Loose Lips Sink Ships in Entertainment

By Anthony R. Caruso Esq.

Ideas, treatments or screenplays are easily stolen in the entertainment business, but certain strategies can minimize the risks.  The U. S. Copyright Act protects original literary works which are fixed in a tangible medium.  Copyrights are automatic as of the moment of creation.  Nonetheless, I recommend that the author of the work adhere to the formality of registration since it affords the author certain valuable benefits not otherwise available. For example, if the author of the work discovers that someone has infringed his/her copyright, the author can obtain an injunction against the infringer, and/or win a suit where damages are awarded by the court. While the author may secure an injunction regardless of registration, damages are only available if the work was registered. I also always instruct clients to place the copyright symbol and year of copyright on their works so as to deter potential infringers. 

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Many writers and producers mistakenly believe that Writers Guild of America registration protects their idea, treatment or screenplay. The WGA does not provide protection against infringement. As such, WGA registration only serves to provide evidence at trial regarding the date of WGA registration.  The WGA cannot testify as to the originality of your idea, treatment or screenplay, or the validity of your infringement claim.  Self-mailing is also thought by many to be an effect means of copyright.  Essentially, this entails the author placing the work in and envelope, mailing it back via certified mail, saving it upon receipt, and not opening it.  The reasoning behind this is the unopened envelope, which is post dated, can be used as evidence in a court proceeding to provide verification as to the date of existence of the work.  This provides no more protection than the unregistered copyright. My advice - register the work with the U.S. Copyright Office. 

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Most importantly, the Act does not protect ideas, concepts, principles and discoveries.  Therefore, never share your ideas to anyone who has not agreed previously to purchase it from you, or attach you to it as its writer or producer.  Why? Because contract law can protect you where copyright law falls short. Do not pitch the idea or screenplay if the intended recipient refuses to agree, since your idea will become public domain material once it leaves your mouth.  If they agree and you pitch the idea, then follow up the pitch/meeting with a letter of thanks for his/her time, reiterating the purpose of the pitch/meeting, and how he/she agreed to pay, or attach you, should they decide to use your idea.  Sending the letter will remind the recipient of the agreement, and it will provide you with some proof of an agreement should they use your idea without paying you.  Again, since ideas are not protected by copyright, you should ask the recipient to not disclose the idea without your permission, and you should include this in your letter as well.

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If you are ever asked to sign a release, take the time to read the release.  You probably discover that the release gives the other side full use your idea without compensating you for it. As such, it is highly unlikely that you will be attached to whatever project they develop from your idea, since there was no understanding of your attachment.  I always advise writers against signing releases. If you must, then hire a qualified entertainment attorney or business lawyer to review and revise for you.

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The best protection for your idea, treatment or screenplay is non-disclosure, but that approach is impractical if you intend to have a career in filmmaking.  The next best alternative is registering your work with the U.S. Office of Copyright and creating oral contracts, as detailed above, to protect your ideas during the pitching process.  The aforementioned procedures for protection are not a guarantee against theft, but they are a deterrent with legal punch.