LEGALLY SPEAKING, IT DEPENDS: Writing in the Style of…

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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There's a schizophrenic dichotomy within Hollywood. (Just one?) On the one hand there is an adamant requirement that you must be original to stand out as a screenwriter. On the other hand, whatever you write has to fall within the rigid expectations of the audience (at least as the producer you're talking to sees them) in order for your work to be able to be marketed and sold. These two demands seemingly cannot exist together and yet are both basic tenets of the industry. It's the age old “Originality vs. Familiarity” debates.

Since there are wonderful articles already covering the how to write original work and how to give the audience what they expect written by my co-columnists, this article is will explore the intricacies and potential pitfalls of trying to achieve that balancing act between the two without misstepping or running afoul of the law, stepping on egos or causing a business faux pas along the way.

Shakespeare stole whole stories, plots, characters and schema for many of his works, including some of his most famous pieces. But he has a reputation of being one of the truly original writers in the English language. How was he able to pull off this seeming incongruent achievement? It takes a craftsperson to fashion a new work that reflects on original one, but, does so with a style and verve that surpasses or enhances the old ideas in ways unattained by the original. Shakespeare could take a popular, but, stodgy old history or epic poem, wash it through his eye for mass appeal and perform it on the stage with winks and nods to his well receptive and much larger than the original's audience. It's a skill of adaptation that is a treasure to behold. And it hasn't been lost on modern filmmakers.

Quentin Tarantino has an encyclopedic knowledge of films. And above all else he truly admires and studies them to understand their appeal. You can easily see the vast array of influences that guide his hand watching any of his modern works. A student of film can recognize where Tarantino tips his hat to the masters that came before him. They are everywhere in his films. But he still manages even through the smorgasbord of homages to put up on the screen something unique. You will not easily mistake a Tarantino film for anyone else's, even if you've seen so many familiar scenes in all of them.

And he is not alone. If you listen to MartinScorsese talk about film, you'll hear a litany of the dozens of films that he has used as inspirational starting points for each of his films. An encyclopedic knowledge of films serves to inspire these filmmakers. And yet, they also manage to find their own voice within the echoes.

Just repeating what's gone before isn't the ticket. There's an industry term for just regurgitating something that's already played in the same manner and form. Schlock. Many a B or C or D grade movie has been green-lit with unscrupulous producers demanding, “Make me another one of those.” True enough, Hammer films, the SyFy channel and many others have made their own niche markets for just this type of “genre grind”.

But, as in any approach to cinema, there is a point where one can cut too close to the bone and go too far. Any imitation of someone else's works need worry about various, serious complications that could impede the end results. Among them you can count worries of copyright infringement if writing too direct a reflection, fragmenting the market by producing something the audience has already seen or is being overwhelmed by from other sources, and the problem of the diminishing returns of going to the well too often, each time giving the audience less of an interest to return. Some of these are legal concerns that can cause havoc if not navigated properly. Others of these are business concerns that should weigh in as to whether the efforts spent will be worth it in the end.

The solution lies somewhere along the line of mixing familiarity with the original sources, but, bringing in a sufficient freshness, newness and originality to the new fare. How to achieve that is difficult to describe, but, entails a careful balancing of factors.

We should all know that we can't just write another Batman movie without upsetting the rights holders to the character and previous works. Anything that directly harkens, or plays off of the audience's recollections of the dark knight would be too close to comfortably create without the worry of litigation. A touchstone to use is whether the audience would reference their knowledge of the original works when watching the new one. If you piece requires a gravelly voiced man with a pointed ear cowl in the shadows to work, then you're in trouble. But if your creation has at its heart a troubled past, vigilante justice driven loner who works outside of the law and creates fear within the criminal ranks, you might be on to something. Copying plot, style and character arcs in a generic sense to tell a similar but distinct story is allowable. In fact, it is often how a new movie get's pitched. The famous elevator pitch of, “Die Hard on a bus” did just that. It hits that familiar but original target when done well.

So how much can be taken from the original and what's off limits? It is often a matter of balancing between necessity and specificity. For example to tell a pirate story set on the high seas it is a necessity to have pirate ships. But if you specify that one of those ships is the Black Pearl with its infamous Captain Jack at the helm, that's too far. Scènes à faire is the concept of the necessary elements the audience expects within a particular genre or setting that can't be avoided. These cannot be claimed as part of a protected expression of a work. Scènes à faire can go quite far, depending on the genre. Superheroes in spandex (though the comic publishing giants are attempting to co-opt the “superhero” term and idea as their property) are pretty much de rigueur for the comic book genre. As long as your spandex clad hero's iconography does not infringe on the trademark or copyright protected imagery of predecessor icons, you can fly unimpeded (as long as that's the character's superhero power.)

A writer looking to avoid legal conflicts might look to the public domain as a source for inspiration and public familiarity. But just because something is in the public domain doesn't mean all of it is fair game. Cinderella is in the public domain. (It was when Disney first dipped into his inkwell.) But if your version of Cinderella happens to be a blonde in a blue dress you'll likely get a knock on the door from Disney in short order. Though the original stories being told may lie in the public domain, any version of the story more recently told with unique elements can be protected as new re-interpretations and creative variations. So if you're going to start from the beginning, make sure you go to the original source and anything new you create is truly new and originates from you alone.

You need to make sure your chosen source is actually in the public domain. There is no simple test. There are a lot of rules about it, and conflicting exceptions and surprises galore. Here are two examples to show how tricky it can be: two sources, one written in 1896, the other published last week. Of course in the example I've chosen, the first is protected and the second is in the public domain – what, does that surprise you? The first is an unpublished manuscript from a pseudonymous author, the second a who's who of the richest residents of San Marino. It all depends on the details.

Whether something is in the public domain varies from country to country. Just as copyright is bounded by the countries where the laws hold sway, so to is public domain. (The above example of the San Marino publication is only in the public domain in countries that follow the Berne Convention and/or don't have an independent international copyright agreement with the Republic of San Marino.) Luckily movies only play in a single country so you don't have to worry about this, right? What?

What is in the public domain also depends on which aspects of that work are in the public domain. Courts recently determined that Sherlock Holmes is now in the public domain – BUT – only those parts of his character that were brought to life in the original run of publications. Later additions to the stories can still be protected. When did he start smoking a pipe? Wearing that hat? Using drugs? The only way to know for sure is to research your particular case, carefully.

Until the term was co-opted and lost all original meaning there was an easy way to refer to the professional writer who was hired at great expense to come in and “write in the style of,” but just a lot better than, the original script they were called to fix. They were called script doctors (now that term is sometimes used by script consultants who've never sold a single word, so, we've lost another favorite moniker to the masses.) But the job, whatever you call it, still remains and it is a very lucrative one. Some quite famous writers make the bulk of their living under that guise. The key is to not have your own voice conflict with the voice of what's on the page. You can fill out the chorus, but, can't take the lead. It takes a special skill set and one well rewarded. But it brings with it its own special problems and concerns.

When a formerly-known-as-script-doctor comes in, they are assured that at least one writer has already given form to the script at issue. You are brought in to “fix it”, but, just how to do that is left up to you. And there, you have to be careful. Some producers want you to know nothing of the process and people who have come before you to give the task a fresh perspective. The risk is you'll try exactly what was tried and rejected before you got there. A quick talk to the previous writers would help immensely in avoiding prior mistakes. But, are you allowed? Would the former writer be receptive? Resentful? Harmful? What of your reputation in this volatile mix?

Usually the hot shot “fixer” is given a lot of money at a time when tempers and timelines are short. If you save the day, you'll be turned to again and again to do the same. If you fail, how much of that failure will be on you? You were a hail marry pass at the end of the game. Sometimes, there's too much yardage to make up in the time left. But the fact you were brought in can rub some the wrong way. This is often why these roles are usually filled anonymously.

But just because you'll likely not be blamed for a failure and at best won't even be recognized as having worked on the project is no reason to not be careful. If you make a costly mistake, e.g. infringe on someone else's copyright, you are the one who will be on the hook. You are ultimately responsible for your own actions, definitely responsible for your own protections.

The WGA does know of this process and does attempt to offer protections to these writers. But there is only so much they can do. The rest is up to you. And remember my previous columns about negotiation? The other side of the table is on a deadline and they desperately need a fix. You have the power to get what you ask for or walk away. That doesn't mean you'll get it, though.

Be invaluable enough to be listened to. If they don't want to give you what you need to feel comfortable doing the job, do you really want to work for them? And if you walk away, how you do it may impact your next gig. As always, it depends.

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