What is the Best Way to Protect Your “BABY”?
WHAT IS THE BEST WAY TO PROTECT YOUR “BABY”?
By Marcia L. Daley
A writer is an artist, and a writer’s work is a work-of-art, regardless of the type of work, e.g., whether it is a novel, a short story, a dissertation, a screenplay, etc. This work-of-art is the writer’s "baby"; it is irreplaceable, a one-of-a-kind, so we must protect the "baby."
Ideas in-and-of-themselves are not protectable. For a writer, it is the written expression of the idea that is protectable. For example, a studio or network can have ten writers in one room to whom they give the same idea, extraterrestrials invade earth. Each of the individuals in that room, however, will express the idea differently: three will write a treatment for a television pilot; three will write novels, two science fictions and one a comedy; one will write a play; and two will write screenplays. Now, let’s focus on the screenplays, of the two individuals who decide to write the screenplays, one writes “War of the Worlds” and the other writes “Independence Day” – both are based on the same concept, but are expressed very differently and, therefore, both are protectable – it is their individual expressions of the same idea that are now protectable. So how do we best protect the “baby”?
The truth is that a person’s written work is automatically protected by copyright immediately upon it being expressed in a tangible form, e.g., as a script, a treatment, a motion picture, or a sizzle reel, etc. The problem is that no one knows: (a) when the tangible expression was first created, or (b) who first expressed it. So how do we establish the date and put everyone on notice that you are the author?
Writers in the entertainment industry are typically advised to register their written work with the WGA, believing that this is all they need to do in order to be protected. It isn’t until their written work has been stolen that the writers learn that the WGA registration did nothing more for them than to establish the date of creation. In fact, a WGA registration, aside from providing no protection, can prove to be very costly. First, and most importantly, although copyright protection exists immediately upon the writer’s creation of the work, i.e, the tangible expression, no lawsuit can be brought for copyright infringement until the work has been registered with the US Copyright Office. Since it can take as long as 6 months for a registration with the US Copyright Office to become effective, the infringed writer would have to expedite the registration, for which the US Copyright Office charges an additional $580. Also, if the writer waits until his copyright is infringed to register with the US Copyright Office, his damages will be limited by law, in other words, the infringed writer will not be allowed to recover statutory damages or attorney’s fees. Finally, if the work is registered within five years of being published in any form, the registration with the US Copyright Office will be accepted as prima facie proof of the registering writer’s ownership of the script. In fact, the only real advantage of registering with the WGA is that, if there is a lawsuit or credit arbitration, a representative of the WGA will appear and testify only as to the date of registration.
When considering the registration of a written work with the WGA, the writer must determine whether to register with the WGAw (in Los Angeles) or the WGAe (in New York). The benefits that the WGAw and the WGAe differ slightly. Registration with the WGAe costs $2 more for non-members than it does with the WGAw, and it remains active twice as long as it does with the WGAw. Aside from these differences, however, the only benefit they both offer is the appearance of a representative to attest to the date of registration. So, again, how do we best protect your “baby”?
When faced with this question, I always advise the creative artist, whether they are a writer, painter, designer, animator, etc., to register their work with the US Copyright Office, because it is only through this registration that the creative artist puts the world on notice of their ownership of the work. Also, upon registration with the US Copyright Office, the remedies available to the infringed writer open up. While it is more expensive to register with the US Copyright Office than it is to register with the WGA, the difference in cost is negligible. A writer should always, upon creating written work, register the work with the US Copyright Office, and, if they have an extra $20, only then also register with the WGA.
Registering a written work with the US Copyright Office not only puts the world on notice of a writer’s claim of ownership, but the duration of the protection that this registration affords is much longer than the duration afforded by the WGA. A registration with the WGAw, for example, costs between $10 and $20, and remains active for 5 years, renewable for an additional 5 years only. Registration with the US Copyright Office, however, costs $35, and remains active for the life of the author (if the author is a natural person) plus 70 years or, if the author is a corporation, anonymous or pseudonymous, the registration is active for 95 years from publication or 120 years from creation, whichever is shorter.
It is only after the writer has registered their written work with the US Copyright Office that they should start to pitch the project. In taking their story to market, the writer must be very selective as to whom the writer sends or submits their work. A writer should share their protected work only with established professionals or with reputable people who can introduce them to established professionals, and keep a record of to whom and when they shared the “baby”.
Marcia Daley, of the firm Daley & Sacks Law, RLLP, is a former studio attorney currently representing writers, talent and producers in
the Entertainment Industry. www.daleyheft.com