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TheKeenGuy 03-04-2011 11:47 PM

Re: Question about copyright
 
Quote:

Originally Posted by zz9 (Post 728901)
That may be common practice but surely would be subject to negotiation. Someone making their first sale might have to agree but a successful writer selling a hot script could say no.

What are you basing this on? Just on theory?

I can understand your "how would they know?" thing, but doing a little searching, I've found so far that "all drafts, revisions, etc." is commonly included in the copyright assignment of screenplay deals.

The notion that a "successful writer" would balk at that, or that a studio would cede to such a bizarre demand, seems counter-intuitive to me.

SoCalScribe 03-05-2011 10:35 AM

Re: Question about copyright
 
Quote:

Originally Posted by zz9 (Post 728886)
What if you haven't registered it? Registration isn't a requirement.

Or, since cutting thirty pages is a big change, you could re register and get a separate copyright to sell.

Obviously characters etc would be exclusive, but to use a scene you cut in a new script with totally different characters would be okay.

If a screenplay copyright has not previously been registered, it will be, in order for the studio to assert its ownership. The two scenarios I've seen are where the studio asks the writer to register it with the Copyright Office so they have a registration on file that can be assigned over... or the studio registers the copyright itself and - since they're the first registrant of the work - they become the owner pursuant to the writing agreement.

It doesn't matter if you re-register. Option/purchase agreements for screenplays include all right, title and interest to the property. If you registered a hundred different versions with the copyright office, they would ALL be part of the acquisition by the studio. Studio's don't like to leave loose ends on the chain of title (like a version of the material they don't own).


Quote:

Originally Posted by TheKeenGuy (Post 728897)
I'll drive myself crazy if I try to track down where I read this, but I recall a sold writer discussing how part of the script sale often involves the studio acquiring the rights to all drafts of a screenplay that have been written, not just the final draft.

True. I mean, they're not going to go back and say, "Send me your first draft," but if you've done substantive rewrites and have more than one version of a polished product... they're going to want the rights to all of them. After all, they own the property, not just the words on the page.


Quote:

Originally Posted by zz9 (Post 728901)
That may be common practice but surely would be subject to negotiation. Someone making their first sale might have to agree but a successful writer selling a hot script could say no.

And, to put it bluntly, how would they know? If you haven't registered, or only registered the final draft, how would they ever know you re used a scene discarded from an earlier draft?
And even if you did reuse a scene simply changing the characters and rewriting it would mean it was a new work anyway. Unless it was word for word identical how could it be an infringement?

If I sell a script where I had deleted a scene with a guy robbing a bank does that mean I can never write another script ever with a guy robbing a bank?

No, it's not subject to negotiation. When you sell a screenplay, you sell ALL of it; all right, title and interest to the property. It's non-negotiable. Studios can't perfect a chain of title for the project (which is required to release a movie) if there is a hole in the rights to the property - like the kind you'd have if they didn't own a draft or a mysterious missing thirty pages of a script. It just doesn't happen that way.

There are two things I'd like to point out about the second part of your post. The first is that a scene of a bank robbery (generally) isn't something you can copyright. It's not like if you sell a script with a bank robbery, you can never write another bank robbery again. Copyright protects the execution of the idea, which means you would only be stopped from writing about a bank robbery in the way the characters robbed it, as written in your first script. There's nothing wrong (or that infringes on copyright) if you later write a new scene about a bank robbery that's carried out in a different way by different characters.

Secondly, the comment, "Who's really going to know [if you do use those pages]" is something that I have to strongly caution you don't follow. In every option/purchase agreement, there is a Representations & Warranties section where the writer sells the work and receives the payment contingent upon the acknowledgement that the work is 100% their own, they don't owe anybody money for anything, the work hasn't been sold anywhere else, etc. etc. etc. If you were to sell the script to Studio A (which, if you look at any standard writer agreement, includes the acquisition of all right, title, and interest to the property), and then were to lift a scene (unused or not) from that script and put it into a script that was sold to Studio B, it would be a violation of your reps and warranties, and would put you in material breach of your agreement with BOTH studios, which would allow them BOTH to sue you for any and all damages - including development costs on a movie they can no longer legally release on their own. This could amount to MILLIONS of dollars in damages.

Is there a chance they'd never find out? I suppose so. But that's not exactly a legal defense... and are you willing to bet millions of dollars and your professional reputation that not one of the hundreds of studio employees or millions of audience members will make that connection?

Suggesting that someone do something illegal (and yes, what's being proposed is illegal under copyright law) based on the "how would they ever find out" justification, IMO, is incredibly irresponsible.

I know your post was based on the fact that a writer DIDN'T register a version first (in which case, you're right... no one would have any way of knowing what you revised from earlier drafts unless there's a paper trail or you sent that earlier version to someone and it's documented)... but the OP's question was about what happens when you register a script, then cut it, then sell that cut version. I just want to make sure it's absolutely clear that in THAT circumstance, saying "how will they know" for those edited 30 pages is a big deal. ;)

ComicBent 03-05-2011 11:22 AM

Re: Question about copyright
 
Quote:

I recall a sold writer discussing how part of the script sale often involves the studio acquiring the rights to all drafts of a screenplay that have been written, not just the final draft.
As I always say, not a week goes by that I don't wish I were a lawyer.

So the following is just commonsense advice.

The point of claiming all drafts is to prevent claims by the author that he/she still owns a different version of the script as reflected in this slightly different version, or that heavily different version (but still clearly the same characters with the same dialogue in extensive passages). The point is not to root out every idea that you may have attached to the script in the course of creating it.

If you chop out a sequence from a script before you copyright it, you can use the sequence in a different work as long as the sequence is not a derivative work. Only the copyright owner has the right to create derivative works (think of MOVIE II, III, etc.), novelizations of films, TV shows based on films. Obviously you could have events and scenes that do not depend on the original work; they can exist independently of the original. You can cut these out and use them with different characters. Make sure that none of the extensive and significant dialogue is duplicated somewhere in the original (unlikely, but who knows?).

And do not copyright the work until you have removed everything that you want to save for use in a different work.

zz9 03-05-2011 11:55 AM

Re: Question about copyright
 
Quote:

Originally Posted by ComicBent (Post 729067)

If you chop out a sequence from a script before you copyright it, you can use the sequence in a different work as long as the sequence is not a derivative work. Only the copyright owner has the right to create derivative works (think of MOVIE II, III, etc.), novelizations of films, TV shows based on films. Obviously you could have events and scenes that do not depend on the original work; they can exist independently of the original. You can cut these out and use them with different characters. Make sure that none of the extensive and significant dialogue is duplicated somewhere in the original (unlikely, but who knows?).

This is what I was suggesting. If the scene was "guy robs a bank and finds it was closed down and turned into a Starbucks a week earlier" and you ended up cutting it you could use that same idea in a later script with no problem, as long as the characters are not the same. It would be very unlikely that you would copy it word for word since merely fitting it into the new script would call for changes that would qualify it as a new work. The idea is so broad that it itself could not be copyrighted.

zz9 03-05-2011 12:01 PM

Re: Question about copyright
 
Quote:

Originally Posted by SoCalScribe (Post 729059)
If a screenplay copyright has not previously been registered, it will be, in order for the studio to assert its ownership. The two scenarios I've seen are where the studio asks the writer to register it with the Copyright Office so they have a registration on file that can be assigned over... or the studio registers the copyright itself and - since they're the first registrant of the work - they become the owner pursuant to the writing agreement.

It doesn't matter if you re-register. Option/purchase agreements for screenplays include all right, title and interest to the property. If you registered a hundred different versions with the copyright office, they would ALL be part of the acquisition by the studio. Studio's don't like to leave loose ends on the chain of title (like a version of the material they don't own).




True. I mean, they're not going to go back and say, "Send me your first draft," but if you've done substantive rewrites and have more than one version of a polished product... they're going to want the rights to all of them. After all, they own the property, not just the words on the page.




No, it's not subject to negotiation. When you sell a screenplay, you sell ALL of it; all right, title and interest to the property. It's non-negotiable. Studios can't perfect a chain of title for the project (which is required to release a movie) if there is a hole in the rights to the property - like the kind you'd have if they didn't own a draft or a mysterious missing thirty pages of a script. It just doesn't happen that way.

There are two things I'd like to point out about the second part of your post. The first is that a scene of a bank robbery (generally) isn't something you can copyright. It's not like if you sell a script with a bank robbery, you can never write another bank robbery again. Copyright protects the execution of the idea, which means you would only be stopped from writing about a bank robbery in the way the characters robbed it, as written in your first script. There's nothing wrong (or that infringes on copyright) if you later write a new scene about a bank robbery that's carried out in a different way by different characters.

Secondly, the comment, "Who's really going to know [if you do use those pages]" is something that I have to strongly caution you don't follow. In every option/purchase agreement, there is a Representations & Warranties section where the writer sells the work and receives the payment contingent upon the acknowledgement that the work is 100% their own, they don't owe anybody money for anything, the work hasn't been sold anywhere else, etc. etc. etc. If you were to sell the script to Studio A (which, if you look at any standard writer agreement, includes the acquisition of all right, title, and interest to the property), and then were to lift a scene (unused or not) from that script and put it into a script that was sold to Studio B, it would be a violation of your reps and warranties, and would put you in material breach of your agreement with BOTH studios, which would allow them BOTH to sue you for any and all damages - including development costs on a movie they can no longer legally release on their own. This could amount to MILLIONS of dollars in damages.

Is there a chance they'd never find out? I suppose so. But that's not exactly a legal defense... and are you willing to bet millions of dollars and your professional reputation that not one of the hundreds of studio employees or millions of audience members will make that connection?

Suggesting that someone do something illegal (and yes, what's being proposed is illegal under copyright law) based on the "how would they ever find out" justification, IMO, is incredibly irresponsible.

I know your post was based on the fact that a writer DIDN'T register a version first (in which case, you're right... no one would have any way of knowing what you revised from earlier drafts unless there's a paper trail or you sent that earlier version to someone and it's documented)... but the OP's question was about what happens when you register a script, then cut it, then sell that cut version. I just want to make sure it's absolutely clear that in THAT circumstance, saying "how will they know" for those edited 30 pages is a big deal. ;)

A few comments. For one I would not suggest trying to con a studio that has bought your script. I was asking "How would they know if you had re used an idea, not characters or cut'n'paste scenes, but an idea like my "bank robber robs a Starbucks" idea above from an earlier script. The idea is so broad that it would not be copyrightable in any way. Could a studio take action on such a broad idea?

Secondly everything is negotiable. Many studios have made movies where rights are split, the James Bond franchise for one. If JK Rowling had offered a studio her script for Harry Potter but said "I want to keep the character rights" the studio would have come to an agreement. With Joe Newbie Writer, no way.

zz9 03-05-2011 12:21 PM

Re: Question about copyright
 
Quote:

Originally Posted by TheKeenGuy (Post 728906)
What are you basing this on? Just on theory?

I can understand your "how would they know?" thing, but doing a little searching, I've found so far that "all drafts, revisions, etc." is commonly included in the copyright assignment of screenplay deals.

The notion that a "successful writer" would balk at that, or that a studio would cede to such a bizarre demand, seems counter-intuitive to me.

A novelist can sell the movie rights to one book in a series, keeping the rights to the characters to himself. If that novelist wrote a script of one of his books he would not agree to hand over the entire rights for one script sale.

Presumably your searching would be the standard terms of a studio. How would you know if and when any specific contract had altered terms unless you had access to that specific contract?

zz9 03-05-2011 12:30 PM

Re: Question about copyright
 
Quote:

Originally Posted by TheKeenGuy (Post 728906)
What are you basing this on? Just on theory?

I can understand your "how would they know?" thing, but doing a little searching, I've found so far that "all drafts, revisions, etc." is commonly included in the copyright assignment of screenplay deals.

The notion that a "successful writer" would balk at that, or that a studio would cede to such a bizarre demand, seems counter-intuitive to me.


I've thought of an example. George Lucas wrote Star Wars as one, single, script before deciding it was too big and splitting it into three.

Yet he sold the rights to only Episode 4 to Fox. He kept ownership to the other two and made them himself.

"Draft 1" would have been a script for the entire original trilogy, but Fox only bought a later, revised, script that was only a part of the original.

TheKeenGuy 03-05-2011 12:41 PM

Re: Question about copyright
 
Quote:

Originally Posted by zz9 (Post 729081)
A few comments. For one I would not suggest trying to con a studio that has bought your script. I was asking "How would they know if you had re used an idea, not characters or cut'n'paste scenes, but an idea like my "bank robber robs a Starbucks" idea above from an earlier script. The idea is so broad that it would not be copyrightable in any way. Could a studio take action on such a broad idea?

I think the relevant question is "would they take action?" more than "could they?" I don't think either of us think they would when it comes to vague similarities to unused material in previous drafts.

Quote:

Originally Posted by zz9 (Post 729091)
A novelist can sell the movie rights to one book in a series, keeping the rights to the characters to himself. If that novelist wrote a script of one of his books he would not agree to hand over the entire rights for one script sale.

I recall reading about how it was the "original sin" that when the WGA formed, one of the first concessions they made was the assigning over of all rights when a screenplay is sold.

I know George Lucas took a huge cut in pay to maintain the rights to STAR WARS film that aren't usually retained, which was of course a huge mistake on the part of Fox.

In large part because of that, I doubt you'll find a contemporary analog (rather than just theorizing about it). If you can, let me know.

zz9 03-05-2011 01:48 PM

Re: Question about copyright
 
Quote:

Originally Posted by TheKeenGuy (Post 729099)
In large part because of that, I doubt you'll find a contemporary analog (rather than just theorizing about it). If you can, let me know.

A specific actual proven example is not "theorizing about it". It clearly happened after the WGA agreement you mentioned.

It showed they could agree to such a concession when they thought it benefited them. As you say they will be far less willing today, but if JR Rowling offered them a new idea but wanted concessions from their standard contract, they'd listen and they'd deal.

Any clause in any contract can be negotiated. You just need to give them a good reason to do so. Same with profit participation. We all know those profits will never materialize but people like Schartzenegger at his peak could get them to agree to a cut of the box office. They agreed to change their standard contract, and in a big way, because they thought it was worth it.

zz9 03-05-2011 02:18 PM

Re: Question about copyright
 
Another case that had been floating around in my head, and I managed to remember it.

From Wikipedia on Pulp Fiction:

Tarantino went to work on the script for Pulp Fiction in Amsterdam in March 1992.[17] He was joined there by Avary, who contributed "Pandemonium Reigns" to the project and participated in its rewriting as well as the development of the new storylines that would link up with it.[13] Two scenes originally written by Avary for the True Romance screenplay, exclusively credited to Tarantino, were incorporated into the opening of "The Bonnie Situation": the "miraculous" missed shots by the hidden gunman and the rear seat automobile killing.

Both different prod co's.

This seems to be the exact case the OP is wondering about. A writer wrote some scenes for a script he sold but then re using them in a totally different script.


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