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How To Copyright A Script If You’re A Non-US Based Screenwriter

 

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July 4, 2016 0 comments
HOW TO COPYRIGHT A SCRIPT

In this guest post by entertainment lawyer Danny Jiminian, we take a look at how to copyright a script if you’re a non-US based screenwriter.

Whether your goal is to go to Hollywood, or write the next indie hit, screenwriters are eager to submit scripts to the US, but are there different copyright rules for US based and non-US based screenwriters?

Before we start, it’s important to understand a little bit about:

How Script Copyright Works Throughout The World

While many countries, including the United States, provide copyrights that give a creator [or an assignee] the exclusive legal right to reproduce and distribute copies of their copyrighted works, perform and display their works publicly, or prepare derivative works, some countries offer to little or no copyright protection at all.

For better or worse, there is no international copyright that protects an author’s creation in every country; instead, copyright is a matter of national law specific to that country.

So does that mean you have to register a copyright in every single country to protect your work?

Fortunately, no. Thanks to treaties and conventions, most countries offer many protections to foreign works.

First of all, there are two main international copyright conventions:

  • the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne)
  • and the Universal Copyright Convention (UCC).

Although there are no formal requirements mandated by the Berne Convention, it generally states that the works of an author who is a national or domiciliary of a country that is a member of these treaties, or works first published in a member country, or published within 30 days of first publication in a Berne Convention country, can claim protection under the treaties.

Under the UCC, any national law’s formality can be satisfied with the use a notice of copyright in the form and position indicated by the UCC (composed of the symbol ©, accompanied by the year of first publication and the name of the copyright owner (example: © 2016 Danny Jiminian)).

This notice must be placed in such a way as to give reasonable notice to the public. Copyright notices are optional in the United States since the Berne Convention prohibits formal requirements that affect the “exercise and enjoyment” of the copyright.

Nevertheless, for the majority of cases, it is good practice to use copyright notices.

Second of all, some copyright protections may be obtainable in countries that have a bilateral agreement with the US and other countries.

The key points to remember for any foreign screenwriter seeking protection in the United States are that:

  • Any work that is protectable by U.S. copyright law can be registered including works of foreign origin.
  • All works that are unpublished, regardless of the nationality of the author, are also protected in the United States.
  • Works first published in the United States or in a country with that has signed a treaty with the United States or that are created by a citizen or domiciliary of a country with which the United States has a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office.

Knowing this, a foreign screenwriter trying to sell or produce his or her script in the United States might say: “Since Berne and the UCC offer automatic copyright protections, I don’t need to register it in the US.”

That would be a bad idea.

The reason for this is because Berne has no legal effect in United States courts on its own. Congress has not officially authorized Berne; it has only passed laws to conform current United States copyright law to meet the bare minimum of Berne.

Furthermore, if that is not a good enough reason, there are four important benefits a screenwriter gets in registering a copyright in the United States:

1. Presumption of Copyright Validity

The presumption of copyright validity makes it easier for a plaintiff to prove copyright infringement if they sue in court. Basically, a court will presume that the plaintiff has a valid copyright and it is up to the defendant to prove that the copyright is invalid.

If a plaintiff fails to register in a timely manner, then he or she must first prove that the work is entitled to protection under U.S. law and is copyrightable, as well as, that the plaintiff is the true copyright owner and has jurisdiction to sue.

2. Statutory Damages

Although a foreign person can sue for copyright infringement, only those who have timely registered their copyright can get statutory damages.

This can be up to US$ 150,000 for each registered work infringed. Without a timely registration, foreign authors can only recover damages they actually suffered because of infringement, which might be nothing. This could be a key reason whether or not to sue since litigation is long and costly.

3. Attorneys’ Fees Awards

Plain and simple, only authors with timely copyright registration can recover attorneys’ fees.

4. Facilitate Financial Transactions, Sales, Assignments and/or Transfer of Rights

Whether dealing with a distributor or optioning a script to a production company, negotiating parties want assurances that your script is not a risky liability. Possessing a clear copyright paves the way for negotiations to proceed and deals, assignments or transfers to be made.

Now that you’re convinced you should register a copyright, you want to know how to do it.

If You’re a Foreign Author, Here’s How To Copyright A Script

It’s really fairly straightforward:

  • Register your work online through the US Copyright Office.
  • Pay the appropriate registration fee.
  • And  you’re covered.

One lasts thing, I know it may sound self-serving but you should really consider hiring a lawyer to copyright a screenplay.

Although copyright registration is pretty straightforward and might not be necessary in some situations, it is worth at least consulting with a lawyer to help you through the process. A good lawyer can help you with:

  • Legal advice that covers additional areas you might not even be aware of.
  • Strategies for protection against infringement beyond registration.
  • Registration submissions that meet the proper deposit requirements, correctly lists the authors (if more than one) and identifies preexisting materials.
  • Communicating with examiners and attorneys at the U.S. Copyright Office in case there are any issues with the application.
  • Negotiations between you and production companies, producers, distributors and other interested parties who wish to purchase your script or lease rights to it.

how to copyright a scriptFor help with how to copyright a script, or registering your script with the US Copyright Office, and other related copyright and entertainment law issues, contact Danny Jiminian at [email protected]

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