“Asked and Answered” will be a new occasional feature of this blog. From time to time, I'll answer some of the most frequently asked questions I receive in my practice.
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: Greetings. I am unclear as to what exactly a copyright protects regarding a screenplay. My basic understanding is that it protects only the expression of an idea and the characters. Could you please elaborate on this? Also, how could a poor man contest an alleged copyright infringement when, presumably, the other side would have money?
A: Your “basic understanding” is correct. Copyright law protects the original expression of ideas against unauthorized copying. More specifically, copyright is actually a ‘bundle of rights'. Only the owner of a copyright may do or authorize:
1. The making of copies of the work
2. the distribution of copies of the work
3. the public performance of the work
4. the public display of the work
5. the making of ‘derivative works' based on the original.
Characters may be protected only insofar as they are original creations of the author, and not generic. Ideas and facts are not entitled to copyright protection.
The second part of this question underscores the importance of copyright registration. Copyright protection exists from the moment the work is ‘fixed' in a tangible form, but unless the copyright is registered, the author's remedies may be very limited.
If a work is properly registered with the U.S. Copyright office within 90 days of its first ‘publication' (essentially meaning distribution to third parties), the author may, in the event of an infringement action, be entitled to an award of attorneys' fees and so-called “Statutory Damages” of as much as $150,000 per infringement. So, by registering copyright early, an author preserves, at least theoretically, his ability to hire a lawyer to represent him, should the work be infringed.
If registration is delayed or non-existent, however, the author will be required to prove actual damages, and will bear the cost of his own attorneys' fees.
Readers of this column have no-doubt heard about the so-called “poor-man's copyright”, obtained by placing a copy of the work in a self-addressed envelope and mailing it to yourself. Sadly, this provides little protection against infringement and similarly small evidentiary value in establishing just when the work was created. In fact, it is possible to mail an unsealed envelope, obtaining a postmark prior to enclosing anything inside. So, the postmarked envelope serves as “proof” of very little indeed.
Similarly, readers may have heard that registering with the Writers Guild of America is ‘just as good' as copyright registration. This too is a fallacy. While WGA registration provides evidence of the timeline, it does nothing to perfect the author's right to sue, obtain attorney's fees, or statutory damages.
Simply put, there's really no substitute for copyright registration. Fortunately, the process is simple and relatively inexpensive. Visit http://copyright.gov for more information and to register online.
Be warned, however, that registration will take some time. Once you file the application, it's not unusual for the government to take more than a year to process things.