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!”
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.
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.