Monthly Archives: December 2009

Who owns a play that’s partly improvised?

Last week, a colleague asked me the following question:<div xmlns:cc="http://creativecommons.org/ns#" about="http://www.flickr.com/photos/mshades/151878629/"><a rel="cc:attributionURL" href=

If an actor improvises lines in a play, and the “author”/director of the play later wishes to write a screenplay which incorporates the actor's improvised dialogue, does he have to obtain rights to that dialogue?  What is the written (or unwritten) rule regarding the incorporation of improvised dialogue … in this case, a large part of the character's dialogue in the work?

This is an interesting and common issue in the theatre business. It's actually pretty well established law in favor of the playwright.

Generally, the party who “fixes” the work is entitled to the copyright, unless there was an agreement that the work would be a Joint Work. (Joint Work must have been the INTENT of the parties at the time the work was created and fixed). If the director/playwright  “fixed” the work by recording it (either on paper, audio, or video), he owns the copyright.

Custom in the theatre industry (as evidenced by nearly every production agreement between a producer and a playwright) is that the playwright owns any and all changes to the material made or suggested by the director, producer, actors, etc. (Unlike in the film biz, the Playwright has the absolute right, in his/her sole discretion, to approve or reject changes to the play). (see, for an example, the Dramatists Guild Approved Production Contract(s))

Here, the Director is also the playwright, so I think, absent an agreement to the contrary, the Director/author owns the copyright in the play, and therefore the right to adapt it as a screenplay.

This issue also sometimes arises in cases dealing with so-called “company created works”, where a theatre company comes together and collaboratively creates a show. Who gets the copyright? The company? The person who sets the project in motion, acting as ‘author' in selecting the various contributions, etc.?

In the case of Erickson v. Trinity Theatre, Inc., 13 F. 3d 1061 , 7th Cir. 1994, this issue was resolved in favor of the playwright. Notwithstanding the collaborative nature of the process, in that case, the playwright held the copyright, and the theatre company was enjoined from continuing to present the show(s) (and videos embodying them) after her departure from the company.

See also the RENT case ( Thomson v. Larson, 147 F. 3d 195, 2nd Cir. 1998) in which the dramaturg claimed (unsuccessfully) that she was a joint-author.

And see, Childress v. Taylor, 945 F.2d 500 (2d Cir.1991) which establishes the test for Joint Authorship. (the mere fact of collaboration alone is not sufficient. The parties must each contribute independently copyrightable material, and must manifest an intent that the work be held jointly)

Here in the 9th Circuit, the question of joint authorship arose in a case dealing with the ‘authorship' of the Malcolm X film: Aalmuhammed v. Lee, 202 F. 3d 1227 – US: Court of Appeals, 9th Cir 2000 (Summary Judgment for Defendants, finding that no material issue of fact existed with regard to Defendants' intent that plaintiff NOT be a joint author).

So, where works are created as a result of collaborative improvisational efforts of the actors, working with a director, writer, dramaturg, and others, the usual expectation is that the playwright will own the rights to the material created.    To a certain extent, well written contracts and business practices can change this result, but they must be in place prior to the creation of the work.  If you're working with others on any creative venture, it's important to handle issues of ownership, control and division of revenues early.  The help of an experienced theatre and entertainment lawyer  is invaluable in such situations.

Asked and Answered: Protecting your material when submitting to actors

Q: I recently met someone who connects writers to various well-known actors.  He is neither an agent or a literary manager, but has worked on several fims in various producing capacities.   What steps should I take to protect my script before giving it to this person to pass on to an actor?  Should I ask him if he would sign a non-disclosure agreement or some other type of agreement?    Is having the script registered with the WGA enough protection or should I also copyright the script?

A: The most important steps you can take to protect your script are:  (1)   register the copyright; (2) choose your business associates very carefully, and; (3) create a paper trail whenever you submit the material to anyone

Copyright registration

Registration with the WGA is nice, but it is NOT a substitute for copyright registration. WGA registration DOES provide some evidence of the timeline (e.g., this script existed in this form, on this date).  Copyright registration does that just as well, and  much more. In the unfortunate event that you need to sue somebody for copyright infringement,  you'll be required to register the copyright anyway, and if you did so within 90 days of the first ‘publication' of the work (i.e., first time circulated to others), you'll stand a better chance of winning an award of statutory damages and attorneys' fees.  Without the early registration, you'll be hard pressed to find an attorney to represent you in your suit against the infringer.

Choose business associates wisely

While a nondisclosure agreement WOULD be a great idea, in practice, it's just not done, and asking for one will brand you as an amateur.    So, if you're not going to have an NDA,  make sure you're dealing with someone you can trust.  Go ahead, check out the person's reputation before you hand over your material.    I can't count the number of times I've had calls from writers who've had material misappropriated by ‘producers'  whose reputations should have been a red flag.  Nowadays a simple google search can reveal a great deal about a person.  Why not investigate?   A person who ‘connects  writers to..actors” is usually either a producer (look for credits) or an Agent (Agents must be licensed).  So, if your contact is neither, I'd advise caution.  What's in it for this person?  Have you discussed this?

Create a paper trail

OK, so you won't have an NDA, but that doesn't mean you can't do something to  support the notion that there's some ‘agreement' or ‘confidential relationship' in place is important.  Your query  and cover letters should be written as carefully as your script.   They should make it exceedingly clear that your submitting the material with the intention that you'll be paid if the recipient wishes to exploit it or the ideas it contains.    If possible, try to get some kind of acknowledgement (even if it's just an email that says “I got it”).

It'll be hard to do this when the ultimate recipient is the Actor, and the producer is just a go-between… so ultimately, it comes down to trust, so being sure you're dealing with someone of good character can make all the difference.

Finally, have an experienced entertainment attorney available to watch out for you at the first sign of trouble.
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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L.A. To get a film commission? Didn’t we already have one?

I've just read that L.A. city council member Richard Alarcon has asked city officials to report on the steps needed to create a film commission to persuade production companies to shoot in L.A.

I'm stunned that the city, historically home to the TV and Movie industries, hadn't already had such a commission. in the last 13 years, according to statistics, production in the region has dropped by more than 50%, as producers sought more favorable labor rates, locations  and tax incentives.

Why, I wonder, has L.A. waited so long to take this step to deal with runaway production?  Most successful businesses know that existing customers are the most important asset there is. why hasn't the city adopted this view toward one of its largest and most influential industries?

Better late than never, I suppose.
I just hope it's not too late.

Smoking Bans and the First Amendment…free speech goes up in smoke in Colorado.

The Colorado Supreme Court has dealt another blow to the First Amendment, holding that public health concerns trump the First Amendment in cases involving bans on smoking. Curious Theatre v. Colorado Department of Health and Public Environment The Colorado Clean Indoor Air Act (which went into effect in 2006) prohibits indoor smoking of tobacco and… Continue Reading

The year is ending. How’s your Corporation or LLC?

As year’s end approaches, it’s a good time to consider dissolving and winding-up the affairs of unused corporations and Limited Liability Companies, thereby avoiding taxation for 2010. Similarly, if you’re considering starting a new corporation or LLC, you may wish to realize the expenses associated with corporate start up in 2009 by getting things underway… Continue Reading

ALERT: Don’t use work email to communicate with your personal attorney. You may waive Attorney-Client privilege.

I‘ve just read a case out of the Federal Court in Idaho (Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009)) which held that emails sent by a non-party to her attorney using a work computer were NOT protected by the attorney-client privilege. The court further held that emails… Continue Reading

Highly Recommended

Gordon advised and negotiated a deal between our production company and another major production company/studio. Only through his expertise and attention to detail did we avoid some costly mistakes. Will be using Gordon’s services in the near future. Highly Recommended. A.J. Carter, Producer Continue Reading

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