I’ve changed the name of the character, but I want her to be a comedienne, as this fits really well with the story. Most of the other aspects of the story are completely made-up, and I’ll probably only include a few situations based on real events.

Can I get in trouble for creating a character with the same personality and the same profession as the real person? How much can I get away with? Can I include things that this person has said in real life? This character is fascinating and needs to have her story told!

– Lex
Calgary, Alberta

Yes, you can get in trouble. She could sue you for libel, defamation — or the equivalent under Canadian law. By your description, she probably would sue, so you’ve really answered your own question.

Don’t poke bears.

As a writer, you’re naturally going to be drawn towards real-life people who are fascinating. That’s a good thing. Observe behavior. Figure out motivations and pathology. Then forget the real person.

Unless you’re writing a bio-pic, don’t base characters on anyone who actually exists. Not only are you exposing yourself to legal trouble, you’re ultimately shortchanging yourself as a writer. Real people are good in the real world, but you need characters that feel real in the universe of your story.

So stop thinking about this character as being the comedienne. Rip a photo out of a magazine and decide your character looks like this woman instead. What does her voice sound like? Where does she live? Is one of her neighbors stealing her mail? Is she trying to avoid her Bible-quoting brother?

Make her situation specific, and specifically different than the comedienne. It’s okay to admit to yourself that she inspired your character — inspiration is free to the universe. But every detail should be something you created, discovered, or wove in from the hundreds of other people you have studied. Your story will be better for it.

My question is, when sending queries should I mention that this title was previously optioned? I don’t know how a production company or agent/manager might view this. Would it be a good thing because someone else thought the script had potential or a bad thing because they weren’t able to sell it?

– Mark Violi
New Jersey

You have two different audiences.

For agents and managers, absolutely mention that it had been optioned. Anything which shows that producers are interested in your work makes you more attractive as a potential client.

Producers and production companies aren’t necessarily going to be excited that someone else had the project before them. Yes, it validates their taste a bit, but they may worry that the script has already been burned out around town. If everyone has read it and passed, what are they going to do with it, exactly?

If someone asks, always be honest about the project’s history. But you don’t have to lead with that information.

Also, it’s legit (and common practice) to make a few changes to a script and put a new date on the cover. If you’re trying to shop a script that says 2007 on the title page, there will be natural questions about why it’s so old.

I could understand if I use a work computer, but does that mean even when I’m at home? Should writers not take assistant jobs at studios?

– Chris
Sherman Oaks, CA

Screenwriters have always been assistants, because studios are a great place to learn about the realities of the industry. And in the fifteen years I’ve been working, I’ve never heard of a situation where the studio claimed legal right to a screenplay an assistant had written.

Not saying it’s impossible, but it doesn’t happen as a matter of standard practice.

You’re right to use your own computer and your own time — and that would hold true even if you worked at a Chevy dealer. If the studio has you sign a document establishing that anything you write belongs to them, well, take that seriously. Consider looking for a different job.

In most cases, what’s more important than the legalities are the formalities. If you’ve written some scripts and are in the process of looking for an agent or manager, it’s custom to talk about it with your boss and let her read something if she asks to. Don’t use her contacts as your contacts; your networking should be with other assistants.

You’re looking to preserve a relationship, both with your boss and the studio. Be respectful, even deferential, and you’re unlikely to run into any problems.

Earlier this year, a blogger going by the name Carson Reeves began reviewing screenplays on a site called ScriptShadow. These aren’t scripts for existing movies, but rather screenplays to upcoming films — ones in production, ones in development, ones in limbo.

A recent Wired magazine article by Scott Brown discusses his intentions:

[Reeves] says he wanted to celebrate the writer, promote talented unknowns (aren’t most screenwriters pretty much unknowns?), and acquaint newbie scribes with the art of the craft. “I’ve had so many emails from writers all over the world thanking me for making Hollywood feel closer and less intimidating,” he says. “It’s particularly appealing to amateur screenwriters who want to know what’s selling. You have to realize that this is information they’ve wanted for years but just didn’t have access to.”

That’s not really the case. Aspiring screenwriters have always had access to this material the same way Reeves apparently got access to it: by working and interning in the industry.

In between answering phones and trying to get their bosses on flights out of Kennedy, bright underpaid aspirants have the opportunity to read almost every script in town. Impromptu networks of assistants pass around their favorite screenplays, in the process picking the next generation of hot writers.

Studios turn a blind eye to this because it helps the industry. You want the smartest people with the best opinions working for you, and you want them to have a good sense of what’s in development all over town. A boss at Disney isn’t going to lose sleep if an intern at CAA reads a draft of that Miley Cyrus comedy. It’s expected. It’s good.

So ScriptShadow should be a good thing, right? More is better.

It’s not. And the reasons become clear pretty quickly.

There’s a big difference between reading a script and reviewing it online for the world to see. Not only are you spoiling plot details, but you’re establishing a baseline judgment for a project that’s often still in its fetal phase.

Brown’s article is alarmingly upbeat on this point:

Scriptshadow is the logical next step in our increasingly impatient attitude toward the delivery of entertainment. We’ve seen the sun set on the medieval Age of Professional Reviews, the rise of the populist recap, and the boom of real-time in-theater Twitter. The precap, however, trumps them all. It’s the kind of access Tinsel-trolls like me have been jonesing for since the ’90s, when Ain’t It Cool News hooked us with preemptive trashings of preview screenings.¹

And here’s the rub: just like the AICN reviews of screenings made studios much more reluctant to test their films, sites like ScriptShadow are making them clamp down much harder on the heretofore common practice of passing scripts around.

This isn’t theoretical. It’s happening now.

Ruining it for writers

Earlier this year, I worked on a rewrite of a potential tent-pole movie in development at Fox. A week into my writing, ScriptShadow posted a review (since removed) of an earlier draft of the same project. It was largely laudatory, but the studio went ballistic. I don’t know what pressure they put on ScriptShadow to get the review taken down, but I was suddenly given extraordinary restrictions on exactly who could read the script. I couldn’t send it to the director, the producers or anyone other than one executive at the studio. These were by far the most restrictive terms of any film I’ve written at any studio.

Keep in mind, this wasn’t X-Men or Avatar. It was one of two dozen movies that could maybe someday get greenlit. Fox legal was willing to go to war over a movie it might not even make.

The more often sites like ScriptShadow poke that hornet’s nest, the bigger the reaction is going to be. The revised terms — I couldn’t even send the draft to my agent — may become the norm. Assistants will get fired for sharing scripts. In the long run, it will be crippling for the industry, and screenwriters will suffer most:

• Screenwriters get hired based on the last few things we wrote, and if those are sealed in vaults, we’re screwed. I got my second writing assignment (A Wrinkle in Time) based on the script to my first assignment, a project that was still in active development. If that script had been locked down, I might not have gotten another job.

• If I can’t get feedback from trusted readers about the script I’m writing, it won’t be as good. Period.

• Pretty soon, blame for one of these “leaks” is going to be aimed back at the actual writer, and how would she defend herself? If I leave my iPhone or laptop unattended for sixty seconds, it would be nothing for someone to send himself one the drafts I’ve emailed to myself as backup.

I don’t want to have to write in a Fox office, on a Fox computer. But that could very easily be the future.

A better tomorrow

Several screenwriter friends have emailed Reeves, asking him to take down reviews of their scripts. Every time, he has. So I believe Reeves when he says he wants to help writers. Here are two ways he can do it:

1. Review scripts of movies once they’ve come out. Most of the scripts aiming for awards this season have freely-available .pdfs, and Reeves’ own contacts should enable him to get ahold of the ones that aren’t. Shining a spotlight on the scripts and their screenwriters would genuinely help readers see how the words on the page were translated to the screen.

2. Ask writers before posting a review. No doubt some screenwriters benefit from getting their spec scripts mentioned, just as the Black List has helped draw attention to worthy writers. As long as Reeves checks in with the writer first — making sure that a review wouldn’t derail a deal in the works — everyone benefits.

Other sites publish script reviews. The reason I’m singling out ScriptShadow is that its owner genuinely seems to have some sense of responsibility to its readers and the screenwriting community. Hell, it uses Scrippets, so it can’t be all evil.

I’m hoping that by setting the bar higher, ScriptShadow can stop hurting the screenwriters it claims to celebrate.

1. More than impatience, I think it speaks to a culture of entitlement: “It’s not fair I have to wait until a movie is out to know what happens.” Or, “It’s not fair that only Hollywood people get to read these scripts.” Guess what? It is fair. Fair doesn’t mean you get whatever you want.

The idea I’m borrowing is basically “the assistant works for the evil boss” and I don’t plan on using the same character names. I also intend on adding more characters and plots. But…and a big but, is I want to keep the title of the book as the title of the show. Seeing as nothing is really the same, I’m confused if I need to ask permission.

– Quentin
Essex, Iowa

There’s no gray area here. You are flat-out stealing, and brazenly at that. Stop.

You have a few options at this point. First and least defensibly, you can change so many of the details (and the title!) that the story feels like it’s “in the vein of” but not actually based on the book in question. National Treasure isn’t based on Dan Brown’s books, but it’s comfortably and legally within the same microgenre. It’s not the same story, but it’s the same kind of story.

In your case, there’s endless precedent for evil bosses. Do you own version. Don’t crib anything from the book at all.

A second choice is to actually get the rights. This feels like a longshot — why would a somewhat-successful author give an unproduced writer the right to adapt his book for TV? But it sometimes happens. I’ve written about how to do it.

A third choice is to simply acknowledge on the title page, “Based on the novel Title by This Author.” This doesn’t give you the right to make this pilot. You couldn’t sell it. You couldn’t produce it. But you could feel reasonably secure that no one would come after you, the same way legions of Buffy fan-fic writers don’t worry about Joss Whedon sending cease-and-desist orders. Particularly in television, there’s industry precedent for scripts that are simply writing samples. That’s what you’d have.

In her class students used scenes from previously produced screenplays, and directed actors using those screenplays. No clips from the actual films were used.

So the question is this, in order to put a section on the educational DVD of her discussing the breakdown of a script, or actors performing a scene from the script, who do we need to get permission from? Is permission from the author of the screenplay enough? Do we need permission from the studio who owns the screenplay for the film? Is this considered fair use?

– Diane
Los Angeles

Often the most interesting questions are the ones I can’t really answer. I’m hoping some readers with experience on the vagaries of copyright and entertainment law will weigh in with opinions and guidance. Craig? Ted?

In the meantime, I can offer some framework for what we’re discussing.

Studios own copyright on the underlying screenplays behind their movies. The scripts are considered works-for-hire — even if they were originally written as specs. But the credited screenwriter(s) retain the ability to publish the script, which is why I can offer my scripts in the Library without getting a call from Sony legal.¹

I recently licensed a scene from my script for Big Fish to be published in a literature textbook. The fact that the publisher went through a lot of hassle to license one fairly short scene suggests that their legal folks believe that use of even a single scene falls outside of fair use. You may disagree, and the truth is I’ve given permission a lot of times when I didn’t think it was even necessary. But my hunch is that if you went to a copyright attorney, she’d say you had to get permission.

But from whom? Here’s where I suspect there’s an important distinction between printing and performing.

If you were simply projecting a page from a script on screen while you discussed it, that feels very close to printing. In fact, studios pay screenwriters a flat fee for the option of including the screenplay on the DVD.

But since your product includes actors performing the scene, you may cross into different territory. In my experience, studios seem to have all rights to film, stage, or otherwise mount a performance of material they own. For example, if Warners wanted to make a Charlie and Chocolate Factory musical, they could use any part of my screenplay without paying or even acknowledging me. That not hypothetical; Karen Lutz and Kirsten Smith wrote the screenplay for Legally Blonde, yet their names are nowhere on the Broadway show. The author of the screenplay material is considered to be MGM.

I think fair use should cover you, but I suspect it doesn’t. I look forward to hearing other opinions.

1. I’ve avoided publishing scripts that are in limbo — abandoned but still owned by somebody — since they could theoretically be made at some point. Just this week I heard rumblings about Tarzan, a movie I thought long dead.

My question is: Besides in-text quotation marks, how should I go about crediting the books referenced? Are bibliographies fairly common or allowable in the screenplay format? Or is this only necessary in academic-type publications?

I’ve searched myriad style guides but I find little regarding endnotes/references/bibliographies for screenplays. And I’d like to get it right.

– Dave
New York City

Do you hear that? That BEEP BEEP BEEP sound? That’s a metaphorical truck carefully backing out of the wrong alley you’ve driven it into.

Screenplays don’t need to cite references because they don’t quote things. Or at least, they shouldn’t. Remember: a script is really a transitional document on the way towards creating a movie. Is your film going to have footnotes? Will a bibliography be printed on the popcorn bag?

Sure, you could have a character reading aloud from a textbook:

But this would be terrible. Terrible.

In fact, I believe this can be generalized into a rule:

Any scene in which a character quotes from a real or imaginary text will be awful.

I will quickly add the Whedon corollary:

“…unless the unlikely existence of the text is part of the joke.”

Dave, the reason you’re tempted to quote articles or textbooks is that you’re desperately looking for some authority to support your ideas. But the authority needs to come from within your script, not outside. Some examples:

• In The Matrix, anything Laurence Fishburne says has authority.

• In Iron Man, Tony Stark’s suit works because the movie says it does.

• In Up, a bunch of helium balloons can lift a house because it’s charming, damnit.

Cut those quotes. Let characters say what they need to say in their own voices.

Is this okay and considered “fair”, to talk/discuss/rant about a person like Michael Bay (or Uwe Boll, or Nicholas Cage etc.)? Do you need permission from them?

– James

Feel free to have your characters discuss Michael Bay. Say good things; say bad things; say what you want. It’s pretty hard to cross into libel territory when you just have dialogue about somebody famous like Mr. Bay. Consider what South Park or Family Guy get away with every week.

Is it “fair?” I’d say that as long as it’s funny, you’re fine. When it stops being funny and is simply mean-spirited, you risk alienating your reader. Go and The Nines refer to some real people, not always in a flattering way, and I’ve gotten no objections.

Where you get into trouble is when you take potshots at someone who is not a public figure, like that weird girl in health class. Not only is it legally unwise to call out Millie Walker by name, it’s also unconscionably lame. So don’t do that.

Back to Mr. Bay for a sec: Keep in mind that there’s a difference between referring to a real person in a movie and making a movie about that person.

If you were writing a bio-pic of Michael Bay (Born in Slow Motion: The Michael Bay Story), you would need either his cooperation or significant legal reassurance that whatever protections you were counting on (public record, parody, whatever) could really hold up in court.

Continuing to take Blount at his word, let’s assume that he’s right on the copyright question, namely, that:

1) Converting text to speech infringes copyright

2) Providing the software that is capable of committing copyright infringement makes you liable for copyright infringement, too

1) is going to be sticky — the Author’s Guild is setting itself up to fight the World Blind Union, phone makers, free software authors, ebook makers, and a whole host of people engaged in teaching computers to talk.

But 2 is really hairy. If Blount believes that making a device capable of infringing copyright is the same as infringing copyright (something refuted by the Supreme Court in Betamax in 1984, the decision that legalized VCRs), then email, web-browsers, computers, photocopiers, cameras, and typewriters are all illegal, too.

That said, a colleague of mine made a good point: It’s sort of the Authors’ Guild’s job to stir the pot. They might be wrong — they might know they’re wrong — but it’s important to have a group trumpeting the issues of concern to their members.

I think the potential win here will be for Amazon and authors/publishers to find well-priced ways to bundle the text and (real, professional) audiobook versions. I’ve never bought an audiobook, but would consider it if the premium weren’t too high.

I decided I wanted to go ahead and complete a script we had both outline, but the premise of which was his. I contacted him, and after discussion, I changed my mind. However, I decided to use only a single character from the script we had outline (and only the basic character outline, such as “prison guard” or “starship captain.” I devised an entirely new premise, dependent not all upon his initial story.

My ex-partner informed me I could not use such a character in my piece without some type of concession on his behalf. Is this true?

– Anthony
Eagle Rock

It’s “true” in the sense that he won’t be satisfied. Both of you think that something about this character has value, even though it’s purely speculative at this point.

Without knowing the specifics — and both sides of the story — I can’t offer any strong opinions on the legal or ethical issues involved here. But from a practical perspective, if you try to write this story that has some connection to the work you did together, you’re going to be dealing with this pissed-off person (or the chance this pissed-off person will reappear) for a long time.

My advice: Figure out what it is about this story/character/world that intrigues you. Then come up with something wholly your own that scratches the same itch. Maybe you think you’ve done that with your new story, but you wouldn’t be writing in if that were the case.

The treatment was written mostly out of office hours and on my own personal computer without overtime pay. My boss didn’t write a word. The treatment was always intended to be sent to a more experienced screenplay writer, and I was always happy with this. I never had a special contract for this project (nor do I have any contract with this company), doing the work in good faith and expecting at the very least my name would remain on the treatment.

However, the treatment is about to be sent to the screenplay writer and I’ve noticed today that my ‘treatment written by’ has been taken off the treatment and my boss has left her name only with ’story by’. When I asked about this I was told that it was not my film. I spent a huge amount of time on this and am quite upset, mostly by the blatant disregard for my work.

In this situation do I have copyright in the project? Should I insist on having my name included on the treatment and should I get any credit on the eventual film?

– Marley
London, UK

Not only am I not a lawyer, I’m not a British lawyer specializing in copyright. So my advice here isn’t as counsel, and shouldn’t be considered as part of any legal claim whatsoever.

That said, don’t pursue it. As frustrating as this is right now, you have the opportunity to learn from it. And so do the people reading your question.

Let me break down your statement into smaller chunks:

1. You’re employed by a film company in some sort of production executive or assistant role.
2. Your company is developing a project based on historical (and presumably public domain) material.
3. Your boss instructed you to take notes as she pitched the entire plot of the movie based on that material.
4. You wrote up this pitch as an outline, embellished with your own details. (It’s unclear whether you were instructed to embellish, or if you did this on your own.)
5. The result, a 35-page document, was sent to a screenwriter.
6. As sent to the screenwriter, that document did not have your name on it.

Let’s start from the top. You’re employed by a film company. Depending on British laws, anything you write on behalf of the company may be their property, just as a spreadsheet an accountant creates for a paper company is owned by the company. Again, I don’t know the specifics of how it works in the U.K., but in the U.S., this would certainly be a factor in any copyright claim. Writing the outline after hours on your own computer is unlikely to matter, since you were writing it on behalf of the company.

Second, the property is based on public domain sources. If this were based on a novel the producer had optioned, I doubt you would be writing in with this question, because you would recognize that the story belongs to someone else. It’s partly because the source material is “out in the wild” that you feel ownership to your creation.

In this case, the story belongs to the producer. You say she verbally outlined the story of the entire screenplay. So I ask you: if she had tape-recorded her pitch and asked you to transcribe it verbatim, would you still feel the pangs of authorship? Probably not. You’d see yourself as a typist.

Which raises the question, At what point in the embellishment did the outline become “yours”?

That’s a tough question for you to answer, and even tougher for a judge or jury.

I have some sympathy for your boss upon being handed a 35-page outline. ¹ Here is the movie she pitched you, but with changes she couldn’t have anticipated. It’s her story, but suddenly your name is on the cover, and it’s not at all clear whether the extra work is meant to impress her or grab credit from her.

To put it bluntly, are you a brown-noser or a back-stabber? An over-achiever or an underminer?

If I were in her place, I would sit you down and have an uncomfortable conversation about your job description and the difference between what you do and what a paid screenwriter does. Because imagine the scenario in which you suddenly came back with a 120-page screenplay. She would rightly be furious. You would have taken her story without permission.

Which leads us to the last point. The outline you wrote was sent to a screenwriter — for whom I also feel sympathy, because an outline at that level of detail feels like a straightjacket. But assuming the movie gets made (a big assumption), how would you hope to defend what pieces of the final product are “yours”? You wrote the outline following the instructions of your producer, so every element would come down to you-said, she-said.

Again, I’m only responding to the facts as you presented them. I understand why your feelings are hurt, but I think pursuing them further is a mistake legally and professionally. Writing up notes, outlines and beat sheets is part of a creative exec’s job description. And so is not getting credit when credit is due.

When I was in film school, the president of production for Warner Bros. came in to talk about his job. He said that his buddies back home would see his movies and always ask, “Why isn’t your name on it?”

“I’m the shield,” he would reply, referring to the Warner Bros. logo.

And that’s where you’re at, Marley. Your credit is the production company billing on the movie. If that’s not enough, take it as incentive to write or produce your own movies that will carry your name.

1. I’m using “outline” and “treatment” interchangeably. Treatments tend to be longer than outlines, but at this length, either term makes sense.