SE4 D172 Copyright: USCO or WGA?

If you have attended a writers conference or spent any time at all in the multitude of online writers forums, you have probably seen – or perhaps even partaken – in one of the many heated debates regarding correct copyright registration of your work. For many screenwriters, there is no more contentious topic, except for perhaps the rules of proper formatting, than the subject of copyright: what it is, what it does and how you should go about acquiring it.

Essentially, there are three different positions staked out in the copyright controversy with a fourth and decidedly spurious option known as the Poor Man’s Copyright (more on that later). For this article, we’ll stick with the options for copyright registration available in the United States. First and foremost is registration of copyright through the US Copyright Office (USCO), a department of the Library of Congress (LOC). Second is registering a work with the Writers Guild of America (WGA). The third option requires no registration at all since, by law, a creative work receives automatic copyright protection the moment it is set in a fixed form such as a book, script, photograph, painting or other types of fixed media.

Let's begin with that last claim, that there is no need to register a copyright. In theory, this is correct. Your work is protected under US copyright law the moment it is created in a fixed, tangible form. So, when you type FADE OUT at the end of your screenplay and hit save, you have copyright protection. However – and this is where it gets complicated – you must also be able to prove the creation date in the event of infringement. A computer file on your laptop does not provide the most reliable means of establishing a creation date. If you create a second copy of your work to edit or make updates, that new file will have a more recent creation date than the original file. That can create problems in the event of an infringement.

To firmly establish the creation date the law requires that you publish your work in such a way that it is available to the general public. Public performances, it should be noted, do not qualify as a publication. So, while that program with your name on it from the local community theatre’s production of your new play is a nice memento, it does not help to establish your creation date. You need a more rigorous paper trail. This is where registration becomes advantageous. Moreover, while registration of copyright is altogether voluntary, it provides the necessary legal framework for firmly establishing the creation date of your work. But what about that idea of publishing to establish the creation date? Screenplays are not typically published, at least not in the traditional sense. In this case, registering with the copyright office will act as prima facie proof of ownership should the need for litigation arise. This must occur either prior to or within five (5) years of any publication of the work. Principally, what this means is USCO registration - before you start sending your script out for reads - will act as your legally recognized creation date.

So, how do you go about registering a copyright for your work? Even amongst seasoned and experienced pros, the answer to that question generates the bulk of the disputes arising over copyright. One faction maintains WGA registration is sufficient, while the other claims only the USCO can properly register a copyright. The fact of the matter is, in the strictest legal and technical senses, there is only one way to register a copyright, and that is through the US Copyright Office. To put it simply, the WGA registers a script, whereas the USCO registers a copyright. Both provide paper trails that can establish your date of creation, but there is an important caveat that the USCO provides that the WGA does not: the ability to actually file a lawsuit.

According to US law, the owner of a copyright cannot begin litigation without the copyright being registered with the USCO. For those disbelievers out there, this is stated plainly in black and white on the USCO’s Frequently Asked Questions page. However, there is more to it than just litigation in the event of infringement. If infringement occurs prior to USCO registration, you could be limited on the amount of monies you are allowed to collect.

To be more specific, if you have not registered your work with the USCO and someone infringes your work, you have 90 days to file your registration from the date of infringement. At 91 days, you’re out of luck, and no lawsuit may be filed at all. But even if you file within 90 days of the infringement, you are still barred from recovering attorney’s fees or statutory damages in your lawsuit. To receive full copyright remedies under the law, you must register your copyright with the USOC prior to any infringement of your work. Registering with the WGA simply will not provide any of the legal requirements necessary to receive copyright protection in the US. The WGA even states on their website that registering with them does not take the place of registering with the Copyright Office, though they don’t explain the particulars.

So, why even bother with WGA registration? Legally speaking, there is no reason to register with the WGA. However, if you have registered with the USCO, concurrent registration with the WGA can provide some benefits. First, you have established an additional paper trail as to the creation date of your work. And second, in case of litigation, the WGA will even send a representative to court on your behalf to testify to the date they received the material(s). They won’t testify that you own the copyright, just that you submitted documents to them on a specific date. And if you haven’t registered with the USCO, you won’t even get a court date for them to testify at all. WGA registration is in addition to, not in place of registration with the USCO.

It should also be noted that WGA registration – at $20 for non-members - is only good for five (5) years; USCO registration is good for the life of the author plus 70 years for a one-time fee of $35. So, if you registered with the WGA, you would have to re-register in five years to maintain your paper trail and have their representative available to you should you find yourself in court. That’s $40 in five years for ten (10) years of WGA registration, which is no good if you haven’t registered with the USCO. If you’re just looking to save money, the USCO is the way to go. If you want to build a paper trail to enhance your USCO registration, you can add the WGA.

Why then, do so many screenwriters insist on going the WGA route? It’s mostly due to a lack of understanding of the law, but for many screenwriters, it’s also about prestige. By registering with the WGA, they feel they are somehow affiliated with the union and have their backing. The WGA makes it clear that non-members do not receive the backing or benefits of membership just because they registered their work with the guild. Still, for the young writer starting out, it feels like they have accomplished something. Their work is registered with a prestigious guild of like-minded artists who have penned some of the greatest works to grace the silver screen.

Registering with the government? Well, it sounds sort of like registering with Selective Service or filing with the IRS. It’s just doesn’t sound as hip when you’re hanging at some Hollywood party to say you’ve recently filed copyright papers with the government for your hot new screenplay. The WGA is cool, the US government? Eh, not so much.

But there is one more important reason to consider WGA registration in conjunction with USCO registration, and that is time. It can take months to receive your registration certificate from the government. I had one registration take a full year before I received it. What happens if you have a producer or production company express interest in seeing your script, and they want to know your registration number? They want this in order to protect themselves. They want to know that you as the screenwriter have taken the necessary precautions to protect yourself and your work. They want to know that you are a professional. If you haven’t taken the steps to protect yourself, someone else could register your work as their own, and that could leave the production company open to liability and extended litigation.

If you have only registered with the USCO and haven’t yet received your certificate with a registration number, they may pass on you. Whereas, if you double registered, you can explain that you are currently awaiting your USCO certificate but have your WGA registration – establishing that paper trail for your creation date – and provide them with that number. Online registration with the WGA is virtually instantaneous, and you will have your registration number and a printable certificate (suitable for hanging) in your inbox almost immediately.

That pretty much covers USCO and WGA registration, but there is one more copyright myth floating around out there that just refuses to die: the Poor Man’s Copyright. This mythical form of copyright registration involves snail mailing a copy of your script to yourself. When the envelope arrives, put it in a safe place and do not open it. It must remain sealed until you need it for court. Should you find your work infringed, you march into court with your sealed envelope with a canceled postmark establishing your date of creation. You hand it to the judge. He opens it, and there inside is a pristine copy of your script. The judge finds in your favor, pounds his gavel, and you walk out court a lot richer. Except, it’s never going to happen.

Again, referring to the USCO’s website, the Poor Man’s Copyright has no legal standing. No court has or will admit a sealed envelope with a postmark as evidence in a copyright case for the simple reason that it is too easy to fake. Oh, and the law says you must have a registered copyright with the USCO to even file a lawsuit. If all you’ve got is a sealed envelope, you won’t even make it to the lawyer’s office.

I first heard of the Poor Man’s Copyright from a college professor who had all his students mail four (4) copies of their works to themselves. The reason they had to do four was because that was what was necessary to be considered a published author. A good friend of mine gleefully came into the cafeteria one day with his four envelopes with postmarks and declared himself a published playwright. When I questioned him on this, I received the college equivalent of “Teacher says.”

Suffice it to say, sending copies of your work to yourself does not make you a published author, and if you haven’t registered your copyright with the USCO, you don’t have a registered copyright. That’s how the law works in the US.

Now, there are all kinds of other legal intricacies that can come up regarding copyright infringement that are beyond the scope of this article. I’m not going to get into international laws or the Berne Convention or even the ability to sue for copyright infringement in state court without USCO registration (this requires you to make a counterclaim in an existing lawsuit that does not claim an existing copyright infringement). If you find yourself considering a claim of copyright infringement, contact a lawyer. Bear in mind the first thing he’s going to ask you is if you have filed your copyright registration with the USCO. If you haven’t, that’s most likely the end of your lawsuit.

To sum up, the only legal way to register your copyright in the US is through the United States Copyright Office. Registration is voluntary, but you may limit the amount of monies you can collect if you do not register your copyright. If you can afford it, registration with both the USCO and the WGA provides the most benefits. If you can only afford one, your only option is the USCO.

While I have done plenty of research into the topic of copyright, I have not cited every specific reference I used in writing this article. I am, however, providing links below to US Copyright Law, the USCO and the WGA for you to do your own research because an educated screenwriter is a protected screenwriter. That being said, there are many areas of copyright law that this article does not even begin to cover. It is intended only as a sort of layman's primer to give you a basic understanding of how copyright law functions in the US. Should you find yourself in a position where you think your work may have been infringed, consult with a lawyer to discover the options available to you in your specific situation.

And may I wish you good writing.

US Copyright Law

(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2583; Pub. L. 101–650, title VI, § 606(c)(2), Dec. 1, 1990, 104 Stat. 5131; Pub. L. 109–9, title I, § 104(c), Apr. 27, 2005, 119 Stat. 222; Pub. L. 110–403, title I, § 101(b)(1), Oct. 13, 2008, 122 Stat. 4258.)