From Issue 3, March 2002:

Copyright: how do writers protect themselves?

Copyright is a minefield that you will need a lawyer to rescue you from if things go wrong. What do you do if there is no agreement or clear understanding? Sean Egan suggests several ways of avoiding the minefield.

There are so many ways of exploiting copyright work that it's impossible to anticipate them all.   If you write a treatment for a television company, it could also form the basis for a feature film or a spin-off television series.  It could be published or developed into a brand and sold as merchandising such as board games, computer games or it could even form part of a theme park.  The sky’s the limit!  So what's your copyright position?

Copyright Registration

In the UK, Europe and most major countries there is no need to register copyright because from the moment you create your work, you have copyright.    Sometimes there is confusion in that it is said that you need to register copyright by sending a copy to a lawyer or banker.  This is not the case but it can be useful in that it establishes the date by which you had created the work.

In the Library of Congress in Washington there is a US copyright registry that people can search, and it can be useful to producers and writers to put material into that database.  There are limits on registration and it is not important unless US rights are involved or the film/programme is likely to be exploited there.  When people undertake a copyright search in America (there are agencies which do them) registered material will show up.  If you want to find who is the owner of a novel, a US copyright search may provide the answer together with details of all previous owners of the rights to the novel.

Originality

Copyright is about originality not about quantity or quality.  If you can establish originality, you will have copyright.  Paraphrasing someone else's work is not original and creates no new copyright.

The need for originality can be confusing where there are different copyrights in question.  A good example of the importance of the issue was highlighted in a recent American case where an art library sold CD-Rom art images of well-known paintings that were themselves out of copyright.  Photographers had taken photographs of the paintings and these were being sold in digital form.  A photograph was copied without paying the art library that claimed payment for use of the copyright in the photographs.  The argument against them was that since the underlying rights were out of copyright and the photographs were only slavish copies, there was no originality and no infringement.  The American courts said that it was a slavish copy but in the UK I believe the courts would uphold copyright because it is generally accepted that the photographer's skill in lighting and shooting the photograph creates a separate copyright from the underlying work.

What can be protected?

It is commonly said that you can't protect ideas, only the expression of ideas. There are problems with formats because they can be ‘one sentence ideas’ and therefore too vague to protect.  The shorter the description you have written, the more difficult it is to copyright.  So to enhance the chance that your work can be protected, develop your ideas as fully and in as much detail as possible with character breakdowns, story arcs, etc.  The more specific you can make a treatment, the better.  It may not stop someone using the idea as inspiration to produce something similar but different.  You need to bear this test in mind when reworking existing material.

The need for proof can be important. If you believe your rights have been infringed, enforcing your rights in formats submitted by you to producers and broadcasters can be a perilous business.  You have to be able to prove that you had written the format prior to when whoever claims ownership ‘originated’ their format and you will need to be able to prove that the person whom you are accusing of stealing used your format.

When material is submitted to broadcasters or producers, it is important to ensure that the person receiving it knows that you have sent it in confidence and that it should not be disclosed to third parties.  This is a little more complex because most people want to be able to show material around their own company in order to discuss it with other people.  The failsafe is to have them sign a confidentiality letter but this is generally difficult to achieve.

American studios often require you to sign a release form acknowledging that they receive many screenplays and if they were to make a film similar to yours, you would not sue them.

A pragmatic approach is to state in a covering letter that you are sending the material in confidence and also putting 'confidential' on the top page of the document because that at least helps to establish confidentiality and might make it easier later to prove breach of confidentiality.

Television Formats

The key legal case involving format infringement dates from 1989 when Hughie Green who owned the format in Opportunity Knocks claimed copyright protection in it but failed.

However, companies like Action Time and Chatterbox have established a good business in protecting and selling formats despite the fact that it is not certain that unscripted television shows are protectable.  For drama with consistent characters and storylines, it is much easier to protect formats.

Who Wants To Be A Millionaire was very carefully designed as an integrated format protected by trademarks and copyright.  Opportunity Knocks didn't have the same detailed design although it did have a couple of catch phrases that weren't considered to be protectable.  In practice, formats are bought and sold not so much as transfers of intellectual property rights but as know-how agreements.  The crucial value in a format is often the talent of the creative team and the research materials and those are in fact what is being traded.  The know-how and backstage team in, for example, Millionaire or Big Brother, is very important whereas in Opportunity Knocks it was not.  In some respects the law simply hasn't caught up with practice.

Character Rights

The law doesn't really acknowledge character rights but if characters are used in the context of other characters created by written scripts, copyright protection is likely.

It is possible to make use of many different types of copyright material.  If you remade the movie Chitty Chitty Bang Bang, you would need to be clear about which rights have to be cleared.  There are three different sorts of rights:

1. The underlying rights in the novel in which the original characters are established.

2. The rights in the screenplay for the film (if you are using original material from there) and in the music and lyrics of songs (if you are using them).

3. The rights in the screenplay for the film (if you are using original material from there) and in the music and lyrics of songs (if you are using them).

If you make a brand new film and you are not reproducing the original film, you don't need to worry about the copyright in the film but you will need to clear the rights in the characters from the book, and possibly even the screenplay, depending upon where your new story starts.  Furthermore, if you call it Chitty Chitty Bang Bang, it is clear you are remaking the film and therefore using elements of the first film’s script.

Collaborative copyright

The reason you need to identify the underlying material is to clear the rights.  You need to identify who owns the material and who created it because you must establish the chain of title.  There are certain specific things to check:

1. Who the first author is.  Generally whoever creates the copyright work is the first copyright owner.

2. Joint owners: collaboration is increasing and it is important to distinguish between joint authors and co-authors.  If there are ten chapters in a book written by different people, each chapter by one person, the book will have ten co-authors and each author is the sole owner of their chapter.  If you have material written by two people together and their contributions are indistinguishable and cannot be identified, then the script is a joint work and both have to agree to the sale.  If one doesn't want to sell, then the other can't sell.  In this situation both writers have the right of veto over all uses of the material.

A writer sitting down with a director to work on the writer’s script is another important situation to consider.  The writer may own the draft that he or she came with. However, a later draft based on discussions and original contributions from the director (to the extent that there is new material jointly owned by writer and director) will not be solely owned by the original writer.  If the director simply throws in a few ideas but the writer actually does all the writing, then the writer retains all the rights.

This is a complicated area and the producer needs to know the proportions of contributions because that may determine the payments to the writer on production and what the credits will be.  If the director's skill is primarily in directing, he or she may add ideas or new material in order to tie themselves into the project and lessen the likelihood of anyone else coming in to direct.  The director could say some of that script material is his or her copyright and unless they direct, the producer cannot use that material.  So if there is this sort of joint writing, you lose some control.  Joint ownership is therefore a share in the ownership of the whole.  If someone just makes a few suggestions, it won’t entitle them to any copyright.  This can be a muddy issue with some directors and producers not always supporting the writer as they should.  Clear written agreements can help by providing that no shared writing credit may be earned by the producer or director.

The law is not a writer’s first love.  I hope this article will help you ensure that you can use it as a positive tool to protect your rights rather than suffer it being a means of depriving you of just rewards.

© Sean Egan 2002

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

This text is a transcript of a lecture by Sean Egan, organised by Medialex Legal & Business Network, 122 Wardour Street, London, W1F 0TU  Tel: +44 (0) 20 7434 0966  Fax: +44 (0) 20 7437 0884.