Copyright, Art Theft, and all that...
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SeanE's avatar
By SeanE   |   Watch
12 3 3K (1 Today)
Published: March 5, 2016
I came across Mike Bierman on Facebook, who is an attorney and screenwriter. He also has a Facebook group called "Screenwriters Who Can Actually Write..." where amongst other things he offers advice on copyright law. It's focused on screenwriting but the general ideas apply to any artwork. Here's what he's got to say..


UPDATED 02.08.16. This will answer basic and inevitable copyright questions (RECYCLED from my posts):

Time for my annual "book" post on copyright, because no matter how many times this information is given, no one bothers to take notes or read it until they know it. Plus, the law is IN FLUX and changes constantly. Here we go again: 
You do not even get into federal court on a copyright action w/o filing for copyright. Also, if the infraction occurs BEFORE the filing for copyright (e.g. you find out about the problem/theft, THEN file) you CANNOT get STATUTORY DAMAGES, costs or attorneys fees, which effectively GUTS your action. So let's say your actual damages are $5,000. Even if you win under this scenario, that's ALL YOU WILL GET. And you will spend FIFTY times that to get there. (YES -- typical cost is around $250,000 for a copyright case). That's why you MUST file for copyright before the FIRST time you give your work to ANYONE. 
Writers Guild of America (divided into EAST and WEST, which really makes no difference as they are the same organization) AKA WGA, offers script and other writing registration. It is available to both members (at a discounted rate of $10) and non-members. WGA charges $20 and gives you ZERO protection. It is SOME evidence of when a work was completed, but little else. A file with each writing date saved separately for each writing day in software's file format does far more to prove authorship than WGA registration, and costs nothing. You should always do this anyway. The WGA reg only guy doesn't even get into court. $35 for the real copyright (which IS EXACTLY what "LOC"=Library of Congress means -- they are identical), coupled with your own meticulous records offer the BEST protection. Copyright should be filed BEFORE YOU SHOW YOUR WORK TO ANYONE for maximum protection as aforementioned. 
So, copyright offers your only protection, and only costs $15.00 more than essentially giving your money to WGA for nothing. The WGA reg MAY be useful for a credit dispute as to who should get what level of authorship, but that is internal to WGA and is NOT a copyright. Frankly, this has been discussed ad nauseum and the correct answer never changes. While new members come in all the time, they should check pinned posts, and old members have already had this question answered many times.
DURATION: WGA is a false economy at $20 as well. Your WGA registration must be renewed for the full $20 EVERY FIVE YEARS. COPYRIGHT, which costs $35, is done ONCE and survives your death plus another 70 years!

Now, for an example: 
Let's say you wrote a screenplay called "DUD" when you were 50 years old in the year 2000. You live to be 100 and die in 2050. Assuming, arguendo, no fees or rules change, here's what registration costs you:

The copyright is $35. Real protection (the best there is), lasts until roughly 2120. Your GRANDCHILDREN or GREAT GRANDCHILDREN can bring a copyright action when DUD is stolen. Total registration cost=$35.

Your WGA registration would have had to be renewed roughly ten times over fifty years until your death for $200, and you are out of luck in 2055. Total registration cost=$220. WGA (essentially worthless) costs you $185 MORE and neither you nor your successors can even bring a copyright action at any time. Still feel good about fighting me and arguing about which to use?
You cannot copyright your IDEA, rather you can only copyright the EXECUTION THEREOF. Your idea is bare, naked, and ready to be STOLEN. That's where an NDA comes in. It protects THE IDEA itself, under a breach of contract/DESNY theory (see more below).

In addition to the basic rule that you MUST copyright your stuff, is the rule which everyone likes to laugh off and make fun of. That is the NDA. Without an NDA, your idea can be stolen straight out of your submission, and you lose you opportunity to argue for a DESNY cause of action that you should have been paid for provision of the idea. This narrows the scope of your remedies dramatically. Nothing like starting behind the eight ball. With the NDA, you can bring a separate action in regular court, not the patents and trademarks "copyright" court, should you wish to do so. It is much less expensive to litigate than copyright. Your cause of action is basically that you pitched your idea, which has value, FOR COMPENSATION, should they use it. Thus, you now cover your IDEA with the NDA, and the EXECUTION OF THAT IDEA (your script) with the copyright. See THE PURGE/UTA case for the gruesome details.

Also, EXPECT that any production company or studio will immediately DEMAND that YOU sign THEIR NDA. They do this because they have really good lawyers and know it is smart. It also puts you at a disadvantage relative to them, because they hold all the cards. If you do not sign their NDA, they will PASS and not deal with you. Let me make it perfectly clear: They DO NOT WANT TO SIGN *YOUR* NDA, and will likely refuse. Yet, they will demand you sign their own NDA. On occasion, if they really like your project, or you are hot, they may sign. If you proceed without the NDA, it is a risk, as I have already discussed. EVERYTHING is tipped in their favor.
Remember, a typical copyright action costs $250,000+ and lawyers will not likely take it on a contingency basis unless you are famous/rich writer with a long track history of making big bucks. Thus, YOU will be paying the money out of your pocket on a CHANCE to win. The thief only needs to show that 30% of the screenplay at issue is different, and you LOSE, even if it is obvious or admitted the other 70% was stolen. An NDA gives the reason why a script was submitted and is an enforceable contract that will give ADDITIONAL remedies on top of the copyright action. While it may be very difficult to get someone to sign an NDA, without it, you are at much greater risk.
Also troublesome are the transformational copyright theories, as mentioned in the 30% example, above. Someone could take PICTURES of your script, doodle or write in the margins, and call it ART. There is support and some precedent, even very recently, for this being ALLOWED, believe it or not. 
Remember, the studios/production companies have fought these actions and have a stable of high-end lawyers to chew you up, delay, and minimize your claim. You are the little guy with no money beating against the door to be let in. Protect yourself as much UP FRONT and you may make it easier for them to just pay you, the likely unknown writer the relatively small sum to actually legally buy the work instead of steal it. If you actually do bring a copyright action, you will probably be BLACKBALLED. That is, even if you were 100% CORRECT and righteously WIN, no one will ever read your shit again, because they know you may be litigious. If they do, they will require you to sign all kinds of things which say your work has essentially ZERO value, and you agree to that before submitting/reading. The big guys have EVERY advantage even if you do everything right, so why do anything wrong and make it even worse? PAY THE $35 and register immediately upon completion. Minor changes made later (typo fixed, etc.) do NOT require a new filing, as long as the work is substantially the same.
Further complicating this is if your work is passed along or the players change due to firing/hiring or company acquisition (See the GRAVITY case, where the original author of the book got screwed).
If you roll the dice and proceed without the NDA, you must at the very least have a PRE-FILED copyright. The date of AWARD of the copyright will REFER BACK to the date of filing if it is granted, so you DO NOT have to wait to get the copyright certificate in the mail to send your work out. You just need to file. The certs are taking up to EIGHT months to come in right now, and that's if you did everything right. Remember, a tricky part of the website is properly categorizing your to-be-registered work. It is a WORK FOR THE PERFORMING ARTS. Do NOT use the other categories, as they are wrong, and may delay or deny granting of the copyright application.
I have posted a link in comments hereto that says everything I just wrote, written by another lawyer. I have posted a second which discusses NDAs. You will have to search for them in the comments below.
Finally, don't even THINK about bringing up "Poor Man's copyright." This is the name for MAILING yourself your work, receiving it and leaving it unopened in the postmarked envelope. IT DOES NOT WORK, and I have never found a case in which it has. Don't bother.
So, I've finally managed to convince you to copyright! I'm glad that was easy.

You must be CAREFUL to use ONLY the GENUINE LIBRARY OF CONGRESS website. The cost is currently $35 TOTAL, unless you add an additional business registration or specifically request and pay for SPECIAL HANDLING (expedited, almost always unnecessary). There are companies out there that try to mimic the LOC website and will "walk you through" the process, at all times appearing to be the real website, when they are not. These companies could steal your material, or mess up the registration, as they are false third-party chancers and slick willies. They will charge a lot more than LOC, often well over $100. DO NOT BE FOOLED. Make sure you are on the real LOC website! At present, LOC does not use ANY official third-party aggregators to gather information for them and input it for you. You input your data yourself, directly into their website. AT PRESENT, the website is:
There is no way to cheat your way around registration for US COPYRIGHT, and anyone that tells you differently has no clue. Every other move you make to protect yourself is great, but is supplementary to the registration. There are no shortcuts. Sorry.


Now that you've finished reading all of that. Go to this link and see how easy it is to steal artwork, make a small transformational change and sell the result for $100 000…


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elphaba-rose-wilde's avatar
elphaba-rose-wildeProfessional Digital Artist
Thanks for the info! I'll have to revisit this if I ever manage to finish my novel. 

2016 me is getting a whole lot more savvy on these things than teenage me. Good thing those were all so badly written no one wanted them!
artofadamlumb's avatar
artofadamlumb Traditional Artist
Hi Sean (and all here interested in copyright).

Thanks for for this useful stuff.

I recently posted a journal and links to some more useful stuff about copyright here.

KashimusPrime's avatar
KashimusPrimeHobbyist Digital Artist
How ugly! 
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