Maryland Bar Bulletin
Publications : Bar Bulletin : September 2007

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Every week, I get someone in my office with a wonderful idea regarding a reality TV show, movie, etc. Most often though, these very creative people are also worried that their screenplay, script or treatment will eventually be stolen and they will be left without compensation or proper credit. Thus, this article will offer an education on how to protect your intellectual property – specifically screenplays, scripts and treatments.

The United States Patent and Trademark Office (USPTO) defines “Intellectual Property” as creations of the mind – creative works or ideas embodied in a form that can be shared. This article deals with literary intellectual property, such as screenplays, scripts and treatments; which are not all the same. Treatments are a very good way of attracting attention from studios or people in the industry when you do not have a completed script or screenplay ready. A person would write a script for a television project and a screenplay for a movie project. For protection of the aforementioned literary intellectual property, let us look to the U.S. Copyright Act.

The U.S. Copyright Act (the “Act”) protects literary works, literary characters, movies and videos when these are original works of authorship, which are fixed in a tangible medium. By fixed, the Act means that the work is embodied in a manner which is “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration,” e.g., a screenplay, script or treatment.

The Act does not protect mere ideas or loose concepts. Therefore, never tell your ideas to anyone else who has not agreed previously to purchase it from you, or attach you to it as its writer or producer. Always ask for permission or execute a non-disclosure agreement first. The reason for asking for permission and conditioning the disclosure is that contract law may protect you where copyright law falls short. Do not pitch the idea or screenplay if the other person(s) refuses to agree, since your idea will become public domain once it leaves your mouth. If the other person agrees and you pitch the idea, then follow up with a letter thanking that person for his/her time, reiterating the purpose of the pitch and how he/she has agreed to pay, or attach you, should they decide to use your idea. Sending the letter will remind the other person of the agreement, and it will provide you with proof of an agreement should that person unscrupulously use your idea. Again, since mere ideas are not protected by copyright, you should ask the other person to not disclose the idea without your permission, and you should include this in your letter as well.

The Act previously required that the author of the work register his/her work with the U.S. Office of Copyright and that he/she post a copyright notice on the work. Those formalities are no longer necessary for copyright protection. Today, copyrights are automatic as of the moment of creation. Notwithstanding that, however, you should still adhere to the formality of registration, since it affords you certain valuable benefits not otherwise available. For example, if you discover that someone has infringed on your copyright, you can have the court order an injunction against the infringer and/or win a suit where damages are awarded by the court. You may secure an injunction whether or not you registered the copyright, but damages are only available if your work was registered with the United States Copyright Office. You should also place the copyright symbol and year of copyright on your work so that potential infringers are warned.

In order to copyright a work, you must file a registration form, which you may secure by calling the U.S. Copyright Office at (202) 707-3000, or by logging onto www.copyright.gov. You must then mail the completed form, along with a copy of the work, and a $45 check to the U.S. Register of Copyrights at 101 Independence Ave., S.E.; Washington, DC  20559-6000. You will likely receive proof of registration in eight to twelve weeks.

Self-mailing has been referred to as the “poor man’s copyright.” Essentially, this entails the author placing the work in an envelope, mailing it to himself/herself via registered mail, saving it upon receipt and not opening it. The reasoning behind this is the unopened envelope, which is post dated, can be used as evidence in a court proceeding to provide verification as to the date of existence of the work. The poor man’s copyright provides no more protection than the unregistered copyright. Thus, the work should be registered with the U.S. Copyright Office.

Many writers and producers mistakenly believe that the Writers Guild of America (WGA) registration protects their idea, treatment or screenplay. The WGA does not and cannot provide protection against infringement – only the Act can do that. As such, WGA registration only serves to provide evidence at trial. If someone infringes your work, you will be able to call the WGA as a witness, who will then testify regarding the date of WGA registration. The WGA cannot testify as to the originality of your idea, treatment or screenplay, or the validity of your infringement claim. The cost of WGA registration is $22 for non-members and $10 for members. You can contact the WGA at www.wgaeast.org.

Chances are that you will be asked to sign a release if you are attempting to make a submission and you are unrepresented by an agent or attorney. If you take the time to read the release, you will notice that the release gives the producer/production company/studio carte blanche to use your idea without compensating you for it. As such, it is highly unlikely that you will be attached to whatever project they develop from your idea, since there was no understanding of your attachment; hence, writers are advised against signing releases. If you do not have an agent, then hire an attorney to make the submission for you.

The best protection for your idea, treatment or screenplay is non-disclosure, but that approach is impractical if you intend to have a career. The next best alternative is registering your work with the U.S. Office of Copyright and creating contracts, as detailed above, to protect your ideas during the pitching process. The aforementioned procedures for protection are not a guarantee against theft, but they are a deterrent with legal punch.

Paul Gardner  practices in the areas of entertainment law, venture capital, mergers & acquisitions, and corporate law. He represents major clients in negotiating record deals, publishing rights, movie deals and private offerings of equity & debt.

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Publications : Bar Bulletin: August  2007