Q: I Wrote An Original Script, But It's Been In Turnaround For A While. My Agent Says They Have To "Give It Back". Is That True?

This is part of the MBA, correct? Is there anything in the MBA to prevent a writer (with his or her attorney) from negotiating a better buyback deal (e.g. longer window)?

T

You have to purchase the script back for the exact amount you were paid for all of your writing services (ouch)…

Sorry, I just got up, am pre-caffeine and might be missing something…but why is “all” italicized here? Is there something implied in that “all” beyond whatever compensation you received for your drafts (if it was an assignment) or the sale price + rewrite compensation (if it was a spec sale)? Do you mean that you have to reimburse the company for options in your contract that weren’t exercised?

Sorry you’re not feeling well. :(

“All” would be stressed if spoken, so I think that’s the reason for the italics; plus, it emphasizes the fact that it’s a lot of money.

A question: Does “your draft” include whatever rewrites you did while the studio controlled the script, or just the original draft they bought?

Trey:

This is a part of the MBA. And yes, happily, you can always negotiate terms better than the MBA. In fact, your right to do so is enshrined in…the MBA. :)

Denise (and Michael):

I italicized all because if you sell a spec for $200,000, but are then hired to write multiple drafts, my understanding is you must purchase back all of the work you did as an original writer. Not just your spec…but all of your writing. That can add up.

Okay on the italics, I guess, though it seems fair enough that to get a script back you should have to pay for all of it, even if that means you pay for drafts you don’t intend to show or use if and when you find a new home for it.

Sign the contract, pay the consequences. :)

Sorry, more clarification questions.

Is my understanding correct that a writer can only reacquire a project if another company is willing to pay for it…so you’re not so much reaquiring your project but simply finding a different home for it?

So, for example, if I sold a spec that no other writers were hired to rewrite, I couldn’t personally reaquire it within the two-year window, even if I repaid the studio all the money it paid me (which would be all the money it spent on the project) and own it again outright?

I’m confused because the following excerpts seems to slightly contradict one another regarding who puts up money when (bold/underscore emphasis mine):

Here’s the bad news. You’re not getting back all the subsequent drafts that other writers may have done. You’re only getting your draft back (okay, maybe that’s no big deal). You have to purchase the script back for the exact amount you were paid for all of your writing services (ouch), and furthermore, if you set the script up somewhere else (and why else would you be doing this?), the new company is obligated to pay all of the other costs back to the company.

In short, if you’ve written an original script, you can get it back, but you have to mark your calendar five years into the future, at which point you’ll have two years to convince another studio to pony up the cash.

Denise:

Yeah, if you get paid, it’s only fair to pay them back.

Yes, you can personally purchase the script back. The deal with the “new buyer” is that they must pay back all the costs of the additional writer on commencement of principle photography.

If you’re producing the film, then the “new buyer” is you. Typically, though, it’s a new company financing a film from your reacquired script.

Indirect “rental” conditions that provide a safety net for the purchasing party, exclusive and non-transferable for a whopping seven years in’a’row given the probability such projects do actually get made eventually!

I certainly could consider that “re-selling” my work to the next is one more delay caused by a faulty previous deal. Simple change of hands. Declaration of intentions without cost IF a deal has failed.

If any contract (first or next, btw) doesn’t have a clear pay-proceed clause (including penalty fees) within some sort of reasonable time, maximum of five years being just one possibility if contracted for, the work can remain in turnaround - f.o.r.e.v.e.r.

Five years to prove someone is serious about setting up a script is a VERY long wait. It’s the follow-up similar conditional clauses of having a right to sign a real deal that boggles the transfered product value seeking writer in me.

In fact, producers don’t buy it. They simply rent it for awhile. Or as some would put it, option.

Something I think is worth looking into:

Copyright law provides that in the case of a work which author assigns its copyright to another party (as with a spec screenplay), the copyright reverts back author after 35 years, free and clear.

Now, although Craig is right in saying that if you sign the little piece of paper agreeing that your screenplay will be considered a “work made for hire,” it means the Company is both legal author and copyright owner, he is only right in light of U.S. (and U.K., I believe) copyright law.

Many other nations do not grant authorship of work-made-for-hire to the employer, and an argument can be made (by my attorney, for one) that, in actuality, even under U.S. copyright law , the fact of authorship can never be transferred.

Anyway, the idea is, convince the AMPTP to implement an accelerated copyright termination clause in the case of acquired (ie, spec) screenplay that would give the author back his right in the screenplay as it existed at time of sale — for free.

It’s worth a shot, at least.

(Note: I could be thoroughly misunderstanding the law on this one).

-

Okay, but you need to figure in what the studios might do in such a copyright regime.

The result might be:

1) Studios pay less for any given spec script because they have less ownership; or

2) Studios no longer buy spec scripts. They only shoot actual works-for-hire. Scripts based on exec pitches or by writers hired as employees; or

3) ??

TANSTAFFL.

I don’t see a huge problem with the current state of copyright. Exactly what good is my spec script to me? I’m not George Lucas, I can’t produce my own movies. The best I can do if company A bought and is not producing it, is to try to sell it to Company B or C.

Cheers, T

Actually, the last I thought I heard from our MBA Maven at the Guild, when specs are purchased, they are considered works-made-for-hire.

That’s why spec sales are duesable. In an odd way, they are considered to have been written by an employee, because the companies are retroactively employee the spec writer.

That’s also why spec sales must conform to MBA minimums.

Having said all that, it would better for writers if they could actually get that spec back for free at some point. I just don’t see the Companies going for it, since, yeah, TANSTAFFL, and they’re not licensing the spec. And they paid a hefty MBA minimum so that, in return, they could say that they commissioned the script from an employee.

I apologize, in advance, for what’s undoubtedly a na�ve, wafer-thin analogy, but here goes: If I rent a movie and am unable to watch it in the allotted time span, then the video store doesn’t give me my money back. I didn’t pay for the movie; I paid for the chance to watch it—whether I succeeded or failed is beside the point.

Trev -

What good the copyright would do you - as the creator of what becomes the final product - is get you a share of profits of it all - lunch boxes, action figures, DVD - without having to beg for anything. If you shared copyright with a buyer/studio you’d get legitimate royalties on everything deriving from it. And if you were one of the ones getting rich from your creation - you could produce your own movies.

JD

Jodi:

That’s not quite right. The merchandising you describe would be derived from the film of your script.

And unless you’re financing your own film (in which case, you’re a studio), you’ll need to resell your reacquired script to a new studio.

Sorry Craig - I was addressing Trev’s comment about the copyright situation being OK with him - and I take that as the studio takes your copyright by turning it into a work-for-hire on paper.

I was taking the discussion away from the re-acquiring issue and putting it into the never completely selling it at all issue.

If one company can share the copyright with the writer - and make a profit while still paying copyright royalties to the creator, something every other industry does - then every writer will want that set-up. Why sell into the myth of a spec script being a work for hire?

Because right now - if you want a buyer - that’s what you have to do… I’m just saying, what if…

Okay, so let’s say you miss your two-year window, and now the company who original optioned/purchased the script now has ownership of it for forever.

What’s to stop you from approaching them later to buy back the drafts? Say 10 years have passed since the original purchase. The company has changed management and no one will ever do anything with the property. Would it not be smart of them to consider selling it back to the writer?

A follow-up question: Would it be more advantageous to approach the company through some intermediary to buy the script?

Jodi:

You can’t share copyright. At least, I’ve never heard of such a thing. If you want my take on why our industry has been and will always be a “work made for hire” industry, read this article I wrote a month or so ago.

Eric:

Nothing’s stopping you from ever requesting to reacquire your screenplay. You can ask to reacquire it the day after you sell it, just as you can ten years after you sell it.

The only advantage the two-year window affords us as writers is that the companies must agree to sell it back. After that window shuts, they can opt to sell it back…and the price is negotiable rather than fixed (as in the case during the two-year window).

Generally speaking, agents and lawyers facilitate reacquisitions.

Craig,

I call it copyright sharing - I guess technically it’s like a permanent lease. I’ve only made short films so far - but in my contracts, the screenplay writer is designated as creator and therefore gets a 50% stake on any works derived off of their creations (script), the film, the comic book, the lunch box, etc. They are even free to negotiate and instigate their own derivative works from the original creation, but that’s a creation my prodco has a 50% stake in.

In each case - the creator has decided to also direct. But if they didn’t want to I would have been happy to get them a director that would have answered to them. The shorts are collaborations just as in any standard agreement production and it never happened, but if it came down to it - the writer not the producer or director would have had the final creative say.

My contracts haven’t been challenged in court, but they were written by a business attorney with an approval by a copyright attorney.

JD

Jodi,

Certainly if you are producing and distributing your own film you can contract for whatever you can get. However, I can not see a large studio agreeing to such a contract.

Cheers, T

Trev,

Not yet you can’t. But that’s OK.

JD

Jodi:

In the case you describe, you are the sole owner of copyright. What you’re doing is licensing the rights to create derivative works. This is possible when dealing with some shorts and independent films, because in theory, the budget is low enough that the financier is willing to forgo the right to create one very important derivative work—the rewrite.

Studios investing tens of millions of dollars in film projects will never forgo that right.

To put a finer point on this, though…and I do believe this will be the subject of my next article…if we don’t provide works on a “work made for hire” basis, then we cannot be represented by a union.

Since I’m in the middle of writing a spec (aren’t we all—well those of us non-pros) I just want to add one other note to an earlier comment of yours regarding the legal fiction that even a spec script is a work-for-hire.

I really don’t think the legal fiction is far from the truth in the case of a spec script. I write my spec knowing that I only realize “income” for my effort when it is sold to some production company. Maybe it is better said, that I write the script planning to sell it.

I had a choice of things to write about before I put keyboard to screen. I had several ideas that were very interesting to me but seemed decidedly non-commercial and several ideas that seemed decidedly commercial but were not at all interesting the more I considered them. So my script is an idea that I think interesting enough to write about and commercial enough to spark the interest of that as-yet unidentified producer out there (some time soon, I’ll see if my call was correct).

Given—well, reality, it is not possible for that unidentified producer and I to negotiate prior to the completion and submission of my script to him (or her). Voila, enter the MBA, problem solved. I can write my work knowing that I’ll be able to sell it as a work-for-hire for mucho dinero (or perhaps just dinero sin mucho) at the cost of the copyright I would otherwise have. Moreover, the MBA gives me some confidence as a new and un-creded [sic] writer (or whatever the opposite of a writer with cred is called ;-)) that I’m not going to get totally screwed if I write my spec and try to sell it to some vest-wearing, cigar-chomping, scotch whiskey drinking, producer in Hollywood.

This has all gone slightly off-topic. The point is that there seems to be some desire to retain copyright for the purposes of being able to say that you own copyright. But that and $25 will get you a martini at a trendy bar in Manhattan. Copyright is generally (barring small independent films or a personal fortune) just not useful for us except as that thing we trade for money as part of a contract.

If we didn’t have it, and lived say in China, we’d just have our authorship ripped off and movies made of our scripts with nothing to show for it.

If we keep it, all we have is just our scripts which remain unfilmed.

If we trade it, we get money, cred and the chance to see a movie of our script.

Hope everyone has a nice weekend

Cheers, Trev

I’ve never received a definitive answer on this. Maybe y’all can help clear things up. In terms of copyright, if a writer adapts his/her script from another medium — short story, novella, comic, poem, etc. — does the original work have to be published in order for him/her to retain copyright if/when the script is subsequently sold as a spec?

Or does the existence of the story in another medium — whether or not said story was actually published — automatically mean its author retains copyright when the script is sold?

Thanks!

Mariama

Craig,

Studios investing tens of millions of dollars in film projects forgo rights all the time. They give stars right of director, directors right of writer (or re-writer) or director final creative say/final edit.

If a screenplay writer becomes known as the creator - and starts to have a proven track record - and the studio knows they will make money with this person (as much as they ever know anything) they’ll give up whatever they need to give up to make that money.

It’s hard to resist the brain washing the whole industry gives to writers - but the fact is - it begins with the writer. If you take away the beginning…

Let’s just say… I make three feature films next year - with my copyright terms in place - 2 of them do really well, make money and the creator gets to retain and share in the profit.

Are you as a writer going to send your next script to a studio or to me? (That’s not how I find writers, but for discussions sake.)

Say another company takes my model and makes some successful movies and does a copyright sharing with the creators and those are succesful.

What writer isn’t going to want in on that…

And before you know it - the studio has to offer this as well, if they want any of the cream of the crop that is now working with copyright sharing private entities.

JD

if a writer adapts his/her script from another medium — short story, novella, comic, poem, etc. — does the original work have to be published in order for him/her to retain copyright if/when the script is subsequently sold as a spec?

Or does the existence of the story in another medium — whether or not said story was actually published — automatically mean its author retains copyright when the script is sold?

I’m not quite sure what you mean. If you adapt a novel into a screenplay, you (or the studio) must secure the rights to do so before exploiting the property. One of the moral rights of an author is to restrict the creation of derivative works.

Publishing doesn’t affect an author’s moral rights. An unpublished novel is still the intellectual property of the author, and as such, that author still controls the right to prepare a derivative work from the novel (like a screenplay or film).

Did that answer your question? I’m not sure…

Studios investing tens of millions of dollars in film projects forgo rights all the time. They give stars right of director, directors right of writer (or re-writer) or director final creative say/final edit.

If a screenplay writer becomes known as the creator - and starts to have a proven track record - and the studio knows they will make money with this person (as much as they ever know anything) they’ll give up whatever they need to give up to make that money.

Let me first challenge your initial assumptions. Stars typically do not get the right to choose a director. Directors typically do not get the right to choose a writer. Directors also typically do not get the right of final cut. These rights are reserved for the true stars of the business. Maybe a handful of people can boast that they routinely get those concessions from the studios.

Remember, writers can always negotiate better terms that the MBA affords. We don’t need to guess what the studios will do. They have not, to my knowledge, EVER given ANY writer better terms on merchandising than the MBA’s terms.

They have given some writers better terms on profit participating. When I say “some” writers…I mean I know of two. Mind you, those two writers do not receive those terms on a “quote” basis. Rather, those terms were an inducement for the writers to perform services on sequels to their original hit movie.

The cream of the crop of screenwriters make their money specifically by selling their authorship. That’s the biggest money there is. Two million dollars is a lot a cash for a script that may get produced…or may end up propping up a short table leg. Those writers aren’t brainwashed, Jodi. They know exactly what they’re doing.

“Publishing doesn’t affect an author’s moral rights. An unpublished novel is still the intellectual property of the author, and as such, that author still controls the right to prepare a derivative work from the novel (like a screenplay or film). Did that answer your question? I’m not sure”

Ummm. Sorta. Here’s a hypothetical to perhaps make my question more clear. Okay. Say I wrote a novel (or short story), but it hadn’t been published. Say I adapted a screenplay from said unpublished novel (or short story). Say I then sold that spec screenplay to a studio…

Would I still own the copyright to the unpublished novel (or short story), even though the studio now owned the rights to the script? Or would all of those rights go along w/ my sell of the script?

Thanks.

Mariama

Ahhhh, okay, now I understand your question.

No, when you sell a screenplay as a work made for hire to a studio, the studio becomes the author of the screenplay only.

The novel, which you wrote, is still authored and owned entirely by you. Essentially what you’ve done is licensed yourself to write the screenplay adaptation of your novel, and then sold that adaptation to the studio.

What the studio will almost certainly demand, in addition to the copyright of the screenplay adaptation, is the exclusive film adaptation rights of your novel. It won’t make much sense for Paramount to buy your screenplay of your novel if you can sell another screenplay adapation of that same novel to Disney.

However, your copyright ownership of your novel is yours and always will be. As always, I’ll add the disclaimer that this is based on my layman’s understanding of copyright law, and that one should always seek a lawyer’s expertise when entering into any kind of contract or transaction.

Craig,

Just to clarify - I don’t think writers are brainwashed doing business with studios, I know they know what they are selling and why… Only about thinking about how the business could be run a different way outside of a studio/corporate system.

JD

Okay, here’s the scoop. Craig made a lot of good points, but he and Ted have a tendency to think they’re arguing law in front of the fucking Supreme Court. Or that there is some rational basis for this.

Let’s deal with the facts. Hollywood was created by the Mafia. Hollywood is still run by the Mafia. None of this has to do with legal issues, it’s all about how to deal with the mob.

The only one more powerful than the Mafia (at the time) was Thomas Edison, a corrupt gangster of amazing power. (Who also invented the phonograph.) Copyright law was something Edison hated, so when he stole the patents for making movies, he paid off congressmen to say that movies weren’t art, and the writers who wrote them were simply, “working for hire,” kind of like pornographers. This was passed in 1910 and kind of blew away every other countries understanding of the meaning of copyright. (Which should go to creators.) So, as screenwriters, we’re fucked, and probably always will be.

But let’s deal with the practical implications of living in a gangster world. Since you are really a creator (and the studios know it), if you’re willing to prostitute yourself to the highest bidder, you can make a hell of a lot of money by selling off the copyright. And some times, the movie doesn?t even get made.

It is great that the WGA has pushed for separated rights, simply because it confuses the issue and makes the studios nervous they might lose the rip off from 1910 (Their fear is why they agreed to marginal separated rights and even allow us some tiny increases. Because honestly, their stance on “work for hires” can’t be supported by legal history.)

But on a practical level, there is no reason for any writer to buy back the rights to any of their scripts. In fact, it is generally stupid to do so. As my gangster lawyer always said to me, if you can find someone that wants to make it, I’ll get you back the rights. Okay, he isn’t really a gangster, just a top Hollywood lawyer. So look, if Warner Bros. owns your script, and Paramount really wants to make it, there’s always a deal to be made. Like in the Mafia.

The only case where this doesn’t work is if you decide to try to finance it yourself or raise private money or whatever, which is generally not such a smart thing to do either. (I’ve done it, I know.) Or if you want to buy it back simply to know you own it. (Which, while being understandable, is a waste of time.)

So if you wrote a great script and want to see it produced, just send it to people and tell them you can get the rights. If their real players, it can be worked out.

Lastly, in regard to writing a novel or comic book first, and then turning it into a screenplay, this is a really good idea. THIS IS THE ONLY REAL WAY TO KEEP COPYRIGHT. And yes, you need to publish it even if it’s a vanity publication. Once it was created in another media, Hollywood respects that (if only for tradition) and will cut you a very different deal than they would cut with someone who just wrote an original screenplay.

J.F. makes some great points here (particularly on the somewhat quixotic aspect of reacquisition), none of which contradict anything I’ve said.

In short, while J.F. likes to think he’s a crazy truth talker, he’s just a copyright nerd just like me. :)

Wouldn’t be the same without him…

J.F. —

I don’t know where you got that “Edison paid off congressmen to say that movies aren’t art” stuff, but its just plain wrong.

Edison paid off congressmen to classify motion pictures as original works of authorship in their own right, which they did in the 1912 Amendment to the 1909 Copyright Act. This accorded motion pictures the same legal status as plays, novels, paintings, songs, etc., and accorded to the person who created or caused to be created the film — ie, the producer of the film — the legal status of “author,” with the same rights and privileges as the creator of any original work of authorship.

Also: work-made-for-hire law is not specific to the film industry or screenwriters. Novels, plays, paintings, blueprints, sculptures, songs, movies — anything that is subject to copyright law can be (and has been) a work-made-for-hire. Also, the concept that a person who employs artisans to create works to his specifications is the author of that work pre-dates by a couple of hundred years the 1909 Copyright Act that formalized the concept as “work-made-for-hire.”

Lastly: if you write a screenplay and sell it to a studio, they will require you to assign them the copyright and sign an agreement stating that the screenplay shall be considered a work-made-for-hire — making the studio the legal author of the screenplay, will all rights and privileges thereof. You don’t keep copyright.

If the screenplay is an adaption of your own novel or comic book or play, then what you would own is the underlying rights of the screenplay, precisely the same way any novelist, comic book creator or playwright would own the underlying rights of a screenplay adapted from his work.

The reason Craig and I have bothered to learn about intellectual property law, even a rudimentary way, is because we (screenwriters) are in the business of creating intellectual properties for companies that are in the business of exploiting the copyright in intellectual properties.

Additionally, the greatest gains the WGA has made on behalf of writers save for the right to final determination of screen credit — residuals, separated rights and foreign levies — are all founded in principles of copyright law (and even screen credits themselves are founded on principles of copyright law).

Maybe screenwriters are fucked and always will be, but a cultural ignorance of copyright law will guarantee such fuckosity.

-

Shared copyright is not uncommon — for instance, writers who collaborate on a novel will share the copyright; the lyricist and book writer will often share the copyright on musical; etc.

And, technically, under international copyright law, since our deal on foreign levies recognizes the credited director(s) and writer(s) of a movie as co-authors of the movie, if the copyright was not owned by a third party, then the credited director(s) and writer(s) would share ownership in the copyright.

-

Ted:

Regarding shared copyright, I’ve always assumed that true cowriters are essentially viewed as “one” author. However, you make a good point about the foreign levies. We definitely share authorship with the directors, even though we don’t do our authoring simultaneously with them.

Yama —

Regarding your question, here’s the actual sitch:

If you write a screenplay that is an adaptation of your own work in another form (novel, comical book, etc.), unless you have received some form of economic compensation for the publication or production of that work …

… then any studio that might want to acquire your screenplay will also demand to own all rights in the underlying work as well, for free — because they have been proven worthless as anything other than the underlying rights to the screenplay that has worth only because the studio wants to acquire it.

Vanity publishing, e-publishing, staging a reading of your play — although all of these are exercises of the copyright in the underlying work, none of them are considered exploitations of the copyright in the underlying work.

The studio thinking is, if the copyright in the underlying work has not proven to have value in the marketplace before they acquired the screenplay to make into a movie, then any subsequent value it might have in the marketplace is because they acquired the screenplay to make into a movie (or made into a movie).

-

and even screen credits themselves are founded on principles of copyright law

That’s true, and not just because the same principles used to determine ownership can (and should) be used to determine attribution of authorship.

One of the moral rights of the author (as recognized internationally, if not in the U.S.) is the right of attribution. One could argue that the right to determine our own credits derives from this moral right. In the end, I’m not sure what other compelling reasons (beyond moral) our predecessors had when they fought the battle to win the right of credit determination.

Ted, you’re full of shit, as usual. Why is it that the writers of songs share royalities with the publishers (the producers). Not the singers, or anyone else, but the writers. This was because Edison was late to the game on that new media. And he decided he wouldn’t have to pay again on the next new media, movies. Call me a liar over 1910 to 1912. But the point is, Edison agrued to congress that movies were not an art form, and thus were not entitled to the protection of other works of art. That view is not shared around the world, which is why writers get a piece of foreign levies on movies. The studios want to take all that money (as “creators”) but knew that wouldn’t fly because other governments don’t agree with that posture. That’s why they struck a deal with the DGA and WGA to give us a share, and in fact, recently bumped up that share to placate us.

The “work for hire” shit doesn’t apply to original screenplays and the studios know it. That’s why they gave us separated rights (you think is was because they just wanted to be nice) and why they know they are still vunerable on the issue.

I’m doing some checking, but maybe 1909 was when Edison paid off congressmen so he would only have to pay writers half of what they were owed as creators of songs (for his phonographs), and then in 1912 decided to fuck them completely.

Because writers use to get all the money for piano rolls.

JFL writes:

“So, as screenwriters, we’re fucked, and probably always will be.”

As long as one holds the view that they are a victim, it will always turn out to be true. One way to deny victimhood, however, is to understand the power structure which restricts you — like the law; so it is hardly unwise for writers to become a wee bit savvy in how it retards their interests.

Also, keep in mind any push-back a union undertakes to advance their intereste against an adversary must hold a threat of force (strike, walkout, slowdown, etc.) — which may be characterised as dealmaking in the mafioso tradition, or appreciated as just plain old smart.

In more simple terms: it won’t be that hard to outmanuver your adversary if you understand their moves.

Lee

JF, I knew there was a reason other than the ‘Big mistake. Big. Huge’ scene that you were my hero. We all love and adore Ted but are afraid to say boo to him. Is excellent to see you don’t give a monkey’s. Not sure about rights and wrongs of present argument, but is surely irrelevant.

But the point is, Edison agrued to congress that movies were not an art form, and thus were not entitled to the protection of other works of art.

Ah, now I understand what you’re talking about.

Edison did not argue that movies were not works of art. He argued that movies were not original works of authorship, and so were not entitled to protection under copyright law (which exists to encourage creation of new works “in the sciences and useful arts”).

Rather, his point of view was that movies were the inevitable outcome of a scientific process, and so were subject to patent law — which would have meant that someone who owned the patent on the scientific process for making movies would also own any movies that resulted from that process.

However — and this is something you just seem incapable of understanding for reasons I am incapable of fathoming — Edison’s point of view did not prevail.

In 1912, Congress decided that motion pictures were not the inevitable outcome of a scientific process subject to patent law, but were instead “original works of authorship” in the sciences or useful arts, and so subject to copyright law.

In other words, Congress decided that movies are “works of art,” and that movies are entitled to protections of other “works of art.” Movies have the same protections as paintings, novels, plays, sculptures, dance choreography,poems, photographs, songs and even screenplays.

That view is not shared around the world, which is why writers get a piece of foreign levies on movies.

The view that movies are original works of authorship in their own right is shared around the world.

The view that is not shared around the world is that someone other than the creator or creators of an original work of authorship can be the author(s) of that work.

This is what is referred to as the “moral rights of the author”: authorship is non-transferrable, and always remains with the creator or creators of the work, even if that work is created under contract to an employer. The employee or employees who create the work are the author(s) of the work, in fact as well as in law (or, in hoity-toity legalese-type fashion, the employee or employees have both de facto authorship and de jure authorship of the work).

However, even in those nations where the employee or employees have both de facto authorship and de jure authorship of the work, the titles to the copyright in the work is still owned by the employer.

Generally, these nations legally require the owner of the copyright in a work to share a percentage of the revenue generated by his exploitation of the copyright with the author or authors of the work. These are called “royalties.”

Although royalties are guaranteed from dollar one, there are any number of legal ways for a copyright owner to chisel away at the author’s royalties. Operational costs (overhead), production costs (capital expenditures) and marketing costs (P & A) can be and usually are deducted from the total revenue before the author’s royalties are calculated.

Also: in most cases, it falls to the author to collect his royalties directly from the end user of the work, rather than from the owner of the copyright in the work. The president of the Writers Guild of Canada said that this is often a fairly difficult and costly process.

. The studios want to take all that money (as �creators�) but knew that wouldn�t fly because other governments don�t agree with that posture.

Yeah, that’s not a big whoop to the studios. They don’t care. If the studios are recognized under U.S. law as the legal and factual authors of a movie, then other governments must do the same, as required by the International Copyright Treaty (ie, theBerne Convention).

No, what actually happened is that because the MBA requires studios to give screen credit for recognition of story and screenplay authorship, it means that studio already recognize writers as de facto authors of movies under U.S. law., Bob Hadl was ably to successfully argue that this entitled us to author’s royalties legally owed to de facto authors in countries which copyright acts include “moral rights” legislation; and that since, in those countries, authorship of movies is shared between writers and directors, directors were also entitled to author’s royalties equal to writers.

That�s why they struck a deal with the DGA and WGA to give us a share, and in fact, recently bumped up that share to placate us.

No, J.F, they were bumped in order to bring the amount of money writers and directors receive for de facto authorship of movies closer in line with the amount we would be legally entitled to if we were also the legal authors of the work. Maybe you think of that as “placating” us, but it sure seems more like successfully negotiating to get writers and directors what they deserve as the creators of intellectual properties which studios exploit to generate revenue.

The �work for hire� shit doesn�t apply to original screenplays and the studios know it.

The “work for hire” shit applies to any original work of authorship — original paintings, original songs, original plays, original photographs, original poems, original sculptures, original blueprints, original dance choreography, even original movies — which creator agrees in writing shall be considered a work-made-for-hire. Why do you believe that original screenplays are the sole exception to the law?

As for your question: “Why is it that the writers of songs share royalities with the publishers (the producers)?” — the short answer is: they don’t. You have your facts wrong. Music publishers operate like agents, not producers. And the royalties that are paid on every copy of a producer’s recording of a writer’s song that is sold is about 9 cents, half of which the music publisher (the agent) gets. So the songwriter earns about 4.5 cents for every record, CD or internet download of is song sold. The rest of the revenue generated by the sale of the producer’s recording of the writer’s song goes to the producer.

IAs for your interest in player piano rolls — the royalties paid to songwriters on copies of recordings sold are called “mechanical royalties,” because they are paid in exchange for the music publisher granting the producer — for free — a “mechanical reproduction license.” The term is derived directly from player piano rolls and wax-cylinder gramophones — devices that made it possible for the first time in history to mechanically reproduce the melody, or the melody and lyrics, of a songwriter’s composition — which meant, of course, that songwriters should receive some share of the revenue generated by the sell of player piano rolls and wax cylinders that mechanically reproduced their compositions.

As for your statement: “Edison paid off congressmen so he would only have to pay writers half of what they were owed as creators of songs (for his phonographs), and then in 1912 decided to fuck them completely.” This makes no sense at all. The 1909 Copyright Act was the first time songwriters ever had mechanical reproduction rights and statutorily guaranteed royalties — prior to that, Edison could use their songs (for his phonographs) for free. They still have those rights, are still guaranteed those royalties, and the amount of the royalties have never been cut — only increased.

Full of shit I may be, but at least its not ignorant shit.

-

Ted,

I’m not arguing with your facts (which I thank you for providing), but with your interpretation of them. The reason that authors are treated differently when they write a book, a song or an original screenplay is because business interests intervened and kept changing the copyright laws to benefit themselves at the expense of creators. Naturally, the businesses have their own arguments as to why this was valid (movies are large enterprises involving numerous crafts, etc.) but never-the-less this watered down the original intent of copyright protection which was to protect the artists.

As the popularity of recordings grew, it was impossible for Edison keep stealing songs on his phonographs for free. And while I don’t have a lot of source material of the 1909 Copyright Act, I have got to believe Edison was protecting his ass by getting a specific royalty deal enacted. (And a fairly low royalty too.)

The studios had a much stronger case that scripts were really works for hire back in the days when writers worked under contract. Now they basically have the writers sign a contract that is a lie, that an original act of creation was not one. Yes, they are getting away with it, but the Guild has been able to leverage that shaky logic to get us separated rights which we should continue to pursue.

You are probably correct that if someone just published a novel or comic book on a vanity press and then wrote a screenplay based off it, the studio would demand all the rights. But, and I am just guessing, I would think that with a good lawyer, you would be in a much better position to get a deal to keep the copyright. (I’m curious if anyone knows anyone who has actually done this and how it worked out.)

And I hope you know I just say you’re full of shit to provoke you.

Publishing under copyright is transfered exploitation of intellectual property shared with 1) Royalties 2) Licensing subsidies… OR (that is the distinction, here, in the context of control over all rights.) contracted dilutions which are either total or partial. That’s a fact. Under law.

Ask JKRowling about the Harry Potter’s novels and the movies developed from these, and you’ll get a pretty direct answer to how two industrial structures can exploit “work-for-hire” type of deals. As it happens, published first and still owned by the author and others.

Naturally, the businesses have their own arguments as to why this was valid (movies are large enterprises involving numerous crafts, etc.) but never-the-less this watered down the original intent of copyright protection which was to protect the artists.

No, it wasn’t. There’s the disconnect.

The original intent, and what is still the intent, of all copyright laws is to protect the person who makes a work public from having that work used, appropriated, or otherwise pirated without his legal consent.

Why do you think they are called copy rights? Why do you think all copyright law is concerned with issues of publication, public performance, public exhibition, and preventing unauthorized copies from being made of publicly distributed, performed or exhibited works?

Since the author of the work should obviously and inarguably have the right to make the work public or not, copyright ownership invests in the author of the work. Since the author of the work should obviously and inarguably be able to do anything he wants with his property — the work and the copyright in the work — he can sell them, given them away, assign them to other people for a bottle of pop and a shiny new whistle — anything.

The studios had a much stronger case that scripts were really works for hire back in the days when writers worked under contract. Now they basically have the writers sign a contract that is a lie, that an original act of creation was not one.

No, they don’t. A work-made-for-hire does not create a lie that screenplay was not an “original act of creation.” It does not create the lie that anyone other than the writer created the screenplay. It does not create the lie that the writer was an employee of the studio when he wrote the screenplay (Craig is wrong on that one, but that’s at least partially my fault).

When a writer and a studio sign a work-made-for-hire agreement, what they are agreeing to is that the screenplay was prepared for use in a motion picture to be made by the studio that acquired it.

If there is a lie created there, it is that the writer prepared the screenplay for use in a movie made by the specific studio that acquired it, rather than for use in a movie made by any studio that acquired it.

Unless you are going to make the argument that when you were writing Pretty Woman and Under Siege, you did not intend for those screenplays to be used in a motion picture by the studio that acquired them. If so, then you are right: a lie is being created.

-

Once again, Ted, what the fuck do you know? If Pretty Woman was a “work for hire” why the fuck is Disney still begging me for rights to make a stage play out of it? Shouldn’t they own all the rights?

Unfortunately, no one wants to make a stage play off of Under Siege. That’s their loss.

If Pretty Woman was a “work for hire” why the fuck is Disney still begging me for rights to make a stage play out of it? Shouldn’t they own all the rights?

They did, from the moment you signed the work-made-for-hire agreement (or, at least, from the moment they acquired the screenplay from the company with whom you’d signed the work-made-for-hire agreement), all the way up until the moment the WGA determined the final screen credits that recognized you as the de facto author of the movie’s final script (which includes all literary material consisting of prior contribution toward the final script, including your own drafts).

At that point, you had fulfilled the terms of the MBA that entitled you to certain separated rights in the movie’s final script. The studio compensated you in accordance with the MBA, separating some rights out from their copyright in the final script, and assigning them to you.

One of those separated rights is the right to create a play script derived from the movie’s final script. You have the sole right to exercise that right or not, or assign it to someone else or not.

And that is why Disney has to come to you in order to turn Pretty Woman into a Broadway musical.

The person primarily responsible for getting you that right is Melville B. Nimmer, author of Nimmer on Copyright, considered to be the authoritative work on copyright law.

Say “Thank you, Melville.”

-

Craig —

Re: co-authorship — here’s the relevant copyright law:

� 201. Ownership of copyright

(a) Initial Ownership. � Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowner of copyright in the work.

—

The “Copyright Basics” circular on the U.S. Copyright office’s website clarifies that this true in all cases, unless there is an agreement to the contrary.

-

Yes, I knew this. What I don’t think can happen, re: the earlier commenter’s question, is a kind of “half” transfer of copyright…or a “half” work-for-hire situation.

Either copyright is shared by the original coauthors, or it can’t be shared. For instance, I don’t think one could sell a portion of one’s authorship.

Here’s a scenario:

You decide to write a screenplay on spec. Screenplay written, original work of authorship, you’re the author, you own title to copyright.

You let me read it. I like it — I think, conceptually, it is kick-ass, both as art and as a commercial property — but I think you’ve underdeveloped your story and its dramatization.

I make you this offer: I’ll pay you $100,000 for the privilege of collaborating with you on a revision, and we’ll share authorship of the final script, and co-own the copyright.

You say “Yes, that sounds nifty.”

Deal made. We write the revised draft, declare the work “finished,” register it with the Library of Congress: you and I are the authors of a joint work and co-owners of the copyright in that work — and you have $100,000 of my money, free and clear (well, you have to pay taxes, so relatively free and clear).

Absolutely possible, absolutely legal. As the author of a work, you have the sole authority to decide if someone else will also be an author of the work — and you have the leverage to charge them for the privilege, if they want it badly enough.

Now, substitute “I” and “me” with “a studio,” and “we” and “us” with “you and the studio.”.

So the scenario that Jodi envisions is possible — but I don’t think it’s something that is remotely possible that studios would grant the WGA, and also don’t believe it is any where near as desirable as many writers seem to think it would be.

-

Okay, given that situation, sure. I think she was after more of a “I’ll sell the studio half of my copyright” kind of situation, which I don’t think is possible.

The copyright in a work is a separate piece of property from the work itself — that’s the very heart of copyright law. Just because I sell you a copy of my work, it doesn’t mean you have the right to make copies of my work and sell them to others. Selling a copy of the intellectual property does not transfer (property) title to the copyright in that intellectual property.

So if I own a piece of property, and decide to sell half of that property to someone else, that’s my prerogative — even if that property is the copyright in a screenplay.

Of course, absent any other legal agreement beyond the sale agreement, that someone else could do whatever he wanted with his half of the property, and any revenue generated from what he did with his half of the property would belong solely to him.

Which is where the concept of separated rights comes in — the rights are divvied up, with one party having separate and total authority by dint of ownership over these rights, and the other party having separate and total authority by dint of ownership over those rights.

What Jodi envisions (I believe) is a situation wherein the screenwriter and the studio have shared authority over all rights — the writer cannot exercise any rights in the screenplay without the studio’s permission, and the studio cannot exercise any rights in the screenplay and the movie in which the screenplay is used without the writer’s permission.

Which is why I count this one as nigh impossible for the WGA to ever negotiate. This is something that writers (or directors) typically cannot get even in countries that include “moral rights” clauses in their copyright legislation.

-

I don’t think I can get the studio to do anything.

I believe that I can start an independent studio - with private investment, in which I deal with creators/writer in the way I’ve briefly outlined.

I believe that the success of this method - by making investors back their money while laying low the myth that a studio can’t make money if they are paying any decent share (DVD?) to the writer - will make writers want to only deal with other studios that follow my model.

The business of acquiring scripts will change because of business - as it always will - not because the union can drive it. The WGA will just need to keep up - and keeping up will be easier, ‘cause its members will have more clout in the industry.

JD

PS - Ted - it’s not about permission to exercise copyright - that would be limiting and require too much consensus for the creator to do something crazy with their rights - like an interactive web broadcast - and yet - any revenue would have to be shared back. My contracts merely call for a notification process. I don’t have to get the creator to sign the lunch box contract - but I do have to pay them their share of what I make. Likewise the creator originated web broadcast or comic book will not require studio approval.

Thank you, Melville.

Jodi —

In your company’s contracts, what percentage of the movie’s gross revenue is the screenwriter guaranteed?

-

50% net. But I have open books and no studio type accounting. Each film has its own account - company overhead comes out of the company share. Our shorts had deferred screenplay pay - but our features will pay minimum WGA (not WGA mins, but at least min) cash - probably a percentage over that (what I’m allowed) deferred. Deferred pay comes out of gross. We will be signatory to those guilds we can be, such as WGA and SAG.

JD