The screenwriter is a special breed of writer, separate and apart from all others in that while they may scribe the first draft of their creative effort, it is unlikely it will remain in tact or even faithful to the original creative concept by the time the script is turned into a film. This Legal Lens will focus on what legal pitfalls the screenwriter may face, and what she can do to protect her work, allowing her to benefit from ultimate profits in the film biz game of truth or dare, and even keep her work true to its primary concept. The bulk of this Legal Lens can be found at www.Imaginenews.com.

There are two primary steps a screenwriter must anticipate in protecting her work. The first step is critical, occurring during the initial phase of getting the screenplay written, and prior to the work being published as defined by federal Copyright law. The second step involves how to protect the screenwriter once the screenplay is ready for sale and/or production. Many writers fail to take the necessary legal precautions during Step I, in turn damaging their ultimate chances to see their screenplay successfully turned into film during Step II. In both Steps of the process, the serious writer should do everything he can to protect his work and minimize issues which may ultimately damages his chances of success in the film industry.

STEP I – GETTING THE SCREENPLAY WRITTEN

Protecting the Idea. Generally, the writing process begins with a great idea by the writer. Under the U.S. Copyright Act "ideas" are not protected. In other words, let’s say you come up with a brilliant concept for a feature film. You discuss it over cocktails with your college buddy, who is currently an executive at a major studio. The film executive loves the idea, but being a hard-working hypertext writer at a small dot-com, you never get around to writing the actual screenplay. Meanwhile, your friend’s studio produces your story, [Continued from printed version] using the same characters and plot. Other than being thoroughly justified at never wanting to speak to your college buddy again, you probably don’t have a leg to stand on in this one. You cannot copyright an idea. Lesson #1: Don’t discuss or pitch your script ideas, before you’ve clearly formed them and written them down in, at a minimum, in treatment format, and ultimately copyrighted the story.

Writing a Treatment

Even if you’d summed your project up in a memo to your buddy, it probably wouldn’t get much deference by a court without unique and substantial details, similar to the film. Courts look for "substantial" similarities between your written treatment or script and the alleged, infringing film. The definition of substantial is murky under the law, going both ways, so it’s better for you as a writer to be protected from the on-set. A fully laid out screenplay will have substantially more detail to compare than a mere treatment. Note, however, if you’re going to use treatments to pitch your film ideas before writing the screenplay, you must copyright it just as you would a full screenplay in order to protect your work. Lesson #2: Put significant details in your treatment and copyright it before pitching it, just as you would a completed screenplay.

Screenwriting Workshops

Many screenwriters attend regular workshops where they submit their work for critique by other writers before sending the script out to producers and agents. There are some pros and cons to this. A good workshop encourages deadlines, provides constructive criticism, and will generally assist writers produce scripts that meet recognized formatting guidelines. As a script consultant and attorney who is frequently asked to represent scripts, I immediately look for proper formatting, and will not take on representation of scripts that do not meet the standard guidelines. Although the concept of a workshop is a good one, there are four major pitfalls: Protecting your ideas and characters; ensuring trustworthiness of members; Copyrighting your work; and ensuring your work is not "published" prematurely. While I strongly recommend workshops, I recommend that screenwriters seek out smaller groups with writers of similar skills, once basic formatting and technique is learned.

Protecting your ideas and characters

During your participation in a workshop, you are sharing your ideas with other screenwriters, who may want to surreptitiously or even inadvertently adapt those ideas for their own. If another writer only "borrows" a small piece of your work, but the story, setting, plots and other characters are substantially different, little if any liability is likely to attach to the offending writer based on the substantial rule. One exception to this might be if your main character is already known and recognizable from your a previously published best-selling novel. Lesson #3: If your characters and stories are unique, it will be hard for another writer to outright infringe without some liability.

Ensuring trustworthiness of members

Make sure there is a participation form in place at the workshop that gives each writer protection from the other’s potential infringement. At a minimum, the document should require that screenplays reviewed are confidential; that writers will respect each other’s work; and that writers acknowledge that use of someone else’s work without permission may subject them to a copyright infringement action. Keyly, such a release should be provided by whomever runs the workshop, and should provide a record of the members and attendees of each session, so as to document what members have access to during the course of the workshop. Lesson #4: Request that your workshop leader require and maintain an agreement between all workshop participants prior to presenting your screenplay for review.

Copyrighting your work

Prior to submitting your screenplay for critique in the workshop setting, you should copyright your screenplay (See November, 1999 Imagine, Copyright Basics). Most novice screenwriters wait until they think they have their own "final" version ready to circulate to producers and agents before copyrighting the work. I strongly urge you to spend the $35 to protect your screenplay as soon as your first draft is completed. When you have finished the final draft, you may copyright it again as a revision to the original or with a new copyright altogether depending on how much it has changed.

Many writers submit their works to Writers Guild of America (www.WGA.org) instead of the Library of Congress. This is a huge mistake. You cannot file a case in federal court in case of infringement until it is properly copyrighted and registered. WGA is a great additional organization to file with, providing its members mediation and other dispute resolution should you incur a problem. WGA also helps multiple writers determine whose credit goes first based on final script contribution. You may also wish to become part of other writer’s unions, such as the National Writers Union (www.NWU.Org), which gives members, for a nominal yearly fee, grievance mechanisms, contract advice, as well as, medical plans and Media Perils Insurance, which may protect a writer from libel suits. Lesson #5: Copyright your screenplay before presenting it to a workshop or anyone for consideration. Consider registering the script with WGA after the script is ready for sale, and at the same time copyright the final script again as either a revision or as a new copyrighted work.

Ensuring your work is not "published" prematurely – You do not want to "publish" your screenplay until you have copyrighted the final version. Premature publication subjects a writer to additional expense and filing procedures under the Copyright Act, and may lead to early infringement actions. Publication occurs when the work is made available to the public for profit. Prior to that, your script cover should state clearly that the work is "unpublished." Readings are a pitfall, usually stemming out of workshops, that can inadvertently lead to a work being published prematurely. If your intent is to do another draft following a reading, it is not advisable to subject your work to "publication" as it is defined by the Copyright Act. Having it read allowed is not by definition publication. Publication might occur, however, by requiring a fee from participants and/or observers. While readings of a script can provide a great benefit to the writer, the pitfall is in how such a reading is managed. Lesson #6: Under no circumstances should a reading be presented for profit, i.e., no fee should be collected for the reading.

Working with a Screenwriting Partner

Unlike writing novels, many screenwriters work in teams. This can be a very effective tool in order to bring different skills to the project; to motivate each other; and to brainstorm story ideas and dialogue. There is one major pitfall in working with a partner that many screenwriters fall into. Similar to rock ‘n roll bands, most screenwriters fail to enter into a partnership agreement before they begin writing with each other. While sometimes a trial period is necessary prior to two writers commencing such a partnership, it is extremely important to recognize the importance of a legally binding document that defines the relationship and commitment to the project before money is at stake. Such an agreement is instrumental in defining what each partner is to contribute, as well as be entitled to should the screenplay be sold or produced. A well-drafted partnership agreement will reflect what happens should one writer drop out of the project prior to its finalization or sale; it will state whose name the work will be copyrighted under or if it is to be jointly filed; and it will define how profits will be split, dependent on ultimate contribution or based on past track record of scriptwriting. In most teaming agreements, however, writing partners will agree to split ultimate profits fifty-fifty.

A partnership agreement is one of the few early stages of writing in which an attorney can play a critical role. The attorney can be a neutral party that represents the partnership ultimately, or can be hired by one of the writers. If the latter method is used, the other writer should, in any event, have the document reviewed by counsel and negotiated, as applicable. If the writing team wants to take itself seriously, then a strong partnership agreement should be entered into willingly. In order to keep legal expenses to a minimum at such an early phase, the writers should discuss and write down the terms they wish to have in the agreement before hand, and give these to the lawyer for incorporation into the document. While standard legalese partnership language will be part of any agreement, the specialized conditions of the writing arrangement can be thought out for the most part in advance, and will keep such a deal from being cumbersome, complicated and costly. Lesson #7: When working with a writing partner, enter into a well-drafted partnership agreement that defines roles, financial participation and what happens in the event one partners drops out of the project prior to sale, before working as partners together.

Real Life Characters

There are four types of real life characters that a screenwriter may venture to use in a screenplay: Characters personally known; dead luminaries from history; living celebrities; and living, ordinary people. There are precautions to be taken with each of these.

Characters personally known – That expression, "the names of have been changed to protect the innocent", is no joke. All writers write from true experiences, including people they know from real life. Ordinary people you know have a right to privacy, while celebrities enjoy a right of publicity. To the extent possible for ordinary people, don’t use actual or similar names, change the descriptions to the extent possible, and unless it’s critical, change the location. Why tempt fate with a libel suit?

Dead luminaries from history – If they’ve been dead more than fifty years, you’re probably safe. However, document your facts to the degree that you can, and if you’re purely speculating, then put a disclosure on the screenplay stating this clearly.

Living celebrities – There is a body of law called a Right of Publicity that protects stars’ names and likenesses from abusive representation while they’re alive under certain conditions. Most states do not apply the Right of Publicity after a celebrity dies, but a handful of states have applied Copyright protection to names and likeness (in other words, you might need an Estate’s permission to use an image of Elvis, trademarked or not). To the extent you depict a celebrity without defaming him, writers may venture to utilize such characters without violating privacy or right of publicity laws. Under Copyright law a writer is usually able to use a celebrity character when the name or likeness is being used solely to make jest. Trademark, privacy and right of publicity issues may also ensue if you take an image of someone without their permission. A good idea to follow, if you’re planning to use a celebrity as a character is to write to them and seek permission anyway; failing that, let the celebrity know of your usage and send them an advance script prior to sale or publication. If it’s based on fact, then you may get away with it, but if you’re making up scenes and dialogue, you probably won’t unless it’s humorous and in no way defamatory. In any event, consult an attorney about what other precautions might be necessary when using a celebrity in your script.

Ordinary people. If you’re writing non-fiction, and you believe it is imperative to the veracity of the story to use real, but ordinary, people in the script, think long and hard, and again, talk to an attorney. Ordinary people have a right of privacy, which generally protects them from fictionalized accounts of "real life" circumstances. The recent film Civil Action made legislators stop and think here in Massachusetts when citizens of Woburn depicted in the movie were not given a cent worth of the author’s profits, even though releases were signed by many of the citizens depicted in the film. If you are writing an original screenplay, or basing your work on someone’s original book, based on a true-life account, you must get the "ordinary people’s" releases for the use of their characters in your story. If you’re not intending on sharing the profits from the sale of your screenplay (or you’re not in the position of deciding profit sharing from the release of the film), state that clearly in the release form right up front. While the Massachusetts legislators didn’t ultimately pass the Civil Action Bill, it came pretty close for comfort, and it is always better not to have an angry mob after you as you hit success.

Adapting Works of Others

Many great films are adaptations of other writer’s works, from best-selling novels (The Firm, The English Patient), to plays (Barefoot in the Park, Hamlet), to biographies (Patton), and even non-fiction (All the President’s Men, Civil Action). Before you take the steps to do an adaptation of someone else’s work, it is best to get the copyright holder’s (usually, but not always, the author) permission and written release, usually in the form of an option agreement. This also applies if you’re writing an original screenplay based on several authors’ works, as usually occurs when an historical piece is written. Sometimes you can find a way to reach an author on-line, other times you might have to go through a publisher or an agent. Lesson #8: Don’t spend your weekends chained to the proverbial typewriter only to discover the author sold or optioned the rights years ago to Paramount. Write a letter of inquiry, and ultimately get permission from the author.

STEP II — YOU’VE WRITTEN THE SCREENPLAY, SO NOW WHAT?

Hundreds of screenplays are sent to me each year in either my capacity as counsel or as script consultant. The underlying reason, above all others, is to see if I can help the writer sell her script. Once the screenwriter has finally completed his screenplay, he wants to do one of three things: sell it outright to a studio, producer and/or filmmaker to make; option it to the same; or make the movie himself.

Selling the script outright

Most writers have an inflated idea of what their script is worth. If you’re lucky enough to sell or option your script to one of the few remaining studios, you may see upward of $50,000. Most scripts today, however, are written for the ever-increasing market of independent filmmakers, and sold for a fraction of studio budgets. Producers of indies, usually made for substantially less than $10,000,000 and as cheaply as $100,000, do not have big upfront cash to spend on scripts. Short-sighted as this may seem, most scriptwriters will get only a stipend up front, with a negotiated larger pay-off either "below" or "above" the line. Below, means you will get a fixed price once the film is sold to a distributor and the pre-negotiated fee is included in the cost of the film. Above, means if the film is made and makes money, the screenwriter will get a percentage of profits beyond the cost of the film. Negotiating a sale price for a film in the world if indies, becomes complicated and tricky in order to protect the writer and give him his financial due.

Whether you sell or option your script, you need to consider what copyright rights you wish to retain, such as the ability to publish and sell the screenplay after the movie is made and released; the right to do a rewrite if the filmmakers want to change the script; and the right to write the first draft of the sequel. These all have value to the screenwriter. Writers should not write for free under any circumstances, not even if they’re intending on producing the film. A reasonable fee should be agreed to regardless of whether some of that money is paid down the line.

Optioning the script

Optioning a script entails getting paid a fee by a producer who will explore making the picture. If the producer gets a greenlight, the writer is paid for the script; usually an amount that is based on the film’s total budget. An option usually lasts between one and three years, and can be renewed for additional money. The writer does not have to pay the option money back if the producer fails to get funding for the project. An option deal usually entails much of the same negotiating as if you’re going to ultimately sell the screenplay. Option agreements are less lucrative than outright sales, but protect the writer from bad deals that never result in filmmaking. It allows writers and producers to share risk, but gives the writer some money for her hard work.

Making the movie yourself. Many screenwriters today want to producer their screenplays and even direct them. Your commitment is far more substantial if producing the film, but so is your control over the project and the ultimate rendering of your script. To pursue this, you will need an attorney with specialized knowledge about the entertainment industry and someone savvy about the business of making movies, including fund raising. This is not for the meek; only the brave should seek to self-produce their own work, and only a few shall ever see profits from such an endeavor.

Agents

One great way to sell your screenplay is to have an agent. There are few here in Massachusetts that profess to do this as a full-time profession; none that I have personally heard of have done it with great or continuing success; and none are licensed, since the Commonwealth does not require licensing, as does New York and California. In Massachusetts, attorneys can serve as agent, also known as "packagers" of films. For the screenwriter who is hopeful of or intends on making this their profession, use your counsel to help you find an agent. Better still, get on-line and find an agent that sounds worthy of having you for a client. In other words, one that has a track record, including how much of a percentage they’ll take (20% is standard, but I’ve seen higher and lower) and how much they’ve gotten for other writers. The best agents are in those privileged agencies at the top, and you’re not likely to get too close to these at the beginning. Find out if they’ll take unsolicited scripts. If not, have counsel submit for you.

If an agent wants to represent you, have your counsel negotiate a savvy deal that allows you to walk away within a reasonable period of time (usually upward of one year) if your agent doesn’t sell your script or get you other paid work. Keep in mind that most reputable agents want to know you have more than one script on the carving board. Some web sites to check out to find agents include: www.WGA.org (Writers Guild of America); www.ASAScreenwriters.com (American Screenwriters Association); and www.Scriptsales.com (a.k.a. Done Deal). I cannot recommend any of these sites, except to say that they have a lot of information which must be carefully screened before submitting your script to someone listed. Do your research and make a decision, whether it is to solicit an agent or sell a script outright. Unless you plan to write many screenplays, and unless you can secure an established, connected agent, the use of an agent has been obviated by attorneys being able to submit scripts directly to studios as "packagers". Further, agents can tie up your work if an exclusive deal is required, as many do, thus making it more important to have an established, not a wannabe, agent.

Attorneys

Lawyers are best hired for legal work. Such work usually includes drafting and negotiating contracts, licensing deals, partnership and options agreements. Occasionally a lawyer meets someone who wants to invest in your project or is looking for a particular kind of script, but mostly lawyers practice law, and for this service you must be prepared to pay, as for any other that makes you better off for it. As a general rule, selling scripts for clients is not a profit-making event for most attorneys, except in the rarest occasion. With hundreds of scripts submitted to entertainment attorneys each year, only a small handful will sell and only for a nominal fee. Even the occasional $100,000 will only earn counsel $20,000 with a 20% packaging fee. With normal services being sold as high as $400/hour in Boston, this is chicken feed to most lawyers. Attorneys make money from writing contracts, negotiating deals and suing to protect their client’s interests. Lawyers are compensated, generally on an hourly basis, for these acts, although many will provide a set price for creating a specific document.

If you’re a writer asking counsel to represent your project as packager, rather than "just" as an attorney, then be ready to do your homework. Make contacts, get stars attached (even a letter of intent from a star will suffice), and uncover interested producers. Then ask your counsel to submit your script to your contact for a pre-negotiated fee, which might include a percentage of the script’s sale or option price. New England attorneys are not known for their Hollywood contacts or knowledge about which studios are buying what. The firms that might claim such specialized knowledge are in New York and L.A., and probably won’t be willing to package an unpublished, untested screenwriter. Most studios and agents won’t accept scripts directly from writers, requiring either an agent or attorney. Sound like a catch 22? Selling scripts is no easy task, and most sales are not for that dream half-million to a million dollar fee all writers believe themselves worthy of achieving. Your job as a writer doesn’t end with the scripts completion; be prepared to do your homework to make your project the next sexy bid by a producer or agent, and use your counsel to do legal work. As a general rule, packaging should only be done by attorneys when the writer has done his own homework.

Cyberspace and Internet

Many new laws, as well as possibilities, are quickly unleashing themselves on the world of screenwriting. Use the web sites listed in this article and others you find yourself wisely, and don’t jump to submit a screenplay as if it were a resume. Attaching a screenplay as a Word document or in some other screenwriting software such as Final Draft, may lead to easy infringement by others. Changing around characters, descriptions, locations has never been easier, as when we used to present typewritten, unscanable documents. The sexiest-looking sites out there may have been created by a teenager, not a reputable company, looking to market or buy your scripts. Research before you leap to hand over your work. Write out a verbal paragraph or short-page description of your work, and provide that alone, and research the heck out of the recipient before cyber-blasting it to the intended maker-of-all-your-dreams-come-true. Sign release forms issued by potential readers with caution. You may be unwittingly signing away rights you are entitled to retain. Make readers sign a brief confidentiality agreement that protects your script from being circulated without your direct knowledge and permission. The internet is new to all fields, and case law is only just beginning to emerge. So before you zap that prized creation of yours with the press of a button, consult with counsel or at least get positive recommendations from other writers as to what is reliable and safe.

Screenwriting is highly specialized, and most writers must let go of their product before it becomes final, and even share the credit with others who they may never even have opportunity to meet. Writing good dialogue, characters and scenes takes talent, imagination and inspiration, but ultimately writing scripts is part of a profit-making industry, not just an art form in of itself. If you want to write for movies, be smart and take the necessary steps to protect your work, and perhaps you will be one of the lucky ones who sees their name in lights, who makes the big bucks, and whose friends, family, colleagues and complete strangers say, "Great script!"

None of the material in this article is intended as legal advice and expresses only the opinions of the author. If you require such legal consultation on a particular project or work, please contact an attorney. If you have questions about any of the contents of this article, you may contact the author at (617) 821-6772. Vinca Jarrett is an attorney of counsel to the firm of Shames and Litwin, a full service law firm with foremost experience in the field of entertainment, including film, music and television. She is also the owner and principal of the script consulting company SKRIPTEASE, which specializes in screenplay drafting, editing and consulting on feature and television projects both on spec and in production. Skriptease will be running workshops for screenwriters who have drafted at least one completed script in proper format beginning this summer. Contact Vinca Jarrett for more information on participating.

For more information on Skriptease, please contact Vinca at Skriptease@aol.com.