The Screenwriter's Indestructible Right to Terminate Her Assignment of Copyright: Once a Story is 'Pitched,' a Studio Can Never Obtain All Copyrights in the Story

Abstract

It is probably not quite fraud, but comes terribly close to it, when motion picture and television production companies convince their writers to part with the rights to their stories when they sign with the companies. Despite contracts that claim the writer has no rights to the resulting script U.S. copyright law provides most authors with a termination right that cannot be lost irrespective of any agreement to the contrary. 17 U.S.C. ? 203(a)(5). This article examines the underlying law that preserves the author's rights in underlying stories, and surveys industry contracts, all of which attempt to deny the continuing termination rights of authors. For at least two reasons, many think there are no termination rights in such scripts.

First, most scripts are subject to the Writer's Guild contract, which treats the writer as a worker for hire. Works for hire are exceptions to the termination right. 17 U.S.C. ? 101. Second, aside from the Writer's Guild rules, a script can legitimately become a work for hire because contributions to an audiovisual work, like a movie, can be the kind of specially commissioned work which is eligible for work for hire status. But these gambits focus on the wrong point in time. They ignore the fact that many authors have already produced an underlying work, which is always terminable, before they become workers for hire.

All "spec" works--those that are "pitched" to producers, for instance--exist as stories before being picked up by producers. As long as the author has reduced that story to some tangible form, she can never lose her termination right in that story. Thus, even if the studio only receives an oral "pitch," the author can never lose her right to terminate copyright in the underlying story as long as she commits the story to tangible form (at her home or office, for instance, in as trivial a form as, for example, note cards) before or while delivering the "pitch." In fact, very often the pitch, even if not reduced to tangible form before the pitch, is recorded by a secretary, say, in one form or another at the time of the pitch. This, too, probably suffices to render the termination right irrevocable.

To the extent, then, that the ultimate screenplay (which, as a contribution to an audiovisual work may be a non-terminable work for hire) is based upon the original pitch, outline, or treatment (with respect to which the author's termination right can never be defeased), the screenplay is a derivative work, while the pitch, outline, or treatment is a terminable "underlying work." Crucially, if an author has a termination right in an underlying pitch, treatment, or outline (whether or not the production house contract ignores the termination right or, worse, attempts to deny or pervert it) even though the prepared derivative works will be immune to any termination, that author, able to terminate the underlying work, would then have the opportunity to write or license sequels based on the original pitch, outline, or treatment.