We’ve all heard the laments: why are playwrights more respected than screenwriters; why do playwrights retain copyright and screenwriters don’t; why do screenwriters get treated like dirt and playwrights like gods; why can’t you change a single word of a playwright’s work, but it’s okay to completely rewrite a screenwriter’s script?
The fact is, playwrights enjoy the kind of creative control and professional respect that screenwriters can only dream about. We screenwriters have moaned for decades about being left for the flies once our work has been sold to a producer or a studio. How did it come to this? How did screenwriters end up the poor stepchild of the writing process, such that our words are disregarded, rewritten, erased or ignored altogether by those who would benefit from our creative labors and talents?
I’ve heard various reasons for the disparity that exists between the respect playwrights receive vs. the indifference experienced by screenwriters, but all of these reasons end up being so much sour grapes, and not real explanations, when we consider that this playwright-screenwriter “inequality” is really just a fact of doing business. It’s not personal; movie producers don’t really hate screenwriters; studios don’t really think we’re dirt (well, not officially anyway). The fact is, playwrights get the brass ring and screenwriters often get the shaft because of one simple thing: blame it on copyright.
Yep—copyright. Specifically, the phenomenon of derivative work.
In the United States, the Copyright Act defines “derivative work” as:
“ . . . a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’ ” (17 USC § 101).
In English this means if you take a screenplay and adapt it as the basis for a new work, then you have created a derivative work. A screenplay is created in order to make something else—a movie. There is no other reason to write a screenplay. It exists solely to be converted into another form. This is why I’ve always said there is no market for screenplays. No one will pay to sit around and hear actors reading a script, or buy screenplays in the form of a book (not really). Screenplays are written for a single purpose: to be “translated” into a derived work. And this is the central gotcha: a derived work is considered a new and separate intellectual property from the original source material.
So, screenplay equals original property; film equals derived work and is considered a separate and copyrightable intellectual property. That’s right, a film gets its own copyright. The writer has no rights vis-à-vis a film’s copyright. Once the screenplay’s copyright is sold off to the producer, the writer is no longer in control of that screenplay and they are on the outside looking in for the remainder of the movie-making process. Any new development that happens is now someone else’s creative output, not the original screenwriter’s.
The original writer is an unessential attachment and will remain outside (often never to be seen again), unless he-she is brought on as a writer-for-hire. “Writer-for-hire” is an important distinction, as this allows any studio or producer to own the copyright for any writing. In other words, you write the screenplay, you sell it to the production company, you get hired on as a writer-for-hire and then you have no or little say in what you are asked to write, even though what you are rewriting is based on your original work. (The playwrights out there are reading this laughing and shaking their heads in total disbelief—FYI.) This is why screenwriters can be fired and generally treated like pond scum.
Contrast this to the godlike playwright.
He-she writes a play. The play is produced. There is then a physical performance. Well, isn’t that a derived work? NO! A physical performance is not a fixed form like a movie. In order to be considered a derived work the form of the product must be “fixed,” i.e., a film, merchandise, novelization, etc. Each play performance will be different and cannot be copyrighted. Even when they are filmed or recorded, the resulting film or recording is not considered a derived work because they have no originality of their own. They are not “recast, “ or “adapted.” They are essentially just copies of a performance. Beyond the issue of being “fixed,” any derived work must also contain enough original appearance, over and above that expressed in the original work, for the latter to satisfy the copyright law’s constraint for originality.
Consequently, the playwright never sells off the copyright, never suffers rewriting, can never be fired (at least not without a major legal battle) and must generally be included in any creative decisions regarding the play’s future exhibition. As long as the creative work is original, and not spun off into something derivative, the writer is in control. This is why theater is considered the domain of the writer and film is the domain of the director.
So, is owning copyright really the key to writer bliss? Not really. Even if screenwriters retained copyright, over time licensing deals would weaken any writer-leverage. Copyright isn’t the brass ring is promises to be. The issue for screenwriters is the problem of derived work and the loss of authorship that it creates. As long as we sign away our authorship in this way, screenwriters will always be disposable items in the business of making movies. Sadly, short of rewriting the copyright laws there is no relief in sight on this issue. But, at least now you know why you have that pond scum on the bottom of your shoe.
So, buck up; like they say in the waste disposal business in New Jersey, “It ain’t personal; it’s only business.”
- Behind the Lines with DR: Screwed
- Legal Opinion: Is History Copyrightable?
- PrimeTime: The Truth About Protecting Your Work
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