Who gave writer's rights away in film?

[lilybet]

How exactly did "works for hire" that weren't really "works for hire" come to be given away in film? Creating that exception in writerdom. How is this fiction perpetuated? How is it that it continues to be legally acceptable? Is there a legal challenge here that no one has taken up? If copyrighted material remains the property of the writer in all other fields except for assigned rights, how can a copyright be sold as part of the deal for a screenplay?

Inquiring minds want to know?

lil

[Couchguy]

writer's rights

I guess it's because the writers choose to sell their rights, just as others sell their rights to inventions, patents, and so on.

If you work for Intel and you invent a better microprocessor, you don't own it...the company does. Similarly, if you work for George Lucas and he says "Write a movie about this archaeologist who races the Nazis to the lost ark of the covenant", then he writes you a check...he owns the screenplay.

If you want to retain the rights, don't sign the contract, and don't accept the check. Sell it to someone who will let you keep the rights, if you can.

Your pal,
Couchguy

[GirlinGray]

Um, well, that was writers. In the early days, film was considered novelty/trash, theatre was considered important. Playwrights kept their rights in theatre, and had a lot of clout and could push people around. The movie moguls back then did not want to be pushed around by dumb old playwrights, they had already seen how that went in theatre, so they threw a lot of money at playwrights to just come out and scribble something for the screen they did not even own. Playwrights did it for the money and did not even care about credit, except maybe that they did not want one because it would be embarassing to have people know they were scribbling trashy film stuff for some extra cash and there was no writer's credit back then. Then playwrights went back to their important work, theatre, with a pocket full of change to keep them going between productions. No one knew film would become so important later or that anyone would even want to be associated with it or have their name on screen. Except maybe those crafty movie moguls. And it has been a fight for credit and rights ever since.

[lilybet]

Right, I understand all that. I was wondering if anyone knew how it got codified. This fictional "work for hire" as opposed to real "work for hire" (with all that implies) or work while hired.

When the old studio systems broke up, all the other areas seem to have gotten their negotiation rights. Still wondering if there is some legal something or 'nother that hasn't been explored?

Just curious, not flag waving about anything.

lil

[GirlinGray]

Well I am not sure it is codified, but I do not know for sure, maybe there is a law in there somewhere.

The only time that "work for hire" is fictitious is when you sell a spec, then the studio buys the copyright and the contract says "work for hire" but really a spec is not work for hire, it is an original work you have sold the copyright to. There are certain protections that accompany that scenario, like separation of rights. You retain rights to publish the material, certain ancilliary negotiation rights, stuff like that goes along with selling an original work to a studio regardless of the contract stating "work for hire." It is still recognized you are selling an original work and what they buy are film rights and you retain other rights outside of that sale.

Also, when people sell specs, nothing pays into health and welfare and the sale does not contribute to health and insurance benefits in the current system set up by the Guild. Which is a bad scenario because it promotes work for hire over working on original works.

In true work for hire, the studio does hire the writer specifically to work for the studio either to write a pitch the writer sold the studio on or to do an adaptation of existing material the studio has bought rights to or to develop and write a project a stuio or producer brought to the writer or to do a rewrite of a script the studio owns rights to already -- there are lots of work for hire scenarios and they all are, legitimately, the studio hiring the writer to work for the studio. Much like if an advertising company were hired to write an ad campaign for a large corporation, after the ad company is gone, the corporation still owns the campaign it hired the ad company to create. No separation of rights accompanies true work for hire, but true work for hire pays into the health and welfare fund and you get insurance based on the amount of work you do "for hire."

This is pretty much the status quo. And it is very hard, after 100 years of screenwriters "working for hire," to convince studios they should relinquish a way of doing business that is in the best interests of the studios. Anyone who said, "Sure you can shoot my script but you can't buy the copyright" would be up against a big objection and if they won't, well, someone else will. Unless there is a strike and everyone says no.

Writers are not the only creative entities who relinquish rights to their creations. Costume designers retain no ancilliary rights to their designs. Which is bad for costume designers because often they create costumes that are the heart and soul of toys being sold based on a movie -- how many Star Trek toys would sell without the costumes? -- and the costume designers rarely, if ever, see a dime off toy sales. So it is not just us. Other creative entities get side swiped too. And the below the line people are totally burned, everyone else keeps getting raises and they barely see cost of living increases half the time.

[lilybet]

Thanks, Gig, that spec script sale, no health and pension benefits was new info to me. What is that all about? Is it negotiable?

Steve? Meester Martell? Crash, who is well versed in film and industry history? Zee, with the legal angles? Todd?

Curious, as others who may not ever even have to worry about any of this.

lil

[GirlinGray]

I think that is Lil's way of saying she is tired of hearing me type and would like to hear from one of the boys.

Boys, would you like to take over?

[lilybet]

Gig, absolutely never tired of hearing you type, whether you are being generously informative, Momma - I'm going to slap your hands, silly, cautionary, argumentative or wise. You have a unique gift of communication and if you haven't noticed, it is appreciated by all.

So, where is life fair, that you're cute besides. In your immortal words "geez" and "um."

lil

[GirlinGray]

Oh well then I am tired of hearing me type and would like one of the boys to chime in. (smile)

[Couchguy]

Disney sued for Mighty Ducks

This is not entirely off-topic...the screenwriter for The Mighty Ducks sued Disney last year, because his contract called for him to receive 2% or 5% or some% of the merchandising arising out of the Mighty Ducks movie.

He sued to collect his percentage from the sales of merchandise for The Mighty Ducks...hockey team! He argued (correctly, I think) that Disney would never have named the hockey team The Mighty Ducks had it not been for the success of the film...and his script, so therefore, the hockey team arose out of his script, and he gots to have the money comin' in.

So here's an instance of a writer who seemingly hits the motherlode, and then, of course, the movie company tries to screw him anyway.

Has anyone been following this case? I'd like to know if the guy ever got his paycheck.

Your pal,
Couchguy

[DWB1125]

Re: Disney sued for Mighty Ducks

I believe they settled. The guy wasn't just claiming merchandise, he was claiming that the definition in his contract (contingent participation) included any money earned - which included the money earned by the entire hockey franchise (tickets, sponsorships, TV, etc.)! Needless to say his percentage of the hockey team was estimated to be worth a lot, so they settled.

[DWB1125]

To address the topic of this thread, and to add to the explanations give, the answer is really in the nature of the work.

A screenplay is only good for one thing - making a movie. So while owning the rights to the screenplay is great, unless you can make the derivative work (the film) then it's useless. So, the studio buys it, insisting on having all the rights in perpetuity.

Since film is only one hundred years old, it's not the same as plays or novels, and not treated the same (unfortunately). For a very long time, films were the property of the studio, and therefore works for hire, because the writers worked for the studio. No one wrote films except for the writers working for the studios. This included all those fabulous novelists and playwrights who "whored" themselves to Hollywood.

With the fall of the studio system, and the rise of films made outside the system, writers started writing on spec. It wasn't until the WGA and the A-list writers started demanding more rights, and writing outside the system, that screenplays were NOT works made for hire.

A good way to look at this is that we, the writers, had very little rights in our own works, and continue to fight to gain more control. As has been said, companies will take whatever they can from writers because they can.

Another thing to note, if you write a spec, it cannot be a work for hire. Even though there will be a clause which states that it is in the contract, it is impossible. But, as lobbyists continue to get congress to change the copyright laws, they hope that eventually it will be possible to claim work for hire status on specs to "protect their investment". It also has some impact on "droit morale" or moral rights, which are not recognized here in the U.S.

[Steve]

Re: Disney sued for Mighty Ducks

Here's my understanding of the work for hire things (caution: I don't understand all the details so I may be a bit off)

When you are hired as a writer, you are technically employed by the studio. Therefore they make contributions to pension and health fund (It's something like 6% to one fund and 7% to the other). So if you're on staff on a show, are hired to write a freelance script or are hired to write, re-write or polish a script, you get the contributions.

If you sell a script you are selling a product that was previously created so they don't make any contributions. It's a sore point for spec writers because they can make huge sales (and pay dues on them to the WGA) and end up without health coverage. I think there's a new provision in the WGA that if you make a certain amount in spec sales your health benefits are extended even if contributions aren't made by the company.

The part I'm not sure about is if you sell a spec but then are asked to do re-writes. I think the re-writes would be covered as work for hire but I'm not positive about that.

[Hangfire 2]

Specs

The spec sale contract will include rewrites. Usually 2 of them plus a polish if ordered. The rwrites are par of the sale price. The polish includes a fee. Rewrites after that (usually ordered by the director, the star, the craft services guy, someone's dog) are negotiated based on WGA minimums set out in the collective bargaining agreement.

In theory.

In reality, you could be rewriting for years without pay. Depends on the company that buys the spec.

[GirlinGray]

Re: Disney sued for Mighty Ducks

Rewrites on a spec pay into health benefits because they are contracted and deemed work for hire. Optioins, purchases, and bonuses do not. The Guild is not doing much about this, but is happily collecting its percentage of options, sales, and bonuses.