LEGALLY SPEAKING, IT DEPENDS: Writer’s Power

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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What is power? For different people and different purposes power can mean many different things. A writer's power could be expressed by his or her ability to create whole worlds out of nothing. It could be reflected in how much money someone is willing to spend to bring the ink blot marks on a page of paper into flesh and blood reality. It could be measured by how much the writer moves the intended (and even the unintended) audience emotionally. All of these elements and more are aspects relating to a writer's power. But the most usual definition when people think of writer's power is how much control they have over their work. Are they a cog or the whole engine? Something in between or something greater? That's what this article is going to delve into and, as usual for the answers we find, it depends.

There are differences for writers who work in different media. That simplistic understatement is probably not as simplistic nor understated as might first appear. True a novelist approaches the writing of her work differently than the poet or screenwriter does. But the way the world approaches each of them has vast differences as well. In a somewhat arbitrary fashion each media has adopted norms in the aspect of how much power writers can retain in being able to control the end results of their toils.

Let's start with one of the oldest established writer's worlds, the novel. Open any of your favorite novels and turn to the front where the copyright page is. (My wife laughs at me when I do this in bookstores ever since law school, but, it is the curse of my chosen field of interest.) Invariably, the copyright is in the name of the author alone. Publishers tend to license the rights they need for publication and distribution from the author. Each contract is different, but, the industry norm is to have the author license – not assign – their rights. The difference between those two have been the subject of many previous articles on copyright so I won't repeat them here.

Once the publisher's license expires (if it does) or in areas that the publisher didn't acquire a license (if any) the writer has full authority over what can be done with their work. At least in theory. In practice, publishers usually lock in a lot of the most lucrative rights, like movie adaptations, along with the publication rights in the contract. Still, there are times, such as when foresight lapses or miserliness overwhelms them, when the publisher doesn't secure extra rights. In those arenas the writer is free to pursue other licensees, or even sell – or assign – the remaining rights to others.

The traditional playwright has an even better deal in the usual structure of a theatrical contract. Historical practice celebrates and honors the wordsmith and cedes all control to them. Producers traditionally – and by modern Dramatist Guild contracts – only license a performance right to the words owned and controlled by the playwright. The strength of the writer's control extends even to the alterations as the staging is worked out. Any changes to staging or text must be approved by the writer and become the property of the writer. Once the initial production is through, all rights to the work revert to the writer again (unless they are pre-arranged to be licensed in the initial producer's deal, usually limited to touring companies or revivals of performances of the same staging structure.)

If a new producer wants to stage the play they first have to get permission of the writer. Then again, any alterations, re-imaginings or alterations of any nature have to be approved by the writer and become the writer's property. Because of tradition and guild protections, the playwright retains a significant amount of control throughout the life of the work.

When the written word makes it to traditional television it suddenly become schizophrenic. How much writer's power can be wielded in this medium can vary considerably, depending on who the writer is, how hot the property, when the writer comes into the process and a myriad of other things. Compared to network television the dollar figures involved in production with books or stage-work are piddling sums. When the money invested rises (and potential huge profits loom for a long running, very profitable series,) those in power seek as much control as possible. This is why where the writer comes into the process is important.

Show runners are often writers who have gained enough of a reputation for success that they can pitch a television show with the intent to retain a lot of writer's power in its control. How much power is retained depends on a lot of factors, but, if a head writer/show runner has a proven head for this sort of thing, they can be allowed to call a lot of the shots. They may need to share responsibility with others and there is always room for adjustment if the management doesn't like the direction. (Just look at the number of hit shows where the show runner/head writer left the building early on.) Coming in at the start and shepherding the concept from the beginning offers the opportunity for a lot of a writer's power to be retained.

For those writer's who come to the table a little later there's much less opportunity for ownership power. Staff writers are brought in fairly soon after a series gets a green light. Even coming in before the first episodes air leaves a significant hole in the writer's power. Often TV series' individual episodes are broken by committee. The concepts for the shows are initiated by the show runners and all the staff writers contribute to the fleshing out. But those staff writers are just there to contribute ideas that they will not eventually own. Just as in theater, once an idea is contributed by anyone it becomes the property of the eventual owner. In this case, the show runner calls the shots as to which ideas will be followed up and which discarded. Once a solid plan for the episode is formulated by this method, often a single writer is chosen to deliver a finished script incorporating those ideas. So at least this single writer would get a little writer's power for having written the script, right? Not as much as you think. Often the script, once delivered, will go through additional revisions, maybe incorporating scenes written by others to make up for timing or series arc issues. The show runners themselves might polish the script in order to make it fit the issues for the series as a whole (or just because they think they could have done it better.) The original draft writer has no power to control these external inputs. The end result may have the writing credit split among a number of people who participated in some aspect of the end product.

As you can see, in television the writer's power can become quite diluted.

Films aren't written like television series. Though a screenwriter can pitch a new idea to a buyer like a show runner can, if the idea gets greenlit, the writer will likely not retain much writer's power going forward. The control of the pitched idea leaves the writer's hands as soon as (or sooner than) the first draft is turned in. It is not unusual for a writer to sell a pitch, write a draft then be replaced by at least one other screenwriter in the race to get the movie made. What that initial writer can negotiate for is story by credit. The WGA has rules that allow the originator of the story idea to be recognized and compensated for starting the creative process even if they no longer have input or any residual script parts written by them. Story by credit is similar to the based on characters created by credit that is available in both screenplays and teleplays. Though story by is not a copyrightable protection and so must be contractually secured, characters can be copyrighted, though the laws that deal with character creation sufficient for such protection are still evolving and have a lot of peculiarities (a topic for a future column?)

Any writer who's work remains in the final version of the shooting script retains a certain level of writer's power in having WGA protected (and arbitrated if necessary) credit available. They do not usually get the copyright rights, since the production company tends to garner them by assignment or work made for hire means.

Writing for newer media such as video games or internet series lie in a vaguely amorphous area with regard to writer's power. Though there are attempts to carve out legal and guild level protections for all creative aspects of the new media arenas, the final results are not yet certain. As with most new venues you need to approach each endeavor with caution. There aren't enough rules to know what to expect at every turn so be wary. Keep your hand on your side arm and eye on the door is as good advice here as it was in the wild west.

As with every media discussed, the most sure way of protecting what writer's power might be available to you is to negotiate specific deal points in your contract. Remember, guild protections are setting “minimums”. You can always ask for more and if you have sufficient power at the bargaining table, you just might get it. And don't forget that one key element to having power is knowing when it would be advantageous to relinquish it. When the other side of the table acknowledges that you could demand a certain level of power and you let them know that, in exchange for something else you value, you will not exercise that right, you gain writer's power in another way – you become someone they can readily work with to get the project done.

Struggling against those that have more power than you can be frustrating. Take solace in the fact that you are not alone and that sometimes, struggling long enough and with the right allies you can gain what you might have felt was impossible to achieve.

And it doesn't matter how much power the world perceives you might have had, you can still find the going difficult. Just consider the struggle that Orson Welles had throughout the last years of his career. He struggled to get the financial backing and support to make his last film and hit road block after road block. You'd think he'd earned enough power to make his way smoother for himself. But as the current crowdfunding campaign to get his last film finished shows, sometimes it takes a very long time to gain enough power to get what you want. The fight over power goes on no matter the reputation or status (even after death!) As always, it depends!

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