So you’ve written a spec script, edited it endlessly, triple checked your work, and now you’re ready to sell...
But aren’t sure of how to protect your efforts from less than honest Producers. As much as we like to think there is a brick wall protecting your work, the truth – like all things in law – is less certain. The best you can hope for is to put yourself in the best possible situation to recover damages should your work be stolen.
STATUTORY vs. COMMON LAW
There are two types of copyrights – statutory and common law. Statutory copyrights are rights granted under a law passed by the legislature. Common law copyrights are those rights that attach to an original work simply by the act of creating. Each form of copyright has unique advantages and disadvantages you should consider when deciding how to protect your work.
Common law copyrights are largely state laws created by courts or legislatures. These laws largely developed before there was a federal copyright system, and were the primary way creators sought relief if their work was stolen. Today they act more as gap fillers to the federal system.
The federal system relies on statutory copyright laws for all but a very few categories of creations. Common law, i.e. state law, rights are pre-empted by federal copyright laws in areas where the federal law applies – meaning, if the federal law covers it, state law is toothless.
The purpose of all copyright laws is to give the creator a limited monopoly over the rights in his work. These rights may be sold, given, or otherwise transferred to others just as you can with other forms of property.
Statutory copyright laws grant specific damages – including attorney fees and costs – when a violation is proven. Common law copyright requires the right holder to prove his damages after he’s proven a violation occurred, and usually does not award attorneys fees and costs.
COPYRIGHT PROTECTION OPTIONS
There are a number of services that purport to provide a screenwriter with copyright protections. The Writer’s Guild of America (WGA) offers such registration service for screenplays for a few dollars less than it costs to file with the U.S. Copyright Office. There are also a number of other sites that claim to offer you copyright protections by registering your script with them. Make no mistake, if you rely on the WGA or other copyright service, you are relying on common law copyright protection. Make sure you understand that - filing a copyright with any entity other than the United States Copyright office only helps you prove a common law copyright existed on the date you filed. It is evidence, not a right to damages.
If you file your screenplay with the U.S. Copyright Office, however, and prove someone violated your rights, you get statutory damages. Statutory damages are those damages you receive by statute – the letter of the law tells the courts how to determine the money they must award you.
It is possible – even likely in many situations – to prove a common law violation, but end up owing more in attorney’s fees and costs than you can recover from the violator. In most cases, a violation of statutory copyright infringement requires the violator to pay your attorney fees and costs when you win. I’m not mathematician, but it’s easy to see how statutory protection affords you better protection than common law protections.
Reputable Producers and agents will often refuse to read a screenplay without a copyright declaration attached. This declaration simply states who owns the rights, and when the work was created. This protects both parties in case a dispute later arises.
Producers receive thousands of spec scripts per year. There are inevitably similarities between many screenplays. More than one writer has seen a movie and thought, “They stole my idea.” Even if that is true, however, ideas are not protected; you only get money if they stole the execution of your idea, i.e. they filmed your screenplay with minimal changes.
The downside to filing a copyright with the U.S. Copyright Office is it becomes a public document. That’s right! Anyone can see it once you’ve filed a copyright since you have to include a copy of the work in your filing. And, since ideas are not protected, all someone has to do is take the idea of the screenplay and change it sufficiently, and you get no credit and no money. I suspect this is the reason most spec writers do not file with the U.S. Copyright Office. That thinking is, however, flawed.
The reality is no reputable Producer wants to steal anything. A Producer isn’t going to make enough money off filming a spec script to last the rest of his or her life – not to mention the labor it would take to sift through the millions of filings to find a gem of a screenplay in the first place. Why would they? People are sending them thousands of scripts per year. They’re too busy sifting through those to start sifting the U.S. Copyright filings. Besides, if you’re that good, they want to pay you so you’ll write for them again.
The not-so-secret of Hollywood is there are no new ideas. The only things new are the execution of old ideas. Every movie follows a trope, and every trope has been executed in one way or another. Proving a particular Producer stole your execution is nearly impossible.
Some of the biggest movies ever made landed their makers in court for copyright infringement. Look at The Matrix, Frozen, Avatar, and the list goes on. The question in such lawsuits rarely involves the ideas conveyed in the movies. It almost always revolves around the execution of those ideas. And, the writers rarely wins.
When you are ready to start pitching your screenplay you have to decide how much risk there is in someone liking your idea enough to steal it, but not liking your execution enough to pay you. Even if your screenplay is purchased, there will be countless re-writes before principal photography ever starts, and many more after filming begins. Filing with the U.S. Copyright Office may give a reader an idea about the end result, but will rarely, if ever, give away the movie secrets.
Secrecy is a quality rarely found in Hollywood, and even more rarely does as much good as it does harm. File your screenplay with the WGA and other sites if you must (don’t waste your money on that), but understand what you’re giving up by not filing with the U.S. Copyright Office. You’re giving up the ability to recoup real damages if your work is stolen.
The best way to protect yourself is to document you creation process carefully, file a copyright with the U.S. Copyright Office, and research those you intend to pitch. Only pitch to reputable Producers or agents. Too many writers are so excited someone is willing to read their screenplay they fail to do any research on that person. A little research, and a thirty dollar filing with the U.S. Copyright Office can help you avoid a lot of trouble down the road should you see your screenplay on the big screen some day.
Michael Selby is guest writer for Script Society. He is an attorney turned screenwriter who has extensive knowledge of the legal aspects of screenwriting. He has recently sold a spec script of his own.