Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: I have an idea for a book that I want to write that I want to submit to a book publisher. However, I don't want the book publisher to steal the idea and have someone else write the book. How can I protect myself?
Answer: Ideas are not copyrightable under any circumstances. The only way to protect an idea would be through a confidentiality or non-disclosure agreement with the person you submit the idea to. This would be a contract, which would require the other party not to reveal your idea, and to compensate you if they exploit your idea.
Question: I have developed the first draft of a screenplay based on real life and historical materials more than 50 years old. Other people have also developed their interpretations, which have been published as books or plays. I have claimed copyright for my interpretation in the work. Would I need to worry about other authors claiming infringement of copyright in their work, which is based on the same primary sources?
Answer: One cannot copyright historical facts. You may borrow these facts from other sources, even copyrighted material, but you cannot borrow another writer's expression (i.e., the manner and approach of the other author). So don't borrow more than a few short quotes from another writer's work, and don't closely paraphrase another's work. Create your own work, tell it in your own words, and you will have a copyright to it. Of course, you will not be able to prevent other writers from borrowing facts from your work.
Question: I'm currently at the stage of getting a script viewed by Tarantino's agent and this is the first time I have had a script read in the industry. I was told first to send a synopsis then in return I would get a standard release form, which I should fill out and send, back with the script. What is the best way to cover myself against having the idea stolen?
Answer: Register the work with the Writers Guild or U.S. Copyright Office. Submit it to the agent with a cover letter saying you are submitting it with the expectation of being paid reasonable and customary compensation if the agent or one of his clients wants to exploit it. Also, mention that you are submitting it in confidence and it should not be disseminated to others without your prior permission.
Question: What process deals with copyright for screenplay based on a published novel? In this case, a Doubleday 1987 biography embellished by the author has been selected and reworked into an 80-page treatment. No sale in sight, but I realize that I am naive regarding copyright laws and offering a marketable piece.
Answer: If the original work is copyrighted, you cannot prepare a derivative work without the copyright owner's permission (unless the work has gone into the public domain). In other words, you cannot write and exploit a screenplay based on someone else's novel unless you have obtained from them the right to make a movie based on it (the movie rights). If you do have the right to adapt the book into a film, you will be able to secure the copyright to your screenplay and subsequent motion picture. You may choose to register your script with the Copyright Office to obtain added benefits.
Question: I am wanting to make feature length video composition consisting entirely of not more than two minute video clips of anything from movies to music videos for sale to dance clubs to play on their big screen TV's in the background. What does the law say about using movie clips (or any video production with copyright laws applying) to show to the public for profit?
Answer: Movie clips are copyrightable, and you cannot use them without the permission of the owners. The exceptions are if the copyright on the clip has expired, or if the use is considered a "fair use." While promo clips are often given away by studios for publicity purposes to promote upcoming releases, you would be well advised to get permission for whatever you want to use.
Question: When registering an idea for a motion picture with the WGA, how much of the plot needs to be revealed to assure the writer protection?
Answer: Ideas are not protectable under copyright law. It is only the embellishment upon the idea that is protected. Registering with the Writers Guild has no effect on copyright protection; it merely creates some evidence that on a certain date the writer wrote certain material. This is very beneficial if there is a plagiarism dispute because it's good evidence as to who came up with the material first. To get copyright protection, you need to embellish upon the idea, and the more you embellish upon the idea, the more protection you'll get. You should write out at least a treatment, if not a screenplay, and register it with the Copyright Office before you show it to third parties. See my article on "Protecting Your Stories" on my website for additional insight.
Question: I've written an Indiana Jones script, which I've been using as a writing sample here in my home city of Toronto. The script has received some terrific feedback from the local film community. This feedback has started me wondering what chance I might have submitting my Indy script as a writing sample to Amblin/Lucasfilm/Dreamworks. I understand there are legal considerations, but can you kindly elaborate on those considerations.
Answer: Creating a work that is derivative of the "Indiana Jones" character is likely to be copyright infringement unless it is considered a fair use or a parody. However, assuming you don't exploit your script by publishing it, or creating a movie based upon it, from a practical point of view, you are unlikely to find yourself the defendant in a copyright infringement lawsuit.
Question: A German company placed an ad in Variety asking for log lines. My agent sent them my log line, they asked for the script—but only if it was submitted to them on computer disk ("to make it easy to copy and so it will work with our translation software so we can read the script in German"). I've never heard of any software that can translate a script written in English into German. Does the fact that the (WGA-registered but not copyrighted) script is on computer disk make it any less 'protected' in a legal sense under German or American or International Law? Would you be suspicious/cautious under these circumstances?
Answer: I understand that there is software that can translate words from one language to another. I don't know how accurately this can be performed. Of course, if someone is really intent on ripping off your script, they can simply re-type it or scan it into digital form. You should register your script with the Copyright Office before you disclose it to anyone. Germany is a signatory to several international copyright treaties, which provide that German law will protect American authors just like American law protects German authors.
Question: I am planning to make a computer-animated movie in the next few months. I have all of the character designs, and the script is being completed. What steps do I need to take to protect myself from lawsuits for having characters that are similar to existing characters? To my knowledge, all of my characters are original, but I may be unaware of previous productions.
Answer: If the characters are original to you, not copied from another person's work, either consciously or inadvertently, you own the copyright to them even if you were not the first to create them. Moreover, the fact that one author invents Superman does not prevent another author from creating Spiderman. But if your character is very similar to an existing character, you may be vulnerable to a suit for copyright infringement. Consult a lawyer before you go into production.
Question: Can you tell me what the ruling is on copyrighting modification to a song previously written? I have changed several things in the song and would like to resubmit it under my own copyright. The song was never released in the US.
Answer: Copyright does not require an author to publish his material. So it doesn't matter whether a song has been released in the United States. If it's copyrighted, you cannot adapt it or change it without permission of the copyright owner. Assuming you have permission to create a derivative work, your copyright would be limited to the changes made to the work, would not give you any interest in the underlying work.
Question: I have a big problem; I pitched my screenplay on the net and got an answer from someone in Canada. He told me he was interested and that he works for an independent production company. Could he see the script? I replied and sent it along, asking to e-mail some production credits of his production company as well. The guy didn't do that. But the script was already on its way. It is registered with the WGA, sure, but yet I fear he's playing foul, for he didn't send a "Thanks-I-got-it" message or anything else. Could he cheat me? How? Am I paranoid? All I got from this man is an email address, an anonymous P.O. Box and his first name.
Answer: By registering your work with the Writers Guild, you have created some great evidence in the event of a plagiarism dispute. If the recipient of your screenplay attempts to rip you off without obtaining the rights to your screenplay, you will be able to get a declaration from the Writers Guild stating that on a certain date you sent in this screenplay. That's very persuasive evidence in the event of a plagiarism dispute. Alternatively, you could have registered the work with the Copyright Office, which accomplishes the same thing and also entitles you to additional benefits, such as reimbursement of attorney fees. Since it only costs $30 to register your work with the copyright office, and filling out a simple two-page form, I recommend that you do it.
Question: I am interested in constructing a database product for the entertainment industry. I have developed an automated process for constructing the database, however, it requires copyrighted material as input. If I purchase a copy of the copyrighted material, may I use it to construct the database? I should note that entries in the database will be only keywords or short phrase-like elements, nothing larger. Will this process infringe on the copyrights? Also, if I can legally construct this database, may I then copyright it? Finally, do you think I could patent the database construction process?
Answer: Facts, data, ideas, and concepts are not copyrightable. It is the organization or arrangement of this material that can entitle someone to a copyright. Words and short phrases are also not copyrightable. You are free to take from copyrighted materials elements that are not copyrightable. In other words, from a newspaper, you can withdraw facts. This would not infringe the copyright that the journalist would have in his or her article. In regard to processes, these are not copyrightable but can be patented.
Question: What are the copyright laws involved in public domain material? Also, what exactly is public domain material? I've found many definitions of it but what qualifies as public domain. If a film still or other image is 50 or more years old, is it public domain? If the image is for a product like a CD-ROM that will be sold, do we need to get the rights to any original material such as film stills or video clips that we want to use?
Answer: Public domain, for copyright purposes, is anything that is not copyrighted. Determining what is in the public domain and what is copyrighted can be difficult because the rules have changed. Since 1998, copyright lasts the lifetime of the author plus 70 years. For a more comprehensive discussion of copyright law in regard to photos and film clips, see my article on content licensing on my web page: http://www.marklitwak.com
Question: I recently completed a very loose adaptation of a non-fiction book and discovered the rights to that book were bought by a major studio last year. Could you please tell me how long they own these rights? Can I approach them with my screenplay, to see if they are interested, without getting into legal trouble? What do you suggest? Thanks for your help on this.
Answer: Authors of non-fiction books do not have any rights to the facts and historical information in their books. Consequently, if your screenplay is simply about a historical incident and you've drawn facts from this book but you haven't used the author's approach, organization or any verbatim text, you have probably not infringed his copyright. If you have used his expression in your screenplay, you will need to obtain a license from him or whoever owns the rights. If the rights were bought outright by the major studio, then they may own them in perpetuity. If they took an option, then the option would last one to three years, in general, and if they don't exercise it, the rights would remain with the author.
Question: On a spec script I am writing I have a main character that is a flight attendant on a major commercial airline. My question: Is it okay to use an actual name of a commercial airline e.g., Continental? Or should I make up a fictitious name? I realize that, if I use an actual name, the name would be changed if produced, but I was unsure if it was acceptable in a spec script to use an actual name or if the name should be fictitious from the spec script on. What is the industry standard way of handling it? I appreciate your advice.
Answer: Under the First Amendment, you can write about other people assuming you don't defame them or invade their privacy. Depending upon how you portray this airline, you may or may not infringe its rights. Simply mentioning its name by itself is not necessarily actionable. As far as the script goes, I would put in a fictional name for the airline. Persons reading the script want to evaluate the story content. The names of the characters or companies are irrelevant.
Question: Obviously, no one wants to put any dates on a script so it remains current. If I choose to copyright a script, must the copyright symbol and date of copyright appear on the script or can a script be copyrighted but no date be printed? Obviously I would like protection afforded by a copyright as well as Guild registration, but I want no dates on my screenplays. Your advice would be greatly appreciated.
Answer: As of 1978, copyright begins from the moment of creation. You are no longer required to put a copyright notice on your work or the date of the copyright. You are also not required to register your copyright. However, it is a good idea to put a copyright notice on your work because it puts everyone on notice that this is copyrighted material and prevents someone from claiming that they innocently infringed your work. A willful infringer is liable for greater damages than an innocent infringer. Whenever you make a revision or a change to your script, you could re-register it and your new copyright would cover the new material. In the event of a plagiarism dispute, it may be in your interest to have a copyright date as early as possible. That's because when two people claim copyright to the same work, the person who can prove he created the work first will be presumed to be the copyright author. Thus, if you created the work in 1965 but put on your script that you had created it in 1995, in the event of litigation, you might find that incorrect information used against you.
Question: I recently asked a collector's bookstore in California to initiate a search for an autobiography written about an outstanding athlete. I believe the book to have been published in 1946. The bookstore checked the title with their primary suppliers and the book was not in their catalog. What if the original publisher no longer exists and the writer has died—how do I obtain the rights to the book? Any advice would be highly welcome.
Answer: Copyright to a book does not necessarily expire just because it is out of print. Copyright is inheritable and the writer's heirs may well have inherited his or her copyright. Copyright could also have been assigned to another party. You should do a copyright search through the Library of Congress or through one of the various search agencies such as Thompson & Thompson or Dennis Angel.
Question: A couple of rights questions: You said earlier "Authors of non-fiction books do not have any rights to the facts and historical information in their books." My understanding was that if the facts were publicly known and published you are correct, but that if the facts are taken from a privileged source the rights must be obtained from that source. For example, copyrighted scandal sheet reports that the private diaries of Jane Smith reveal Doe had an affair with her and that he secretly actually walked on water when he was once high on LSD and 1000 other unknown facts. I thought you would have to obtain rights from Jane Doe or the copyright holder of her book (since the facts appear no where else) to use these facts. No?
One more: You pitch a story to a studio: Two headed monster hijacks a plane and crashes it into the center of Rome setting a fire that destroys the Vatican. The studio rejects your pitch (or screenplay) but produces a movie in which these same events take place. No characters, story elements or other facts are similar to your story or script. Can they be sued for infringement?
Answer: Historical facts and information are not copyrightable under any circumstances. Of course, the way a particular author tells history can be protected as an expression of that author. Moreover, publishing privileged or private information could expose you to liability for breach of a confidentiality agreement or for unlawfully exposing a trade secret. But, facts are not copyrightable.
In regard to pitching to a studio and having your story ripped off, while you might not have a copyright infringement case, because all that was taken was an idea, you could well have a case for breach of implied or oral contract. There are a number of cases that have found liability in such a situation. The key question is whether or not there was an understanding by the parties that you would receive compensation for your contribution or whether your pitch was a gift.
Question: (1) I wrote a screenplay for a "Star Wars" sequel. Do I have the right to market it? Shall I change the names of the original characters? (2) Is Library of Congress [copyright] registration enough or I also need to register with the WGA? (3) Will Lucasfilm read it—I mean do they legally have possibility to read and consider it? (4) How can I order your last book?
Answer: (1) You cannot make a derivative work based on "Star Wars" without the copyright owner of "Star Wars" giving you permission. A sequel is a derivative work. Consequently, your work, if unauthorized, is copyright infringement. Changing the names of the characters does not necessarily protect you, as the copyright extends to more than just the characters. (2) Since you do not have the right to create a derivative work, registering with the Library of Congress or with the Writers Guild will not protect you. (3) Lucasfilm has no obligation to read your material or consider it. (4) You can order my book through most bookstores, from my website (www.marklitwak.com) or you can call Samuel French Bookstore at (323) 876-0570 to order it.
Question: Once one has a script registered with the WGA and the U.S. Copyright Office and later makes a title change, is it then necessary to resubmit the revised script? Although I understand you can't get copyright on a title, only under rare circumstances—like the remake of "The Jackal".
Answer: It is not necessary to re-register a script if the only change is the title. The copyright office will accept an application for Supplementary Registration, which will accomplish this purpose. The form for supplementary registration is Form CA. The information in the Supplementary Registration does not replace that contained in the original registration, but rather augments it. As you noted, Copyright Law does not protect titles. Titles can sometimes be protected under the law of unfair competition and trademark infringement. Moreover, there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau. The MPAA registration bureau can be reached at: (818) 995-6600.
Question: Suppose, if you will, that a protagonist in a book was subjected to a specific illness and from that weakness he became needful or dependent upon a drug that both strengthened him but made him evil. I am not the author of that book but have considered penning a screenplay based upon it. My attempts to contact the author have been unsuccessful. If I was to markedly change the plot and characters and their likeness but retained the two fundamental, combined elements, that is, the weak protagonist and his drug, how do you think the courts would rule if an infringement suit was introduced? As well, what are the legal considerations and qualifications for "inspired by"?
Answer: Copyright protects the expression of the author, but does not protect underlying concepts, ideas, facts, or historical incidents. If you are simply borrowing facts from another copyrighted work, then you are probably not infringing the source's copyright. In other words, what copyright law protects is the embellishment upon the basic concept or idea. It is how a particular author tells the story. Ten authors could write biographies about George Washington, but this would not prevent an eleventh author from using the facts in the previous volumes as long as he expresses the story in his own words. It is sometimes difficult, however, to determine whether one has borrowed fact or concept or more. Only after your work is complete, can an experienced entertainment lawyer give you his/her opinion. Even then you might fall in a gray area.
Question: A friend and I want to do an adaptation of a book we know to be in the public domain (let's say it was Moby Dick). However, a relative of the author says that they have copyrighted the author's name. We take this to mean we could say "Moby Dick, based on the novel by Herman Melville," but we could not say "Herman Melville's Moby Dick." Does this sound like the correct read to you? The relative was imprecise about the implications of the copyrighting. We do not want to burden the project with additional participants unless we need to, so we want to see if we can proceed without the relative's participation.
Answer: Names and titles are not copyrightable; only expressions of an author are. Names can sometimes be protected under trademark law, however, even if the book is in the public domain. I do not see a problem in the realm of copyright law attributing it to the real author. Public domain material is available to anyone in the public to use. However, if you significantly change the story, it may be a form of misrepresentation and/or unfair competition to represent that your material is from the original author when it is not.
Question: A relative of an author of a book in the public domain said that they copyrighted the author's name. Now we hear that the relative actually trademarked the name, not copyrighted it. Could you tell me the implications of this? Can I write a screenplay and use this trademarked name, say like "Herman Melville's Moby Dick"?
Answer: Trademarks, unlike copyrights, can last indefinitely (e.g. Coca Cola) provided the mark is used to designate and distinguish one product from another. If the mark is abandoned, the trademark is lost. My question is this, is the estate actively marketing a series of books under this author's name? Also, I would question whether this is a valid mark because it appears to be a descriptive term. If the estate is claiming the name as a mark, conduct a trademark search or ask the estate to show you a copy of their trademark certificate to see if the Trademark Office thought this was a valid mark. Of course, that doesn't mean it can't be contested. And, I agree with you that you could say "Moby Dick, based on the novel by Herman Melville."
Question: Thanks for your time in answering these questions. I've learned a lot here. But haven't seen an answer to this: I am interested in producing a biopic of someone who lived in the 1800's. There are several biographies in print about the subject. My question is - do I have to acquire rights to each of them in order to adapt the story to a screenplay. If I choose the bio I like best, obtain the rights and use that slant, how can I protect myself from the other authors claiming I used their material?
Answer: It is not important when the subject lived, but whether the biographies about him are still protected under copyright law. An author in 1996 could write a biography about a person from the Eighteenth Century. Such a biography would be protected under the copyright laws. Current American copyright law provides for a copyright for the lifetime of an author plus 50 years. The law was changed effective 1978. Generally, a work more than 75 years old should be in the public domain, and some newer works may also be in the public domain. Of course, if all you borrow from the works are historical facts, ideas and other uncopyrightable matter, you don't need to obtain any rights. You will only need the author's permission if you use his expression (his approach to the material), the way he tells the story.
Question: My partners and I recently came up with an idea for a TV series that we would like to develop. Part of the angle of the show (and potential problem) is that we would like each episode to be written by non-union, non-professional writers. We would basically be soliciting scripts from the average American (a new writer for every episode). Our writing staff would then re-work the scripts if necessary to prepare them for shooting. Before we start pitching this idea to anyone, we need to know if it's legal to use non-union writers for TV.
Answer: You are under no obligation to become a signatory to the Writers Guild, or any other union. Keep in mind, however, that most experienced and talented screenwriters are members of the Writers Guild. The work product by non-professional writers may not be very good.
Question: I was about 1/3 of the way through my current screenplay when I decided I needed some additional research to add that extra touch of realism to my characters. To my surprise, one of my earlier scenes is eerily similar to a scene in the book (non-fiction) I purchased for the research. The setting is similar, the events surrounding the characters are similar and one of the characters is very similar, though has a different name. My question is, do I need to change my scene? If so, to what extent?
Answer: Assuming you came up with your material independently from the non-fiction book that you purchased, there would not be any legal grounds against you. There are certain requirements for copyright such as originality, and that the work is in a tangible medium of expression, but there is no requirement for you to be the first person to create it. In other words, if two people independently conceive the same story, each would own a copyright to their own work. The person who created the story first would be presumed to be the copyright author, but if it can be shown that the person who came up with the subsequent work did not rely on, or have access to the original, then the second work would not infringe the first. However, if the two works are very similar or identical, it would be suspicious, to say the least.
Since you have read a non-fiction book, you should be aware that the copyright owner of a non-fiction work has much less control over the material than someone who writes a purely fictional work. All historical incidents, for example, are in the public domain and are available to you just as they were available to the book's author. If you think there is a potential infringement claim against you, it would be wise to have an experienced entertainment lawyer review your script and the book before you go into production.
Question: I am currently releasing a pilot for a new television show to all of the major sports networks in North America. One has demanded a signed "idea submission form" which states that the network may have in the past or future received similar or exactly the same idea as mine, and that they may use that similar or exact idea with no compensation to me. The form however warrants that I am the sole "owner" of the idea. Is this something to be concerned about and if so, how can I protect my idea from being stolen from this or any network?
Answer: This is a submission release often used when studios, and television networks accept material from people "outside the industry." Generally, it is not required if your material is submitted through an agent, or an entertainment attorney, or if you have a personal relationship with the person to whom you are submitting it. Essentially, the network is concerned that you might be setting them up for a potential lawsuit for plagiarism. They are concerned that if you submit to them a project that is similar to one they are already developing, you may then have a claim against them. By signing this form, they make it more difficult for you to go after them because you are acknowledging that there is no implied agreement between the parties for you to be compensated. The form also attempts to limit your damages. This form will make it difficult for you to win a case in the event that the network negligently infringes your work. However, it will not be enforceable against you if they intentionally infringe your work. That is because such disclaimers, as a matter of public policy, are not enforceable to protect fraudulent or intentionally wrongful behavior.
Question: I have written jingles to portions of published songs. How do I find out if I can submit these to advertisers? Where and how would I get information for public domain?
Answer: If you are the author of jingles, then presumably you own the copyright to them. You can submit these to advertisers or to anyone else you like. I don't understand why you need information about what is in the public domain.
Question: I found master recording tapes in my garage recently, untouched since 1977. The tapes are a live music performance at a state college, by a band that I belonged to. The bandleader no longer lives in the USA, the music was all his compositions, he taught all of us in the band how to play the instruments (African) and he put the band together. I do not remember how I ended up with the tapes but I have had them since the performance. I doubt he or any of the band members remember the performance was recorded. The band did not pay for the recording—college recording students did it. The band was very popular in the northwest for 4-5 years, then broke-up. The band was never under any contract and I do not believe any of the songs were copyrighted. I can reach the bandleader if I want to, he is a fairly well known musician in the USA and internationally. I had the tapes transferred to master CD's; the quality is excellent and worthy of a commercial release. My questions: Who owns the tapes? Can I (should I) copyright the performance? What should be considered with regards to a possible commercial release?
Answer: When the music was created, a copyright came into existence. You are confused between the difference between registering a copyright, and creating a copyright. Registration is optional although it is advisable because it gives you extra protection. So your music was copyrighted when it was created. Presumably the band owns the copyright. It does not matter where the band members now live. It does not matter that no one paid for the recording, nor that college students did it. It does not matter that the band was not under contract to a third party.
Copyright law in the United States was changed in 1976, effective 1978. Assuming the prior law applies, the copyright would last for 28 years, and could then be renewed for an additional 28-year term (plus 19 more years if the work was in the second term when the law changed). If the copyright came into existence in 1977, it would last at least until 2005, at which time it would expire if not renewed. For works created since 1978, copyright lasts for the lifetime of the author, plus 70 years.
Question: A rather interesting tactic has come to my attention through another screenwriting message board. The poster suggested writing your screenplay as a novel first, as a means of securing more comprehensive rights to your story. Even if the novel isn't yet published, you would own the rights to other adaptations of your story, even if you sold the "film rights" in the form of your screenplay. Does this sound like something worth the tremendous effort involved?
Answer: No. Whether you create a novel or a screenplay, assuming you are not in the employ of someone else, you would own the copyright to the work and any derivative works. If you wrote a screenplay, you would control any derivative works, such as a book. Conversely, if you wrote a book first, you would control any derivative works, such as a screenplay.
Question: I have submitted a written idea for a show to a producer who is now shopping it to a network. We have no up-front agreement on compensation for the pitch because I had assumed that copyright law would be protective. Is that correct?
Answer: Copyright law does not protect ideas. Ideas are inherently not copyrightable, nor can themes, premises, concepts or words be copyrighted. In order to be protected, you need to create a work of authorship. This is the embellishment upon the idea. The more you embellish, the more you can protect your work under copyright law. While you cannot be protected under copyright law for theft of ideas, you can be protected under of contract law. For an in depth discussion of how to protect your interests by contract, see the article I have written on this topic.
Question: I am hoping you can help with an issue that seems to be a little different from those listed above. We are interested in using three two-minute clips from different films to gauge subject reaction in a research project. This is in an academic setting and does not have any profit motive whatsoever. Since the clips are being used for educational/research purposes, do we need to contact someone about using the clips, or would we be exempt from this. Journal articles, for example, can be copied once if they are being used for educational purposes. If we do need to contact someone, who do we contact, writers, film company, both, neither? Thanks for your help on this.
Answer: This may well be a fair use under copyright law. Certainly the fact that it is being done in an educational setting would weigh in its favor. The fact that your use is not competing against the owners of the clips would also weigh in your favor. The problem with the fair use doctrine is that it is a big gray area. Photocopying a Newsweek article for school use on one occasion would clearly be a fair use. But if a schoolteacher photocopied an entire textbook and handed it out to her students, it would not be a fair use. Unfortunately, many situations fall in between these extremes, and it can be hard to predict how the court will perceive the facts and weigh the factors in determining fair use. The best that you can hope for is to see if there are any precedents with facts similar to yours. Of course, if you are in a different jurisdiction, that precedent may not apply.
Question: In 1977, my husband recorded an album of 10 songs. The album was self-titled and only 500 were pressed. To his knowledge all of the songs were registered with the U.S. Copyright Office, however, he is unable to find any of the paperwork. It has recently come to our attention that the album is now a collectors' item worth several hundred dollars for an original, "original" being the key word. We have also found out via friends and an online catalog that there is a "reissue" being sold. Needless to say, he has never been contacted by anyone or given permission to anyone to reissue this album. It seems to us that there has been an infringement of the Copyright Law, and that he should be receiving some sort of compensation for the sales of this "reissued" album. I e-mailed one of the catalogs in question and asked for a list of the song titles to be sure it was his album they had listed in the catalog, and received a reply listing all of his song titles along with the following: 1976-1977 Reissue. Guinn Records K.C. MO /////180 Gram Vinyl. All of this information confirmed that it is his material being sold. Is there anything we can do or is there any way for him to collect what we feel is due him?
Answer: You can do a copyright search to determine whether, in fact, you did register the copyright. Then you can order a copy of your registration from the copyright office to replace the copy you may have lost. Assuming you registered your copyright in a timely manner, you may be entitled to statutory damages, injunctive relief and reimbursement of attorney fees from anyone who has infringed your copyright.
Question: Thank you for being such a great resource. I am in the process of creating an animated short to be entered into many film festivals and also pitched as a TV series. How would I go about protecting the name and look of my main character before my short is released? Are characters trademarkable or will a copyright of an image of the character protect well enough?
Answer: After you complete your script, and again after you complete your film, you should register each with the Copyright Office, using Form PA. This will register your copyright to your work. Copyright Law can, to some extent, protect characters that are sufficiently defined. However, this does not prevent others from creating characters with similar personality traits. Just because you wrote a detective story featuring Detective Sam Spade, it does not mean that you can thereafter prevent other people from writing stories that feature a hard-boiled private eye. As far as trade marking characters, if the character is used as a mark to identify the source of a product, then trademark and unfair competition law may apply. A trademark or service mark is a logo or name used to distinguish one source of product from another. Trademarks such as McDonalds, Apple, and Xerox distinguish the source of a product from those of other manufacturers. A character, which is represented visually, such as a cartoon character, will receive greater protection under Copyright law because of its visual representation.
Question: I've submitted a screenplay to a major production company, but the "release" form they required me to sign had a clause stating that, essentially, I could not submit the script to anyone else unless I gave them 30 days written notice of my intention to do so. Is this a legal clause? (In Australia, this clause would be invalid - it's in restraint of trade.)
Answer: I am not aware of any provision of California law that specifically prevents the use of a clause restricting you from submitting the script to others. I think this clause is onerous, and you should not agree to it. It is an interesting idea that such a clause might be a restraint of trade. It is against the public policy of California to enforce employment contracts that have restrictive covenants. Perhaps by analogy, the clause you describe would be unenforceable.
Question: I am writing a screenwriting guide and would like to use several award-winning films as samples. If I do not quote from the films, but rather only discuss their structure, is it "Fair Use?"
Answer: In my opinion, if you do not extensively quote from the films, but merely critique the stories, you would be protected under the Fair Use Doctrine.
Question: After copyrighting a script, I submitted it to a famous person's manager, who opened, read, and returned the material. A year later a movie was released with the exact plot line, characters, and verbatim dialogue. The only thing changed was the female lead was switched for the male star that directed the film. With no money to litigate, what can a person do?
Answer: If your case is as strong as you claim, you may be able to obtain an attorney to take the case on a contingent fee basis. The key here is the verbatim dialog. If they closely followed your dialog at length, then it is unlikely they created it on their own. In this case, I think you may have a strong suit for copyright infringement, and perhaps breach of contract.
Question: How can writers without residency in the U.S. protect their scripts when trying to sell them in the US?
Answer: A script can be protected by contract or under copyright law. To protect by contract, you need to have the party you are submitting the work to sign an agreement providing that they will compensate the author if they want to use the work. Moreover, the agreement should include a confidentiality clause, which would provide that the recipient not disclose the work to other parties.
To protect the work under U.S. copyright law, the author can register the work with the U.S. Copyright Office. This can be done even if the author doesn't reside in the United States, and is not a U.S. national. By registering one's work with the Copyright Office you establish a public record of your copyright claim, and make yourself eligible for statutory damages and other benefits in the event of an infringement.
Note that there are some special qualifications for a foreign author to register a work with the U.S. Copyright Office. The qualifications are reprinted below. Circular 38a,"International Copyright Relations of the United States" has additional details on treaty countries.
From the Copyright Website:
COPYRIGHT AND NATIONAL ORIGIN OF THE WORK
Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author
Published works are eligible for copyright protection in the United States if any one of the following conditions is met:
* On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party (i.e., a country or intergovernmental organization other than the United States that is a party to an international agreement), or is a stateless person wherever that person may be domiciled; or
* The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
* The work is a sound recording that was first fixed in a treaty party; or
* The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
* The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
* The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA). Request Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT)," for further information.
* The work comes within the scope of a Presidential proclamation.Any source
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