online LLM.

Q: A playwright/filmmaker in the United Kingdom optioned a portion of my self published novel to develop into a play and short film. This playwright/filmmaker renewed the option twice over several years, with a final payment due at the end of the third year and a royalty/byline promised after production.  Both contracts were signed, witnessed and notarized with money exchanged and hundreds of e-mails/letters back and forth about the
progress, funding available, etc.

Last Jan. I received a letter stating there was no more money for the project and they wouldn’t be able to renew again when the option expired.

Is it true that if only a ‘few paragraphs’, title, and basic concept are used do the purchasers still have to honor the option and does it make a difference that I’m living here in the U.S. and they are in another country?   There was no specification in the contract as to how much or little they would use from the novel to make the play/film.

I recently learned that they received a grant and the project was made into a play/short film, and even entered into several contests. When I complained, they simply changed the original title, some of the character details and setting and told me they’d changed it so much they didn’t have to pay me any more money or give me credit, especially when they’d only ended up using such a ‘small amount of my novel in the end’. Though my novel has an ISBN and copyright dating back to 1998, they made the comment that ‘since I had self published they didn’t
consider me a ‘real writer’ anyway.

A: It’s not true that “a few paragraphs” can be used with impunity. Merely changing the title, setting or a few character details will not  render an unauthorized use non-infringing.  Where there has been a contractual relationship in the past, the existence of that contract is useful evidence in establishing that the defendants KNEW they’d need  permission to use the material (however much or little is the case).

The fact that a work is self-published is irrelevant.  The author of the work owns the copyright to his or her material, and using it without  consent constitutes copyright infringement.  Plain and simple.

The trouble is, where the alleged inf ringer is overseas,  suing  can be costly and inconvenient.   But, it is still worthwhile to consult with lawyers both here in the U.S. and in the infringer’s home country to determine whether a lawsuit is feasible and worthwhile.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Now, at first blush, this might seem a simple  issue, but it’s actually rather complex.  The parameters established by  copyright law itself, are inconsistent with the custom and practice in the theater industry,  which is also inconsistent with some of the typical contracts found in theater production projects.

Here’s what I mean.

Directors routinely include in their contracts a clause providing that the Director will own the “direction” of the show, and shall have the right to copyright it in his/her own name. This is true, certainly, in Directors who are members of the SDC, the union representing stage directors and choreographers, which means, that producers have agreed to this provision in the course of collective bargaining.

The trouble is, under copyright law, a copyrightable work created by an employee in the course and scope of his employment (as with a director hired to stage a production), belongs to the employer, rather than the employee.  This is one part  of the often-misunderstood “work made for hire” definition contained in the U.S. Copyright Act. (the other doesn’t apply to theatrical productions, so I’ll save that discussion for another post).

What complicates things even more, is that in theater, and under Copyright law, the playwright, composer and lyricist own the show, and in almost all cases, the contract for the production of a play or musical provides that any changes or additions to the show must be approved by those authors, and if so approved, become a part of the show, and therefore the authors’ property.  Since the production contract is  often signed before a director has been hired, isn’t the producer, simply by hiring a director under the terms of contract allowing the director to own the “direction” of the show, a breach of the production agreement between producer and authors?

Since the direction of a play is, necessarily based on the play itself, it is a “derivative work”, and therefore requires permission from the copyright holders  (i.e., the authors).   Moreover, the only way the direction of a show can even be eligible for copyright protection is if it is “fixed” in some tangible medium, and that fixation, too would require the authors’ permission.

Now, this whole issue hasn’t been litigated very much, and the few cases dealing with this issue have arisen out of “copycat” directors of subsequent productions.  In those cases, the rights to stage the show had been obtained from the authors, but under a license that didn’t make reference to the staging and direction of the performances.   In at least two cases (both involving the musical  Urinetown (which I wrote about here and here ), the producers of  the original production sued later productions that were too similar to the originals.

So,   I’m taking an informal poll.  Who  really should own the direction of the play or musical?  Should the director be entitled to a royalty if his/her staging is re-created by later licensees of the show?  Should the show’s authors benefit from the efforts of other creative team members in this way?  Should play publishers begin licensing the direction along with the book, music and lyrics?

Please let me know your views on this by commenting.  I’ll publish a summary of the results in a few weeks.

Q: I am new to the screenplay business.  I do not have an agent since I have not yet had anything produced and the agents that I have approached are not taking on new clients. I have written a screenplay that has been a contest winner. I have shopped around and have attracted some interest from producers. There has been discussion about re-writes and touch ups.  At what point is it appropriate to discuss the payment for the screenplay? Further to this, at what point does one seek legal advice?

A: Producers love to give “feedback” on scripts, and ask the writers to re-write, revise and tweak the script before they commit to purchasing the rights.  My usual advice is that writers NOT perform writing services for free, especially if the producer asking for such rewriting hasn’t yet purchased an option on the material.

The harsh reality, for many writers, though, is that producers won’t option material they feel needs work unless the writer is prepared to first make some changes.  Moreover, producers may want to see whether the writer is one they will want to work with.  So, writers often agree to perform a free rewrite or polish  in order to entice a producer to purchase an option.

What I recommend is that writers listen to all producers’ comments and notes with an open mind, and if something ‘feels’ worthwhile, go ahead and do a little rewriting, before resubmitting the material.  Otherwise, it’s appropriate to discuss business before doing the rewrite.
I’d only go-around like this once, though… after that, the producer should put some money where his/her mouth is.  Purchasing an option is not a tremendous capital outlay.  If a producer has some “skin in the game”, he’s more likely to push forward with the project, so don’t be shy about asking for a deal, payment, etc.

A producer who’s unwilling to pay for a script, rewrite, or whatever, is probably not that passionate about your material.  Moreover, if you’re going to spend time writing,  I think you’re better off writing another, new spec, rather than reworking your older material.

When should you seek legal advice? It’s never too early to establish a relationship with an entertainment lawyer.  Regardless,  don’t sign anything without getting some good advice.  Even the simplest looking document can be loaded with traps for the unwary.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse