Unpublished Authors and The Battle Against Copyright Infringement

TASA ID: 3919

Copyright infringement is a hot topic in the entertainment industry and I have worked on my fair share of cases on this issue.  Having testified for both plaintiffs and defendants, successful and not so successful writers, the published and the unpublished, the questions remain the same.

Don't all authors deserve copyright protection?  

Why do established production companies believe they can use and abuse the up-and-coming writer?  

Why do studios believe they can just mine the written word of someone who has not yet made a name for him or herself or enjoys the protection of top tier representation?

The screenwriting world as a whole would not be the vibrant and creative industry it is without a wide spectrum of writers, from the unpublished first time writer, to the established pro.  Let's not forget that at one point in time even the Aaron Sorkins and Shonda Rhimes of the world were unknown writers before becoming hit makers.  Just as anti-piracy laws protect a wide variety of visual content, so should copyright protection . . . not just on paper, but in the courts as well.

According to www.Copyright.gov, "Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work."

The WGA registers works from a wide array of authors in order to create legal evidence for the protection of the writers and their work.  "Since 1927, the Writers Guild of America, West Registry has been the industry standard in the creation of legal evidence for the protection of writers and their work. When you register your script prior to submitting it to agents, managers, or producers, you document your authorship on a given date should there be unauthorized usage . . ." (WGARegistry.org)

Today's audience demands a wide range of content, from high-level, multi-million dollar productions distributed in theatres and on network television, to less expensive, down-home style programming distributed on cable, public broadcast and now the Internet. This demand for varied content requires writers and producers from a broad range of experience, expertise and talent to provide copyrighted works. Since experienced writers and producers command higher fees and royalty commitments, which can only be afforded by the higher end productions, the lower end of the content food chain must be serviced by newer, less experienced writers and producers who will work for lower fees with little or no residual compensation.

Both ends of the spectrum must be protected in order for the entire entertainment industry to exist. This existence is threatened by the unfair practice I described, where a producer obtains the work of the author through false pretense or other deceitful, deceptive or dishonest means, produces a film or television program based on the work of the original author and excludes the original author from any of the compensation and attribution that would otherwise be provided.  If authors are not compensated for their efforts and their works are consistently stolen from them, their creative juices will stop flowing and the industry will suffer as a result.

I have worked on two fairly high profile cases where a first time writer was abused by a large production company/studio.  In one instance, the writer worked with the production company for over a year on an original idea/treatment he brought to the company.  They provided revision notes, took a half-dozen meetings with the writer, and even had an experienced writer take a pass on the script.  Then suddenly, the company passed on the project telling the writer they didn't believe this type of movie and genre would be saleable.  Five years later, a blockbuster film with 22 substantial similarities, including concept, theme, characters and sequences was released, and went on to earn hundreds of millions of dollars.  The judge on the case did not even look at the expert reports and ruled there was no infringement, as the judge's connections to the production company and studio were strong and the judge did not want to rock the boat.

In the second instance, an author presented his novel to a well-known actor's production company as a writing sample for consideration in the staffing of their potential television series on a major network.  He had a pre-existing relationship with the company from several years before.  He corresponded with the company and confirmed their receipt of his book.   They had no further communication.  One year later, a film was released with a similar title, theme characters, relationships, and over 48 substantial similarities that were obvious to the casual observer.  The author has begun the process of a lawsuit; however, the incredible expense of going to trial may prohibit him from going forward.

Both these cases represent a travesty of justice.  Not only did these writers not receive the compensation and credit they deserved, but also their ability to leverage the success of their contribution to these projects can never be realized to further their career.

As a professional in the industry who has worked with several first time writers and directors, I would implore everyone who has the opportunity to finance, produce and/or distribute content, to take the time and resources to compensate the writers who contributed to the copyrighted work in a meaningful fashion.  Option the underlying rights properly, make a deal with the writer who writes on spec and got the project started, even if you worked with other writers to finish the project. This may seem obvious to the casual observer, but for someone who works inside the litigation world consulting with lawyers on entertainment related matters, you would be astonished at how often the newer writer is taken advantage of and their rights are infringed upon.

All authors deserve protection, and it should not be dependent on how much money they've made or what type of representation they have.  The laws are there to protect them all.

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This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.