Stage Writers Handbook

A Complete Business Guide for Playwrights, Composers, Lyricists and Librettists

Dana Singer

• Publisher: Theatre Communications Group
• Year: 1996
• ISBN:
  9781559367127
• Topic: Medios de comunicación y artes escénicas
• Subtopic: Escritura de obras de teatro

Dana Singer, Associate Director of America's foremost playwrights' association, the Dramatists Guild, gathers all the information and ideas stage writers need to conduct their careers in a businesslike manner, with all the protections the law provides. Includes chapters devoted to copyright, self-promotion, representation, production contracts, publishing and licensing agreements, underlying rights and collaboration.

Chapter 1

COPYRIGHT

COPYRIGHT is your ownership in the work you create; for the stage writer, in the plays and musicals you script. Once you have written the work, you automatically own it. It is no longer necessary to register the work with the Library of Congress in order to obtain the copyright (although, as discussed below, registration is strongly recommended).

Think of copyright as a bundle of twigs, each twig representing a possible disposition of the work. You alone have the ability to control the script’s reproduction, distribution and performance, and the creation of derivative works in all media. The rights can be disposed of singly, in clumps, or the entire bundle at once, in any variation the copyright owner wishes.

These rights are very powerful and, on a practical level, include such matters as the right to decide if and by whom the work will be revised, produced, filmed and/or published; the right to choose the agent who will represent the work; the right to negotiate all contracts and make decisions about working conditions, etc. In other words, copyright is the right to make all decisions about the work itself, subject only to the fair use doctrine addressed below.

Ideas alone are not copyrightable; only the tangible expression of those ideas—the written script, music and lyrics—is protected by copyright. There can be an infinite number of works addressing the idea of corruption in government, for instance, but each person’s expression of that idea is protected by the copyright law from being copied or otherwise infringed.

There is a fairly widespread misconception that because you can’t physically hold or visualize a copyright it is less protected by the law than, say, owning an apartment, but this is simply incorrect. The fact that copyright is intangible may make it somewhat difficult to comprehend, but that has no bearing on whether it is legally protected. People need to distinguish between possessing the physical embodiment of the work (e.g., the playscript, a book, a painting) and the copyright in that work. You could sell a famous script at auction, but the buyer would own only that copy; the purchase of that object would not extend to the underlying copyright in the work itself.

Copyright protection extends only for a finite period of time, as discussed below. It is intended to encourage creativity and artistic endeavors by guaranteeing that disposition of the work and any financial rewards it may engender belong to the copyright holder, but it doesn’t last forever. After the copyright term runs its course, the copyright expires and the work enters the public domain, thus belonging to the public rather than to one person or party.

COPYRIGHT OWNERSHIP FOR STAGE WRITERS

Whoever creates a work is the owner of that work. Stage writers always retain ownership of the copyright in their theatrical works, and this is probably the most fundamental tenet of being a stage writer. Consequently, stage writers always work as “independent contractors,” not as work-for-hire employees, in their relationships with producers, theatres, publishers and the like. By contrast, “work-for-hire” is an arrangement in which the employer, not the creator, retains ownership of the copyright, such as in the film and television industries, in which the writers sell their copyrights and any ability to control the content of their work, usually in return for substantial sums of money. For stage writers, the upfront money is typically low, but by retaining ownership of the copyright the stage writer retains control over the work. Remuneration is therefore structured differently than in other media, with the stage writer remaining able to make money from the work in all of its manifestations. The concept of work-for-hire is anathema in the theatre.

COMMISSIONS

Even when a stage writer is commissioned by a producer or theatre to create a script, the writer should always retain copyright ownership. It doesn’t matter whether the commissioning party came up with the idea for the play or has a specific piece that it wants written or pays the writer well for the work: The writer always retains copyright ownership. Note, too, that since the writer automatically owns the work once it is written, there would have to be a signed agreement between the writer and producer to turn ownership of the copyright over to the commissioning party, if that is what the parties agree. If that contract doesn’t exist, the writer retains ownership.

Consequently, all stage writers are warned to be particularly vigilant when writing a commissioned work. The contract should state clearly that the copyright ownership remains with the writer, because there are, unfortunately, producers and theatres that aren’t as well-versed in this area as they should be. Some assume that because they pay the writer to create the work, or have obtained the right to have an underlying work adapted, or provide specific ideas or guidelines for the work, somehow they “should” own the copyright. Your answer should be, resoundingly, “no.”

Don’t think the commissioning producer is left with nothing. As discussed further in the chapter on production contracts, what the commissioning party receives is the right to be the work’s first producer without having to compete with other producers, which also affords the producer significant caché for its local and national fundraising efforts. It’s also possible, depending on the terms negotiated between the commissioning party and the writer, that the commissioning party may have the right to produce the work more than once, perhaps even entering into a long-term, usually non-exclusive license with the stage writer that spans a number of years. Under some circumstances, the writer may share with the commissioning party a small percentage of her or his subsidiary rights income for a specifically defined period of time, but the negotiated “goodies” must not go so far as to encroach on the stage writer’s copyright ownership.

TERM OF COPYRIGHT PROTECTION

In order to obtain a copyright in a work created before January 1, 1978, you had either to have the work published or to file the unpublished work’s registration form with the Library of Congress Copyright Office, which would start the clock running on the legislated period of copyright protection. The initial term of protection, in those days, ran for twenty-eight years after that publication or filing; the registration would have to be renewed to obtain a second twenty-eight year period of protection, for a total term of fifty-six years. Subsequently, this renewal period was extended by Congress to forty-seven years, for a total term of seventy-five years. However, as of June 28, 1992, the renewal registration is no longer mandatory, as discussed below. Definite advantages exist to encourage the filing of renewal forms, but if a writer decides not to file (or forgets to do so), he or she no longer loses copyright ownership.

For works created since January 1, 1978, the period of copyright protection has changed significantly. The Sonny Bono Copyright Term Extension Act of 1998 retroactively extended the duration of copyright to the rest of the writer’s life plus seventy years (before that the term of copyright had been the writer’s life plus fifty years). This change was due, in large part, to the fact that the European Union had already changed its copyright laws, pursuant to the Berne Convention for the Protection of Literary and Artistic Works, to the life-plus-seventy copyright term. If the U.S. copyright law had not also changed, American writers would have lost out on twenty years of royalty payments in the European Union, because the works here would have entered the public domain that much earlier. The 1998 Act was not without its detractors, however, who asserted that copyright law already prevents or severely restricts access to certain information and works, and that extending copyright protection serves only to exacerbate the situation.

REGISTRATION

There is only one proper way to register one’s work with the Copyright Office: For plays and musicals, this involves filling out Form PA, which stands for Performing Arts, and sending it to the Copyright Office, in one envelope or package, with a thirty-dollar check, bank draft or money order accompanied by the “deposit copy” of the work that will be retained by the Library of Congress (so be sure you have another copy). Rest assured that the deposit copy is safe; there are strict procedures that prevent someone from just walking into the Library of Congress, making a copy of someone else’s script and walking out.

To order forms or circulars prepared by the Copyright Office on a wide range of topics call 202-707-9100, twenty-four hours a day, seven days a week. If questions arise, the public information number is 202-707-3000, 8:30 AM to 5 PM Eastern Standard Time, Monday through Friday, or you can speak with an information specialist at 202-707-5959.

Form PA is fairly straightforward and is always accompanied by detailed instructions from the Copyright Office. The form asks for or about: 1) the title and nature of the work, such as whether it is music, song lyrics, words and music, drama or musical play; 2) the name(s) of the author(s); 3) the year in which the work was created and, if applicable, first published; 4) the name(s) of the copyright claimant; 5) previous registration of the work or an earlier version of the work, if applicable; 6) whether or not the work is derivative or a compilation; 7) the deposit account and correspondence designation of the copyright claimant, if any; 8) certification by the person submitting the form that the information is accurate; and 9) mailing instructions.

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The completed registration form should be sent to: Register of Copyrights, U.S. Copyright Office, Library of Congress, Washington, D.C. 20559. It is recommended that you send it by registered or certified mail, return receipt requested, because the registration begins to run from the date all the required elements are received in acceptable form in the Copyright Office, regardless of how long the Office takes to process the form. The return receipt signed by an employee of the Copyright Office is evidence that it has been received; no other notice of mere receipt will be sent. Once the registration moves through the appropriate channels, you will receive a Certificate of Registration.

Keep in mind that more than 600,000 people file copyright forms each year for their plays, musicals, books, videotapes, movies, works of art and so on. Depending on the number of filings received by the Office at any given time, it can take up to six months to process an individual form; thus, it makes great sense for the writer to have tangible evidence of filing in hand, such as a signed return receipt, while waiting to receive the actual Certificate of Registration. (Also note that an author does not have to wait to receive this Certificate to begin showing the work to others.)

Some people try to cut corners. Instead of registering with the Copyright Office, they mail themselves a copy of the work but don’t open the envelope when it arrives, hoping to use the Post Office’s cancellation as evidence of the date of original creation. There is disagreement among lawyers about whether this type of evidence will sufficiently protect the creator in court. Another alternative people choose is to file the script with the Writers Guild of America, because they think one filing is just as good as another. This is not true. Filing in the Copyright Office is the best copyright filing you can effect.

This issue can be debated ad nauseum, but for the writer the bottom line is protecting the copyright. There is no risk attendant to filing the proper form with the Copyright Office and, as addressed below, there are significant potential benefits to filing in a timely fashion. Do not risk wasting time and money arguing in court about the validity of the method chosen to protect your copyright; you might lose the gamble. If you need to save twenty dollars, think of another place to cut expenses or take chances. Don’t mess with the copyright filing.

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What registration means

The Copyright Office is an office of record. Its function is limited to performing the necessary administrative tasks—processing properly submitted registration forms. It does not issue or grant the copyright itself. The law alone assumes that substantive function.

The Copyright Office cannot help:

♦ Compare copies of works by looking for similarities;

♦ Offer advice on possible copyright infringement or prosecution of copyright violations;

♦ Draft or interpret contracts;

♦ Enforce contracts or recover manuscripts;

♦ Recommend publishers, agents, lawyers or the like;

♦ Get a work published, recorded or performed; or

♦ Grant permission to use a copyrighted work.

To give an extreme example: Anyone could copy the script of Inherit the Wind word for word and register it on Form PA with the Copyright Office. The person in the Copyright Office receiving the form would sign the receipt for the envelope and process it like any other work. No one in the Office would review the form or the script for substance. No one in the Office would call and ask, “Are you sure you wrote this script?” No one in the Office would make any substantive rulings or determinations.

That the form was accepted and processed by the Copyright Office would not change the fact that only Jerome Lawrence and Robert E. Lee own the copyright to that play. Issues of substance, content and ownership are decided in courts, not in or by the Copyright Office. In the example cited, the true authors could sue the copyright infringer and present as evidence the original copyright filing. The person who filed the later registration would have to explain and prove her or his rights to the work.

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Timely registration

Registration is not a condition of copyright protection, which vests automatically upon creation, but it is crucial to register the work in order actively and properly to enforce your rights. Certain important benefits are lost if you fail or take too long to make this registration.

All the hassles and ambiguities described below can be avoided by filing the appropriate form as soon as the work is finished (meaning the work is ready to be shown to others, not the minute the first draft pops out of the printer). It is strongly recommended that you establish a habit of timely registration. It’s too easy to postpone, to place at the bottom of a list of things to do, and there is always the risk that taking care of the paperwork will fade from memory as more pressing matters demand immediate attention. The consequences may be grave if registration slips out of mind.

Registration required before lawsuit

If copyright is infringed and a lawsuit is necessary to enforce ownership rights, the law mandates that the proper copyright forms must be filed before the lawsuit can begin. Some argue that the chances of someone infringing one’s copyright are not high, so this situation should be addressed only if it arises, since it would be just as easy to file the registration when a lawsuit seems necessary rather than beforehand. This is not wise.

In any copyright infringement dispute, the issue of which person created the work first will arise, and this must be established through evidence. The act of registration will be very important in proving the order of creation. The copyright law states that if the registration filing is made before or within five years after first publication (not production), the filing will be considered by the federal courts to be the strongest possible evidence; that is, the certificate of copyright will be assumed to be valid. For example, if Writer A presents a properly filed registration for Work A, Writer B will then have to present evidence of prior creation of competing Work B. Writer B’s evidence must be strong enough to rebut or override Writer A’s registration, which can be a very difficult hurdle to overcome.

Without the benefit of advance registration, Writer A will be forced to prove, through external evidence, that he or she was in fact the first writer of the work. Examples of such evidence include testimony from witnesses who can swear they saw Writer A creating the work, that they received a copy of that exact work from Writer A or attended a reading or performance of the work on a specific date. Given the passage of time between the creation of Work A and the alleged infringement (which, in most situations, will be years), and the myriad ways in which individual works are created, Writer A may not be able to produce this type of evidence: She or he might not know how to locate particular witnesses or may find the witnesses’ memories faulty or inexact. Even if Writer A is able to produce this external evidence, doing so during the lawsuit will be both burdensome and expensive.

Besides, merely providing the evidence is only half the battle. The next issue is persuasion; that is, presenting evidence substantial and credible enough to persuade the judge or jury. While a lawyer could perhaps estimate the likelihood of success based on an analysis of existing evidence, no lawyer could ever guarantee that ...

Table of contents

• Title Page
• Dedication
• Acknowledgments
• Introduction
• Chapter 1 - COPYRIGHT
• Chapter 2 - COLLABORATION
• Chapter 3 - UNDERLYING RIGHTS
• Chapter 4 - MARKETING AND SELF-PROMOTION
• Chapter 5 - PRODUCTION CONTRACTS
• Chapter 6 - REPRESENTATION: AGENTS AND LAWYERS
• Chapter 7 - PUBLISHERS
• Chapter 8 - DEVELOPING AREAS
• Index
• Copyright Page