Copyright vs. Chain of Title

The following information comes from The Artful Writer by Craig Mazin.

So, the theoretical question has arisen. How is it ever possible that a group of writers could write scripts connected by a single chain of title and yet some of those writers would not be considered participating writers by the Writers Guild of America in an arbitration?

Here's my explanation, informed by my reading of the Minimum Basic Agreement, but no less informed by a discussion I had with Ted Elliott, who crystalized the theory further.

Participation Isn't Defined by Employment, But By Contribution of Intellectual Property

First, some definitions. Per Schedule A, Paragraph 9 of the Minimum Basic Agreement:

"A writer who has particpated in the writing of a screenplay, or a writer who has been employed by the Company on the story and/or screenplay, or who has sold or licensed literary material subject to this Basic Agreement, shall, for the purpose of this Basic Agreement, be considered a participant."

Pretty simple. If you participate in the writing of a screenplay, either as an employee, spec seller or just some a writer who wrote stuff, you're a participating writer.

Next definition...what does copyright protect in regards to written works of art? The US Copyright Office says:

"Copyright will protect the literary or dramatic expression of an author's idea but not the idea itself."

So, first thing's first. Let's say I have an idea for a movie. "A high school outcast learns about life and love from a martial arts teacher." The first question is, can I copyright that idea as it pops out of my head? No. It needs to be expressed in a fixed form. Okay. I write it down. I now own the copyright on that fixed form, i.e. that piece of paper with those words on it and any mechanical reproduction of that fixed form. Does that mean no one else can use that idea? No. I could only own the copyright on the literary expression of the idea, but not on the idea itself.

A script is considered a literary expression of an idea. A logline might be a literary expression of an idea if it is specific enough. A premise, however, generally doesn't pass the copyright test.

Yes, this means you are absolutely free to write a movie with the same idea as The Karate Kid. You just can't steal the specific manner in which that idea was expressed in a fixed form, because the literary expression is protected by copyright.

Okay. So let's imagine a world without studios.

In a world without studios, writers come up with an idea (which is not copyrightable), and then they write a script (which is copyrightable because it's a literary expression of the author's idea). Now let's say that Harry has the idea about the kid who learns karate. Harry writes the script and now he owns the copyright on the script, but he decides in all honesty that his writer friend Joe could really improve the script if he let him contribute to it. He offers, as the copyright holder, to authorize Joe to revise the work.

Joe agrees, but he makes a reasonable request of Harry. "Let's say I contribute a lot to the final version. My unique literary expression (exluding elements borrowed from you) is copyrightable too, even though it's derived from your initial literary expression. How will we determine authorship, or credit, for the final script?"

No problem! There's a Scribes Union of Writers who agree to submit to binding arbitration in cases like these. The Scribes Union says, "We analyze the drafts and then decide what a fair credit should be based on your individual, copyrightable contributions to the final script, paying careful attention to chronology as well as reuse of elements, etc."

And so it goes. Joe rewrites the script for you, the two of you submit to a binding arbitration as participating writers on the script and you're happy.

Ah, but there's a wrinkle. Some person named Fred says, "Hey! I wrote a different script based on the same idea of a high school outcast who learns about life and love from a Karate master! I should be a participating writer too, even though I don't know these other guys."

The Scribes Union arbiters read his script and respond as such: "Fred, we believe the only thing similar between your script and Harry/Joe's is the idea. Since idea is not copyrightable, and written literary material is copyrightable, we believe you didn't contribute any written literary material, so we don't believe you meet the standard of participant in Harry and Joe's script. That's the bad news. The good news is that, in turn, they aren't participating writers in your script either. You are free to exploit it without worrying about them asking for a piece of the profits, just as they are free to exploit their script without sharing profits with you."

And that seems reasonable, right?

Now let's re-enter our world. Yes, Virginia, there really is a studio.

Without getting into the why of it all, when a screenwriter sells a script to a studio, he is also transferring the ownership of the copyright. The legal author of every script that Paramount owns is, in fact, Paramount Pictures.

But wait. It's not The Godfather written by Paramount. If writers aren't the legal author, why do they get credit?

We get credit because we bargained for it, and we get to determine which participating writers get credit, because we bargained for that. Still, we're in the weird place of assigning credit to writers who hold no copyright claims. So how do we do that?

We do it as if the participants all do hold copyright claims. The Writers Guild of America, much like my hypothetical Scribes Union, determines screen credit on the basis of copyrightable contributions.

This is important for the same reason it was important back at the Scribes Union. Here in reality, years after Karate Kid was made, a movie was released called Showdown. Showdown was about a high school outcast who lusted after a girl whose violent boyfriend was a karate master. Only by learning karate from a mysterious school janitor could he face off against the boyfriend and wins the girl. The guy who wrote Showdown did not violate the copyright of Karate Kid because he only used the same idea, but created a unique literary expression of that idea called Showdown, and apparently did so demonstrably enough to avoid being sued for plagiary of dialogue, specific characterizations, narrative, etc.

By saying that Showdown is a unique work distinct from Karate Kid, we're also protecting Karate Kid. Should they ever want to remake Karate Kid, they're not going to have to deal with a lawsuit from the writer of Showdown.

Finally we get to the sticky problems caused by the Chain of Title.

Studio A buys Harry's original script. They now own the copyright. They hire Joe to rewrite it. Then they decide that they really hate this thing, but Studio B is willing to buy it (ownership of copyright) out of turnaround, keeping the same producer. The producer and Studio B sends the script to Fred, in the hopes that he can improve it.

Fred comes to them and says, "Guys, I read the script. I read it fifty times. I've memorized it. And I hate it. The only thing I like is the idea, but I have a completely unique literary expression I'd like to put in fixed form based on this idea. My unique literary expression has absolutely nothing in common with the copyrightable elements of the prior scripts. It may, however, have uncopyrightable things in common... i.e. not-unique literary expressions like ideas. For instance, I love this notion of a high school outcast who learns about life and love from a karate master. But that's it. Everything from here on out will be unique and original to me."

Fred is hired by Studio B and by the same producer who was attached to Harry and Joe's script, and he goes off and writes a new script. The script gets the green light and they shoot KungFu High!

When it comes time for arbitration on KungFu High!, Studio B follows the chain of title when determining how to list partcipating writers. They list Harry, Joe and Fred.

But Fred calls the Writers Guild and says, "Wait a second. We determine credits as if we were the copyright owners of our unique literary expressions in fixed forms, which is why KungFu High can't, say, be written by Studio B. But that means the chain of title is totally irrelevant, because Chain of Title only reflects studio ownership of copyright, not the in-truth authorship of the scripts that the Writers Guild is trying to determine. All that matters is whether or not the material I wrote can possibly be considered a work derived from another copyrighted literary expression. And I'm saying...it's not. I'm saying KungFu High is totally unique to me with the exception of the uncopyrightable idea...and so Harry and Joe aren't participants in the writing of it."

And Fred then realizes something else. "You know what? I could have read Harry and Joe's script, and then written my exact same script for Studio X, which has no Chain of Title going back to Harry and Joe! And neither Studio A nor B nor Harry nor Joe could have sued me, because I didn't take anything copyrightable from them. That means they contributed nothing copyrightable to my screenplay, which means they are no more participants in it than anyone else you'll meet on the street."

And Fred turns to Harry and Joe and says, "By the way, this also means that I'm not a participant in your script, which means that if Studio B chooses to exploit your version, I won't be able to seek credit on that movie."

The Writers Guild now has a decision to make.

Is Fred right? Does his script contain no copyrightable literary material taken from Harry and Joe's script? The fact that he read their script is irrelevant, just as it's irrelevant that the writer of Showdown most likely watched Karate Kid on cable. Regardless of the Chain of Title, do the two incarnations of the project share anything in common other than the uncopyrightable idea?

The Writers Guild will read the scripts and make that decision. However, there is a decision to be made. Unity of the Chain of Title doesn't necessarily preclude a complete division of copyright.

Ø  Part 2: Who Owns An "Idea" Anyway?