Contents

Overview

1️⃣ What is 'Free for the Taking'?

2️⃣ Protecting Your Copyright

3️⃣ When Does Copyright Protection Start & Expire?

4️⃣ Is the Title of my Script Protected by Copyright?

5️⃣ Do I Need to Add the © Copyright Symbol + Notice to Protect my Script?

6️⃣ What if I am Paid to Write my Script?

7️⃣ Why Register my Script with the U.S. Copyright Office?

8️⃣ Why Register my Script with the Writers Guild of America (WGA)?

9️⃣ Film Credits ➲ Who is the Author & Copyright Owner for Copyright Law Purposes?

🔟 Is U.S. Copyright Law effective outside of the U.S.?

💡 What is Authentic8℠ / Genuin℠?

Overview

The book Creativity & Copyright ➲ Legal Essentials for Screenwriters & Creative Artists is a MUST read for any budding screenwriter or creative artist (or any lawyer wanting to expand their knowledge base and skills) who needs to quickly understand their legal rights (primarily in the U.S.) and successfully navigate the entertainment industry.

A quote from In the Classroom with Creativity and Copyright a blog article by John L. Geiger one of the authors of the book:

"This book is not just for screenwriters.  For every aspiring screenwriter, there is an aspiring producer who wants to work with them.  Creativity and Copyright can help guide producing students on how best to develop intellectual property, including the collaborative process of working with writers.

And for law students studying intellectual property or entertainment law, Creativity and Copyright is a backstage pass into the issues that confound their future clients most."

Try our U.S. Copyright Law ➲ Quizzes

If you think you already know what you need to know, you can test your knowledge by taking one or both of our free quizzes:

‍U.S. Copyright Law ➲ Fundamentals Quiz; and

U.S. Copyright Law ➲ Advanced Quiz (Level 2: Pro)

If you don't achieve a perfect score on both the quizzes, you could try to find the answers in the book or this blog article.

1️⃣ What is 'Free for the Taking'?

When you begin to understand and consider how much potential subject matter out there is 'Free for the Taking' you can start to think like an Industry Veteran, Producer, Entertainment Lawyer, Streaming Service or Movie Studio.

The United States Supreme Court, in Berkic v. Crichton, (9th Cir. 1985) 761 stated:

"We believe that the [writer's] argument rests on a misunderstanding of the nature of protection afforded by Copyright law. it is well established that, as a matter of law, certain forms of literary expression are not protected against copying."

Copyright does NOT Protect:

❌ Facts/Nonfiction (including works published the U.S Government and unauthorized biographies);

❌ Work that had Copyright protection, but it has expired;

❌ Ideas/Verbal Pitches;

❌ News and History;

❌ Scenes a' faire; and

❌ Fair use of copyrighted works;

Facts/nonfiction ➲ Including Unauthorized Biographies

It might come as a suprise to many, but your life story (as well as the life story of everyone else) is not protected by copyright.

Whilst in the U.S. at least, there are some legal rights that may be invoked in the event that privacy is breached (intrusion into seclusion), published lies (defamation) or if your image or likeness is commercially misappropriated via a breach of your right of publicity, etc.

"The right of publicity protects against the unauthorized use of a person's name, voice, signature, photograph, or likeness for products, merchandising or advertising.

Please note that films, plays, tv programs, books and articles are 'expressive works' protected by the 1st Amendment and are not considered products or merchandiser the purpose of rights of publicity.

In California, a right of publicity exists for all living persons and any deceased celebrities."

Cal. Civ. Code § 3344 and 3344.1.

Note however, that in California, Cal. Civ. Code §3344.1 which grants protection for deceased celebrities right of publicity expressly excludes "fictional or nonfictional entertainment'.

"So biographical film or biopics are fair—and free—game."

Outside of these limited legal rights, your life story is 'Free for the Taking'.

Your permission is not required!

Works published by the U.S. Government

Additionally, works published by the U.S. Government are in the public domain because they are expressly excluded from copyright protection.

This includes, transcripts from court proceedings, training manuals, information pamphlets, and other such pragmatic nonfiction.

Classics & Vampire Movies ➲ Expired Copyright

This helps explain why are there so many movies and remakes about classic works of literature or theatre.

Dickens, Shakespeare, even Bram Stoker's Count Dracula published in 1897 (are all examples of stories with no copyright protection).

As a general rule, any work by a deceased author first published before 1923 is in the public domain.

As the period of copyright protection has changed over time, for all other works you need to determine the copyright law that applied at the time the work was created, then do the math to determine if and when the work will enter the public domain and become 'Free for the Taking'.

Since 1998, U.S. copyright protection extends from the date of creation through the life of the author plus another 70 years. This brings the U.S. in line with copyright law protection time periods operative in the European Union since 1993.

Therefore, for these works and countless others, copyright protection expired some time ago!

No copyright protection, means no need to license the content or pay royalties.

The content is 'Free for the Taking'!

Be careful of claiming your work is based on a 'True Story'

The writer can't have it both ways. If the claim is made that the story is factual, then the writer is unable to claim copyright protection.

it is in the public domain and 'Free for the Taking' regardless of whether or not the story was actually made up or only partially true.

Be careful about pitching stories based on historical events & figures

A unique version of events in history, even if is is just a theory about what happened, is also in the public domain and 'Free for the Taking'.

Ideas are 'Free as the Air'

Copyright law does not protect ideas. Apart from the legal protection you may gain from an Non-Disclosure or Confidentiality Agreement, or an implied contract from a pitch meeting or other business context, writers also need to be careful about protecting their story ideas.

If you talk about your idea for a story in a public place, and you are overheard.

You have no protection against the eavesdropper running with your story idea.

Again, ideas are yet another category of work that is 'Free for the Taking'.

Scènes à faire

This is material that appears often enough in a particular type of work or genre that the material is truly commonplace.

Material potentially qualifying as Scènes à faire could be the plot, characters, sequence +/or setting.

An example provided in the book is as follows:

"A western with a reluctant hero, a gang of villains, a ticking clock, a bar fight, a chase, an ambush, an escape and a one-on-one final showdown is not copyright infringement.

It is simply following the conventions of the genre, and you can't copyright a convention."

Fair Use

Even if material is protected by copyright, the U.S. Copyright Act permits the public 'Fair Use' of copyrighted material, without requiring permission or compensation to the owner of the copyright.

Fair Use including purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.

in determining whether the use if fair the U.S. Copyright Act provides following non-exhaustive list of factors to be considered:

⚖️ The purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;

⚖️ The nature of the copyrighted work;

⚖️ The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

⚖️ The effect of the use upon the potential market for or value of the copyrighted work.

In Australia, the equivalent Copyright Act establishes a tighter scope of exceptions called 'Fair Dealing'.

2️⃣ Protecting Your Copyright

To put copyright protection against infringement in California into perspective:

"Research shows that in the last 25 years, only 1 out of 50 copyright infringement cases in the Ninth Circuit has resulted in a win for the writer. And it has been estimated that the average cost of a copyright dispute over a film—from filing the complaint all the way through trial by jury—is $1.5 million per party."

This background picture is sobering, but it must also be noted that not all copyright infringement disputes make it all the way to trial, with many settling at various stages under settlement agreements containing non-disclosure clauses.

What is required to claim Copyright Infringement?

In order to establish a prima facie case of copyright infringement you need to make a showing of both:

✅ Ownership; and

✅ Copying.

Proving Ownership

The advice from the book is on point.

"Bottom line: Copyright registration is a necessary prerequisite to your bringing a claim for copyright ownership in Court, but is is not enough to conclusively establish your ownership. In addition to a registration certificate, you should have a document trail of your development process, showing when and how your story was created and evolved, from idea to draft(s) to final. Save your working notes and materials. Save your various drafts. Don't delete anything."

Proving Copying

This is the hard part. You will generally never have any direct proof that your work has been copied. Instead you will need to rely upon circumstantial evidence.

"Access + Substantial Similarity = Copying.

Access is defined as an 'opportunity to view or copy another's work.'

Opportunity consists of both timing and connection or nexus."

Timing

For timing, you need to be able to show that your work was first in time, that is, it physically existed before the work you claim was created by infringing your copyright.

Connection or Nexus

To establish the connection or nexus, there are 2 common methods:

⚖️ A Chain of Events that shows a connection between your work and the work that you allege infringes your copyright; or

⚖️ Establishing that you work had already been widely disseminated to the public, and as such it would have been a simple matter for the infringer to access and copy it.

Striking Similarity

If you are unable to show connection or nexus, you may still establish a valid claim if you can show 'Striking Similarity' such as to give rise to an inference of copying.

"Striking Similarity means that the allegedly infringing work is so highly similar to your work that it could not possibly have been the result of independent creation."

Substantial Similarity

Unless you can show a Striking Similarity, the last piece of the puzzle to establish copying via circumstantial evidence is obtaining a finding that the alleged infringing work is 'Substantially Similar' to your work.

The Ninth's Cicuit's 2-prong test for 'Substantially Similarity' is summarized in the book as follows:

Extrinsic/Judge

Isolating & Analyzing Individual Elements
‍
Individual Elements 

Judge Decides

On pre-trial Motion or at Trial

Expert Witness opinions allowed to assist 

 Intrinsic/Jury

Total-concept-and-feel comparison

Work as a whole

Jury Decides

At trial only

No Expert Opinions allowed to assist

3️⃣ When Does Copyright Protection Start & Expire?

Copyright Protection Starts

"Copyright Protection starts the moment you put your words into a tangible medium.

That is, put pen to paper or hit 'save' on your laptop."

Copyright Protection Ends

Since 1998, U.S. Copyright Act protection extends from the date of creation through the life of the author plus another 70 years.

This brings the U.S. in line with copyright law protection time periods operative in the European Union since 1993.

4️⃣ Is the Title of my Script Protected by Copyright?

Copyright does not protect titles.

"The Courts have concluded that mere titles contain too little 'expression' for protection.

Similarly, copyright does not protect names, short phrases, or slogans."

5️⃣ Do I Need to Add the © Copyright Symbol + Notice to Protect my Script?

After March 1, 1989 the use of a Copyright Symbol is no longer required to invoke copyright protection.

Nevertheless, for most creative works standard legal advice is yes, definitely continue to add the © Copyright Symbol + Notice to your work as it cannot hurt to place the world on notice regarding your legal rights in the work, and to provide evidence of the first date of publication.

However, when it comes to professional scripts, the authors of the book have noticed that:

"When scripts are passed around in the film industry amongst managers, agents, producers, directors, and actors they never have a copyright notice.

It just isn't done.

Industry professionals know that scripts are protected by copyright.

A copyright notice comes off as a little too precious, a little too paranoid. A little too amateurish.

Don't lose credibility with your reader with your spec's cover page. Be a pro. Go forth confidently without a copyright notice."

6️⃣ What if I am Paid to Write my Script?

What is a 'Work Made for Hire'?

"If someone is paying you to write the script, then it is a 'work-for-hire' situation.

This means that the paying party is the 'author' and copyright owner, not you, the writer."

7️⃣ Why Register my Script with the U.S. Copyright Office?

Whilst you are not under any obligation to register your script with the U.S. Copyright Office it is strongly recommended for the following reasons:

⚖️ Registration is required before you can maintain a lawsuit against an infringer;

⚖️ If your registration is made before publication or within 5 years of publication, your name on the registration certificate is accepted by the Court as prima facie evidence that you are the copyright holder;

⚖️ If your registration is made within 3 months of publication or before any infringement, then you are entitled to statutory damages as well as attorney fees in litigation against an alleged infringer.

"This right to attorney's fees is a tremendous strategic advantage, and in of itself is a compelling reason to register your work with the U.S. Copyright Office."

⚖️ There is no reason not to register. Registration is cheap, easy and fast.

"After you are done with all your rewrites, and before you start submitting your script around town, simply register it with the U.S. Copyright Office."

8️⃣ Why Register my Script with the Writers Guild of America (WGA)?

Whilst you are not under any obligation to register your script with the WGA it is recommended for the following reasons:

✅ The WGA can assist with both hard copy and electronic submissions, and will assist you to independently prove that your script existed at the date it was registered.

✅ The WGA will retain the deposited script for 5 years (with an option for a further 5 year extension) and if called upon, will appear in any evidential hearing (official guild action, arbitration, or trial) with the registered script and provide authentication that the script existed in deposited form as of the date of registration.

9️⃣ Film Credits ➲ Who is the Author & Copyright Owner for Copyright Law Purposes?

If your script gets made into a movie or other kind of film, by the time the film is released and the film credits are displayed the writer is generally no longer legally the 'Author'.

This is because the writer will have sold and signed away their legal rights to the work.

For U.S. Copyright Law purposes, the studio or the distributor will generally be the 'Author' of the work.

The writer gets 'written by' credit, but not an authorship designation.

Trivia Note: : The term 'writer' is not mentioned anywhere in the U.S. Copyright Act.

🔟 Is U.S. Copyright Law effective outside of the U.S.?

The technical legal answer is no, by default the U.S. Copyright Act does not have any legally binding effect outside of the United States.

However, the U.S. is a signatory to the Berne Convention which extends some level of Copyright Protection (local laws of the member country, not the U.S. Copyright Act) to circa 140 other member countries.

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Further Reading:

What Filmmakers Don’t Know About Copyright Can Kill Their Careers a blog article by Howard Suber

In the Classroom with Creativity and Copyright a blog article by John L. Geiger

Monkeys, [AI] & other Famous U.S. Copyright Law Claims!

Intellectual Property Law ➲ Smart List

Social Sharing Image: Photo courtesy of Roberto Nickson on Unsplash

Credits: This blog article was written by James D. Ford Esq., GAICD CIPP/US CC | Attorney-at-Law, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Important Notice:

This blog article is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.