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Protecting your Script

By Evan Smith

To steal someone's car, money, parking space - that's low. But to steal someone's story? A little made-up tale? A hundred pages of FADE IN here and CUT TO there? Is that even stealing?

Um, how can we put this - YES, DAMMIT! It is! Stealing of the worst kind! Because many hours have been spent and emotions invested, and, funny, but an original story that's already been read by half of Hollywood somehow just doesn't seem so original when pitched a second time. Cars are insured, money can be borrowed, and, okay, a good parking space can be worth quite a bit, but to have someone steal your script? Your baby? Ouch. That's not only damaging, it's personal.

So what can you do? How can you protect your scripts? Well, everyone says to just register them with the Writers Guild, right? And all of your problems will disappear. Unfortunately, at least in this case, everyone's advice is worth slightly less than you paid for it. Let's talk about what screenwriters really can and can't do to protect their work.

WHAT CAN WE PROTECT?

First, what exactly is it that we're trying to protect? Our brilliant story ideas? Well, sorry, but we can't really protect those. The law says that a person cannot copyright a mere idea or concept, and though you can sue for "idea misappropriation," such cases are costly and nearly impossible to prove. So know that if you blab about a great story while sharing a salad at Denny's, some sleaze at the next table can take the essence of what he overhears and develop a similar project, and you can't do a thing about it. Nor can you copyright the titillating title that you dreamed up for the project. If it's associated with a produced film some day, it might then qualify for some level of trademark protection, but until that time it's open season.

So what can we protect? A written treatment or outline of a fully-developed, unique story should qualify for copyright protection, and a completed script usually does. In fact, current law states that you do not have to register such materials for them to be copyrighted; protection is automatically afforded "original works of authorship that are fixed in a tangible form of expression." Meaning, just type the thing on paper or save it as a computer file and it's copyrighted.

Of course, if all you do is type a script and store it away somewhere, how can you ever prove that it existed at a certain point in time? (Which you would need to do if you were going after someone who has stolen your work.) You probably can't, not unless you also register your already-copyrighted material to create a public record of its existence. Which is why all of your friends say to register scripts with the Writers Guild. Which is a good idea, but perhaps not the best idea.

REGISTRATION FACTS AND FICTION

It's true. Registering scripts with the Writers Guild of America is useful, because it creates a public record of your claim to authorship, and it's convenient, because you receive quick confirmation of the registration and can even register materials online. The process is relatively simple. First, remember that there are actually two separate screenwriting guilds, the WGAwest, based in Los Angeles, and WGAeast, based in New York. Both have a script registration service and their submission requirements are similar. Simply mail in a package that contains the following elements: a title page that identifies the material and its creators/owners, one unbound copy of the material, and a check for the registration fee ($10 for WGA members at either guild, $20 for non-members at the WGAwest, $22 for non-members at the WGAeast). Or, for the electronically-inclined, you can fill out a form at either guild's website and e-mail them a file containing the material. For complete details about submitting via snail-mail or the internet, visit the website for the WGAw or the WGAe

Is it better to register at one guild than at the other? The WGAeast charges non-members $2 more, but it keeps registered material on file for ten years rather than the five you get with the WGAw. (With both guilds, you can renew a registration before it lapses, but must pay another fee to do so.) Which is best? Perhaps neither.

Though WGA registration is quick and convenient, it is not a substitute for registering your material with the U.S. Copyright Office--which is almost as easy to do. The steps are similar. Just send in a package that includes a completed application form ("Form PA"), one copy of the material, and a check for $30. See the Copyright Office website for forms and instructions.

While all three registries serve the primary purpose of providing writers with a "public claim of authorship," Copyright registration offers two additional benefits. Though the WGA branches keep your material on file for either five or ten years, or longer if you pay for renewals, copyright registration lasts for the life of the copyright--as in, an author's life plus 70 years. Also, if your material has been registered with the Copyright Office and you end up suing someone, you can seek statutory damages and reimbursement of legal fees rather than just "actual damages and infringer's profits" that you might otherwise receive. If you can prove that the theft was deliberate, this could make a big difference in the compensation you receive.

Is there a downside to registering with the Copyright Office? Well, it costs $10 more, and you can't register material online. And, typical of a government institution, it takes a long time, currently four to six months, to receive the official certificate that says that your work has been accepted for registration. But that doesn't mean that your material isn't protected during that time; submissions are date-stamped as soon as they are received by the Copyright Office and protection (for those materials eventually accepted for registration) is deemed effective as of that date.

Should you register with both a WGA branch and the Copyright Office? No, that's overkill. If you put both notices on your script, readers might think you're an amateur or slightly paranoid.

Notices? If you register a script with the WGA, you have the option of putting a "WGA Registered" notice on the title page. If you elect to not do so, you should put a Copyright notice on the script whether you have registered with the Copyright Office or not, to prevent an infringer from claiming that he didn't know that the work was protected. (Adding this notice is completely legal because, remember, your material is automatically copyrighted the second it's put into a tangible form.) Copyright notices consist of three parts, placed in any order: the word "Copyright" or the copyright symbol, the name(s) of the copyright owner, and the date the material was copyrighted (created).

Are there any other ways to protect a script? There are two, one good and one not so.

1. INDEPENDENT SCRIPT REGISTRIES

Go hunting online and you can find some independent script registries that aren't affiliated with the WGA or the U.S. Government. These companies charge a few bucks less than the two Guild registries but provide the same basic service--they store a copy of your work to support your claim of authorship. However, like the Guilds, independent registries neither enhance your rights in a property nor provide the benefits associated with Copyright registration. Further, one wonders if some of these outfits will still be in business in ten years, and what might happen to a registry's stored materials if it fails. So approach with caution.

2. POOR MAN'S COPYRIGHT

Some folks will tell you that all you have to do to protect a script is seal it in an envelope and mail it to yourself, then store it un-opened so that the postage mark provides an official, dated record of the material's existence. Sounds great! And it's a lot cheaper than paying those 20- and 30-dollar registration fees, right? Which must be why they dubbed the concept a "Poor Man's Copyright."

People love this idea, I love this idea, it's got a nice "average-Joe-finds-a-loophole" feel to it, but it's a bad idea. Why? Think about it. Mailing something to yourself doesn't copyright the thing--the material was automatically copyrighted when you typed it into "tangible form." As for providing an official, dated record of the material's existence, nowadays, it is so easy to fake a self-mailing (ever hear of re-sealable envelopes?) that any opposing lawyer with half a brain is bound to ask that your sealed package be ruled inadmissible as evidence, leaving you with no case if the judge agrees. Finally, mailing scripts to yourself is not the same as filing for copyright registration, so you will not be able to seek statutory damages and legal expenses in a lawsuit. Bottom line, a Poor Man's Copyright is a romantic concept that offers little in the way of reliable protection.

Okay, so that's how, where, and why one registers a script. But does that truly protect a person's work?

IF SOMEONE STEALS YOUR WORK

Unfortunately, while registering original material is a good policy, it protects you only in that it proves that your work existed at a certain point in time--providing you with that "public claim to authorship" I keep mentioning. If someone steals your work, you can't just call up and say, "Ha! Gotcha, the script was registered, send me a check and make it a big one!" Rather, if you think you've got a case worth pursuing, you should contact an experienced lawyer and proceed as advised. (I should point out that I am not a lawyer and nothing stated in this article is intended to be legal advice. All of the information provided has been gathered directly from the websites and publications of the U.S. Copyright Office, the WGAwest, and the WGAeast.) You might end up pressuring the infringing party to compensate you to avoid a suit, or you might decide to take the case to court. Be aware that copyright cases can be difficult to win unless the theft is blatant. You have to prove things like prior access, substantial similarities, actual damages, etc. Your lawyer will lay out the odds and likely costs so that you can decide what to do--if anything.

Is there anything else you can do to protect your work? Perhaps the best defense of all is to practice a simple bit of common sense--be picky when circulating your work. In Hollywood, everyone thinks he's a producer, a director, writer, or actor, and all are looking for projects that can rocket them to a big career. But don't be seduced; no matter how earnest and flattering he seems, when your waiter tries to convince you that he's the perfect guy to get your script made, resist the urge to hand him a copy. Circulate your material only to people who are established professionals or who can connect you to established professionals.

Lastly, try to relax about this stuff. The good news is that, though nobody can guarantee that someone won't steal your work, few professionals are interested in doing so. In most instances, when someone develops a project similar to another person's, it's purely a coincidence--two writers living in the same world at the same time, who come up with the same story. It happens, too often, but you can't let it get to you. Because the alternative is to not send your material to anybody, which might not be the best career strategy.

Meet the Author: Evan Smith