Do your research. Every screenwriter should know the basic concepts of intellectual property and copyrights. Search the Internet to learn the basics of what copyright protection is and what to expect. Note that the definition and relevant laws vary by country, so make sure you use the appropriate sources. Here are a few key terms to begin with:
Types of intellectual property;
Copyrights, what they are and how they work;
How to transfer a copyright (Work for Hire, License, Option Agreement);
How to register a copyright (at the United States Library of Congress);
What is infringement and when does it occur.
Register your work. A copyright registry establishes prima facie evidence of the validity of the copyright and of the facts stated in the certificate (including authorship). Additionally, Supreme Court cases have interpreted that you DO need the registration certificate (just filing is not enough) to sue for infringement. Once you have finished your screenplay, you can access the Copyright Office online registry and have your worked registered for a fee (currently at around $35-$55). Some additional tips:
Don’t have the money right now? Send yourself a copy of the script via snail mail or email so you have evidence of the date you finished the work, and then register when you can. This approach is NOT a registry and does not grant rights or protection. This is just another way to document the date when you finished the work.
How about the WGA’s registry? Works the same as an email (can show date) but does NOT grant rights or protection.
If by the time you get to produce or get a deal for the screenplay you have done significant changes to the content, you should register the newer version as well. Be aware that registering variations of the same work requires you to notify so during the registration process. If you have doubts, consult an attorney.
If you are writing a TV show and have developed different materials (like characters, overall storyline, or major plots), but don’t have the actual scripts, you could compile a show bible and register it. Note that any subsequent works you register will be derivative works of the bible, which requires you to notify so during the registration process. If you have doubts, consult an attorney.
Make sure you have the rights to what you are including in your screenplay. If you plan to adapt a previous work, or include pre-existing material in your screenplay, obtain the right do so in a written agreement or license. This applies to all intellectual property, including: characters, trademarks, real life people’s likeness, song lyrics, etc.
Even if you suspect that what you are doing falls into “fair use” you should try and obtain the rights via a written agreement. Fair use is NOT a permission to use: it is a defense in court (meaning you will need to get sued first, pay a lawyer, go to court, and then allege it is fair use).
Works in the public domain are ok to use in your works, as long as you are sure it’s in the public domain (and understand exactly what “public domain” is. Hint: just because you found it on the Internet does NOT make it public domain).
Co-write the right way. If you’re going to be working with one or more co-writers, put your agreement in writing, before writing. Some of the questions you should answer before moving forward:
Who is going to have the rights to the final screenplay?
Who will manage negotiations with third parties?
How will you be credited?
How will you split compensations and/or royalties?
Who has final say in all decisions?
Who shall be responsible for registering the work in the Copyright Office?
Know when and where to show your script. Early negotiations don’t require the parties to read the script. In fact, a lot of producers and investors consider this a burden during the early stages of a deal, so don’t send unless it is requested. Here are a few tips to maintain control over your script:
Have a long synopsis ready to share, where you describe in detail your entire script in story format. You can also register this synopsis as an adaptation of your script for extra protection. Be aware that registering variations of the same work requires you to notify so during the registration process. If you have doubts, consult an attorney.
Keep a list of everyone you share the screenplay with, with dates and purpose.
Everytime you share ask for confirmation of receipt via email, or signed if by hand, or by certified mail. This could help to prove access if you ever find yourself in an infringement suit.
Know who you’re dealing with. Do some research on your counterparts in any negotiation. Here are a few ideas:
Look them up on their website, Linkedin, imdb (imdbpro offers even more information), and social media.
Ask other industry colleagues who have worked with them in the past for details on how the projects were carried out, if they paid on time, and other relevant details.
Google them along with some terms like “lawsuit” and “infringement” for potential red flags.
Understand the deal. What is being asked of you exactly? Are you being commissioned a script under a work for hire capacity? Are you receiving an offer for an option? Or are you just applying for a contest/program? All of these require different things from you and being clear from the start will help you manage expectations and be prepared for the next steps ahead. Never sign anything without reading and understanding, what you are getting into. When in doubt, always consult an attorney. Here are some examples of possible deals:
If it’s a “Work for Hire”, someone is asking you to write a script for them, which means you will need to sign a contract giving away your rights to the script in exchange for compensation.
If it’s an option, someone may, or may not, buy the rights to your script eventually. While they decide, there could be a period of time where you cannot offer your script to anyone else.
If you are applying for a program or a contest, there may be no obligation from the other part to give you anything in return. Always read the fine print!
Non-Disclosure Agreements (“NDAs”). NDAs are a standard document where a party agrees not to disclose the content of what they are receiving. It can be a good idea to enclose it to your script as a way to dissuade them from revealing the contents to a third party, have proof of the date they received it, and maybe have some ammunition if you eventually need to go to court over an infringement suit. However, be aware that many producers and companies refuse to sign NDAs because of the amount of screenplays they receive and the potential of two or more works being very alike without them intervening.
Tip: Although there are many templates online, it is always best to have your attorney provide one, or customize it specifically for screenplays and your project.
When in doubt, consult an attorney. A one-hour consultation should not be too expensive and what you get out of it is invaluable. If your budget is limited, make sure you make the most out of your consultation with the following tips:
Make sure you are visiting an IP or entertainment attorney. This is a specialized branch of the law and even though many attorneys understand the overall concepts, they will generally spend more time researching than an attorney well-versed in the subject (after all you wouldn’t visit a podiatrist if your throat hurts). IP/Entertainment attorneys will also probably have a library full of industry agreement templates, reducing the cost of drafting one from scratch. Plus, they might help you network and connect with other professionals in the industry.
Get there prepared with a list of specific questions, and all the documents you have on the matter. Some attorneys will even ask you to send relevant documents ahead of the visit so you are both prepared upon arrival.
Try to research, and understand, common concepts before your visit so the attorney doesn’t take up as much time explaining them during the consultation.
Most attorneys charge by the hour. If you want to make sure you can afford it, ask for an estimate before your visit.
Entertainment attorneys can also assist you with: Copyright registrations, intellectual property clearances for your screenplay, contract drafting/revision (“Work for Hire”, NDA, Option Agreements, Co-writer’s Agreement), legal entity set-up, government incentives, assistance in financing negotiations, and more.
What to do when facing an infringement lawsuit? If you didn’t take the appropriate steps to protect your work (or even if you did) and find yourself facing an infringement lawsuit, here are a few suggestions on what to do next:
Schedule a consultation with a litigation attorney with a valid license to practice in federal courts, and experience in Copyright matters. If, after your initial consultation with your attorney, you determine you cannot afford their services you should ask for a referral or look into attorneys who accept contingency fees, work probono, or practicing students in legal aid clinics in law schools around you.
If your work is not registered yet, do so immediately. The Supreme Court has determined you need a valid registry to sue, and this could take time.
Be careful what you say, do, or write about the subject. You don’t want to give your opposing party any reason to counter-sue you for defamation, breach of contract, or any other cause of action.
Although at some point you will need to hire an expert to compare your work with the allegedly infringing work, you may be able to reduce the cost if you reduce their work. Prepare your own preliminary copyright report where you single out the specific scenes in both screenplays where you suspect plagiarism. Remember that infringement occurs when someone else copies the way you have expressed your idea, not the idea itself.
About the Author
Maritere Ysern
Intellectual Property and Entertainment Attorney at The Sifre Group
Ms. Ysern has more than 10 years of varied production experience, having worked in commercials, corporate and music videos, short and feature films, and television series, including as writer and director.