When Should I Re-Register a Revised Screenplay?

A reader asks the following question about copyright registrations:

“If someone who registers a script, and then makes minor changes in the wording of certain scenes, for example, would have to re-register the script again in order for the most recent revision to be protected.  Or, if the original registration would offer adequate protection since nothing major in the script has changed, even if it undergoes several more minor revisions?

 The question of when to re-register a screenplay with the copyright office comes up frequently.  Scripts are constantly being rewritten, and, at $35 a pop, one doesn’t want to have to keep paying to protect the same work.  So when should you re-register an updated version of the screenplay?

The answer looks to the reasons that you registered your screenplay with the Copyright office in the first place.  The two main reasons to register are 1) to establish a date of creation of your screenplay and 2) to obtain the added legal protection that comes from registration.  If you never sue anyone for infringement of your screenplay (and no one ever sues you claiming the screenplay was stolen from them), it’s not going to make a difference whether just an early draft of the screenplay was registered.  But if you ever sue someone for infringing your screenplay, it might become an issue as to which version was registered.

Simply as an evidentiary matter, it helps if the registered version of the screenplay is the same as or very close to, the version that the alleged infringer saw.  In these script infringement cases, the infringer is never copying the script verbatim anyway.  So it certainly helps if you can prove that the infringed version of the script was registered.  That doesn’t mean that it has to be identical.  If you are simply making simple edits, cleaning up grammar, or adding a few lines of dialogue here and there, then a new registration is not necessary.

But when the changes become more substantial such as 1) important characters being added, 2) major changes to the story, or 3) major dialogue revisions.  In these cases, then the revised screenplay should be registered.  What constitutes a major change?  That’s going to be up to your judgment.  But I would say that if 20% to 30% of your script is changed, a new registration couldn’t hurt.

And remember, when registering the revised screenplay, you will be asked to limit your claim, because the screenplay contains previously registered material. Look at the screen capture below.

When you get to that page of the registration, under “Material Excluded” type “Original Screenplay” in the “Other” box.  Under “Previous Regisration,” enter the copyright registration number for the original screenplay and the year of registration.  Then, under “New Material Included” type what the new material contains in the “Other” box.  Some things to put in the box would be “New third act” or “Major editorial revisions” or “Complete rewrite or original screenplay.”  As long as it is clear what is being added.

Good luck and keep writing.

How Long Will It Take A Producer To Get Back To You?

You finally got a meeting with hot Producer to pitch your script.  The Producer tells you that the idea is great and if you send the script over, it will be read “right away.”

The script is FedEx’d that afternoon.  So, how long will it take hot Producer to get back to you?

Let this serve as a handy guide.

1. First, figure out the longest time any person of slightly below average intelligence would take to read your script.
2. Now double it.
3. Then add a week because the producer’s kid is sick.
4. Next add three days for an unidentified “crisis.”
5. Add another week because the Producer has caught whatever illness his kid had.
6. Another four days because Angry Birds Seasons released a new level pack.
7. One day more because of a minor Jewish holiday (Note: it does not matter if Producer is Jewish).
8. Add five more days due to the Producer’s attendance at the Sheboygan Film Festival.
9. A two and a half day increase because the new IPhone (or IPad) came out.
10. Awards Season has started – 45 days more.
11. Two more weeks because of Sundance (Producer is not going to Sundance, but still).

Finally, you call Producer to see what the status is.  You are told your script is on top of the pile and will be read “right away.”

Repeat from Step #1.

 

 

Guest on Same S**T, Different Show Podcast

I’m this week’s guest on Buz Wallich’s Same S**T, Different Show Podcast discussing copyright, entertainment law, video games, game shows and Friday the 13th.  You can listen to the Podcast here.

The Importance of Clearing Photographs in Low Budget Movies

I was a speaker at the Big Bear Horror Fi Film Festival this past weekend, which allowed me the great opportunity to watch a lot of horror movies by up and coming filmmakers.  However, being a copyright lawyer, I sometimes get distracted during the film when I spot something that is a potential infringement.

For example, The Victorville Massacre, which took the award for “Fan Favorite Feature” was a very clever take on the “horny kids alone in a house with a killer” genre.  Made on a tiny budget, it had better-than-average acting and some nice twists.  But in one scene, one of the girls in the house picks up a Spin magazine and starts to read with the camera showing the band on the cover (I’m pretty sure it was the Strokes).  Scenes like this always get my alarm bells ringing because I know that there is no way the filmmaker cleared that photograph.  Now for the time being, this is probably not going to be a problem, because the film is so low budget it will almost certainly not draw a lawsuit.  But both The Blair Witch Project and Paranormal Activity were super-low budget movies that eventually earned well over $100 million at the box office.  In the film world, you never know which movie will catch fire.

“But what about E&O insurance,” I hear you asking.  “Won’t that protect them from a claim?”  The short answer is “no.”  The reason being that when someone applies for E&O insurance, the application specifically asks if all photographs have been cleared.  If the filmmaker answers “Yes” and is wrong, then insurance coverage may be denied for making a false assertion on the application.  And if the filmmaker says “No,” then the insurance company will either deny coverage entirely or else exclude coverage for any claim for use of the uncleared photograph.

What makes it frustrating is that if the director and producer are aware of these issues prior to filmmaking, they are easy to avoid during filming.  In the case of The Victorville Massacre, it would have been easy to just have the actress open the magazine so the cover photo couldn’t be seen.  Similarly with things like posters on the walls, it’s easy to use public domain pictures or else remove or cover posters and artwork when shooting in practical locations.

These simple steps can avoid a timely and expensive lawsuit later.

Can I Comment I Made Change Final Draft?

So I was at the Creative Screenwriting magazine Screenwriting Expo this weekend to do my annual speech on Legal Issues for Screenwriters (which went great, by the way, thanks for asking), and I ran into Zack Gutin, who is Director of Studio Relations for Final Draft.  I’ve met Zack a few times over the years and he’s a super nice guy, and we got to talking about Final Draft.  Although Final Draft is a great program for screenwriting, one thing that has always bothered me about the program is this: For many years the program included a button to allow users to instantly register their script with the WGA Script Registry (which readers of this blog know I hate).  However, there was no corresponding button to allow registration with the Copyright Office (which is so much more important than WGA Registration).  In fact, I believe that the fact that Final Draft only includes a link to the WGA, is the reason so many screenwriters mistakenly believe that it preferable, or more important than registration with the Copyright Office.

So I mentioned this to Zack, and explained to him why registration with the Copyright Office is so important, and asked him why Final Draft couldn’t include a link to the Copyright Office in their next upgrade.  Zack agreed that adding a link to the Copyright Office would be simple and told me that he would bring it up to the development people when he got back to the office on Monday.  So, let’s see what happens.  But if the next version of Final Draft includes a link to the Copyright Office (as it should), you’ll know why.

Hey, Movie Magic Screenwriter, I’m talking to you too.

Speaking at the Screenwriting Expo

I’ll be speaking at the Creative Screenwriting Expo (for the 5th time) on September 16 from 6:00 – 7:30.  For those not familiar with the Expo, it’s a great opportunities for up-and-coming screenwriters to network with Industry professionals, learn about the craft and business of screenwriting, and pitch their screenplay to Hollywood producers.

I’ll be speaking about legal issues every screenwriter needs to know including:

• How to Protect Your Script From Being Ripped Off
• What to Look For When Signing an Option Agreement
• How to Avoid a Libel Lawsuit
• How to Protect Your Title (hint: you can’t and you shouldn’t try)
• How to Register Your Script With the Copyright Office
• Why the WGA Script Registry is a Rip-Off
• How to Write A Collaboration Agreement

Besides myself, there are a lot of great speakers at the seminar including such big names as Alfred Gough and Miles Millar (Spiderman 2, Smallville), Shane Salerno (Armageddon) and Ben Ripley (Source Code).   The event is held from September 15 to 18 at the Westin LAX in Los Angeles.  If you come, please stop by and say “Hi.”

For more information visit www.ScreenwritingExpo.com 

HOW DO I FIND A GOOD TALENT MANAGER? TIPS TO REVIEW BEFORE YOU DECIDE

For many struggling actors, the hardest part of starting a career is finding an agent.  So when approached by a smooth-talker claiming to be a top “talent manager” who promise to help guide their career, get them agents, and have them auditioning for major roles in studio films, they jump at the chance.  Then, only after they’ve signed a contract agreeing to pay the manager a large percentage of their future salary for the next five years, do they realize that this “manager” is full of crap, and couldn’t get them an audition for a cable access program.

So before you make the same mistake as many performers have done before you, ask yourself these questions, and get the right answers, before signing with anyone.

1)     Do You Need A Manager?  For most performers, the reason they want a manager is because they think the manager will find them work in the industry.  But in California, it’s actually illegal for anyone other than a licensed talent agent to procure of offer employment to actors, or others rendering professional services in motion picture, theatrical, radio, television and other entertainment enterprises.  California Labor Code §1700.4.  So if you think the manager is going to get you work, he’s not.  The manager’s job is to guide and advise your career.  If you haven’t been able to get an agent yet, there will simply not be much that the manager can even do for you.

2)     Have You Checked The Manager Out?  What has this person done that would lead you to believe he is a legitimate manager?  Who are his clients?  Have you spoken to them?  Why not?  Nowadays, it’s so much easier to find this information.  For $15.95 per month, you can join IMDB Pro, which allows you to find out all sorts of information about people in the entertainment industry, including the actors represented by the management agency.  So see which actors are represented, and then look at those actors credits.  Are they working?  Use your social networking skills to contact some of the actors and ask them if they will talk to you about the manager?  Before you sign with any manager you should speak to at least three clients and see what they say about him.

3)     Is The Manager Charging You Any Money?  Does the manager want to charge you an up-front fee to cover overhead?  Or is he requiring that you get new headshots with a certain photographer? Or do they want you to enroll in a specific acting class?  If so, RUN!!!!!  No reputable manager should take money from you.  If they are asking you for money, then it is almost certainly a scam.  Now that’s not to say that the manager won’t advise you on your headshots and acting teachers.  But if they require you to use a certain photographer or go to a certain class, be careful.  There are plenty of good photographers and acting teachers in this town.  Check out the recommendations the same way you checked out the manager.  The manager should advise you, not require you to pay money to others.

4)     How Much Of Your Money Do They Want?  For acting, a manager should not take more than 15%, for music and modeling, 20%.  If they insist on more, walk out the door.

5)     How Long Is The Agreement For?  For actors and models, no more than three years.  For musicians, five years.  But in any case I would want a clause in the agreement that says that if after six or nine months, you haven’t reached certain goals (e.g., obtained an agent, made at least $10,000, etc.), you can cancel the agreement.  If you find out that manager is not the right person, you need a way to get out of the agreement so you don’t have to keep paying them for another couple of years.

6)     Is There A Key Man Clause?  A “Key Man” clause is necessary if you are only joining that management agency because there is one person (the “Key Man”) who is going to manager your career.  If that person leaves the firm, you need to be able to leave as well.

As a lawyer, I should tell you that before signing with any manager it’s best to have an attorney review the agreement.  But if spending that money is out of the question, at least follow the guidelines listed above to give yourself some protection.

How “Perfect 10 v. Google” Will Permanently Change Copyright Litigation

On August 3, 2011, the 9^th Circuit Court of Appeals, in the case Perfect 10, Inc. v. Google, Inc. made a major change relating to copyright law that will affect litigation strategy from now on.  Basically, the 9^th Circuit (shockingly agreeing with the 2^nd Circuit), decided that Courts would no longer consider a finding of “likelihood of success on the merits” automatically leads to a finding that the Plaintiff would suffer irreparable harm if an injunction is not granted.

A little background:  Plaintiff’s in copyright infringement lawsuits like to get preliminary injunctions because it will usually end the case immediately, without having to spend any additional time or money going to trial.  As I’ve discussed in earlier posts, a preliminary injunction granted against Warner Brothers to stop distribution of The Dukes of Hazard movie, let to a $17.5 million dollar settlement two days later.  So for Plaintiff’s, they are a very powerful tool.

When a court is deciding whether to grant a preliminary injunction, it must consider the following four factors:

(1)  that the Plaintiff is likely to succeed on the merits,

(2)  that he is likely to suffer irreparable harm in the absence of preliminary relief,

(3)  that the balance of equities tips in his favor, and

(4)  that an injunction is in the public interest.”  Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).

While proving that he is likely to succeed on the merits is usually where the meat of the fight lies, until now Plaintiffs in the 9^th Circuit were helped by a 1984 case, Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521 (9th Cir. 1984), where the Court held that “[a] showing of a reasonable likelihood of success on the merits in a copyright infringement claim raises a presumption of irreparable harm” for purposes of a preliminary injunction.

The Apple case meant that once a Plaintiff showed a likelihood of success, he could pretty much skip right over the second prong and go to prongs 3 and 4.  This also meant that the courts granted a lot of preliminary injunctions.  It also led to cases similar to the recent lawsuit against the producers of Hangover II for copying the Mike Tyson tattoo onto Ed Helms’s face, in which the tattoo artist tried to get a preliminary injunction against the release of the film.  If a preliminary injunction was granted, it would have potentially cost Warner Brothers hundreds of millions of dollars.  The tattoo artist’s strategy was to obtain the preliminary injunction, and then use that to force a settlement that would have been even higher than the one for The Dukes of Hazard.  Although you would be hard pressed to argue that the damages attributable to the infringement were anywhere close to that figure.

But imagine if that case was heard in the 9^th Circuit under these new standards.  It becomes much harder for the tattoo artist to argue that the release of the movie will cause him “irreparable harm” that can’t be compensated with mere money.

I believe that writers whose work is stolen will still be able to get injunctions using this new standard, because the release of a motion picture that infringes someone else’s script would completely devalue the script.  But for cases that involve the use of someone else’s material in a movie (such as artwork on a wall in the background), it will become much, much harder to convince a court that the harm is irreparable.

If you would like to read the decision, you can do so here.

 

Must Read for Aspiring Screenwriters: Writing Movies for Fun & Profit

In my day I’ve read a great deal of books about screenwriting.  From the classics like Syd Field’s Screenplay and Blake Snyder’s Save the Cat to more obscure how to manuals, all guaranteed to teach the reader the secret they need to know to write a great screenplay.

But I’ve never read a screenplay book as terrifically entertaining and informative as Robert Ben Garant & Thomas Lennon’s Writing Movies for Fun & Profit: How We Made a Billion Dollars at the Box Office and You Can, Too!   For one thing, unlike Syd and the late, great, Blake, G&L have written a ton of produced screenplays, from the wildly successful (Night at the Museum) to the horrible flop (Taxi).  And they fill their book with real world practical advice, not esoteric theory on the “hero’s journey.”  They take the healthy perspective that screenwriting is a business.  And if you want to be able to succeed in the business and have a successful career, you need to understand that you need to be able to give the studio (who paid a pile of money for your script) the changes it needs, or you will be swiftly out of a job.

The book covers such subjects as

• How To Pimp Your Movie
• Why Getting Fired Can Be A Good Thing
• The Importance Of Credits
• How To Take Notes From A Movie Star, and
• How To Handle A WGA Arbitration.

The advice given in the book is easy to read, and often hilarious.  And while this book will probably not replace Field and Snyder’s tomes, it has so much important advice that I haven’t seen elsewhere, I would say it is a must read for all aspiring screenwriters.

Two minor bits of criticism that I hope get corrected in the second edition.

First, they advise registering completed scripts with the WGA.  As I’ve said repeatedly, the WGA Registration is a waste of your time and money.  All scripts should be registered with the U.S. Copyright Office.

Second, Pink’s is not a disgusting cesspit.  It is awesome.  You are thinking of Oki Dog.

You can buy WMFF&P on Amazon, or wherever books are sold.

5 Horrible Provisions You Might Find In A Reality Show Contract

The lure of fame is strong for many people.  People watch Jersey Shore or Real Housewives and think “If those idiots can get rich and famous on television, then certainly I can do the same.” For those people who hear the siren’s song beckoning them to a reality show, I would caution them to be very careful.  Especially if you are already pursuing a career in the entertainment industry, there are many provisions in the reality show contract which can hinder your career, make your life miserable, or both.  Reality television show producers realize that so many people are desperate for a chance to be on television, they can make the contract completely lopsided.

And these provisions are not just found in shows like Jersey Shore or Real Housewives, where at least the participant is getting a little money. Many of these clauses are put in contracts for game shows (e.g., Survivor, Amazing Race, The Bachelor), where you can be gone after one episode, with no payment.  So before you casually sign your life away, here are just some of the more egregious provisions you might find if you are picked to be on a reality television show.

1)     The Hold Period

The Hold Provision typically states that from the time you begin filming, until one year after the last episode of the program in that cycle airs, you cannot make any appearances or appear on any other program without the prior consent of the producer and the network.  Let’s think about that for a moment, shall we?  You went on the show for the sole purpose of advancing your career, and now you find out that you for an extended period of time (the last episode may air six months or more after filming begins, bringing the hold period to 18 months), you need permission before working in the industry.  This sometimes includes even things like autograph signings, or other personal appearances.

Now, to be fair, in my experience, the producers do not often refuse a request for outside work, but they certainly could.  And what sometimes happens is that you can get cast on a show that films the next day.  If you can’t contact the network and get cleared to shoot fast enough, your part could go to someone else.  If you ever see a contract with one of these provisions, try to get them to reduce the time as much as you can.  They say that they won’t change them but if they really want you, you can get them to cut the hold period down.

2. Life Story Rights

You would expect that the contract would give the producers the right to tell parts of your life story in conjunction with the show you are appearing on. But the Life Story provision you will find in these contracts not only gives the producer that right, it sometimes gives the producer the exclusive right to sell your entire life story, not just in conjunction with the television show, but also theatrical motion pictures, stage plays, radio, internet, etc.  The consequences of this provision mean that if the producers think you have an interesting life story, they can decide to make a movie about your life, without paying you any additional money, or even consulting with you on the story.  Sometimes these contracts will extend the exclusive period for a year after the show airs, and then give the producer the non-exclusive right to your life story in the future.  So even if five years down the road you do something really interesting (much more interesting than appearing on a reality show), the producers can go ahead with their movie about you.

 3. The Right to Defame You

The reality show contract also contains a provision that allows the producers to present you in any way they want, even if it is completely untruthful, and you cannot sue them for that.  In theory, if the producer wants to edit the footage to make it look like you are a racist psychopath who gets his greatest pleasure from killing babies and raping nuns, they can do so, and there is nothing you can do about it.  So if you think that your appearance on the program will make you look good, keep in mind that you don’t control the footage, the producer does.

 4. No Pay for Months

For those shows that call themselves “game shows” with a cash prize (everything from Deal or No Deal to Bachelor Pad, they will typically say that no payment is due to the winner until 90 days after the final installment of the show airs.  I can speak from personal experience, having won on a game show, that the check is FedEx’d to you on day 89, so it arrives on day 90.  But if the reason you went on the show was to make a quick buck, keep in mind that you are going to typically wait four to nine months before that check arrives.

 5. 10% of Future Earnings

After Bethany Frankel parleyed her turn on Real Housewives of New York into a $120 million dollar sale of her Skinnygirl cocktail line, the producers of some of these shows said, “I want a piece of that.”  So now some reality shows include what I will call the Bethany Clause, which says that the producer is entitled to 10% of all future earnings you make from outside businesses (not acting gigs) for a certain period of time after the show airs.  That’s right, despite the fact that the producers didn’t really pay you anything to be on the show, and have already obtained the right to exploit your life any way they want to, now they want 10% of your future earnings.   Are you outraged yet?  You should be.

And these provisions are fairly common in any reality show contract, especially those with a large cash prize or that shoot for more than a few days.  And yes, some people have parlayed their stint on reality shows to significant fame and fortune.  But the vast majority does not.  So before you run out and join the first show that wants to sign you up, think about the possible long term consequences on your career, or else hire an attorney to help you deal with these issues.

Coming soon: Five More Horrible Provisions in Reality Show Contracts.