Legal Guide - Writing
Legal Guide - Writing
Legal advice on writing, script copyright, adaptation and option agreements.
- Collaborative Writing
- Writer Agreements
- Option Agreements
- Copyright when Shorts are Optioned
- Real Life Stories/Biographies
- Non-disclosure Agreements
- Related Guides
- Help us improve the Filmmaking Guide
It is important for writers who are collaborating on screenplays to identify what rights in the screenplay they own. A work will be jointly owned if writers write the script together irrespective of who writes the words down. The duration of copyright in a screenplay of joint authorship expires at the end of the calendar year in which the last author dies. It is not always easy to discern whether someone is a joint author or whether they have just contributed to the creation of a work.
For example, in 2005 Matthew Fisher, the organist in the band Procol Harum, issued a claim that he was joint author of the musical copyright of the song "A Whiter Shade of Pale" by virtue of the distinctive organ solo including the intro. The judge ordered that Fisher be acknowledged as a joint author of the musical work as he had made a distinctive and significant contribution to the overall composition.
If a screenplay is a work of joint authorship then all the authors must consent to any assignment or licence of rights in the work. This is different to co-authorship where each writer’s contribution is unique e.g. if each person writes on a different scene. In these cases, each writer is the sole owner of the copyright in different sections of the work. In both situations both writers must be contracted by the producer.
Lastly, there is the variation where writers write different drafts of the same script. In this case each writer is the sole owner of the work they create. If the second draft of a work is to be exploited then the rights in the prior work will need to be acquired.
If a producer wants to commission a writer to write specific work whether a treatment, screenplay or revisions of an original script or additional dialogue then they will use this form of agreement. The agreement will set out the writing services to be provided. The normal practice in the film industry is for all intellectual property, rights in the work to be transferred to the producer – assuming that the writer fees are sufficient to justify this.
Information on putting together a simple film agreement is provided at: www.scriptwritermagazine.com/FAQs
Shooting People, the independent filmmaking community, also provide sample downloadable writers' agreements in the resources section of their website. Note - you need to be a paid-member to access this section of their site.
Many short films are based on short stories, poems or magazine articles, i.e. someone else’s work. In the case of an adaptation do not proceed on such a project until you have permission to do so from the original author and/or the owner of the rights or you have acquired the film rights to that work.
Often, the publisher, as part of the publishing agreement, will represent all film and television rights on behalf of the author. However, this will not always be the case and it may take you some time to research and find out who owns and controls the copyright. You should also bear in mind that the length of copyright in a book or play is currently the author or playwright’s lifetime plus 70 years after their death.
Moral rights will also accrue to any author or playwright after 2nd August 1989. You should check whether the author has waived the moral rights in the original work as these cannot be assigned. Otherwise, he/she may be able to assert moral rights which may affect your ability to exploit your adaptation of the original work.
In the case of a short film this need not be overly complicated. Find out who owns the material. This may bring you into contact with publishers, agents, lawyers and authors, who may or may not be helpful. Persevere. Explain that short films are not about money but about shaping talent and that no one is likely to gain financially from the project but that you would like permission to adapt the original work into a short film script. This permission will usually take the form of a brief deal memo or option agreement outlining the 'terms' of the permission and for a short film it is rare for money to change hands. Sometimes, if a well-known author is involved, they may insist on some cash. This will vary depending on the material concerned, but make sure this makes sense in the overall budget of the project.
Filmmaker question: "My film is loosely based upon a short story that I read. I've credited this in the film but I haven’t purchased any adaptation rights. Do I need to?"
Answer: See our Legal Guide: Filmmmaker FAQs section
Option agreements deal with the acquisition of rights. They differ from writing agreements as there are no writing services to be provided. The writer will grant the producer the exclusive right to develop a film based on his or her work for a given length of time (known as the “option period”) in exchange for a down payment (usually in the region of 10% of the purchase price). When the producer raises the finance for the film the balance of the purchase price is paid.
Copyright when Shorts are Optioned
If another producer approaches you with the desire to adapt your film from a short into a feature film, then in practice you will have the right to authorise the film to be adapted only if you own the feature film rights to the screenplay. This may have occurred when you first obtained the rights from the scriptwriter to make the short, i.e. if you acquired all film rights in the screenplay. Although the scriptwriter might not choose to enforce these rights against you, it is always wise to ask for clearance from him before authorising any adaptation of your film. This will keep you on good terms with the scriptwriter and protect you from a possible copyright action.
You should consider whether it is wise to agree to option your short. The option agreement will usually require you to assign all rights in the short to another producer. If you believe that there may still be scope for screening the short commercially or non-commercially, selling it or streaming it online, then optioning may not be the best idea. It is not uncommon for producers to buy up the rights to a film and then fail to use the short for a feature film. This means there is a danger of the film going to waste sitting on the shelf.
Real Life Stories/Biographies
A script telling a true story may rely on a number of different sources such as material in the public domain or autobiographies. Source material which is in copyright (e.g. biographies) will need to be cleared.
Also referred to as "confidentiality agreements". They deal with relationships where confidential information is being shared and where at least one party wishes to prevent the information being released. If you are discussing your ideas with anyone and are worried about them being copied, then the best approach would be to enter into such an agreement. To be effective the agreement needs to be signed prior to disclosing material so the recipient will need to be convinced that the material is worth having.
Some producers (more typically in the US) require persons submitting scripts to sign disclaimers absolving them from any liability should they produce a similar project.
See also the section on script clearances in our Legal Guide: Content Clearances
For more information on scriptwriting see our Filmmaking Guide: Writing a Script
For links to scriptwriting organisations and resources see our Related Links: Writing
For a checklist of the rights and clearances required to get your film cleared to show in public, see our Legal Guide: Rights & Clearances Checklist
See also our Related Links: Legal
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