Screenplay copyrights and cowriters

K

klwilbur

Member
I searched the BBS for an answer on this, but I didn't find anything.

I've registered a copyright for a screenplay that was written by a co-writer and me. From my understanding, we both have the right to independently grant non-exlusive rights to a production company to turn the screenplay into a film (please correct me if I am wrong). That means that either one of us can grant rights to anyone else without consulting each other.

My question is: if I decide to shoot the screenplay myself, how do I determine if/how much the co-writer gets paid?

It is hard to assume that my co-writer could get nothing, but I'm essentially granting myself non-exlusive rights to the screenplay at no cost, so how would I determine any cost for my co-writer?

A related question would be: If I sell non-exlusive rights to an external production company for some sum of money, does the co-writer have to be paid anything?

Thanks for any clarity.

Kelly
 
If the copyright has more than one writer "owner" attached, then the work belongs to the both of you. I've never personally heard of any option to independently grant exclusive or non-exclusive rights to any entity sans permission or inclusion of the co-writer unless it's spelled out in a writer's collaboration agreement. This is also where you determine who owns how much of the work and is crucial when moving forward in an option or sale so that neither of you gets the shaft.

If I'm wrong on this, it's because my co-writer and I have always shared credit and payment for script sales / work and I've never attempted to do anything around him as his name is on the work with mine as an owner / copyright holder.
 
You'd have to agree in writing that each of you has the non-exclusive right to sell/option the film. But few companies would buy a script with this sort of agreement in place--they want to know that if they invest the money and time in a film, that another similar film based on the same script isn't in production at the same time. Both writers own the property, and have to agree to whatever deal you make (whether in advance or at the time of the deal). You can't do anything with it without an agreement in writing from him, and vice versa.
 
sean90291 and Chenopup, thank you both for your replies.

Sean...are you sure that non-exclusive rights to sell/option aren't the DEFAULT covered by copyright law (which would allow the authors to act independently UNLESS there was an agreement)?

This question comes from two perspectives...

First, I did a google search for "joint screenplay filmmaking" and pulled up a page from "The Pocket Lawyer for Filmmakers" by Thomas Crowell (which I might have to purchase). On page 67 he writes, "CAUTION! As a screenwriter, you want to have a say in how your screenplay is licensed, but unless there is a contract between you and your other joint authors specifying how and to whom a screenplay must be licensed, any joint author can grant nonexlusive licenses to the script without having to first seek the permission of the other joint authors!" Below that, he refers the reader to Appendix A: Copyright Law; Joint Authors, p. 249.

Second, I've worked in the music business for years and I have a decent understanding of copyright law from the music angle. If I co-write a song with someone else, we both DO have the right to enter into any non-exclusive arrangement to record or market that song. However in the music world, publishing monies are handled by performing arts organization (like BMI and ASCAP) which would collect royalties from radio stations and other sources and would them distribute them to both me AND my co-author.

Anyone else have Crowell's book and can look up pg 249? I have pulled up the Copyright law, but it isn't clear. It states the following:

"A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

"The authors of a joint work are coowners of copyright in the work."

However, I can't seem to find anything that talks about HOW they share the copyright.

Thanks,

Kelly
 
Kelly,

Best case in this scenario is to consult an entertainment attorney and get it straight from the horses mouth. Nothing here on this forum is intended to be gospel truth or law and I'd hate to see you or your co-writer get the shaft due to misinformation.

I just grabbed my copy of Clearance and Copyright - Chapter 6 is Writing with a Partner - great example in this case in regards to the James Bond film, Thunderball. I'm sure if you google Thunderball lawsuits, you'll find information in relation to your question.

cheno
 
klwilbur said:
...any joint author can grant nonexlusive licenses to the script without having to first seek the permission of the other joint authors!"
Click to expand...

I can't imagine any contract to option a screenplay on a 'non-exclusive' basis. Why would a company pay good money for an option if it could also be sold to some other company?
 
Wow, I'm out of touch. Guess it shows why we shouldn't take legal advice on the Internet. I wasn't aware of this co-authorship exception. It does seem that in the U.S. co-authors can grant non-exclusive rights to third parties. Maybe that's not the case in Canada, where I live and studied, becuase I've never heard of this exception! But I was curious, so I found these references (online again):

http://williampatry.blogspot.com/2006/03/joint-authorship-problems.html

There is agreement on many aspects of joint authorship, but not all. It is generally agreed that in the United States, joint authors are tenants in common, meaning all own an undivided proportional share in the entirety: 2 authors 50%, 3 authors 33 1/3% etc. Joint authors are not liable for infringement for using the work themselves, and are subject only to a (state law) duty to account for any profits earned. Joint authors can engage in non-exclusive licensing without the others' permission and the licensee is immune from suit by the other joint authors. A joint author may sell its proportional interest without the permission of the others, but cannot engage, solo, in exclusive licensing (which is the same thing as an assignment of the right licensed).


http://www.publaw.com/joint.html

Each co-author will own an equal ownership share in the work. This will occur even if one of the co-authors has contributed a greater quantity of the work than the other co-authors.

Each co-author will own an "undivided" interest in the entire work. This means that if the publishing project consists of illustrations and text that the artist and the writer will each own fifty percent of the entire work, i.e., the art and the text.

Any co-author, without the permission of their fellow co-authors, may grant non-exclusive rights to the work to third parties. However, a co-author may only grant exclusive rights to the work to third parties if the co-author obtains the prior consent of the other co-authors.

Each co-author has a duty to account to the other co-authors for any profits obtained from the exploitation of the work.

A co-author has the right to assign his/her ownership share in the work to a third party or to bequeath his/her ownership share to his/her heirs.

 
Sure enough, it seems that the exception for joint authors being able to assign non-exclusive licences doesn't really exist in Canada or the UK. At least it's vague. My understanding of the issue has always been based on co-authors being "joint tenants," which would make it impossible for any one co-author to do anything without the agreement of the other co-author(s). This taken from an article written by an IP lawyer at Lang Michener (a very large firm in Canada):

Looking first to other jurisdictions, co-ownership of copyright (absent an agreement) in the UK has been
interpreted to mean "joint tenancy," where each owner holds an undivided interest in the whole
copyright. This means that one owner who attempts to exploit the copyright without the permission of
others may be liable for infringement, and no single owner or group could license, assign or sell the
copyright without the consent of the rest. By contrast, courts and legislation in the U.S. have interpreted
co-ownership to be "tenancy in common," where each owner holds a proportional interest in the
copyright. Each owner, therefore, is not liable for infringement for non-exclusively licensing the work or
selling his or her proportional interest in the copyright without the permission of the others

...

In Canada, unfortunately, there is little guidance in legislation or case law for the default interpretation of copyright co-ownership. The Copyright Act does not contain any provisions dealing with co-ownership situations; instead it simply contains the implicit provision that (absent a deeming rule) joint authors will be co-owners of a work. For example, s. 13(4) of the Act states that owners may assign the whole or partial copyright to their works in writing, but does not specify what level of consensus is required for co-owned works to be assigned or whether it can be done by each co-owner individually. Furthermore, while it has been argued that some early 20th-century case law supports the UK position on copyright joint tenancy (as do other Commonwealth decisions), there is a noticeable lack of Canadian cases directly on point, especially as between the competing interests of the co-owners themselves. In fact, each Canadian province may have its own jurisprudence that determines whether property such as copyright is presumed to be held in joint tenancy or as tenants in common. Even with such presumption, the facts in each case could rebut it, as could an agreement among the co-owners. For example, a court may view co-ownership of copyright in a confidential document (where, presumably, the creators intended to restrict disclosure) differently than that in a published academic work (where, presumably, the creators intended to disseminate knowledge widely).

Before attempting to exploit copyright, and preferably even before a copyrightable work is created, joint authors and co-owners should agree in writing on their respective rights and obligations. Should one be entitled to "veto" a proposed licence? May co-owners license independently, or will licensing decisions be made on a majority basis? Should there be a differentiation between exclusive and non-exclusive licensing? If one co-owner licenses the work, are royalties owed to the others, or do the co-authors intend to go their separate ways with the work? May co-owners sell their "portion" of the copyright and, if so, what rights do the others have? Are co-owners entitled to develop derivative works such as sequels, adaptations or later versions? What happens when a co-owner dies?


www.jdsupra.com/post/fileServer.aspx?fName=e4f2f8dd-45f8-429a-a66c-8ab049356fd5_n.doc
 
Last edited:
Outstanding work Sean. I really appreciate your effort in finding all of this information. Isn't it amazing how much collaboration we can do throughout the process of filmmaking without understanding all the implications?

Hopefully, everything will work out between my co-author and me and these issues will be moot. However, it is nice to know that all my time co-writing this screenplay was not wasted and I will still have an opportunity to film it. The complicated matter will be how to determine what my co-auther will get paid since there is no legal provision for this number (if I don't pay myself for the non-exclusive rights to shoot it).

Thanks again,

Kelly
 
I guess another question would be, would I be able to distribute in Canada or the UK without an agreement with the co-author.

I'm not going to worry about that now, but it is an interesting question.
 
You must log in or register to reply here.
Back
Top