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Copyright Advocacy: The WGA Script Registry Is No Substitute For Copyright Registration by Larry Zerner
Copyright Mark

The WGA Script Registry is costing writers’ money and is acting as a detriment, not an asset, to writers. As an entertainment litigator who is regularly asked to handle copyright infringement lawsuits against motion picture studios, one of the biggest problems I face is with writers registering their work with the WGA Script Registry instead of the U.S. Copyright Office. By doing so, these writers are not only costing themselves tens of thousands of dollars in potential recovery but, in many cases they are guaranteeing they won’t recover any money at all.

     The reason for this is that under U.S. copyright law, if a writer suing for copyright infringement wants to recover their attorney’s fees and/or statutory damages in the lawsuit, then the writer must have registered the work with the Copyright Office before the infringement began. But the law considers the infringement to have begun when the infringing script is written. So, usually by the time the writer hears about the infringing product, it is too late. The writer may register with the Copyright Office at that time, and can still file a lawsuit to stop the infringement, but they will be barred from recovering his attorney’s fees and/or receiving statutory damages.

     Let me give you a hypothetical that explains the real world implications of the writer’s failure to register with the Copyright Office, especially for new and unestablished writers.

     A writer signs an option agreement with a production company to purchase his screenplay. The agreement says that the purchase price will be WGA minimum for a low-budget feature (currently approxi-mately $35,000). The option expires without being exercised. A couple of years go by and the writer sees that the production company has put out a movie which is the same as thier screenplay, but did not pay them and did not acquire the rights to his screenplay. The movie is released, but is a box office bomb and does not earn a proift. The writer now wants to bring a lawsuit, but has only registered their screenplay with the WGA and not the Copyright Office.

     The problem the writer will have is that, because the script was not registered with the Copyright Office, in any lawsuit the Writer can only recover 1) the actual damages caused by the infringement and 2) any profits earned by the infringer (17 U.S.C. §504(a)(1)). Because the movie did not earn any profits, that means the writer can only recover their actual damages. In a case like this, the writer’s actual damages would be the $35,000 low budget minimum they would have received had the studio exercised the option. And because the writer was not registered with the Copyright Office before the infringement, they could not recover their attorney’s fees in any lawsuit.

     As you can imagine, suing a studio for copyright infringement would cost much more than $35,000 in attorney’s fees (taking a case to trial can cost more than $100,000). And for those attorneys (like myself) who will represent writers on a contingency fee basis, there is simply not enough money at stake to justify taking the case on a contingency because the attorney’s fees would end up much higher than the possible recovery. The end result is that no lawsuit is ever filed, the production company gets away with stealing the script, and the writer gets nothing. Even worse, the writer can’t sell his script to someone else because the movie has already been made.

     Now, imagine the same scenario, except that this time the writer registered with the Copyright Office, not the WGA Registry. In that case, the writer is not limited to just get-ting $35,000; they can ask the jury to award up to $150,000 in statutory damages for willful infringement of his copyright (17 U.S.C. §504(c)(2)). Also, should they prevail, the writer can recover their attorney’s fees at the end of the trial (17 U.S.C. §505). This makes it much more likely that an attorney will represent the writer, because the attorney knows there is a much better possible outcome. In fact, in these scenarios, it is much more likely that the studio will settle the case early on, because it knows if it delays it will end up paying its own attorney plus the writer’s attorney fees which in a case like this can mean much more than the writer would accept in settlement at the outset.

     So the net result of a registration with the Copyright Office is 1) that it’s much more likely that the writer will find an attorney to represent them, 2) the case will settle early on for a higher amount than if there was no registration, and 3) if the case goes to trial, the writer stands to win up to $150,000, not just $35,000, plus his attorney’s fees. Even in cases where the actual damages are significant enough for an attorney to take the case on a contingency without a prior registration with the Copyright Office, the writer stands to lose tens of thousands of dollars (if not hundreds of thousands) that they could have received in attorney’s fees at the end of the case had the script been registered.

     Another advantage to registration with the Copyright Office is that if the writer registers the screenplay within five years of its creation, the registration is considered prima facie evidence of the validity of the copyright and of the facts stated in the certificate (17 U.S.C. §410(c)). This can be important in cases where the infringement occurs many years after creation. I handled a case where the original work was created (and registered with the WGA) in 1981. My client did renew the work a few times but then stopped. By the time we filed the lawsuit (in 2006), there was no evidence in the WGA of the registration and my client was forced to prove that he actually wrote the work in 1981 (which is not easy). Had my client simply registered with the Copyright Office at the outset, we would not have had any problem because the registration itself would be considered proof that he wrote the script.

     At one point in time, the WGA Registry served a purpose. In the pre-internet days, when copyright registrations had to be filled out by hand and writers mailed scripts to Washington, the Registry served as a low-cost and simple way for writers to prove the existence of their script. But the Registry’s purpose has past. Now that writers may visit the Copyright Office website, fill out a form and upload their script without leaving their desk, the advantages of the Registry are gone. And while the Copyright Office registration is slightly more expensive ($35), the registration lasts practically forever (until 70 years after the writer’s death). It doesn’t expire after five years as a WGA registration does. So please, register all your scripts with the Copyright Office and forget the WGA.


LARRY ZERNER is an entertainment lawyer in Los Angeles at ZernerLaw. His practice specializes in copyright infringement cases. He is also the co-chair of the California Society of Entertainment Lawyers. For more information, visit www.ZernerLaw.com

 

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