Screenwriting : Legal issues for screenwriters by Dane Johnson

Great (and important) post, Dane Johnson. I see a lot of confusion about registering scripts (registering scripts with the WGA vs. the U.S. Copyright Office). I used to register my scripts with the WGA, but I only use the U.S. Copyright Office now. Can you clear up the confusion for writers?

How would you word a clause like this.

Any changes made to the screenplay during the option period are the property of the writer. Any and all rights of input supplied, suggestions or notes that going to the changes are transferred to the writer.

Basically, when I grant an option I am paid. A producer may come back and ask for some changes. This then muddies the water. Do they have any ownership of the resulting work. They could argue that they paid for those changes and this could give them ownership in part to this version.

So even if I go back to a previous version, pre-option. If any of the new changes I make resembles something mentioned in their notes, again more mud.

Craig D Griffiths, all that is acquired during an option period is the exclusive option to purchase motion picture and ancillary rights. Only after they’re purchased by exercising the option would a purchaser have the right to make changes. If revisions are requested, then there should be a separate writer agreement stating that whatever revision, polish, etc. gets done is work made for hire or assigned. Rights that would stay with a writer even after a purchase would usually be just print publishing, author-written sequels, etc.

Option agreements typically provide that the purchase covers all present and future versions. So if a WRITER decides to change his or her own screenplay while it’s under option, the changes probably go with the purchase. But like most points, it could be negotiated.

Hi Maurice Vaughan, great question that comes up again and again. Thanks for getting this thread going! Quick reminder to everyone that I’m an entertainment lawyer but not YOUR entertainment lawyer unless we have a written agreement. Replies to questions here are for general info only.

WGA and the Copyright Office are useful for different things. Registration with the Copyright Office is the ONLY way to protect a script from infringement and be able to enforce that protection.

Copyright doesn’t protect ideas—only their expression—but that doesn’t mean your earliest ideas can’t be protected at all. Flesh them out enough for a treatment and register that with the WGA. By itself, it has no legal effect. But it’s easy, fast, and useful as a record of your story’s evolution. Once you’ve refined your ideas further into a finished script, register that with the Copyright Office.

Thank you Dane. Yes, during a success option to sale process all the right etc have no confusion attached.

The point I asking is about a not successful option to sale.

A producer asks for a change to make a financier happy. So I make a small change. The option does not go ahead.

But ownership of the new version with the change is the messy bit.

Going back to the original is fine. 100% writers copyright. But the changed version. The Producer does not own the underlying material, the writer does. The changes were made while temporary rights were assigned in the option.

I am after a clause that says the producer assigns any rights connected to the script to the writer unless the producer exercises their rights to purchase.

Have you seen or written anything like this?

An option doesn’t grant any rights in a work except the right to purchase the work for a specific price within a specific period. Rights to revisions (derivative works) would stay with the author unless there was an agreement stating that that the revisions were a work made for hire or assigning the author’s rights in the revisions to someone else.

Your question also potentially raises the issue of joint works. If parties intend that their works will be merged into a whole, then no matter how small one party’s contribution, he or she could become a joint author of the entire work. For any situation like that a collaboration agreement should be written to avoid such a result.

You're welcome, Dane Johnson. Thanks for answering my question. I hope your answer helps writers who have the same question.

Doesn't a "Chain of Title" go hand in hand with registering a script with the U.S. Copyright Office, Dan MaxXx?

True Dane, a traditional option doesn’t necessarily grant writes. I cannot sell it while they have the option, I cannot produce it while they have the option etc. It is a deposit to a sale.

However, I have done work on screenplays to assist the person that has taken the option. This has helped them secure a sale. Which results in them exercising the option.

I will draft a subsequent work clause that expires when the option is exercised.

Dane Johnson an invaluable post, Dane. I wonder if this should be a blog post on the site, to keep screenwriters informed of their rights?

Thank you for your post Dane, I agree with Geoff, maybe this should be a blog post on the site? I'm convinced it would be useful to all of us (and I wonder how it works when you're a non US resident and you sell your work in US, France has rather protectice laws when it comes to writers and artists)

@Dane - this is such a helpful post, thank you for all your expertise! @Maurice and @Stephanie are spot on - I'm passing this thread along to Emily. Would you be interested in writing a blog?

This would be a GREAT blog.

Wow what an amazing post. So kind of you to post this, Dane. And yes, this would make an amazing blog! Question: At the request of a production company (which fell through), I tried obtaining a copyright certificate but was denied because the screenplay I had written was already in print in the form of a book, which I had also written. Do I automatically own the chain of title being the author of the book or do I need to obtain one for that instead?

Shellie Schmals I agree, Shellie. It would be good to have an international series of articles on the blog, covering our rights around the globe.

Leonardo Ramirez, sorry to hear your deal fell through. When a screenplay is adapted from an existing work, a production company wants a copy of some document granting the author the right to adapt it. That’s because the right to create derivative works (such as a screenplay based on a book) starts out belonging to the author. But since authors have that right, I don’t know of a reason why the Copyright Office would refuse to register a screenplay adapted by an author from his or her own book.

It sounds like maybe the registration application wasn’t correct? Copyright protects derivative works, but only to the extent of the new material. In other words, creating a derivative work gives the author rights in the new material but not in the underlying work. When one work is based on another, it needs to be registered as a derivative, and the new material needs to be described on the application.

Dane Johnson About the deal, I'm not sorry it fell through as there was some toxicity on the part of the producer which I won't go into. Things work out for the best and I'm still hopeful and moving forward. About the copyright - that makes total sense and I can see where it may have been part of the registration process that caused it. I'd have to go back and look at it again. Thank you!

hanks for post, Dane. in regards to option of short--Do I just put right into contract want "Written by"credit" required ?also if want different length of time or price--Just delete what buyer sent and type in what I would like? Thank you, jed.

Jed Power, it is all negotiable. As for credit, if you are a WGA writer, then credit is determined according to the guild rules. But you can specify that they be used as the terms for credit even if you aren’t yet WGA. Receiving “written by” or “screenplay by” credit would also be a good reason to ask for contingent compensation.

Thank you, Dale. I am learning!

Hi, Dane, I'd be interested in a discussion of the pros and cons of trying to acquire intellectual property belonging to other people (novels, novellas, short stories, etc.). I'm particularly interested in I.P. from decades ago, for example, a novel written in the 1970s that easily could be made into a modern movie. (It's not out of copyright yet.) I would appreciate advice on how time-consuming acquiring such I.P. could be; in other words, could the potential ROI be worth the time it might take to find the author's estate and negotiate with them? I've read many articles on acquiring I.P. but none have addressed this very practical question. Thank you for the wonderful service you're providing to Stage 32 members.

Jane Peters, you’re most welcome! I would say it all depends on the novel. But it certainly could be worth the time for several reasons. For example, a novel could function like a test of the market for the concept. Studios are more likely to be interested in projects with built-in audiences. Financiers may also have greater confidence in indie productions based on popular existing works. It could also reduce the time needed to write. While adaptations are not necessarily easy, the literary author presumably worked out story points and character arcs that would otherwise have to be created for the screen.

As far as tracking down a deceased author, successful authors are almost always represented by literary agents, who often have the exclusive right to represent film rights. It may be easier to find and contact the author’s agency then the executor of the estate.

Very kind of you to respond, Dave. I did not ask a question but I learned some from you. Glad to have you here on Stage 32.

M LaVoie, David Zannoni here on Stage 32 wrote a helpful post on managing residuals in a CAM: “Under the CAMA, the CAM will create a reserve off the top in the Recoupment Schedule to hold funds for payment of Residuals. Such reserve is commonly referred to as the Residuals-Set-Aside. The CAM will set aside from every dollar received in the Collection Account, a standard percentage for payment of Residuals.”

“Subsequently, the Payroll House will calculate actual Residuals payable and will periodically send invoices to the CAM for the exact amounts of Residuals payable, and the CAM will pay out of the Residual-Set-Aside, the amounts due, to the Payroll House.”

Dane, If copyright occurs at moment of creation , why wouldn't registering with WGA, which gives approximate time of creation, be just as good as registering already copyrighted work with copyright office. What are they giving you except approximate time of creation as WGA IS doing, too? Don't the courts like WGA? What does WGA say about this?.

M LaVoie, publicity and confidentiality are standard contract terms for those involved in films. The studio or production company needs to control them to prevent just the situation you’re talking about.

Jed Power, Copyright Office registration is required before one can sue for copyright infringement.

M LaVoie, one could certainly try to negotiate an option agreement to include an eventual CAMA if a film ever gets past development. But if the film is financed through lenders (almost always the case unless very low budget), it will be completion bonded. A bond company, such as Fintage House, for example, will always require CAM. If the film isn’t bonded (because budget is too low), then the expense of CAM is probably not something the producer would agree to take on.

Dane Johnson thank you for all your answers to these questions, Dane. It’s great to have you here in the community, sharing your knowledge.