Legally Speaking, It Depends – Who Owns Script Notes?

Let's face it, writers need notes. Without them, fathoming what might not be working with a script or what the producer might be looking for is much harder. Whether to follow what they say or not is an alchemy that has been dabbled into many times on this site by many others. My goal in this column is to look at the legal aspects of those notes and their impact on the screenwriting and filmmaking processes.

As you've likely learned from reading my previous articles, starting to fathom out who “owns” the notes themselves should be straight forward. The note giver, if working within the defined scope of their job as an employee who is paid to give script notes as part of their duties, creates works that are owned by their employer. This class of works would cover situations where the note giver, say a paid reader working for a producer, writes up coverage (a different kind of coverage than was the subject of my previous column) that contains notes on how to change the story to make it better. The employer would own those notes through a work-made-for-hire doctrine to do with what they will.

SIDEBAR:Here is one benefit for paying for someone to read your work. You are essentially employing the person to give you notes as part of the service and, outside of an express agreement to the contrary, you, the writer, would own those notes to incorporate into your work or not as you see fit without a worry of having to share authorship.

If, on the other hand, the notes come from someone who is either an independent contractor, say a director, or someone whose job doesn't include giving notes, say the actor, then the gray areas start to appear. If there is no expressly written contract with sufficient language establishing a legitimate work-made-for-hire exception, it is likely that the notes are owned by the note giver.

Why would it matter? Everyone together now... IT DEPENDS.

Regardless of who owns the script notes, the intent is for the writer to consider the content of the notes when addressing a future draft of the script. The notes are specific to the script and therefore are, in some sense a derivative work based on it. This creates the odd but sometimes useful legal issue of authorization of the creation of derivative works. The way normal business works sets up the expectation that notes will be offered from many sources. The owner of the script either tacitly or expressly allows these notes to be created by these expected contributors. But this aspect can shut the door on notes (or any other derivative works) coming from unauthorized, unexpected sources. So a superfan who got a hold of the top-secret script of the next Star Wars movie can't hold J.J. Abrams responsible for ignoring the storyline notes thrust into his hand at San Diego Comic Con. Any unauthorized derivative work holds no copyrightability and holds no legal status, even if the ideas might be good ones and similar ideas end up on the screen when the movie finally comes out.

Script notes have to be from anticipated and expected sources. But when they are, there's the considerations of what's a writer to do with them.

From a creative standpoint there's the debate as to whether to use the note to better the script, consider the note an indicator of where a problem lies but ignore the note's proposed solution, or ignore the note altogether and stick to your guns. From a business standpoint, it would probably do you well to consider from whom the note comes and how much power and influence that person has before discarding a mediocre suggestion. From a legal standpoint, deciding to incorporate notes or not can have sticky, unintended consequences if not approached properly, setting all expectations correctly beforehand. Why? Put simply, there are the issues of co-writer and co-owner status that could be in play.

Alas, if it were only that easy to determine who actually is the writer. There are three main arenas where different answers to the question hang:

Each of these arenas are usually straightforward, but all of them can easily be convoluted and confused if not approached in the proper ways. The typist, the “idea generator,” the assistant, the mentor, the contributor, and the lowly writer each can have an expectation and a legitimate shot in each arena if the conditions are right. Clarity will help at this stage of the discussion.

Regardless of whether the work is considered a work made for hire (meeting those legal criteria to assign ownership to the company) or a traditional writer-centric authorship, there are complications that can arise when multiple voices start contributing in how the story goes (e.g. the note-givers). How this can be involves an often vaguely understood area of copyright called “Joint Works.”

In the copyright sense, the first “owner” of a creative work is called the “author” of that work. Usually it is the single individual who labors to create the work that determines this. But when there are multiple people who collaborate to create a work, there could be a joint ownership of the single work between them. Copyright law tries to anticipate the unique challenges of such a situation.

The authors of a joint work are considered co-owners of that work and have special rules that apply between them. (i.e. one joint author cannot sue another joint author for infringement of the work; without agreement to the contrary any author can sell any rights to the work as long as the selling author shares the proceeds; length of the copyright is 70 years after the death of the last surviving joint author.)

How does this impact a screenwriter getting notes? In theory, writing a screenplay assumes you will get notes as part of the process, incorporate those notes into the final version of the screenplay – a unitary whole. Unless it is clear that the participants – the screenwriter and the note giver – were NOT intending to create a joint work, the note giver could be assuming that he or she will be getting an equal part of the pie as co-author of the screenplay.

Even a work made for hire situation isn't immune from the potential confusion, since if an independent contractor who hasn't signed a properly constructed contract with the work made for hire clause in it suggests a great line to add to the script that's incorporated, the note giver could theoretically be co-author with the production company. (Don't think it can happen? Just look to recent headlines about an actress who claims copyright ownership of her performance and is getting her day in court. The co-author theory is one of the stronger possible arguments.)

Most of the time there isn't an assumption of mutual intention to create a joint work and without that, no claim can hold. Making this part clear when the notes are being given is often all that is necessary.

Even if the legal claim to co-authorship status is clear, the business issue of co-writer status needs to be addressed independently as well. I've written a previous column on co-writers so I'll only go a little into the subject here.

There are many forms of collaboration in writing a screenplay. Some people give notes and expect, whether because of the extent of the notes, their importance to the project or their ego, that by doing so they afford themselves some credit for their efforts. Directors often end up in this mold. To avoid hurt feelings and potential rifts during awards ceremonies that stew for months (like what seems to have happened with Twelve Years a Slave this year) it is important to make clear what level of sharing will be acceptable to all participants when it comes to credit ahead of time.

When does the balance tip into co-writer category? It depends. If the note giver is truly benefiting the progress of the piece towards production, the quality of the contribution should be taken into account. How much is being offered and taken, and yes, who they are matters. All of these issues are included in the alchemy to determine how the production should credit all involved in the final product.

If the note givers and the writers and the production people can't agree, there are limited ways of settling the issues. The most notable and successful is the WGA arbitration process. The Writers Guild has a long established and respected process to determine who wrote what and who deserves to get credit for it. But it isn't perfect and it is limited in its applicability so not every dispute will be able to be adjudicated by them (see above 12 Years for a recent example.)

There are other concerns to at least be aware of that might crop up. One is, should credit be afforded to someone who gave notes but they were not used in the final product? And what if the same note comes from multiple sources? If credit is being given for it, who gets credit then? And say some great notes are taken from a production executive in a project that stalls in turnaround and ends up with the script reverting to the writer (it happens if the writer's contract stipulates such an eventuality). Can that writer take the new script with the useful notes included to another studio? Does the producer who didn't qualify for credit on her own project suddenly have the right to demand credit at the new set-up?

These are not so far fetched scenarios. Most of those examples are reflections of stories I've actually heard happened. What are you to do if these or similar circumstances arise? It depends...

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