LEGAL EASE: WE STARTED IT TOGETHER, BUT NOW I WANT TO GO IT ALONE
From the archives
Q: 12 plus years ago a colleague came to me with a high concept logline for a TV series. I created the characters and most of the bible, even wrote a pilot. Through some bad decisions on his part, we went with a terrible production company that managed to sink the idea… (I know this sounds like I am laying all the blame at his door, but I had no say on who we went with for development.) As of today the project is still un-produced and not in development. I have no contract with anyone regarding this material… I am also a prose writer and have thought the idea would be a good book series, and might even serve as a backdoor pilot. I do not want his input on writing a book… What do I owe him on this possible venture?
A: You may be shocked to know that bad decisions in Hollywood aren’t monopolized by the mouth breathing reality show stars dragging their knuckles down Sunset Boulevard looking for the paparazzi. In fact, at any Clippers game, you’ll see plenty of successful Hollywood types. So don’t get down on your colleague or even yourself. The key is to recognize where you went wrong. While your colleague may have the same taste in production companies that my wife has in men, the truly bad decision occurred when you moved forward with what sounds to be a collaboration with your colleague without having any sort of written agreement outlining how everything would work between you two, especially with respect to ownership of the material, money splits, and decision making. If you had an agreement in place that touched on decision-making, perhaps you could have prevented your colleague from moving forward with the terrible production company. More importantly, such an agreement would also have spelled out your respective rights in the final script so you’d know what you could do with it and how much your colleague would be due. Moral of the story: you should always have at least a cursory agreement in place when you collaborate with someone so you at least know where you stand instead of trying to figure it out at a later date when the stakes may be higher (and your collaborator may smell money). Now I don’t want to be the guy whispering in your ear that you “probably should have just gotten a drumstick” after you’ve choked down one of those terrifying KFC Double Down sandwiches. What’s done is done. In fact, your mistake may actually benefit you in this instance. Depending on the facts, there’s a chance you may have the right to freely exploit your script as a book or even a pilot without owing your colleague a thing. The first question is whether the logline was something written or something your colleague orally imparted upon you. If it was just an oral pitch, you’re in good shape. Under the law, copyrights are only conferred upon “original works of authorship fixed in a tangible medium of expression.” That which is given in a conversation is not fixed and thus cannot be protected by copyright. Contrast this with what you’ve created – your written materials are fixed and you therefore have rights in such materials. Let’s say, however, that the logline was written. Due to the simplicity of most loglines, there’s still a chance your colleague is not protected by copyright law. As we’ve blogged before, one cannot own a copyright in an idea; one can only own rights in the specific expression of that idea. Therefore, if he handed you a fortune cookie logline that just said “vampire lawyers work with cops in a hospital” (this show is bound to happen), there’s really no expression there that can be protected. Because you have no contractual agreement between you that says he has some rights in the project, your colleague would have no legal recourse against your incorporation of that idea into your script and your subsequent exploitation of that script. Not knowing the facts, however, I don’t want you to get too comfortable with this. If your colleague’s written logline was of some substance (let’s say it is detailed enough to contain plot points, characters or twists that you incorporated into your script), it may be protected. In such a case, your incorporation of his work into your own means that he would co-own your script with you. If it’s at all unclear, you should try to work out something with your colleague before you adapt your screenplay into a book. You probably don’t want to have to go through a lawsuit to clear up the rights issue (even if you come out victorious) if the suit itself halts your project and destroys your pocketbook. What you owe him will be entirely determined by your negotiations. Since the project is seemingly dead (partly due to his poor choices), see if you can simply buy him out for a low upfront amount. If not, give him a small percentage of whatever money you make, with the understanding that you control all decision making from this point forward. Whatever you do, make sure your agreement is in writing. Prologue: I haven’t really touched on the issue of the terrible production company. If, as you say, the terrible production company never had you sign an agreement, then it’s about as clueless as those of you who are not watching Friday Night Lights (judging by the ratings, that’s probably about 89% of you – what is wrong with you people?!?!?). Without an agreement, it can claim no rights in your script. If you’ve gone Regarding Henry and just forgotten that you actually signed something, you need to find the agreement to see what it says. I’m hoping it was simply an option agreement that expired at some point with you have no further obligations to the production company. If, on the other hand, you and your colleague actually assigned all rights to the production company, even if it has done diddly with those rights, it still owns them. If you tried to exploit it further in any media, you can rest assured the terrible production company will roar its terrible roar, gnash its terrible teeth, and roll its terrible eyes (and sue the hell out of you).
© 2008 Greenberg Glusker Fields Claman & Machtinger LLP ("Greenberg Glusker"). All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not beconsidered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. Greenberg Glusker does not represent or warrant that this Blog contains information that is true or accurate in all respects or that is the mostcurrent or complete information on the subject matter covered. Matt Galsor and Jesse Saivar are attorneys in the entertainment transactional department of Greenberg Glusker Fields Claman & Machtinger LLP.