Q&A: March 2005 Archives

A: Hell no. But you can buy it back.

First, a little background on the copyright issues involved.

When we sell our screenplays to the companies, we always do so on a work-made-for-hire basis. What’s a work made for hire?

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as *a part of a motion picture or other audiovisual work*, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

We’re employees. Essentially, the company has hired us to create the screenplay (which is used as a contribution to a motion picture), and as such, they are the actual authors of the work. They have “caused it to be created.”

Ahem.

I say “ahem” not just because my kid’s got me sick again and I’m phlegmy (explains the lack of a new article for a few days now, sorry…), but also because original screenplays fall under works-made-for-hire as well. Even if you write a spec script (which you’ve certainly caused to be created), the companies purchase it as a work-made-for-hire. They are the authors of your screenplay once you agree that you prepared it for them.

However, the WGA has managed over the years to negotiate certain rights on behalf of us, the non-authors of our scripts. Those rights carved out certain privileges normally preserved for the legal authors (since we’re the de facto authors but not the de jure authors). For instance, we have the right to attribution (credit) if we meet the standards we determine.

One of the rights we’ve negotiated is the right to reacquire our work. The idea is that if you sell original literary material to the Company (and that essentially means a screenplay, by either assignment or spec, that’s not based on underlying material like a play, novel or prior film) and the Company fails to exploit the property (make a movie out of it), you get a chance to get it back.

By “get”, I mean “buy”. Here are the basic rules.

The companies get five years in which to show that they are going to exploit the screenplay. The five year clock starts ticking either on the date you sell the material or the last date of your work on the project…whichever is later.

After that five years, if the Company isn’t “actively developing” the script, you have a window in which to reacquire it, or buy it back. How is “active development” defined? Basically, a writer must be currently employed on the project or a director or actor needs to be not only attached, but pay-or-play (i.e. guaranteed payment for their services whether the film is produced or not).

So, if five years have gone by and the script has fallen out of active development, you now have exactly two years in which to buy the script back. Here’s the good news. Unlike buying a project out of turnaround, in which one studio negotiates to purchase a “dead” script from another studio, the company doesn’t have an option. If you’re in the two year period, they must sell you the script back.

Here’s the bad news. You’re not getting back all the subsequent drafts that other writers may have done. You’re only getting your draft back (okay, maybe that’s no big deal). You have to purchase the script back for the exact amount you were paid for all of your writing services (ouch), and furthermore, if you set the script up somewhere else (and why else would you be doing this?), the new company is obligated to pay all of the other costs back to the company.

Those other costs most notably include the fees for all the other writers the first company hired to rewrite you, as well as all of the pension and health contributions the first company made for all of those writers. The only thing that mitigates that little clause is that those huge bills only come due if the new company actually produces the film. In fact, they’re due on the first day of principle photography.

In short, if you’ve written an original script, you can get it back, but you have to mark your calendar five years into the future, at which point you’ll have two years to convince another studio to pony up the cash. It’s not perfect, but it’s better than mothballs. Improving our reacquisition terms is a perennial negotiations concern. I’m hoping we can advance that ball forwards a bit in 2007.