I’ve had a wide range of bizarre and usually misinformed conversations with people about copyrights. Having just copyrighted my most recent script, I thought maybe I should write a post about it. As with other posts that get into legal matters, this is merely meant as a guide and a primer. If you need legal help with copyrights, please consult a lawyer.
Intellectual Property Rights
Owning physical property, like real estate, is pretty straightforward. There’s only one property at 123 Fake Street in Springfield, California. I can’t be enjoying the ocean breezes of 123 Fake Street in California if I am freezing my butt off in Ontario. But what about something a little less concrete? What about “intellectual property?”
You may have a hardcopy collector’s edition of The Hunger Games trilogy sitting on your shelf in California. I may be huddling with a secondhand, tattered paperback edition in Ontario. But we are both able to enjoy (or slog through) the series at the same time. Why? While the book is a physical piece of property, the story is intellectual property. Its main value isn’t derived by owning the actual book.
Lots of things are intellectual property: books, poems, screenplays, computer code, movies, music, choreography, architecture, photographs, paintings, and sculptures just to name a few. Ownership in these cases has less to do with the physical object than the idea. Catniss Everdeen isn’t real. She’s an idea. You can’t water your garden with The Rain Song. It’s an idea. And you can’t smoke tobacco in The Treachery of Images. It’s an idea (not a pipe!).
In all of these cases, the original manuscript or recording or painting becomes worth less as more and more copies are made. If I can download The Rain Song to my computer, I don’t need to hunt down Robert Plant to hear him sing it. The real value in intellectual property is being able to produce (and sell) copies or as those of us in the know call it… holding the copyright.
What is a Copyright?
Straight from www.copyright.gov “Copyright is a form of protection provided by the laws of the United States to the authors of ‘original works of authorship’ that are fixed in a tangible form of expression.” (Well, that was easy.)
It may seem obvious, but copyrights are only allowed for unique works. If I write a screenplay about a modern day theme park full of dinosaurs created out of fossilized mosquito blood, it would be hard for me to argue that I wasn’t somewhat influenced by Jurassic Park. This flip side of this, however, is that copyrights do cover derivative works. Once you invent Jurassic Park or a Galaxy Far, Far Away, or The X-Men, all the spinoffs and sequels are still protected by that first copyright. That’s why movie studios are so interested in “intellectual properties” or IPs, as they say. You can make endless sequels merely by purchasing that first copyright. You can also see how well that initial IP did (say the New York Times bestseller The Girl on the Train) before you spend a lot of money turning it into a movie.
Curiously, some things—titles in particular—are too short to be deemed “original” and can’t be copyrighted. Otherwise, someone would just start smashing words together and copyright every title imaginable. Brand specific words like lightsaber or frappuccino, however, can be trademarked, another form of intellectual property protection. That’s how you know the Halloween store’s “Pubescent Frog of Silent War” isn’t official Teenage Mutant Ninja Turtles merchandise.
Work of Authorship
You can only copyright something you’ve actually made. A painting of the ocean? Yes. A picture of the ocean? Yes. An audio recording of the ocean? Yes. A bucket of ocean water? Not so much. And despite what PETA thinks, no, a monkey cannot hold a copyright.
Interestingly, you cannot copyright facts, either. Something that is known to have happened is simply a fact. World War I happened. Archduke Franz Ferdinand was assassinated. The Allies won. And any information published about that is now public knowledge. So why have you heard about companies purchasing “life rights?”
Life rights give the purchaser access to additional information from the subject (a diary, for example), which may not be public knowledge. It also protects the purchaser from being sued for defamation. You can’t sue me for defamation if I gave you the rights to publish my story. You really don’t need life rights for public figures (who have a lot of facts floating around about them), dead people (who can’t sue you for defamation), and dead public figures (who are pretty helpless). Want to claim Abraham Lincoln was a vampire hunter? You’re gonna be A-okay.
‘Fixed in a Tangible Form’
This is probably the part where people get most confused. While we’ve been talking about “intellectual property” and ideas, you can only copyright something once it is in a tangible form. You may have a great idea for a Nazis on the moon script, but until you write it down, or film it, or carve the plot into stone, you don’t actually have the copyright for it. Your idea must somehow be fixed—permanently and irrevocably set—into some kind of physical medium.
Could someone overhear you talking excitedly about your “brilliant” Nazis on the moon script, jot everything down on a napkin, and steal that copyright from you? Yes, they could. It would be unethical, but it wouldn’t be illegal.
Another way people describe this is that copyrights don’t actually protect ideas, merely the expression of an idea. Nazis on the moon is an (intriguing and ridiculous) idea. That scribble on the napkin is the “expression” of that idea. It is “fixed in a tangible form.” Now if you don’t have time to “fix” your Nazis on the moon idea by writing the screenplay, you could perhaps write a short story or a treatment and copyright that before you start talking about your idea in public. Then at least the basics of your story and the characters are satisfactorily “fixed.”
And to backtrack briefly, while you cannot copyright a fact, e.g. World War I, you can copyright the original expression of those facts, e.g. The Guns of August or Lawrence of Arabia.
How do I copyright something?
The good news is, as soon as you fix your original work of authorship in a tangible form, it is copyrighted. As the author of the work, you have the exclusive rights to copy, sell, distribute, or create derivate works from it. You also have the right to prevent anyone else from doing the same thing. Things start to get weird when someone else tries to claim credit for your work, which is why it’s highly recommended that you register your copyright.
It’s extremely easy and cheap. Simply go to www.copyright.gov, follow the prompts and voila. The United States government has a record of your creation! The only downside is (being the government) they often take a while to get back to you.
If you’re in a hurry, you can register your screenplay with the Writer’s Guild of America. WGA West if you’re west of the Mississippi, WGA East if you’re east of the Mississippi. This is slightly cheaper and must faster, but they apparently destroy all of their files after a few years, so you have to keep renewing it.
I’ve also read about the “poor man’s copyright” several times. Basically, you mail a copy of your script to yourself and leave it sealed, using the Post Office’s postmark date as proof of when you fixed your original work in a tangible form. It is not a substitute for registering your work with the copyright office and according to Snopes, has never actually been tested in court. So in the U.S. at least, you’re better off just registering your work.
That gives you some basics about copyrighting your scripts. Next time, I’ll cover some of the other interesting copyright situations you may find yourself in as a filmmaker. Copy that? Over and out.