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COMMON LEGAL ISSUES FACED BY CREATIVE WRITERS AND CONTENT CREATORS

1) What’s the best way for screenwriters to protect their Intellectual Property? Writers Guild of America or United States Library of Congress?

The ability to copyright one’s work is a fundamental tenet of the United States. This ability is so fundamental that it is first outlined and established in the United States Constitution. Article I Section 8 of the United States Constitution, otherwise known as the “Patent and Copyright Clause” states that Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This clause is important not only for allowing Congress to create the United States Copyright Office, but also because it shows the importance of protecting unique works. This protection creates a system that allows for anyone to use the work of others for inspiration while also protecting that work from exploitation.

Upon the creation of any work, that work is automatically protected by the United States Copyright laws providing that there is some tangible proof of that work having been created. This is true even for unpublished works. Your legal rights in regards to automatic copyrights, however are severely limited. Particularly with works and things available online it is very easy for someone else to copy content and use it as their own. One must have some way of proving that a work is their own. Simply marking that work with a date and the word copyright is not sufficient.

Many are under the impression that they can establish a work’s date of creation with a “poor man’s copyright.” The “poor man’s copyright” is the act of mailing oneself a sealed envelope containing the work they wish to copyright. This however may not necessarily act as evidence in court in favor of a copyright having been established. The United States Postal Service does not require that an envelope is sealed before being mailed. As a result, the United States Postal Service actively warns individuals against attempting to rely on a registered or certified self-addressed envelope as proof of a copyright. There are online resources where individuals can upload an image of a work to show proof of a creation date. Individuals truly invested in protecting their work should register that work with the Library of Congress and the Writers Guild of America.

Screenwriters interested in legally protecting their intellectual property (IP) should prioritize registering that intellectual property with the United States Copyright Office of the Library of Congress. Registering with the Library of Congress costs $40.00. Registration can be completed online or submitted by mail. Doing so protects that work for the duration of the author’s life plus 70 years. If the author is a corporation or submitting their work anonymously, then that work is covered for the shorter of either 95 years following publication or 120 years following creation. The registration process can take in the range of one to six months before completion. In my experience it could take even longer than a year.

The United States Copyright Office and its leadership role, the Register of Copyrights, was established in 1897 by the United States Congress in accordance with Article I Section 8 of the Constitution. This established the Copyright Office as its own federal department within the Library of Congress. The Copyright Office acts in accordance with the United States Copyright Act to oversee copyright establishment and protection in the United States. Prior to its establishment, the role of administering copyright protections had been left to the courts.

Currently the Copyright Office carries out its duties in accordance with the 1976 Copyright Act as well as the 1998 Digital Millennium Copyright Act. The duties of the Copyright Office are dynamic and constantly adapting to the ever-changing landscape of media in America. For more specific, but easily digestible knowledge about the workings of the United States Copyright Office as it may relate to you or your work, go to their website at www.copyright.gov and check out the Circulars. The Circulars are designed to provide general audiences with current information regarding the policies and procedures of the Copyright Office. They are divided into categories to make it easy for you to find the information most pertinent to you or your work.

Copyright Registration with the Library of Congress allows immediate access to court and allows one to recover attorney’s fees in the event that legal action is necessary. The benefit of attorney’s fees is stipulated by registration having been completed prior to infringement or within 90 days of publication. Registration with the Library of Congress acts as prima facie evidence of ownership so long as the registration was completed prior to or within 5 years of the work having been published. This means that such registration acts as “sufficient to establish fact” regarding ownership of a creative work. Without such registration, one must prove the ownership of their own copyright and the date of its creation.

Copyright registration also allows for a written court order compelling a party to refrain from some action that infringes on a copyright. This is known as an injunction. Injunctions are a type of “special remedy” that allows a court to force a party to stop distributing the infringing work immediately. This is powerful for writers to use against studios. While studios have a lot of industry power, an injunction sends United States Marshals into that studio to confiscate any and all media containing the infringing work. The mere threat of this contingency is a huge advantage to have as the holder of a copyright.

It is important to note that registration with the Library of Congress is required before a lawsuit can be brought. Due to the lengthy nature of registration, it is best to register a work as soon as possible. In the event that one has not registered their copyright for a work that has been stolen, the creator could lose out on potentially enormous streams of revenue in the time it takes for their registration to be processed.

If an author has failed to register their work before needing to bring about a lawsuit that author may pay for expedited registration. The cost for expedited registration is $580.00. In the case that a writer only registers their work with the Library of Congress after the infringement has taken place, that writer will be barred from recovering statutory damages or attorney’s fees.

The law favors those who are vigilant in asserting their rights. Those who sleep on their rights will not be afforded protection. The rule of thumb is to register a copyright as soon as you intend to share that work with others. This includes presenting that work to studios or even just showing an acquaintance. It is best not to take risks when it comes to the ownership of a work.

The Writers Guild of America is a labor union that is composed of writers of television shows, movies, news programs, documentaries, animation, videogames, and other new media content. The guild provides valuable information and services to any such writer. This includes but is not necessarily limited to: a list of approved agencies, credits to associated works of art, special events, and other similar concerns often addressed by labor unions. Many of these services are available to both members and non-members. Membership requires a writer to fulfill certain criteria. The guild also offers writers (both members and non-members) the ability to register their work with their evidentiary bank to help writers establish a date of creation for their work.

To become a member of the Writers Guild of America you must acquire at least 24 “units” in the three years leading up to submitting the application. The application may be submitted online on their website at wga.org. Upon meeting the minimum 24 units an initiation fee of $2,500.00 is due. Units may be acquired by completing certain tasks such as having a screenplay picked up for a feature length theatrical motion picture of 90 minutes or longer. This would give a writer the full 24 units. Units are awarded proportionally to the task completed. Go to the Writers Guild of America website to view their full schedule of units.

Benefits of membership, similar to other labor unions, include pension and health plans, special offers for events, dining, lodging, and products as well as access to the guild associated credit union. For more details go to www.wga.org .

If a writer does not have the minimum 24 units that writer may be eligible for a partial membership called an “Associate membership.” To be eligible for Associate membership a writer must have had writing employment or sales within the Guild’s jurisdiction. That employment or sale must have been with a “signatory” company. To check the status of a company with the guild, you can use the signatory confirmation lookup on their website. Associate membership lasts for a total of three years at a cost of $100.00 per year.

Registration of a work with the evidentiary bank of the Writers Guild of America (WGA) lasts for 5 years. Though this time period may seem short, it is possible to renew registration for additional 5 year periods. One does not have to be a member of the Writers Guild of America to register a work. The registration fee is $10.00 for members and $20.00 for non-members. These fees are also the fees for renewal of a work after 5 years (unless for some reason the standard fee has been changed by the Writers Guild of America during that time). As with the Library of Congress, registration with the Writers Guild of America may be completed online.

Registration with the Writers Guild of America does not allow for immediate access to court and attorneys fees. Nor does Writers Guild of America registration act as prima facie evidence of ownership in the legal setting. It does however still act as evidence that can help prove ownership of a creative work as of a certain time. Registration with the Writers Guild of America does provide the added benefit of having an employee appear in court to testify regarding the date of submission.

In general, the legal benefits of registering with the Library of Congress outnumber those of the Writers Guild of America. This is because while the registration with the Writers Guild of America has its benefits, ultimately these benefits are not strictly legal in nature and as such can only supplement the proper legal protections. If affordable, a screenwriter should register their work with the Writers Guild of America in addition to the United States Copyright Office of the Library of Congress.

2) How often should screenwriters update their copyright protection? After each draft?

Copyright protection provided by the United States Library of Congress covers only that particular draft of a script as submitted. Any additional changes following that submitted draft are not legally covered by the copyright protection. Similarly, the WGA offers the ability to submit each draft to act as a “proof of authorship” by registering a particular iteration of a script at a certain time. Any changes made after the most recently submitted draft are not covered. Submitting each draft is beneficial for maintaining a paper trail in the event an individual must prove their ownership of a particular iteration of some work.

An important consideration here is the legal concept of a derivative work. As the name suggests, a derivative work is a creative work that is somehow derived from a preexisting creative work. For derivative works to gain copyright protection they must be sufficiently distinct from the original work to constitute a new work worthy of copyright. According to 17 United States Code S § 101, what we refer to as the copyright act, any work consisting of editorial revisions, annotations, elaborations, or any modifications which culminate to form an original creation, is a derivative work. This of course entails that derivative works are similar to the original work in some substantive way. So long as the original copyright owner gives consent, a derivative work is non-infringing as would be the case with additional drafts of a screenplay by other individuals.

3) What is the copyright process for graphic novels and comic books? How does it differ from regular screenplays?

U.S. copyright law provides for the ability to copyright both literary and artistic works. Protection enures for a comic book or graphic novel at the moment of creation. The copyright for such a work encompasses any copyrightable visual or literary expression contained within that work. This naturally includes any drawing, picture, depiction, or written description of a character. This protection however does not extend to the title, general theme, general idea, intangible attributes or name for depicted characters. Characters and titles may, however gain such protections under trademark laws.

An application to register a copyright contains three essential elements:

  1. A completed application form
  2. A nonrefundable filing fee
  3. A non-returnable deposit

A non returnable deposit is a copy of the work being registered with the United States Copyright Office.

This application may be completed online through the electronic Copyright Office or by mailing in paper forms.

The electronic Copyright Office is generally the preferred way to register most creative works. Online registration is advantageous for including:

1) a lower filing fee,

2) faster processing time,

3) online status tracking,

4) secure credit or debit payment,

5) electronic check or Copyright Office deposit account,

6) the ability to upload certain categories of deposits directly into the electronic Copyright Office as electronic files.

To register a copyright online simply go to the Copyright Office Website and click on the link that says “Register a Copyright”

The requirements for comic book or graphic novel registration vary depending on the particular circumstances of the work. The general requirements are:

  1. One complete copy for unpublished works
  2. Two complete copies of the work (as it was first published) if it was published before January 1, 1978
  3. Two complete copies of the work (in the best edition of that work) if it was published on or after January 1, 1978
  4. One complete copy of the work as first published if it was first published outside of the United States
  5. If the work is a contribution to a collective work and first published on or after January 1, 1978: one complete copy of the best edition of the entire collective work, the complete separated contributions to the collective work and if the work was first published before January 1, 1978, a complete copy as first published containing the contribution

Comic Books and graphic novels are submitted essentially as a “collection” or unit of comic strips. For this, the claimant must be the same for all elements in the unit. The individual strips or elements can be considered for registration as a single unit so long as:

  1. The selections are assembled in an orderly form. This simply means that pages/chapters are in order. This is generally trivial for comic books and graphic novels.
  2. The combined comic strip sections also should be under the same title identifying the entire collection. This is again trivial generally for comic books and graphic novels.
  3. The copyright claimant in all the selections and in the collection as a whole must be the same
  4. Either all selections must have been completed by the same author or if completed by different authors, at least one of the authors must have contributed copyrightable material to each selection.

Comic books and graphic novels will be recorded in the Copyright Office records as collections under the collection title.

4) How does the copyright process work if there are multiple authors? Is it split 50:50? What happens if early drafts were written by one person and later drafts by someone else? Is there a separate copyright for each draft? Does the screenwriter of the shooting script have a superior ownership position?

If there are multiple authors that have contributed to the work simply fill out the standard application and declare all contributing parties. If the contributors prepare the work with the intent to combine their contributions into a single work, then that work is considered a joint work. Joint copyright claimants are considered by the U.S. Copyright Office to have equal rights and ownership of the copyright. This is the case unless the joint owners draft a written agreement to the contrary. Each owner can use the work commercially provided that the benefits are evenly split among the authors.

In the case of different authors writing different drafts each author must agree to whatever terms they see fit or else agree to split the copyright 50/50. It is possible in some scenarios that one author contributed significantly less of the work than others. In this case this author would not be considered in a joint work in the same way.

If the authors contributions are able to be separated from the work they are not necessarily a joint work author. In this case the work would be deemed a collective work. One aspect of the work would be owned by one contributor and the other aspects owned by the others separately like the work itself. The ownership of a shooting script is determined by the agreement between the parties beforehand. Generally in this case however the rights of the copyright have been transferred to the party creating the film.

5) What happens with multimedia works? Do you need a separate copyright for logos, artwork, sound and text?

A multimedia work is a work that contains two or more different types of media. Such media types include authorship of: text, photography, artwork, sounds, sculpture, music, cinematography, choreography.

The media may also include two or more of:

  1. Printed matter, such as a book, charts, or posters, or sheet music
  2. Audiovisual material, such as a filmstrip slides, videotape, or videodisc
  3. A phonorecord such as an audiodisc or audiotape
  4. A machine-readable copy, such as a computer-read disc, tape or chip

Multimedia works may be created with several different copyrightable elements. The most common of such elements would be a combination of:

  1. A motion-picture element
  2. Some other audiovisual element
  3. Some sound recording element.

In the process of registering a copyright for a work containing such elements it is vital to identify each separate copyrightable element.

An audiovisual element is made up of a series of related images intended to be displayed through a projector or some similar viewer. The element could be a filmstrip, slides, a film, a videotape (such as a floppy disk or cassette), videodisc or CD-I.

A motion-picture element is a specific type of audiovisual element consisting of a series of related images that when played in a specific order is intended to give the impression of motion. This could take the form of a film, videotape, a videodisc, or a CD-I.

Copyright for a motion picture as with other copyrightable works, enures once the work is created in some fixed version. As with other similar creative works, the copyright of a motion picture does not over the general idea or basic concept behind a work or any characters that are portrayed. Aspects that are covered by a copyright include: camera work, dialogue, sounds, etc.

Screenplays alone do not qualify as fixations of a motion picture. They may be copyrighted separately themselves however as a script.

Publication of a motion picture occurs once at least one or more copies of the motion picture are disseminated through sale, rental, lease or lending or when a motion picture is offered up to be distributed by a group for the purpose of distribution. Offering to distribute a copy of a film too be shown at a festival may constitute publication. To constitute publication, copies of the work must be ready for distribution. The mere performance of a motion picture (being shown on television) does not constitute publication. Upon publication all components of that motion picture are considered to be published. This includes music, script, sounds. This means that if a motion picture is made from a screenplay, the components of that screenplay that are contained within the film are also published.

Published motion pictures require a seperate description of the nature and general content of the work. This could be a shooting script, synopsis or a pressbook. Published motion pictures also require one complete copy of the work. This copy must be free of any possible defects that could hinder viewing of the work.

For motion pictures first published in the US, send one complete copy of the bet=st edition. The best edition is that edition prefered by the Library of Congress. The Library of Congress list their preferences in order as:

Film, rather than another medium

  1. Preprint material, by special arrangement
  2. 70mm positive print, if original production negative is greater than 35 mm
  3. 35mm positive prints
  4. 16mm positive prints

Videotape formats

  1. Betacam SP
  2. Digital Beta (Digibeta
  3. DVD
  4. VHS cassette

For unpublished motion pictures send a description of the work and a copy of the work containing all visual and audio elements to be covered by the registration.

1” Open-reel videotapes and 8 mm videocassettes are not viewable by the Copyright Office. If one must deposit a motion picture in one of these ways, credits should be provided separately in a written format. If the work was first published prior to March 1, 1989, the Copyright Office must receive a viewable copy to ensure that the work includes the necessary copyright notice.

Special relief may be granted where it is exorbitantly difficult or impossible to deposit a motion picture in the previously prescribed way. To request special relief one may submit a written request addressed to Chief of the Performing Arts Division. This request should include why one cannot provide the required copy and should detail the nature of the substitute copy that is being provided with the deposit. This letter should be included with the normal registration materials. A decision to grant special relief is based on the acquisitions policies and archival considerations of the Library of Congress and the examining requirements of the Copyright Office

The owner of copyright or the owner of the exclusive right of publication of any motion picture published in the United States is legally compelled to deposit that work in the Copyright Office within three months of the work having been published. This deposit should include the best edition and a thorough description of the work. Completing this deposit by itself does not automatically grant the benefits of copyright registration.

It may be the case that a multimedia work employs a soundtrack of songs created separately by other artists. In this case one must negotiate with those artists to pay some amount of money for the rights to use the song in the film or other multimedia work. Popular songs often call for extremely large sums of money to be used and it is possible that the original artist can refuse to have their song used entirely. The cult classic film Dazed and Confused (1993) is well known for a soundtrack of many popular songs from the late 1960s and early 1970s. Over a million dollars was spent acquiring the rights to use songs such as Aerosmith’s “Sweet Emotion,” Lynyrd Skynyrd’s “Tuesday’s Gone” and many more. It is worth noting that the Led Zeppelin song for which the film was named was not included in the soundtrack because Robert Plant refused.

A sound-recording element is a series of recorded sounds. However if these sounds are combined with an audiovisual element they are not defined under copyright law as a sound recording.

To register a copyright for a work containing a motion-picture element with the United States Library of Congress Copyright Office, deposit a description of the motion picture in addition to the normal deposit requirements (the work itself). This description should be as detailed as possible such as a finalized script, however a synopsis that covers the main characters and plot will will also be accepted. It is always best to be as thorough as possible in the event of a dispute later on.

Multimedia works that are published or exist only in a machine-readable form, such as a computer tape or disc, or a semiconductor chip, the appropriate work should be deposited as such while specifically identifying how the material for the machine-readable copy. This criteria varies slightly depending on if the machine readable copy produces:

  1. Pictorial Images
  2. Textual Images
  3. Musical Compositions
  4. Sound Recordings, or
  5. Computer Programs

For machine-readable copies producing pictorial images (such as a videogame), deposit:

  1. A written synopsis of the content contained
  2. A reproduction of the audiovisual elements in the form of either a videotape or a series of photographs or drawings depicting representative portions of the work (if the work is in color originally so should the deposited reproductions), and
  3. The container and any instructional guide if either contains authorship seeking to be registered under the copyright

For machine-readable copies producing a series of textual images, deposit one copy in a visual form of the first and last 25 pages or the equivalent five or more pages of the remainder. This should include a copyright notice if one is to accompany the work.

For machine-readable copies producing musical compositions, deposit a notated transcription or recording of the work to be registered.

For machine-readable copies producing sound recordings deposit a recording of the entire work on audiotape or audiodisc.

For machine-readable computer programs, deposit the first and last 25 pages of source code.

6) There has been some talk of big name producers making minor adjustments to claim an IP as their own. How different do two screenplays need to be to be granted separate copyright protection status?

The key element to be considered is substantial similarity. To claim an intellectual property as their own a producer would need to differentiate the work so that it is not substantially similar to the work they are using as inspiration. Substantial similarity is the measuring stick for how different two works need to be for separate copyright status. I will go into more depth regarding substantial similarity in the next section regarding proving copyright infringement.

It is worth noting that each federal district may interpret the grounds for substantial similarity slightly differently. The 9th Circuit for instance which covers California is interpreting substantial similarity in a very restrictive way.

In contract negotiations between producers and scriptwriters/directors, property rights are generally negotiated so that the rights of each party in regards to the work are clear. Producer agreements are drafted to specifically outline the rights of producers to use a copyrighted work. A good attorney should draw up contracts that are worded to specifically exclude any action that is seen as undesirable by a copyright holder. Platforms for distribution should be explicitly agreed upon as well as identifying the streams of revenue. Contract language should be broad to cover your own work and include phrases such as “all presently known or to be created media from here to eternity and all of the universe.”

It is again important to note that themes are not protected nor are general story elements. That is how so many films and stories can use the same classic myth structure. A popular example of this is Romeo and Juliet which has had many modern remakes and iterations that tell essentially the same story but in new and creative ways such as West Side Story. Types of characters themselves can not be copyrighted (i.e. the rogue, the hero, etc.) and characters that are deemed merely a vessel to tell a story are also not subject to copyright. For elements of a film or script to be copyrightable they must be creative, distinct, and specific. Similarly the Scènes à faire doctrine dictates that some scenes or scenarios are so inexorably tied to their genre that they too are not copyrightable. An example would be a scene containing men wearing stereotypical mafia attire smoking cigarettes in a bar.

7)  What are the different kinds of copyright infringement and how would you prove it in court?

Any copyrightable element of a work can be subject to copyright infringement.

Proving copyright infringement in court can be difficult. In order to prove copyright infringement, the plaintiff must:

  1. Establish the ownership of legitimate copyright.
  2. That the infringing party had access to the copyrighted work.
  3. That the infringing party had the opportunity to steal that work.
  4. Prove that protected elements of the original work have been copied. This second task can be difficult due to the subjective nature of interpreting particular elements of a creative work. This is where substantial similarity comes into play.

Ownership of a copyright is typically easy to prove. This is given of course that the creator has taken the proper measures to establish that copyright in some formalized way. As covered in the first question, a copyright can be properly established through multiple avenues. There are online resources for uploading and archiving works that can help prove ownership of a copyright. This is of course less reliable than registering with an official organization such as the WGA or Library of Congress. Registering with the WGA provides additional benefits that can help prove ownership of a copyright in court, but registering with the Library of Congress remains the most reliable. Given that a creator has registered with the Library of Congress, proving copyright ownership is trivial because such registration acts as prima facie proof itself.

Following the establishment of a copyright, most of the time in a copyright infringement trial is spent analyzing the supposed infringing work. This can range in difficulty depending on how blatant the stolen elements are. If the copying was not direct, then a plaintiff must prove that the two works are “substantially similar.” This also involves proving that the party accused of infringement had access to the original work.

Proving that the party accused of infringement had access involves the proof of “reasonable opportunity” as opposed to a minimum possibility. Proving access is trivial for widely disseminated works, but can be more difficult otherwise. For works that have not been widely disseminated the plaintiff must typically create as direct a link as possible through some series of events that would have given the defendant access.

After establishing both a copyright and the access of the defendant to that copyrighted work, the plaintiff must prove substantial similarity. Proving substantial similarity is tied to the works accessibility inversely. The more access that the defendant had, the easier it is to prove substantial similarity. This was exemplified in Williams v. Gaye, No. 15-56880 (9th Cir. 2017) particularly where it was determined that Robin Thicke and Pharrell Williams’ access to Gaye’s song “Got to Give it Up” was so high that the burden for substantial similarity was lowered significantly. In general though, proving substantial similarity involves a two part test of similarity that tests extrinsic and intrinsic similarity. The extrinsic portion of the test calls for the plaintiff to identify the specific aspects of the work which the plaintiff claims have been copied. This portion of the test is absent of interpretation and calls for the plaintiff to isolate specific elements of themes, moods, characters, etc. that have been copied. General tropes and plot elements do not qualify. Proving the existence of these similarity requires substantial evidence and analysis of a work.

The intrinsic portion of the test is the more subjective aspect of proving copyright infringement. The intrinsic portion is an analysis of whether an ordinary person’s interpretation of the two works leads them to believe they are substantially similar. This is the job of the jury.

8) Your work has been stolen. What should writers do to start the legal process to claim damages?

If you believe that your work has been stolen and is being distributed online, you should first fill out and present a Digital Millennium Copyright Act (DMCA) Takedown Notice to the offending party. Most organizations wish to avoid legal action and matters can often be resolved at this stage. If this fails however you should immediately contact an attorney. Typically the cost of a copyright infringement threat letter ranges from $1,500-$3,000. This is often step one in legal action, but is not always appropriate. The cost and length of such claims can vary drastically so it is best to contact an attorney and receive estimates for legal services for your case.

Attorneys fees can be rewardable in copyright infringement given the copyright as registered appropriately with the Library of Congress before the claim was made. Most attorneys will require up front retainer fees to be paid rather than basing their fees on contingency. The time frame for following through with an infringement claim varies drastically depending on a wide variety of factors.

In recovering damages there are three primary types of damages that can be recovered:

  1. Actual Damages
  2. Infringer’s Profits
  3. Statutory Damages

Actual damages are the amount of profit lost by the copyright owner directly due to the infringement claimed. Usually expert testimony is offered to determine the actual damages suffered by the claimant but even so it is often difficult to determine exactly how much profit was lost by the claimant that can be directly traced to the infringement. As a result, clients often do not recover actual damages.

Infringer’s profits are recovered only in the case that those profits exceed the amount of provable actual damages. This is similarly difficult to precisely prove.

As a result of the difficulty in accurately determining actual damages and infringer’s profits in many copyright cases, the Copyright Act provides for statutory damages. Claimants may recover either actual damages and infringer’s profits, or statutory damages. Statutory damages will not be awarded in addition to actual damages and/or infringer’s profits. Recovery of statutory damages requires that the plaintiff had registered their copyright with the United States Copyright Office prior to the infringement taking place. Statutory damages as defined by 17 U.S.C. § 504(c) can be between $750.00 and $30,000.00 per infringement in the case that it is impossible to prove whether the infringement was willful or not. If on the other hand the infringement was proven to be willful then statutory damages can range up to $150,000.00 per infringement. The actual amount in either case depends on the severity of infringement as well as the financial status of the infringing party.

It is important to note that copyright claims are subject to a three year statute of limitations in accordance with the decision in Petrella v. MGM, Inc. One must file a claim of copyright infringement within three years of the infringement taking place. Copyright law does however account for the “separate-accrual” of infringements in accordance with the tolling and continuous violations doctrine. This means that each infringement has its own three year statute of limitations.

9) What are the biggest misconceptions screenwriters have about what copyright protects and what it doesn’t?

One of the biggest misconceptions screenwriters have is regarding the establishment of a copyright in general. Many screenwriters believe that a copyright is solidly created at the moment of inception. However, while it is true that a copyright enures at the moment of creation, this is not actually particularly useful for protecting one’s work legally. This is why it is important to register a copyright with the Library of Congress as covered in the beginning of this article. A “poor man’s copyright” is not sufficient.

Copyright protects original, creative works. Mere ideas are not protected by copyright law, although expression of such ideas, as in the method of expression, may be protectable by copyright. Words, phrases, symbols, or designs distinguishing works or the creators of those works are not covered by copyright. These elements are covered by trademark. Trademarks work somewhat similarly to copyright in that they need not be registered to exist, but require registration for true legal protection. If copyright covers the artwork itself, trademark essentially covers the “packaging” of that artwork as it is distributed to the public.

Another common misconception is in regard to originality and what constitutes originality in copyright law. Works must be original to warrant a copyright. Originality in this setting however does not mean “never having existed before,” but rather simply that the work is the product of the author themself. Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) defined originality for copyrights as having “at least some minimal degree of creativity.” This landmark case established that the mere effort of compiling information into a digestible format could not be copyrighted. Creative elements employed by the author alongside the compilation however, may be copyrighted. As such the degree of creativity required for a work to be an original and therefore copyrightable work is minimal.

Many writers have a warped perception of the “fair use” exclusion to copyright law. It is true that “fair use” allows for the use of copyrighted material without the permission of the owner. It is also true that “fair use” is often interpreted ambiguously. The caveat to this is that “fair use” covers only works that seek to criticize, comment upon, or parody the original work. The covers work that is being used for educational purposes. It allows for critics to use elements of a copyrighted work to directly comment on in a critique and allows for shows like South Park to loosely copy anything imaginable for the purpose of parody. “Fair use” is most simply a defense to be used against alleged copyright infringement providing that the copyrighted work was used for a “transformative” purpose.

Many people view copyright as limiting of creative expression. In reality however, the underlying principle behind the Copyright Act is to promote creativity and ingenuity. The Copyright Act allows for creators to use the work of others in a fair and consistent manner. This allows room for creative inspiration while protecting your own creative work from being blatantly copied and exploited. As covered in Article I of the Constitution and earlier in this article, Congress was given the authority to pass legislation to promote the arts and sciences. Copyright law is the result of this authority and should be viewed as such.

10) Are there any high profile or noteworthy cases you’ve dealt with and care to share.

Unfortunately, due to the sensitive nature of my work as an attorney, I am unable to discuss the details of any cases I have worked on in the past. This is due to lawyer confidentiality and attorney-client privilege. It is extremely important to uphold these principles not only as a matter of law, but as a matter of ethics. These two principles allow for clients to comfortable confide in their attorneys.

The principle of confidentiality is defined in ABA Model Rule 1.6 which states: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. … This contributes to the trust that is the hallmark of the client-lawyer relationship.” This confidentiality extends long after a case has been completed and even after the death of the client. Violation of such a rule would lead to career repercussions. It is vital to the integrity of our judicial system that such principles be upheld. Providing details about previous cases could affect the futures of previous clients, potentially in a negative way.