What is the best protection against the Copyright Bogeyman?

As well as working for duly noted^®, I’m a writer/filmmaker… well, when I get the chance. And when, in my early venturings into the filmmaking biz, I first discovered the Shooting People Filmmakers Network ooh… it must be back in 1998, I considered it a godsend. A forum for established pros and newbies to share information, contacts and advice on how to achieve in, as well as avoid the pitfalls of, the film industry, it is also a way to find crew for your next project, and even show your films through the likes of its Mobile Cinema. Its range of services are growing all the time, such that SP has become the essential UK forum for all things Indie film. This explains why – as I’m taking an all too necessary hiatus from movie-making right now – I still regularly dip my toes into the daily bulletins to get a feel for what’s swimming in the waters.

It’s no surprise to me then, SP veteran that I am ), when I find a subject crop up with regular frequency within the screenwriter’s forum. Like a dolphin it touches the surface again as some new enquirer asks the question, is responded to by others, then it slips under once more. The regularity of this subject’s appearance is such you could also describe it the forum’s pulse…or its underlying fear. And the writers’ fear is this; copyright. Their fear about their ignorance of it, about obtaining it right, fear about protecting it, fear about losing it to another, unscrupulous third party. The usual.

Hmm. Scratch the dolphin metaphor. Replace it with “shark”.

The questions in the forum are almost always the same; “How do I copyright my work?”, and – the biggy – “How do I stop a production company stealing my script when I pitch it them?” The first is a straightforward one to answer; duly noted’s own free introduction to copyright course covers this, or you can get the answer from the UK’s Patent Office. The second question however is a whole lot trickier.

So when the subject/shark fin arose again just over a week ago, it was interesting to read regular SP poster Adrian Mead’s response in Issue 2922, 12th January 2007. Now I’ve read a number of posts by Adrian offering advice relating to various screenwriting issues, and I respect his comments; they are common-sense, down-to-earth and practical. When you read his stuff, you know it’s content written by someone who’s been there – and that’s valuable. So what was Adrian’s opinion; was such a fear justified?

“Copyright theft is a bogeyman that haunts the world of aspiring screenwriters like some sort of whispered rumour,” he said in his response. “‘How do I stop someone from copying/stealing my ideas’ is ALWAYS the first question that new writers ask whenever I run a class. The other members of the group then pitch in with advice such as – a) Post the script to yourself and keep the package unopened with the post date as evidence. b) Draft or buy a “confidentiality form” and make people sign it before they read your work. c) Get it witnessed/registered with a lawyer.”

He then went on to advise that – after discussion with associates and friends that work within broadcasters and prod cos – use of such documents is useless, and can even be a detriment to your career prospects with the producers you send your work to, as it flags you up as an amateur with no idea how the industry works. And this is before your script is even read…if they’d bother now. Adrian’s assessment is fair; having been a producer myself, the last thing I’d want to be confronted with before reading a script was its writer flourishing a confidentiality agreement at me. It would instantly put me off reading their work and indicates this writer would be “high maintenance”. In fact, those suggestions his students offer are not the answer either; as, while they might be useful for evidential purposes in the event of a case being brought, they would not in themselves stop copyright infringement happening.

Adrian is right too to point out further on in his posting that many writers can all have the same idea, and that ideas of themselves aren’t copyrightable. Where I start to part company with him is where he says “and unless they” (the producer) “used your full script, virtually unchanged it’s almost impossible to prove theft anyway.” Not necessarily I say. As it’s the expression of ideas that make a work unique, original and thereby copyrightable, it’s the expression of the infringer’s work you examine. So if doing so you could still flag many similarities in elements of plot, or narrative, structure, screen breakdown, characters, even dialogue, you may well be able to make good case the produced script was based upon, or simply thieved from, yours – especially if you can also establish your script already strongly resembled in expression the infringing work at the time it was submitted to the offending prod co (useful if you had evidence of that too) prior to “their own” script going into production. (Still, I’m no lawyer and that would be for the courts to weigh up the evidence and decide.)

But where I really had to disagree with him was the following point he made, “No genuine and respectable UK producer etc needs the bad press that would come with stealing work.”

Wrong.

There are genuine producers, apparently respectable producers, only too willing to take someone’s script or story for their own if they see the opportunity to do so and if they have a good chance to get away with it. And this kind of thing is happening today.

My evidence for this claim? Well, I can cite not only the recent Nick Jr competition case previously reported within the posts of this blog, I have another tale to tell of copyright woe. This tale is about events only recently passed, involving a show taken from a writer, and from just such a respectable UK producer.

As you might expect, I am unable to name this writer nor the show involved, as I don’t wish to damage this writer’s career prospects. Such is the rarefied audience they write for and the very few prod cos/networks that target it, it might even give the game away if I named the network that broadcast it. But I’ll try to be as detailed as I can.

Now this writer, “G” I shall call them, pitched a comedy drama series which the network had accepted, and G was commissioned to develop the project and write the first script. Soon after, the same network Executive Producer asked if G had any other projects for drama series that would suit a certain Sunday afternoon time slot. G suggested something they’d been working on for some time; Series X. Now what appealed about Series X was its unconventional spin. The network like Series X and asked G to show them more, and G was happy to; they’d been developing the concept a while and had plenty to give them.

Some months later came the bombshell. G received a call from their agent, who said that the network were going to go ahead with Series X… but on their own and without G’s involvement! How could they do this? Because Series X was based on characters created by another author decades ago, so long ago in fact the work involving said characters had since fallen out of copyright. This meant that while G had had the legal freedom to create a show based on them, the network felt it also had the freedom to take G’s work as their own. To them it was still just an idea that anyone could come up with, and in fact in talks over it, G was told by network execs that “their version” was different from G’s in that it was going be lighter in tone! Some difference.

Did G get any recompense? Oh yes – if you could call it that. They were offered a paltry £500 – look at that number again – for all the hard work they’d put in; taking the idea and developing it into a workable format; producing character breakdowns, example storylines of future episodes – even producing a trailer to help give a sense of the look and feel of the show – and, finally, writing a pilot script. For effectively handing a series on a platter to this network, fully developed and ready to go, G was told to sign a contract relinquishing their connection to the project, take the money and piss off; the show wasn’t theirs and would go on without them.

G was stymied. What should they do? What could they do – other than accept? And this is what G was advised, as – their agent had to point out – the network had also made it abundantly clear that if G protested, the other show G was working on with them would suddenly find itself in the trashcan. “It was like a scene from The Godfather,” G told me. “Either my brains or my signature would be on the contract.”

So G accepted the money. And Series X came into the world, the filming of which was completed just last month. And G’s other show? Two years and four scripts/episodes later the show was canned when the Head of Drama moved on. G lost out big time. Now you might say the above only happened as it was a situation involving a new work created from an old one that was out of copyright. My answer to you is this; even if that were so, why kick out the person who originally came up with the show rather than work with them, why give them an insulting pay off, why imply their other show was at risk if they didn’t comply? Yet this is the behaviour of a well-established, respectable UK TV network. And if this is their behaviour in this case, it’s not hard to imagine they could consider lifting others authors’ original submissions.So, weighing up Adrian’s argument and the real-life bogeyman case study, just what is the protection solution? Balance, I suppose. If you want a career from your work, take precautions by all means – but not in-extremis – and then take the plunge. Log development of your work, make a note of to whom it’s exposed prior to publication. Register the copyright you have with a third party. Place a copyright notice on it (it doesn’t have to be ostentatious, and no professional producer should object to seeing one). Join a creative guild to back you up if someone does do the worst, so you can at least get legal advice. Do all that.

In the end however, life is about taking risks. We are artists, and artists must expose themselves and their work, so we’re bound to get hurt doing so. We have other work and other opportunities after all. And in this atmosphere of fear for our IP, acknowledge that fear by all means, then in the words of Susan Jeffers, “do it anyway”…