Monthly Archives: February 2010

Asked & Answered: Should writer’s groups allow development execs as members?

Q:  I belong to a script development group in Hollywood.  The group recently let a development executive in as a member and are talking about letting in other producers and development executives.  I think this is a bad idea because even though they sign a non-disclosure agreement,  there is no paper trail for individual projects and the script ideas can not be protected.  The group argues it's a way to get their work seen and the producers/execs can give an industry perspective.  I think it is a naive and desperate grab at selling a script and if the members work was good enough to get representation, they woud not have to do this.  I am now considering resigning.  Am I being paranoid and is this a good idea?

A:  I'm of two minds about this issue.  I think you're right to consider resigning, if you're concerned that you can't trust the other members of your group… regardless who they may be.  There's nothing fundamentally riskier about having a development executive in your group, than having other writers seeing, hearing-about, and evaluating your work.  The fact is, other writers are just as capable of ‘borrowing' material from your work, and in-fact, may be more likely to do so.

I see the value, however, in having producers and execs involved in the group.  It IS a good idea that the members of such a group sign on to a code-of-conduct and, preferably,  a non-disclosure/non-circumvention agreement that has some legal teeth.   Maybe the thing to do is to keep meticulous records (establish the missing paper trail) so everybody knows who's present for presentations, discussions, etc., and what material is discussed.  This is really just a good idea anyway.

The bottom line, however, is this:  At some point, you've got to let other people read your material, or it will never be optioned, purchased, produced and distributed.  So, again I repeat what's becoming a mantra…. Only do business with reputable people whom you can trust.

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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Asked & Answered: Co-authors, who owns what?

Q:  I have written a multi-award-winning screenplay and feel, after many rewrites, it's getting close to being pretty good.

My question is about ownership: The screenplay was based on my novel, partly coauthored by a friend, who did about 10% of the work and storyline creation.  How would my friend be compensated, and would I be doing the right thing by signing an agreement saying I own the rights to this screenplay?

A:  When co-authors join together to create a single work ,  it's  called a work of “joint authorship”. Ordinarily, Joint Authors are equal owners of the work, and share equally in the proceeds from exploitation of the work.   So, absent some other agreement, the co-authors are each  entitled to half of the rights fees paid in relation to the book.

So, while it's true that you own the rights to the screenplay, the screenplay is based on the underlying novel, in which you're only a half-owner.  Now, if you try to sell your screenplay, you can probably allocate some portion of the money to the ‘underlying rights' (i.e., the novel) which you'll share with your co-author, allocating  the balance to the screenplay, but your co-author may not agree with your allocation, and could make trouble for you in the form of a lawsuit, or just embarrassing calls to the producers, etc.

My suggestion is to have a candid discussion with the co-novelist now… and work out the percentages on both the novel, AND your screenplay.  You'll definitely need to have a formal, written contract drawn up to memorialize things.  Otherwise, you will find it very difficult to sell your screenplay.   Producers always insist on a “clean” chain of title… so you'll need to clear this up as soon as possible.

This situation is the reason that it's so important to have a collaboration agreement in place before you begin working in earnest with another writer.  The collaboration agreement could have addressed this very situation, or at least the “what if my co-writer doesn't pull his share of the weight?” question.  An experienced entertainment lawyer can draw up a collaboration agreement very quickly.  It's well worth the investment.  Fixing these situations after-the-fact is always more costly and time consuming.

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.


For a limited time, readers of this column can subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting https://firemark.com/minicourse

Asked & Answered: WGA vs Copyright registration and protection of scripts

Q: I'm sure this is the question that haunts all types of writers.  Being a screenplay writer and having my idea and even some exact dialog stolen from me in the past, and working so diligently to create my very best work, I fear the obvious.

My question is three-fold:  1)  Exactly what is protected by the Writers Guild of America's registration; 2)  How can a writer fully protect their property/their creation/their script; and 3)How can a writer even find out if his/her work has been used without permission?

I keep accurate records of each and every production company I send to, but I found out by accidentally watching a certain television show that my script had been used about a year after the registration and copyright had run out.

Of course, I even fear my idea being used, as some company names are vague or not included at all, and others just a generic craigslist email address.  It's easy to suggest not to send your loglines and synopses to these recipients, but the lack of an agent or other representative limits a writer's options, and we are so anxious to get our work out there and discovered.  I don't think I need to mention here the catch-22 regarding writers seeking agents before they are almost famous.

Finally, I'd like to also include here that when I discovered that my script and idea had been partially used, the entertainment attorney's rates made it impossible for me, the unknown writer at the time, to pursue any legal action.

.A: I'll try to answer each part of your question in turn.

1.  The Writer's Guild of America's registration doesn't, in itself, provide any legal protection.  What it DOES do, is provide EVIDENCE.  Specifically, it provides a system to prove WHEN a script existed in a particular form.  Registration provides a dated record of the writer's claim to authorship of a particular literary material. If necessary a WGA employee may produce the material as evidence if legal or official Guild action is initiated.  The Registry does not make comparisons of registration deposits, bestow any statutory protections, or give legal advice. Submitted material is not read by the Registry or other WGAW staff.   For more about WGA registration, visit http://www.wgaregistry.org

2.  The best protection for a writer's work consists of three elements:  (a)  common sense, (b) copyright protection, and (c) a good paper trail.

Common sense means that you don't share your script with just anyone.  Make sure you're dealing with reputable people and companies, and don't sign releases that give away your right to sue.  In fact, don't sign anything  unless you're sure you understand it completely.  If you don't, talk to a lawyer.

Given the relative cost of WGA registration and Registration with the U.S. Copyright Office, I usually recommend copyright registration.  Ultimately, you'll have to register the copyright before suing an infringer, and , since doing so early (within 90 days of first ‘publication' of the work), entitles the registrant to an award of statutory damages and attorneys' fees, this is usually the best course of action.  Registration can now be done online at http://copyright.gov.  The cost is $35.  In most cases, you won't need a lawyer to help with copyright registration, but contact one if you're not sure how to complete the form, etc.    This is not to say WGA registration isn't useful… it's a valuable tool, and does provide the above-referenced testimony, etc.  Also, getting the registration certificate back is very quick, while copyright registration can take many months.  (registration is effective from the date received by the office, but the certificate takes a while to be issued).

A good paper trail means that you keep records of when, where and to whom you submit your material, notes of your conversations, copies of email correspondence, etc and of course your copyright and/or WGA registration paperwork.  If your material IS stolen, you'll use this as evidence to prove your case.

3.  Learning of infringements of your work is the big challenge.  There's no simple answer.  Keeping your eyes open for similar projects is the best solution.  The good news is that, although there ARE statutes of limitations which restrict the time frame in which you can sue an infringer, most aren't triggered until the plaintiff KNEW or SHOULD HAVE KNOWN of the basis for the claim.

I should note that the question is a bit confused.   Copyright protection does not ‘run out' or  expire until 70 years following the death of the author… so I presume we're talking about WGA registration, which, I believe, remains valid for 10 years.  Another argument in favor of copyright registration.

The catch-22 is very real, I know, but idea theft is only possible because writers submit their material without knowing the details and reputations of the people to whom they submit, and/or  sign releases that give away important legal rights.  So again, don't submit blindly or to fly-by-night operations.    Finding an agent is hard, but it's necessary.  Just keep knocking on doors.

Finally, attorneys are highly-paid professionals, and our fees can be out-of-reach for some writers.  That said, if your case is strong, there are attorneys who will represent you for a so-called ‘contingent' fee (usually 30% to 40$ of what's recovered).  Also, as mentioned above, if you've done things right (e.g. registered your copyright early) , the court may award your attorney's fees in addition to whatever damages the judge or jury finds appropriate.

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.


For a limited time, readers of this column can subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting https://firemark.com/minicourse

Recommended Reading: What Dealmakers can learn from Sandra Bullock

Entertainment Lawyer Dina Appleton’s guest post today in THR, Esq. Blog is an excellent discussion of how win-win deals can still be made for high-level talent, in today’s risk-averse climate. Ms. Appleton’s premise is that folks who’ve previously gotten rich front- and back-end deals may have to give ground on some points, but if willing… Continue Reading

3 Reasons why copyright registration is important for all kinds of documents

Copyright registration is increasingly important for all types of businesses and all types of documents. it’s not just about media content. Companies and individuals should consider registering their copyrights in all kinds of documents they may consider valuable. Sales presentations and info sheets can be easily lifted by competitors, and without a registered copyright, the… Continue Reading

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