The original post for this episode can be found here.
John August: Hello and welcome. My name is John August.
Craig Mazin: Mazin is name Craig mine.
John: This is Episode 325 of Scriptnotes, a podcast about screenwriting and things that are interesting to screenwriters.
Today on the program we’ll be answering a bunch of listener questions on topics ranging from montages, to life rights, to passive heroes.
Craig: That should be pretty good. That’s a nice spread.
John: It’s a good spread. So essentially what happens is people write in with these great questions ,and we always have a few of them on the outline to get to and we just don’t get to them.
Craig: Yeah, no, because we like chit-chatting.
John: We chit-chat. So how was your week, Craig?
Craig: Well, you know John, since we’ve entered the chit-chat mode, I have to tell you I’m still just every day I feel like I’m being smashed in the face with the news. It’s relentless. And dispiriting.
John: I guess I would take some inspiration. I feel like a bunch of stuff that has been percolating for forever is now getting out. And I do think we will emerge from this in a better place. It’s just you open up Twitter each day, it’s like who was the terrible person today?
John: And sometimes they’re the people you knew would be the terrible person. And sometimes it’s a brand new person. So, we’ll see.
Craig: I feel a little bit like, did you see Team America?
John: I did see Team America. We’re going to reference Team America later on.
Craig: Indeed. So there’s that moment where the lead puppet, I can’t remember his name, just gets super drunk and he starts vomiting in an alley. And the vomit just keeps coming. That’s basically me. Every day I wake up, I look at the news, I get on my hands and knees in a dirty alley and I start vomiting.
John: Yeah. It’s a natural feeling.
John: You are in the middle of casting your project, and a question for you is – obviously you don’t need to name any names – but do you feel that the discussion of casting has changed at all just with the revelations of this past month?
Craig: Yes. For sure. I mean, we have not encountered anybody that we’ve been considering who has at all been on the radar for any kind of problem. So it hasn’t come up in a specific sense. But we’ve had a ton of conversations about it, obviously. And I think what’s clear now is that anyone that’s now casting a show or hiring a director for a show is just not going to hire somebody that there’s even rumors about. Because the damage that is done – it’s fatal. These are fatal blows to projects. And naturally our first concern should be with the human beings who were victimized, but we know that businesses by and large tend to think about things in terms of money. They’re not people, they’re businesses, no matter what the Supreme Court says. And they don’t really have feelings.
There is an enormous amount of damage that is done when these things happen. So I think right now – I mean, look, you and I, we’ve heard some rumors about people and we don’t necessarily report on rumors, because we’re not journalists, and I guess journalists don’t either. But I would be shocked if any of those people were hired at this point.
John: Yeah. I think it’s an interesting time we’re moving into because traditionally when you go into casting you get really nervous casting somebody who you worry is going to screw up in the future. That they’re going to screw up during the course of your movie, or they’re going to screw up before the movie comes out, and there will be a liability. And so those are the people that make you nervous.
I think a change that has happened is that people who worried like, oh, something is going to come out about them during the time that we’re making this thing or when we’re trying to release it, and then we’re going to have to scramble or it’s going to taint this project. And so anybody who could potentially taint the project is a liability.
Craig: Yeah. I mean, you know, this is actually a great study in sort of a before and after as the world has woken up to the reality of what’s going on. And I include myself in there because I didn’t understand the depth of the predation that was occurring. My concerns prior to all this stuff, we’ll call it pre-Harvey, was will this person be nice? Will they be difficult? That was basically it. Are they going to be nice or difficult? And now it’s this whole other thing.
And I think Hollywood – I don’t think we’ve quite yet processed or even have the capacity to process how this is going to change our industry. It is going to be a profound change in our industry. Profound.
John: I think you’re right. So that will be one of the topics I hope we will discuss at our live show December 7 in Hollywood. So, this is the official first announcement of that. December 7 here in Hollywood we’re doing a live show. We do our annual sort of Christmas-y holiday show. We don’t know who our guests are going to be yet, but we’re going to be looking for fascinating people to talk about these topics and other topics. We usually get into sort of the big movies of the award season, but also great TV. So we’ll have some amazing guests on stage, me and Craig, at the LA Film School. An event sponsored by the Writers Guild Foundation, our friends there.
So, if you’re in town, come join us for that.
Craig: And this event benefits the Writers Guild Foundation.
John: It does indeed benefit them. So, when the page is up where people can buy tickets, we’ll put a link to that. But just mark it on your calendar so you don’t double book yourself that night.
John: Cool. Let’s answer some questions.
Craig: Yeah, let’s do it.
John: Let’s start with a question from Anonymous who writes, “I’d like to get your take on the thought that all lead characters must be active, not passive. I’ve gotten the note about a passive main character numerous times, but it’s almost as if the passivity is essential to who this character is as he reacts to some of the absurdity and misfortune the world places upon on him.
“My script is a comedy and heavily influenced by pieces like Swingers and the TV show Louis where the main character is mostly passive and forced into action against his will.” So, Craig, let’s talk about some passive main heroes.
Craig: Well, the problem with passivity isn’t necessarily passivity, I think. I think the problem with passivity is that it generally is a symptom that your character doesn’t want anything. So, our lead characters are people that want something. And what they want can change. It very often does. But they are driven to achieve a goal. That is in a feature film.
In comedies, particularly episodic comedies, but we’re talking about sitcoms really where the idea is you’re watching things unfold over time, you can have cases of a show where the characters are reacting to the world around them. In Seinfeld the characters were often passive. Not always, but often. And were simply commenting. And it was a kind of dramatized version of stand up in a weird way. A show about nothing, so to speak, and that’s all right because you understand you’re visiting with these people for 22 minutes and there isn’t a beginning, middle, and end that has some sort of meaningful closure or growth for the lead character.
But for a feature, your character needs to want something. If you’re getting the note that your character is passive, it may be in fact a symptom.
John: I think you are correct. I think passive can be fine. Aimless is rarely a good quality in your hero, your main character. Aimless in the sense that we don’t know what that character wants. You’re not making it clear what the character is going for, either in the someday down the road future, the immediate future, or even like right what they’re trying to do within the scene.
If those kind of motivations are unclear, then there really is going to be a problem. You can have a character who seems to be stuck in a situation and is not driving the story. That can work as long as we understand what that character is trying to do. What this character is being prevented from doing. Even the character isn’t making like huge outgoing efforts. As long as we can see what they’re hoping for. What their aim is.
If we can see how that character imagines themselves in the future in a better place, that’s going to get you something. But I agree with you also that in movies you tend to have characters who take an action that changes their life forever over the course of that movie. Like a thing that could only happen once happens to them in the course of that movie.
In television, you know, it’s a repeated cycle. So you have so often in television comedy that main character is sort of the straight man who is reacting to the wacky characters around him or her. So you have, you know, the Frasier Crane character on Cheers is a more extreme character and is driving scenes by being sort of extreme. But when you take Frasier and you move him as the lead of his own sitcom, he calms down a little bit and everybody else around him gets a bit wackier. So, that’s kind of natural in comedy.
Craig: Yeah. I think if Anonymous is getting this note over and over and over it may be that he or she is working in the wrong genre, or the wrong format. It may be that Anonymous belongs writing episodic comedy as opposed to feature comedy. There’s nothing wrong with that. You kind of have to write toward where your voice is. It’s probably not so much about the passivity. I think you and I both agree – I think your word aimless is exactly right, because what else is an aim if not a want.
John: Yeah. I would also just look for conflict overall. Make sure there’s conflict happening within your scenes and overall between characters. I think so often newer writers tend to be afraid of conflict or putting their characters in bad situations. So, put them to the fire. And you may also just be new to the form. And so when you first have characters on the page talking to each other, you end up doing a lot of quotidian chit-chatty stuff. And that’s not a movie. That’s not TV.
Craig: No, I think you’re right that new writers will engage in the chit-chat because it’s a way for them to find a path toward naturalistic dialogue. And that’s fine. I mean, you have to learn one way or another. But the problem is if you include that in a screenplay what you’re also saying is “My training exercise to figure out how people speak naturally to each other is now also something that you are forced to sit there and watch because I also think it’s entertaining.” That is typically not the case.
The goal of the craft is to, A, write dialogue and exchanges naturalistically, and B, have them be purposeful and entertaining and fascinating and challenging and smart and clever and funny and sad. Whatever it is that you’re going for. So, these wandering kind of discussions are very common for early writers. I always feel like they’re grasping. It’s like they get proud because they say, “Look, this actually does sound a legitimate conversation.” Correct. Now, you have to just write one that people would actually care to listen to.
John: Yep. I just typed down purposeful but natural, which I think is an incredibly key thing you identified about good dialogue there. It feels the way characters could actually speak in that moment, and yet there’s a purpose behind it.
Craig: There you go.
John: Next question.
Craig: Next question. We’ve got something from RJ. I like that – it’s hard to tell – I’m just cheating ahead, the people that have written in. We have quite a few where you just don’t know the gender. It’s a mystery. I like it.
RJ writes, “How many montages are too montages?” How many montages, John? How many montages does it take to get to the center of a Tootsie Roll Pop?
John: How many montages must a man climb before he’s, you know, seen the world?
Craig: Is there a number? I think the answer is 42. [laughs]
John: So back in Episode 268 of Scriptnotes, the episode was titled Sometimes You Need a Montage, we talked a lot about montages and different kinds of montages, but I think we didn’t really answer RJ’s question here, which I think is a good question. I’m going to say three?
Craig: Oh, yeah, three is a lot.
John: Three is a lot. But, here’s what I would say. It really depends on the kind of montage there is. So let’s just see if we could list different kinds of montages because they’re very different. So, we have to start with the classic training montage and when we say that we are required to play a snippet from Team America World Police. So let’s play that here.
All right, so that’s talking about classically where a character starts learning how to do something. They get better at it and stuff goes along. But so that’s an important thing. But there’s other montages that aren’t quite so egregious or sort of montage-y. So there’s these sort of passage of time, where literally you’re just moving from one season to another season. I feel that will be a montage of shots, but it doesn’t feel like a montage. It doesn’t feel like a bunch of little short scenes. It’s just like you’re showing a passage of time.
You could have multiples of those in a movie and you’d be fine.
Changing into various clothes things, you get one of those in a movie. If you get two of those, you’ve got to be commenting on the absurdity of having two of those kind of montages.
And I would also just look for why you’re using montages. If it’s just because you don’t know how to do it any other way, or you’ve just got a bunch of stuff to stick together, that’s probably not a good reason for using a montage. There really has to be a purpose behind why you’re choosing to show it in that form.
Craig: You’re the best around. I think that there’s a certain kind of montage that we think of as a montage-y montage. So, the changing of the clothes, the training. Those things I think you get one of. I don’t even think you get one of each. I think you get one.
John: I think you’re right.
Craig: The other kinds that aren’t really noticeable as montages, so someone is driving through a new town and looking around at the churches and the restaurants and the houses, that’s just sort of – often times those will play under a kind of relaxed song or something, but I don’t think of those as montages where you’re trying to show growth, or change, or any of those silly things. It’s just the stick-outty montages. You get one, I think.
John: Yeah, I think you’re right. Here’s the other kind of montage which I think is appropriate in different genres can make it is sort of the heist montage, or the moving through a series of small steps that get you into a place or out of a place. That can be valid, too. So if you’re making a heist movie, you’re making one of those Now You See It movies, that you’re going to have multiple montages because that’s just the nature of it. Or there’s going to be some bigger event that you are going to compress into smaller sections. I get that for that kind of movie.
But for most movies, I’m going to say three. I’m going to stick with three. And only one of those can be a training or changing clothes montage.
Craig: Right. And we would like to get that training or changing clothes montage number down to zero. That would be good.
John: That would be good. You know what? I’m still going to allow them, but I would say like you have to be aware that you are entering into cliché territory and either be better than most of them, or be commenting on the nature of it to really work.
John: Cool. Christopher writes, “I’m working on an adaptation of a book. What is the etiquette on using direct quotes or lines from the source material?”
Craig: Well, I’m going to presume some things here, Christopher. I’m going to presume that the book is fictional, and I’m going to presume that you do not have the rights to the book, or else you wouldn’t be asking the question, I don’t think.
John: Oh, well maybe he would own the rights.
Craig: Well, if he owns the rights, there’s no etiquette. The etiquette is take whatever you want. And if there is some great dialogue, great quotes or lines in the book, by all means use them. If you don’t have the rights and you’re sort of doing this on spec and hoping that you can get them, then again I would say go ahead and take what you want as long as you acknowledge when you’re showing the screenplay to people that you don’t have the rights. And that the rights would be necessary. Which they would be regardless, whether you took lines of dialogue or not.
No one thinks of that as plagiarism. The whole point of adaptation is you’re taking a book and you’re taking a work of art, and you’re transforming it into a related work of art, but you’re taking the characters and the plot points and all sorts of stuff. So, yeah, you’re free to use whatever you want.
John: Yeah. Legally, morally, ethically, you know, owning the rights to a piece of property and adapting them into another work, what you have there that is usable you’re allowed to use. I’ve adapted many, many books, and rarely is there much that you get to take directly from the book. But if there’s something that’s great there, you use it.
Charlie and the Chocolate Factory was sort of an exception in that in that case I literally went through the book with a highlighter and I would save even like little bits of scene description as much as I could, just so it would be as Roald Dahl-y as possible. But most of the things I’ve worked on, there hasn’t been really a single line of dialogue that I’ve been able to take over just because dialogue in movies and dialogue in books is so different. So, you’re unlikely to be able to use that much of it.
Craig: Unquestionably. Same experience with me on the project I’m doing with Lindsay Doran. There is a novel and there’s not really much in the way of specific dialogue. There are a couple things here and there. There’s one line – really it’s a description of an object – and we loved the way the character described the object and we just lifted that exactly. So, it’s your choice. It’s entirely your choice.
Well, we’ve got our next question from Chris here in Los Angeles. Chris writes, “I have a question regarding the writing of screenplays based on documentaries. There are a few docs I’ve seen that have interested me so much that I have wanted to write a screenplay based on them. Because these documentaries are based on true events, are the stories public domain? Or are the rights to the documentary needed before writing a screenplay?”
John: So documentaries are not in the public domain. So you’re not adapting public domain material. You are adapting this documentary. It sounds like you are so entranced by how this documentary presented this material that you think that the documentary needs to be adapted into a screenplay. That is source material. That is a source material you would need to get the rights to in order to sell or make a movie based on that.
Now, it could be that you watched a documentary about some historic event that happened 50 years ago, 100 years ago, that you think is fantastic. And you don’t necessarily think it’s any one particular thing about that documentary that is fantastic, but you think the event itself is fantastic. So then you’ve gone out and watched nine other documentaries about it and you’ve read books about it and you’ve done research and you’ve taken notes and you are ready to write your own version of a movie based on these events. Then you’re free and clear I think both ethically and morally. But show your work. Show that you’ve actually done this research to create your own take on what this historic event was, or events were, and real life people.
But, yes, if you are thinking about adapting a documentary into a movie, that’s the same kind of getting of rights as working off of a book.
John: All right, tell me your thoughts.
Craig: If there is a certain kind of narrative structure to the documentary that you want to convert into a screenplay form, then I think I’m completely onboard with you that there is something specific about that documentary and its narrative structure. The way it kind of moves around in time or the way it reveals things and how it reveals things. But the actual information in a documentary is not any more protected than information in a news story.
People who appear on a documentary and tell their story, and documentaries are always nonfiction obviously, they’re telling their story. That information is now fact. And people can’t own facts. So, if I watch a documentary about something that even happened a month ago, and all I want to do is take the information that I’ve learned from that documentary and then make a movie about it, then I can do it. However, there are some areas where you have to be careful.
If you are now creating fictionalized characters of people that you saw in the documentary, well for starters you can’t do anything to defame them, obviously. You can’t take somebody from a documentary and then present them as a drunk when they’re not a drunk. And you’re only really limited to the information that you can get through a documentary or news articles or any other nonfiction sources. So the documentarian can’t own the facts about those people. They can’t own what those people said onscreen.
But, you know, if you were to make a movie you would have to maybe think about going and getting some life rights so that you could actually speak to those people and get more information. So, it’s a little tricky.
Generally speaking, I agree with you though, John, that in the casual day-to-day affairs of doing business, if a documentary comes out and it really grips people and somebody wants to make a movie of that documentary, a fictionalized movie of that documentary, they would probably go and get the rights to adapt it so that there wouldn’t be any question.
John: So, let’s make up a documentary, and I’ll show you sort of the counter examples of what you’re describing in terms of it is based on real people so you have to go do it. Let’s say you watch a documentary about this chess prodigy in Northern Canada. He’s an Inuit whose grandfather learned chess in WWII, and it had a transforming effect in this village that he grew up in. You see a fantastic, compelling documentary about this.
If you want to go off and make the feature version of this, and this is the only sort of source you have for this. This is how you found out about it and there’s really nothing else written about it other than like articles about this documentary. If you want to go off and make the feature version of this without trying to get the rights to that documentary, I think you’re in a really dicey place morally, ethically, legally to try to do your version of it.
Because maybe all these people are now dead, so there aren’t even life rights involved.
Craig: Well, if they’re dead there’s even less of a legal issue.
John: I still think there’s a legal issue because you’re adapting the work of the documentarian who made this specific film and sort of put together this whole package of an idea in terms of what this chess prodigy Inuit living in a remote Canadian village, how he was able to transform the town. I think your framing of the story and what the impacts were could very well be legally if not just morally bound up in that original documentary.
Craig: Well, I’ll give you moral on that one, for sure. I mean, if there’s one documentary, there’s nothing else, and you just take it and you just do a fictional version of it, A, that feels wrong. B, like I said, if you’re following a documentarian’s narrative structure, then I do think that there’s a real case for infringement there.
The part about the facts, that’s coming – I’ve been having conversations with lawyers recently, just you know I was starting to talk to the folks at HBO just to make sure that everything in Chernobyl is OK because I’m just pulling this all from many, many, many sources. You know, tons of books and articles and documentaries and everything. And so I’ve been getting an education, and I’m in great shape. But I’ve been getting an education on how it works and it’s actually far more permissive than I thought.
Craig: Only in the sense that people can’t own facts.
John: That’s true.
Craig: That’s really the big one. Is that they can’t own facts and they can’t own – if you film a real person saying a thing, so that person said, “Yes, you can film me saying this,” then that film in the world, that is now not ownable. The film is ownable, obviously. You can’t project that film. But what they said now is a matter of public record. And anyone can use it.
John: Absolutely. I’d also direct people back to — Irene Turner was on the show last year and we talked through things she was doing when she was making her movie based on Madeline Murray O’Hair. And the challenges that she ran into with the legal rights advisers for that because there were places where they had to sort of prove the sourcing on where stuff was, both in terms of not libeling and defaming people, but also just where these facts were coming from.
Craig: Yeah. And I’ve had to do a very, very, very extensive annotation, which I was helped with by our researcher, and then that annotation went over to HBO. And then they have their person who does an independent annotation of everything. And then we have a large discussion going through and making sure that everything is appropriate. So companies actually do quite a thorough job on these things. And for good reason.
John: Yeah. And so going back to Chris’s question, if in doing that annotation you were to find out that like, oh, almost everything is coming from this documentary, that’s probably a signal that something needs to be figured out in terms of how you are approaching the rights to that documentary.
Craig: It’s also a bit of a strange thing to do, I mean, we haven’t actually mentioned that. To turn a documentary into a non-documentary is a bit of an odd move. I’m trying to think of an example of it.
John: A few years ago there was an adaptation of Serial that was going to happen for television. And that was a case where it was moving from a documentary series about the case in the first season of Serial to a fictionalized show. And that, you know, that stuff does happen.
Craig: Well, that’s more of a branding thing, isn’t it?
John: I guess it’s a branding thing, but you know–
Craig: Because they weren’t going to tell the story that they actually told on Serial, right?
John: I don’t think it was ever quite clear.
Craig: Oh, interesting.
John: I remember getting the call about doing that. I’m like, “I don’t know how to do this.”
Craig: I say that all the time. How many times a week do you say that? I feel like I need a recording of myself saying, “I don’t know how to do that.”
John: Yeah. Actually just this last week I got sent a book that is based on a real life event that happened in a city historically – well, that narrows it down. But I was sent this and I was like, yeah, I get why that’s a movie and I totally get how that can be a movie that wins awards, but I don’t know how to do it and I don’t know how to sustain my interest in doing it for the three years it would take to make this happen.
Craig: Yeah. No one seems to care about our interest in things. They’re always just like, “No, no, no. We’re offering you a job. That’s enough, right? You say yes. I say here’s money, you say yes.” That’s the way it used to be with me, by the way. [laughs] And I was like, “Yes, I’m sorry did you say money? Yes, the answer is yes.”
Shall we proceed on to our next question?
John: Yes, let’s do it.
Craig: All right. We’ve got Josh in Enceladus City. Enceladus?
John: I’m wondering if it’s a joke. I’m wondering if this is a made up thing and it’s a reference we’re not catching?
Craig: Oh my god. Well, I’ll just ignore it and pretend it’s real. Josh in Enceladus City writes, “If I want to make a web series loosely based on someone’s life, a life,” oh, this is sort of a related question, “a life I know only through a Twitter feed, how would I go about doing this to protect all parties involved? The person in question is not famous or even Twitter famous. He’s an amusing blue collar guy who has a particular set of life circumstances that would make a great series. I’ve exchanged emails with him and basically said, ‘LOL, man, just go do it. I’d love to see that.’
“Initially this would be just a web series. Of course, we would hope that we’d follow in the steps of a web series like Broad City and eventually turn it into a TV show. So for the web series I’d be asking for a very low cost option on his Twitter account. But I would want to protect him so that if we were able to transition to a proper television show he would get paid a fair price or percentage. Obviously I want to protect myself as well, but the last thing I want to do is take elements of this guy’s life and screw him over.”
All right, Josh, well your heart is certainly in the right place. John, what advice do you have?
John: First off, I like Josh. I like that Josh is thinking not only of himself, but this guy as well. And he’s thinking about the future. And he’s thinking big. He’s thinking Broad City. So I hope all these things can happen.
When I first read the question I had skipped over the fact that he only knew him through Twitter, so I thought it was a real life friend, which doesn’t change the calculation that much, but the person you know on Twitter is basically a stranger, so you don’t know what kind of all the dynamics are going to be.
I would say that Josh is looking for an agreement that would say I am authorizing Josh to write a script and literary material – don’t even call it a script, don’t call it a television series – to write literary material based on my life and things that have been portrayed in this Twitter feed. I understand that the characters and circumstances may not necessarily reflect actual things. There’s going to be good legal language you’ll find for that. I’m going to put a link in the show notes to the NOLO legal guide for rights and rights purchases, which I think could help him out there.
But basically you want some letter that you’re both signing that states like, “Hey, here’s what we’re trying to do. Here is how we’re sort of overall framing this.” I wouldn’t get into the compensation or producer credit or anything like that in this first go around. I think this guy who you’re writing about, you know, he’s going to probably want some protection in him saying that it’s a non-exclusive option on these rights, so that you’re basically paying him no money. You don’t get to hold on to the rights to his stuff for forever, or do whatever you want for a long time.
Craig, what would you say to Josh?
Craig: I agree with you that Josh is a good guy. And so here’s the thing. Most of these things get worked out by the company. The company will want the most leeway possible. So they’re going to want to, A, pay him off one time. They’re not going to want to pay him a percentage of anything. And, Josh, I have to tell you, if you work on this show for five years and it becomes really, really successful, you’re going to get tired of paying this dude, too, every week.
Because he’s not doing anything. You’re doing it. You’re making the show. And the character is going to develop and evolve over time away from the inspiration and into what it is which is your creation that was initially inspired by somebody. So they’re going to want to do a payout. And the buyout means they are going to own the rights and life rights in perpetuity forever across the universe. For now, for you, I think the most important thing is that you actually have an email from him saying go ahead, do it. Believe it or not, that matters. He’s essentially given you permission. And you haven’t done anything yet to damage him.
Craig: See, the damaging part, so this is how this works. People can sue you if you have damaged them. If you start to portray him using his real name and having him do things that he wouldn’t do that are embarrassing, hurtful to him, hurtful to his reputation, then he can come after you. But that’s not going to happen until a studio gets involved. Right? It doesn’t get produced and therefore cannot cause damages until a studio is involved.
They’re going to handle this. So, I think you’ve actually done what you need to do.
John: I think there’s a case to be made for getting something a little bit more in writing before you go off and shoot the web series. Because a web series could be that you’re spending a thousand dollars, or it could be that you’re spending $100,000, and you want to have some protection for yourself there. And some sense of a structure before you do that.
I agree though that it’s not until you get an actual series or feature deal or something else that it becomes important to do something bigger than this.
Craig: Well, yes. Look, Josh, if you’re the money behind the web series then you’re the company. Now you’re the company that means you need a lawyer to do the buyout. And you buy it out. And here’s the thing. The guy is going to get some money that he never thought he was going to ever get in his life for that. And he has a choice to make about whether he wants that money or not.
And, again, I’m not sure an ongoing percentage is fair. I think a lump sum and a buyout is a fair. In talking with an attorney, you may both find that it makes a lot of sense for you to change the name, because his name doesn’t mean anything. Rather than expose yourself and this man to any kind of potential harm, you just use him as an inspiration but you change the name and therefore you’re really well protected.
John: Yeah. I think you’re right. I’m curious, I haven’t looked up the backstory of Cosmo Kramer on Seinfeld who is based on/inspired by a real person, so every once and awhile you see stories of the real Kramer. But I don’t know what he was paid or sort of how he was acknowledged in the genesis of the show. Our friend, Dana Fox, her show Ben and Kate, the Ben of that show was Ben Fox, her brother. And so I think he got some payment for that. But he was sort of the inspiration of that character and sort of the thought behind that character. But he wasn’t literally the actor on screen. It wasn’t exactly what himself was onscreen.
Craig: Obviously if it’s your brother it’s a bit different. Kramer, the real life Kramer, did file a defamation lawsuit against a former Seinfeld writer, but I don’t really know. It didn’t go anywhere. It was dismissed.
John: All right.
Craig: So, but I don’t think it was about the show. I think it was about something that that writer had written in a book. I mean, if you are inspired by a real life person, but you create a character with an entirely different name there really – and you never talk about the fact that it was inspired by that person – the real person really has no damages. They kind of create the damages themselves by saying that person is based on me.
John: Anybody who enters into a writer’s life kind of – there has to be some sort of general acknowledgment that if you’ve enter into a writer’s orbit, you know, you may be portrayed in a fictional version somewhere down the road. And I think a bigger discussion to have is sort of what is a writer’s moral and ethical – and legal – responsibility to inform the person that they are taking that one little aspect of a character or there’s a person who does that, but essentially if you’re a married man writing about a wife there’s going to be some aspect of your own relationship with your wife that’s going to be portrayed there. That is just natural.
Craig: Yeah. For sure. And listen there is obviously the legal stuff that we’re talking about and then there’s the ethical stuff. And any time you write something, I mean, I hear these stories. I know people write something and then they hand it to somebody and someone goes, “Oh my god, that’s me.” And sometimes the writer says, “What? No it isn’t.” Those people are like, “Yes it is.” And they’re like no it isn’t.
And now there’s a problem. Sometimes they’re like, oh yeah, that story you told was so funny and so I used it for this. And this person is like, “Yeah, but I didn’t want anyone else to know that story, even though it’s not associated with my name, or it was mine.” So, you can create interpersonal problems. And you do have to be aware of that when you do these things.
John: I had a friend who wrote to me about an executive that he had an interaction with that’s like, “Hey wait, was that character in that one movie you wrote, was that based on her?” I’m like, “Oh no, god no, that wasn’t her at all.” I could totally understand why he might have thought that, but it wasn’t. It was just a general composite of that kind of person that I’ve met. But he was convinced like, oh no, no, no, you wrote exactly that person. And a couple times in my life I have had people feel like, “Oh, that was based on this person.” And I was like, yeah, I can see why you say that, but no. It’s just my own take on that kind of person.
Craig: Exactly. There’s only so many different kinds of people.
John: Indeed. All right, Travis in Santa Monica wrote to ask, “What happens to the copyright of films and film universe specific content that is based on source material when the source material enters the public domain? For example, Ian Fleming’s James Bond character has become public domain for those adhering to the Berne Treaty, which is 50 years after his death. So, can Canada make a Bond film?”
Craig, absolve all these legal issues for us.
Craig: Well, I will do my best. So, there are two different kinds of copyrights we’re talking about here. One is a copyright on source material and one is a copyright on a movie that’s made of the source material. And these things expire at different times because they’re created at different times.
So, basically what we’re saying is, OK, Sherlock Holmes, perfect example. That’s long now in the public domain. That means anyone can create a derivative work from the Arthur Conan Doyle Sherlock Holmes stories. But you can’t take things from say the recent Robert Downey Jr. Sherlock Holmes movies because that’s still copyrighted by, I believe it’s Warner Bros.
So the copyright of the movies doesn’t change at all when the source material enters the public domain. All it means is now other people can make such movies. This is why for instance there are 14 billion different kinds of movies set in and around the world of Oz. But they can only draw on the public domain material, which is what L. Frank Baum wrote. So, for instance, very famously when Disney was making – what was it called, The Wonderful Wizard of Oz, the one with James Franco?
John: Yeah, Oz, Great and Powerful.
Craig: There you go. And at one point they have the witch turning green. Well, I don’t believe the witch is green in Frank Baum’s books. Warner Bros. I believe holds the copyright on the 1939 film which is still in copyright. And basically what it came down to is they were like when all the law dust was settled it was there is a shade of green that is our property. If you want to turn your witch green, she can’t be our green. So, it comes down to stuff like that, which is sort of fascinating.
Similarly with Bond, yes, so in Canada you can make a movie about James Bond. You cannot take any single element that has ever been in any James Bond movie.
John: Well, any single element that’s been in the movies that is not already in the book.
Craig: Correct. So, and you’d have to really make sure. And it probably couldn’t even look quite like it was in the movie, even if it’s a common element. And the truth is the movies are different than the books. And there have been so many since. So, it’s not quite so simple. And, of course, when it’s based on work that is not in the public domain in another country, like say the United States, I’m not sure how that exactly works. You may not be able to release it in the United States. So, tricky.
John: I have a half memory of an adaptation of 1984 done zillions of years ago that could not be released in the US because in the US 1984 was still under copyright. There was some problem with 1984 that it couldn’t be released.
Another thing I would point out – and I don’t know if this is the case with Bond, but I wouldn’t be surprised if it is – trademark and copyright don’t line up necessarily.
Craig: That’s right.
John: And so certain big characters are trademarked, even if their copyright has expired. And so, again, I don’t remember what happened with Tarzan, but for a while Tarzan was a trademarked brand. And so you could do a story that sort of uses the underlying novel of Tarzan but you couldn’t call him Tarzan because Tarzan was a trademarked character name.
So, there can be issues like that that are thornier than you would expect. I wouldn’t stake your house on trying to make your Canadian James Bond film when you move from Santa Monica back to the north.
Craig: Yeah, I mean, I would say that there is an interesting thing you can imagine where some of these things, like Bond for instance, let’s say the Fleming novels go into public domain globally. And eventually they will. To do a James Bond movie that is just a complete deconstruction would be fascinating. The truth is you can do that now anyway. I mean, really in the end what are you getting? You’re getting the name.
By the way, this happened because – so the Broccolis, I don’t understand the providence completely, but the Broccolis, the greatest of all names–
John: They are the producers of the Bond films.
Craig: Correct. The control that property. Somehow the copyright lapsed one way for one reason or another on Thunderball, which is one of the earlier Bond movies, and the book – I guess the rights on the book lapsed early before it this public domain stuff happened. And another company went and made – they brought Sean Connery back for I think it was called Never Say Never Again, or Never Say Death, or something like that.
John: That’s right.
Craig: And that was just Thunderball. Again, it was the same story, I believe, they just retold it different, just using the book. It has weirdly happened.
John: I should also say that our explanation of this whole copyright stuff is in no way intended to be a defense of how we do stuff. How we do stuff is genuinely crazy and needs to be sorted out. As writers, we want copyright because it protects our work. It helps us get paid. It’s fantastic for those reasons. But the way that copyright has morphed into this bizarre thing that sort of never ends and keeps getting extended is potentially really damaging for people who try to make art. So we want to make sure that we are in no way trying to defend what’s happening now. Just try to explain it.
Craig: There has been a trend in the United States to extend copyright over and over and over. And in weird way the big motivator is Mickey Mouse. Mickey Mouse should have gone into public domain some time ago. It is not. And so obviously the Disney Corporation has lobbied quite effectively to extend copyright protection in general. It is now longer than it has ever been before.
The Sonny Bono Act, I believe it was Sonny Bono, representative in Congress, who had his name on that particular extension. At some point it does need to be curtailed. I mean, the purpose of copyright ultimately was to be able to get works created in such a way that they would end up in the public domain. The copyright, the idea there – copyright is written into the United States Constitution. The idea is we’re going to create a system whereby people who want to create things will be so sufficiently rewarded in an amount of time that they will do it so that eventually it’s free.
John: Yep. Copy Right. It talks about the right to copy.
John: The right to distribute stuff. So I read an interesting story this past week about Charles Dickens who was really frustrated because at the time in the US copyright protection for British works was not enforced. And so essentially his work in the US was being pirated wildly. And so he was not seeing any money coming out of the US. And so he lobbied to sort of get the laws changed in the US, unsuccessfully. Ultimately he ended up doing a big speaking tour across the US and making his money that way.
But it was just so weird to think of a situation where American copyright law was weak and so therefore this person was not getting paid properly. And so this has become so, so flipped.
Craig: Yeah, for sure.
John: All right, let’s go to Brett in Portland. Do you want to ask his question?
Craig: Yeah. Brett from Portland writes, “I’m writing a western that takes place just after the Civil War. I have several different scenes that feature military troops and numerous soldiers. I’m having trouble distinguishing between the different soldiers. I’ve given more important characters higher rank and names obviously, but what about the soldiers who are just being given orders and such? Does giving characters numbers, for example, Soldier 1, just work from scene-to-scene? Or do those numbers continue throughout the entire script?
“I don’t want to have Soldier 1 through 10. Any advice on how I can differentiate between these smaller characters and keep them from running together on the page?”
John: Yeah, it’s brutal and there’s no perfect solution to this. I’m never a numberer of characters thing. I just find that so annoying and frustrating. And I hate reading it in the script. I find it confusing to follow up on those things. So I’ll always try to find some adjective to stick to the soldier to differentiate them from other people. Try to find some way to let us be able to track them over the course of the scene and hopefully over the course of the movie, if they do appear in multiple scenes.
If they do appear in multiple scenes, probably give them an actual name so that you can remember that. And so it becomes clear to the people. But it is truly frustrating. I would say one of the other pros to like doing the adjective name versus the numbered name is that it forces you as the writer to think something about who that character is and sort of be just a little bit more specific than giving a person a number.
Craig: 100%. Thinking about this, Brett, you say that some of these characters are just being given orders and such. Well they don’t need names at all because theoretically they’re not talking. They’re just getting orders. And in that case, I don’t bother distinguishing. You know, he turns to a soldier, gives him an order. OK, that’s fine. I know that then in the next scene so-and-so turns to a soldier, tells them to run. That’s probably a different soldier.
It’s really when they’re talking. And when they’re talking, well first of all, if they’re talking and they have one line, do we need that line? And then if we do, then I’m in complete agreement with John. I don’t like to do the number thing at all.
I just went through this actually with the production department on Chernobyl because we have like 102 speaking parts in this thing. And there’s a whole bunch of soldiers. And so a lot of the questions were, OK, we’re pretty sure these are all different soldiers, but is this soldier the same as this soldier? And so I just had to clarify, yes, this is the same soldier as this solider.
And then they get numbers, but those are production numbers. So now the production understands that what we know as soldier is actually actor number 73.
John: Yeah. That makes a lot of sense. I was thinking back to Go and there’s a scene early on in Go where Ronna is in a van with some high school kids and she’s selling them fake drugs. And so each of those kids, they’re basically only in that scene. They sort of appear outside at one other point. But I didn’t want to just – I wanted them to be individual specific. And so like one of the kid’s names is Spider Marine, which in the Smashing Pumpkins song there’s a lyric, “Despite all my rage, I am still just a rat in the cage.” For whatever reason I heard that as – I heard despite all my rage as Spider Marine. And so I had been singing Spider Marine for like a year. And so Spider Marine was the name I gave to that one character.
And what’s nice about it is it kind of feels like — I don’t know why his name is that, but it gave the hair and makeup and wardrobe departments something to focus on. And so they picked something that spoke to them as Spider Marine. And it was useful. And so I’m always fan of just giving a descriptive name for those minor characters. Also so that when they scroll up in the end credits you can sort of figure out like, oh, it must be that guy. Like Overheated Customer in Bar.
John: That makes much more sense.
Craig: Yes. No question. I mean, with soldiers, they’re in uniform and so then really if they’re just meant to go run off somewhere then they’re a soldier. If there’s something important going on, then you do. You have to think about their face, their age, everything. And then a name may be called for.
John: All right. Let’s do our last question. This is from Carrie who says, “I’ve recently gotten to Episode 109 and I was wondering whatever happened to the first song Craig recorded on the podcast with the guitar? The episode should include it at the end, but then suddenly it’s not there. I’m assuming there may have been some legal issue, but if not, where can I find that song?”
John: Yeah. So Craig recorded a song called Killing the Blues. Who was that by originally?
Craig: It was written by someone named Rowland Salley and most famously recorded by John Prine. And then by Robert Plant and Alison Krauss.
John: So it is a fantastic song. Craig did a fantastic version of it. And the reason why we didn’t stick it on the USB drives or put it on Scriptnotes.net was really a rights thing. I was genuinely worried that the rights holders to the song could come after us and say like, “Hey, you’re selling the song without paying us royalties” and they’d kind of have a point.
John: So on a podcast in general like if you’re using a snippet of music or especially you’re talking about a song, so you’re basically critiquing this little part of it, or you’re doing something where that song is used in context for a specific thing, you’re generally kind of OK with that. If you’re using a lot of it, there’s a point at which you need to be buying the rights to be using that song, just like you would if you were using that song in a movie. And I did not want that sort of liability to come back and hurt the podcast.
So that’s why we snipped it off of the USB drives and off the Scriptnotes.net. But, Craig, it got me thinking there’s a place where people do song covers all the time. Like YouTube.
Craig: Yeah, no, that’s true. And, by the way, you can – again, it’s about damages. If you record a cover of a song and you put it on anything for free, there’s no damages. If you’re selling it, yeah, sure. But you could stick it on your website.
John: Yeah. So what I think I wanted to do, Craig, if this was OK with you, is we’ll upload it to YouTube, because YouTube can actually track the rights on that thing. And if there’s any money to be made off of it it would go to the songwriter for your cover of that song.
So, we’re going to stick a snippet of that as our outro for this week, but if you want to hear the full version we’ll have a link in the show notes where you can listen to Craig’s really good cover of this song. I found the original file and it was great. So, we’ll put that up there for Carrie and for everyone else who has written over the years asking where the hell is that song that Craig was supposed to sing.
Craig: Very good. Very good. Well, I guess it’s time for One Cool Things.
John: You start us off.
Craig: My One Cool Thing this week is a videogame, South Park: The Fractured but Whole. That is the best title ever.
John: It’s a good title.
Craig: Ever. It’s great. I played the first South Park videogame, The Stick of Truth, which was spectacular. The big surprise with that game was, OK, so it’s South Park and it’s got Matt and Trey doing all the voices. And all the writing. And all the directing. Great story. But also the game play itself was really, really good.
So, you kind of ended up getting a great game and also just this incredibly long and very, very screwed and funny South Park episode. And they’ve done it again. More of the same, but with a great twist on it. And just really, really good. So, I would strongly recommend South Park: The Fractured but Whole.
You know what my trigger warning for that is? All possible trigger warnings. Every possible trigger warning in existence for everyone. Everyone. Including white people. Everyone is going to get it in this game. And does.
John: That sounds very fun.
Craig: But it’s really, really fun. It is.
John: Cool. My One Cool Thing is the Adelante Shoe Co. And so this was recommended to us by other writer friends, mutual friends. So it’s this company that makes shoes, and they make nice looking shoes. I’m wearing a pair of their boots. I like them a lot.
What’s different about them is they work with shoemakers in Latin America, largely Guatemala, and they work with them to try to figure out how to pay them a living-well wage, which is basically a price that’s well above what minimum wage should be so that a person who is working for them who is making these shoes can do this and actually sustain a family on their salaries.
So, their website is cool. I’ll send you there. They talk about sort of their transparency, their accountability, and sort of what their mission is. I dig them. It reminds me of Kickstarter and some other B corporations, those sort of public benefit corporations that have objectives beyond just making the most money possible. So, I am wearing the Havana Boot. It’s really good. But all the stuff there has been really good. So, Chris Nee I think was the one who first turned me onto them. So, I would recommend you check them out for your boot and shoe needs.
John: Some housekeeping. Next week is the Three Page Challenge from Austin. So we recorded that a couple weeks ago, but you can listen to that. If you would like to read ahead, the entries for that episode are up in Weekend Read. They’re also at johnaugust.com/Austin2017. So you can read through the four different Three Page Challenges we read through and then listen to the episode and hear from the writers themselves, which is one of the best parts of doing that show live in Austin.
And that’s our show for this week. Our show is produced by Megan McDonnell. It is edited by Matthew Chilelli.
Craig: Yeah, and whoa.
John: Matthew moved to Japan and actually just this week put up a video about his first two months in Japan which is well worth watching, about how his apartment is not haunted but sort of seems like it probably is haunted. But he was living in Akita, Japan, which I knew nothing about, and it was fascinating to see sort of what his life is like up there.
John: Our outro this week comes from Craig Mazin. But if you have an outro for us to play you can write into firstname.lastname@example.org with a link to that. That’s also where you write in with questions like the ones we answered on today’s podcast. Short questions, I’m on Twitter @johnaugust. Craig is @clmazin.
We’re on Facebook. Just search for Scriptnotes Podcast. You can find us on Apple Podcasts. Again, leave us a review if you are there because that helps people find the show.
We have all of the back episodes up now at Scriptnotes.net. We have transcripts at johnaugust.com, along with show notes.
We also have more of the USB drives. So people were asking for those. That’s the first 300 episodes, plus all the bonus episodes on one little handy dandy USB drive that you can carry with you as you make it through your day.
Craig: But the t-shirts are gone?
John: The t-shirts are done. So thanks to everybody who bought a t-shirt. So those t-shirt orders have closed. And they’re shipping out really soon, so maybe by the time people are listening to this podcast – or at least by the time they’re listening to the Three Page Challenge they can be wearing their brand new t-shirt. I’m so excited to have those on hand.
John: Cool. Craig, thanks for a fun show.
Craig: Thank you, John. See you soon.
- Tickets available for the Holiday Live Show now!
- Team America: World Police’s defense of “Montage”
- NOLO’s Getting Permission: Using & Licensing Copyright-Protected Materials Online & Off, a handy legal guide for rights and rights purchases.
- Cosmo Kramer, from Seinfeld, is based on Kenny Kramer, who sued a writer for defamation
- James Bond and the Berne Convention
- Trademark, Copyright, and a snazzy video on the difference between them from the USPTO.
- The Copyright Term Extension Act, AKA the Sonny Bono Act, AKA the Mickey Mouse Protection Act.
- Charles Dickens’ struggle with piracy in the US is illuminated in Fifty Inventions that Shaped the Modern World by Tim Harford.
- Go’s character, Spider Marine, comes from John’s mishearing the Smashing Pumpkins lyric “despite all my rage.”
- Craig’s cover of “Killing the Blues,” by Rowland Salley.
- The South Park video game, South Park: The Fractured but Whole (a sequel to The Stick of Truth) *all possible trigger warnings apply
- The Adelante Shoe Co. makes shoes for the discerning global citizen.
- Next week’s episode is the 2017 Austin Live Three Page Challenge — you can check out the pages here or on Weekend Read.
- Matthew Chilelli’s video about his definitely-not-haunted apartment in Japan
- The Scriptnotes Listeners’ Guide!
- The USB drives!
- John August on Twitter
- Craig Mazin on Twitter
- John on Instagram
- Find past episodes
- Outro by Rowland Salley, performed by Craig Mazin (send us yours!)
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You can download the episode here.