We Don't Keep Our Copyright...And That's A Good Thing!

Craig, you’ve made some whopping and fundamental errors of logic and fact here. I don’t have time to go through them all, but here are a few major ones:

1) You’re assuming nothing else with the present system would change if writers retained copyright.

2) You’re assuming that revisions would not be within the employment parameter, when they certainly could be. For example, now, when a writer options but does not sell a screenplay, and is hired to rewrite — those employment steps are within Guild purview. Same if the writer retained copyright.

I don’t believe writers should hold copyright when they’re hired for non-original works. However, on original works, they should. It can be done. Whether it ever will be done remains to be seen.

But viewing the issue with blinders on isn’t the way to see it.

DH

Some years back, Alan Alda wrote a cogent article for the WGA magazine (I believe) lamenting the screenwriter’s raw copyright deal as opposed to, say, a novelist. I don’t have the article handy, but it might be an interesting counterpoint to this discussion.

Thanks for the great forum,

Tim

David:

I do not believe I have made any errors of fact.

My assumptions regarding the studios and what they would desire from us is based on my current knowledge of studios and what they currently desire from us. My logic is that the same people running studios today would be the same people running them tomorrow.

Regarding revision, I do not assume what you believe I assume. It is always possible for studios to hire you as an employee to rewrite your own original script without picking up the option on that original script.

It’s possible, but it’s moronic if they actually plan on exploiting the material. If they hire you as an employee to write a new draft of your original material and then choose to go ahead and produce a film from that original material, they will pick up the option on your original material, at which point it becomes a work-for-hire and they become the owner of the property.

If they don’t plan on going forward, then essentially, they’ve let the option lapse and you’re free to sell your work as a work made for hire to another company. The existence of options doesn’t really change any of what I’ve said.

In the case where we retained copyright, we could license the right for the studio to prepare new screenplays as they wished (in which case, we’re getting rewritten and that’s that) OR we could insist that we prepare the revisions, in which case they would have the option of telling us to piss off.

Remember, David, the WGA can only validate option agreements retroactively, i.e. if they get picked up and you now sell your script as a WFH. Because of that, options can be for a DOLLAR.

If you like the idea that some writer can license the film rights to his screenplay for a dollar, then by all means, you’re in favor of retaining copyright.

Tim:

You’re welcome, and thanks for mentioning that article. I’ll talk to our staff tomorrow and see if they can dig it up for me. Maybe I can get into a battle of words with Hawkeye. :)

David —

Since screenwriters already own the copyright in original screenplays they write outside of any employment as screenwriter in the present system, and the present system is the present system, then I can only imagine you are talking about screenwriters owning the copyright in original screenplays they write under employment to a studio or production company.

Which, under the present system, automatically means that screenwriters do not own the copyright.

So, if I’m following your logic, what you’re saying is that if screenwriters owned the copyright in original screenplays they wrote as employees, it would change the present system …

… because if screenwriters owned the copyright in original screenplays they wrote as employees, they per force could not be working under the present system.

Hm.

Well, can’t refute that.

So allow me instead to suggest that if, somehow, conditions were such that screenwriters did own the copyright in original screenplays they wrote under employment, and did retain copyright ownership in original screenplays they wrote outside employment …

… then studios would only buy original screenplays from writers who, of their own free will and in exchange for pay and other considerations, contractually agreed to assign their copyright to the studio, and the studios would only employ screenwriters to write original screenplays who, of their own free will and in exchange for pay and other considerations, contractually agreed to assign their copyrights to the studios.

Exactly the way the present system works.

As you say, view the issue with blinders off.

Why would it be of greater benefit to those who finance films in order to exploit their copyrights to make movies from screenplays in which they don’t own the copyright when it would be more cost-effective to spend the same or even greater resources to make movies from screenplays in which they do own the copyright?

-

As the writer living in the UK who reported the info about the BBC, I just want to be clear on two points.

The first is a minor one, but I make it for the sake of accuracy. The $25 fee you quote for the sole writer of a half hour program. A writer who wrote a 15 minute program would get half of it; a writer who was the sole writer of an hour long program would get double; somebody who was one of three writers who wrote a 45-minute program… well, you get the idea.

More importantly, I think you are misinterpreting something I said. It’s true that the BBC unilaterally decided to broadcast these programs—but, as I understand it, this unilateral decision as against the law, specifically because the writers retained copyright.

Or—to put it another way—I have in front of me my contract for a pilot I wrote for BBC Radio. As far as I can tell, I did not sell them unlimited exploitation rights. I sold specific performance rights, which are spelled out in the contract.

This is worth underlining: I did not sell them the right to make derivative works (except for foreign language translations); I sold them the right to perform my script. Because I did not sell the right to make derivative works, they cannot hire somebody to rewrite my script, except under very specific circumstances, spelled out in the contract. To whit: they can translate it into other languages; and they can make make “minor alterations” as well as changes that are “necessary in order to avoid involving the BBC in legal action or bringing the BBC into disrepute”. (If I were writing an episode of a serial drama with multiple authors, they would also have the write to edit it to bring it “into sylistic conformity” with other episodes.)

Now, there is certainly room for interpretation here—what is minor? What is necessary to avoid bringing the BBC into disrepute? Nonetheless, it’s hard to imagine a US studio agreeing to a clause remotely like this one. In practice, the spirit of these clauses seems to be generally honored. (Or, this being the UK, “honoured.”) One of the sources of dispute in the BBC Radio 7 thing was that the BBC was editing the broadcasts without the writer’s permission. The BBC has agreed that this was wrong, and promised not to do it again. Can you imagine a US network making a similar promise?

Finally, you’re incorrect when you say “the upfront fees aren’t collectively bargained.” As you note, the UK allows unions to represent independent contractors, and the fee the BBC paid me for my pilot was in fact the minimum set by the Writers Guild of Great Britain (which is, incidentally, a sister guild of the WGA.)

Now, despite all that, I agree with you that owning copyright is not a panacea. Writers in the UK have more control over the final disposition of their scripts—but we get vastly less money. However, that seems to me to have more to do with weakness by the WGGB than with copyright; the WGGB’s reaction to the BBC’s illegal rebroadcasting was to politely ask for a slightly higher pittance than was being offered. Ultimately they bargained that $20,000 set-aside up to about $60,000.

I think there are probably several interrelated reasons for the WGGB’s weakness. Among them I would include: the overall weak state of the British film and TV industry; and the fact that, until recently, the dominence of the BBC made the TV and radio industry effectively a single-employer business. I also suspect there are some reasons having to do with the social and class history of Britain, but I don’t know enough to put my finger on them.

My .02,

Ted wrote:

“then studios would only buy original screenplays from writers who, of their own free will and in exchange for pay and other considerations, contractually agreed to assign their copyright to the studio, [rest snipped]”

Absolutely. The advantage of the current status quo is that the WGAw can bargain for better consideration for all writers, rather than every writer having to fend for him or herself.

Now if you’re say an established writer like oh say, Craig Mazin or Ted Elliot, you don’t need these protections—I’m sure that they both have able agents+lawyers who are able to negotiate reasonable compensation for their work+15%.

The writers who need the protection are the starters-out or longtimers-no-recent-sale or anyone else not in a strong bargaining position. These are the people who would get screwed under an alternative system [For some reason I’m having a flashback to The Pearl right now].

Copyright is just a set of legal defaults that provide a basis for bargaining between the writer and the producer/studio/publisher. We should be seeking to improve our bargaining position which does not necessarily mean seeking to improve our Copyright rights.

Cheers, Trev

So, it’s the USofA’s interpretation of some law which differs worldwide.

Let me get this straight — Copyright DOESN’T have any value (monetary or otherwise, include by-products in that, would you please!) outside and even if it does, it’s still a matter of property owned, exploited, transferred in exchange of valid contracts.

On the odd chance, i happen to have resident status of the great kingdom of some Pacific island remote enough to declare that literature is a transfer of clear funds (active and developed) to the purchasing side… and to be able to SELL those (now) copyrighted items to a corporation foreign to me, i’d allow somebody else to control whatever consequences my (…or theirs, btw) work has, after the fact!

Yup, i can actually have a share in this… all i need is multiple legal citizenship. And an advantage like being born at the proper location. To get brand names (commercialized) and characters printed on cereal boxes to generate rights of exploitation of something i was original with.

Cut loose, free — and, for as low a cost as the gains given by A contract honored there, only. Signed away.

Ironic! Even wealthy enough, once by levels.

If anyone has their fingers on the pulse, I’d love to hear some theories as to the weakness of the WGGB…

Sylvain,

I must admit, I haven’t the foggiest idea what you’re getting at, but I enjoy reading you anyway.

If you’re suggesting that I’m a calculating capitalist—you’d be right. What good is owning copyright if it means my screenplay stays in a drawer?

Cheers, Trev

Once more into the breach…

One of most popular textbooks for law school property law classes has a section where it discusses, briefly, the development of property rights in whaling. The basic rule is called “fast fish/loose fish” — certain kinds of whales had to be taken immediately, other kinds of whales were yours as long as your harpoon (with your “colors”) remaind in the whale. The first time of whale floated when died, the second type of whale sunk like a stone but floated to the surface a few days or so later.

The point of the whaling discussion in the book was that in law, like in many other things, form followed function—property law adjusted itself to the necessities of the type of property being dealt with.

In the case at hand, we are comparing vastly different types of valuable property: paintings, plays, novels and screenplays. Copyright law in the US has morphed to accomodate the needs of each of these different kinds of property.

We give paintings and sculpture “moral rights” because we want to preserve them as-is for future generations. We don’t like people putting loinclothes on The David.

We give playwrights strong copyright, because the play itself is the most valuable “expression” of the play. The expensive thing is creating the play—performances are (comparatively) cheap. You might say that the thing we want to retain (and protect) is the play.

We make screenwriters workers-for-hire, because the script is “cheap” in comparison to the much more valuable and expensive “expression” of the script as a film. The thing we want to retain and protect is the film.

I’m not saying that the current system is the best of all worlds, but I think there is a reason that we’re in the world we’re in.

Anyway, enough babbling on Mr. Mazin’s & Mr. Elliott’s blog.

Trev,

Well, the industry (as a whole) owns that copyright because it has been given by a contracted deal that pays a fee (work-for-hire, being one) to the “calculating capitalist” that you are… individually or for shared outcomes.

Divide & Conquer paradox; Pie charting the distribution values to the many. Determined by offer/demand ratios negotiable and fair to the writer or everything else that ensues. Dividends and shareholders in a fiscal model that cuts that pie in “proper” percentages.

I wasn’t talking control over a “personal” copyright, i was merely addressing the fact that —in the long run— the capacity to exploit these rights (and all they implicate) is being transferred to corporate hands, only. Ownership and additional financial advantages that are interpreted, in a commercialization sense, differently within US law (FOR its legal citizens) and anybody else’s.

Trevor:

The copyright you have when you write a spec script is just as strong as the copyright you have when you write a play.

The difference, ultimately, and the reason we’re in the world we’re in (and yeah, there’s always a reason) is that the play is exploitable without creating new intellectual property.

A screenplay is not.

The value of a screenplay’s copyright is diminished by the fact that it exists solely to be transformed into a new and different piece of intellectual property. That’s why retaining copyright on it is such a questionable strategy, especially given that we would lose our ability to be represented by a collective bargaining agency.

Craig, you sound like Master Pangloss from Candide.

“It is demonstrable,” said he, “that things cannot be otherwise than as they are; for as all things have been created for some end, they must necessarily be created for the best end.”

Bullshit. First off, even if one were to accept your statement that writers are paid more in the U.S. than in other countries where writers actually retain copyright and have moral rights, it doesn’t follow that we get paid more because we have given up our rights. (Factory workers in the U.S. don’t get paid more than in China because they have less worker protections.)

Secondly, I don’t know exactly how many British writers are getting paid for what and how, (I don’t think many U.S. radio writers get paid much) but I do that at any given day (or year) more than half of the WGA’s membership is not getting paid anything.

While working. Working for the studios. No, I’m not taking about people who can’t break into the business. I’m talking about people who are in the WGA, are professional writers and who take official studio pitches, write on spec and have studios read and comment and even request rewrites. I’m talking about writers who are asked by producers and studios to write notes, write treatments and more.

These are freelancers who are being used as a huge unpaid research and development operation that the studios take full advantage of, and in fact, the studios couldn’t survive without. (Given the stupid way they run things. More than half of all produced movies are original screenplays, most of them having been written independently). The studios gave up their contract writers in the 60’s and 70’s and put all the pressure on the freelancer.

And how are writers doing? The vast majority of our membership is struggling to make a middle class living.

You think it’s great that the writer of an original gets $100,000? Sounds nice. That is until the project goes through five years of development hell, and the writer does 50 unpaid rewrites and when the project doesn’t get made, finds himself broke and struggling to find a new job.

Most Hollywood writers would make more working at K-Mart. Some writers make a lot of money. Some get lucky or know how to work an unfair system.

And then there are some writers who make a fucking ton of money. Like George Lucas. Who retains his fucking copyrights.

Yes, we have a choice. We don’t have to sell our scripts. We don’t have to agree to do work for free in hopes of getting paid.

And those workers in China don’t have to work at the local factory for 10 cents and hour. They can just starve.

Mr. Lawton,

My understanding is that Lucas did not retain copyright of the original trilogy (as I recall he had to ask Fox for permission to create the special editions). He did retain merchandising rights (under a deal that would never be made today—because of, well, the Lucas-Fox deal).

However it does seem that Lucas owns the copyright to the new trilogy—how that happenend I’m not quite sure—because they are derivative works. But would be interested to find out.

In any event, with all due respect, if you’re a writer who also happens to have the money to produce and distribute your own films—retaining copyright isn’t much of a problem.

Mr. Mazin,

I understand that copyright is the “same” for playwrights and un-published screenwriters, that wasn’t my, admittedly rather obtuse, point. Which you have made slightly differently, that the system is the way it is for a reason.

For those wanting to change the system they could:

(1) Successfully lobby for moral rights for US authors. Result: Authors get to put pseudonyms on works they don’t like—which I belive they already can. If you don’t agree to that result, no studio will buy your script.

(2) Successfully lobby for a statute the prohibits selling of copyright. End result, studio’s attorneys work around statute and copyright still gets effectively “sold.” (all derivative works are licensed). Possible benefit: profits from some unknown future profitable derivative work (e.g. introduction of VHS).

(3) Sucessfully lobby for a statute that prohibits selling copyright and prohibits “water-downed” moral rights (e.g. #1) above—

Result: Studios move to Australia (wait a minute hasn’t that…..) and continue to produce the movies they want. You want to sell a script, you have to move to Austrialia and sell it under Australian law (please insert Mexico for Australia if you’d prefer).

Mr. Lawton & Mr. Mazin,

Re: free re-writes, that’s another issue that has very little to do with copyright and well within the purview of the WGAw.

J.F.:

Yes, it does follow that we get more because we gave up those rights. By giving up those rights, we are able to be represented by a labor union, and I believe the WGA is precisely why we get paid more.

Secondly, writers doing free rewrites has absolutely nothing to do with loss of copyright. Writers who option material (thus retaining copyright) are just as abused, if not MORE so. The fact that the Guild hasn’t found a solution to free rewrites doesn’t mean that the writer would be better off without a Guild.

Speaking of without a Guild, you should really reconsider your hero worship of George Lucas. I’ll speak to you in private about that more if you’d like. Publicly, I can say that even if Lucas were a friend of the union writer, his circumstance is so far remote from the middle class writers of which you speak that it’s ad absurdum to use him as an exemplar.

Yes, if a writer can finance his own feature film, then that writer should absolutely retain copyright. That’s all you can take from Lucas, but it’s a good lesson for those of us with fifty million bucks burning a hole in our pockets.

What’s the situation like for other filmmakers who aren’t in the W.G.A.? Quentin Tarantino never joined, and Terry Gilliam, as far as I know, quit after “Fear and Loathing in Las Vegas.” Things must be at least marginally different for them, right?

Trev,

” Possible benefit: profits from some unknown future profitable derivative work (e.g. introduction of VHS).

Have i just read the DVD’s klondike tapping of distributors that enrich multiple corporations rather than the creative side of things?

Transfer control over your work, you simply give it away.

Bottom line and circumstances enforced by a law profitable to cost ratio.

Yup, industrial trust — in the realm of property rights bought by a few. Films might be a medium or an artform expressing peoples’ creativity, but it’s one more of those ways to get wealthy, ancillary and royalties SHARED or KEPT.

Sylvain,

I’ve think I’ve finally caught the jig of your Finnegan-speak.

Let me suggest that sole creative control might not always be that good of a thing…

UNBREAKABLE (and its ending), SIGNS (and the laughable aliens for whom the door blocks) AI (and its ending), STAR WARS: EPISODES I, II and the special edition of STAR WARS IV where Greedo shoots first.

Perhaps there’s something to be said for having someone else directing or producing your film to help you kill your “darlings” and save you from your worst story instincts.

Cheers, T

Trev —

What’s at stake in my reasoning is not the capacity to alter story work and hand it over by selling it to somebody else, but rather the value that shifts between 1)Authorship and 2)Corporate ownership… and every other consequences that this contributes to.

Screenwriters are at the low-end of a balance that tilts in favor of capitalization gains controlled by copyright holders, as in property owned giving the liberty to exploit it for profits, without even consent or fair compensation.

Buy a script for 250,000$ and generate 25 times that much for everyone else BUT those who were entirely responsible for creating it first, and what you get is a thief in disguise carrying a briefcase with documented evidence printed as a contract stating that each dollar above 250,000$ is simple generosity. (Insert sarcastic depletion of living means, here… would you!)

I call that corruption endorsed by some “law” and manipulated to extort money from the weak and abused.

I’ve never PAID my employers to earn a salary and it’s not having written a sold script that would change the time and money invested (by the creative working hours, printouts, dealings) by me.

You’re deviating this subject to the subsequent collaborative medium when i’m questioning the final, definitive, non-negotiable, EVALUATED payment representing what the industry consents.

Generally speaking, if you’re a writer-director like Tarantino or Gilliam, you can survive without a Guild. Studios will create non-sig shells for whom you can work, and you can cut your own back-end deals to cover the loss of residuals.

All rights can be negotiated.

However, it’s truly rare. There’s also an argument to be made that people who do this are anti-union scabs who are enjoying the precedents established by union writers, and thus getting something without giving anything back.

C.,

I wasn’t praising Lucas, just pointing out that once a person has any power, they are going to demand to retain copyright. Kubrick also did it, and I’m sure there’s a big list of other powerful people who do it.

They usually are also producer/directors, because once a writer is powerful enough, he’s going to take those jobs to retain control.

Giving up copyright was something that was forced on writers and is still forced on to writers. (At least those with no power.) It is not a good thing.

You are correct, that given the current state of the world, a writer shouldn’t obsess about holding onto copyright, if they want to make a living in Hollywood.

My point about all the free rewrites, is that your conclusion, that writers in Hollywood are paid fairly, is fucking bullshit. I repeat, the average WORKING writer in Hollywood would make more money as a valet. That includes most of the WGA membership.

The fact is that most screenwriters are working freelance, like novelists and painters. When they create an original work of art (or craft) that is valuable, they should be able to retain moral rights and copyright as a reward for their creativity and risk. That was the original intention of copyright and that is how copyright is viewed in much of the world. Hollywood, with the help of repressive labor laws (labor law in this country is more about preventing unions from having power, than giving them power), and laws favorable to corporations has twisted that idea on its head.

The fact that most of our union is unemployed helps the studios exploit writers, and exploit them they do. They get free work from them and even when writers are paid, they are rarely paid what they deserve.

JF

Oh yeah, Craig, there actually ARE superb exceptions to the rules of fairplay and balanced business practices. Like everywhere else where profit and ambition results in greedy setups to the advantage of invisible thieves.

It’s known as privileges and favoritism. The very fact that such “special treatments” are tolerated means quite a lot to Guild(s) strength for both its members and the rest.

Turnover patterns are so common already in all sectors of the economy. The movie industry has done nothing to protect or encourage the emerging talent. To the contrary, if they could have it all at much lower costs and maximize their own precious assets, they would. Did they?

Markup management. Numericals and flip the dialer of Dow-Jones market “stocks” climbing for speculators only. All of THAT money is stolen by (somehow, legal) criminals. In a systematic attempt at plunging millions of lives right towards poverty while health (or anything basic enough in your minds) of a very vast majority is distributed to the FEW.

Whoever is responsible for this injustice should be punished. Associated, collective or otherwise.

The catastrophic aftermath is coming… working class will suffer it to death. Pushed there by the stacked billions of corporate America and its neglect.

Looking down on Entertainment as yet another way to control others for the power of superior property in bank accounts.

And, it’s not the WGA renewing cyclic agreements that will notice either.

Since that’s what money is all about; a fat wallet buys them a ticket to permanent shame until the abuse stops.

Why are people bringing up Kubrick, Tarantino, Gilliam, and Lucas?

How are they relevant to this discussion?

Wasn’t this about the advantages or disadvantages of holding on to copyright as a screenwriter who is employed by a studio to produce a “work for hire” which “exists solely to be transformed into a new and different piece of intellectual property.”?

How is citing the examples of a few directors who also produce and (sometimes) write supposed to be relevant to this particular debate?

Unless the point is to argue that every writer should also direct, produce, manufacture their own merchandise, own their own cinema and maybe build a small studio called Skywalker Ranch, I fail to see the relevance of those examples.

If you want to hold on to copyright, given the reality of Hollywood, you also have to direct and produce.

If you want to be a wage slave, as Craig suggests, then you accept that you are going to give up copyright. (And he explains why well.)

Given what’s happening in digital techonologies, my advice to anyone who is starting to break into the business would be to focus on creating their own material. These days you can make a movie with a thousand dollar camera and a thousand dollar computer. You don’t need Skywalker ranch.

What Craig glosses over are the thousands of WGA members who are working in the film industry for poverty level wages supposedly “working for hire. “

First, let’s note that J.F. does not practice what he preaches. He continues to work as a writer for signatory companies, and as far as I know, he himself isn’t a signatory company,

In short, he’s a wage slave who doesn’t make his own movies with a thousand dollar camera and a thousand dollar computer.

Furthermore, he’s a wage slave who is rather highly paid. Even when he’s not working, he receives residuals on Pretty Woman and Under Siege, because he’s always been a wage slave.

Despite what wage slave Lawton says here, that there are not thousands of WGA members working in the film industry for poverty level wages. That’s an outrageous statement, and he can’t back it up.

Finally, let me point one other thing out. The vast majority of directors and producers do not own their copyrights either. Lucas retains copyright. Spielberg shares in copyright on some of his films because he’s a partner in Dreamworks.

Kubrick may have owned a copyright on something, but Eyes Wide Shut is copyright Warner Brothers, so I guess maybe not after all.

Let’s face it. 99.9% of film copyrights are owned by the studios that finance them. Period, finito, end of story. J.F. will continue to reap the rewards of being a six-figure wage slave, but apparently everyone else is supposed to martyr themselves for a copyright that is, in the end, of questionable value.

I think Craig makes a pretty strong argument in favour of the relative lack of value of copyright for American screenwriters or screenwriters working in America.

And, as he pointed out, being able to hang on to copyright in other countries doesn’t seem to make those screenwriters any better off.

As for the myth of the 1000 dollars movie shot with a thousand dollars camera… that’s all well and good if anyone can tell us where to find, among other things, the one thousand dollars Tom Cruise, the one hundred dollars catering budget, the free for all soundstages, the lab which will do post on your digital masterpiece without expecting anything in return, the newspapers and tv stations which will willingly advertise your movie for free, and the thousands of cinemas that will show your film just because they like the look of your face.

You cannot get your movie to audiences without a marketing and advertising budget running into the tens of millions. Ooops, suddenly our two-thousand dollar movie has become much more expensive.

So, more than likely, that 2000 dollars masterpiece will never be seen by anybody, and what’s the point of making a film that nobody is ever going to see?

How is hanging on to copyright of a property with no commercial value going to help?

All the stories of low budget wonders that have contributed to spread the myth of the home-made movie which conquers the world, always omit to mention that, once those movies were picked up for distribution, millions were spent on polishing them, marketing them and advertising them. And copyright always ended up in the hands of the people who wrote the checks… much like copyright always ends up in the hands of the people who pay writers for their script.

Mariano,

The fact that holding or owning copyrights is an aftermath of having the legal statute to GAIN it from anyone for a price.

How valuable it becomes or stays doesn’t change the very limited or absent control writers have over them.

Now, comes in, the numerous industrial capacities you mentioned to truly exploit it for what it’s worth. To more than the writers, only.

Considering an initial contract was established by that industry in order to transfer “responsability” of profits and losses, the evaluation of potential for an X number of screenplays gives clear financial edge to the corporations that shares both partly.

Then most, if not all, copyrights are symbolic rather than a resource.

Craig,

In response to your final addendum, regarding the financial status of British writers, to present the whole picture, you should probably compare the US-UK rates for the other roles in TV and radio production - I think you’ll find that actors for British productions tend to be paid less as well. The overall pot is smaller here in the UK.

Iain:

Thanks for commenting. I’m curious. As an English writer, do you feel I presented an accurate picture of the differences between the U.S. and English situation for writers?

Craig,

I’d say that in principle your comments on what is permissible in the UK with regard to contract negotiation are correct - we have a lot more waivable rights. In practice, especially if dealing with a company that is a member of PACT (Producers’ Association for Cinema and Television), the situation isn’t quite so bleak. The rights may not be guaranteed to the same extent - that’s not to say that we still don’t enjoy those benefits though.

For cases where holding onto copyright has served the writer well, you just need to look at the case of Terry Nation who created a set of characters within an established (albeit barely) television show. Subsequently he and his estate have held the BBC hostage over the reuse of the Daleks (most recently during negotiations for the new Doctor Who series).

Granted it’s an exceptional case, but given not many writers create anything like the Daleks, it’s the case of the exceptional reward for the exceptional writer, which IMO is how it should be.

My personal feeling is that the British way of treating copyright has, historically at least, been better - but given the much lower investment in the film and television industry over here, financially you’re more likely to be better off working as a screenwriter in the US.

Craig,

Okay, I’m late to the game on this article, however…

When you write a spec and sell it, it is NOT a work for hire in the legal sense, regardless of what is written in the actual contract. U.S. Copyright law is explicit about the terms under which something is a work for hire. Also, you can terminate your copyright transfer after 35 years (and then there’s another extension to this). This was most famously done in 1999-ish with the family of one of the guys who created Superman (sorry, not enough of a comic book dude to remember his name). They terminated copyright with DC comics and resold it for, well, buttloads.

Prager:

When you write a spec and sell it, it is considered a work for hire in the legal sense.

This is per the Guild. I could ask again if you want, and maybe get a more thorough answer.

Craig:

Regardless of what the guild or the contract says, U.S. Copyright law specifically protects people from having their original material sold as a “work for hire” - even if it’s called a “work for hire” in their contract!

Work for hire is a legal determination which has to meet certain standards, i.e. something isn’t a work for hire simply because everyone involved agrees it is.

There are two basic standards: “employee” and “independent contractor.” Basically, when you’re an employee, your work is work-for-hire as long as it falls within the scope of your job. Back in the days of the studio system, writers were employees hired to write. Thus, specs at that time fell under the purview of work-for-hire. Independent contract works requires that the work be specially commissioned. For example, if CAA hires someone to write the CAA theme song, the contract can legally deem that a work-for-hire, and CAA will own the copyright on the CAA theme. Another example is selling a book adapatation to a studio. The studio is commissioning you to adapt the book. When you do a REWRITE, yours is work-for-hire.

In today’s world, when you write a spec, however, you are neither employee nor independent contractor. You are the copyright owner on your specs no matter what your contract says, and you can terminate that copyright 35 years after sale (and then go resell it or do what you wish).

Matt:

I’m going to run this by Grace and see what she says.

Okay, I got your answer, Matt.

While it’s true that work-for-hire isn’t something that can be applied at will, but rather must be a certain test, the fact is that the legal fiction is still “legal”, inasmuch as both you and the alleged employer are agreeing that it is the case.

Theoretically you could challenge it after the fact, but in essence you’d be saying that you willingly entered into a contract in bad faith, and that’s a tort in and of itself.

Therefore, while your understanding of the conditions for work-for-hire is correct (see those conditions listed in a much earlier article I wrote here), you are not correct in assuming that agreeing that something is a work for hire isn’t somehow binding or legal, when, in fact, it practically is.

In short, you’d have to argue that you and your attorney had no idea what you were doing when you agreed to assign your spec a work-for-hire status…and that is a difficult row to hoe.

Finally, if you do decide to sue over the legal fiction, be aware that there is a limitation involved, as laches will eventually apply.

I guess the conclusion here is that you’ve done a good job of explaining why the fiction is, in fact, a fiction, but you’re not taking the writer’s consent to the fiction sufficiently into account.

This discussion has been assuming the writer will get paid for his work. I recently was asked by a local producer to create a concept for a nonprofit that he wants to make a promotional film for.

I believe in the cause and wrote a treatment for a short, was invited to pitch it to the nonprofit board, and they love it. NOW.. This producer wants me to write the script as a work for hire! It would be different if he paid me. But…. barring the unlikely event of that, I am willing to write it and ‘license” it to him for this one production. Period. I want to own what I worked for — in case someone wants to do a re-make, for instance.

I came upon this site while searching for a contract template to fit my needs - and am surprised I haven’t found one yet.

Any thoughts?

This discussion has been assuming the writer will get paid for his work. I recently was asked by a local producer to create a concept for a nonprofit that he wants to make a promotional film for. I believe in the cause and wrote a treatment for a short, was invited to pitch it to the nonprofit board, and they love it. NOW.. This producer wants me to write the script as a work for hire! It would be different if he paid me. But…. barring the unlikely event of that, I am willing to write it and �license� it to him for this one production. Period. I want to own what I worked for — in case someone wants to do a re-make, for instance.

I came upon this site while searching for a contract template to fit my needs - and am surprised I haven’t found one yet.

Any thoughts?