Recently in Copyright Law Category

No, Brooks. No.So far, the WGA-AMPTP negotiations have gone pretty much how I expected. Both sides started very far apart, and any perceptible motion seems to indicate a widening of the gap. No one seriously expected a deal to be brokered; everyone’s working under the assumption that the WGA will work past expiration, and the AMPTP won’t really start bargaining until they have to face SAG or the DGA.

Still, that doesn’t mean there’s no room for journalists unfamiliar with our industry to lob Molotov cocktails of fiery ignorance into the breach. Ladies and gents, I give you Brooks Barnes and his artitorial on residuals in the New York Times.

Enjoy the slant. It’s delicious.

SCENE STEALER
In Hollywood, a Sacred Cow Lands on the Contract Table
By BROOKS BARNES

Jasper Johns isn’t paid based on the number of years his flag paintings remain popular attractions at museums. Rem Koolhaas doesn’t cash a check every time an architecture fan takes a trip to Seattle to see his space-age public library. So why should the writers, directors and actors responsible for box-office bombs like “Gigli” be able to pocket some cash every time somebody buys the DVD?

It’s a question that cuts to the heart of the biggest fight in Hollywood these days and sums up a fundamental choice the troubled entertainment industry needs to make: whether to cling to old blueprints for running the business or to draft a whole new set.

Brooks couldn’t make it out of the first paragraph without mangling logic, but I let him run on to the second paragraph, because I really enjoyed how he thinks a question he poses out of ignorance is, therefore, a really important question.

When an author creates a work of visual (or, in the case of architecture, “sculptural”) artistry, he holds copyright as well as certain moral rights (yes, even in the United States). That artist can control the display of that work. However, if the artist chooses to freely display his work, so be it.

If you paint a painting on the sidewalk of New York, and I walk by it, my simple act of looking at your artwork doesn’t infringe on your copyright or your authorship in any way. I’m not copying it, I’m not making a derivative work of it, I’m not destroying it and I’m not exhibiting it.

I’m LOOKING at it.

Hey, Brooks….I’m just looking.

That’s not at all analogous to our circumstance as screenwriters. While we do not hold copyright, we are acknowledged by the copyright holders (the studios) in very real ways as part authors of our works. Those copyright holders exploit our authorship for money.

They make copies of our work of authorship. They make derivative works. They exhibit it for money. And yes, they occasionally destroy it.

Just as an author of a book receives royalties for copies that people can possess, so too should we receive residuals for copies that people can own and enjoy.

Or, to please Brooks, if Rem Koolhaas wants to sell little models of his cool library, the manufacturer should pay him a royalty for every item sold.

Duh.

The spat, as always, is about money.

That’s a nice piece of reductive reportage. It’s a bit like saying, “John Smith awoke to find a strange man in his bedroom, rifling through his wife’s jewelry drawer. The ensuing spat was, as always, about money.”

It’s not about money per se. It’s about our rights and our due as authors of the movies we help birth.

Writers, who started talks with studios last month for a new three year contract, want to be paid the way they always have. Movie script writers get an upfront payment, now at least $1 million for a major film, according to studio executives. Screenwriters then receive a residual whenever one of their titles is put on DVD, shown abroad or otherwise resold. Under the same system, a typical TV series writer may get $30,000 an episode, plus residuals.

If any of you know Brooks, could you please ask him to just call me before he writes about Hollywood again? Movie script writers get “at least $1 million for a major film” now??? Really? Last time I checked, scale was still in the five figures. Yes, there are some of us who get paid over a million dollars for a screenplay…or for all of the drafts required to get a movie made. I’m guessing there are about 150 screenwriters in that club in the entire world. Plenty of movies get made where no writer gets paid more than a million.

The residual payments vary widely, depending on a maze of formulas.

Yes, it’s true. There is a maze of formulas. For instance, in movies, there are two.

Two.

The maze is just…arghhh! Can’t find my way out!

A lead writer might earn hundreds of thousands from the DVD sales of a blockbuster movie; a junior member of a writing team for a dud might get a few thousand or less.

Lead writer? Junior member of a writing team? Brooks, sweetheart…please…talk to a screenwriter before your fingers hit the keys. There are no “lead writers” in movies. There are no “junior members.” We’re not grips. We don’t have apprentices. Either you get credit for authorship, or you don’t. Doesn’t matter how old you are, how much you get paid or how long you’ve worked on a project. All that counts toward credit and residuals are the literary contributions you make to the final screenplay.

Studios want to junk the residual payment structure, which dates to the early 1950s, when the fledgling TV business borrowed it from radio. Under their proposal, unveiled with unexpected zest in early July by Barry M. Meyer, chief executive of Warner Brothers Entertainment, so-called creative employees would get residual checks only after the studios have recouped their basic costs.

Have a cookie, Brooks. You made it through a paragraph without getting anything wrong. Except that “so-called creative employees” really are, in actuality, creative employees. Qualifiers not required.

The two groups have reasonable arguments.

This is what I mean by “artitorial.” Is this an article or an editorial? If it’s an article, then what’s with the opinion? And if it’s an editorial…

…you’re totally wrong.

The other side does not have a reasonable argument.

In coming weeks and months, as both sides start huffing and puffing with even more intensity, the writers will declare that they can’t trust Hollywood accounting as to when costs are covered. They’ll also portray the effort to redraw the residual map as a huge rollback in wages. Young writers in particular will be hurt, they say, because they rely most heavily on residual income from failed movies and programs.

Oh, that crazy huffing and puffing! Through huffing and “portrayal” and “they’ll say” arguments, we’ll manipulate the truth!

Except that it is the truth, and no manipulation is required. Anyone whose brain stem is attached knows that Hollywood profit accounting is a joke. No film is ever reported to be in the black. Every film “loses money.” Every…single…one.

This is fact.

Expect studios to battle back with hard facts on finances.

Ah, but see, Brooks thinks that while we engage in huffery and tricks, the studios have “facts” on their side. Unbelievable.

While almost every project turned a profit when the residual structure was enacted, 6 out of 10 movies today will fail to make money even after they are distributed across multiple platforms, according to the Alliance of Motion Picture and Television Producers. On the TV side, almost 90 percent of modern series fail to make money. Studios argue that it’s ridiculous for a business to pay bonuses before it makes back its initial investment.

I’m going to presume, generously, that the above statistics are absolutely true.

So what? If 10 out of 10 films used to generate an aggregate profit of $100 million, and now only 6 out of 10 films are profitable, generating an aggregate of $900 million, then why should I give a damn? These statistics mask an obvious fact of modern Hollywood: franchises are rarer, but endlessly profitable. In short, you need fewer hits than ever to make a ton of dough.

Oh, and residuals AREN’T BONUSES, Brooks. They’re a negotiated equivalent to royalties. They are compensation for the reuse of works of authorship. They’re not a reward for a job well done. They are a payment for continued exploitation of a property.

Already lost in this tit-for-tat skirmish, say analysts and economists who specialize in Tinseltown’s peculiar business models, is the magnitude of the studios’ decision to simply put the residual structure on the table. The studio bosses probably haven’t figured out the best solution, said Josh Bernoff, a media analyst at Forrester Research, but perhaps for the first time they are insisting that cosmetic tweaks to their way of conducting business won’t work.

Hey, Josh Bernoff…you listening?

You got rooked by a frickin’ press release.

Even the studios don’t believe in this crap. It’s an opening salvo in what will be a very long negotiation. The fact that Forrester is often hired by the media corporations we’re negotiating with (and never by, say, me) may have something to do with their narrow view.

At a time when the likes of Paramount and Warner Brothers are having trouble turning a profit on movies that gross $200 million at the box office and the Internet is rapidly making the concept of intellectual property a quaint notion, the sacred treatment of residuals has an air of unreality, according to some economists.

Ridiculous. Anyone in this business knows enough to know that if you gross $200 million at the box office, you will absolutely be generating profits every single time no matter what the movie is.

Every…single…time.

“There is a good question about why they even pay residuals in the first place,” said S. Abraham Ravid, a visiting professor of economics at Cornell, who recently studied how studios price screenplays differently, based on writers’ box-office track records.

Oh God. And now a floating quote from that great center of Hollywood, the inheritor of Lew Wasserman’s throne, the mastermind behind the movie business…

…Mr. S. Abraham Ravid.

Where do they GET these people? It’s only a good question about why a company should pay residuals if you are:

• ignorant of our business
• ignorant of copyright law
• ignorant of the role Mel Nimmer played in creating the residual structure

Few components of Hollywood’s crumbling business model

Sorry, Brooks, stopped reading after you managed to call one of America’s healthiest business models “crumbling.”

John F. Bowman, chairman of the Writers Guild of America’s negotiating committee, said he disagreed with the sacred part, but that untouchable was fair enough. “These are wages to us,” he said. “They’re not bonuses.” He said he thinks that the studios are using the scary-sounding residual retrenchment to make their real target—using material on the Internet without paying a hefty residual—more palatable.

Arghhh! Bowman, you’re not helping! Residuals are not wages. If they were, then yeah, the companies could argue that “you’re paid too much” and our only argument back would be “no we’re not!”

Residuals are compensation not for labor but for reuse of copyright!

We need to start getting that right…because if we don’t, it’s not likely that the Brooks of the world ever will.

A while ago, I wrote an essay about an editorial on copyright. I thought the author of that editorial was hopelessly naive and so misguided as to be proposing suicide as medicine for what ills us.

This evening, I read an article that’s quite the opposite. Copyright Jungle, written by Siva Vaidhyanathan for the Columbia Journalism Review, takes a far more rational and realistic approach to the state of copyright law.

First, Mr. Vaidhyanathan talks about how various media pundits and futurists are fond of imagining brave new Google-dominated worlds:

“So what happens when all the books in the world become a single liquid fabric of interconnected words and ideas?” [Wired editor Kevin Kelly] wrote. “First, works on the margins of popularity will find a small audience larger than the near-zero audience they usually have now… . Second, the universal library will deepen our grasp of history, as every original document in the course of civilization is scanned and cross-linked. Third, the universal library of all books will cultivate a new sense of authority … .”

Riiiiight. Just one problem with Mr. Kelly’s utopian vision of the free all-books-now library.

Copyright.

Google has steamrolled the internet, and yet it’s copyright law that has frustrated Google more than any competitor ever could. Google can’t follow its plan to create the universal library because publishing is a right, and that right is retained by the copyright owner.

Yet, as Vaidhyanathan notes, you won’t hear much from the media about this, because the media barely seems to understand copyright itself. The fact that an industry creating the intellectual property known as “journalism” doesn’t quite get the rules that govern its own product is…well…disturbing.

The most recent headline-grabbing copyright battle involved The Da Vinci Code. Did Dan Brown recycle elements of a 1982 nonfiction book for his bestselling novel? The authors of the earlier book sued Brown’s publisher, Random House U.K., in a London court in the spring of 2006 in an effort to prove that Brown lifted protected elements of their book, what they called “the architecture” of a speculative conspiracy theory about the life of Jesus. In the coverage of the trial, some reporters — even in publications like The New York Times, The Washington Post, and The San Diego Union-Tribune — used the word “plagiarism” as if it were a legal concept or cause of action. It isn’t. Copyright infringement and plagiarism are different acts with some potential overlap. One may infringe upon a copyright without plagiarizing and one may plagiarize — use ideas without attribution — without breaking the law. Plagiarism is an ethical concept. Copyright is a legal one.

Perhaps most troubling, though, was the way in which the Da Vinci Code story was so often covered without a clear statement of the operative principle of copyright: one cannot protect facts and ideas, only specific expressions of ideas. Dan Brown and Random House U.K. prevailed in the London court because the judge clearly saw that the earlier authors were trying to protect ideas. Most people don’t understand that important distinction. So it’s no surprise that most reporters don’t either.

Most reporters…most screenwriters…

It’s quite sad, really. It may also explain why those who do understand copyright and copyright law—like the corporations who own and exploit intellectual property—continue to wield tremendous influence over the evolution of those laws.

Still, Vaidhyanathan sees a silver lining in the battle between those who wish to protect their property rights and those who wish to liberate information and expression such as the films we writers help create.

Yet copyright, like culture itself, is not zero-sum. In its first weekend of theatrical release, Star Wars Episode III: Revenge of the Sith made a record $158.5 million at the box office. At the same time, thousands of people downloaded high-quality pirated digital copies from the Internet. Just days after the blockbuster release of the movie, attorneys for 20th Century Fox sent thousands of “cease-and-desist” letters to those sharing copies of the film over the Internet. The practice continued unabated.

How could a film make so much money when it was competing against its free version?

The key to understanding that seeming paradox — less control, more revenue — is to realize that every download does not equal a lost sale. As the Stanford law professor Lawrence Lessig has argued, during the time when music downloads were 2.6 times those of legitimate music sales, revenues dropped less than 7 percent. If every download replaced a sale, there would be no commercial music industry left. The relationship between the free version and the legitimate version is rather complex, like the relationship between a public library and a book publisher. Sometimes free stuff sells stuff.

Sometimes free stuff sells stuff.

This concept isn’t new. It’s just new to the intellectual property industry. In fact, anyone familiar with “loss leaders” knows that sometimes stuff that costs the owner money sells stuff. My father-in-law was a Burger King franchisee. He rarely made any money on hamburgers. Usually he lost money on hamburgers. Lots of money if there was some kind of special offer.

But the fries? The drinks? Enormous profit margins.

However, Vaidhyanathan never quite explains why free downloads might help spur purchased downloads. I know why burgers sell fries. But why will someone watching a pirated but pristine HD download of a film ever bother to spend money on a file that is the exact same aggregate of zeros and ones?

Right now, it appears that digital piracy is something enjoyed largely by the impoverished who probably wouldn’t pay to see the movie otherwise, or the inveterate naughty, i.e. those who love getting something for free so much, they’ll put up with the crappy quality and long download times.

Those days will change.

In the coming year, downloading DVD quality movies will accelerate. Shortly thereafter, we’ll be routinely downloading HD quality movies.

The industry for which we work will face a choice. Does it continue to build the walls higher and higher, or does it hope and pray that freebies will simply serve to entice people to do the right thing and buy the official version?

I remain cautiously optimistic. Anyone can jump online right now and download any song they so desire for free…and in less than a minute. And yet, iTunes continues to move files at a ferocious pace. Last February, it sold its billionth song.

That’s a billion reasons to be hopeful.

Just as copyright law was the only thing that could trump the ambitions of Google, an inherent human decency may be the only thing that can defeat piracy.

Grosso goes all inA landmark case is finally making its way to a courthouse near you (if you live in L.A.), and it could potentially affect how every screenwriter does business in this town. Possibly for the better, but possibly for the worse.

Call this one a case of “be careful what you wish for.”

Here’s the background. In 1996, a writer named Jeff Grosso submitted a screenplay about the world of undergound poker to a production company named Gotham Entertainment, which had a first-look deal at Miramax.

Miramax did not make the film. However, they did produce the movie Rounders in 1998, which is also about the world of underground poker.

Grosso sued.

As we’ve pointed out endlessly here at The Artful Writer, ideas are not considered intellectual property. No one owns them, therefore theft of ideas is impossible. In order to claim that Miramax and the writers and producers of Rounders stole his movie, Grosso had to show that they stole some of the unique literary expression contained in his screenplay.

He failed to do that. The Ninth Circuit rejected his claims of infringement, stating that the two scripts had substantially different moods, pace, themes, settings, character, sequences and dialogue. The only commonalities were basic poker terms that weren’t unique to the writers, but widely known by anyone who plays the game.

But if infringement were all that Grosso charged, I wouldn’t be writing about it.

Grosso also charged that Miramax had violated an implied contract with him.

An implied contract is defined as:

A contract not expressed by the parties but, rather, suggested from facts and circumstances indicating a mutual intention to contract. Circumstances exist that, according to the ordinary course of dealing and common understanding, demonstrate such an intent sufficient to support a finding of an implied contract. An implied in fact contract does not arise contrary to law or the express declaration of the parties.

Grosso alleged that by accepting the submission of his screenplay, Miramax entered into an implied contract with him. The essence of the implied contract? That if they used his script, they’d have to pay for it.

Used. Now, apparently there’s a different standard for “use” and “infringe.” “Use” can mean “use of ideas,” and so, the Ninth Circuit denied Miramax’s motion for dismissal on that charge. The case goes to a jury now.

Lots of screenwriters have seen this case as a new sword to wield against the companies. Many have had the experience of pitching a concept, getting passed on, and then seeing a film with a similar idea in a movie theater a few years later.

It’s no surprise, therefore, that lots of writers are rooting for Grosso.

Lots…except, say, Brian Koppelman and David Levien. Brian and David are the credited writers of Rounders. It is their claim that the screenplay for Rounders is wholly original to them, and given that the Ninth dismissed Grosso’s infringement claim, it appears that they’re right.

If Grosso should win, what does this mean for the Koppelman and Leviens of the world? Imagine pitching an idea totally original to you, and being told by the studio that they’ll buy it, but only as a rewrite of a prior idea someone else pitched them, because of implied contract.

Imagine selling a spec to a company, only to be told that your original screenplay is actually going to be considered an adaptation of a five year-old spec they didn’t buy…because there’s an implied contract, don’t-you-know…

The truth is that there is no implied contract. Hell, Grosso never even met with any Miramax execs. I hope that the jury sees fit to deny Grosso’s claim.

Of course, if they don’t, not much will change. The studios will simply require all writers to sign statements acknowledging, prior to submission, that there is no implied contract.

If Grosso wins, it will be an empty victory, and possibly a true annoyance. Screenwriters live in an unfair world, to be sure, and studios often bully us. We don’t need “heroes” like Jeff Grosso, though.

I’ll take my chances with writers like Koppelman and Levien. You know. The ones who actually do the work.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And that seems reasonable, right?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Guild now has a decision to make.

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

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

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

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

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

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

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

Yeah, it’s copyright.

Again.

Performance vs. Derivative Works

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

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

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

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

Federal copyright statute defines a derivative work as:

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

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

A film is a derivative work.

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

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

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

Now, let’s talk about our playwright friends.

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

The play is meant to be performed.

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

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

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

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

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

Rewrites, in other words.

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

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

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

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

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

Oh, puke…One of my favorite compilation web sites is Arts & Letters Daily. They always have an interesting variety of commentary, and I often find myself agreeing with the pieces they choose.

Not so a few days ago, when I read an essay entitled Imagine A World Without Copyright by Joost Smiers and Marieke van Schijndel.

Okay, interesting idea. Let me do that.

Thinking…thinking…

Huh. Whaddya know? That world sucks.

Of courst, Joost and Marieke, who apparently never met a globalization cliche they didn’t like (and yeah, I just used a cliche to make fun of people who use cliches), disagree with my assessment. They actually believe the elimination of copyright will improve the lot of artists.

They think this because they have no idea what the hell they’re talking about.

First off, Joost and Marieke have to exercise their anti-corporate chip. You see…

we have to admit that copyright serves an altogether different purpose in the contemporary world. It now is the tool that conglomerates in the music, publishing, imaging and movie industries use to control their markets.

These industries decide whether the materials they have laid their hands on may be used by others - and, if they allow it, under what conditions and for what price. European and American legislation extends them that privilege for a window of no less than 70 years after the passing of the original author. The consequences? The privatization of an ever-increasing share of our cultural expressions, because this is precisely what copyright does. Our democratic right to freedom of cultural and artistic exchange is slowly but surely being taken away from us.

Where to begin? Yes, copyright allows the privatization of cultural expression. Duh. For those of us who don’t think “private property” is a bad thing, this hardly seems objectionable. But that’s not what J & M are really after. What they want is their “democratic right” to “freedom” of cultural and artistic “exchange”.

Weasel words.

There’s no such democratic right (and what the hell’s a “democratic” right anyway?). There’s no such freedom. And “exchange” means theft.

I would very much like my democratic right to freedom of land and dwelling exchange, but the guy in that really nice house up the street doesn’t seem interested.

This kind of rhetoric is merely warmed-over Marxist platitudes about communal “ownership” of what must necessarily be property. Nothing…absolutely NOTHING…is stopping Joost from creating works of authorship and granting all people total use of them. But that’s not enough for him. He wants MY works as well.

After all, ownership is just another sin perpetrated on the world by Evil White Men…

We must keep in mind, of course, that every artistic work - whether it is a soap opera, a composition by Luciano Berio, or a movie starring Arnold Schwarzenegger - derives the better part of its substance from the work of others, from the public domain. Originality is a relative concept; in no other culture around the globe, except for the contemporary Western one, can a person call himself the owner of a melody, an image, a word. It is therefore an exaggeration to gratuitously allow such work the far-reaching protections, ownership title and risk-exclusion that copyright has to offer.

I’m not sure if that’s just ignorant or outright malicious. First of all, copyright specifically does not protect expressions that are not unique. Every artistic work does owe a debt to the non-unique expressions before it, but if it’s unique enough for copyright…it is unique. What kind of mind actually believes that a composition by Berio actually owes the better part of its substance from the work of others?

A soft mind that doesn’t understand what the act of authorship means. A mind so hell-bent on pointless egalitarian baloney that it actually seeks to undermine the very concept of ownership that has allowed the West to thrive creatively and enrich its public with the breadth, depth, quality and quantity of its cultural output.

A mind that actually believes that:

At the same time, a fascinating development is taking place before our very eyes. Millions of people exchanging music and movies over the Internet refuse to accept any longer that a mega-sized company can actually own, for example, millions of melodies. Digitalization is gnawing away at the very foundations of the copyright system.

No, no, NO. The existence of mass theft does not mean that ownership is a bad concept. It means that people are thieves. Bank robbers have been gnawing at the foundations of the banking system for a while, and burglars have been gnawing at the foundations of private property ownership.

Note the annoyance of the “mega-sized” company. This sloppy thinking drives me nuts. See, if a company is big, it’s bad. If a company is small, it’s good. After all, in a world without copyright…

…a work will have to take its chances on the market on its own, without the luxurious protection offered by copyrights….If the protective layer that copyright has to offer no longer exists, we can freely exploit all existing artistic expressions and adapt them according to our own insights. This creates an unpleasant situation for cultural monopolists, as it deprives them of the incentive to pursue their outrageous investments in movies, books, T-shirts and any other merchandise associated with a single cultural product. Why would they continue making these investments if they can no longer control the products stemming from them and exploit them unhindered?

The domination of the cultural market would then be taken from the hands of the cultural monopolists, and cultural and economic competition between many artists would once again be allowed to take its course.

This would offer new perspectives for many artists. They would no longer be driven from the public eye and many of them would, for the first time, be able to make a living off their work. After all, they would no longer have to challenge - and bow down to - the market dominance of cultural giants. The market would be normalized.

This kind of insane illogic should earn you jail time, Joost.

Let me see if I have this right. Copyright only serves to make big companies rich off of intellectual property, and it stifles the little artist. By eliminating copyright, and thus eliminating the ability of the company to exploit its property, the individual artists would now be able to be seen by the public. They would “make a living” off their work and the market would be “normalized.”

HOW? You’ve just gotten rid of the one thing that allows individual artists to make a living off of their own work! Consider the case of the novelist. He writes a novel, gets it printed, and starts selling copies. Until, of course, Joost photocopies the novel and starts selling it at a cheaper price.

Hooray. The market is normalized, meaning, as is always these case with this kind of Marxist baloney, that the market is destroyed and the incentive for anyone to be a professional artist is now obliterated.

And what about expensive works, like films? Who would dare pay for them if they had no ownership stake? Oh, Joost has an interesting compromise on that one.

Certain artistic expression, however, demands sizeable initial investments. This is the second situation for which we must find a solution. Think about movies or novels. We propose that the risk bearer - the artist, the producer or the patron - receive for works of this kind a one-year usufruct, or right to profit from the works.

This would allow the entrepreneur to recoup his or her investments. It would still be an individual decision whether or not to make the large investments, for example, needed to make a movie, but no one would be granted rights to exploit that work for more than a year. When that period expired, anyone could do with the work as he or she pleased.

Oh, wow. What a great plan! So let’s say you’re a screenwriter like me, Joost. You write a screenplay, which is inexploitable and worthless as a screenplay. A company decides to spend 20 million dollars to make your script into a movie. They exploit the movie exclusively for one year, and get all the money. You wait patiently for that year to end, and when it does…

…the movie is now freakin’ free, and anyone can use it, make derivative works of it, exhibit it, etc.

Congratulations, Joost. Your brilliant plan to elevate the individual artist above the corporate exploiters has just made things worse for individual artists.

You know, I honestly don’t mind that some people still live in the adolescent fantasy world of property-less utopias where everyone works according to their ability and takes according to their need. I don’t mind that some people blame corporations for everything, as if corporations were something other than a large group of individuals working together to enrich said individuals.

No, what really bothers me about this tripe is that these anti-intellectual-property folks are anti-artist, whether they realize it or not.

Actually, they’re anti-GOOD-artist.

One of the benefits of a property-based system that provide profit motive is that a real environment of competition is created. Not a fake one where artists who do it for the love pretend to compete but aw shucks, we’re all members of the human race and diversity is the point…but actual competition.

The crucible kind. The sort of competition in which the best rise to the top, and the people who just plain suck never get through.

That’s my kind of competition.

Joost wants a world of mediocrity where everyone’s “art” is appreciated. I don’t. I want a world where your creative output is promoted and advanced and supported only if it’s enjoyed.

There’s no better way than to let the market, i.e. the audience, dictate what is enjoyed.

The audience doesn’t have to be the most people possible. There are macroaudiences and microaudiences. Sure, Jim Jarmusch doesn’t appeal to a mass audience, but if he didn’t appeal to any audience, who the hell would give him the money to make his films?

Joost, I suppose.

Well, do us actual honest-to-goodness authors, artists and intellectual property creators a favor, Joost.

Don’t do us any favors.

We like owning our work. We like exploiting it. It doesn’t belong to your rainbow world of happy multicultural anti-global neo-Marxists. It belongs to us, and if we want to grant some corporate entity the right to it, then that’s our choice. If we want to exploit it ourselves for 70 years, that’s our choice. If we want to flush it down the toilet in a fit of pique, that’s our choice.

You know.

Freedom.

The real kind, Joost.

First they take your
pupils, then your
authorship…As all of our faithful readers know by now, movie and television writers and directors in the United States are not considered the legal authors of their works; the companies that commission the shows and movies retain the copyright. This is pretty much the way it’s been since Hollywood began, and that’s why the WGAw and the DGA had to fight for the right to determine credits—the credits are our way of acknowledging de facto authorship even if we don’t have de jure authorship.

However, a new phenomenon is being recognized by the U.S. Copyright Office—so called “orphan works”—and in the ensuing debate over what to do with these orphans, screenwriters and directors have a chance to continue establishing the fact of their co-authorship.

Orphan works are essentially intellectual property for which it’s impossible to determine ownership…or for which ownership has not been passed on through chain of title. Let’s say, for instance, that you find a wonderful book at a garage sale, and you want to adapt it into a film. The problem is that the author died five years ago without any heirs. Who owns this book? Is it public domain? Or can some relative of the author make a claim?

In the case of old films, the WGAw and the DGA have an answer. Just as in the case with foreign levies, the writers and directors are arguing that they are the true co-authors of films (sharing authorship on a 50-50 basis). The “copyleft” movement, which general works in opposition to private ownership of intellectual property, is arguing that orphaned movies should lapse into the public domain, where they can be freely exploited without limitation by anyone.

The writers and directors are arguing, and properly so, that this is baloney. If a work is still within the time-frame of copyright protection but its copyright owner cannot be determined, then the copyright should revert to and be shared by writers and directors.

Is this really a revolutionary issue for us? Will it lead to a windfall? No. Most movies of exploitative value are not orphaned. What’s important about our stance on this is that it cements the continuing understanding between writers and directors, two historically adversarial groups, that we are both the authors of films. The Auteur Theory, long reviled by screenwriters as moronic (see William Goldman’s genius quote in the preceeding link), is now being tacitly acknowledged as illegitimate.

Writers and directors are the coauthors of films. I suspect anyone who’s done both jobs would agree.

Bloody pirates…Hollywood beat Grokster 9-0 in a Supreme Court ruling today. This is a HUGE blow against P2P piracy, and I, for one, am absolutely thrilled with the decision.

I’d give you links, but just Google “Grokster” and follow the news headlines.

The crux of the case was simply this: P2P networks that enable (and some would argue exist to enable) copyright violations are, in fact, liable for such copyright violations. Justice Souter, writing for the Court, said:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

This is a major blow against P2P piracy. In a move that’s becoming almost comically frequent, the Supreme Court overturned a prior ruling by the Ninth Circuit Court of Appeals (the “take God out of the pledge” court), and the Supremes made a clear distinction between P2P technology, which exists to faciliate copyright violations, and the Betamax decision, which ruled (by a 5-4 vote) that blank videocassettes were not, in and of themselves, immediate lines to piracy (mostly because individuals can make extra copies of licensed copyrighted material for personal use).

In this way, Betamax still stands, so CD-R’s and such remain absolutely legal, as they should. P2P networks, however, are heading for dangerous rapids…also as they should.

What this ruling means is that the companies can now sue P2P networks in court.

How fast will they do this? The Simpsons episode in which the town enacted and then repealed Prohibition comes to mind. When asked how long it will take to flood Springfield once again with alcohol, mobster Fat Tony says, “Four minutes.”

That sounds about right.

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.

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.

As part of the steady tightening of the IP noose around copyright pirates and P2P abusers, the U.S. Senate unanimously passed the Family Entertainment And Copyright Act.

Folks, we’re probably going to see one of these things enacted every couple of years. Senator Feinstein may pretend to be a liberal, but all politics is local, and corporate Hollywood has her in their pocket. Indeed, there wasn’t one single senator who felt big business didn’t deserve these latest new protections.

That’s good for those of us making a living in this industry.

Of course, if you’re the spokesman for these guys, you’re probably wondering why you’re still bothering to roll the boulder up the damn hill.

Members of P2P United and any responsible company support intellectual property laws and their enforcement,” Adam Eisgrau, exec director for P2P United, told Daily Variety. “However, this package seems to be another point on a very distressingly long line of actions that ratchet up enforcements and penalties at times out of proportion with the law. To camcord a movie is wrong, certainly, but the penalty (of three years in jail) and the entitlement of theater ushers and owners to physically detain people makes you have to ask whether the copyright industry is having more sway than it should over the legislative process.”

Distressingly long line of actions? In my opinion, this is merely the beginning.

Does the “copyright industry” (an interesting and apt phrase to describe Hollywood) hold more sway than it should? Oh, I don’t know about that. More sway than an organization dedicated to promoting software that is primarily used to circumvent intellectual property rights? Yeah. Just a touch.

Let’s see if any representatives in the House agree with Mr. Eisgrau. I doubt he’ll find many takers.

Hollywood has always been an oxymoronic intersection of political liberalism and hypercapitalism. One of the odder fruits of this unnatural union is the town’s continuing assault on progressive copyright philosophy.

In this article, we see a typically progressive pro-public attitude towards the intent of copyright and the current state of intellectual property rights enforcement. Here’s a taste (which, I’m sure the author would agree, would be considered fair use):

…the only groups with a common interest in the direction of such laws are those corporations who want to lock up culture in perpetuity (or “forever minus a day,” as former Motion Picture Association of America head Jack Valenti once suggested).

…One of the most suggestive responses to this dilemma has come from Duke University law professor James Boyle…”What we have right now is an exponentially expanding intellectual land grab, a land grab that is not only bad but dumb, about which the progressive community is largely silent, the center overly sanguine, and the right wing short-sighted.”

Professor Boyle, who is on the Board of Creative Commons, which The Artful Writer uses to help establish its copyright policy, has certainly forgotten more about intellectual property law than I shall ever know.

He has put forth a call for “digital environmentalism,” in which politically progressive thinkers try to convince Americans to care as much about the public intellectual domain as they do about the public environmental domain.

I’m deeply pessimistic.

For starters, this debate centers around property rights, and Americans are fairly consistent in their belief in private ownership, particularly when it comes to questions of entrepreneurship. We only seem comfortable with public ownership when it comes to matters of blatant public welfare (e.g. utilities, roads, police). Hell, we haven’t even gotten around to publicizing health care. So what of intellectual property?

The need for communal possession of intellectual property is obvious in certain cases (e.g. scientific research), but less so in others (Gosh golly, just how long is Jay-Z going to own the lyrics to “Big Pimpin”?)

Indeed, while the thought of a corporation pouring carcinogens into our public water supply is instinctively repulsive, the idea that The Walt Disney Company will extend the term of its ownership of Mickey Mouse simply doesn’t have the same effect. While there’s the occasional horror story (and the article above cites a few), telling an elementary school they can’t paint a Mickey Mouse mural on their wall isn’t quite as environmentally outrageous as, say, Bhopal.

Granted, copyright was never meant to last forever, and Valenti was wrong to suggest that ownership ought to be permanent. However, if the “digital environmentalism” movement is the intellectual property cousin of anti-globalization and Green-ism, I wonder why more Hollywood stars aren’t protesting the steady tightening of the corporate fist around copyright law.

Could it be because those of us who work in Hollywood are the direct beneficiaries of such policies, no matter what our politics? Could it be because every time the corporate lobbyists prevent intellectual property from becoming public property, they don’t just enhance their bottom line, but ours as well?

Could it be that professional artists’ greatest economic ally is the corporate exploiter, and so they look the other way while corporations continue to pummel the public domain into submission?

Ah, well…no one likes a cynic. Besides, freeing Tibet is more fun.

Apparently someone felt that he owned the poetic phrase “