Oh, So That's Why We're Not Treated Like Playwrights...
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.
I agree. Also, perhaps the nature of the script market works against screenwriters. There seems to be a “lemming” effect where our sheer numbers makes it easier for fellow filmmakers to take the attitude that we’re interchangeable and expendable.
Combined with the fact that films are a high stakes commodity that can broadcast a person’s name across the world, it’s no surprise that people are angling and jockeying for credit, regardless of their moral/ethical right to claim it. If a screenwriter happened to publish a novel before the script, then there’d be no dispute who the “author” was, because the essential story was established in the public mind before other high-powered players had a chance to get involved. Since most scripts aren’t established stories, they’re open for the brutal politics we sometimes oberve in the film industry, where everyone is vying for a slice of the pie.
There’s absolutely no doubt that the true author and originator of the Harry Potter movies is Rowling, regardless of the director and screenwriter. Similarly, if you look at the upcoming “War of the Worlds” the author is still Orson Welles, even though the director is the phenomenal Spielberg.
Right. Novels are self-contained works of singular authorship meant to be purchased and read, whereas screenplays aren’t. Hence, authorship has clear value and distinction.
However, I disagree with your assertion that J.K. Rowling is the author of the Harry Potter films. That’s selling Steve Kloves short, not to mention the directors, the actors, the editors…
Stephen King absolutely hated Kubrick & Johnson’s screenplay and Kubrick’s direction of The Shining. Was King the author of the film he hated? A film that obviously departed from the story he felt he authored?
One could argue that the author of a book is the author of the film adaptation if and only if he believes it’s faithful. That’s not a very good test, IMO.
Even though it’s seductive and handy, I think assigning authorship to movies is a trap.
I agree that in spirit the whole production team is the “author”, but I also think it’s fair that even among equals, the originator of the story should get at least some recognition, not necessarily the title of “author.” Likewise, the director should get recognition for his implementation, but not necessarily “author” either.
But, as long as there are humans there will always be politics, especially when the stakes are high.
I didn’t mean to sell Steve Kloves short. He’s done amazing work, but he’s also had amazing material to work with. The work of creating the characters, world, plotline was done by Rowling in the harshest years of her life. She may not be the “author” of the film, but she is the fountainhead from which it sprang. Good points regarding King. I’ve read that LeGuin doesn’t like Earthsea’s adaptation either. I can’t argue against your points here. Perhaps, “author” is too inadequate a word and the industry should come up with something else…fountainhead…nah.
Authors of novels typically get a “Based on” screen credit. That pretty much works for me.
My favorite one is “Suggested by”.
Would you say that a writer/director should be allowed to have the vanity credit? Though the DP and actors and editors etc. are masters in their craft and bring a lot to the final work, they are there to produce the writer’s vision and are hired/fired based on their ability to do so.
Excellent article, btw. In time I’m sure the site will be a huge hit among those who find the other writer/industry mags too Atkins approved.
I’m against the vanity credit. Completely against it. The notion that a film is “by” one person is essentially inane.
Robert Rodriguez comes damned close though… :)
Thanks for the kind remarks. Spread the word….
I think the “film by” credit is warranted if the person was the writer, director, and producer - essentially having creative control.
If the “film by” credit is warranted — by virtue of one person’s having, say, written, directed, acted (all the key roles), produced, production-designed, shot, composed and edited — it’s redundant: the auteur already has all the individual credits. What does “A Film By” add?
If the “film by” credit isn’t warranted — because one person hasn’t performed all the key creative functions — it’s a lie.
Dear Craig. Although I agree with much of what you write, I believe that a screenplay is in itself a piece of literature, one that stands on its own.
A good screenplay creates a reading experience comparable to that of a good novel and I believe that in the future, people will read scripts the way they now read plays.
Furthermore, I predict that, because of the progress in technologies that make filmmaking affordable, there will come a time when a great script will have as many if not more film incarnations as plays have productions.
More and more people read screenplays and the market for good stories in the form of scripts, produced and unproduced, offers new opportunities.
DL