REPRINT: We Don’t Keep Copyright, And That’s A Good Thing!
Posted by Craig Mazin on 30 Dec 2005 at 09:01 pm | Tagged as: Copyright Law, The MBA, WGA Issues
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.
You’ve scared me. I am now not so sure I want to give up this webtech life.
SAME POST AS ABOVE. I CHANGED FORMATING FOR CLARITY.
“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.”
Craig, I don’t know who told you that, but if I were you I would go to the source. There is upfront fees for writing screenplays. For 2005, the minimum fee for a screenplay was $47,286 for a feature. This fee is paid against the production fee ( not against the royalties )which is due on first of principal photography. To give an example, the minimum production fee for a $5 mil film in 2005 was $121,825.
“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.”
Not so. Script fees are not divided. The original writer gets $47,286 for his script. If another writer is hired ( with permission of the original writer ), then he is paid $30,694 for the write. If the rewrite is done by the original writer, he gets $23,160 ( on top of his original $47,286 ).
Credited writers share the production fee based on their contribution. It may happen that the total script fees paid exceed the production fee, but that doesn’t affect the individual minimums paid to the writers.
As for royalties, they are paid on top of everything else. They are minimum royalties paid (see following paragraphs) and there are many safeguards that insure the writers get paid. It is true that the producer must pay at least one a year, but what you fail to mention is that the writer must be paid in priority, that is, before anyone else.
A1110 Distribution Royalty Payments:
c. Distribution Royalty payments due under the terms of this Agreement shall be paid to the Writers out of Distributors’ Gross Revenue in priority to payments due to all other parties entitled to a share of the Distributors’ Gross Revenue. The Producer shall be deemed to hold the aggregate Distribution Royalty payments in trust for the Writer(s) from the time that Distributors’ Gross Revenue are received (or, in the case of a Distributor that is not at arm’s length to the Producer, accrued) until the disbursement of same to the Guild on the due date, i.e. the date that each report is due.
And the minimum royalties, according the collective agreement is:
ARTICLE C11 – DISTRIBUTION ROYALTY
C1101 The Producer shall pay to the credited Writer(s) contracted under this Agreement (subject to Article C1009) a Distribution Royalty of three point two per cent (3.2%) of the total amount of the Distributors� Gross Revenue less one hundred (100%) of the Budget in accordance with the provisions herein. i.e. 3.2% x (DGR � 100% of Budget)
Since the royalties are based on the distributors gross revenues and since there are official and independent institutions that monitor those revenues it is quite easy for a writer to know what is due to him. Also, the writer is paid before anyone else. Distributor revenues trigger royalties automatically on first dollar and before he recoups.
Also
A1112 The Writer(s) of a Script and the Guild shall be entitled to appoint one or more persons (the “representative”) who, for the purpose of verifying the propriety of payments made under this Agreement, shall have the right to examine and audit, during normal business hours, all books, records, accounts, receipts, disbursements and any other relevant documents related to a production based on the Script.
“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 would take the time to read the WGC industry agreement ( http://www.wgc.ca ), you would see that not only does a writer gets all the above, but he gets a lot more rights. Royalties, for one, are much higher than residuals and are based on the gross revenue of the distributors. There is not the possibility for the producer and/or distributor to deduct anything as is done arbitrarily elsewhere.
If you look at the numbers given by the WGA, you will see although the films made under its collective agreement have much higher budget, the average script fees of working screenwriters aren’t really higher than those in Canada. Royalties are higher.
In fact, based on a comparison between the collective agreements of both guilds, a Canadian screenwriter may receive higher royalties for a film that makes $10mil than an American film that makes $100mil.
But, of course, as I mentioned in another post, there is a tiny minority of screenwriters that make a lot more money. The system favors them and, imho, they favor the status quo.
I also recognize that the studio agree to a change that would allow the writers to hold on to their copyrights. According to your arguments, Craig, since the writers would be worse off (which would mean that the studios would be better off), the studios should be fighting to let them keep the copyrights. They aren’t.
The studios reign, for now, but they are on the decline. There is a revolution happening as we speak and they are underestimating it much the same way Microsoft made the mistake of underestimating the open source movement.
Daniel L
Ok, but what about the best of all possible worlds?
A world where producers are honest or kept honest somehow?
And sure, licensing doesn’t mean we get to control the work, but what if it did? Or something did? What about that ideal thing that is not licensing and not work for hire but something which allows a writer to have an influence or even actual control over the quality of derivative work?
Must we all become writer/director/producers?
I can tell you from my own experience, all of those people can be on the same page and, depending who’s the biggest fish, the studio can still hold the pursestrings so tight and withhold script approval, etc, such that everyone’s frozen to make only the movie the studio wants…
…so, do we all have to become writer/producer/director/studio heads?
And of course, a star w/enough pull, power, influence and box-office mojo can force a rewrite a more flattering camera angle, or a bowl full of only green M&Ms and hookers. So…
…must we all become writer/producer/director/studio head/movie stars?
Just asking. But I think we just have to be the biggest fish in the pond of whatever particular movie we may happen to be making, which we probably won’t be if we are only the writer…
Daniel:
Does the WGC operate on a “closed shop” basis? Can non-WGC writers write for WGC signatories?
Chris:
Yes. If we want any kind of lasting control over a movie, then we need to become writer/director/producers. Even though a studio head has a lot of control, he or she actually has less control over the movie than the director/producer…because those two are responsible for the bulk of the stuff on film…and you can’t really throw that all away. Well…usually you can’t.
Craig:
Yes. Non WGC members can write for WGC signatory companies but the companies are still bound by the industry agreements.
A105 This Agreement shall apply to all Writers, Story Editors and Story Consultants contracted by any Producer who is a signatory to this Agreement. Nothing in this Agreement shall prevent a Producer from freely obtaining the services of a Writer, Story Editor or Story Consultant who may not be a member of the Guild providing that before signing a contract the Writer or Story Editor shall declare in writing to the Producer and the Guild that for reasons of conscience, s/he does not wish to become a member of the Guild, in which case, s/he will be treated as a non-member under the terms of this Agreement. The rates, terms and conditions for such a Writer or Story Editor shall not be less than those provided in this Agreement.
The WGC agreement also protects the employees of WGC signatories ( mainly animation and TV writers ) in the following way.
A106
This Agreement shall not apply to a regular employee of the Producer whose duties include writing and who is regularly engaged in creative aspects of production and for whom deductions under Income Tax laws are duly made.
Notwithstanding (a) this Agreement shall apply to a regular employee:
The WGC agreements protect all writers that work for signatories whether they members or not, independent or employees.
Chris:
I think the future belongs to small independent productions in which writers are equal partners with directors and producers.
Studios will continue to make studio films, but the new technologies will favor the emergence of a new breed of filmmakers that will understand the principles of true collaboration.
My source was a Canadian writer.
Since the WGC doesn’t have a union security clause, then it’s all-too-easy for companies to have non-signatory arms that hire Canadian writers under the terms I’ve described, which is clearly what happened in his case.
Craig, Aside from the copyright issues, one reason that Hollywood writers are paid better than their foreign counterparts is that their movies are (on average) more profitable, so there is more money to go around.
Everyone from producer/ directors to grips gets paid better in the US than in other countries, which is why the rest of the world’s english-speaking talent moves there to work. In order for your point about writers being relatively worse off, you need to show that their compensation in UK/Canada is worse relative to the rest of the production team.
For example, if everyone in a BBC production only gets 1/4 of the American MBA’s for their respective professions, writers have no less bargaining power than other actual employees (cameramen, actors, whoever). But if UK actors get 1/2 the pay of Americans, while UK writers only get 1/4, then your point is correct.
That is probably what happened to your source. There are delinquent signatories. When made aware, the guild takes action and lists them in its “Unfair Engagers” section.
It is also possible for a non-signatory company to hire a writer or acquire a screenplay under terms that are far less advantageous than the WGC collective agreements. If it is found that his company was controled by a signatory company, he will be made to comply.
There are also signatory producers who go out of their way to short-circuit the negociated agreements. For example, a producer who wanted to acquire a license to one my script tried to convince me that it would be better if I signed a contract saying that I only had given him a synopsis so that he could claim subsidies for developing the script. If I had accepted, the payment for the script would have been delayed indefinitely.
That said, I believe most producers abide to the agreements signed by their respective assocations.
I think the future belongs to small independent productions in which writers are equal partners with directors and producers.
Just because a film is independent it does not necessarily mean that the writers are equal partners with directors and producers.
I don’t think there’s any question that writers should have more creative control. The ease in which we/they are tossed aside is a travesty. But I don’t think that writers, directors, and producers should be equal partners either.
Each job title has its own repsonsibilities and duties. I’ve done all three and I can definitely say that having three people who serve relatively different functions should not have equal control. It would be an utter disaster.
Wait! Before anyone jumps down my throat, let me clarify. First of all, if “Equal Partners” refers to financially, well…it’s already pretty much equal. When I say, “Equal Partners” I’m refering to creatively.
A Screenwriter writes his story to be read, sold, or (hopefully) filmed. But all the things on the page still have to be translated. A screenwriter may think that the scene between the protagonist and his father is the most important thing in the script but on film, it just doesn’t belong.
A Director has to translate those pages and make it into an (hopefully) interesting movie. A director may think that the scene where the protagonist kicks the pope’s ass is the most important thing in the film, but for the marketing and sale of the film, it just doesn’t belong.
A Producer has to take that film, make the money back, and (hopefully) turn a profit. And…you get the idea.
My point is, you can’t function or produce a film with the writer, director, and producer as equal partners. I do think, however, that each entity should have some creative input on the final product…to a point.
I haven’t seen it work. In fact, on independent productions, the conflict can be a lot worse than studio productions.
Kevin,
You’re talking about the status quo. I’m talking about en entirely different production model that I see starting to emerge in Montreal where writer, director and producer are equal.
Within this model, each have a job to do and each give their input about all aspects. They all give their input but the writer has last say when it comes to story and screenplay, the director has last say as far as casting, choice of DOP, and how the scene will be shot, the producer’s main job is to determine the budget and how it is to be devided between departments, get the financing and get the financing through equity financing, presales, investors, etc,.
The team presents the projects to the institutions and collectively own the copyrights to the film ( not the script ).
I find this discussion of copyright very interesting because the DOL’s investigation of corruption in the Writers Guild since 2005 has focused primarily on this very issue.
It appears that the WGAw has actually engaged in a conspiracy with the major studios to try to convince writers that they are not entitled to copyright and the monies that are associated with it.
The conspiricy dates back at least to the John Wells administration of the WGAw and possibly before. Bob Hadel, a rather shady “lawyer” who used to work for Lew Wasserman (who had well known mafia ties) was brought into the Writer’s Guild by Brian Walton. Together, they fashioned a deal to steal money that foreign governments under centuries of tradition had meant to go to the writers of creative works.
The studios were aware that this was a huge amount of money, and with the help of corrupt Guild officials they set out to steal this money from the writers who were entitled to it.
They were enormously successful.
Recently, in the face of lawsuits and government investigations into this criminal activity, the Guild and studios have continued to try to convince writers that they are not entitled to centuries old traditions of copyright and ownership.
In fact, there are some crackpots on the internet actually suggesting that writers are better off without copyright! Well, I’m sure no one will believe them.
J.F.:
Bob Hadl disagrees with me, you know. Bob Hadl believes writers should get copyright, and his larger aim is the destruction of the work-for-hire rule.
So now what?
I refute the rest of the allegations simply by saying, “Dude. That doesn’t even make sense.”
Great post. I am not a Guild member, and a non-signatory purchased the rights to produce a spec I wrote. They paid me $6k and put 3.5% net profit in the contract, then produced it and are in post-producttion. Now they want me to sign a “work-for-hire” because I own the copyright and registered it with WGA. It seems to me that I can re-negotiate if they need me to sign over the authorship on a film they already completed. They should have had me sign the copyright to them before filming, right? They are also trying to get another writer a credit even tho I did not OK his participation. I think with what you said, I would have to be informed of another writer, no?