Creativity and Copyright

Legal Essentials for Screenwriters and Creative Artists

John L. Geiger, Howard Suber

• Publisher: University of California Press
• Year: 2019
• ISBN:
  9780520972742
• Edition: 1
• Topic: Personal Development
• Subtopic: Writing & Presentation Skills

What they won't teach you in film school: This expertly written reference guide breaks down copyrightlaws for screenwriters. Inspired by Strunk & White's The Elements of Style, this elegant, short reference is the perfect guide for screenwriters and creative artists looking to succeed as industry professionals.Readers will quickly understand the laws that govern creativity, idea-making, and selling, and learn how to protect themselves and their worksfrom the legal quagmires they may encounter.Written by an unrivaled pair of experts, John L. Geiger and Howard Suber, who use real-life case studies to cover topics such as clearance, contracts, collaboration, and infringement, Creativity and Copyright is poised to become an indispensable resource for beginners and experts alike.

CHAPTER ONE

Free for the Taking

What You Can Steal from Others, and What Others Can Steal from You

We believe that the [writer’s] argument rests on a misunderstanding of the nature of the protection afforded by copyright law. It is well established that, as a matter of law, certain forms of literary expression are not protected against copying.

United States Supreme Court, Berkic v. Crichton, 1985¹

We are not merely being provocative when we use the word “steal” in the title of this chapter. All too often, “stealing” is what creators feel they’d be doing if they read or see something somewhere and then use it themselves without getting permission. Correspondingly, when someone else takes something of ours, too often we say, “They’ve stolen my stuff!”

Copyright law is not simply limiting; it is also liberating. Writers often unnecessarily constrict their creativity, thinking “I can’t do that” because of copyright law. But you are freer than you think.

WORKS IN THE PUBLIC DOMAIN

Perhaps the easiest way to understand public domain is to think of it as the opposite of copyright. Any work not protected by copyright is within what is referred to as the public domain. In this chapter, we discuss the major categories of public domain materials that are free for the taking by you:

Expired copyrights

Facts/nonfiction

News and history

Ideas

Scènes à faire

Fair use of copyrighted works

EXPIRED COPYRIGHTS

Copyright protection does not last forever. Instead, protection is granted for a limited time, as set by statute. When copyright protection expires, the work then falls into the public domain and becomes free for anyone and everyone to use.

For reference or a refresher on the rules of copyright, see appendix A, “Copyright Fundamentals.”

We periodically see remakes of movies based on classic works of literature. That’s partly because those classics have fallen into the public domain. Any work by a deceased author first published before 1923 is in the public domain and is free for the taking. And that’s most of the works that literature professors would call “classics.”

For example, here’s a sampling of two classics we see repeatedly:

Romeo and Juliet (William Shakespeare, 1597)

1936—Leslie Howard (Romeo), Norma Shearer (Juliet), John Barrymore (Mercutio)

1954—Laurence Harvey (Romeo), Susan Shentall (Juliet), Flora Robson (Nurse)

1968—Leonard Whiting (Romeo), Olivia Hussey (Juliet), John McEnery (Mercutio)

1976—Christopher Neame (Romeo), Ann Hasson (Juliet), Laurence Payne (Capulet)

1996—Leonardo DiCaprio (Romeo), Claire Danes (Juliet)

2014—Orlando Bloom (Romeo), Condola Rashad (Juliet), Donté Bonner (Sampson)

Great Expectations (Charles Dickens, 1860)

1934—Henry Hull (Magwitch), Phillips Holmes (Pip), Jane Wyatt (Estrella)

1946—John Mills (Pip), Valerie Hobson (Estella), Tony Wager (Young Pip)

1974—Michael York (Pip), Sarah Miles (Estella), James Mason (Magwitch)

1998—Ethan Hawke (Pip), Gwyneth Paltrow (Estella), Hank Azaria (Walter Plane)

1999—Ioan Gruffudd (Pip), Justine Waddell (Estella), Charlotte Rampling (Miss Havisham)

2012—Toby Irvine (Young Pip), Ralph Fiennes (Magwitch), Jason Flemyng (Joe Gargery)

2013—Jack Ellis (Jaggers), Christopher Ellison (Magwitch), Paula Wilcox (Miss Havisham)

All of these filmmakers have “stolen” from the original stories of Shakespeare or Dickens. The approaches and tonality may be different, but the underlying story is the same. That’s because works by Shakespeare were never under copyright statutory protection, and works by Dickens have all fallen out of copyright protection.

Currently, the United States copyright protection period is from the date of creation through the life of the author plus another seventy years.

How do you know if a copyright has expired? For Shakespeare and Dickens and anyone else who published and passed away so long ago, you don’t need to worry or even do the math.

But what about for more recent authors, for example, twentieth-century novelists? You need to do a copyright search. Find the date of original publication, and then determine what the copyright duration was under the law at that time. Then do the math. For more about the changes (i.e., increases) in the duration of copyright protection in the information age, see appendix A, “Copyright Fundamentals.”

If you’re really concerned, you could engage the services of a lawyer for an hour or so to do this analysis for you, and then have them give you a written opinion letter confirming that the work is no longer under copyright protection.

For more, see the section about the movie Treasure Planet in chapter 7, “Confessions of an Expert Witness.”

FACTS/NONFICTION

Facts are in the public domain, and they are free for the taking.

The world is full of facts, and we don’t just mean physical properties. When was the last time you saw a mathematical equation with a copyright notice on it? That’s because the equation is a fact (or at least the author claims it’s a fact).

Works published by the United States government are in the public domain because they are expressly excluded from copyright protection.² The government is not in the business of writing fiction. (Individual politicians may very well be, but the institution as a whole is not!) Moreover, government writing is done using our tax money. We taxpayers—the public at large—are the patrons. Public patrons, public domain.

The federal government writes training manuals, informational pamphlets, and other such pragmatic nonfiction. And the government is the publisher of the transcripts from court proceedings (which, as you might imagine, can be very fertile ground for story material).

For storytelling purposes, the most useable facts typically are those involving real events and real people. Perhaps the two biggest categories of factual works are biography (true life) and news and history (true events).

Biography—and biopics—are discussed in chapter 2, “Clearance Required.”

NEWS AND HISTORY

News is the factual reporting of current events. History is the factual reporting of past events.

We can hear you grumbling from here! You say, “But news is sensationalized to attract an audience, history is written by the winners, and there is ‘fake news’ all over the place.” We don’t want to delve into a philosophical discussion about the nature of facts; that is, the reporting of an event is tainted by the subjectivity of the reporter, and therefore calls into question whether there are any purely true facts. People have argued over these issues for at least 2,500 years and we don’t expect we could resolve the debate.

For copyright purposes, a current or past event is free for the taking, no matter whose version you believe, and even if we don’t have complete agreement on what the event is.

Even speculative ideas about history are, for copyright purposes, the same as historical facts.³ That’s because the speculation is presented as if it were history. When you speculate about history, what you conclude is not protectable. You can only protect how you say it. For more, see the section on Amistad in chapter 7, “Confessions of an Expert Witness.”

Sometimes the writer wants peop...