IF A PRODUCER GIVES ME NOTES ON MY SCRIPT, IS HE NOW A CO-AUTHOR?

Question of the Day:

Larry,

About six months ago I sent my screenplay to an independent producer.  He said he liked it, but that it wasn’t in good enough shape to submit to studios.  He gave me a bunch of notes on improving the script, things like adding characters, deleting scenes, and suggested that I change the ending.  I wrote a draft that incorporated his changes and he said he liked it much better and would start shopping it around town.  But when I asked him about paying me for an option, he said he would only pay me $1.00 for a two year option.  Having read your post about free options, I told him I couldn’t agree to that and said I would take it somewhere else.  But now the producer says that because he gave me suggestions for the script, he is a “co-author” and I can’t take it anywhere without his permission.  Is that true?  Is he really a co-author?  What can I do about this?

Signed,  Pissed Off Writer.


Dear POW,

This is a question that I get fairly often and is something that plagues many screenwriters.  So let’s see if we can answer it.

For the producer to be a co-author, a joint work must have been created.  So what constitutes a “joint work.” According to the Copyright Act, a “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. 17 U.S.C.A. § 101.

When courts have had cases where they had to interpret this statute, they tend to focus on two things:  1) What was the “intent” of the parties, and 2) What was contributed by each party.

Here’s the good news, most courts that have dealt with this issue have held that in these situations, the producer is not considered to be a joint author.  That is because most people would agree that there is no “intent” by the parties to create a joint work.  Even if the producer says he intended to create such a work, the screenwriter is pretty adamant that he did not intend for a joint work to be created.  So, problem solved, right?

Not so fast.  Even if a joint work was not created, it could still be possible that the producer contributed copyrightable material to the script.  This would not be the case if the producer just gave general notes like “shorten that scene” or “change the ending.”  But there could be a situation where the producer actually wrote a scene and added it to the script.  Or the producer could have come up with a new character independently and instructed the screenwriter to put the new character in the script.  In cases such as these, even though there is no “joint work,” the producer could make trouble by claiming to be the sole owner of that character or the scene he wrote.  If he’s going to do so, the way to resolve it is to just remove those specific elements from the script.  Since you already had a draft of the script that existed before the producer got involved, you can just go back to the earlier draft and leave the producer’s contributions in the trash.

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