Writing copyrighted material

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  • Writing copyrighted material

    So we all know that writing spec scripts based on existing franchises/IP should be avoided as the idea is to display creativity rather than riffing on existing ideas but is there any actual downside to it? I know there's no risk of litigation for writing such material and sending it out as a calling card but ever since the Marvin Gaye 'rewrite for free' thread it's something I've been pondering.

    I mean, it's going to be a lot easier for the rights holders to Elvis Presley and Freddy Krueger to steal your script and claim 'coincidence' and 'unavoidable' overlapping of plot - due to their pre-existing history and character of historical figures and existing fictional franchises - than if you sent in an original story of your own creation. Even if prodcos want to do right by you and invite you to discus further, they could still take your ideas without recompense if they ultimately decide to go a different path. And it's not like you can shop your script to other prodcos if things don't go well with the rights holders as there'll probably still be too many recognisable (ie: protected) aspects to your script.

    It seems to me that your only hope is to find honest, virtuous prodcos who will reward you fairly if they like what you write and that seems riskier than moonlight skinny-dipping in Amity. But on the flip side, if you have a good concept to bring someone's life story to the screen or, better yet, to rescue an ailing franchise then that to me seems a great incentive and - if you can get it in the hands of those that matter - seems a better prospect for success than creating something totally unique and hoping to sell it as the non-existent IP that it is and if you're lucky, you can change enough elements so it's unrecognisable from the existing IP you originally wrote it for. It should also quicken the creative process as a lot of the heavy-lifting has already been established for you.

    Thoughts?
    Last edited by SundownInRetreat; 03-06-2020, 02:33 AM.
    M.A.G.A.

  • #2
    Re: Writing copyrighted material

    TL; DR

    Original content:
    Pros: if truly unique, you have 'some' protection against theft
    Cons: new IP is too risky, these days

    Pre-existing content:
    Pros: universe and characters already exist = easier creative process; if good then more likely to grab attention of decision-makers and lead to success
    Cons: theft is harder to prove as universe, history and idiosyncrasies have already been established; no legal claim to characters/biographies owned by others

    Thoughts?
    M.A.G.A.

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    • #3
      Re: Writing copyrighted material

      Do not do this. Ever. Reps want to see original work and the producers you would want to read your adaptation are the absolute last ones who would read it. It's a legal nightmare.

      Write an original so good that every producer in town wants to hire you to adapt the IP they control. Writing your Batman adaptation (for example) does not make you look like the writer who is going to save the DC franchise, it makes you look like a crazy fanboy.

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      • #4
        Re: Writing copyrighted material

        Unless it's a sui generis thing like Saving Mr. Banks where the owner of the underlying IP feels compelled to buy it for production, writing anything based on existing IP that the writer doesn't have permission for is probably just a waste of time. At worst (and 99% of them are worst) it just comes off as bad fan-fic, which reflects doubly poor on the writer.

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        • #5
          Re: Writing copyrighted material

          Originally posted by JoeBanks View Post
          Unless it's a sui generis thing like Saving Mr. Banks where the owner of the underlying IP feels compelled to buy it for production, writing anything based on existing IP that the writer doesn't have permission for is probably just a waste of time. At worst (and 99% of them are worst) it just comes off as bad fan-fic, which reflects doubly poor on the writer.
          Assuming the writer has talent, though?

          No one - and I mean no one - is going to take legal action because someone used their IP as a calling card. They'll understand the reasoning and that there's no attempt to profit externally. And if it's good, all they'll care about is 'what could be'. Same applies to including songs and brand names in scripts - only clueless amateurs who adhere to the myths of screenwriting worry about litigation and legal quandries.

          Like I said, just wonderin'. Likewise if I had an idea about Elvis time-travelling to save the world then I'm going to write it and pitch it for the calling card that it is, and not worry about irrational fears that his estate is going to come after me (ditto re: song and brand inclusion).
          M.A.G.A.

          Comment


          • #6
            Re: Writing copyrighted material

            Originally posted by SundownInRetreat View Post
            Assuming the writer has talent, though?

            No one - and I mean no one - is going to take legal action because someone used their IP as a calling card. They'll understand the reasoning and that there's no attempt to profit externally. And if it's good, all they'll care about is 'what could be'. Same applies to including songs and brand names in scripts - only clueless amateurs who adhere to the myths of screenwriting worry about litigation and legal quandries.
            The reason nobody would take legal action against a random writer speccing their IP is that an unauthorized spec script (technically infringing under the Copyright Act though it may be) has no impact on the existing protected IP in that form. From the corporate owners' standpoint, who gives a ****?

            But that's still not the reason not to do it. Writing something the writer doesn't own reflects poorly on the writer for (1) stealing, creatively and proprietarily; and (2) possibly not even doing that well if it's a bad take on the material.

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            • #7
              Re: Writing copyrighted material

              But if the writer is good?

              Sure, a good writer can make up their own stuff but what's bad about them writing a fab script for existing IP?

              Whereas writing the next Elm Street installment is 'stealing' and showing little creativity, what about biopic'ing Margaret Thatcher's life - showing skill in condensing 75 years into 2 hours, apinting a three-dimensional character. demonstrating pacing, tension, levity and pathos at the required times whilst showing an innate ear for dialogue and set pieces?
              M.A.G.A.

              Comment


              • #8
                Re: Writing copyrighted material

                Originally posted by SundownInRetreat View Post
                Whereas writing the next Elm Street installment is 'stealing' and showing little creativity, what about biopic'ing Margaret Thatcher's life - showing skill in condensing 75 years into 2 hours, painting a three-dimensional character. demonstrating pacing, tension, levity and pathos at the required times whilst showing an innate ear for dialogue and set pieces?
                Not to overly simplify legal stuff but...

                If you write something based on someone's life then that isn't really copyrighted material or IP, if you will. IP is actual "property" protected by law - a film, a TV show, a video game, a board game, a comic book, a novella, etc. In other words, something one can register a copyright for.

                If it's a historical figure like Thatcher, there isn't much she can do about it unless it's libelous and defaming. Young Il Kim -- a member of these forums -- got attention for his RODHAM script about Hillary Clinton. I don't recall him getting rights to anything. He just researched her life from various sources.

                I think it's fairly safe to say, unless you are basing your script on a biography or autobiography by some author(s), you should be okay. Be a bit careful where you get all your info from still since if you clearly get it from one source (article, video, doc) they will almost surely come after you since that would be, as with basing on a book, taking from a protected IP. That's why Bio pics are so often based on books companies option or buy the rights to.

                Now to protect yourself fully, one could look at trying to obtain life rights from a person or their estate, but that could open up a can of worms for you and cost. If you are writing something for the fun of it and/or as a writing sample based on a historical figure or well-known event you should be okay to do that.

                If the writer is great, who knows what could happen?
                Last edited by Done Deal Pro; 08-03-2020, 07:13 AM.
                Will
                Done Deal Pro
                www.donedealpro.com

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                • #9
                  Re: Writing copyrighted material

                  Originally posted by SundownInRetreat View Post
                  But if the writer is good?
                  I have some strong opinions on this topic.

                  How does being a "good writer" in any way justify it, or make it easier to accept? If you want to use someone's IP to write a sample to advance yourself, why isn't the first step to ask the copyright holder for permission?

                  Could it be because the original artist might say no?

                  If an unknown writer wrote a Harry Potter feature and sent it around as a sample do you think that JK Rowling's legal team wouldn't jump down their throat immediately? Or that the studio that owns the copyright wouldn't be on them like flies on ****? Do you think anyone in the industry would request that script from you?

                  And it doesn't matter which IP a writer would be hijacking, the principal is the same.

                  What you're suggesting is that a writer wants to deliberately exploit copyrighted material to advance their own career, to profit off someone else's creation. That is copyright infringement.

                  Sure, a good writer can make up their own stuff but what's bad about them writing a fab script for existing IP?
                  If a writer sends out a sample of a feature based on someone else's IP the assumption IS NOT that they can make stuff up themselves. The assumption is that they CANNOT.

                  You're scenario of plundering another writer's IP somehow assumes it's EASY for a "good writer" to write a "fab script." That the plundering writer's craft is somehow superior to the original artist that the new script would just "command" attention.

                  How many sequels are better than the original? It happens, but it's rare.

                  It doesn't make the writer appear as a superior writer, but rather the opposite-- they are a weaker writer that cannot stand on their own merit.

                  Think of how long it took to get a Bladerunner sequel made. Or How long it has taken for an I Am Legend reboot (still in development). Or how long it took for Mad Max: Fury Road to be written. There's a reason it takes a long time-- because it ain't easy.

                  No one wants to open themselves up to a liable suit.
                  Whereas writing the next Elm Street installment is 'stealing' and showing little creativity, what about biopic'ing Margaret Thatcher's life - showing skill in condensing 75 years into 2 hours, apinting a three-dimensional character. demonstrating pacing, tension, levity and pathos at the required times whilst showing an innate ear for dialogue and set pieces?
                  Writing a biopic about a celebrity's life or a political figure's life is not the same as using someone's fictional copyright protected IP without their permission.

                  How would you feel if someone took your Johnny Lightening world, used the setting and all your characters and wrote a feature film and was sending it around town as a sample of what a clever writer they are? And what if they got hired to write a feature because of the sample based off your IP with a seven figure payday?

                  Are you telling me you would be okay with that?

                  NOTE: I'm not sure if you're just proposing a scenario for debate, or if you're considering this as an actual path for yourself, I tried to be as general as possible in my response.
                  "Arguing that you don't care about the right to privacy b/c you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say." -- Edward Snowden

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                  • #10
                    Re: Writing copyrighted material

                    I did this a couple years ago. Couldn't get this compelling figure out of my mind. Read a book on the company she started. Wanted to write the biopic. Saw that many, many of the other sources I sought out to "second source" everything, were actually attributed to the book I had read.

                    Said eff it, I'm doing it anyway. Did it.

                    Got one prodco to say they'd read it, because according to them if they liked it they'd just "buy" the IP. That creative exec then went to a different company before getting back to me.

                    Had interest at a few other places, but ALL DECLINED to read it when they found I didn't own the IP. (I told people up front, I had used this book for the progression of events and some dialogue).

                    So, it didn't work out for me. But I didn't feel stupid or terrible or like I was an idiot for trying, though. Because I had wanted to write it. So I did.

                    Flash forward two years -- a biopic of the woman's story is on the Black List (list, not site) from some other writer that more than likely found a way to do it without the rights. Perhaps that writer had reps to guide him a little better than I did, being rep-less? Not sure.

                    My advice? Don't do it. Too much of a headache. Waste of your time. Blah, blah, blah. Or, do whatever you want. Only you can answer this question.

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                    • #11
                      Re: Writing copyrighted material

                      Originally posted by figment View Post
                      I did this a couple years ago. Couldn't get this compelling figure out of my mind. Read a book on the company she started. Wanted to write the biopic. Saw that many, many of the other sources I sought out to "second source" everything, were actually attributed to the book I had read.

                      Said eff it, I'm doing it anyway. Did it.

                      Got one prodco to say they'd read it, because according to them if they liked it they'd just "buy" the IP. That creative exec then went to a different company before getting back to me.

                      Had interest at a few other places, but ALL DECLINED to read it when they found I didn't own the IP. (I told people up front, I had used this book for the progression of events and some dialogue).

                      So, it didn't work out for me. But I didn't feel stupid or terrible or like I was an idiot for trying, though. Because I had wanted to write it. So I did.

                      Flash forward two years -- a biopic of the woman's story is on the Black List (list, not site) from some other writer that more than likely found a way to do it without the rights. Perhaps that writer had reps to guide him a little better than I did, being rep-less? Not sure.

                      My advice? Don't do it. Too much of a headache. Waste of your time. Blah, blah, blah. Or, do whatever you want. Only you can answer this question.
                      I think when you're talking about a public or private figure it falls under Fair Use Doctrine. It's not really intellectual property or copyright law that applies.

                      Documentary film makers fall within this category and LEAVING NEVERLAND is a recent example of where the risk with a very litigious entity was a definite possibility.

                      The standards are "defamation" vs "fair use," as the focus of laws that protect public and private people. And know that "fair use" is a defense, not a right. That's an important distinction because claiming it, doesn't always offer the protection the filmmaker hopes it will.

                      Defamation to a private citizen would be negligence or gross negligence, and if it is a public figure the claim would be malice.

                      The lawyer on the panel at AFF was Aaron Sorkin's lawyer that, I believe, helped with clearance issues on his Social Network screenplay about Mark Zuckerberg. They didn't have to get permission from MZ in order to make the film, because so much of the truth of what happened he actually posted publicly himself.

                      Mark is a clear public figure. And because of this you can invoke there is definite public interest, but it's also important as to how much is fictionalized.

                      There is a "Right to Privacy" for the living and the dead. Privacy right is your right to control your image.

                      There are also "Right of Publicity" laws in every state.

                      Obtaining life rights isn't actually what one might think. It's not IP rights or the right to use their life story, it's a waiver of defamation, false light, privacy.

                      Life Rights say, and this can vary based on what's negotiated, that the person promises you can use their story in whatever way you wish and they will not sue for invasion of privacy, defamation or other potential claims. It protects you against anything you might fictionalize that they might not like later. A writer might obtain Life Rights with no intention of ever using anything "true" about the person.

                      You obtain Life Rights to protect against litigation.

                      The documentary GOING CLEAR about scientology was tricky, because Scientology is a litigious organization. The filmmakers had to be careful about what they said about Ron L. Hubbard, because his public persona is so closely tied to the name Scientology that defaming him, even in death, could be defaming Scientology.

                      There are ways to write about people without obtaining Life Rights. As long as you understand the law, you might not have to obtain life rights. BUBBLES, RODAM, BLONDE AMBITION, SOCIAL NETWORK are all examples of how it can be done. Of course, some of these scripts may never get made simply because the risk of a lawsuit is too great.

                      Writing a story about a public or private person might not necessarily be a bad idea. And taking on a story that most would shy from might well end up being your sample that gets you noticed. I believe that each of the examples above had managers that stood behind their decision to write these controversial stories.

                      It might be a good idea to seek out an Entertainment Lawyer to help determine, and mitigate, the risk.

                      NOTE: I am not a lawyer and am not offering legal advice.
                      "Arguing that you don't care about the right to privacy b/c you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say." -- Edward Snowden

                      Comment


                      • #12
                        Re: Writing copyrighted material

                        Originally posted by Done Deal Pro View Post
                        If you write something based on someone's life then that isn't really copyrighted material or IP, if you will.
                        I don't know the legalities around real people as it's not an area I'm interested in but I've heard of people owning the rights to someone's life story (rather than an autobiography) so have you any idea what that is in regards to? I'm pretty sure if I tried writing and filming Elton John's life story I'd be shut down faster than a restaurant serving ebola pizza.


                        Originally posted by finalact4 View Post
                        If you want to use someone's IP to write a sample to advance yourself, why isn't the first step to ask the copyright holder for permission?

                        Could it be because the original artist might say no?
                        No.


                        If an unknown writer wrote a Harry Potter feature and sent it around as a sample do you think that JK Rowling's legal team wouldn't jump down their throat immediately?
                        No.


                        What you're suggesting is that a writer wants to deliberately exploit copyrighted material to advance their own career, to profit off someone else's creation. That is copyright infringement.
                        Technically, it is, and I never said otherwise. But so is setting up a tribute band (and I know the music world inside out). It's also true of aspiring copywriters using brand names in their portfolios in their bid to break in. No one cares, not the rights-holders or the job-givers, they know it's just a calling card.

                        Bottom line, small fry don't get shut down and sending out as a spec - as a demonstration of ability rather than trying to turn that spec (Harry Potter, in your example) into a film - is not profiteering off the IP in any damaging sense. Especially when you're sending it the people that own that IP. It's just 'hey, I wrote an installment of something you know well and amongst other things, you can gauge how accurately I capture the characters'. And if you are able to breathe new life into a now-stale format (such as Paranormal Activity or Elm Street) then you're showing the rights-holders and others that you can put a new spin on things. Landing a writing gig on Dr Who based on your amazing Beetlejuice spec is not going to result in Geffen's lawyers cracking down and demanding recompense for loss of earnings. It. Just. Isn't.

                        I can't remember which pro it was but someone sent out his sample for The Simpsons, for the very reason stated above, and landed a gig on the back if it. Sending out a calling card (as I have referenced it as several times) is totally different to actively ripping-off existing IP and that's why the tribute act, pub bands, and aspiring copywriters (even screenwriters as per The Simpsons guy) are left alone.


                        How many sequels are better than the original?
                        It's never been a case of being better than the original.


                        It doesn't make the writer appear as a superior writer, but rather the opposite-- they are a weaker writer that cannot stand on their own merit.
                        If you send a red-hot spec to Blumhouse based on their own IP and finish the email with an invite to read your original specs then I guarantee you will not come across as a weak writer. Platinum Dunes hold the rights to a bunch of 80s horror classics - send in a red-hot take on F13 and you'll probably be invited in to discuss their reboot of another retrfranchise.


                        Think of how long it took to get a Bladerunner sequel made. Or How long it has taken for an I Am Legend reboot (still in development). Or how long it took for Mad Max: Fury Road to be written. There's a reason it takes a long time-- because it ain't easy.
                        There's a ton of reasons why - not because coming up with a great script is hard. In fact, a great script is the last concern. Getting the rights, getting the money, and getting the talent are the main issues. And in that order.

                        You're going off on a totally different point to what I'm making.


                        No one wants to open themselves up to a liable suit.
                        Which won't, and doesn't, happen. Even those who take money directly away from rights-holders - such as producing knock-off merchandise and monetising You Tube vids, are simply a) sent a cease and desist, b) get the vids removed off You Tube or - and usually - c) get the revenue diverted to themselves. They don't care about the individual making money let alone the fan-fiction individual just trying to showcase what they can do, trying to entice via a known universe as opposed to trying to get interest in their unique-yet-unheard of universe.


                        How would you feel if someone took your Johnny Lightening world, used the setting and all your characters and wrote a feature film and was sending it around town as a sample of what a clever writer they are? And what if they got hired to write a feature because of the sample based off your IP with a seven figure payday?
                        Completely different scenario.

                        I'm not sure if you're just proposing a scenario for debate, or if you're considering this as an actual path for yourself.
                        More debate. 97% so. Though there's one franchise that I know has suffered for both it's genre and numerous yet unsatisfying scripts/rewrites that has me pondering whether to take a stab and send it over to Mr IP Holder himself.

                        It may not be a good idea to pen such a calling card on for a slew of reasons but infringing on copyright and incurring the wrath of lawyers is not going to be one of them.
                        M.A.G.A.

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                        • #13
                          Re: Writing copyrighted material

                          Originally posted by SundownInRetreat View Post
                          But if the writer is good?

                          Sure, a good writer can make up their own stuff but what's bad about them writing a fab script for existing IP?

                          Whereas writing the next Elm Street installment is 'stealing' and showing little creativity, what about biopic'ing Margaret Thatcher's life - showing skill in condensing 75 years into 2 hours, apinting a three-dimensional character. demonstrating pacing, tension, levity and pathos at the required times whilst showing an innate ear for dialogue and set pieces?
                          It doesn't matter if the writing is good because-- and I can't stress this enough-- NOBODY IS GOING TO READ YOUR SCRIPT IF IT'S BASED ON IP YOU DON'T CONTROL. Agents will not read it. Studios won't read it. And the rights holders sure as sh*t won't read it (for fear of liability issues).

                          Please please please don't do this, unless it's just for fun (because fun is all it will ever be good for).

                          Comment


                          • #14
                            Re: Writing copyrighted material

                            Originally posted by SundownInRetreat View Post
                            I don't know the legalities around real people as it's not an area I'm interested in but I've heard of people owning the rights to someone's life story (rather than an autobiography) so have you any idea what that is in regards to? I'm pretty sure if I tried writing and filming Elton John's life story I'd be shut down faster than a restaurant serving ebola pizza.
                            In the case of Elton with ROCKETMAN or Freddie & Queen with BOHEMIAN they needed the rights so they could use their songs and have them consult.

                            But a decent number of films & TV movies have been made about famous people without their permission. In the case of the Jacksons, they didn't get to use their music. For that Harry & Megan TV movie, they didn't get any rights. For the Elizabeth Taylor TV movie "Liz: The Elizabeth Taylor Story" too, no rights. Now just because they legally can do this doesn't mean someone might not sue, especially again if there is anything considered slanderous/libelous. (Elizabeth tried to sue but lost.)

                            Pretty much always best to get life rights and cooperation but not always necessary. As long as the person is a well-known public figure, that takes care of quite a bit.

                            Not a lawyer, of course, but this happened, of course. Be careful though if you go the bio route.

                            Hope this helps in some way.
                            Last edited by Done Deal Pro; 03-10-2020, 09:20 AM.
                            Will
                            Done Deal Pro
                            www.donedealpro.com

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                            • #15
                              Re: Writing copyrighted material

                              Originally posted by SundownInRetreat View Post

                              Especially when you're sending it the people that own that IP.

                              If you send a red-hot spec to Blumhouse based on their own IP and finish the email with an invite to read your original specs then I guarantee you will not come across as a weak writer. Platinum Dunes hold the rights to a bunch of 80s horror classics - send in a red-hot take on F13 and you'll probably be invited in to discuss their reboot of another retrfranchise.

                              Though there's one franchise that I know has suffered for both it's genre and numerous yet unsatisfying scripts/rewrites that has me pondering whether to take a stab and send it over to Mr IP Holder himself.
                              Literally everything here is entirely wrong and based on nothing but wishful thinking and zero experience. You asked the question and have repeatedly been told that the IP holders will never touch your script for legal reasons, which means they will never invite you in to pitch on anything. You will look hilariously amateur. I have been shown a few of these queries (the one for the FRIENDS movie was the best) and they get passed around as a joke. You will be seen as the same as the Star Wars fanboys who wanted to raise money so that LAST JEDI could be remade from scratch and could not understand why they were not taken seriously.

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