Legal Q & A with Mark Litwak

Do you have questions regarding the potential legal issues involved with writing? Now's your chance to get them answered. Each month, we will accept submissions from you regarding writing and have Attorney Mark Litwak answer one of the questions. We will feature the question in each issue of The Scoop.

SEND YOUR QUESTIONS TO MARKETING@SCREENPLAY.COM.

NOTE: Information on copyrighting or registering your works can be found by going to the Screenplay.com Copyright & Registration Resources.

Legal Q & A for November 2005

WHAT IS FAIR USE?

By Mark Litwak, Attorney At Law

Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works.

If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research..... Click Here.

Previous Articles:

June 2002	I understand that it is alright (no legal issues) for writers to adapt plays, novels, etc. if they are in the "public forum." What exactly does that mean? Does a writer have to be dead in order for them to be in the public forum? I would like that clarified.
July 2002	As a college student if I write a stageplay/screenplay and submit it for a final grade, does the paper and any other writing that I submit for the class, now become the property of the University? How long do I have to retrieve the work from the instructor? On the front cover should I write copyrighted?
August 2002	I have been told by a friend in the industry that the name I chose for my screenplay is a very good one indeed. Is it possible to copyright/protect a film's name? Mine is only one word, and although not a commonly used word, it is in the English dictionary nonetheless, but I'd be most upset if someone else's script had the same title. Is there anything I can do?
October 2002	I have adapted a screenplay, but in checking www.copyright.gov I have found that someone has a copyright of the same name and at least a similar idea to my own. The description of the copyright is very unclear and it makes me wonder whether this other claimant and I have the same idea or not. Is there a way to find out more information about this other person's copyright submission? What if this person just copyrighted the idea because they thought it was a nice idea at the time but have no intentions of developing the idea to fruition? Is there a way to transition the rights to my name?
November 2002	I've heard an alternative way to get a script to a producer or talent is to submit it using an entertainment attorney. What are the advantages and disadvantages of doing so? What should the writer consider when submitting through an entertainment attorney? What does the attorney consider before submitting (or will they submit as long as their fee if being paid)?
December 2002	I'm completing a rewrite for a script that has been requested by an agent. Once I send it and, God willing, he likes it, I'm assuming things can happen fairly quickly. What is the general sequence of events? How much time does a new writer generally have to find a good attorney to review contracts, etc? Since I don't know anyone, I'm a bit concerned about getting a reputable attorney who will look after my interests, rather than the studio's.
January 2003	Is there such thing as a basic price (or a decent price) for an option? I have no idea of what would be considered a "decent" proposal to option.
February 2003	What is an E & O Insurance policy, and why is this important in a screenplay contract negotiation?
March 2003	What legal protections or actions should we take when we pitch projects?
April 2003	How can, writers without residency in US, protect their scripts, when trying to sell them in the US?
May 2003	A friend and I were working on a script.  Together we came up with the initial idea and the major plot points as well as some details along the way. My partner wrote most of the dialogue and the physical screenplay on his computer, fleshing the story out on paper.  My question is ...would my contributions warrant a writing credit?  Or a story credit?
June 2003	I have heard that the Son of Sam Law in California has been dropped or modified.  What does that mean for writers?
July 2003	If a writer writes a script on spec intended to be a sequel for a movie or movies already released, what are the legal ramifications? For example, if a writer writes a spec sequel for the Aliens or Scream series, can this script be submitted? What qualifies as "Fan Fiction" and are there any legal issues with it?
August 2003	When a scriptwriter wants to adapt a book that has been out of print for at least twenty years, is there a "standard" offering the scriptwriter should make to the author for the rights? Would it involve a one-time payment, or is it based on a percentage of future sales?
October 2003	When a scriptwriter wants to adapt a book that has been out of print for at least twenty years, is there a "standard" offering the script writer should make to the author for the rights? Would it involve a one time payment, or is it based on a percentage of future sales?
November 2003	There's a novel, entering public domain that I'd like to do an adaptation of. However, it was previously made into a film by a large studio. If the studio had “bought" the copyright from the author before it made the film (and film is not yet public domain) but the writer goes back to the "original work" (now public domain) and does an adaptation that does not resemble the film, is he/she safe from copyright infringement claims by the studio?
December 2003	When structuring a production company, is it better to structure the company as a corporation or is it better to make it an LLC?  What are the advantages and disadvantages? And show each project be a corporation or LLC?
February 2004	I am currently writing a screenplay for hire. The process seems endless as the source that I am writing for has considered me a bottomless well for changes. Every screenplay goes through several drafts anyway so I could see myself tied to this forever. What constitutes a "finished screenplay" contractually?
April 2004	If I sell my story and later decide I want to write another story that includes one or more of the characters from my first story, would I have to negotiate into the contract the rights to do so?  For example, I write a script, it is made into a movie and then five years later I decide to write another script, or maybe a book, which deals with one of the supporting characters from that first script.  Would I have to had contracted at the time of sale to keep the rights to the characters?
May 2004	I am getting ready to shoot a script I have written (this is a self financed project) and one of the scenes involves a character watching a movie at home.  The movie I would like to have playing has two very famous stars in it but would only be shown for about 10 seconds or less on screen.  Do I need to get legal permission to have this movie playing on the TV in my scene?
June 2004	Protecting Your Stories— Borrowed Elements or Stolen Ideas?
July 2004	have enrolled in a number of online screenwriting courses, is there anyway to protect an unfinished screenplay that I might need to use in an online classroom setting?
August 2004	TACTICS AND STRATEGY IN ARRANGING DISTRIBUTION—Part 1
October 2004	Filmmaker’s Self-defense Checklist
November 2004	PROTECTING FILM INVESTORS—Part I
December 2004	PROTECTING FILM INVESTORS—Part II
January 2005	RETAIN YOUR MASTERS
February 2005	NEW PRODUCTION INCENTIVES ENACTED
March 2005	Film Festivals—Part I
April 2005	Film Festivals—Part II
May 2005	FINANCING INDEPENDENT FILMS
June 2005	MOVIE MERCHANDISING
July 2005	ORGANIZING YOUR COMPANY
September 2005	IMPLICATIONS OF THE GROKSTER RULING
October 2005	BREAKING INTO THE MOVIE BIZ
Novmeber 2005	WHAT IS FAIR USE?