The 10 Missteps Screenwriters Must Avoid
1. Submitting Scripts Without Legal Protection
A common first step for many screenwriters after they have completed their scripts is to send their work to studios, producers, or competitions. However, without proper early protection, screenwriters can be vulnerable to irreversible risks. Proving ownership or handling infringement claims can be personally and financially burdensome. Moreover, unsolicited scripts, especially those that are not properly protected, often cause hesitation within the industry as many companies are reluctant to accept such submissions.
2. Delaying Copyright Registration
Submitting a script before registering it with the U.S. Copyright Office can make it more difficult to prove your case in an infringement case. While copyright protection begins upon creation on paper, official registration significantly strengthens that protection. Not only will it help you avoid being wrongfully accused of infringement, but it also makes it easier for you to enforce your rights.
3. Signing Work-for-Hire or Submission Agreements Without Legal Review
Submission agreements, while necessary, should be reviewed carefully. By default, the creator of a product automatically owns the copyright, even if someone else paid for that product. If someone else pays you to write a script, it is your work and your property until you sign your ownership right away. Therefore, any agreement should be reviewed by legal representatives to ensure your rights are protected, as ownership can be transferred without proper compensation, boundaries, or even your knowledge.
4. Confusing General Ideas with Protected Expression
Many screenwriters mistakenly believe that broad concepts, themes, or premises are fully protected, overlooking the "substantial similarity" standard. Ideas, such as a story about two rivaling families or enemies turned lovers, are not protected under copyright laws. However, the expression of ideas is protected. More specifically, the medium that an idea was created and built upon, such as a script, code, musical score, or artwork, is protected. The best way to avoid this confusion is to understand that copyright laws protect expression of ideas, not the idea itself, and to understand that the expression typically takes the form of a tangible medium. It is best to have a lawyer help determine what is an idea and what is an expression of the idea.
5. Overestimating Fair Use Protections
Fair use protections allow limited use of copyrighted materials without permission. However, it is important to understand that the protection does not have an absolute legal standard or checklist to follow. Incorporating clips, references, or parodies without a nuanced fair use analysis can lead to infringement claims. Because of its flexible nature, consulting with a lawyer is the best way to avoid overestimating fair use protections.
6. Creating Unauthorized Derivative Works
Scripts inspired by existing characters, franchises, or life stories require proper rights and clearances to avoid legal disputes. If there is a copyrighted work that you want to expand upon, you must either obtain permission from the copyright owner or build on the original work with new, original, copyrightable elements. The best way to ensure your derivative work qualifies for copyright protection is to consult with a lawyer.
7. Failing to Monitor and Enforce Your Rights
While minor unauthorized uses may seem insignificant and unnecessary to follow up on, continuous permission of minor misuses without consequence invites repeat offenses and will weaken your intellectual property (IP) claim. Your claim to exclusive rights will become harder to prove as non-enforcement can be seen as a waiver of your IP rights. Further, your IP could lose value altogether if it becomes associated with other companies and products unaffiliated with your brand. It is important to raise every infringement you become aware of with your lawyer.
8. Misusing AI-Generated Content in Scripts
With the rise of Artificial Intelligence (AI) use in nearly every industry, many feel pressured to use it. While it is encouraged to experiment and incorporate AI into our work, relying on AI tools without understanding copyright limitations exposes scripts to unprotected status or infringement risks. Use of AI can largely increase the risk of plagiarism, as the programs are typically coded to draw from sets of existing works. AI has also been known to create "facts" of its own when answering a user's prompt and should therefore never be used as a sole fact checker. AI currently also cannot hold copyrights. This means taking large portions of an AI-generated script can potentially infringe on the original code used to create the AI tool.
9. Overlooking Chain of Title and Life Story Rights
In the development of true stories or content in which its ownership has been transferred to you, ensuring the Chain of Title and Life Story Rights have been properly documented is important to limiting legal risks. These agreements confirm your ownership of the story, no matter if it was someone else's before or if it is about someone's personal life. Creating an agreement with comprehensive rights can secure access to financing, distribution, interviews, diaries, and cooperation from your person of focus.
10. Underestimating Hollywood's Legal Landscape
Lastly, while copyright law is intended to protect the rights of creators, studios often prevail in copyright lawsuits, especially in cases with small creators and big corporations, who have greater resources to engage in legal proceedings. Further, creators bear the burden of proof – both copyright ownership and evidence of unauthorized copying of copyrighted work must be proven – which can be challenging in many cases. Examples like the 50 Cent right of publicity lawsuit and the copyright lawsuit involving Alison Brie and Dave Franco show how complex outcomes can be.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
