We have been following your Q&A for some time. You were recommended to us a few years back and basically have not even considered anyone else for legal service.
We have a writer who wrote a screenplay in 2007, based on his life, it is WGA registered only. In 2014 this writer became legally blind. He asks a friend to help him polish and embellish the script. This friend is not a WGA writer nor a professional writer. This friend was unprofessional, difficult to work with and rewrote the script with content that the original writer disapproved of. This friend also drew up a writer’s agreement, based on the basic WGA contract, it was full of errors, but the blind writer signed and agreed. After 9 months, they parted ways. The friend then took it upon himself to re-title and copyright the unfinished script in his own name, even though it was not complete nor approved by the original writer.
Are there any repercussions to the writer going back to the original script and title to file a copyright? Also, since the script was based on actual events and people, can the friend in anyway sell the unapproved script without having the 'rights' to the original writer’s story? Thank you.
Answer by Brandon Blake, Entertainment Lawyer:
Thank you for the kind words. Always hate to hear about writing disputes of this kind, and especially when it sounds as though the writer in this case was taken advantage of at a particularly difficult time in his life. I will go through several ideas based on the issues above.
Regarding the lack of a copyright filing, there is no legal requirement to file a copyright with the United States Copyright Office for a screenplay in order to have copyright protection for the work. Although filing a copyright is relatively easy now that the filing is online (www.copyright.gov/eco/), many writers still prefer not to file because of concerns about choosing the correct form, uncertainty about how to deal with source material, and sometimes privacy concerns since U.S. copyright filings are public record. All that being said, the writer is still protected by copyright law despite not having filed. However, there is an evidentiary question now regarding the differences between the 2007 version and the 2014 version.
I continue to be critical of the WGA for only maintaining scripts on file for five years, since so many writers do opt for WGA registration rather than a copyright filing. As the WGA states here (www.wgawregistry.org/regfaqs.html#quest3):
“What does the registration fee cover? The registration fee provides five years of legal evidence for your material. It also helps maintain the overhead for the department, including the maintenance of the confidential facility where the material is stored for its five-year term.”
Five years is a blink of an eye in the life of many screenplays, so unless the writer is re-registering the material regularly, that evidence is going to be lost. However, that does not mean the content of the original script cannot be proved by other evidence, but it is more difficult.
Regarding the WGA contract signed, if the writer was tricked into signing the contract or literally did not know what he was signing because of his disability, then there may be contract and tort remedies available. Short of that, the WGA contract will be controlling regarding the rights that the friend now has in the screenplay. In January of this year I answered questions about a WGA Collaboration Agreement (www.filmtvlaw.com/blog/2016/1/19/wga-writers-collaboration-agreement). Rather than discussing those points again, please feel free to read this previous article where I go into more detail about WGA Collaboration Agreements and which rights are typically transferred.
Regarding filing a copyright for the original version of the script, that idea probably makes sense, but make sure that this is done truthfully and accurately. There are substantial penalties for knowingly making fraudulent representations on copyright filings. Additionally, if the contract signed transferred the underlying rights to the two screenwriters jointly, then filing a copyright now under just the name of the original writer could be a misstatement. During the online registration process with the US Copyright Office the application will ask if there are any other claimants to the copyright.
Regarding the life story rights, it sounds like this point will be solidly in favor of the original writer. Again, provided that the agreement signed did not transfer any rights to the underlying property or the life rights, the friend is not going to be able to sell or develop this new script. Moreover, there is not a production company or distributor of any size that I know of that would even consider getting involved in a true life story without seeing the paperwork for the underlying rights.
As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.
- By Brandon Blake, Entertainment Lawyer