From Issue 2, January 2002:

True Stories: Plagiarism and Defamation

Truth may be stranger than fiction, but what protection do scriptwriters and producers need when the script is based on real events and real people?

Where is the line between plagiarism and legitimate borrowing and does it change if the origin of a story were real events?

In my experience of advising writers and producers these questions cause the greatest difficulty.  I think it's because a writer's (and sometimes a producer’s) view of ownership and creativity is often not the same as the law's.  This can lead to writers being in breach of writing agreements by reason of a breach of copyright or inclusion of defamatory material.

Copyright

Copyright at its heart is a monopoly but not an absolute one since it protects writers against copying but does not prevent the creation of independently originated works.  That seems reasonable but proving copying can be difficult particularly when it comes to works such as television formats or treatments.  If you are claiming plagiarism you will need to show evidence that the 'copier' had access to your work.

Before you start claiming breach of copyright you need to ensure that your work is entitled to copyright protection.  It is in the sorts of work near the borderline that problems tend to occur.  If you cannot be sure that you have proprietary rights you should think carefully before contemplating litigation.  You might visualise these 'amphibious' works as existing between the land of copyright protection and the water of collective creative material owned by no one.

However, there are ways you can protect yourself.  Marking a document confidential can afford some protection but in practice only to the person who receives it in confidence. This can be achieved simply by stating ‘confidential’ on the top page but this probably will not help vis-à-vis an innocent third party.

You can also put your name, copyright sign (©) and date on the work.  Though this may not create copyright protection where there is none, it can serve to deter copyright poachers.  You can also post the work to yourself so at least the postmark on the unopened envelope is proof of when you had written the work. These are essentially cosmetic steps and are no substitute for enhancing the chances of the work qualifying for copyright by ensuring the material is in a fully realised written form.

Sometimes writers are reluctant to do this because it is more work and narrows down the original concept, but a more detailed and in legal terms 'original' work stands a far greater chance of legal protection.  Two-paragraph long film treatments are unlikely to contain sufficiently distinct material to be protectable, but a five-page treatment which develops characters, the plot and locations does.  Without a good case for legal protection writers will tend to be in a poor position when negotiating deals for their work.

Public Domain

The other main bar to being able to protect material is that it is factual.  There is no copyright in facts but only in the way they are reported. If you take the bare facts you are safe from accusations of copyright infringement, but you cannot copy how a writer has reported a real event.  Factual material that is outside the scope of copyright laws is generally lumped together with material whose copyright has expired under the term ‘public domain material’ which can be confusing.  The distinction becomes important if, as happened five years ago, the copyright period of UK and other copyright works was extended.

Defamation

Defamation gives everyone the right to protect their reputation.  It is the collective term for libel (written) and slander (oral).  The best short description I know is that it is the ‘lowering of a person’s reputation in the estimation of others’.  The reason why Jonathan Aitken and Jeffrey Archer are treated as they are in Have I Got News For You is because they probably have little in the way of reputations to protect!

The risk of defamation introduces limitations on what can be included in a script.  Though I would not advocate inhibiting the creative process with worries about defamation, it is worth knowing what is acceptable.

Defamation only affects people who are identifiable and alive. So Robert Maxwell is fair game but his sons are not, unless you can establish the truth of your defamatory statements and that can be difficult.  If you create a character who is based on or inspired by, say, Margaret Thatcher, but there is nothing in the eyes of the audience to link the character to her, then all is well. However, usually the links are there, whether in terms of situations or other characters.

The importance of identifiability means you need to be careful about names – not only using different ones but considering checking that the names you use do not link the characters with real people whether intentionally or not.  Producers sometimes use checking agencies to resolve such problems but this does no more than reduce the writer's potential liability in the writer's agreement.

Some writer’s agreements have warranties that are far too wide.  For instance, warranties should only cover defamatory statements in the work itself, not how it is produced.  It is perfectly possible to have an innocuous script which when produced is defamatory. For instance, a character may be made up to look like a celebrity.  You should also check that the warranty relates only to your original work and that the responsibility for underlying rights’ clearances falls on the producer.

True Stories

Copyright and defamation can both be issues when basing your material on real events.  There are two particular situations that I see regularly.  The first is basing a script on a biography and the other is telling a living individual’s story.

‘I’ve based my script on a number of biographies – do I need to worry about clearing rights?’  Frustratingly for you the answer is ‘maybe’.  In each case you will need to look at the material you have taken from each biography.  If it is purely factual that is fine but if it is descriptive, contains an opinion or quotes or uses material from interviews, then there may be a problem.  You will need to look at what has been ‘taken’ and see whether it is significant.  If you have to go through this process you will find it invaluable to keep records of passages used.

Interviews pose slightly different problems in that if quoted or closely reported, the copyright owner will be the interviewee unless the biographer secured those rights.  The same basic rules apply in that you can use material if what you use is purely factual.  The difficult decisions come if you are taking material that appears in one source only.  Not only is it then more identifiable but you are at risk if what appeared to be a factual story was in fact an imaginary episode and therefore potentially copyright material. In my experience biographers know their material so well they will know what is their material and what isn’t.

If a writer is basing a script on a biography, the producer is often best advised to acquire an option in the biography not just to enable free use of it but also as a defensive measure to prevent others acquiring rights in it.

When you are the interviewer you should consider whether you need clearance from the interviewee.  This is worth thinking about in advance of an interview especially if you have only one meeting since clearances are easier to obtain face to face.  You will need to consider whether the material you want to use is likely to be purely factual for copyright clearance purposes. Also, if your script is about that person, you should consider whether your clearance should also state that the interviewee will not sue you for defamation.  This may sound extreme but if you are basing a script on an identifiable living person no matter how fleetingly they appear, producers will be unlikely to proceed with it unless that person signs a suitable clearance against defamation or you can establish that there are no defamatory inferences.

You might see copyright and defamation as the Scilla and Charybdis of dramatic works based on identifiable living characters.  The closer you follow the source materials, the more likely you are to have to obtain copyright clearances.  If you choose to base the material loosely on the biographical source material you are much less likely to have problems with copyright but instead defamation may be a problem.

Most of these problems can be overcome and that is the producer’s job, but there will be instances when the project will fail because of these problems, which is particularly frustrating for work done on spec.  These issues also highlight the need to look at the warranties you are giving in any contract you sign.  It is standard for writers to warrant that they own the copyright in all their material included in the script and that nothing in it is defamatory but this may not be appropriate in all circumstances.  Equally, warranties you are presented with may go further.  You should check in each case by considering the source materials used and whether any living persons are identifiable.  If you know of any clearances that may be needed, it is worth raising the fact at the earliest stage.

If you are in breach of a warranty the producer may sue, particularly if he has been sued by someone else.  Errors and Omissions insurance policies are helpful in reducing a producer’s loss but the standard excess is $10,000 which would be a substantial payment to have to make.

Writers can protect themselves by avoiding risky source material or content, by obtaining clearances or by ensuring that the warranties in the writer’s agreement are not too wide.  The spectre of a producer suing a writer is a last resort and is really only appropriate where the writer has been negligent, that is was aware or should have been aware of the infringing nature of the material.

© Sean Egan 2002

Sean Egan is Head of the Arts & Media Department at Bates, Wells & Braithwaite, Solicitors.