IT’S TIME FOR THE WRITER’S GUILD TO SHUT DOWN THE WGA REGISTRY

Since 1927, the Writers Guild of America, West Registry has existed as a place where professional and aspiring screenwriters can deposit their scripts.  It exists solely to document a provable date of creation in the event there is a claim of copyright infringement. And yet for all the good intentions of the WGA in establishing the Registry, because writers treat it as a substitute for registration with the Copyright Office, its existence only serves to damage the interests and waste the money of WGA members.    If the WGA is interested in making sure that its members receive the greatest possible protection for their scripts it should immediately shut the Registry down or take significant steps to make sure that the Registry does not act in a way that is antithetical to the best interests of screenwriters.

Over the years, the WGA has marketed the Registry as the place to register a screenplay.  The WGA has made both Final Draft® and Movie Magic Screenwriter® preferred formats for the Registry and writers using these programs believe that depositing a script with the Registry is de rigueur.  As a result, screenwriters have acquired the mistaken impression that using the Registry is all that is required to protect their screenplay.  This perception is completely inaccurate and the WGA should take steps to correct it.

As a copyright lawyer and litigator in Los Angeles for almost 20 years, I have spoken to hundreds of writers, both established and newcomers, who contacted me because they were worried that their screenplay was stolen.  One of the first questions I will ask the writer is whether they registered the script with the U.S. Copyright Office.   While many do tell me that they have, a large percentage proudly tells me that they only registered the script with the Registry.  This error is potentially costing writers hundreds of thousands of dollars.  The reason for this is that according to §412 of the U.S. Copyright Act, in a lawsuit for copyright infringement, the Plaintiff cannot receive either attorney’s fees or statutory damages unless they registered with the Copyright Office before the infringement commences.[1]

Judges interpreting §412 have interpreted “commencement” to mean the first act of infringement in a series of ongoing separate infringements.   In the case of motion pictures, the first act of infringement would typically occur at the time a screenplay containing infringing material is written, not the release of the movie.  This means that even if the aggrieved screenwriter finds out about the infringing movie and registers with the Copyright Office before the film’s release, it’s almost certainly too late.  Since the writer registered after commencement of the infringement, he or she could not receive statutory damages or attorney’s fees in any subsequent litigation.

The consequences of failing to register with the copyright office can be tremendous.  If the script was properly registered, a court can award statutory damages of up to $150,000 for willful infringement.  Without prior registration, these would not be allowed. Also, most screenwriters (in fact, most people) cannot afford the attorney’s fees that arise in a copyright infringement lawsuit.  Such fees, if paid on an hourly basis, can easily reach into the hundreds of thousands of dollars.  As a result, the screenwriter must usually find an attorney who will take on the case on a contingency fee basis.  But any attorney asked to take on such a case for a 1/3 contingency is going to be hard pressed to do so if neither attorney’s fees nor statutory damages will be part of the award.  Without these possible remedies, the screenwriter would only be able to receive the actual damages suffered by him and any profits of the infringer attributable to the infringement.   But the reality is that for most films, it is almost impossible to show any “profits” (certainly not for films that have just been released).  That leaves the screenwriter’s actual damages.  For a screenwriter with an established track record (like Eric Roth or David Koepp), it may be possible to prove significant damages. But for the vast majority of writers, there is no track record.  It would be difficult at best for them to prove that they would receive any more than WGA minimum for a script.  And if the screenwriter is not a WGA member, it is hard to prove even that much in damages.

Here’s an example of how the damages plays out depending on whether the work was registered with the Copyright Office.

Let’s imagine that our screenwriter, Dan, registered his script with the Copyright Office, and the screenplay was used as the basis for a low-budget movie.  When the movie came out, it bombed, and so there are no profits.  Dan hires a lawyer, who sues for copyright infringement.  Dan has no prior credits, so significant actual damages are hard to prove.  But because the script was registered with the Copyright Office, Dan can ask for statutory damages of up to $150,000.  Faced with the threat of not only paying Dan a large statutory damage award, plus paying Dan’s attorney’s fees and their own attorney’s fees, the producer quickly settles the case, giving Dan a multiple of what he would have received had they bought the script in the first place.

Now imagine the same scenario, except that Dan registered his script with the WGA Registry instead of the Copyright Office.  As a result, Dan can only receive his actual damages, which are somewhat less than $50,000.  But when Dan tries to find an attorney to take his case on a contingency, he is unable to do so.  One-third of $50,000 is only $16,666, which is far less than most attorneys will need to take such a case on a contingency.  Due to the complexities and difficulties of bringing such a case, Dan can’t find an attorney who will represent him.  Consequently, Dan doesn’t bring a lawsuit and doesn’t get any money for the infringement.  Remember, the only difference in these two scenarios is that in one Dan registered with the Copyright Office, and in the other, with the WGA Registry.

Even in the case of an established screenwriter who can prove actual damages of over $150,000, the ability to obtain attorney’s fees is crucial as it could add over $100,000 to the settlement value of a case.

Also, even if a writer did not register with the Copyright Office before learning of the infringement, copyright registration is still required prior to that writer bringing a lawsuit for copyright infringement.  So, even if he previously filed with the Registry,  the writer must still file with the Copyright Office.  This is a waste of the writer’s time and money.

The real shame in all this is that the WGA makes it a point not to educate its members to these facts.  The only reason I can imagine that they keep their members in the dark is that the WGA knows if people were aware that of the truth, no one would bother using the Registry anymore, resulting in what is probably a loss of over $1,000,000 per year to the Guild.  While I’m sure this represents a significant portion of the WGA’s annual revenue, the Guild should not just put this revenue source over their member’s best interests.

In fact, if one visits the details page of the WGA Registry, the word “copyright” is not even mentioned.   And on the WGA Registry FAQ page, where the Guild could easily educate its members about the importance of copyright registration, it merely states:

Does registration take the place of copyright?

Registering your work with the WGAW Registry does not take the place of registering with the Library of Congress, U.S. Copyright Office. However, both create valid legal evidence that can be used in court.

Questions regarding copyright should be directed to the U.S. Copyright Office in Washington, D.C. at (202) 707-3000 or to an attorney specializing in that area of law. Click on www.loc.gov for more information.

The WGA has an opportunity to clearly explain to its members the benefits of copyright registration.  Instead, the FAQ attempts to equate the Registry with the Copyright Office by claiming that “both create valid legal evidence that can be used in court.”  While this is technically true, it leaves out so much that it must be seen as a deliberate attempt to mislead its members and non-WGA writers who may also register their scripts with the Guild for double the fee as WGA members (currently registration fees for literary material  are $20.00 US for the general public and $10.00 US for WGA members in good standing).

An additional problem with the Registry is that the registration only lasts for five years unless it is renewed for an additional fee (contrast that with Copyright Office registration which remains in force until 70 years after the writer’s death).  Because most people do not bother to renew the registrations, even the initial registration could prove legally worthless to prove prior creation if the infringement is discovered more than five years after the deposit (a not uncommon occurrence).  While this five-year rule may have made some sense in the pre-Internet era when the WGA actually had to pay to store the physical scripts, it makes no sense in 2010, when almost all of the scripts received by the Registry are digitally uploaded.  The cost of maintaining a digital copy of these scripts indefinitely would only cost a few pennies a year.

Because the continued existence of the Registry only serves to hurt the true interests of WGA members, the WGA should shut it down, and instead inform its members that if they want to protect their written material to the greatest extent possible, they should register their script with the U.S. Copyright Office.  If the WGA is not willing to close the Registry, it should, at a minimum, take the following steps.

1. Add explicit language to the Registry website informing WGA members that WGA registration is not a substitute for Copyright Office registration and informing them that there are significant advantages to registering with the Copyright Office immediately, not just relying on the WGA registration process.
2. Extend the term of the registrations (especially for digital uploads, from 5 to 20 years (or better yet, indefinitely).  The cost of maintaining these digital uploads is so small that to not do so really shows that the WGA is really more interested in raising revenue then protecting its members.

However it should be acknowledged that as long as the Registry exists, the WGA is not working in the best interests of its members or the greater screenwriter community.   For the good of screenwriters everywhere, the best thing would be for the WGA stop taking further submissions and instead, make sure that writers know that registration with the Copyright Office is the best way to protect their scripts.  But until the WGA takes that step, screenwriters should simply make sure to register their scripts with the Copyright Office and avoid the completely unnecessary time and expense of using the Registry.

Larry Zerner is a copyright and entertainment lawyer in Los Angeles.  More information can be found at http://www.Zernerlaw.com. He can be reached at 310-773-3623 or Larry@Zernerlaw.com.

This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

[1] §412 of the Copyright Act states, in pertinent part, “[N]o award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration . . . .”

Since the vast majority of screenplays constitute “unpublished works,” the registration must be in place before the infringement begins.