Copyright Basics

Copyright is the law that protects the creations of artists and authors by allowing them to have exclusive rights to their creative work, and to ensure that only they benefit financially from exploiting these rights. As an author of a written work, you are the only one who has the right to exploit that work. In the language of copyright law, you (and/or others you authorize) have the exclusive right to make copies of your work, prepare derivative works based on your work, distribute copies of your work to the public by sale or rental, and perform or display your work publicly. If you learn of anyone, without your permission, copying or selling copies of your work (film, book, short story, play, screenplay, article, or video), or anyone creating a play or screenplay based on your story and performing such play or film publicly, the copyright of your work is being infringed.

Many aspects of copyright law are highly complex and technical, and most authors would benefit from having an experienced entertainment lawyer on their team. To be in control of your artistic destiny, you need to understand the basic concepts of the law to better protect your work and take advantage of the rights given to you by copyright law.

Here are some basic rules and facts of copyright law that will help you better protect your work.

Copyright attaches automatically from the moment the work is fixed in a tangible medium of expression. No publication, registration, or copyright notice is required to secure copyright. But even though registration is not a condition to copyright protection, you will get several important advantages by registering your work with the US Copyright Office and adding a copyright notice to your work. The most important benefits are: Before a copyright infringement suit can be filed in federal court, registration is necessary; timely registration and proper notice will make it easier to prove your case; and if registration is made within three months after publication of the work or prior to the infringement of the work, the court may award you statutory damages and attorney fees. Otherwise you will have to prove actual damages and loss of profits, which may be very hard to do. Registering your work with the Writers Guild of America (WGA) does not confer any of the statutory protection offered by the Copyright Office. The WGA acts as a depository for works and only provides a record of when the work was submitted.

In the case of works made for hire, the employer and not the employee is considered the author of the copyrighted work. A work-for-hire arrangement is only appropriate if you are writing as an employee within the scope of your employment (for example, a television series), or your work is specially commissioned for use as a contribution to a collective work or part of a motion picture or other audiovisual work. If you are employed by a company that is a signatory to the WGA, you may receive some rights of copyright (usually in the form of passive payments from subsequent productions based in whole or in part on your work) through “separation of rights,” if you qualify as a “professional writer.” To qualify, you must have received credit as a writer for any of the following: (i) a television or theatrical motion picture, (ii) three original stories or one teleplay for a television program at least a half-hour in length, (iii) three radio scripts for dramatic radio programs a half-hour in length, (iv) one professionally produced play, or one published novel, or (v) received employment for a total of thirteen weeks as a motion picture or television writer. The rights will differ, depending on whether you are writing for television or film. The WGA can help you figure out whether you are entitled to any such payments.

Copyright protects original works of authorship. If your work is based on someone else’s story or book, you will only get copyright protection to the extent that you have added original elements to the preexisting work. This is especially important to know for authors who borrow extensively from public domain works. Public domain works are works of US authors first published in the US before January 1, 1923; or works published before 1964 that did not have their copyright term renewed; or works published before 1978 without the proper copyright notice. For European works, the cut-off date may be different, depending on the country of origin, but it is safe to say that all nineteenth-century and older works are in the public domain.

Under the current copyright law, it pays to live long. The term of copyright now lasts for the life of the author plus seventy years, and in the case of works made for hire, ninety-five years from publication.

Titles, names, short phrases, and slogans are not protected by copyright. If a particular title or character name is well known to the public and has acquired so called “secondary meaning,” it may be protected by trademark law. Producers can try to protect titles prior to release by publicizing the upcoming production with their title or by registering the title with the Title Registration Bureau of the Motion Picture Association of America (MPAA). These rules are quite tricky, and the protection is not absolute. It is very hard for a writer to protect a title, so if you think you have a great one, you may want to not reveal it until you are about to sell it to a producer or studio that is likely to actually produce it. This way, no one will know about it until there is a way to protect it. The catch-22 here is that if the title is an important part of the package, you may be reducing the value of your work by not revealing the title to prospective purchasers.

Copyright does not protect facts and ideas. Facts and ideas are there to be used by everyone. For example, if you are writing a work which requires extensive research and use of material from existing works, as long as you are only borrowing the facts and not a particular interpretation of these facts, you are not violating the law. It may be difficult to ascertain whether something is a fact or a subjective interpretation of a single author. If the same interpretation is used by several authors writing on the same subject, it is more likely to be a fact, which cannot be copyrighted. In cases where the same interpretation appears in more than one book, it will be practically impossible to prove copyright infringement, since you may have taken the interpretation from any one of the authors. Also, stories and materials contained in the documents of court proceedings are not protected by copyright and may be used by anyone.

The essence of copyright law is to protect original artistic expression and to promote the progress of the arts. That is one of the reasons why ideas are not protected by copyright. Ideas are there to be used by everyone. None of the countless stories based on the Romeo and Juliet storyline infringe on copyright. We live in a world where certain concepts and plots are universal and where several people may come up with the same idea in virtually the same time. For this reason, production companies and studios are reluctant to accept unsolicited scripts, fearing that the script may contain the same ideas that are already in development by the studios’ own writers or may be in another unsolicited script sent to them. Studios do not want to find themselves subject to copyright infringement cases with authors claiming that certain things were lifted from their scripts which were sent to the studio. Companies try to protect themselves by accepting material only if it is sent by an agent or a lawyer and by requiring writers to sign submission releases. If you believe that your material contains unique ideas that need protection, it would be better to pitch them in person, then have your lawyer send it to the studio. At the meeting, in addition to pitching your project, leave a detailed copy of your materials, containing proper copyright notices. Always follow up with a letter thanking them for the meeting and expressing your hope they like your project and, should they decide to use any part of it, you will be compensated fairly.

Courts look at both the similarities and the differences when deciding whether work A illegally copied from work B. Before you rush to announce that your work has been ripped off, make a detailed comparison of the two works, listing both the similarities and the differences. This list will prove handy when you go to consult a copyright lawyer. If you find that the similarities do not go beyond the mere concept and ideas, and that there are a lot of differences in the plot, sequence, and pace of the story, it will be difficult to prove infringement. If, on the other hand, you find that the similarities go to the very core of your plot, and the borrowing is so extensive that the overall look and feel of the two works is the same, you may consider bringing a copyright infringement case. And if your work was registered with the copyright office in a timely fashion, and you win your case, you may end up making more money than if you had licensed your work in the first place.

About :

Innes Smolanksy is an entertainment attorney with Cowan, DeBaets, Abrahams & Sheppard LLP. She specializes in entertainment and copyright matters, and also moderates AIVF’s In Brief: Producer’s Legal Series. This month’s topic is “Buying or Selling a Screenplay.” To reach her, write to