WGA Issues: December 2005 Archives

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? :)