Day 42: Copyright

October 12, 2015

 

Let’s talk copyright. For a relatively straightforward subject, there is a lot of confusion and misinformation out there, particularly for the novice writer. So let me clear up matters and set the record straight. There is only one agency that oversees copyright registration for US writers; that is the United States Copyright Office with the Library of Congress (LOC). You cannot register your copyright with anyone else. End of subject.

 

Yeah, but what about. . .

 

Did you not read that above statement?  I’ll repeat it. There is only one agency that oversees copyright registration for US writers; that is the United States Copyright Office with the Library of Congress (LOC). You cannot register your copyright with anyone else.

 

You are so wrong, Will. The Writers’ Guild offers registration. A quick look at their website would have told you that!

 

No. The WGA offers registration of your script, which can be useful in proving your copyright and establishing a date of authorship, but it is not a registration of your copyright. Again, you can only register your copyright with the Copyright Office.

 

Well, you don’t actually have to register your copyright. Your work is copyrighted automatically when you write it. So why waste money registering it?

 

Sigh. Yes, your work automatically receives copyright protection when you author it, but how do you prove your copyright? If, in the very unlikely event, someone takes your work and produces it without your permission, how do you seek redress? The first thing a lawyer is going to ask is ‘when did you file your copyright registration?’ If you answer by saying you filed with the WGA, he will respond, “Great, but when did you file your copyright registration?”

 

The WGA registration provides a paper trail that can be useful in court by establishing a time frame for the work in question, but it does not establish the copyright. Only the Copyright Office can do that. The WGA registration lends support. It should be used in addition to and not separately or excusively from copyright registration.

 

Yeah, but the WGA will defend you in court if you register with them.

 

What is it with all these ‘Yeah, buts’ and ‘what ifs’ and ‘what abouts?’  Forget ‘em! There are no what ifs, what abouts or yeah, buts. First of all, if you are not a dues paying WGA member, the WGA is not doing anything on your behalf. They certainly aren’t going to ride to your defense and act as your counsel. What they will do, if you register your script with them, is send a WGA rep to state in court that on such and such a date, so-and-so filed a script with them. There will be no mention of copyright because the WGA does not administer copyright. They will make no claim as to who the owner of the copyright is because it’s not what they do. It does provide you with a paper trail, however, and a timeline that may be helpful in establishing you as the copyright owner, but the WGA registration in and of itself will not do that for you. It is only supporting evidence. And it only associates your name with the script from the time you submit it. With copyright registration, you can indicate the work was completed years before you actually filed for the copyright. For example, you completed a script back in 2010 but shelved it. It wasn’t working for you. In 2015, you pull it off the shelf and do a rewrite. Now the script is pretty good and you file for copyright registration. You can indicate on your form that the work was initially completed back in 2010, establishing a longer history with the work in question. Not so with the WGA, it begins on the date you file and progresses forward.

 

Many writers also try to save a buck by registering with the WGA.

 

The WGA only costs $20 (for non-WGA members) whereas the Copyright Office charges an outrageous $35.

 

Seriously? You’re saving 15 bucks? That’s not even a good night out at the bar. Now consider that the WGA registration is only good for 5 years versus the copyright, which lasts the duration of the author’s life plus up to an additional 120 years depending on the nature of the authorship. With the WGA, at the end of 5 years you have to plunk down another $20, exceeding the cost of the copyright office. If you miss your renewal, the WGA tosses your material and thereby eliminates the timeline and paper trail you had established with your script. You’ll have to start over and all the money you spent up to this time will have been wasted. I should point out, however, that the WGA currently offers a grace period of up to 3 months on renewals.

 

I heard that filing with the WGA prevents a producer or studio from changing your script. They have to do it exactly as you wrote it.

 

I seriously had someone tell me this. No, really. I'm serious. Stop laughing. The WGA provides no protection on script changes. None. Ask any scriptwriter. Once you sell your script, it is no longer yours. They own it. They can do what they want, which will probably involve bringing in another writer to rewrite your script to their specifications. If the new screenwriter makes enough substantial changes, he can request sole screenplay credit. This kicks in a whole arbitration/mediation process, which may result in you getting relegated to a Story By credit. And of course the WGA will only get involved if it is a dispute among WGA members on a WGA sanctioned production. But hey, you sold a screenplay. Congratulations!

 

So why would anyone ever want to register their script with the WGA? Actually there are several reasons. Many screenplay contests require either the copyright registration number or the WGA registration in order to accept your submission. The Copyright Office can take up to 4 months to process and forward the registration. That can be a considerable delay if you’re sitting on a hot script that you just have to get out there now. Producers and production companies may also want to see that you have registered before they agree to read your script. This is mostly for their own protection, but it also shows that you are a professional doing your due diligence. Filing with the WGA can be a stopgap measure to tide you over until you receive your copyright registration. And lastly, filing with WGA helps provide a dated record of the writer’s claim of authorship, but you will have to maintain that registration and you cannot predate the claim with the WGA.

 

Finally, I would like to address the long-standing myth concerning the ‘Poor Man’s Copyright.’ This involves sending a completed copy of your manuscript to yourself and utilizes the postmark as the established date of authorship. This is considerably cheaper than either the WGA or the Copyright Office. It’s a good thing it’s cheap because it is completely worthless. The courts have declared the Poor Man’s Copyright to be complete bunk. I have spoken with a number of lawyers about this. I have heard them speak at conferences. I have friends who are entertainment lawyers, and they all say this practice is nonsense. Copyright cases are extremely hard to prove in court and no case has ever been resolved because someone produced an envelope with a postmark on it.

 

Well, I have a friend who—

 

No, you don’t. I have researched this several times and have never found a case where an author mailed a manuscript to himself and that envelope was even entered as evidence. I don’t know any lawyer who knows of such a case. It’s a myth. You cannot protect yourself with a postmark. It’s too easy to fake. You can prove it to yourself. Grab a blank manila envelope, address it to yourself and take it to the post office. Have the postal clerk determine the cost to mail it with the weight of a script enclosed. Put the stamp on it and send it, empty and open, to yourself. In a few days, you’ve got a ready-made pre-dated fake copyright kit. Just wait a few years, then grab a script of whatever blockbuster is playing in the multiplex, make a few minor changes and stuff the resulting manuscript in your envelope, seal it and go see a lawyer.

 

“Steven Spielberg ripped off my script and I’ve got the proof right here in this envelope!” you’ll declare. The lawyer will laugh you out of his office. First, if he opens the envelope to verify what you say, it destroys the veracity of the claim. It has to stay sealed until court. Is a lawyer going to take your case without knowing that you didn’t just cram a bunch of blank pages inside? Probably not, but even if he does, the court isn’t going to accept it as evidence because it is too easy to fake as I outlined above. The question is going to be, ‘why didn’t you just get a copyright?’

 

Now I’ve had this argument over the Poor Man’s Copyright with any number of writers over the years, and they cling to this myth like biblical text. Maybe it’s their distrust of the government or maybe they’re just not a bright as I would like to think they are. I could be completely wrong, of course. I may simply have not come across the case law where Poor Man’s Copyright is vindicated, and I am clinging to my own beliefs as desperately as the man whom I would disparage. If you know of such a case where Poor Man’s Copyright has verifiably been used to win a case for the plaintiff, let me know and I will apologize and trumpet the glorious news to the masses, but until then register with the Copyright Office.

 

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