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Friday, April 16, 2010

WGA REGISTRATION vs. COPYRIGHT REGISTRATION


For screenwriters who use the latest version of Final Draft ® to help write their script, one nifty feature is the ability to register the screenplay with the WGA-West Intellectual Property Online Registry with the touch of a button. Many (if not most) screenwriters register all of their scripts with the WGA Registry, and, believing that they have done all that is necessary to protect their script, they neglect to register the script with the U.S. Copyright Office of the Library of Congress (http://www.copyright.gov).

Imagine their surprise when someone steals their screenplay and they learn for the first time that, other than establishing a date of creation, the WGA registration gives them almost no benefits at all. In fact, relying solely on the WGA registration can prove extremely costly for the following reasons. 

First, although copyright protection exists at the moment of creation, registration with the Copyright Office is required before a lawsuit can be brought. Because it can take up to six months from the time the application is mailed to the Copyright Office until the application is processed and returned, if the writer needs to immediately file a lawsuit (i.e., in order to enjoin the movie's distribution), he must apply for an expedited registration, for which the Copyright Office charges an additional $760.

Second, if the writer registers the script with the Copyright Office only after the infringement has taken place, he will be barred from recovering attorneys fees or statutory damages in the lawsuit.

Third, if the script is registered prior to or within five years of its publication, the registration acts as prima facie proof of ownership of the script in the event of a trial. There is no such benefit from the WGA registration. 

The only real advantage of the WGA registration is that, in the event of a lawsuit or a credit arbitration, the WGA will have an employee appear and testify concerning the date of the registration. But this is rarely an issue during litigation. 

Therefore, if you are a screenwriter wondering whether to register with the WGA or the Copyright Office, the answer should be clear - always register your script with the Copyright Office, and, if you have the extra $10 or $20, register with the WGA as well. And if you have scripts in your drawer that you registered in the past with the WGA, but never bothered to register with the Copyright Office, now is the time to do so. Before the work is infringed. . 





WGA Registration

Copyright Registration


Cost

$10 WGA members
$20 non-members

$35


Duration of Protection

5 years, but renewable for additional 5 year
terms


If author is a natural person – author’s
life plus 70 years; If author is a corporation, anonymous or
pseudonymous, then 95 years from publication or 120 years from
creation, whichever is shorter.


Allows Immediate Access to Court?

No

Yes


Allows for Attorney’s Fees If
Infringed?

No


Yes, if registered prior to infringement or
within 90 days of publication

Allows for Statutory Damages If Infringed?


No

Yes, if registered prior to infringement or
within 90 days of publication

Will Accept Submissions Over The Internet?

Yes


Yes

Acts as prima facie proof of ownership?


No

Yes


Will have employee appear in court to
testify about date of submission?

Yes

No




Larry Zerner is an entertainment attorney in Los Angeles who specializes in copyright infringement litigation. He can be reached by email at  Larry@Zernerlaw.com or by phone at 310-203-2299.

7 comments:

  1. An interesting summary.

    I have two corrections, however :

    The item labelled 'Duration of protection' for 'Copyright Registration' is listed as:

    "If author is a natural person – author’s
    life plus 70 years; If author is a corporation, anonymous or
    pseudonymous, then 95 years from publication or 120 years from creation, whichever is shorter."

    That is misleading. That is the duration of protection WHETHER IT IS REGISTERED OR NOT.

    It is misleading to imply that it is the duration of protection that is available *only* if you select the 'register' option. (Especially when everything else in that column only applies to early registration !)

    Another correction - Copyright registration can be prima facia *EVIDENCE* of ownership, not prima facia *PROOF*.

    It is 'evidence' (rather than 'proof') because it can be rebutted -although if there is no opposing evidence it will be taken on it's face value. I know that we still find people calling it 'proof' but if we all stuck to the actual meaning we'd make life easier for when you have to explain that 'proof' isn't 'proof' ! A quick google fight shows that the sensible option is winning with 85% of the references ....


    An example involving boring clerical mis-statement: http://www.louisianalawblog.com/intellectual-property-fifth-circuit-addresses-copyright-ownership.html

    A more interesting example of when copyright registration is not taken as proof of ownership is Fellini's La Dolce Vita case:

    http://thresq.hollywoodreporter.com/2010/04/fellini-la-dolce-vita-lawsuit.html#more

    (Anything that involves allegations of forgery on perjury is always more interesting than a clerical mistake !)

    Thanks for the interesting summary,

    Mac

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  2. Hi, there.

    Just passing to make a consideration.

    The Copyright.gov website is just fantastic, with all the Eco (Electronic Copyright) thing.

    But there's one thing they've introduced -- I believe recently -- which is the public display of data. And with that I mean: online.

    If you register with Eco, they publish your home address -- or your office address. [I believe it makes little difference when you can't check the security of your own whereabouts.] "It's data available to the public," they will answer you if you ask them.

    Yeah, all right. But there are many ways to handle public information, and just slapping it online is kind of weird. The information can still be public and accessible to the public if they give it to you upon request -- ie: by means of a written request.

    Architects' and engineers' design and plans of buildings are public acts as well, but you won't find the detailed plans of the most famous buildings on the net [you will find an "abstract," but you won't find the maps of the plumbing, or the maps of the power cabling.] Certainly, if you qualified and had a good reason to see them, you will be granted access, but you'll have to sign a request.

    So, the only way to avoid that public slapping of personal data on the net the Copyright Register does, is to register with a third party firm, so that they put their address instead of yours.

    If you want to know my address, just call the firm, and tell me why. If you want to buy my project, or for whatever the reason, I'll be the first to contact you.

    Again, one thing would be mailing the Copyright Register asking them to know about an author's specific address, that I can understand, but put mommy's address on the net, is kind of weird IMO.

    I'm going to underline that the big enterprises are covered. It's the unknown author, the loose little fish dangling at the end of the food chain, whose data are badly handled when put on line.

    The problem doesn't rise much if the unknown author remains unknown. Nobody will care where you do live -- but a problem of form still exists --

    What if I earn a gazillion dollars? Why should mommy's or my family's address be online?

    I shall stick with the WGA until the Copyright Registry policy about personal data put online -- ie: display of your home address -- is going to change.

    If -- and when -- I'll be famous, I'll ask my attorney to eventually register the script, putting his firm address [not his home address] on that cursed line.

    Call me paranoid.

    M.

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  3. Thank you for the very useful info.

    How are an author's rights protected regarding rewrites, whether done by the original author or someone else?

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  4. When you file with the copyright office there is a section on the application that deals with filing a changed version of a previously registered work. The registration for the rewrite protects the material that was added. The original version is still fully protected.

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  5. Thanks Larry.

    Do subsequent revisions require additional applications/fees? I guess my related question is, at what point does a revision require a separate filing?

    If a script goes through 8-10 drafts over its production lifetime, that's a lot of copyright ground for a writer to cover. (Or is it the responsibility of the production company once it's optioned?)

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  6. Can a PO Box be used for the address?

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  7. Easiest way to copyright is using the online system. It's a bit antiquated but can process immediately. Not sure re P.O. Boxes but I'd think so. You'll have to check the site. Note also that copyright info is PUBLIC RECORD. Can be searched using the database to determine who holds the copyright and contact address.

    ReplyDelete