OPEN LETTER TO THE WGA BOARD MEMBERS

To The Board Members of the WGA.

My name is Larry Zerner.  I am a copyright attorney in Los Angeles.  In my practice, I represent screenwriters in lawsuits against production companies and studios for copyright infringement.

I am writing to you directly because of something that I believe should be addressed by the WGA and that is the fact that WGA Script Registry is costing your members money and is acting as a detriment, not an asset, to screenwriters. I know that sentence sounds extreme, but please let me explain.

The problem with the Script Registry is that many writers are using it as a substitute for registration with the U.S. Copyright Office.  As a result, in the event that their work is infringed, the writer will almost certainly lose thousands of dollars.  And, in many cases, a writer who only registered with the Script Registry will be precluded from filing a lawsuit because the economic realities of litigation.

The reason for this is that under U.S. copyright law, if a writer suing for copyright infringement wants to recover his attorney’s fees and/or statutory damages in the lawsuit, then the writer MUST have registered the work with the Copyright Office BEFORE the infringement began.  In the case of a motion picture, the infringement of the writer’ script began when the infringing script was written, NOT when the movie is released.  So, usually by the time the writer hears that a movie infringing the script is being released (e.g., by seeing a trailer or reading an article in the trades) it is too late.  The writer may register with the Copyright Office at that time, but he will be barred from recovering his attorney’s fees and/or receiving statutory damages.

Let me give you a hypothetical that explains the real world implications of the writer’s failure to register with the Copyright Office, especially for new and unestablished writers.

A Writer signs an option agreement with a production company to purchase his horror movie screenplay (no treatment).  The agreement says that the purchase price will be WGA minimum for a low-budget feature (currently approximately $35,000).  The option expires without being exercised.  A couple of years go by and the Writer sees that the production company have put out a movie which is the same as his screenplay, but did not pay him and did not have the right to use his screenplay as the basis for the movie.  The movie is released, but is a box office bomb and does not earn a profit.  This is pretty much as egregious a case of copyright infringement as you can imagine.  The Writer now wants to bring a lawsuit, but has only registered his screenplay with the Script Registry and not the Copyright Office.

The problem the Writer will have is that because the script was not registered with the Copyright Office, in any lawsuit the Writer can only recover 1) the actual damages caused by the infringement and 2) any profits earned by the infringer (17 U.S.C. §504(a)(1)).  Because the movie did not earn any profits, the Writer can only recover his actual damages.  In a case like this, the Writer’s actual damages would be the $35,000 low budget minimum he would have received had they studio exercised the option.  And because the Writer was not registered with the Copyright Office before the infringement, he could not recover his attorney’s fees in any lawsuit.

As you can imagine, suing a studio for copyright infringement would cost much more than $35,000 in attorney’s fees (taking a case to trial can cost more than $100,000).  And for those attorneys (like myself) who will represent writers on a contingency fee basis, there is simply not enough money at stake to justify taking the case on a contingency because the attorney’s fees would end up much higher than the possible recovery.  The end result is that no lawsuit is ever filed, the production company gets away with stealing the script, and the Writer gets nothing.  Even worse, the Writer can’t sell his script to someone else because the movie has already been made.

Now, imagine the same scenario, except that this time the Writer registered with the Copyright Office, not the Registry.  In that case, the Writer is not limited to just getting $35,000, he can ask the court for up to $150,000 in statutory damages for willful infringement of his copyright.  Also, the Writer can recover the attorney’s fees at the end of the trial.  This makes it much more likely that an attorney will represent the Writer, because the attorney knows there is a much better possible outcome.  In fact, in these scenarios, it is much more likely that the studio will settle the case early on, because it knows if it delays it will end up paying its own attorney plus the Writer’s attorney fees which in a case like this can me much more than the Writer would accept in settlement at the outset.

So the net result of a registration with the Copyright Office is 1) that it’s much more likely that the Writer will find an attorney to represent him, 2) the case will settle early on for a higher amount than if there was no registration and 3) if the case goes to trial, the writer stands to win up to $150,000, not just $35,000, plus his attorney’s fees.  Even in cases where the actual damages are significant enough for an attorney to take the case on a contingency without a prior registration with the Copyright Office, the Writer stands to lose tens of thousands of dollars (if not hundreds of thousands) that he could have received in attorney’s fees at the end of the case had the script been registered.

Another advantage to registration with the Copyright Office is that if the Writer registers the screenplay within five years of its creation, the registration is considered prima facie evidence of the validity of the copyright and of the facts stated in the certificate (17 U.S.C. §410(c)).  This can be important in cases where the infringement occurs many years after creation.  I handled a case where the original work was created (and registered with the WGA) in 1981.  My client did renew the work a few times but then stopped.  By the time we filed the lawsuit (in 2006), there was no evidence in the WGA of the registration and my client was forced to prove that he actually wrote the work in 1981 (which is not easy).  Had my client simply registered with the Copyright Office at the outset, we would not have had any problem because the registration itself would be considered proof that he wrote the script.

I could give you a myriad of more examples of problems caused because a writer registered his screenplay with the Registry and not the Copyright Office.  I am not alone in my concern, as I have heard many of my colleagues who represent screenwriters in copyright infringement lawsuits express similar sentiments.

The problem is that so many writers (especially new screenwriters trying to break into Hollywood) believe that registration with the WGA is required before submitting a script, and they believe that WGA registration is just as good as registration with the Copyright Office.  This misconception continues in large part because those people running the Script Registry web site clearly want to keep writers in the dark about the importance of registration with the Copyright Office.  On the home page of the website, it refers to the service as “the Industry Standard” and the “World’s Number One Intellectual Property Service.”

Also, the WGA website downplays the importance of registration with the Copyright Office. In fact, the FAQ page of the website actively misleads writers, by making it seem as if the two registrations are equivalent.

“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.

If I’ve already registered my material with the U.S. Copyright Office in Washington, do I need to register it with the Guild?

Even if you have copyright through the Library of Congress, registering with the WGAW Registry creates a separate legal record for your material. In addition, you may consider registering treatments or drafts of your work-in-progress with our Registry prior to registering your final draft with the Copyright Office.”

At one point in time, the Registry served a purpose.  In the pre-internet days, when copyright registrations had to be filled out by hand and writers mailed scripts to Washington, the Registry served as a low-cost and simple way for writers to prove the existence of their script.  But the Registry’s purpose has past.  Now that writers may visit the Copyright Office website, fill out a form and upload their script without leaving their desk, the advantages of the Registry are gone.  And while the Copyright Office registration is slightly more expensive ($35), the registration lasts forever.  It doesn’t expire after 5 years as a WGA registration does.

Because of this, I would ask that each of you, as members of the board of the WGA, to think about shutting down the Script Registry.   I understand that the Script Registry is probably a very good source of revenue to the WGA.  But you should be aware that revenue received by the WGA comes at a very high cost.  It is certain that the cumulative cost to writers who did not register with the Copyright Office and later were infringed is tenfold more than the revenue received by the WGA from registrations.

If you don’t want to shut down the Script Registry, then I would ask you to think about implementing the following changes, to make sure that Writers are as protected as possible.

1) Add clear information to the Script Registry website informing writers of the importance of registration with the Copyright Office.  Yes, this may mean less people use the Script Registry because they won’t want to pay for both services.  But if you truly believe the Script Registry is as necessary as the Copyright Office registration, then put the facts out there plainly, and let your members decide.  If they still decide to register with the WGA, great.  But you should be doing everything in your power to make sure that your members are as protected as they can be in the event their material is stolen.

2) Extend the time the registration is valid.  Having a five year limit on registration made sense when screenplay were submitted on paper and the WGA was paying for a physical storage of the scripts.  But now that the majority of scripts are submitted electronically, the cost of storing the digital file is literally pennies (and drops every year).  There is no reason that the WGA could not agree to extend the time (at least for electronic submissions) to 10 or 20 years at virtually no cost.

3) Give reminders for those people who do need to renew.   As it stands now, the writer must remember to renew the registration from three months prior to three months after the five year anniversary of the registration.  I would imagine that most writers do not do this because they forget.  If the WGA won’t extend the registration time, it could easily set up a program that would automatically send out a reminder email after five years.  At the very least, it would make sure that writers who have not registered with the Copyright Office are still protected.

Thank you for your kind attention to this letter.  If you would like to discuss this further, I would be happy to meet with any of you at your convenience.

Larry Zerner