John August

Rights and Copyright

Getting clearances

QandA, Rights and Copyright, The Nines

questionmarkI’m working on a series of web films that I fancy to self-produce and distribute through Youtube, etc. I’m curious: is there an easy (i.e. free) way to confirm I’m not stepping on anyone’s toes with the names I’ve chosen for characters, companies, products, etc in my story?

I know there’re entire businesses dedicated to tracing and checking this information for those in the industry, but I’m limited to typing the names into Google and hoping no results appear.

Is this worth worrying about, and is there an easy way to go about it?

— Russell Gawthorpe

answer iconWhat you’re talking about are called clearances. There are companies that do that for you (the [de Forest Report](http://www.deforestresearch.com/)™ is the best known), but for smaller projects it’s not hard to DIY.

As an intern at Universal, one of my assignments was handling clearances for the art department on the Kevin Costner film The War. They had a bunch of vintage signs, and my task was to figure out whether any of the brands or companies featured were still in business. This was pre-internet, so I ended up making a lot of phone calls.

When checking clearances, you’re hoping for one of two outcomes:

1. There’s nothing/no one with that name. You’re clear.
2. There are so many items or people with that name that no reasonable person would assume you’re talking about it/him specifically. ((But location and job might be a factor. “Bill Smith” is generic and ubiquitous, but if the character is a police sergeant in San Diego, and there is a real William Smith working for the police department there, you have an issue.))

But when you’re checking clearances, you often find yourself in a middle ground. There’s somebody or something with that name, or close enough to it that it might be a problem. If that happens, you can talk to the person and ask them to sign a clearance release. It’s a pretty generic “we won’t sue” form that your producer (or attorney) will provide.

In other cases, you’re presented with a logo or artwork that may or may not be someone’s trademark. To the degree possible, you avoid it. But a sizable percentage of clearances really come down to a judgment call: what are the odds someone has the rights and will care?

The Amway-like pyramid marketing company in Go was originally called American Products. We couldn’t clear that name, so we came up with a list of alternatives and checked each one. I picked Confederated Products, which I loved even more.

Clearances are standard procedure for making movies and television shows. Your “Errors and Omissions” insurance requires it. [Bad things can happen](http://www.piercelawgroupllp.com/articles/clearance-procedures.pdf) if you miss something.

But that’s for features and television. For your web shorts, you’re already doing more than most folks would. I wouldn’t stress out about it. If you feel like a little more due diligence, take screenshots of your Google results. Keep a file of everything you researched. The more documentation you have showing that you acted responsibly, the better protected you’ll be in the very unlikely case someone protests.

Finally, a word about YouTube: Thanks to the DMCA, corporations can get your stuff yanked without warning. It happened to me.

A Very Big Corporation felt the first trailer to The Nines infringed on their copyright to A Piece of Intellectual Property, and got it pulled from YouTube in less than an hour. They didn’t have to prove anything. AVBC and I have since hashed out that disagreement, but it was sobering to see that as the creator of the video, we had almost no recourse. If you attempt to appeal, YouTube repeatedly reminds you that you’re [an idiot for even trying](http://www.google.com/support/youtube/bin/answer.py?answer=185223).

None of this should scare you away from making your shorts. Avoid the names of real companies and real people — especially classmates from junior high. But you don’t have to make your films in a hermetic, brand-free bubble in which everyone is named Smith. Unless that’s the idea for your web series. Because that’s not a bad idea.

You can’t copyright titles

Film Industry, QandA, Rights and Copyright

questionmarkI am currently writing a screenplay and just curious when you think I should begin legal counsel. I think I need to copyright the movie name especially since I just created a Twitter account using it. Since I’m only about half way done it seems a little premature to begin the process. What do you think?

— Michelle
Madison, Wisconsin

This is an evergreen question, and the answer will never change: you can’t copyright titles.

Copyright is a bundle of protections granted to the creator of a work. It doesn’t cover the pure idea (“Save the Last Dance with dinosaurs”); it covers the expression of the idea (your original, 120-page screenplay Dinosalsa: The Jurassic Dance).

Your title alone simply isn’t enough to copyright. Even a work that is copyrighted (like a novel) has no special protection for its title. If you don’t believe me, do an Amazon search for [“dead of night.”](http://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Daps&field-keywords=dead+of+night&x=0&y=0)

What you’re talking about is trademark, the little TM (or R) that you might see after a title like Transformers. But that’s actually uncommon for movies. Transformers has it because it was originally a toy line. This week’s number one movie, The Roommate, has no trademark on its title. Ditto for True Grit, The King’s Speech and No Strings Attached.

When a movie is inching closer to production, the producers can register a title with the MPAA, giving it some exclusivity. As we started shooting The Nines, we had to clear the title against The Whole Nine Yards and a few others. Likewise, we had to give our blessing to the subsequent movies 9 and Nine.

MPAA title registration isn’t copyright or trademark. It’s a non-governmental system specific to the [motion picture industry](http://www.mpaa.org/faq):

> The Bureau is a voluntary central registration entity for titles of movies intended for U.S. theatrical distribution, and it is intended to prevent public confusion over films with similar titles.

> In order to register titles, filmmakers must subscribe to the Bureau’s registry. There are currently almost 400 subscribers, including all of the major motion picture studios. Subscribers are bound by the Bureau’s rules, which prescribe procedures for registering titles and handling any related disputes.

You can’t copyright your title. You can’t trademark it (most likely). And at this early stage you can’t register it with the MPAA.

But the little steps you’re taking will be helpful down the road. If possible, you’ll want to have the URL and Twitter name for your movie. If your movie gets made, these will be a big help for marketing. Squatters will often snatch them up, so it’s worth trying to grab what you think you might use.

Surviving the director’s rewrite

Directors, QandA, Rights and Copyright

questionmarkI had a producer option an (award-winning) spec script from me for $1. Over the past 18 months I’ve undergone about eight substantial revisions and a few smaller ones based on their notes. All revisions were done on good faith, meaning without pay.

Recently we agreed that the producer could be attached as Director. They then asked me if they could do a Director’s pass to the script. I said I preferred they give me notes and I execute them. They said it wasn’t possible for them to find funding and get actors attached without first doing a Director’s pass.

I understand that in Hollywood a Director’s pass is part of the process. However, I feel at the independent level (the proposed budget is under $700K) I should be able to retain creative control until production since this is supposed to be a calling card piece for all involved, especially because I have not been paid for my revisions. What do you think?

— Bill Haley
Greenwood, Indiana

The producer/director is not happy with the current state of the script. Whether she’s saying it or not, that’s what is really going on.

There is no grand tradition of a “director’s pass.” When it happens, it’s because some directors (1) believe they can write and (2) believe they can fix the perceived problems in the script. They may say they want to “make it their own.” But underlying that is the fact that there’s something about the script that bugs them, and you haven’t been willing or able to address it.

You’ve been (much) more than generous by doing a ton of free work backed by a $1 option. ((Bill can do this free work because he’s presumably not a WGA member, and the producer isn’t a WGA signatory.)) Based on the option agreement you signed, she may already have the right to bring in another writer, including herself. If so, you’re not going to improve the situation by creating a fuss. Be as supportive and constructive as you can.

Maybe she’ll surprise you and make some great changes. Remember: directing is a performance. Just like some actors can’t make sense of certain lines of dialogue, some directors can’t make sense of certain scenes. If she can recognize and correct for her weak spots, the movie will ultimately benefit.

If you’re not happy with her revisions, let her know why. Be specific and non-defensive. If you feel the script is really going off the rails, you may just have to hope she doesn’t get the movie made and you’ll have the chance to let the option lapse.

At that budget level, you do have some potential protections. It may be a little late to insist on one of the [WGA’s Low Budget Agreements](http://www.wga.org/content/default.aspx?id=924), but keep them in mind for next time; it could help protect your credit and back-end money. And with the dollar figures so low, you’re right to insist on greater creative controls. Don’t agree to further option extensions without both a conversation and a contract specifying how it’s going to work going forward.

No one stole your idea

Rights and Copyright

I have very little patience for accusations that someone “stole my idea for a movie.” Or a TV show. Or an [episode of Grey’s Anatomy](http://johnaugust.com/archives/2007/she-was-mistaken).

Such complaints are common. Sometimes, it becomes a copyright lawsuit. More often, it’s a campaign of whispers. As noted in the aforelinked post:

> A while back, a screenwriting colleague was dealing with a guy who was claiming on message boards that a certain blockbuster was stolen from his script. The “proof?” One of the characters had the same name. Basically, the guy was arguing that the screenwriter had changed the plot, the setting, the character’s motivations — pretty much everything but this one character’s name. It’s hard to claim that a conspiracy is both thorough and lazy.

In almost all these cases, the question fails once you consider the [silent evidence](http://johnaugust.com/archives/2007/silent-evidence): if the script in question is just as similar to a dozen other unproduced scripts, it’s hard to claim infringement, legally or spiritually.

When these cases make it to court, studios will often do the back-of-envelope calculations and decide it’s more cost effective to settle than fight. Any case you put before a jury is a case you can lose. The plaintiff’s attorneys know this, so they will forego upfront fees in exchange for a piece of the settlement.

So I was heartened to see that last week, a studio decided to fight and won. The case involved a lawsuit over the Jane Fonda/Jennifer Lopez comedy Monster-in-Law. Recaps Eriq Gardner for THR’s [law blog](http://www.hollywoodreporter.com/blogs/thr-esq/woman-owes-900k-failing-convince-74454):

> Not only did Gilbert [the plaintiff] lose, with the judge finding “vast differences in characters, plot, mood and theme” from her script and the film’s script, but her claims were deemed so unworthy and motivated by “bad faith” that the judge last month ordered Gilbert to pay the defendant’s legal tab.

That legal tab? $894,983.

Ouch.

I don’t know that the result will have much of a chilling effect on future litigants, but I hope it will embolden some studio lawyers to fight back.

These bogus claims of idea theft feed pernicious myths about Hollywood:

1. That movie ideas have much worth independent of execution.
2. That writers and writing are secondary to the idea.
3. That big ideas emerge unique and fully-formed without antecedent.

Additionally, these lawsuits obscure the very real ways working screenwriters find their ideas used without compensation. When developing a feature based on some existing material, it’s become common for producers to meet with six or eight writers to hear their takes. These bake-offs almost inevitably lead to cross-pollination, which raises the real question of whether writers are being used as unpaid R&D.

It’s this kind of intellectual appropriation — not “what the movie is” but “how to do it” — that is a much bigger issue in modern Hollywood. But because it’s subtle and hard to document, it doesn’t lend itself to headlines.