Copy That (Part 2)

If you didn’t get enough of it last time, here are some more fun facts about copyrights! For example, did you know that like being a Scientologist or owning a gun, copyright is protected under the United States Constitution (Article 1 Section 8)? Or that Walt Disney successfully lobbied to extend copyright protections to their current length in order to preserve its copyright on Mickey Mouse. Seriously, you can’t make this stuff up. 

mickey-mouse-copyright

(image via: https://www.uprinting.com/blog/legal-concepts-need-know-content-marketing/)

Copyrights Never Die. They Just Pass into Public Domain

Seventy years after you die, all of your work will pass into the public domain or PD as they say. Public Domain means we the people now own your work and can do whatever we want with it for free. This is great for filmmakers who want to do a spinoff sequel to Hamlet or use Beethoven’s Moonlight Sonata in their soundtrack. But be forewarned, while Beethoven’s music is PD, specific recordings of the Moonlight Sonata are copyrighted by the person who recorded them. You’ll have to make your own recording of Beethoven’s music.

Interestingly, too, while you can make an adaptation or derivative work from something in the public domain, you can’t use any elements from other derivative works that are still copyrighted. The Wizard of Oz is a great case study. The original L. Frank Baum works are public domain, but the 1939 Warner Bros. movie is not. What’s the difference? For one thing, L. Frank Baum does not describe the Wicked Witch of the West as green. So when Disney made its Oz the Great and Powerful a few years ago, they had to be careful not to use Warner Brothers copyrighted shade of green. Read more about The Wizard of Oz copyright here.

(Sidebar, my first job in television was securing music rights for a high school band concert. We needed separate rights to broadcast the music and rights to synchronize the music to the televised concert.)

Fair Use

Fair use allows you to use part of copyrighted works for specific, limited purposes. Courts generally consider four criteria in fair use litigation.

1) Nature of the use. Educational and informational purposes are generally permitted while commercial purposes are generally not. Since I run a free, educational blog, I’m not too concerned about including a copyrighted image in a post to help illustrate a point. (That being said, if you own the copyright and were not credited or don’t want to be associated with my blog, I’ll gladly remedy the situation.)

2) Nature of the copyrighted work. While audio and video recordings may be copyrighted, audio and video recordings of newsworthy events (facts), may not be copyrighted. Time magazine, for example, tried to purchase the rights to the Zapruder film–the assassination of President Kennedy. But as a matter of fact and public record, the court decided the film should be in the public domain.

3) Amount of the copyrighted work. Screening the first scene of Saving Private Ryan to educate film students on a particular cinematography technique is probably okay. Screening all of Saving Private Ryan to a packed theater, not so much.

4) Damages. Of course, all of this comes down to money. If you start selling pirated Game of Thrones DVDs or Game of Thrones themed T-shirts, you’re taking money out of HBO’s pocket. But if you reprint a promotional picture for educational or news stories, you’re probably okay.

4B) Parody. But wait there’s more! One dicey way that you can ride off of the success of copyrighted work is parody. That’s how we end up with all of those porn parody gems. The key here is that your new copyrighted work is parodying a specific other work, but not infringing on the same market. That is to say, people who want to watch the adventures of Jack Sparrow will not intentionally purchase Pirates XXX.

PiratesXXX

(image via: https://en.wikipedia.org/wiki/Pirates_(2005_film))

Similarly, no one looking for a bowl of Campbell’s tomato soup will accidentally purchase Andy Warhol’s famous paintings. They’re different markets.

Campbells_Soup_Cans_MOMA

(Image via: https://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans)

Other Intellectual Property

Intellectual property rights are largely covered in three categories: copyrights, trademarks (which I mentioned briefly in the previous post), and patents. Patents are distinct from copyrights in that copyrights protect “fixed works of authorship.” Patents protect processes. If you make the world’s first 5D film, you can copyright the film. But you’ll want to patent the process for making all future 5D films.

Copywriting

Copywriting is different than copyrighting. Writers may work on copy (text) for advertisements or articles. That’s called writing copy. And while copywriting may be copyrighted, make sure you’re using the right copy when writing copy about copyrights.

More fun with copyrights

Phew! That was exhausting. But the fun’s not over. www.copyright.gov actually does a really good job explaining copyrights. I highly recommend checking it out if you have questions.  In the mean time, get out there all of you creative people and fix some original work in a tangible form!

Copy That (Part 1)

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!).

the-treachery-of-images-this-is-not-a-pipe-1948(2)

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.)

Original

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.

TMNT

(image via: http://www.vorply.com/fail/list/names-of-products-gone-absolutely-wrong/9/)

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.

lincoln vampire

(image via: https://www.amazon.co.uk/Abraham-Lincoln-Vampire-Hunter-DVD/dp/B006DZUR5Y)

‘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.

lawrence of Arabia

(image via: https://www.amazon.co.uk/Lawrence-Arabia-DVD-Peter-OToole/dp/B0050A2J86/ref=sr_1_2?s=dvd&ie=UTF8&qid=1517316046&sr=1-2&keywords=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.