Writers protecting your work. To copyright or not... That is the question!

December 01, 2010 at 12:00 PM

When writers submit their work, they become vulnerable to theft.  Usually the writer is a novice without representation who submits a script to an established production company. The company may return the script with a polite note passing on it, or the company may not bother to acknowledge receiving the material. Months or years go by and one day the writer stumbles upon a movie which closely resembles his story. The movie was made by a recipient of the writer’s script. The writer is convinced that his work has been stolen.

Sometimes the writer is correct, and he may be entitled to substantial damages for the infringement. Other times, there is no infringement. A general similarity between the writer’s script and another’s work may simply be a case of two creators thinking alike. And then there are the cases where the production company may have borrowed certain elements from the writer’s work, but such borrowing is permitted under copyright law. While such conduct may be unethical, it is not illegal.

Many writers do not have a solid understanding of the nature and extent of what copyright law protects, and they may not know that they can also protect their interests under the principles of contract law. Let’s begin with a discussion of copyright law.

A copyright does not protect story ideas, concepts or themes. Such elements are not protected whether they are in a writer’s head, written down on paper, or published. Ideas are as free as the air. Ten authors can write a story about a doomed romance between lovers from different backgrounds. This could be Romeo and Juliet, or West Side Story, or another variation on the theme.  Likewise, multiple authors can write biographies about George Washington. Each is free to tell the story of George Washington’s life in the writer’s own words. Each can borrow facts and historical incidents mentioned by prior authors.

What copyright law protects is the “expression of the author.” This is the particular manner in which the writer tells the story, his approach to the material, his voice. In other words, what is protected is the embellishment on the idea, not the idea itself.

Consequently, others are free to borrow uncopyrightable elements from your work. They can extract ideas, concepts, historical facts and other non-copyrightable elements. But if they borrow your expression, then they have crossed the line. Granted it may be difficult to tell when an idea has been sufficiently embellished upon that the resulting work is considered an expression of an author and protected under copyright law. Clearly a one page story synopsis is not much more than an idea. A 20 page treatment will deserve more protection, and a detailed script will garner even greater protection because it is a lot more than an idea.

So much for copyright law. So how can a writer protect his ideas? Even if ideas are not protected by copyright, they are a form of intellectual property, and the recipient of an idea can agree to pay the provider for it. This can be an enforceable contract.

In order to understand how a writer’s idea can be protected by contract, let us first review some of the principles of contract law. There are different kinds of contracts. Some are written, others are oral. Contrary to popular belief, oral contracts may be valid and binding. However, most states have a law, known as the Statute of Frauds (e.g., California Civil Code sec. 1624), requiring that certain kinds of agreements be in writing in order to be valid. The purpose of this law is to deter fraud by encouraging parties to put their agreements in writing if they expect a court to enforce them.

Since this contract is oral, there might be a problem proving its existence and terms. That is why it's advisable to have a witness or some documentation. You could bring a co-writer, agent or associate along to the meeting. After the meeting you might send a letter to the producer reiterating your understanding. The letter should be cordial and non-threatening. You could write: "It was really a pleasure meeting with you to discuss my story about. . . . As we agreed, if you decide to exploit this material, I will receive reasonable compensation." If the terms set forth in your letter are not disavowed by the recipient, the letter could be considered of your agreement. Since the letter has not been signed by the producer, her agreement is implied from the fact that she didn’t object. Of course, if the producer confirms these terms in writing, that would give you even better evidence.

But what if the producer listening to your pitch doesn't steal your story but repeats it to another producer who uses it? You can protect yourself  by also saying: "I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission." If the producer nods her head okay or says yes, you have a deal, and you can sue if she breaches her promise.

This article was first published in Script Magazine, Volume 8, No. 2, March/April 2002.

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