LEGALLY SPEAKING, IT DEPENDS: Time

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By my calendar, I just passed the two year anniversary of my contributing articles to Script Magazine. My, how time flies. So, I thought it fitting to address one of the slipperiest concepts in the industry for this timely post. Time. Especially in our industry, time is … interesting (in a Chinese curse sort of way.) It is at the same time constant and exact while also fluid and malleable. If you are not careful, different concepts of what happens at what time can lead to misunderstandings or even complete breakdowns and failures. As always with the subjects of my columns, when looking on how best to deal with the complexity of time in this industry, the answer is, it depends.

Forever isn’t as long as you think

timeScientists will tell you that it is useful to think of time as linear. You can think of time as a line, with now at a point somewhere along that line. Everything before is the past everything to come is the future. And the line stretches forever in both directions. It’s useful to think that way, but isn’t always accurate to think that way. For example.

How long is forever? Stupid question, right? You’d think so, but the terms that seem to mean forever can be deceiving. There’s a particular phrase that is common in entertainment contracts dealing with terms of ownership, especially of rights like copyrights. The term is in perpetuity. You look it up in a dictionary and it literally means for eternity. So you’d think if it is used in a contract then that pretty much locks up those rights forever.

But as in all things legal, and as you’ve come to expect from this column, it depends. With the current way U.S. law stands, a new contract that assigns copyrights “in perpetuity” could easily be read as meaning only “at least 35 years.” To explain, I need to cover a bit of U.S. copyright history.

Constitutionally, copyright can only last a limited period before a work falls into its natural place, the public domain. The Constitution doesn’t say how long that is and so the term limit of copyright was changed by Congress many times over the years. Early on it was 14 years, and you could extend it another 14 years. Then that period was doubled to 28 with a possible 28-year extension. Miss an extension, or let it lapse, and the copyright went into the public domain.

Contracts that transferred copyright needed to take the possible extension periods into account. They often included terms requiring the old copyright owner to file any necessary paperwork to extend the copyright to its fullest term, even decades after the original contract ink was dry. Often this lead to a grumpy original copyright owner, who felt he didn’t get anything close to what the work is now worth in the original deal, having to sign paperwork to keep the work in the hands of the company that snookered the young and naive creator. (Give me a little poetic leeway here, I’m painting a picture.) The courts held those original owners to their personal contractual obligations.

The Old Abend Problem

But then came Abend. (The case is Stewart v. Abend 495 U.S. 207 (1990) for the legally interested. For those not so inclined, it dealt with the writings that lead to the Hitchcock movie Rear Window.) This case arose because the original owner of the copyright and signatory to the contract died before he could execute the extension of that copyright. The Supreme Court decided that although the original author was bound by contractual terms, the successors of the original copyright ownership were not. This resulted in the copyright being allowed to revert back to the original owner’s successors at the renewal time.

Granted this was a rare potential event, but, it scared the bejesus out of lots of Hollywood lawyers and studios. Luckily for them, the copyright terms were changed again in the late seventies eliminating the renewal requirements of copyright altogether for new works. The last Abend potential contracts would have run their course by 2005. There were very few actual Abend-like cases so why did I bring it up?

Remember I said they passed a new copyright act that did away with the requirements of renewal? Well, lawmakers took note of the complaints of exploitation and long-term contract problems. So, the new laws had very interesting new sections that reflected those concerns.

The (new) Copyright Transfer Termination Right

In short, a new copyright assignment (new as of 1978) leaves the right to eventually terminate that transfer in the hands of the original copyright owner or her successors. You can’t change your mind right away, and you have to do it by the book, but you can potentially get your rights back. The terms are odd. You can’t take them back until a 5-year window starts, 35 years after the contract was signed. You have to first let the original purchaser (or current owner) know your intentions and give them first shot at renegotiation, but you can’t speak too soon. In fact, you can’t even mention it for 25 years. And the other side isn’t allowed to pre-negotiate a waiver or any other handling of the right beforehand either. Mess up on the rules or miss a deadline and the termination right defuses.

Hollywood’s “work made for hire” is different, but not forever

But that’s for transfers of copyright. Well what about work made for hire, didn’t the film industry carve out a special case just for them? Actually not just for them. There are 9 limited categories of works (yes, filmmaking is one specifically mentioned as an example of audio-visual work) that qualify for work made-for-hire copyright authorship from independent contractors outside of employees. (Playing really short shrift here. I just realized what my next article topic will be.)

Suffice it to say, that if a work, like a script, qualifies as a work made-for-hire then the studio is granted the “authorship” according to the copyright office, not the screenwriter. So there is no termination right for the writer. But that doesn’t mean the clock doesn’t run out sometime. Companies are legal beings, but they don’t die, so the current “the life of the author plus 70 years” doesn’t work for copyright length. But Congress thought of that. For copyrighted works authored either anonymously, pseudonymously or by the undead (e.g. companies), the term of copyright life is 90 years from first publication or 120 years from creation.

So in perpetuity never means forever at least in a copyright contract clause.

My Time is money (for someone)

There are lots of other time-based conundrums in the entertainment world. The preponderance of seven-year contract terms for personal services has an interesting history. It harkens back to indentured servitude. A personal services contract is one that cannot be performed by someone else. If the star dies or leaves or refuses to go on, no one can take their place. It’s easiest (and most prominent) to look at musical recording and performing contracts. If Katy Perry can no longer perform the services she has contracted to do, no audience member would accept a substitute performer for the gig. As counterpoint, if the person who performed “Left Shark” at the Superbowl could not make it, a fill-in could easily have stepped up. Easily.

Because the personal services contract is tied so closely to Ms. Perry, and her alone, the terms could become onerous if terms acceptable to the once budding young artist looking for her big break were still in place after her sixth platinum album. The courts threw out very long-term personal services contracts, and the industry and courts have seemed to settle on seven-year bites as not too long or too short. Look to the history of the studio contract system and child actor labor law development to see the winding history of this area.

Time also plays short too

There are established timelines that run much shorter than years that the industry has adopted. For example, The time to deliver is often stated in contracts either established in guild minimums or required by necessities of marketing or festival or awards calendars. For example, a writer under the WGA is given 12 weeks to deliver the first draft according to WGA minimum rules.

And have you ever wondered where the 120-page limit of a script came from? You may know that the original typefaces of the typewriter and the format adopted by Hollywood conforms to averaging one minute of screen time per page of script, but why fixate on 120 minutes? Consider that theaters can only show so many movie showings per afternoon per screen. At 120 minutes or shorter they can fit five showings in a typical afternoon. Longer runs, even by a few minutes, cut that number by 20%. And if you can get it down to 90 pages you get 6 showings. You do the math.

Contractual time conundrums

There are lots of issues with time where contracts are concerned. In the interest of brevity, I’ll only list a lot of questions to ponder. When does the clock start and end? Even assuming a contract starts with a signature, is it when the first person signs, the last to sign, can it be retroactive? Then there are fulfillment triggers or when you can say the contract is complete? Do all terms need to be fully met, some just significant ones, and what happens with delays, pauses (e.g. tolling)? After all’s said and done, more can be said and done (contractual extensions beyond the end of the contract.)

Then there are all the production schedule time issues (pay out schedules, etc.) overtime, Union rules regarding time (e.g. 12 hours off minimum between shoot days). And all those important time points, start of production, delivery, premiere date, “windows,” etc. and interruptions in time like force majeure or breach and time to cure.

The list goes on forever. (At least if it was in perpetuity we might expect it to end sometime.)

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