Questions Re: Script Credit, Copyright Law & Work-For-Hire vs Collaboration

[iziezi]

I am an actor who is producing for the first time. I have a web series in development. It is a non-union production. I created the concept for the series, and then approached my writer to see if she would be interested in writing the script.

My writer, my director and I are collaborating on the development of the story concept and character concepts for the series, but my writer will be the only one actually writing the script.

I started out looking at the WGA's Writer's Collaboration Agreement, and considered sharing ownership with both my writer and my director. But then my mentor, retired TV producer Bob Fraser, advised me that I should have ownership of the script, copyright, and all other rights, etc, since the series concept is mine.

So I found a "Certificate of Authorship" contract that seems to cover that. I still want to share revenue with both my writer and director, which the collaboration agreement covers. So in the WGA Writer's Collaboration Agreement, I listed ownership of the Work as myself 100% and 0% for them. And then under the revenue-sharing paragraphs, gave them fair share percentages. I also started adding elements from the Certificate of Authorship into the Collaboration Agreement.

Then I realized I should probably research Copyright Law to make sure I understood what I was putting into the Agreement. And after reading Circular #9, as well as the official Copyright Act of 1976, I realized perhaps there is a conflict here.

#1 - Which brings me to my first question(s): Do I need to have a separate Collaboration Agreement between the three of us, just for collaboration on the development of the story and characters, (that entitles them to revenue sharing), plus a separate "Certificate of Authorship" for the script being written as a work-for-hire? Or can I continue to roll the two contracts into one agreement as I was doing?

Or are the two contracts actually in conflict with each other, and I can only use one or the other, not both?

Can the revenue sharing stated in the Collaboration Agreement be referenced in the Certificate of Authorship as compensation (the $1 value exchanged)?

#2 - My second question comes also from my research into Copyright Law. The law states that the copyright owner of the work-for-hire is also considered the sole author of the work. So, as owner, I am claiming and legally declaring myself to be the author under the law. So how does it work that I can still give my writer credit for the script? If the script was written by her, then I am obviously not the author as I've legally declared myself to be.

I've already asked my mentor these questions, and he said I need to talk to an attorney, so here I am!

Thanks in advance for your advice & guidance!
~Isabelle~

 

[Michael Wechsler]

I haven't done this before but, in short, as long as both agreements make it clear that you own the copyright and that there is just a division of revenues, you're fine. But this is important - functionally, what is really the difference? If they always get a percentage, they will always get a royalty no matter what you do with the work. This means that the only benefit you may have is to say who will have the write to do something with the script, e.g. put on a play, etc. but they will get royalties. There may be other issues but that is what I see on the surface as being the big one.

The cleanest is two agreements with a work for hire but I haven't seen your agreement. Being a copyright owner doesn't mean that providing "credits" when published conflicts as a co-creator - they may have done creation work but own none of the underlying copyright, essentially giving those rights away. Does this make sense?

 

[iziezi]

Hello! Thanks for your advice! The functional difference is as you said, I simply want to maintain control of the work, since it is being created based on my concept. I am protecting my production by not giving anyone else the opportunity to pull their property if a disagreement arises. Or to sell the script/rights etc to anyone else without my knowledge or consent.

That being said, I am perfectly happy to share any and all revenue with my director and writer, because honestly, whatever success this project finds will be due to their collaborative input. There's no way I would be able to create this at a successful level on my own. I'm an actor, not a writer or a director, lol. (I've tried both, and I'm mediocre at both.)

So, two contracts it is then. Alrighty! One less thing to worry about, yay! Thank you! =)

 

[Michael Wechsler]

It doesn't have to be two contracts but the most important thing is that they are CLEAR with intent and basic facts. Think through what "share revenue" means as well as credits and decisionmaking. Most have the best of intentions at first but later it gets cloudy. If you understand that sharing can mean indefinitely, that's fine and in many instances that does work and make sense. Attorneys usually help people in drafting these because they have experience hearing the problems that occur and help people with foresight in creating a contract tin the first place.

 

[iziezi]

Yeah, the more I think about it, the more it seems that it needs to be one contract. There's a phrase at the beginning (included in the original contract template) that states "upon completion of the Work shall own the Work in the following percentages..." (the emphasis is mine) Which means that no one owns anything until we have a finalized script. And since we are writing a episodic series, I was setting up the contract to read upon completion of each episode full ownership goes me, and then started adding elements from the Work-For-Hire to further clarify that. It seems necessary to set it up this way since we may begin production on the episodes that are completed before we've finished writing the script for all the other episodes. I was also adding clauses to protect the story development and characters created, so no one can pull property from the concept for the series, once production has begun on the first episode, regardless of wether the script for the rest of the series is finished.

Someone else mentioned I need to be careful so that the contract doesn't accidentally enter me into a partnership or joint venture.

Any thoughts or advice on any or all of this? If I attached my contract draft, would you be able to take a look at it? Is any kind of legal obligation created if you do so?

 

[Michael Wechsler]

If I were to provide contract review services as an attorney I would make sure that I had an agreement in place to do so, both regarding ethics and liability. Quite frankly, I also wouldn't do this because drafting a contract like this one truly requires a complete discussion with the client to ensure the attorney understands all the issues and concerns of the client. For something so important, why would you consider trying to do this fast and loose? I'd guess you wouldn't.