From Issue 8, January 2003:

How writers can protect themselves

In previous articles Sean Egan has looked at clauses in writers’ agreements. Here he looks at both sides of litigation, ie writers as claimants and defendants, and the practical steps that writers can take to protect themselves

Writers as claimants
There are two different situations: film projects and television projects.

Concerning films, I am sometimes contacted by writers who feel their rights have been infringed where they have made significant contributions to a script, or their speculative script or treatment has been used without their agreement. 

Once the film has been made, the costs of making changes to it are so enormous that a producer or insurance company is likely to take a much tougher approach to any claim by a writer, who is more likely to have to incur substantial costs in initiating legal proceedings before the other side will negotiate.

If writers are aware of any such problems, it is always worth raising the issue at the earliest possible stage.  The difficulty in practice is that unless you can obtain a copy of the final script, you cannot know for sure whether a claim is likely to succeed.There are many different types of claim and there are no hard and fast rules, but timing the making of a claim is a key decision.

For television projects, problems occur when the aggrieved writer, having submitted material to a broadcaster or producer on a speculative basis and having heard nothing or been rejected, finds that a television show is broadcast by the same company which is similar to, or at least bears a strong resemblance to, the writer’s original material.

Here are some tips for writers to follow (these are also worthwhile for film material):

• Register the material in one form or another.  Such a process is intended to mark a date before which you had written the material, crystallising what you had written at that time.   There are various organisations that have registration schemes but just as valid is posting material to yourself (leaving the envelope unopened, the postmark would be good evidence of the date of posting), or giving a copy to a reputable individual such as a solicitor who if necessary can swear a statement as to the date he/she received it.  Generally banks don’t like performing this function. Registration does not establish copyright but is circumstantial evidence, particularly if someone else asserts that you had taken the material from them at a later date.
• Put your name on the cover page, together with a copyright notice, to indicate you own the copyright material.  Omitting this is not crucial but it is helpful as the copyright notice raises a presumption that you are the copyright owner.
• In any communication with the producer/broadcaster where you send the material, if you cannot obtain a confidentiality agreement (and it is often difficult to achieve this) at least specify at the top of the letter that the material is sent in confidence and, should you be particularly anxious, that it should only be passed to another person with your consent.  It is also worth putting such a notice on the material itself. However, being too prescriptive can make you appear difficult or paranoid which may be disadvantageous.
• Keep accurate records as to who was sent the material and when and with whom you discussed the project in any meetings or even on the telephone. Confirm the gist of conversations or meetings in writing. It can happen that an individual ‘remembers’ a project when he or she moves on.
• With any material submitted, ensure that it is as specific and detailed as possible.  This will help establish it as copyright material.

Together these measures will not prevent someone taking ‘ideas’ but if the use of material is too close, and you can show a link  between the other person and your material, then there may be a case for copyright infringement.  Where you are not certain that copyright infringement applies but it seems clear that the material derives from yours, then breach of confidentiality may be of some use.  This is a difficult area as demonstrated by the report that Castaway Television Production – the owner of the Survivor format – is making a claim against Granada for I’m a celebrity, get me out of here.

All the major broadcasters and unions have accepted a code of practice from the Alliance for the Protection of Copyright, which governs the submission of creative material.  I am not convinced that this will stop abuse.  There is also FRAPA (the format recognition and protection association) that has campaigned for a firmer basis for the legal protection of television formats.

Writers as defendants
As a writer, you need to be aware of the circumstances in which claims may arise and why it is never worth taking a risk of incurring a claim against yourself.  If in doubt, you should discuss any concerns with the producer at the earliest possible stage.  The issue is really acute in films as broadcasters generally take a more paternalistic approach.  The nature of film financing is such that financiers will not want to rely solely on the writer’s word and will seek to reduce risks, where possible, with stringent warranties that writers are required to give.

Financiers use two main ways of reducing the risk that the film cannot be exploited fully because sufficient rights have not been cleared or there is some other content problem.  But as you will see below, these checks relate more to the producer’s competence than the writer’s and the writer should take no comfort from these having been undertaken.

The first is to require producers to take out errors and omissions insurance.  In order to obtain a policy, producers have to satisfy the insurer that they have complied with the insurer’s clearance procedures that involve having signed written agreements with the scriptwriter and the owner of any underlying material.  The insurer will expect the usual warranties to be in place.  In order to obtain the insurance, the producer will need to confirm that a satisfactory negative checking of the script has been done so that issues dealing with defamation in particular will have been identified.  The clearance procedures will not identify any problem to do with the writer’s rights, such as using uncleared copyright sources, and will generally rely on the writer’s word as contained in the contract.

The second means of checking is that financiers have required producers to undertake searches.  Generally, a title search is always required. Search agents have databases of press announcements and lists of released films in order to check whether the title proposed for the film is the same or similar to the title for an existing film or one that has been announced in development or production.  If there is a match, the financiers will generally have the right to require the producer to change the title.  This does not particularly affect writers but it explains why producers will always have the right to change the title at the last minute.

A more relevant search for a writer is a copyright search that is carried out for scripts based on existing material.  This, like the title search, is generally undertaken during pre-production though the timing is important since financiers generally consider that searches more than three months old are suspect.  A copyright search will include a search of all entries in the US Copyright Register and will identify the copyright owner of scripts and the underlying material.  This should confirm the ownership rights but will not identify similar work under a different title. 

This sort of search is only likely to identify issues relating to the writer in a few cases since the writer may not be responsible for clearing rights to underlying material.  It will be relevant if the writer has used underlying material without a declaration to this effect, only if the title is similar.  For some properties, financiers will also want to see a trademark search if merchandising or other branding issues are important.

Writers need to remember that the warranties in their script agreements are crucial and if they are not qualified by the phrase ‘to the best of the writer’s knowledge’, then the use of any copyright material, even if unconsciously, is potentially a breach of warranty and could give rise to a claim against the writer.

It can happen that an issue arises before shooting has commenced either because the project has been announced and the producer’s clearing of rights has been incorrectly done, or a party receiving a script raises a copyright issue with the producer.  This is very unusual and most claims arise after a film has been completed.  This is worrying for the writer as the cost of making any correction will be much higher after the film is finished.  Actors’ agreements may not properly cater for re-shoots and the costs of assembling a crew and re-commencing shooting or making post-production adjustments can be enormous.

If an issue arises, the producer should, in the first instance, contact the writer if it is a potential breach of the writer’s warranty and may request the writer to make a sworn statement.  If the errors and omissions policy covers the claim, then an insurance company that pays a claim will be entitled to seek recovery of that amount from the writer if it results from a breach of his/her contract and the producer may seek to recover from the writer the amount of any excess the producer has to bear. 

This assumes that changes to the film can be made or a deal done with the claimant but there are situations in which material is so crucial that if a deal is not done, the film cannot be released.  Thankfully, these situations are extremely rare because the third party would usually rather be paid a substantial sum than completely block the film.  MGM won its litigation against New Line Cinema over the Austin Powers films that could have prevented the release of Goldmember.  At the eleventh hour a deal was done and though the terms have not been disclosed, it was reported that this involved MGM approving the title of future Austin Powers films.

The bottom line in all this is that as a writer you need to ensure that your contracts are right in the first place.  If there is a problem later on, you cannot rely on anyone’s sympathy and you may have little or no control over your liability.

© Sean Egan 2002

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