Ed. Note: This is a reprint of a an article published earlier this year. I’ll be back with a brand new post on January 1st or 2nd. Hope you’ve all had a nice holiday break.

Most WGA screenwriters are very aware that we do not retain copyright on our scripts. When we sell them to the companies, we do so on a work for hire basis. What that means is that we agree to provide our literary material to the company as an employee, and the company becomes the legal author of the script.

Many WGA screenwriters feel that this transfer of copyright is the source of any perceived or real weakness of our stature in Hollywood, and in fact, if we retained copyright, the “gun” would be pointing the other way, so to speak. We’d be in the driver’s seat, we’d be in creative control, our scripts wouldn’t be rewritten and mangled, and we wouldn’t be fired or ignored at will.

This is not true. In fact, not only is it not true, but if we retained copyright, we would actually be worse off.


The Way It Is Without Copyright

First, let’s lay out the realities that exist now under our current system. We sell a screenplay on a work for hire basis, and become copyrightless employees. As an employee, we are allowed to join a labor union that can collectively bargain on our behalf. As such, we have the right to minimum payment for our work, we have the right to collectively determine the proper attribution for our work (credits), and we receive residuals based on reuse as a reward for our de facto authorship. Happily, we are free to negotiate better terms for ourselves if we can, but just as importantly, no one can undercut us by selling scripts for basement prices or waiving their rights to residuals. If you sell a screenplay to a studio, you MUST do so within the MBA terms. Furthermore, as employees, we are entitled to health care and pension contributions from our employers.

Oh, and we get separated rights! You can read about those here.

The downsides of our current system? After our services are completed, the companies can hire other writers to rewrite us. They can hire directors to change the script as well. Our input is not mandatory for the film process. Also, we must tithe 1.5% of our gross income to the WGA.

Now, let’s look at what happens if we retain copyright.


What If They Let Us Keep Our Copyright?

First things first. If you write something like a spec, you own the copyright on it. If you sell it to a studio, that’s when it becomes a work for hire. Therefore, this choice I’m about to discuss isn’t completely hypothetical. You can actually do this!

I just wouldn’t recommend it.

One of the rights of the copyright holder is the right to create and control derivative works. A movie is a derivative work of a screenplay. Therefore, if you insist on owning the copyright on your screenplay, but you want a studio to produce a film from your script, you must license the right to do so to the studio. Currently, the MBA minimum for selling your original script is $100,000. Currently, the minimum for licensing the film rights to your script is…

…nothing. There is no minimum. You could license it for a dime if you wanted. Or just give the license away.

“Hold on,” you say. “I’m in the WGA! If I retain copyright, there must be some way that the WGA can still protect my rights!”

There is not. The WGA is a labor union, recognized, empowered and regulated by the United States Government. In the United States, labor unions are for employees only. A union cannot accept independent contractors and remain certified to collectively bargain for those employees.

Therefore, right away, here’s what you’re giving up when you insist on retaining your copyright and not working as an employee, but rather as an author who is licensing rights. You give up minimum payment for your work. You give up a guaranteed residual rate, and must bargain for your own royalty rate (and let’s point out…WGA writers can always negotiate better residual rates than are in the MBA, so no guaranteed minimum rate is a huge loss for copyright-retainers). You get no health care contributions and no pension contributions. That’s your problem.

“But,” you say, “at least I’m in control!”

Nope.

If the studio wants to take your screenplay and immediately go into production, they license the film rights from you. Now they are in charge of the film. They have no incentive to grant you any control over that film, and you have no moral right to it once you’ve licensed the film rights.

Of course, it’s a rare spec script that goes right into production. And what if the studio says, “You know what? We want another writer to prepare a new derivative work…a rewrite…before we consider producing this film.”

Here’s the one upside of owning copyright. You can say “no.” Of course, if the sole reward of owning copyright is that you can stop a bad film version of your script getting made, I’m not sure it’s worth losing minimums, health care and pension just for that.

Let’s be frank, though: the only way any studio would ever agree to license your material is if you did so completely. The studios will want to license the full, total and in-perpetuity rights to create new scripts, a movie, a TV series, a play, books, merchandise…EVERYTHING.

We know they would want to do this, because it’s what they do right now. Well, it’s almost what they do right now. Because we’re employees, we have the strength of a union to chip away at some of that (resulting in separated rights and residuals).

As individual copyright holders…it’s just you and your script versus a multinational corporation with a 70 billion dollar market capitalization.

My point is that as a copyright holder, you’d be subject to the same pressures the WGA employee writers are subject to, but without any of the collectively bargained guarantees and protections the employees have in place.

“Wait, wait, wait!” you say. “As the copyright holder, I do have a guarantee! The Berne Convention says that copyright confers certain moral rights that the companies can never take away by license or anything! And that’s why this is all worth it!”

Is that right?

Depends where you are.


The Realities of U.S. Copyright Law

The Berne Convention recognizes that copyright confers the following inalienable moral rights upon the copyright holder:

1. Attribution, i.e. to be properly identified as the author of the work when it is made public, and

2. Creative Integrity, i.e. no one can mutilate or distort the work in such as way as to be prejudicial to the honor or reputation of the author

“See?,” you shout. “I can license away the right to every derivative work from my screenplay, and I can even do so for no money, but no matter what those bastard companies do, they can’t deny me credit and they can’t change my freakin’ words!“

And if you just licensed those rights to a film in any country in the world except the United States, you’d be right. However, the United States Government (and this is a big one) does not recognize moral rights. Actually, they do for visual artists–painters and sculpters and the like–but NOT filmmakers or writers or software coders, etc. etc. etc.

What this means is that as the copyright holder, you can license away every last one of your rights and have NO protections left. Not even a credit protection, or a royalty protection. The companies can and will continue to mutilate and distort your work, because that’s what they do.

Do you think I’m painting too bleak a picture? Well, let’s examine the empirical realities of systems where screenwriters do retain copyright.


The English and Canadians Retain Copyright, So Why Can’t We?

There are three major differences at work in Canada and the UK, as opposed to the situation here in the U.S. First, Canada and Great Britain recognize moral rights. Secondly, and maybe even more importantly, Canada and Great Britain allow labor unions to represent independent contractors.

Thirdly, and most importantly, there is no “work made for hire” concept in Canadian or British copyright law. It’s not an option to be an author-employee.

So, with all of those differences in place, it would seem as if Canada and the U.K. would be writers’ paradises, and yet, we all know that the vast majority of screenwriting done on the planet occurs in the U.S. What gives?

Well, for starters, because the up-front fees aren’t collectively bargained, they tend to be far far lower than those guaranteed to employee-writers. Furthermore, they are often considered applicable against royalties. What that means is that if you get $10,000 for the film rights to your Canadian screenplay, you can expect the producer to reduce the royalties due to you by $10,000.

Imagine if the AMPTP suggested that the fees we earn for our scripts be deducted from our residuals! We’d be on a picket line tomorrow.

But wait. It gets worse.

Unlike our system, in which we have an infrastructure designed to continually and endlessly audit the reuse of products and then exact residuals from the companies on our behalf, the royalty system pretty much leaves the writer at the mercy of studio accountants. Here’s what one Canadian writer has to say about their system:

Producers report these earnings to the Guild on at least an annual basis. The WGC can, theoretically, request that a producer open his account books to prove statements of income, though you will understand that in practice, this is often difficult to effect. In the Canadian system, screenwriters essentially depend upon the honesty, fairness and openness of producers over the life of a project’s distribution – a period that could extend.over many, many years.

For those of you who have met some producers, it’s unlikely that “honesty, fairness and openness” will immediately leap to mind as apt descriptors.

But wait. It gets worser.

The fees for these rights are often determined unilaterally by the producers, especially when the state is the producer. A WGA writer living in the UK reports that the BBC wanted to rebroadcast some old radio shows. They were not compelled to bargain with the Writers Guild of Great Britain. Rather, they unilaterally opted to pay the writers $20,000 for the renewal of the license.

That’s not $20,000 per writer. That’s $20,000 for ALL of them to split up. About $25 per writer. Mind you, those writers owned the copyright on the scripts…but of course, owning a copyright on a script isn’t the same as owning a copyright on a derivative work.

But wait. It gets worserer.

Remember that up-front license fee in Canada? The one that gets subtracted from future royalties? How’d you like to split that with a guy who rewrites you?!?.

In Canada, the first writer “owner” often ends up “splitting” his/her script fee with any any subsequent writers that may come on board later.

You dig that? When you retain copyright, you are an “owner”, and your up-front fee isn’t a labor cost. It’s a license, and it’s divisible, and they can absolutely offer you a contract that requires you to both license away the right to prepare derivative drafts (which don’t violate your moral right to have your draft rewritten, see how clever???) AND divide that license fee with the new guy they contract with. You think people wouldn’t sign contracts like that? They do. With no “undercutting” protection that an MBA and closed shop affords, it is absolutely a race to the bottom.

Now, for those readers who hail from Canada and Great Britain, don’t get me wrong. I’m not beating you guys up for signing bad deals. The fact is that you can’t sign deals like ours because of the nature of your copyright laws. You are forced to be the owners of your work, and while being an owner can have its upside, it certainly has its downsides as well…as you can see.

The fact is that as employees represented by a labor union in the United States, we are far better off than writer/owners who retain copyright in Canada and Great Britain.


A Brief Comparison

For convenience, here’s a brief comparison.

If You Write In The U.S. On A Work Made For Hire Basis
You are guaranteed a minimum upfront fee that is not applicable against residuals.
You are guaranteed a minimum residual rate.
You are guaranteed the right to have your peers, rather than your employers, determine credits.
You are guaranteed the right to have health care and a pension if you meet the basic requirements.
You are guaranteed the protections of a federally certified labor union.
You are guaranteed separated rights if you qualify, and those rights are unwaivable.
You are guaranteed to not be undercut by any other writer working for the signatory companies.

And lastly, you are guaranteed the right to personally negotiate any term that a copyright holder might be entitled to.


If You Write In The U.S. As An Author Who Retains Copyright
You do not have any unwaivable rights.

And lastly, you are guaranteed the right to personally negotiate which terms, if any, you accept for the licensing of your copyright.


Not much of a contest, is it?

So…if retaining copyright isn’t the answer for improving our status, then what is???


Employees With “As If” Terms

There is a perfect world. In that perfect world, the writer is part of a collective bargaining unit, receives minimums and protections, but also receives the very best that copyright ownership can grant.

That philosophy has guided our negotiations stance for decades. That philosophy led to separated rights, residuals, credits determination and our fledgling reacquisition rights. The answer is not to give away all that comes with being an employee (including the ability to best protect our newest and weakest members as well as not be undercut), but to remain employees and try and enshrine more and more rights that are associated with a strong copyright licensing agreement.

Dig that?

The best way we can enshrine the equivalent of a strong copyright licensing agreement is by uniting and bargaining collectively, all the while enjoying the protections of being employees.

We don’t want copyright. We want a deal as if we had copyright. That’s my guiding light for negotiations, and that’s where the pressure comes back from the studios. It’s the smartest and best frontline for our struggle, and that’s where we should aim our firepower.

When we talk about retaining copyright, we’re not talking about empowerment. We’re talking about breaking our union and fending for ourselves. Still, the more we know about the promise that copyright holds, the better a deal we can wrest from the studios.


ERRATA: While the BBC threatened to unilaterally determine a crappy royalty rate for the reuse of the radio broadcasts, they actually could not do so lawfully because the UK writers retain copyright. Instead, the WGGB collectively bargained on their behalf and got them more like $75 per writer. This is still a low number, but it’s certainly better than $25. What’s interesting about this is that UK copyright law apparently views the recording of a radio broadcast as a performance (and so, not new intellectual property), whereas US law clearly views a recording of a radio broadcast as intellectual property, and not a performance.

I was also wrong to suggest that there are no minimums for copyright holders in the UK. Because the UK allows unions to bargain on behalf of independent contractors, they can get copyright holders minimums. In the U.S., however, there is no such protection for copyright holders.

Curiously, UK copyright law, which is far more favorable to the writer than US copyright law, has not led to a stronger economic conditions for British writers.

13 Comments »

Novelizations
are covered…Ed. Note: This article was published earlier this year. A commenter in another thread asked a question about novelization rights, which are covered by separated rights, so I thought I’d reprint this as a refresher course for our newer readers.

It’s probably a sad commentary on my own curiosity that I’ve been hearing the phrase “separated rights” since 1995, but only really understood what they were about a year ago.

Separated rights sound kind of complicated, but once you look closely at them, you’ll see there’s nothing too difficult about it all. However, since one of our commenters who happens to be a Board Member (his last name rhymes with “Mawton”) displayed a shocking…I say shocking!…unawareness of one of the basic separated rights, I figured it was time for a brief primer. Mind you, this article is only about theatrical (i.e. movie) separated rights. The TV version will have to wait for another time.

First, let’s remind ourselves (because it’s been four whole days) that when we sell literary material or are hired to create literary material for the studios, we do so as a work made for hire.

As the de jure author of the screenplay, the studio would essentially hold all rights that come along with copyright ownership. However, writers have managed to carve out a few of those rights for themselves. They’ve separated those rights away from the large list of the rights the companies have not given up.

Before we get into what those reserved, or separated rights are, let’s first discuss who gets them.

In order to receive your separated rights in movies, you basically need to do one of the following:

1. Write an original story (treatment) or screenplay and story, and receive “story by” or “written by” credit for doing so.
2. Write a story (treatment) or screenplay based on underlying material (novels, plays, etc.), but create a substantially different story than the one contained in the underlying material, and receive “screen story” or “written by” credit for doing so.
3. Write a story (treatment) or screenplay based on underlying material that you do not have access to (e.g. an out-of-print book).

Given those rules, you can see that the most typical way a writer receives separated rights is by being a credited writer on an original. Another important point is that separated rights are assigned for story authorship, not screenplay authorship. “Screenplay by” isn’t enough to get you separated rights. You need to either receive “story by” for an original or “screen story by” for an adaptation. Since the “written by” credit includes a credit for story authorship, that also qualifies.

Now that we know what you need to do to qualify for your separated rights, let’s look at what they actually are.

1. Publication Rights: You control the right to publish the screenplay and books based on the screenplay. The studios still have the right to employ a writer to create a novelization of the screenplay, but they must offer that job to you first, and even if you decline to write the novelization, they must still pay you a minimum fee.

2. Dramatic Stage Rights: This is the one Mr. “Mawton” forgot about. After the release of the film, the company has two years in which to produce a stage version of the screenplay. If they fail to do so, the writer now controls the right to produce a stage version.

3. Sequel Payments & Credit: If the company produces a sequel to the screenplay (for theatrical or television), the writers with separated rights receive WGA minimums for those sequels. In addition, the writers get a “Based on Characters Created By” credit for theatrical sequels.

4. Mandatory Rewrite: This one’s sort of a cool one. If you sell or option a spec, you must be offered the first rewrite. What’s interesting is that this separated right is obtained prior to the awarding of credit. Obviously, it ceases to be relevant once the first rewrite is complete.

5. Meeting With A Production Executive: Works on the same basis as #4. If you sell or option a spec and then do your rewrite, the company must let you meet with an executive before they fire you. This is the “right to grovel for your job,” so let’s move quickly past it to…

6. Reacquisition: I just wrote an article about reacquisition here, so follow the link for the full skinny on this separated right.

So, now you know. Go impress a lawyer. But more importantly, when you begin a new assignment or take a new job, ask yourself whether or not you’re going to receive separated rights. True, published screenplays aren’t exactly bestsellers, and it’s rare for films to be made into stage plays. Nontheless, it happens (see this new play for instance). What’s more, those sequel payments can come in very handy.

6 Comments »

Ed. Note: This article was originally a post I wrote on WriterAction. I subsequently revised and published it here in January of 2005.

So, the theoretical question has arisen: how is it ever possible that a group of writers could write scripts connected by a single chain of title, and yet some of those writers would not be considered participating writers by the WGA in an arbitration?

Here’s my explanation, informed by my reading of the MBA, but no less informed by a discussion I had with Ted Elliott, who crystalized the “as if” theory (more on that later).

Participation Isn’t Defined by Employment, But By Contribution of Intellectual Property

First, some definitions. Per Schedule A, Paragraph 9 of the MBA:

A writer who has particpated in the writing of a screenplay, or a writer who has been employed by the Company on the story and/or screenplay, or who has sold or licensed literary material subject to this Basic Agreement, shall, for the purpose of this Basic Agreement, be considered a participant.

Pretty simple. If you participate in the writing of a screenplay, either as an employee, spec seller or just some dude who wrote stuff, you’re a participating writer (by the way, if we eliminated “A writer who has participated in the writing of a screenplay, or”, we’d have ourselves Writing Credits For Writers Only, but that’s a whole ‘nother discussion).

Next definition…what does copyright protect in regards to written works of art? The U.S. Copyright office says:

Copyright will protect the literary or dramatic expression of an author’s idea but not the idea itself.

So, first thing’s first. Let’s say I have an idea for a movie. “A high school outcast learns about life and love from a martial arts teacher.” The first question is…can I copyright that idea as it pops out of my head? No. It needs to be expressed in a fixed form. Okay. I write it down. I now own the copyright on that fixed form, i.e. that piece of paper with those words on it and any mechanical reproduction (xerox) of that fixed form (piece of paper with words on it). Does that mean no one else can use that idea? No. I could only own the copyright on the literary expression of the idea (which I haven’t written yet), but not on the idea itself.

A treatment or script is considered a literary expression of an idea. A logline MIGHT be a literary expression of an idea if it is specific enough. A premise, however, generally doesn’t pass the test of copyrightable.

Yes, this means you are absolutely free to write a movie with the same damn idea as The Karate Kid. You just can’t steal the specific manner in which that idea was expressed in a fixed form, because the literary expression is protected.

Okay. So…let’s imagine a world without studios. Yes, I can actually hear some of you sighing with joy.

In the world without studios, writers come up with an idea (which is not copyrightable), and then they write a script (which is copyrightable because it’s a literary expression of the author’s idea). Now let’s say that Harry has the idea about the kid who learns karate. Harry writes the script, and now he owns the copyright on the script…but he decides in all honesty that his writer friend Joe could really improve the script if he let him contribute to it. He offers, as the copyright holder, to authorize Joe to revise the work.

Joe agrees, but he makes a reasonable request of Harry. “Let’s say I contribute a lot to the final version. My unique literary expression (exluding elements borrowed from you) is copyrightable too, even though it’s derived from your initial literary expression. How will we determine authorship, or credit, for the final script?”

No problem! There’s a Scribes Union of writers who agree to submit to binding arbitration in cases like these. The SU says, “We analyze the drafts and then decide what a fair credit should be based on your individual, copyrightable contributions to the final script, paying careful attention to chronology as well as reuse of elements, etc.”

And so it goes. Joe rewrites you, the two of you submit to a binding arbitration as participating writers on the script, and you’re happy.

Ah, but there’s a wrinkle. Some dude named Fred says, “Hey! I wrote a different script based on the same idea of a high school outcast who learns about life and love from a Karate master! I should be a participating writer too, even though I don’t know these other guys.”

The SU arbiters read his script and respond as such: “Fred, we believe the only thing similar between your script and Harry/Joe’s is the idea. Since idea is not copyrightable, and written literary material is copyrightable, we believe you didn’t contribute any written literary material, so we don’t believe you meet the standard of participant in Harry & Joe’s script. That’s the bad news. The good news is that, in turn, they aren’t participating writers in your script either. You are free to exploit it without worrying about them asking for a piece of the profits, just as they are free to exploit their script without sharing profits with you.”

And that seems reasonable, right?

Now let’s re-enter our world. Yes, Virginia, there really is a studio.

Without getting into the why of it all, when a screenwriter sells a script to a studio, he is also transferring the ownership of copyright. The legal author of every script that Paramount owns is, in fact, Paramount Pictures.

But wait. It’s not The Godfather, written by Paramount. If writers aren’t the legal author, why do they get credit?

We get credit because we bargained for it, and we get to determine which participating writers get credit, because we bargained for that. Still, we’re in the weird place of assigning credit to writers who hold no copyright claims! So how do we do that?

We do it as if the participants all DO hold copyright claims. The WGA, much like my hypothetical Scribes Union, determines screen credit on the basis of copyrightable contributions (unique literary expressions in fixed form, yadda yadda).

This is important for the same reason it was important back at the Scribes Union. Here in reality, years after Karate Kid was made, a movie was released called “Showdown.” Showdown was about a high school outcast who lusted after a girl whose violent boyfriend was a karate master. Only by learning karate from a mysterious school janitor could he face off against the boyfriend and win the girl. The guy who wrote Showdown did not violate the copyright of Karate Kid because he only used the same idea, but created a unique literary expression of that idea called “Showdown,” and apparently did so demonstrably enough to avoid being sued for plagiary of dialogue, specific characterizations, narrative, etc.

Ooh, big deal, we protected the Showdown guy, right? Ahh, but by saying that Showdown is a unique work distinct from Karate Kid, we’re also protecting Karate Kid. Should they ever want to remake Karate Kid (and honestly, we can’t be more than five years away from that), they’re not going to have to deal with a lawsuit from the writer of Showdown.

Okay. So…finally we get to the sticky problems caused by the chain of title. If you’ve read this far, I promise you…we’re almost there.

Studio A buys Harry’s original script. They now own the copyright. They hire Joe to rewrite it. Then they decide that they really hate this thing, but Studio B is willing to buy it (ownership of copyright) out of turnaround, keeping the same producer along for the ride. The producer and Studio B sends the script to Fred, in the hopes that he can improve it.

Fred comes to them and says, “Guys, I read the script. I read it fifty times. I’ve memorized it. And I hate it. The only thing I like is the idea, but I have a completely unique literary expression I’d like to put in fixed form based on this idea (Fred is such a fucking geek). My unique literary expression has absolutely nothing in common with the copyrightable elements of the prior scripts. It may, however, have uncopyrightable things in common…i.e. not-unique literary expressions like ideas. For instance, I love this notion of a high school outcast who learns about life and love from a karate master. But that’s it. Everything from here on out will be unique and original to me.”

Fred is hired by Studio B AND by the same producer who was attached to Harry and Joe’s script, and he goes off and writes. The script gets the green light, and they shoot KungFu High!

When it comes time for arbitration on KungFu High!, Studio B follows the chain of title when determining how to list partcipating writers. They list Harry, Joe and Fred.

But Fred calls the Guild and says, “Wait a second. We determine credits as if we were the copyright owners of our unique literary expressions in fixed forms, which is why KungFu High can’t, say, be ‘written by Studio B.’ But that means the chain of title is totally irrelevant, because chain of title only reflects studio ownership of copyright, not the in-truth authorship of the scripts that this Guild is trying to determine. All that matters is whether or not the material I wrote can possibly be considered a work derived from another copyrighted literary expression. And I’m saying…it’s not. I’m saying KungFu High is totally unique to me with the exception of the uncopyrightable IDEA…and so Harry and Joe aren’t participants in the writing of it.”

And Fred then realizes something else. “You know what? I could have read Harry and Joe’s script, and THEN written my exact same script for Studio X, which has ZERO chain of title going back to Harry and Joe! And neither Studio A nor B nor Harry nor Joe could have sued me, because I didn’t take anything copyrightable from them. That means they contributed nothing copyrightable to my screenplay, which means they are no more participants in it than anyone else you’ll meet on the street.”

And Fred turns to Harry and Joe and says, “By the way, this also means that I’m not a participant in your script, which means that if Studio B chooses to exploit your version, I won’t be able to seek credit on that movie.”

The Guild now has a decision to make.

Is Fred right? Does his script contain zero copyrightable literary material taken from Harry and Joe’s script? The fact that he read their script is irrelevant, just as it’s irrelevant that the writer of Showdown most likely watched Karate Kid on cable. Regardless of the chain of title, do the two incarnations of the project (a term of economic, rather than creative, distinction) share anything in common other than the uncopyrightable idea?

The Guild will read the scripts and make that decision. However, there IS a decision to be made. Unity of the chain of title doesn’t necessarily preclude a complete division of copyright.

PS: Suddenly, the fact that the studio/writers of “Vice Versa” didn’t get sued by the studio/writers of “Freaky Friday” starts to make sense, right?

19 Comments »

We ain’t himEd. Note: This is a reprint of a post that was first published February 5, 2005. You may click here to view the original comment thread, or feel free to comment under this reprinting.

For as long as I’ve been a working screenwriter (nearly a decade now), I’ve been hearing versions of the following argument: “Playwrights retain copyright! Playwrights can’t get fired! No one can rewrite them or change their words! Why aren’t we screenwriters treated like playwrights?”

And for nearly as long a time, I thought the answer was simply that the typical compensation and employment opportunities for screenwriters were much more substantial than those for playwrights.

Well, I was wrong. While the above is true, it’s not the reason we’re treated differently. No, the real reason goes to that good ole “c” word we like to bandy about here at The Artful Writer.

Yeah, it’s copyright.

Again.

Performance vs. Derivative Works

At the height of the battle against the possessory credit, I recall John Carpenter (a man so enamored of the possessory credit that he routinely features possessory titles like John Carpenter’s Ghosts of Mars) saying something that really pissed me off.

“As a director, I am the author of my movies. I know that’s not a popular view with the writers, but I’m sorry. If the writer thinks he’s an auteur, then let him thread up his screenplay in a projector and we’ll take a look at it.”

Well, as it so happens, I don’t think the “auteur” of a film is either the director or the writer. No one is the auteur of a film. I believe, almost evangelically, that studio films are collaborative. The concept of “film authorship” is prima facie absurd. You can’t thread a screenplay through a projector any more than you can shoot footage without actors, a DP, gaffers, grips, production designers, costumers, etc.

But let’s stick with the relevant point. Carpenter was definitely right about one thing. A script is not a film. It’s a piece of non-film intellectual property. The owner of that intellectual property has certain rights, and one very important one is the right to prepare derivative works.

Federal copyright statute defines a derivative work as:

…a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a �derivative work�.

In short, if you take a screenplay and recast it or adapt it or use it as the basis for a new work, then you have created a derivative work.

A film is a derivative work.

The important thing to understand about derivative works is that they, too, are also intellectual property. They get their own copyright. In a simple world, a writer writes a script. Copyrighted. The writer prepares a derivative work from his own script, as is his right. The new work, a film, is now also copyrighted, and the screenwriter cum filmmaker owns the copyright.

Note that even in that simple world, the writer must transform the script into a film. After all, the only exploitative value of a screenplay is precisely its ability to be adapted into a derivative motion picture work.

A screenplay is intellectual property created solely to be transformed into new intellectual property.

Now, let’s talk about our playwright friends.

A play, just like a script, is copyrighted intellectual property. However (and this is the crucial distinction), the play is not meant to be transformed into a new intellectual property. With some general exceptions, there are no easily-exploitable derivative works to be made from the play.

The play is meant to be performed.

Remember that in order for something to be considered intellectual property, it must exist in a fixed form. A performance is not a fixed form. When someone struts and frets his hour upon the stage, it’s over when it’s over. It’s gone. You cannot copyright a performance.

As such, financiers of plays allow playwrights to retain the copyright because it’s not of tremendous value. The real prize is the license to perform the play.

Now, let’s return to the screenwriters. In our case, the performance of a screenplay is practically worthless. No one wants to go see actors sit in chairs and read a script. In our case, the primary exploitation of a screenplay can only occur if the studio has the right to prepare derivative works.

As it turns out, the cleanest and most advantageous way to secure exclusive rights to prepare derivative works is to be the author of the original work. This is why studios purchase original works on a “work for hire” basis, which makes them the copyright holder of the intellectual property.

Of course, the film isn’t the only derivative work one can prepare from the script. There’s merchandising, novelizations, theme park rides, songs, and, of course, other screenplays.

Rewrites, in other words.

As it turns out, movie studios are pretty good at exploiting the value from their properties. Much better than individuals generally are. And the commoditization of film and DVD’s makes the marketplace much larger than that for plays.

As such, copyrightless screenwriters have, on the whole, greater job opportunities and higher paychecks and better benefits than screenwriters with copyrights (typically in Europe) or playwrights.

Even if we did retain copyright, its value would be endlessly diluted by licensing arrangments, so it can’t be that the copyright itself is the Holy Grail. What screenwriters really hate is the fact that by selling the very authorship of their screenplay, they are enabling the new author to prepare new works, both revised screenplays and films, without their input or approval.

This, unfortunately, is a byproduct of the incremental nature of the screenplay: a work that, unlike any other fictional literary work in existence, is designed specifically to be transformed into another work.

Does this excuse some of the mistreatment even the best of us receive? Certainly not. Yet, understanding the basis of our current position is the first step towards improving it. Here’s hoping.

34 Comments »

Why are we the only ones in the movie business who get hired and fired like migrant workers? Why are we writers the only ones in the movie business who create story and are then ignored or belittled? Why are we the only ones who get overlooked when it comes to press and marketing? Why are we the only ones forced to implement ridiculous notes? Why are we the only ones who literally save movies from being complete disasters, only to be overlooked and forgotten and uncredited?

Why, oh lord…whyyyyyyyy?

Hey, we’re not the only ones.

For a long time, I’ve said that actors get attention because they’re pretty and fascinating (undeniable) and directors in film retain enormous power because the economics of the movie business make them the most important individual in the chain of production (arguable, but I think I’m right).

This means that writers get the short end of the stick not because the world has it out for us, but because the business’ default position is to not care about anyone unless there’s good cause, i.e. a clear connection to profit or protection of investment.

In the sense that the dismissal of writers isn’t particularly intentional, but is instead more a function of a general callousness, it has to be pointed out that we’re not special. I know this may come as a disappointment to those who have invested a large amount of personal energy in the “persecution” model of screenwriting, but it’s true nonetheless.

I know this because I see it happening to others. Actually, I see it happening even more egregiously to others.

Take the case of the film editor.

When you watch a film editor work, it becomes immediately clear that they are story tellers. They’re telling a story in a very different way than we writers do, but they’re doing it nonetheless. As fate would have it, they are not beholden to the script. They are beholden, instead, to whatever film it is that the director (to a lesser extent) and the company (to a greater extent) desires.

Given that they are not beholden to the script, their creative freedom in telling the story is enormous. With mere frames, they can change a character from bold to shy, from hero to goat, from predator to prey. They can rewrite the entire narrative of the movie (yes…rewrite…what else to call it?). And yet, they are overlooked, ignored, unattended to, hired and fired with abandon, occasionally stacked three or four at a time, re-edited and re-edited again, and constantly under the barrage of notes from people who do not understand the limitations and requirements of their craft.

Sound familiar?

Of course, they tend to get paid less as well.

As we head towards the end of the year, here’s a toast to all of the put-upon, ignored, toiling away in the dungeon storytellers in this town. No one knows we’re here, no one cares we’re here, no one will miss us when we’re gone…

…but if we really needed all that validation, we would have taken acting classes, right?

55 Comments »

Oh, me…I’ve talked before about an apparently intractable schism in the professional writing community–one on side you’ve got so-called “first writer advocates”, and on the other side, you have so-called “rewriters”.

Putting aside the relative sloppiness of those names, I’ve decided to lower my lance and tilt firmly at one of the most persistent and inaccurate myths of screenwriting.

The “first writer” does not necessarily do anything special or more difficult than subsequent writers on a project.

Going first isn’t harder. Going first isn’t special. Going first doesn’t earn you a halo or a special place in writer heaven for your sacrifice.

Going first is just…going first.

The martyrous argument sounds a bit like this. “Nothing is harder than the initial act of creation. The first writer faces a blank page, and the first writer creates a world out of nothing. Any writer brought in to revise the first writer is working from a head start. They’re standing on the shoulders of the first writer. Rewriting isn’t real writing…it’s something lesser and derivative.”

Bullshit.

I say this as a writer who has done both. I’ve written originals and I’ve rewritten other writers. There is no correlation between chronology and difficulty or effort.

There are many instances in which a company commissions or purchases an original screenplay and then determines that little beyond the basic idea is worth saving. At that point, a subsequent writer may be brought in to do a “page one rewrite”, in which everything is reimagined. Having done a few of those, I will argue that page one rewrites are more difficult than writing originals. Why?

First, consider the nature of the first writer’s generous grant to the subsequent writer–the idea.

Having an idea doesn’t take effort, nor does it earn you any spiritual or professional regard. Ideas are worthless. Literally. They are not intellectual property. They are not possessable. They are not creditable.

The process of creating a fictional narrative from an idea is writing.

The original writer “has” an idea (and it’s not really original…seriously…find me an idea that no one’s already used in some form or another, and I’ll buy you a car) and then writes a narrative. The owner of the narrative says “this is bad” and hires someone else to fashion a new narrative.

That writer faces the exact same task as the first writer, with one slightly daunting difference: he has less creative freedom. He’s not free to make some of the bad choices that the first writer made. In fact, unlike the first writer, the second writer is aware that there are certain mine fields to be avoided at all costs.

Think that makes writing easier? Nope. It’s harder. It’s useful information, but the task becomes more difficult when you can’t take one or more of the readily apparent or easy paths the first writer was free to wander down.

Still, the first writers will say that the second writer has the subconscious gift…the advantage…of the first writer’s work. The first writer’s work necessarily spawns some kind of narrative “rolling start” that the second writer can use.

That would be a very convincing argument…if the first writer hasn’t read any books or seen any movies or television shows in his life.

We all have a rolling start when we write. The very nature of screenplay is grounded in the collective story sense we all carry in our heads, be it by instruction or genetic code. We constantly crib from mythology, from the Bible, from movies, from plays. My approach to writing an “original” draft is absolutely no different than my approach to a page-one rewrite.

Same process. Same effort.

Entirely different reward.

Ted and I had lunch today, and he told me a funny story that revolved around the phrase “post hoc ergo propter hoc”.

Yes, we have odd lunches.

Anyway, when it comes to screenplays, it seems that many people hold the fallacy of post scriptum ergo scriptum deterioris.

“After the screenplay…therefore a lesser screenplay.”

By the by, if anyone knows Latin, let me know if I’ve gotten the syntax correct.

First writer advocates may carry this slogan into their battle with rewriters, but the only writers they’re hurting are themselves, of course. By classifying rewriting as a lesser process, they’re giving away a secret about their own work process, and the news isn’t good. Rewriting can be, and often should be, just as difficult and demanding and important as the first draft. Only writers can be so odd as to think that a page filling process is superior to a page changing process.

If you have problems getting to the end of your screenplay, that might be true…but that’s not my problem. It’s your problem, and I don’t like be punished or discounted because you think filling pages is harder than deleting the whole mess of them and starting again.

Post scriptum ergo scriptum novum.

After the screenplay…therefore a new screenplay.

So climb down from the cross, wouldja, my fellow first writers?

183 Comments »

A: If you’re hoping for some kind of Algonquin round table, don’t hold your breath.

The emailer asks a question I’ve heard before, and it’s a good one. Most writers are hermits and slugs who sit in small rooms and lose themselves in their own imaginations, which is precisely why they can see the benefit of living and working in a very different way.

What we want is the comraderie of fellow screenwriters with whom we can commiserate, laugh, share ideas, exchange comments and critiques, and bond over our unifying love of writing for television and movies.

Sorry. That’s what we think we want. The second we find ourselves in some kind of actual social circle like that, we usually start planning an escape route, or, barring a convenient exit, a method to quickly and untraceably kill everyone around us.

Perhaps I’m being a bit too curmudgeonly, but unless we’re actually working with other writers on some writing, the pressures of being both friends and competitors can overwhelm the best of intentions. Our desire for exchange of comments and critiques becomes a quest for approval, and any disappointment in that regard is noted on some internal ledger and paid back in kind. The need to commiserate evolves into either whining or false humility.

That’s the dim view, of course.

Here’s the positive view.

I find that most of my writer friends (and I have a bunch) work in a different genre and field than I. Specifically, my writer friends tend to work in reality TV. It’s a great arrangement. We’re similar enough to be relatable, but are dissimilar enough to avoid the traps.

As for screenwriter friends, I have a few, but they all share something in common.

They’re all better than I, and they’re all more successful than I.

This isn’t calculated. It just happens. I think it’s probably motivated by the fact that I find them more interesting than screenwriters who are living what I’m living or have yet to go through what I already have. A happy side effect is that there’s nothing for me to get hung up on.

As it so happens, none of them seem to have the problem of being friends with me, and I thank them for that.

Still, the friendships aren’t of the sit-around-the-table-and-laugh variety. They’re telephonic, mostly. Some of my screenwriter relationships aren’t even telephonic. They’re textual.

You know what? Textual relationships can be very satisfying too. That’s what I started the forum. Ted and I probably see each other in person once every few months, but phone and email pretty much covers it. John August and I probably wouldn’t count each other as “friends” in the normal sense of the word, but I have no problem emailing him as a friend when I have a question or thought, and the same goes for him.

Frankly, that’s worth more to me than the thought of hanging out with a bunch of writers in person. I know that there’s a romantic buzz about the whole thing…the Algonquin round table in New York, or the screenwriters’ hangout at the old Garden of Allah in West Hollywood…but for me, I’d rather expend my social energy in a different vector. I spend a lot of my time writing and thinking about writing. The remaining time is mostly for my family. It’s possible that I’m unique in this way…

…but I don’t think so.

34 Comments »

20-20 vision, yo…After taking some expected abuse for my article on real-life mentors and why they’re mostly worthless, I figured I’d leave off the tough love angle for a bit and talk about the kind of mentors I like.

The character archetype of The Mentor is one of the classics, and that’s why the Mentor often seems lame. After thousands of years Mentoring heroes, it’s getting to the point where we cringe at the thought of the alcoholic sports coach or the wise old woman or the dance instructor who bangs a big stick on the floor and promises to “make you sweat!”

And yet…the Mentor is one of the most useful characters. Mentors let us watch our protagonist struggle and grow. They give our characters secrets and wisdom. Without them, our heroes can seem lost or, at the very least, friendless.

If they’re grumpy types, that’s fine. If they’re fresh-faced young kids from Reseda trying to fit in with the Encino crowd by learning karate, it’s a bit harder.

As always, my advice circles back to the relationship between the character in question (The Mentor) and the elemental dramatic proposition of the story you’re telling (Theme). What is the Mentor’s relationship to Theme?

Simple.

The Mentor knows the Theme.

This suggests a new problem. If a Mentor–and let’s say for the sake of example that we’re talking about Glinda the Good Witch–is defined by her knowledge of the Theme, and the protagonist, Dorothy, is defined as a individual ignorant of the Theme who must come to learn the Theme in order to succeed, then why doesn’t the Mentor just TELL the hero the Theme?

Ginda could certainly float down in her bubble and say “Dorothy, you shouldn’t have run away. There’s no place like home, and you truly do appreciate your home, don’t you? You do? Good. Click your heels together three times. Trust me. It’ll save you a lot of trouble.”

Most people will tell you that Glinda doesn’t do this because Dorothy needs to learn this lesson on her own. After all, if Dorothy is just told the Theme but doesn’t survive the Wicked Witch and the Flying Monkeys and the apple-throwing trees and the Palace Guards, then she won’t really have learned the Theme.

It’s true that Dorothy does need to go through this on her own. The problem is that this makes Glinda psychotic. Suddenly, she’s a hoop-skirted version of the villain from Saw or Se7en. She knows the simple trick that gets Dorothy home, but she’s going to watch as Dorothy enters a serious of potentially deadly predicaments, because you can’t really know something until your friend is set on fire, right?

Well, that doesn’t seem quite right, does it?

So what’s the reason Glinda does what she does?

Here’s my big theory on Mentors. Ready?

They’ve seen the movie.

Hmmm?

Yeah.

Glinda isn’t just magical because she’s a witch. She’s a god, and she is not bound by the temporal experience of the narrative. She’s looked backwards and forwards. She knows what happened to Dorothy before they met, and she knows what is going to happen. Just like The Oracle in The Matrix, she speaks in ways that belie her total knowledge of the entirety of the narrative, because a) it’s more interesting, and b) it’s what she’s meant to do.

Ever notice how unsurprised mentors are when the hero finally gets it? That’s because they knew it was coming. Glinda almost looks patronizing when she tells Dorothy she had the power with her the whole time. And The Oracle definitely patronizes Neo. Most of her sentences end with an unspoken “but that’s obvious, idiot.”

The fact that the world as we know it is actually a computer simulation designed to keep us under control is as much news to The Oracle as it is to the rest of us who have seen the movie. The fact that Neo is “The One”? She’s seen it. The way he beats Agent Smith? She’s seen it.

Because the mentor has seen what must come to pass, they can deliver information in dribs and drabs to the hero. Too much, and they’ve spoiled the hero’s learning process. Not enough, and the hero will be floundering. At no time is the mentor concerned that the hero will fail.

Even when they say they are.

In fact, it’s a great slight of hand to have the mentor doubt the hero, because it helps hide the antidramatic nature of the mentor from the audience. Yoda chit chats with Obi-Wan about how Luke might not make it. It’s baloney. They both know he’s going to make it. Yoda always talks about cloudy things, but that’s just to force Luke to look and see and discover for himself. Yoda sees all.

He probably saw those god-awful prequels coming, but hey, mentors aren’t omnipotent.

Just omniscient.

Now as you think about this concept, it might occur to you that the mentor is still bizarre. I mean, if they know how the story is going to unfold and end, then why are they at all concerned with living within the narrative of the hero’s story? Doesn’t it bore them?

All I can tell you is that I’ve watched Star Wars a hundred times. If it’s not boring me, why should it bore Obi-Wan? All stories are repetitious and redundant. It’s not the brilliant twisty endings that make stories wonderful. It’s the journey itself.

In that sense, the mentor is a lot like us…particularly after we’ve already seen the movie once. Maybe some of you identify with Luke when he’s racing towards that exhaust port, but as a screenwriter, I always identify with Obi-Wan.

“Use the Force, Luke.”

“Why, Craig?”

“Because it will be a fantastic way to end this story.”

“How do you know?”

“I’ve already seen it come to pass a hundred times, and I’ll see it come to pass a hundred more times.”

“And does it work?”

At which point I grin and say, “I ain’t tellin’.”

When you write your mentors, let them read your treatment first. Let them know the ending. Only then will they be able to do their job.

30 Comments »