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The Hangover 2 – Tyson Tattoo Lawsuit and the Problems of Not Clearing Copyright Issues Before Filming Starts

Earlier this week, Judge Catherine Perry denied the request for a preliminary injunction against the release of Hangover 2 over a copyright claim related to a tattoo. What does that mean and why is this a huge problem for Warner Brothers?

Let me provide a little background on the case. The Plaintiff, S. Victor Whitmill, is the tattoo artist who designed and drew the tattoo on Mike Tyson’s face. A few weeks ago, Mr. Whitmill sued Warner Brothers for copyright infringement with regard to the release of “The Hangover II”. His suit is expressly not about the fact that (spoiler) Mike Tyson appears in the movie. Mr. Whitmill is claiming copyright infringement because Stu Price (played by Ed Helms), wakes up to find that he has an exact replica of the Mike Tyson tattoo on his face. Mr. Whitmill makes the (perfectly reasonable) argument that Warner Brothers was required to obtain his permission before copying his tattoo design onto another actor’s face. Mr. Whitmill’s lawyers also filed a motion seeking an injunction from the court to stop the release of the movie. Mr. Whitmill’s lawyers understood that if the injunction was granted, they could demand tens of millions of dollars from Warner Brothers to settle the case and remove the injunction. Yesterday, the motion was heard and, thankfully for Warner Brothers, the judge denied the injunction. However, for reasons I will discuss, this case is still a huge potential problem for Warner Brothers. In order to understand what’s going on, you need to be familiar with three other movies which drew copyright infringement lawsuits. 12 Monkeys, The Devil’s Advocate, and The Dukes of Hazzard.

12 MONKEYS

If you remember the Bruce Wills/Brad Pitt movie 12 Monkeys, then you may remember that Bruce Willis played a time traveler who came to present day America to stop an impending plague. In the beginning of the

movie, there is a scene where Willis’ character is brought into a room and strapped to a chair that is liftedvertically into the air. Well, it turns out that the set design of that room was taken from a book of drawings by German illustrator American architect Lebbeus Woods. Apparently, Terry Gilliam (the director) saw the drawing and basically told the production designer to use it in the movie. Mr. Woods sued Universal Studios a few weeks after the movie was released and asked for an injunction. The court granted the injunction and Universal was forced to pay an untold amount (but presumably in the millions) in order to keep the movie in theaters. Woods v. Universal City Studios, Inc. et al. 920 F.Supp 62 (S.D.N.Y 1996).

The 12 Monkeys case was the first major case where a court preliminary enjoined the distribution of a movie based on a relatively small amount of copyright infringement (only five minutes of the movie was set in the offending room).

The Devil’s Advocate

The Al Pacino – Keanu Reeves movie The Devil’s Advocate, was the second film to run into th is problem. Sculptor Frederick Hart claimed that his work  “Ex Nihilo”, which hangs at the front of the Washington National Cathedral, was copied in the film and seen in the apartment of the devil, where it magically comes to life. Mr. Hart sued and asked the court to stop the home video sale of the film. The cort agreed with Mr. Hart and told Warner Brothers that unless they settled with Mr. Hart, it would grant the injunction.

The problem for Warner Brothers is that they had already manufactured 475,000 videos which were ready forshipping. Warner Brothers was forced to enter into a settlement with Mr. Hart in which they placed a sticker on each video cassette disclaiming any affiliation between the sculpture and the film. Warner Brothers also re-edited the scene to remove the infringing work and paid an untold amount to Mr. Hart.

The Dukes of Hazzard

Who knew that a not very good movie based on a mediocre television show from the ‘70’s would lead to one of the biggest copyright infringement cases of all time? When Warner Brothers decided to make a DOH film, they probably figured that wouldn’t be a problem. After all, they had produced the television show, so they certainly owned the right to turn it into a film, didn’t they? Apparently, not so much. It turns out that DOH was actually based on an obscure low-budget 1974 film titled “Moonrunners.” And when Warner Brothers first acquired the right to turn “Moonrunners” into a television show, it seems no one thought to also acquire feature film rights (this was way before the craze of turning every television show into a movie, but still). When the movie was announced, “Moonrunners” producer Robert Clarke sued for copyright infringement. And, again, the court granted Mr. Clarke a preliminary injunction, stopping it from distributing or even advertising the DOH movie. This was horrible for Warner Brothers as this was only 10 weeks prior to the release of the movie. Warner Brothers had already spent millions of dollars to advertise and market the movie and had commitments to spend millions more. So Warner Brothers had no choice but to settle with Mr. Clarke to avoid the injunction. Reportedly, Warner Brother paid Mr. Clarke $17.5 million dollars the day after the court issued the injunction.

What Does This Mean For The Hangover 2

I’m sure that the lawyers for Mr. Whitmill, knowing about these previous cases, would have raked Warner Brothers over the coals had the court issued the injunction. Considering the fact that the movie is scheduled for release in only three days and is expected to make over $400 million dollars, Mr. Whitmill would certainly have demanded (and received) tens of millions of dollars in settlement if the injunction was granted. But even though no preliminary injunction was granted, Mr. Whitmill is still in pretty good shape. While denying the injunction, the judge reportedly stated that Mr. Whitmill had a “strong likelihood of success” on the merits and that most of Warner Bros. defenses were “just silly.” If Mr. Whitmill were to prevail at trial or on summary judgment, the court would then grant him a permanent injunction against further distribution of the film as long as it contained the tattoo on Ed Helm’s face.

Now it might be possible that the filmmakers could use some CGI magic to change the design of the tattoo for the DVD and television release of the film and I’m sure they are looking into that possibility right now. But I’m guessing that there will be a confidential settlement between the parties sometime this summer. And that tattoo will become one of the most expensive pieces of art in history.

UPDATE:  Warner Brothers now says that it will digitally change the tattoo before the film is released on DVD.  This will severely cut into Plaintiff’s damage calculation as it will mean that Warner Brothers will not worry about an injunction.  Instead, Mr. Whitmill is limited to arguing how much of the profits of the movie are attributable to the fact that they copied his tattoo design, as opposed to the important things, like the script, the director, and the actors.  The court has scheduled a settlement conference for June 16th and I’m predicting a quick settlement after that.

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SHOULD YOU HIRE A LAWYER TO SUBMIT YOUR SCREENPLAY (INSTEAD OF AN AGENT)

I get contacted at least once or twice a week from an aspiring screenwriter telling me that they have written a fantastic script that is sure to be a blockbuster.  Steven Spielberg (or Michael Bay, or Jerry Bruckheimer) is certainly going to pay them $1,000,000 for it and all they need is a lawyer to send the script into their offices.  If I can help them, they will give me 10% of the sale price.

Well, doesn’t that sound like easy money?  $100,000 just for submitting their script to a producer?  And yet, I always turn down these requests.  Why?  Let me try to explain.

First, let’s acknowledge the obvious problem with a writer getting his script sold. There are simply way more scripts written then could possibly be made into movies.   Every year, Hollywood releases between 400 and 500 new movies.  Of these, about one-third are remakes, sequels, or based on other pre-existing material.  So, considerably less than 400 movies per year are based on original screenplays.  Yet every year hundreds of thousands of screenplays are registered with the Copyright Office or the WGA[1].  That presents a problem.  The studios, although large, do not have the manpower to read and evaluate all the scripts that are written every year.  They need a way to filter out the bad scripts from the good ones so they don’t waste their time reading scripts which have no chance.  And that’s where agents come in.

The agents (both big and small) are, in effect, Hollywood’s first filter.  Since it is their job to submit scripts on behalf of their clients, they wean out the bad scripts from the good ones.  Since they only get paid if they are able to sell a script, they have a financial incentive not to waste time on scripts that can’t get sold.  The studios trust that if the agent has agreed to take that writer on as a client, then the script will show some potential. If they just took on as a client every writer who came to them and did not discriminate based on talent, then pretty soon producers would stop reading that agent’s submissions.

When writers ask me to submit their scripts directly to the producer, they are trying to avoid the filter process.  But my thinking is that that the process of getting an agent, while difficult, is also necessary for most beginning writers. First, it acts as a reality check.  Many writers start writing scripts with no real idea of what is required, whether it be the proper script format, or knowledge on hold to build the story to a climax.  If the writer has a good story, an agent can assist the writer in honing the script.  If the writer just submitted the unpolished work to a studio, it would most likely go right in the trash.

Another way an agent helps much more than a lawyer is knowledge of the market.  The agent is responsible to know which studio is buying romantic comedies, and which producer is looking for a good horror script.  If you just send a slasher script to Disney or a love story to Troma, you’re wasting your time.

Finally, I don’t submit scripts because I don’t see it as the work of an attorney.  I can certainly help negotiate the deal points of a script contract (and enjoy doing so).  But doing the work of putting the script in envelopes and mailing it to studios and producers is not why I got into law.  That’s the work of an agent.  And if I wanted to be an agent, I’d stop being a lawyer and open up a literary agency.  But until that day (which will probably never come), I’m sorry, but I won’t submit your script.


[1] For my previous article on why screenwriters should not use the WGA Registry, click here

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The “Elly May” Barbie doll lawsuit

A couple of weeks ago, I wrote about the possibility of a lawsuit by Miley Cyrus against the makers of the “Finally Mylie” sex doll.  Miley apparently decided against filing a lawsuit, but a different celebrity has filed a lawsuit over a doll, although this one of a much tamer variety.

Donna Douglas, who played “Elly May Clampett” on the ’60’s TV show The Beverly Hillbillies (still one of the great all time TV theme songs) filed a lawsuit against Mattel for releasing the “Barbie Collector Beverly Hillbillies Ellie May Doll” without getting her permission.  Since the character of “Elly May Clampett” is presumably owned by CBS, the doll itself would probably not justify a lawsuit.  But Mattel put a photograph of Ms. Douglas on the side of the box (you can see it here).  That is definitely a no-no, and someone should have known better.  Now it is possible that Ms. Douglas gave CBS a license to use her photograph on Beverly Hillbillies merchandise when she was cast in the role. But it seems unlikely that such a license would continue indefinitely.  If there is no license, then I believe that Ms. Douglas would have a very solid case against Mattel.  Because the Right of Publicity in Louisiana (where the lawsuit was filed) is derived from the Common Law (as opposed to a statute such as California Civil Code §3344) I could not venture a guess as to the damages she would be entitled to.  But unless Ms. Douglas gets too greedy, I would predict that Mattel will settle this case fairly quickly.

If you want to read the complaint, you can do so here. 

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UNTIL LIFE (PLUS 70) DO US PART – THE WRITER’S PRENUP

For many writers, working with a collaborator is great.  Instead of sitting in a room, alone, staring at the wall, and waiting for inspiration to strike, now there are two of you, sitting in a room, together, discussing last night’s episode of South Park, waiting for inspiration to strike.

            But as any writer who has worked with a collaborator knows, collaboration is like a marriage, and like a marriage, issues of money, control, separation and custody should be discussed and agreed to in advance.  In essence, the writers needs a prenup (a collaboration agreement) in order to ensure that even if the writing doesn’t go smoothly, conflicts with their partner will be minimized and they won’t end up losing the script altogether.  So, here are ten questions you need to ask, and know the answer to, before you start working with another writer.

  1. If me and my partner don’t have any agreement, then who owns the rights to the script?

Under the Copyright Act, the authors of a joint work are co-owners of the copyright in the work.  A “joint work” is defined as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent party of a unitary whole.

It’s safe to assume that in the vast majority of cases, a script will be considered a joint work, and therefore, safe to assume that you and your partner(s) own the copyright to the script equally.

Okay, but what if I want to own all the rights to the script, what then?

That’s fine.  Just as a studio can hire you to write a script, but keeps all the rights, you can hire a collaborator to work with you, but you will retain all the rights.  In order to do this, you need to have your partner sign a work-for-hire agreement.   Under the copyright act, if a writer works under a work-for-hire agreement, then the employer (you) are considered the author of the script, no matter how much work the other writer did.  This means that you alone control who you sell the script to and for how much money.  And if you have a proper work-for-hire agreement, the person buying your script will not need the co-writers signature on the purchase agreement.

A work-for-hire clause should say something like this:

To the extent that Employee Work includes any work of authorship entitled to protection under the laws of copyright, the parties acknowledge and agree that (a) Employee’s Work has been specially ordered and commissioned by Author; (b)  Contractor’s Work shall be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law; and (C) Author shall be the sole author of Contractor’s Work and any work embodying the Contractor’s Work and the sole owner of the original materials embodying Contractor’s Work, and/or any works derived therefrom, including but not limited to the Author’s Work.

And one important catch, a work-for-hire agreement is supposed to be signed before the co-writer starts working.

     2. What happens if I didn’t get the co-writer to sign the work-for-hire agreement before he started writing?

You’re still okay, but now you need to co-writer to sign an assignment agreement, which should include language such as this:

Contractor hereby irrevocably grants, transfers and assigns to Author all right, title and interest in and to such Contractor’s Work (including but not limited to the copyright, trademark, and other proprietary and intellectual property rights therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world, and Contractor waives all moral rights in Contractor’s Work to the greatest extent permitted by law.

       3.  If I do hire another writer, what do I have to pay him?

Anything you want.  I am assuming that you (or your production company) are not WGA signatories and that the other writer is not a member of the WGA.  You can agree to pay the writer a certain sum of money now (i.e., $10,000) or a percentage of money you receive in the future (“50% of any monies Author receives from exploitation of the Work”), or some combination of the two.

     4.  Do I have to give the other writer credit?  And what if I already wrote a treatment and I’m only using the other writer to help with the script?

Again, assuming that the deal is not under WGA jurisdiction, there is no requirement that you give the co-writer credit.  And, unless you are producing the script yourself, you cannot be sure about receiving any credit.  But, even if you are working with someone who is your equal partner, you should discuss and agree to what you want the credit will be.  If two of you are writing the script together, you should discuss whose name will go first.  If you came up with the story by yourself then you can agree that the credit should read

Story by [You]

Screenplay by [You & Partner]

            Again, keep in mind that once you sell your script, the producer may bring in additional writers who might drastically change your script (you wouldn’t be the first).  Therefore, both you and your partner should understand that the credit that the two of you discussed, may not be the credit you receive.  Don’t promise a writer a credit that you cannot deliver.

     5.  What happens if someone wants to option our script, but my partner refuses to deal because he doesn’t think we’re being offered enough money?

That would put you in a tough situation.   If you are joint authors of the script and your partner has not signed a work-for-hire agreement or assigned the rights to you, no producer will make a deal without both writers consent.  In order to avoid this problem, you want to discuss with your partner what your expectations for the script are.  While everyone hopes for that six-figure sale, such deals are relatively rare, especially for unknown writers.   On the other hand, taking the first low-ball offer that comes to you can result in accepting much less than the script is worth.  Another factor to consider is the quality of the buyer.  It’s one thing to sell your script; it’s a whole ‘nother thing for that script to then get made.   Is an established producer or “name” actor optioning the script, or is it an unknown with no produced credits?  Especially for newcomers, having a produced script under your belt can be much more helpful to your career than merely having a few more dollars in your pocket.  Discuss all of these factors with your partner before you go out into the marketplace and have a game plan as to what you want.  And think of a way to resolve a dispute before it happens.  Maybe you can agree that you will let a mutual friend help you decide, or you can simply flip a coin if you come to loggerheads.  But your script (and your relationship) will be much better off if you talk about these issues before there’s any money on the table.

     6.  What if we get halfway through the script and me and my partner get into a huge fight and can’t work together anymore?

A real tough question.  The writer’s equivalent of who gets custody of the baby after the divorce (and the baby hasn’t even been born yet).   If your partner was working under a work-for-hire agreement, that is the equivalent of a surrogate mother.  Your partner has no claim to the script and you should be free to hire another writer to finish the job or finish it on your own.  If you were equal partners on the script then hopefully, the two of you can agree on which one of you will finish the script.  Then, you can agree to some mechanism to determine how much the non-finishing partner will receive from any future sale.  For example, if the script was 50% finished and then you finish it by yourself, you would receive 75% of any proceeds and your partner would receive 25% (his ½ of the 50% he wrote).   If you were the one who came up with the original concept, then you might want to agree at the beginning of the venture that if such a situation should arise, you would be allowed to finish the script.

You could also agree that both of you would finish the script on your own and split any proceeds in the manner described above.  However, putting two scripts on the market that are at least 50% identical would probably be counter-productive.  Or, if you’re both going to finish the script, you could agree to let a third party read both and decide which one is better and should be submitted.  You’re a writer, be creative.  The important thing is to come to a fair agreement so that all of your hard work goes down the drain.

     7.  What about threesomes?

Threesomes can be great, but can also lead to more problems.  For example, what happens if two of you are getting along, but you decide that you can’t work with the third member anymore?  What order will your names appear in the credits?  It’s even more important when working with two partners to think about and discuss these issues before you begin.

And one important thing to note about three people writing teams.  If you are writing under a WGA contract, or if even one of the three is a WGA member, then for any sale, all minimums are doubled.  While this may sound great, what happens if the producer who wants to buy your script for the minimum price doesn’t want to pay any more?   You run the risk of losing the entire deal (100% of WGA minimum being better than 200% of nothing).  You might get pressured to drop one of the members of the team from the deal in order to get the script sold. Again, this is something you just need to keep in mind when working with a 3-person team, so that you can plan accordingly.

 


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Which Podcaster Will Be The First To Be Sued For Copyright Infringement?

Lately, I’ve been listening to a lot of podcasts.  Every morning when I wake, I’ll download a few to listen to while I walk my dogs and for the drive to work.  Some of my favorites (in case you were interested) are The Adam Carolla Show, This American Life, The Nerdist, Hollywood Babble On, The Moth, Slate’s Culture Gabfest and Political Gabfest, Filmspotting, WTF, Comedy Death Ray and Doug Loves Movies

However, listening to some of these podcasts, I often hear fairly blatant acts of copyright infringement.  This could prove very dangerous to the podcaster.  Some of these podcasts have regular downloads in the hundreds of thousands.  So even a minor use could result in a significant claim of damages.  If you are producing a podcast, here are a few things you really need to know to avoid legal liability.

The most egregious violations occur through the use of music.  Most podcasters like to start the program with some music.  So they typically just grab a popular song from their computer and use it to begin the show.  But this is almost always a bad idea.  When Adam Carolla started his very popular podcast a few years ago, he used The Who’s I Can See For Miles in the intro.  Someone must have told him that this was not allowed, and he changed to an Indian Raga version of the same song, apparently believing that since he wasn’t using the original version, he was in the clear.  This is a common error. With the use of music, there are two different rights that must be cleared: the musical composition right and the sound recording right.  The musical composition right is the right that belongs to the composer(s) of the song.  The sound recording right belongs to the owner of the recording of that song.  For example, if I wanted to play the Glee cast version of “Don’t Stop Believin’ during a podcast, I would need permission from both the Journey songwriters (Neil Schon, Steve Perry, and Jonathan Cain), and from Fox (which owns the rights to that recording).

Even if the underlying song was in the public domain (such as Amazing Grace), if the recording was not also in the public domain (e.g., the Johnny Cash version), then I would still need clear those rights.  Eventually, Adam Carolla switched to a Mighty Mighty Bosstones song for the opening, probably because he is friends with the band and they gave him a free license.

Another common mistake is when someone takes a popular song, writes some funny new lyrics, and plays the new version during the podcast to introduce a segment.  “But wait,” I can hear you saying through the computer. “If I write funny lyrics to a song, then isn’t it a parody?  And aren’t parodies allowed under fair use.”

The answer to those questions are “No” and “Yes.” A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way.  Parodies are allowed under fair use.  But these uses would probably not be considered to be parodies because they do not ridicule the source work.  They merely take the music from the well-known work and add new lyrics. If the new lyrics of the song are not making fun of the song (or sometimes the singer), then it is not a parody.  For example, Weird Al Yankovich had a huge hit in the ’80’s with the song “Eat It” and the accompanying video.  While the song itself, would probably not be considered to be a parody, because it doesn’t make fun of the lyrics to “Beat It,” the video of the song is absolutely a parody and a fair use, because it ridicules the “Beat it” video perfectly.

Another common problem with podcasts is using too much of a song.  For example, on the “Who Charted” podcast, comedians discuss (among other things) the songs currently on the Billboard charts.  During the podcast, they often play 30-second clips from the songs to let the listener know about the song under discussion.  This would almost certainly be considered a “fair use” because the song is being directly discussed and the podcast is only giving the listener a taste of the song. But I have heard other podcasters play two or three minutes of a song (usually in the background), just because a song has been mentioned in passing conversation. While there is no hard and fast rule about how much use is a “fair use”, it is clear to me that if litigation were to arise from some of these uses, a judge would be hard pressed to declare that much use as “fair.”

And for some of the major podcasters, a lawsuit could result in the threat of substantial damages.  Most people are aware that the Copyright Act allows a maximum of $150,000 in statutory damages for willful copyright infringement.  However the truth is that very few people actually want to litigate a case where the only thing at issue is the possibility of statutory damages for one act of infringement.  The reason for this reluctance is that the decision on the amount of statutory damages is entirely up to the jury.  And while the jury may award the plaintiff $150,000, it could give as little as $750. With that big a discrepancy in the possible damage award, it becomes hard to risk the substantial sum of money required to take a copyright case to trial (which can easily be over $100,000).

But what if the damages were easier to quantify?  According to §504 of the Copyright Act, a copyright plaintiff can seek the actual damages suffered by him or her as a result of the infringement.   In the case of a podcast that plays most of a song, the plaintiff may argue that each download of the podcast represents a lost sale.  Since most digital songs cost $0.99 to $1.29, with the seller (i.e., ITunes) keeping 30% of that amount, a case could be made that there is a loss of $0.70 to $0.90 per download.  For the majority of podcasters, who may have a few thousand listeners, the actual damages may still not be enough to draw a lawsuit (although it could draw a letter from the record company).  But for the more popular podcasters, such as Kevin Smith and Adam Carolla, they regularly have downloads of 200,000 to 300,000 for each of their podcasts.  A careless use of a song could result in a claim of actual damages of well over $100,000 (and this does not take into account that they would also be responsible for the record company’s attorney’s fees as well.  With the record business having a harder time each year, it is only a matter of time before they seek damages from podcasters as a means of raising revenue.  Just as Righthaven has pursued a business model of seeking damages from bloggers for minor “infringements” of photographs and articles from the Las Vegas Review Journal, it is only a matter of time before one of the record companies decides to go after a podcaster to get a little extra dough.

So what is a podcaster to do to avoid this problem:

1) Be very careful when using music during your podcast and don’t use it indiscriminately;

2) If you are using music in your intro and outro, make sure it is either cleared, in the public domain, or properly used under a Creative Commons License.

3) When using a part of a song that is being discussed, don’t play more than 30 seconds of the song unless absolutely necessary to make the point.

4) Keep in mind that it’s not considered a parody if all you are doing is writing new lyrics to a popular song.  The song lyrics must make fun of the song itself.  Also, even if it is a parody, you can only take as much of the song as is necessary to make your point.  You probably can’t play the whole song verbatim from start to finish.

Keep these thoughts in mind and you will most probably avoid a lawsuit.

 

 

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SHOULD YOU GIVE A PRODUCER A FREE OPTION ON YOUR SCRIPT?

Most new screenwriters share a dream that Stephen Spielberg or David Fincher is going to pluck their script out of a big pile, fall in love with it, and offer them $1,000,000 against 10% of the gross in a pay-or-play deal to produce it.

The sad reality is that what is far more likely is that instead of a sale to a major studio, some little known “producer” will instead approach them asking for a free option on the script.  So I often get calls asking, “Should I give this producer a free option?”  The answer is — as you can probably guess — “It depends.”   In principal, I’m against free options. But let’s go through the pros and cons of granting a producer a free option and you can decide for yourself.

My main reservation against free options is that most of the time the producer is really just acting as an unlicensed agent, trying to sell your script to a studio or production company that actually has money.  If an agent sells your script, she only takes ten percent of the purchase price.  But by calling himself a “producer” instead of an “agent,” the producer can take 50, 60, or even 90 percent of the purchase price, and leave you with the crumbs.  The producer is also not subject to the licensing requirements and oversight that agents have to abide by.

Second, by giving a free option, you have not given the producer much incentive to sell your script.  If he doesn’t sell it, he’s not out any money, so it’s no skin of his nose.  I mean, who do you think is going to work harder to sell your script, someone who paid you $2500 for an option, or the guy who got it for free?   Also, by paying for the option, the producer has sent you a message that he really believes in your script and thinks it could be made into a movie. The producer with a free option is essentially acquiring lottery tickets.  There is nothing stopping that producer from getting free options from dozens of screenwriters and then bringing them all into a pitch meeting.  If one of them sells, that’s great for him.  But he is not giving your screenplay the attention you think it deserves.

But if you are thinking of granting a producer a free option, here are some steps I think you should take to make sure that you won’t be treated too badly.

  • Don’t give free options until you have exhausted all other possibilities.  If you’ve just finished your screenplay, you first want to take steps to obtain an agent, or else get it sold yourself.  You should only give free options on scripts that you’ve given up on selling and if there was no free option, it would just sit in a drawer.
  • Keep the time frame very short, 90 or 120 days.  If the producer complains that it’s too short a time to get it set up, then offer to give him a right to extend the option, but only if he pays you the next time.  You don’t want him out there trying to sell your script forever.
  • Try to make the option non-exclusive.   If this producer wants to take your script out, fine. But since he’s not paying you for the privilege, he should let you continue to try to sell it to others. That way, he only gets paid if he makes a sale, but not if you can get it sold on your own.

I still think that giving free options are a bad idea. In fact, I have yet to hear anyone ever tell me that giving a free option resulted in a sale (I’m not saying that it hasn’t happened, only that I’ve never heard about it.).  I think that giving a free option shows that the writer doesn’t really value his script.  But if you’re going to do it, at least follow the steps listed above.

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The Six Things You Need to Do Before Submitting Your Script to Producers

If you are a writer and you’re about to send your script out for the first time, whether to producers, agents, or contests, here are the six things that you need to do before you send out your script.

1) Register your script with the U.S. Copyright Office. I’ve written previously about the importance of copyright registration and the benefits registration brings the writer.  Even though you may have been told that copyright protection exists at creation, the reality is that the registration is extremely important.  It is fairly easy to register your script on line (and if you don’t know how, I have a post with step-by-step instructions here.

2) Give the Film a Good Title: The title on your script will probably not be the same title when it gets made into a film.  So keep in mind that the person viewing that title is not a filmgoer deciding what movie to see, it’s a producer or agent deciding which of the scripts on the pile on his desk he’s going to take home to read on the weekend.  Be creative.  There are no set rules.  The Natalie Portman/Ashton Kutcher movie No Strings Attached was famously called “Fuckbuddies” when it first made the rounds.  I’m sure that Liz Meriwether knew that title had no chance of remaining on the film but the title got the script a lot of attention.  Similarly, when American Pie made the rounds it was called “Untitled Teenage Sex Comedy That Can Be Made For Under $10 Million That Most Readers Will Probably Hate But I Think You Will Love.”  The Weitz Brothers understood that the script title is a great place to show your creativity.  Be just as creative.

3) Sign A Written Agreement With Your Cowriter(s): How is the money going to be split?  Whose name is going first in the credits?  Who is going to pay any expenses (like postage and copies)?  Now is the time to get all that in writing.  Everyone is very agreeable when selling the script is still just a dream.  But once money is on the table people get all sorts of crazy.  Sign something now.  If you don’t have the money for a lawyer, that’s okay.  Just put something on paper that lays out all the issues that you can think of and both of you sign it.  If there is a problem down the road it’s a whole lot better to have something that you both signed then just your word against your now ex-partner.

4) Make Sure You Haven’t Defamed Anyone: For some writers, scripts are an opportunity to even an old score.  So they use the names of real people (usually ex-girlfriends and boyfriends) and give them horrible qualities.  While this may be cathartic for the writer, it just opens up a can of worms that doesn’t need to be opened.  Change their names to something more generic.  If you are writing about well-known events then maybe that’s not possible.  But for that coming-of-age story based on your own past, you don’t need to use anyone’s real name.

5) Email a Copy of the Script to Yourself: If you don’t have one already, get a Gmail, Yahoo or Hotmail account and then email a copy of the script to that account.  In the subject line, put the name of the script and something like “This is the version that was registered with the Copyright Office on [Date]” Why?  Because at some point the hard drive on your computer will crash and using a service like Gmail ensures that you will always have a backup of the registered version of the script that is easy to get to and free to store.  Yes the Copyright Office has a copy.  But retrieving that copy is neither easy nor cheap, so do yourself this favor.

6) Open up a Folder to Save Copies of Submission (and Rejection) Letters): In the event that you think that someone has stolen your script, you need to prove not only that the scripts are substantially similar, but that the person who stole it had access to your script.  The best way to do this is to keep careful records of who you submit the script to.  Every time you send out the script, put a copy of the cover letter in the folder.  And if you get a rejection letter, put that in the folder as well.  It’s easy to do and that way it will be much easier to show how the infringing studio got a hold of your masterpiece.

That’s it for now. If you have other suggestions, please leave them in the comments.

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How to Register a Script with the Copyright Office Step-by-Step

People often tell me that they find the procedure for registering scripts with the Copyright Office to be confusing.  I certainly agree that the procedure is not as straightforward as it could be.  But to make it alleviate this confusion, this post will explain, with screen grabs from each step of the procedure, how to register your script.

UPDATE: I’ve put up a video showing how to register a screenplay.  You can watch it here.

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That’s it.  See, it’s not so hard.  This example will work for most script copyright registrations.  However, pay attention. You may have some answers that are different. If so, it shouldn’t be so hard that you can’t figure out the changes to make.

If you are having trouble viewing the page, you can download the slides as a PowerPoint here. How to Register a Script with the Copyright Office

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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 http://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.

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