Legally Speaking, It Depends: Script Registration?

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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To register or not to register, that is the question. Actually, it's just one of the questions that screenwriters often face. Others are,

and

The answer, as always with this column is, “It Depends.”

For those who don't know what registration is, don't worry. Many of those who use the term and have actually registered scripts probably don't know what registration is, or worse, think their registration is something other than what they actually have. In short,

REGISTRATION is an attempt to garner some form of legal protection with regard to a script or other textual product used in relation to filmmaking.

I admit that definition is vague in every respect but one; It's the most accurate single definition I could come up with. You see, there are many different types of registration providing different types of protections – and not protecting other elements along the way. Before choosing what type of registration might be good for you or whether you should bother at all, we should look at the popular versions available and just what they provide (and don't.)

The Writers Guild of America, (WGA) provides an easily accessible and inexpensive version of registration that any screenwriter can use, the WGA West Registry . For a fee of US$20 for 5 years, (US$10 for Guild members) which is renewable for 5 more years at the full fee rate, any writer can electronically place their work in what amounts to an electronic lock box with a date of submission attached. What does using WGA registration provide you? Let me quote their instructions directly, “Registration provides a dated record of the writer's claim to authorship of a particular literary material.” And that's all it provides. Whether that is important to the writer or not, we'll get to in a moment.

The other version of registration popular for screenwriters is registering with the United States Copyright Office. The process offered is a way to accommodate Federal Copyright formalities (remember that term for later) that will gain you some benefits that are otherwise inaccessible for a copyrighted work. Notice, I said an already copyrighted work. You do not need to register your copyright with the government for it to be valid. (See below.) So filing with the Copright office is optional for most uses of copyrights. How do you do register? The US Copyright Office provides a simplified process using their Copyright Office eCO Online System. It costs US$35 if filed online, US$65 if you want to use the old paper filing route. The registration lasts as long as the copyright does. If you do decide to register your copyright you are required to deposit a copy of your work with the Library of Congress as well. (Which luckily is made a painless part of the process as well.) In fact, if you have your work published in the US there is a requirement of a deposit of a copy in the Library of Congress anyway (which can serve the exact same purpose as the WGA registration).

SIDEBAR: There are a lot more things that you should know about Federal copyright which are covered quite well in the Copyright.gov FAQ pages. Check them out.

Neither registration version is required. And you can register with either service at any time after you've written the work. Of course the effective dates of the protections that are provided by the processes will only take effect from the time you register.

I know right now some of you are thinking,

Actually, most copyrights are unregistered. Since a copyright is created very easily whenever a work is fixed in a medium of expression

SIDEBAR: Download this quality reference from the Copyright office for general facts like these.

the protectability of that copyright starts there. There are a few things that you gain by registering with the copyright office that you wouldn't have otherwise, but, the bulk of what you need to protect your work ALREADY EXISTS.

There are also some small issues you should be aware of if you do choose to register that are often overlooked.

You shouldn't place your WGA or Copyright number on your script. It's a big no, no and looks amateurish to those in the industry. Go ahead and register it if you decide to, but, don't crow about it. You know you are protected. The pros assume you are protected so putting the evidence on the script isn't necessary.

There is another small point that might throw a hiccup into the sales process. Note that a US copyright registration will actually cost the buyer a bit more money to take over from you when you sell the script than one that hadn't been registered yet. And they have to file a different form for the transfer of copyright than what they would use to register it initially, so they need to know whether what they just bought is registered or not. So, what I said about not crowing about registration, wait until after you've sold the script to a buyer, then let them know.

- Proof when it was written, to be given as evidence in court.

SIDEBAR: Through the auspices of an international agreement known as the Berne Convention for the Protection of Literary and Artistic Works, foreign copyright owners need not register their copyrights with the US Copyright office before taking a case to court. Many do anyway for other benefits, like attorneys fees.

- Federal registration needed for US citizens to sue for infringement.

What you need to sue for copyright infringement

- A valid copyright, and,

- registration with the Copyright Office if you are a US citizen.

To prove infringement you essentially need to establish two things:

- Access

- Copying

Access is the likelihood that the alleged infringer actually had opportunity to access the original work.

This is where WGA registration could potentially help. WGA registration establishes that according to a disinterested, trustworthy party, on a certain date, the filed copy existed in the world. If the infringement happened after that date, then it serves as evidence that the alleged infringer “could” have had access. The better the evidence you have of when a script existed the easier it is to establish potential access. There are other ways of establishing an “accessible” date. If you had a public staged reading of your screenplay, that could work. Even testimony of disinterested third parties who will swear that they read your script on a certain date prior to the infringement could be used. This is why mailing the script to yourself is poor evidence, no disinterested party. Each piece of evidence would be taken for the weight it carries and the defendant would have the right to challenge them all, even the WGA evidence.

Copyingis... well, copying. But it's a lot more complicated than that.

Access is a very small part of the equation in a copyright suite. The big issue, even if access is assumed, lies in the “was it really copied” discussion (left for a future article, likely including references to the wonderfully named judge, Learned Hand and the poem “Ode on a Grecian Urn”.)

It really is up to you. If you foresee a need to prove the date when you first finalized a draft of your script within the next 5 or ten years, or just feel better having the security that it was done, then you might as well register with the WGA. If you want to save a little money in the long run and have the added comfort of knowing that you can head to the courthouse to sue to protect your copyright the moment you learn of an infringing use, then you might as well register your work with the US Copyight office.

On the other hand, if you can realize that evidence of when you wrote something can come from many different sources and as long as you didn't write it and stick it in a drawer, you'll likely have someone who can vouch for when they first read your work and you want to make your sale of your script as smooth as possible for the producer or studio (and save them about $70) then don't bother to register the work.

If you feel like covering all your bases, register with both services. If you feel litigious, register with the Copyright office immediately. If you find out someone has infringed a work you didn't register when you first created it, register it with the copyright office and pay for the expedited processing in order to take them to court.

As always, it depends.

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