Legal QuestionsDevelopment: Tips for Protecting Your Intellectual Property
July 6, 2016
A common refrain from industry newbies is “I don’t want to share my script. I’m afraid someone will steal my idea.”
It's a totally natural reaction to sending your writing out into the world, but I have good news for you: idea theft does happen...but not to the degree generally thought. First, it is bad business. Second, if your script is good, a producer would much rather pay you for it than hire someone else to write it and hope they don’t get sued for idea theft or copyright infringement.
What's my point? Don’t panic. Put your work out into the world. Wrap it up in a warm sweater and it will be fine.
Here are a couple of warm and fuzzy ways to bundle that baby up for its first trek outside:
- Get it in writing. Work made for hire agreements, literary property purchase agreements, screenwriter agreements . . . any agreement where there is a creation or transfer of rights (whether it is an option, license or sale) needs to be in writing. In clear and precise language, the contract should define the ‘grant of rights’ – the rights the production company is acquiring – as well as payment terms, representations and warranties and indemnities.
- Copyright. Copyright. Copyright. As soon as the work is in a fixed, tangible form (such as keying a screenplay into FinalDraft), the author has common law rights in the work. Now, that’s not to say the author should not federally register the work with the U.S. Copyright Office. Federal copyright registration provides many additional benefits, including the right to bring a copyright infringement action and the ability to recover statutory damages. As registration fees are as little as $35, copyright registration is always a wise investment. The online process (www.copyright.gov) is simple and inexpensive.
Let's debunk a couple of common copyright myths:
- “I’m covered, I’ve got a poor man’s copyright.” Not even close. A “poor man’s copyright” is believed to arise when an author mails a copy of the work to himself in order to establish a date of creation. The reality is a poor man’s copyright is not a substitute for registration and will not constitute proof of registration in a copyright infringement action. The only way to secure a federal copyright registration is to register your work with the U.S. Copyright Office.
- “I’ve registered with the WGA, same thing right?” The WGA is a fine organization that does a tremendous amount of good work for its members and for the screenwriter community at-large, but its registration service is not a substitute for registering your work with the United States Copyright Office. The WGA registration does not give the registrant any legal rights, but is evidence that can be used in a dispute.
What about ideas? We all know that ideas are not protected under copyright law, but there are some ways to protect ideas through oral or implied-in-fact contracts. In the famous legal case of Desny v. Wilder, the court held that one who conveys an idea, with certain conditions, can form an implied-in-fact contract, the existence and terms of which are inferred from the parties’ conduct. What’s the practical application? In a pitch meeting, before beginning the pitch state you are pitching the idea with the understanding that if they use it you will compensate me. Then, post-meeting, follow-up with a confirmation letter restating your understanding.
There is nothing a creator can do to fully protect her work, but these easy steps can reduce the likelihood of someone misappropriating your work.
Stacey will be a guest on Seed&Spark’s live #FilmCurious Twitter Chat on July 19, 2016, at 11:00amPST. Read Stacey's previous S&S blog post on options here.