What protected rights should screenwriters be aware of as they market their scripts and negotiate contracts?
Hollywood is a pretty big and intimidating place for many.
We've all heard and read the cautionary tales of Hollywood stealing the ideas of screenwriters. While this has and will happen on occasion, the truth of the matter is that these instances are usually single anomalies spread out over the course of decades.
Hollywood is more risk-averse than it ever has been. The tales of studios or producers simply taking a script and changing out the names and settings to "make it their own" just doesn't happen anymore — at least when dealing with legitimate individuals and companies. We live in a litigation-happy world where millions of dollars can be at stake. Studios and companies don't like to be sued, whether the lawsuits in question have weight or are frivolous money-grabs.
The reason most companies won't accept unsolicited material is the sole reaction of frivolous and unwarranted lawsuits of the past.
Screenwriters need to understand both their protected rights — which we'll cover below — but also the reality that just because a studio or production company has released a film with similar concept, stories, settings, and characters doesn't mean that they've somehow stolen those elements from them. The truth is, original ideas are hard to come by these days. Everyone is influenced by the movies, television shows, and literary fiction that came before. Thus it's only natural that a large collective of creative minds will often come up with similar content.
I pitched a television series to some key individuals in the studio system a few years back. It was a time travel show embedded in reality about a team of historians that had time travel technology that they used to investigate historical moments. They tried to keep the technology a secret from the public, military, and government to avoid misuse of it. One of their peers decided to go rogue with the technology, and a specialized team was sent to race after him in time. Each episode would cover an iconic moment of history, offering a unique history lesson as the group tried to find the man that had run amok with the technology.
When the trailer for NBC's renewed show Timeless came out, my jaw dropped — it was as if I had jumped forward in time and was watching the trailer of my own series that I had been developing and pitching for years. Needless to say, I went through the production company names, producer names, and such, and found no connection to who I had taken it to. I was selling it on pitch only during other meetings, so there was no script — just the overall concept.
Most novice screenwriters would declare that somehow the network and producers got a hold of their pitch and stole it. I hear and read that fear on a daily basis from people. But the truth is that it was just a concept that was ripe to be conjured by many. And the powers that be that conjured their own version of it beat me to the punch.
The biggest mistake screenwriters can make is to back off on marketing their concepts for fear of them being stolen. It's just not a logical thing to worry about as long as you keep a tight record of who you submit the project to and always be sure that you're submitting your work to legitimate companies. A simple IMDBPro lookup will do you wonders in that respect.
But beyond that, what are your protected rights as a screenwriter?
We'll use the provisions and overscale suggestions offered by the WGA and break them down to the finer points and broad explanations so that you, the screenwriter, will know your creative rights in any given situation in Hollywood. Our focus will be more on feature script rights, while briefly touching on the expanded television writer rights.
Note: ScreenCraft is not offering legal advice or representation within this post. This is merely an easy breakdown to utilize as a guide for educational purposes. To explore these topics further, go to the WGA site HERE and seek the counsel of an entertainment lawyer.
Covered Rights Only Apply to Guild Members and WGA Signatory Companies
The WGA negotiates rights that are part of the collective bargaining agreement — the Minimum Basic Agreement (MBA) — which covers most work done by Guild members and must be followed by WGA Signatory Companies.
Writers Guild members must abide by what is known as Working Rule 8, which states that members are to work for and sell or option literary material only to companies that have signed a collective bargaining agreement with the Guild, which means that guild members have to work with signatory companies and those signatory companies have to abide by the MBA statutes.
When screenwriters deal with independent producers and production companies that aren't WGA signatories, these detailed rights within the MBA do not apply. That's when you see screenwriters working for free or very little compensation compared to what is guaranteed by the MBA. So understand that if you're in that situation, you can only use the MBA as a guide to your compensation working with non-signatory companies and individuals.
But let's assume that you've thankfully gotten to a level where you're dealing with legitimate signatories.
The copyright holder of any given property — in this case, the screenplay — has exclusive ownership of five rights:
- Reproduction of Copies
- Distribution of Copies
- Performance Rights
- Public Display Rights
- The Right to Prepare Derivative Works
As a screenwriter writing an original spec script — a screenplay written under speculation that you will sell it to someone — the moment you write the script is the moment that you own that copyright of it, which includes all exclusive ownership rights mentioned above.
The need to have an actual copyright declaration symbol — © — isn't necessary for the United States and most of Europe anymore. This was necessary under the Universal Copyright Convention, for which the U.S. was a member of. What is called the Berne Convention stipulated that copyright automatically vests on creation of a work without the need to have a copyright declaration. The U.S. placed itself under that banner in 1989. There are still quite a few countries that are not members of Berne, so it is probably useful for writers in foreign countries to research their territory to ascertain if that is needed.
For more secure copyright, a filing with the U.S. Copyright Office is an option. Know that such copyright is only applicable to how that draft of the screenplay that you submitted appears then and there. Variations of it beyond that are not covered. Insiders have said that U.S. Copyright is moreso applicable on the studio end of things, where they use it to obtain specific remedies for breach. It's said that studios choose to register their script acquisitions and options to put other studios and companies on constructive notice regarding their involvement and ownership.
When you sell a script to a company or individual, you legally transfer your copyright ownership to them, which is dictated in the signed agreements. There are exceptions written into copyright law that allows the writer to revoke all transfers at a later date and resell the rights. This often occurs if the original writer dies and their estate is being handled (see an entertainment lawyer for more details).
Separation of Rights can undoubtedly come into play as well, where elements of copyright can be negotiated on different levels. You can refer to the WGA site for those details.
Finally, the WGA does offer a service where you can register literary material with them. The fee is currently $10 for members and $20 for non-members. This registration is nothing more than a virtual and physical timestamp recording the date of registration if there is ever a dispute over authorship. This is not applicable in actual state courts, but through arbitration agreements that are usually written into contracts where writers agree that if there is ever a contractual dispute, an arbitration hearing will handle the circumstances and eventual decisions. Many entertainment lawyers think otherwise, mind you, believing that WGA registration is nothing more than a way for the guild to generate funds. You be the "judge" on that in the context of your own situation.
Overall, how you protect yourself and your screenplays is up to you. Beyond the legalities, the reality of the situation, as mentioned above, is that studios and companies in Hollywood don't want to be sued. It's cheaper for them to purchase your screenplay, have the copyright signed over to them, and then produce it, as opposed to stealing it, producing it with any variations, and then having to deal with bad press and profit shares as a result of a lawsuit.
Guild and U.S. Copyright registrations aren't a requirement to market your script. But if you're worried, they can offer you some added protection and peace of mind. You could just as easily rely on the timestamps within your computer for each script file and obtain witnesses by sending the script to your manager, agent, producer, etc. From what we've heard from insiders, that's all you really need to do.
Rights During Development
Often known as the dreaded development hell, writers have specific rights during this process. The term development stipulates the time before production of any acquired screenplay. Development is well before pre-production and usually entails months, and sometimes years, of work before the financing for any production is given.
It's basically the rewrite phase but under the direction of a producer, development executive, etc.
Spec Script Rights
If an individual or company options your work, the MBA guarantees you the right to undertake the first rewrite during that option period, which is usually six months to a year. During this time, the writer is employed by the powers that be in that respect. You, the screenwriter, can always waive this right, but it would be smart to avoid doing that because it could also affect your right to get paid for additional rewrites in the future.
If an individual or company purchases your work, thus acquiring your original feature or teleplay, you have the right to the first rewrite in that scenario as well, unless you waive that right. By law, they can't force you to waive that right or use a possible waiver on your behalf as a negotiation point for your contract. A waiver must be freely granted by you, the screenwriter.
Original Assignment Rights
When you're hired to write an original assignment for features or television — hence, you're not being hired to rewrite a pre-existing script — you can be replaced after the first draft if the rights holders want to bring on a different writer. The MBA does specify that a senior production executive must meet with you in a timely fashion to discuss such an occurrence. Regardless, the point to take away here is that when you write on assignment, you can be replaced.
Also note that when you sign a contract, the contract will typically stipulate that you receive certain payments per draft. If you're replaced, you won't get the entire contract's monetary compensation — only that for which you've worked on.
If you've managed to stay on as the writer for additional drafts, you will also have the added benefit of an additional rewrite if and when a director or principal actor is attached. You will be offered the first opportunity to perform revisions if that happens. This right expires three years after delivery of the first writer's first or final set of revisions, whichever occurs first, so it'd be smart to negotiate an extension or elimination of the three-year limitation if you have the means to do so through representation or your own negotiations.
This all, of course, depends on the contract at hand as they often vary. The MBA does at least offer screenwriters the basic minimums that signatories have to follow. But those are just the minimums, as most contracts are negotiated to offer more.
Consultation Rights for Script Notes and Requested Changes
An interesting inclusion within the MBA stipulates that the writer has the right to receive direct explanations for any and all notes that they are given. This prevents you from having to apply notes and changes without reasons why and without the chance to discuss.
Assignment Pitching Rights
When a studio or company is looking to assign a writer(s) to a project, they usually send notice to agencies and management contacts. Multiple writers and writing teams will be given the chance to pitch their take on the assignment.
The MBA offers you the right to ask what the approximate numbers of other candidates are. This affords you the chance to know the stakes at hand.
Script Cover Pages During Development
During development, many writers may have been attached at one time or another. However, the final credits of the projects are not determined until much later in the process after the project has been produced (but obviously before the film is released).
So the MBA stipulates that the cover page must include the name of the first writer followed by the word revisions. Then the names of all subsequent writers are to follow, indicated by putting the words "current revisions by" followed by the writer's name and the date the material is submitted to the company.
Your Rights if the Studio or Company Is Sued
If there's a copyright infringement lawsuit or any other action that is filed or threatened, take comfort in knowing that the company must pay attorney fees and travel expenses for depositions or court hearings, and the cost of copying documents from your files. You, the screenwriter, would be covered under their errors and omissions insurance policy. You would thus be indemnified against damages and legal expenses, including attorney's fees, and would be relieved of liability.
Rights During Pre-Production and Production
Regardless of what you may have heard, screenwriters can still play an important role when a film has been greenlit and goes into production. This isn't always the case, but the MBA offers some protection in that respect.
Producer and Director Meetings
For theatrical motion pictures, pilots, movies-of-the-week and miniseries, you have the right to meet with a producer to discuss the project at hand before a director is attached. The MBA uses the phrase "meaningful discussion of the translation of his/her vision to the screen," which means that you'll have the right to discuss all aspects of the movie, including tone, location, casting, choice of director, etc.
This allows you to have a continued say for your vision of what you've just written. This doesn't mean that they have to abide by your preferences. Instead, it allows for the opportunity of additional collaboration.
When a director is attached, whatever writer is currently under contract for the project will meet with the executive producer and the director to further discuss the project.
In both situations, if the company believes that your inclusion in the production process should continue, you will be considered for an additional contract.
Cast Readings of the Script
The MBA states that it is the preferred practice that the director invites the currently employed writer to the first cast reading.
While this isn't necessarily a right, the MBA does list it as a preferred practice. If this happens, the writer should only share notes to the director in private, as opposed to speaking to the whole cast reading group.
Visiting the Set
Believe it or not, writers are usually welcome on the set. A new provision in the 2001 MBA addressed the right for a writer to visit the set during production.
So if you'd like to visit the set of your film, what you need to do is contact the producer or executive that you've dealt with and make an official request for you and guests to be allowed onto the set during production. However, the director — the captain of the ship — has the contractual right to approve any such visit for any number of reasons.
Covering Location Expenses
If you are still employed through production and have been asked to be on location during filming, the company must cover all travel expenses, which includes first-class travel, board, and lodging. Any additional writing services authorized by the company while on location must be compensated.
After Production Rights
The journey doesn't end for the screenwriter when they type THE END or when the production wraps.
Cast and Crew Events
You have the right to be invited to any and all cast and crew events. The company is not required to pay for your travel and overnight expenses, mind you, but you can negotiate for such inclusions (see below).
Right to View Cut of Film
As a contributing screenwriter, you have the right to be able to view a cut of the film. This falls under a "Writer's Viewing Period" that is set up by the company with due time enough for the writer's reactions and notes to be offered up and applied — if approved.
All credited writers must be invited to the first sneak preview — if any are being held in the Los Angeles area. You should be given five days' notice, and once again, your travel and overnight accommodations for such a screening would not be covered by the company. It is not a breach of contract if there is an oversight, so the writer should contact the company after production wraps to stay in the loop.
Premiere, Press Junkets, and Festivals
Credited writers will be invited to attend the domestic premiere or the domestic film festival at which their film is first exhibited — unless notified otherwise by the company. They will furnish you with transportation and accommodations, but only if you are required to travel more than 150 miles to attend the premiere, festival, or press junket.
Copy of the Film
Credited writers are guaranteed a copy of the film. While the WGA site uses the word videocassette, it's more than likely that it will be a DVD or Blu-ray.
Copy of the Shooting Script
Credited writers are guaranteed a copy of the shooting script.
The company is required to abide by the Guild's determination of writing credits in accordance with the provisions of the credits schedules of the MBA. These provisions detail how the credit will appear on the screen, during the sequence of credits, as well as the appearance in ads, publicity, etc.
If, for whatever reason, you choose to use a "reasonable" pseudonym, you have that right if the request is made within five business days after credits have been finalized. One stipulation in the MBA does state that this only applies if you were paid less than $200,000 for writing services on the movie.
All of these rights represent the minimum of what is offered by the provisions in the MBA. You, the screenwriter, can negotiate with whatever company you are dealing with to receive more rights, more compensation, and more detailed assurances that the MBA brings up in its preferences.
What we've covered here is just a broad stroke peek into what rights you have as a screenwriter. CLICK HERE to read all of the details and more finer points.
Ken Miyamoto has worked in the film industry for nearly two decades, most notably as a studio liaison for Sony Studios and then as a script reader and story analyst for Sony Pictures. He has many studio meetings under his belt as a produced screenwriter, meeting with the likes of Sony, Dreamworks, Universal, Disney, Warner Brothers, as well as many production and management companies. He has had a previous development deal with Lionsgate, as well as multiple writing assignments, including the produced miniseries Blackout, starring Anne Heche, Sean Patrick Flanery, Billy Zane, James Brolin, Haylie Duff, Brian Bloom, Eric La Salle, and Bruce Boxleitner. Follow Ken on Twitter @KenMovies