By: Nathan Gallinat, Esq.
Whether you are a screenwriting hobbyist or a full-time writer, it is essential to protect the countless hours you spent creating, expanding, and honing your vision transformed into an artistic final product. You completed your copious revisions and finished one too many [insert your coffee drink of choice here] throughout the writing process. The work is not done. So, what comes next?
An understanding of copyright law is essential to inform you of the next steps to protect your work. In our information society, the alarm of plagiarized or stolen works is tangible, and the negative pecuniary ripple effects are too often realized. This fear is not a figment of one’s imagination.
Ideas and concepts for a screenplay are not copyrightable. Copyright law protects an author’s original work that is fixed in a tangible medium of expression. A screenplay is initially owned by its author and “copyright protection”[1] vests in the author upon creation. Nevertheless, if your screenplay is created as a “work made for hire,” the entity/person for whom the screenplay was created is considered the author and owns all rights to the copyright.[2] The United States Supreme Court established the “Reid factors,” which is a framework for distinguishing between an employee and a non-employee author in matters of copyright law. Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). This is a highly fact-intensive and circumstantial analysis as no singular factor is determinative.
Even though “copyright protection” vests upon the creation of your screenplay so long as it is an original work, not made for hire, and fixed in a tangible medium of expression, that is not enough to protect your screenplay. Why? Copyright registration establishes a public record of your copyright claim and is necessary to sue for copyright infringement. A screenwriter should register his work with the U.S. Copyright Office to document the copyright in a screenplay. This is too often overlooked or otherwise underappreciated.
Authorship is distinct from copyright ownership. This is important. An author of a work may, for example, transfer copyright ownership to another person or entity, but still retain termination rights by virtue of her continuing status as the author. In contrast with copyright registration, registering a screenplay with the Writer’s Guild of America documents the claim of authorship of a written work. Both of the aforementioned registration processes are essential before circulation to industry professionals.
Screenwriters need to be acutely aware of the importance of contracts in defining ownership and rights before executing any contractual agreement. The negative repercussions can be horrifying. As an example, for Friday the 13th, the screenwriter was initially credited as the sole author of the screenplay, but rights for the entire film were later assigned to Georgetown Productions, which registered the related copyrights and usurped the writer’s copyright in his screenplay. Horror Inc. v. Miller, 15 F.4th 232 (2d. Cir. 2021).
The failure to register may have adverse financial repercussions for the screenwriter. Horror spotlights the author and copyright dichotomy and underscores the importance of screenwriters registering their works and diligently reviewing contracts before entering into any agreement.
The failure to register may have adverse financial repercussions for the screenwriter. Horror spotlights the author and copyright dichotomy and underscores the importance of screenwriters registering their works and diligently reviewing contracts before entering into any agreement.
[1] The rationale for the utilization of quotation marks is elucidated as the reader continues.[2] Unless otherwise agreed to in writing.
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