John August

Rights and Copyright

Permitted filmmaking

Film Industry, Rant, Rights and Copyright, Sundance

Writer/director [James Ponsoldt](http://www.imdb.com/name/nm1242054/), one of the fellows at this summer’s Sundance Filmmakers Lab, emailed me some information about new regulations on filming in New York City’s five boroughs. Under the proposed rules ([.pdf](http://www.nyclu.org/pdfs/nyc_photo_permits_proposed_rules_052507.pdf)), a city permit would be needed for:

* Two people with any camera, shooting in a public location (defined as any area within 100 feet of where filming begins) for a half hour or longer, even if the camera is hand-held, including set up and breakdown.

* Five people with one tripod, shooting in a public location for over 10 minutes, including set up and breakdown.

I have no doubt that the rules are well-intentioned. Anyone who’s lived in New York or Los Angeles has dealt with the inconvenience of film crews — that’s why there’s a permit process. But there’s a difference between a true film shoot, with its trucks and dollies and light stands, and two guys with a videocamera.

Would these rules really get enforced? It’s hard to say. But even rarely-used laws are a Bad Thing if they criminalize free expression. Videotaping a protest march could be deemed illegal under these rules.

Thanks to sites like YouTube, video has become the new generation’s media of choice. It’s their printing press, their pamphlet, their church-door-upon-which-to-nail-theses. Placing undue restrictions on video creation undermines the spirit of the First Amendment. The Mayor’s office needs to find a way to control the burden of filming (trucks, traffic, noise) without restricting expression.

[Picture New York](http://www.pictureny.org/) has more information about the proposed rules, including a petition.

As for Los Angeles (and other cities), I can’t say exactly what the current rules are. At USC, we had to get LA film permits for our student films. That was a university policy, and made sense given their concerns about liability and guild relations. (We were able to use SAG actors under a waiver.)

This was before the age of tiny, ubiquitous videocameras. You can now shoot a film without anyone realizing you’re shooting a film. If it’s you and a buddy with a tiny camera, should you really have to register with a governmental agency? I say no. And I hope that New York’s proposed rules wouldn’t make that mandatory.

Her least favorite mistake

Film Industry, Genres, QandA, Rights and Copyright, Television

questionmarkLast year I wrote a spec episode of Grey’s Anatomy entitled “My Favorite Mistake” wherein platonic best friends, Izzie and George, hook up. I registered my script with the WGA and sent it in to be considered for the ABC writing fellowship. I never heard back from the fellowship (their loss, no biggie) but I was surprised to see that last Thursday’s episode shared a title (exactly the same) and a subplot as my spec.

I do not believe that Shonda and team copied my idea… but i do think it is possible that they could have inadvertently copied my title. They had the means, etc. So my question is a two parter: 1) should I do anything about this? and 2) where is the line drawn? Would my script have to be identical to the one broadcast to possibly be plagiarized?

— Jackie Honikman

I don’t watch Grey’s Anatomy, so I looked up an [episode guide](http://en.wikipedia.org/wiki/List_of_Greys_Anatomy_episodes) online. One of the first things I noticed was that every episode is named after a song — that’s their thing, just like the title of every episode of Friends begins “The One With…”.

Being a good spec script writer, you followed their style and picked a song title. You chose a Sheryl Crow song. So did they. What are the odds?

Huge. So absurdly huge that you’re going to feel foolish in about three paragraphs.

I know you didn’t write in expecting to be ridiculed, so I want to give you a few sentences to prepare yourself. It’s not that I dislike you, Jackie, or disbelieve you. I’m sure when you first saw the episode title, you were surprised, hurt, disappointed and angry. These are natural emotions. But then the dark engines of your brain kicked in. You convinced yourself that through some byzantine process, your idea had been appropriated. But it hadn’t. It wasn’t.

You wrote your email at the end of March.People ask how long it takes me to answer a reader-submitted question. Generally, I read them all within the week they’re sent in, and flag the ones I think will be interesting and applicable to the readership. But it’s not a first-in-first-out process. Sometimes, a question will land in my inbox that I’ll answer within the hour. There’s a big element of serendipity. But that’s not an invitation to submit the same question multiple times. That will almost guarantee that I won’t answer, since I’ll think, “Didn’t someone else just ask that?” So I’m hoping you’ve moved on, written other scripts, and laughed about how prescient you were. But in case you haven’t, I’m going to rip off the band-aid.

Let me restate your question:

I recently wrote a spec episode of Grey’s Anatomy. I worked very hard on making it exactly like the show, right down to the title. I was subsequently shocked — shocked! — to see that the writers of the show had the audacity to write an episode exactly like their own show. Who can I sue?

Put this way, your fallacy is clear — you’re confusing cause and effect. You think their “Favorite Mistake” is similar to yours because they somehow read and stole your idea, when in fact it’s similar because it’s frickin’ Grey’s Anatomy. You followed their conventions. You included their characters. You emulated their show as closely as you could.

You copied them, not vice-versa. Got it?

In terms of the title, given the show’s adult-contemporary demographics, it was pretty likely they were going to have a Sheryl Crow track sooner or later.In fact, the second episode was titled “The First Cut is the Deepest.” Sheryl Crow’s cover had topped the charts the year before. As far as I can tell from the promos (and parodies) I’ve seen, the show is about young doctors hooking up and breaking up. “My Favorite Mistake” sounds like a good fit. They didn’t need your script to come up with that idea.A while back, a screenwriting colleague was dealing with a guy who was claiming on messageboards 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 addition to the cause and effect problem, I think there’s also a fallacy of limited sampling. You’re looking at your script and the episode you saw. But if an independent reader had your script and 10 other spec scripts of the show to compare to the produced episode, would they really think yours was all that similar? I doubt it.I’m sure this “fallacy of limited sampling” has a more official name, but I couldn’t find it. (It’s not the fallacy of generalization, which infers about a large population based on a too-small sample.) If anyone can link to the proper term, I’ll be much obliged.

Or as another test, a reader could compare your script to 10 produced episodes of the show. Would he be able to tell which one your script “influenced?” Again, doubtful.

Unfortunately, this misguided conflation of “similarity” and “plagiarism” is not confined to spec episodes of TV shows. One woman claimed that both [The Matrix](http://www.imdb.com/title/tt0133093/) and [The Terminator](http://www.imdb.com/title/tt0103064/) franchises were stolen from her work. She managed to attract a fair amount of media attention before her case was [finally thrown out](http://www.snopes.com/politics/business/matrix.asp).

By targeting both The Terminator and The Matrix, this case helps point out what really underlies a lot of similarities between literary works: genre conventions. It’s one thing to put a killer robot in your script, but don’t claim you invented robots.The same goes for any variation of robot: friendly robot, suicidal robot, kleptomaniac robot, fatherly robot, existentially-angst-ridden robot. We can all think of other examples. Having a divorced cop who likes doughnuts is not original — and neither is having him hate doughnuts, or having him be psychic, or dead. Having two doctors hook up on a show about doctors hooking up doesn’t strike me as particularly original.

Again, Jackie, I’m not trying to belittle your feelings. It’s frustrating to spend weeks working on something, only to find a similar project already out there.

In my early days, I outlined a series that would chart the last years of Earth — a meteor was coming, and everyone knew it. So I was understandably disappointed when not [one](http://www.imdb.com/title/tt0120591/), but [two](http://www.imdb.com/title/tt0120647/) movies with essentially the same plot hit theaters. It forced me to look back and remember where the idea really came from: a bunch of popular-science articles at the time which mapped out what had likely killed off the dinosaurs, and what would happen if another such asteroid hit Earth.

I soon realized that my having the same idea as giant blockbusters was actually a good thing. It meant I had commercial taste. A writer isn’t one script. A writer is someone who can write. Forty scripts later, my meteor idea isn’t even a footnote in my career. Don’t let your Grey’s Anatomy spec be anything more than something you wrote.

Finding out if a book has been optioned

Adaptation, QandA, Rights and Copyright

questionmarkWhat is the best way to find out if a novel has been optioned for a film/screenplay?

–Jon Hanemann
Union City, NJ

I could swear I’ve answered this question before. But in 30 seconds of searching, I couldn’t find my previous answer, so it’s unlikely you could. And it’s so simple, I might as well answer it again.

1. Open the book to the publishing/information page.
2. Note the publisher.
3. Call 212.555.1212. This is New York City information.
4. Ask for the phone number for that publisher.
5. Call that number.
6. Ask for “subrights, please.”
7. You’ll likely get a voicemail telling you to fax your request. Follow their instructions.
8. In your faxed letter — or in the event you connect with a live person — explain that you’re trying to track down film and television rights to THIS GREAT NOVEL by This Author.

You may need to follow up a week or two later, but you’ll eventually get contact information for the author, her agent or attorney. You then write to them to ask.

What if it’s not a New York publisher, or not a US publisher, or some other special case? You can almost always find someone who knows something. Eventually, you need to get through to the author or her representatives. They’re the only people who will really know the status.

Help! I’m getting screwed on my own series

QandA, Rights and Copyright, Television

[questionmark]A year and a half ago I pitched a scripted series to a cable network and it was optioned for development.

I was contracted for and completed a series bible, and script (plus polish). Based on programming issues they were having, they decided they wanted to change the direction and tone of the series. So I was contracted for and wrote another script (plus polish) under the new creative. All of this was without a series deal in place. I worked only with contracts for the scripts. Those contracts stated “good faith” negotiations if/when they decided to go to pilot/series. Terminating me from project reverts rights to me.

They loved it, they said. A surefire hit, they said. Let’s find a showrunner, they said.

Perhaps I should have begun to sweat right then and there. But I was excited about a showrunner, especially since they were reaching out to high caliber people. Every showrunner (supposedly) said the same thing. “This is a franchise.”

I was asked to choose one of the suggested names and was excited by the options. They told us they were skipping the pilot — going straight to series.

And then came the series negotiations, and the hell I am currently in. The money offered is despicable. (As this is cable, I use peer standards, not even industry. And it was worse than bad.) My highly reputable lawyer is disrespectful and rude to me and promised numbers that he didn’t run by me first. And all credits (Creator and Producer) are subject to either WGA or CAVCO. They will not lock for life, only one cycle. The ONLY thing guaranteed is 2 out of 12 episodes written. They have made it clear that the high profile showrunner is the priority.

Is there any way to salvage this situation? How does one determine when to walk away? I am well aware of how many people would do anything to get their ideas on screen. Without a guarantee of credits or money, is it worth it?

Full rights do revert back to me, but not for approximately 2 years.

— M
Los Angeles

Get a new lawyer. Fast.

You’ll have no trouble finding one. Assuming you have an agent/manager, get them on the hunt. If you don’t, start calling the major entertainment law firms (they’re all in Beverly Hills or Century City) and say this:

“Hi. My name is Mary Writer, I have a series commitment over at Comedy Central (or wherever). I’m looking for a new attorney to close the deal.”

You’ll get someone. Trust me.

Are you in jeopardy of getting pushed off the show you created? Absolutely. But the Big Showrunner is no doubt WGA, which means “created by” credit will be handled by the WGA. Which means you’re almost certainly going to get credit. Ask [Jeffrey Lieber](http://www.imdb.com/name/nm0509340/) from Lost.

Now, stop reading and start dialing. You need a better attorney, stat.