William from NYC asks:copyright gif

I’ve been playing with the idea of writing a spec screenplay based loosely on an obscure made for TV movie. I’ve done some searching and haven’t come across any production of it or future production of it. Should I just write my screenplay that will probably bear very little resemblance to this film anyway?

[Disclaimer: Nothing contained on this website should be interpreted as specific legal advice. You need to consult with an attorney about your specific situation for that. This is just thoughts on a weblog.]

I am assuming your question relates to whether you have the legal right to create and sell such a screenplay. The answer depends upon what you mean by “based loosely on”. Although much is written about the laws protecting intellectual property, in practice, the extent to which the influence of a prior work is protected from subsequent use is a grey area. While the law seeks to protect the owners of intellectual property from unauthorized use, it also seeks to protect the free-flow of ideas. No idea is actually “original”. Rather, all ideas are inspired by other ideas. The question is, when does “inspiration” become “theft.” Here are the basic rules applicable to your situation.

The literary material upon which the television movie is based (the screenplay or teleplay) is protected by copyright, as is the television movie itself. However, U.S. copyright protection protects only “the expression of ideas” and not the ideas themselves. In a practical sense, that means a story about a heist during a hurricane does not violate the copyright of another story about a heist during a hurricane unless it borrows specific expressions of that idea, such as characters, plot elements, dialogue, or other concrete manifestations of the idea. Here is an extreme example of a work that clearly violates a prior work’s copyright.

In your case, whether you can legally create and sell such a screenplay will depend upon what aspect of the original teleplay or television movie you use. If it is as general as a general idea for the story, you are likely safe. If you intend to borrow plot elements, characters, or dialogue, then you are more likely to have a problem. If, as you say, your screenplay will bear little resemblance to the teleplay, then it will be an original work and the fact that you were inspired by this previous work will be of no legal significance. I suggest that, from the outline stage up, you look to make sure you have not borrowed plot, dialogue, characters or other elements from this prior work that inspired you.


Question GIFThe Thinking Writer often receives questions the answers to which are too brief for an entire column. Here are some of the recent ones.

QUESTION #1: Sabin from San Francisco asks:

I was curious how rewrites work with a script’s WGA registration. If you register a script, then rewrite, say 60 percent, should the script be re-registered, or does the registration still cover it? I know this is an inane question, but I was curious.

WGA registration is nothing other than evidence of the date of creation of a work. If the rewrite is really very different from the original (for example, you have included new elements), then you might want to re-register it so you have evidence of the date of creation of the new version. However (and unfortunately), most emerging writers change very little between drafts. In that case, you probably do not need to re-register.

QUESTION # 2: Steve from NYC asks:

got a question about the following statement from a previous answer:

“If they want to present your script to studios, you can give them permission to do that without an option. Let them tell you who they wish to take it to and, if you want them to submit it, give them permission to submit it. Then, once they present it, you are free to negotiate your own deal as they are free to negotiate theirs. This is a common practice in the industry; it happens every day.”

is this done without a contract? coudn’t you cut the producer out? should there be a contract saying they are the producer attached to the script and they will getting x-amount % finders fee for helping you sell the script?

Yes, it is done without a contract. Producers count on their relationship with the studio to protect them. You cannot cut the producer out because you are not in control of their deal. They introduce the script to the studio and negotiate their own deal directly with the studio. There should be no finder’s fee. Producers are paid to produce, not find.

QUESTION #3: Jeff from “Outside LA” (which means, pretty much anywhere) asks:

I have an idea for a movie in which the central plot revolves around a small handful of actors/actresses playing themselves. I have specific people in mind, but the idea works with any number of actors. I really don’t want to do the “Tad Hamilton” thing. As it is a spec script, am I shooting myself in the foot by using real actors’ names? Or will people be able to see past it and “get it?”

Yes, you will be shooting yourself in the foot. However, you are the writer. If you feel strongly about it, you should still pursue it. Just make sure the script is absolutely brilliant. If it is, it will serve many purposes for you.

QUESTION #4: Juan from Orlando asks:

My lawyer is sending a screenplay of mine to a company this week. I’ve called the company and they told me that they are excepting (sic) solicited material. So just have my lawyer send it? I am going to send my logline with the script, is there anything I should do before I give my lawyer the go ahead? For example, calling the company and telling them who I am? And that I’m sending the script? Or should I just send it in blind? Thanks for your time -Juan- I’ll let you know what happens.

Thanks, Juan. I am sorry I could not answer your question immediately. The answer is, there is no right answer. Here are some suggestions. If your attorney has industry relationships, let him or her call for you. If he does not, you can call – but be professional. You need to sound intelligent and amiable – not desperate and inexperienced.

QUESTION #5: Patrick from Portland Oregon:

Most people suggest an unsolicited screenwriter refrain from querying big Hollywood producers and concentrate on independent producers instead. But what if your screenplay is a period piece with elaborate action scenes that demand a high budget?

Query anyone you want, but make sure your query is professional, imaginative and well written. At worst, it gets tossed in the trash. On the other hand, you never know who’s attention you might attract.

Enough. Now go write….


LEGALGreg from Hermosa asks:

When using stories that were told to you – like by a police officer – that involve cases that have already been prosecuted – what is the general rule as to how much of the story you need to change, once the information is already in the public domain. Is changing a few names and locations enough? Or does it have to be more drastic than that?

And if so, how does Law and Order get away with it?

[Caveat: This is not legal advice, just thoughts on a weblog.]

This question is trickier than it sounds. When portraying real life events, there are two primary questions: (1) How close to the truth must you stay to avoid defamation or other types of lawsuits? and (2) what is the source of your information?

If you are telling a real life story, you are ordinarily protected from a defamation action if the story is true. However, if the story portrays events in the life of a private person (as opposed to a “public figure”), you may be liable for invasion of privacy even if the events you portray are true. On the other hand, if you are portraying the story of a “public figure”, you are protected from actions for defamation and, for the most part, privacy, as long as you do not exhibit “malice” in the story. “Malice” is usually defined as an intentional distortion or reckless disregard for the truth with intent to injure the party about whom the story is made.

A “public figure” is a person who intentionally injects himself or herself into the limelight, such as an entertainer or politician. Others can be “public figures” at least for limited purposes. For example, an accused murderer is a public figure, at least with respect to stories related to the murder.

The other important issue relates to the source of the material. You can freely use “facts” known to the general public because facts do not have copyright protection, only the expression of those facts (e.g. a newspaper article). However, if you are using stories told to you by a police officer, even if the subject matter of the story is generally known to the public, your information may contain the private impressions and experiences of the officer. That portion of the material is owned by the police officer and you need to obtain rights to use it. Similarly, if you are basing your story on newspaper accounts of the event, you must be careful not to include the impressions and experiences of the reporter. You can only use the “facts.” The line between facts and impressions and experiences is not always clear. For that reason, unless the event is widely known, most studios prefer to secure rights to some kind of material, whether it is a newspaper story, a book, or the rights to someone who participated in the event.


1. “The Perfect Storm” – true story of a storm, but much information about the characters was fictionalized. In that case, the family of one of the dead crewmembers sued in Florida and lost. HELD: No defamation, no invasions of privacy, no malice, even if the events as portrayed were not accurate.

2. “Primary Colors” – obvious fictionalized version of Clinton’s rise to power. No defamation because (i) Clinton is a public figure and the story is “fair comment” and (ii) the story is clearly fictionalized and, while designed to comment on Clinton, it is obviously not intended to be his real story.

3. “Law And Order” – the writers take stories “ripped from the headlines” on a regular basis. They are protected because (i) “ripped from the headlines” by its nature means “public figure” and (ii) they are clear that the stories are fictionalized and only inspired by true events, not a portrayal of the event.

4. “Nixon” – the true to life story of Richard Nixon. The writers are protected because Nixon was the most public of public figures, President of The United States. He would have had to show that the material was untrue and written with the intent of injuring his reputation.

While studios are sued all the time when they produce real life stories, if you as a writer follow these basic guidelines, the real life nature of your story should not be a deterrent to selling it. Hopefully, it is an asset.

Good luck with your story.


QUESTIONJoseph from Los Angeles asks:

A production company has shown interest in optioning my script. They seem very enthusiastic, but have little experience as producers and want me to option my script for free. I have looked at a few sample options online. However, since this would be my first option, I still have a few questions.

1) They mentioned when I met with them that if they are able to set up a deal with a studio they would like to purchase my script for a flat fee (as opposed to a percentage of the film’s budget or script’s selling price). If they state this in the contract, what would be a reasonable fee to pay to a screenwriter who is un-produced? Should I even agree to such a deal or should I hold out for a percentage of the film’s budget or a percentage of what the studio pays for the script? What is to keep them from stating in the contract that they will buy the script from me for 50 grand, but in a year’s time they find a studio that is interested in buying it for 100 grand or more?

2) During the optioning period am I allowed to use the script to try and get an agent or writing assignments?

3) Is the option agreement my only time to negotiate or do writers usually re-negotiate with the studio once the screenplay is sold? In other words, do I need to take care of re-write clauses, sequel rights, screenplay credit, etc now or will this happen once the script is actually purchased?

I plan to find and meet with a lawyer once I get the contract (which should be within a week) but would like to iron out the contract as much as possible beforehand because I am of limited income.

Thank you very much.

Joseph –

(Standard disclaimer – this is not legal advice, just thoughts on a blog.)

Congratulations on getting interest in your screenplay. Chances are, others will be interested, too.

Your questions present common dilemmas for beginning writers. Many writers (including me) feel that the producer should always pay something for an option. If they were WGA producers, they would be prohibited from asking for a free option. Why should a producer (especially an inexperienced one) have the right to tie up your screenplay for a long period of time without paying you anything? What do the producers intend to do during that time? Based on what they have told you, which is that they want to set it up with a studio, they do not really even need an option. If they want to present your script to studios, you can give them permission to do that without an option. Let them tell you who they wish to take it to and, if you want them to submit it, give them permission to submit it. Then, once they present it, you are free to negotiate your own deal as they are free to negotiate theirs. This is a common practice in the industry; it happens every day.

If, on the other hand, they intend to “package” the project themselves (which means, they intend to raise money and attract talent, director, and distribution without a studio), they should pay you money up front, especially if they have never packaged a film before. This is not a matter of greed or materialism on your part. Rather, it is a reality of the producing business that producers lose interest in projects when the next best thing comes along. They are not lying to you when they ask for the option. They are just under a tremendous amount of pressure to find the right project and, two months from now when they have gotten nowhere with your project, they are likely to feel they have a better shot with something else. If they have paid you money, they have a much stronger incentive to keep working on your project instead of jumping to the next thing. In addition, at least to a small degree, you are compensated for the lost opportunity.

If the producers are as excited about your script as they say they are, they will certainly not let it get away because you ask for a few thousand dollars up front. If your request makes them go away, that should tell you something about their real level of commitment.

As for the answers to the specific questions you asked:

1. If you enter into an option, percentage of the budget deals are not very common. A good place to start for your writer’s fee in the event the option is exercised is 110% of WGA minimum with negotiated bumps for specific events, which can include budget bumps, sole writer bumps, and box-office performance bumps. (For example, if the budget exceeds $75 million, you get paid an additional $250,000.)

2. If you enter into an option, you should make sure before you sign the option that you are entitled to present the script to agents and for writing assignments. If not, you should be compensated at the time you enter into the option for this additional loss of opportunity.

3. The option agreement is ordinarily the only time you negotiate your fees (and credits). If you enter an option, you should make sure it is a deal you can live with if the option is exercised.

Good luck….


When interviewing a subject for a screenplay do you need to take any legal precautions like having the subject sign a waiver before you start that process to protect yourself from any future litigation?


Generally, if you are telling the life story of the person you are interviewing (or his/her story is part of the story you are telling), you need to obtain a release for material he or she shares with you. This is true even if you plan to use only a few of the person’s experiences. Rights to someone’s life story and experiences can be protected by a number of legal principles including right to privacy and right to publicity. These protections are made stronger by the fact that you are actually interviewing the subject.

On the other hand, if you are interviewing the subject about public facts that are not personal, you usually do not need a release. For example, if you interview a physics professor about general time theory to do a story on time travel, you normally do not need a release. However, even in this case, you need to be careful. If the physics professor has some reasonable expectation that she will be compensated for her contribution to your story, she may have some legal rights even if the information itself is public and not legally protected.

To protect yourself when you plan to interview someone for background information, let him or her know you are a screenwriter and looking for general background information. If you do not expect to pay someone for providing information to you, always be clear about that before you get the information. Most people are happy to share information of this nature for free. If you wish for more personal information or experiences or if you plan to use the person as a character in your story, always get a release.


I’m starting work on a screen adaptation of a 1965 short story, but I’m concerned about obtaining the screen rights. Should I approach the author’s people myself, or should I just go ahead and write it and leave obtaining the rights up to the production company if (um…I mean WHEN) my script is sold?

Also, would obtaining the rights myself lock me into being the only person allowed to write the script? Or would that move end up pissing off some important people who might be interested in the story?

Alan – Norfolk, VA

It is always a good idea to know the status of rights before you begin an adaptation on spec. In the case of a short story from 1965, if it has not previously been made into a movie, the rights might well be available and you might be able to secure them for a nominal fee. You may even be able to secure an option for no up front fee.

Do not worry about pissing off important people. If a studio or other buyer wants to purchase your adaptation, they will require you to assign your rights in the story to them at that time. In the meantime, you want to control the story rights. Otherwise, they may read your adaptation, decide they like the short story but would rather just obtain the underlying story rights (which you do not control) and go directly to the source. They would then hire a more experienced writer and start with a fresh draft based on their notes. Even though you turned them on to the story, you would be left out completely.

I personally would not adapt a short story without controlling the rights. However, beginning writers do it all the time. If you do, you should be aware of the high probability that your script will be a writing sample only. That is not a terrible reason to write a script, but you may want to write something you can market in and of itself. Without control of the underlying rights, you have no way to know whether your work will be marketable even if you do a terrific job on it.

For those who have never secured story rights, here is the short course. If you have direct access to the author, start by talking to him or her. Otherwise, if you do not have any direct leads, call the publisher. You may have to do some Internet research to find out how to reach the publisher since the original publisher will likely have been purchased by someone else by now. Publishers usually have a department to tell you who holds rights. Once you reach that department, make sure the person helping you understands you are looking for rights to adapt the story to a motion picture. They often think you merely want to republish the story, which is a different kind of rights. This department is also usually able to give you information on the author’s representative whom you can contact. If the author is dead, you will have to deal with an estate, which is also sometimes complex. However, none of this is too difficult. It just takes time and patience.

Unless the short story is very popular or was already made into a film, you should not have to pay much to secure at least an option on the property. Make sure the option is for a period long enough to write the script and get it sold or get the picture put together in some other way. If you believe you will write the script in under a year (four to six months is the norm), I would recommend the option period to be at least five years.

Good luck with the story.


I’m an office lackey at a major film and television company in Toronto.

I have optioned my script to a local production company, and we have gotten a development deal with CTV. They have brought on a talented writer to head the writing (it was my first script and I am green) and I am in a consultant role.

I had some lawyer friends to help me ink the option agreement and there is a producer role in there for me. It’s a good deal.

My question is, should I get an agent at this point? I originally felt that because I negotiated the option deal, I didn’t want to give up 10% to an agent who did nothing toward it, but now I’m thinking, I should use this opportunity to get representation and move on. I may or may not be a player in this TV show. I’m totally green, and lucked out. I wrote a good script (my first) and it got a lot of people excited, but I want to keep the ball rolling.

Congratulations on getting your first deal. While every break has an element of luck, I’m glad you are not discounting your talent. You got a deal because your work inspired someone – in fact, it inspired a number of people.

With respect to the agent question, good news. If you get representation, you probably don’t have to pay ten percent on this deal. It is common (at least here in L.A.) to exclude deals obtained prior to the representation. You will need to read the agency agreement carefully (or have your lawyer do it for you) and may need to add some language specifically excluding this past deal, but it is ordinarily not a problem.

The bigger and more important point is, you should leverage every success towards your next successes. Right now, while you have heat on you, meet some agents. Everyone is interested in the new fresh voice. This is your moment to be that voice. If you meet a qualified agent who impresses you and sincerely believes in you, then you should accept representation. You should also look towards other ways of leveraging this success. If you have more pitches put together, get them in front of buyers as quickly as possible. Ride your present success into those pitches.

I hope this helps. Again, congratulations and good luck with the show.

P.S. Alex Epstein is very involved in Canadian television and is likely worth talking to.


Viewer Question:

Thanks for maintaining your blog: I’m new to screenwriting and have been fascinated by your articles and your readers’ contributions.

I have a question about entering a script into a competition run by [Party A] and [Party B], one that has specific rules about assignment of rights.

1) “You acknowledge that the screenplay you are submitting may contain characters, concepts and other material similar to characters, concepts and other material which the judges of the competition or their companies or [Party A] are currently developing/producing or are considering developing/producing.”

2) “You agree that in consideration for their reviewing and perhaps discussing the submitted screenplay with you, you will not at any time assert or attempt any claim against [Party A] or [Party B] or any of the judges of the competition with respect to any use of similar material in any project which is developed, produced, distributed, licensed or sold by all the above mentioned parties.”

3) “All entrants acknowledge that the final winner will be expected to make a standard form of assignment of all rights in the finished work to [Party A] and [Party B] and provide a waiver of so called ‘moral rights'”.

Do these clauses give the competition organizers carte blanche to adapt and produce outstanding submissions (but not prize-winners) without crediting or compensating the original scriptwriter?

I guess that the scriptwriter is also barred from adapting any submitted characters and plot for other scripts and submissions?

Is this a neat opportunity to give the competition organizers some free inspiration?

(I had a look for similar questions, so please accept my apologies if you have already dealt with this type of question.)

I know I’ve asked a lot, but would welcome your input.

Thanks so much !! With best wishes, AK, London, England

I’ll answer, but first the disclaimers. (1) While I am an entertainment attorney (on occasion) in addition to being a screenwriter, nothing on this website is legal advice nor should it substitute for you checking with your own attorney, and (2) I don’t know much about British law so my answers relate to basic U.S. law.

Here’s the deal on release language. Most contests require you to agree to similar provisions. You can imagine that it would be hard to get professional judges for these competitions if they had to worry about being sued. Many similar ideas float around all the time and are being produced at the same time.

The good news is the release does not mean they can take any script submitted to them and produce it without buying it from the screenwriter. The bad news is, the language of the release is so broad, it’s hard to tell exactly where the line is.

Without getting too technical, copyright law protects your screenplay and the release is not a transfer of copyright (unless you actually win the contest). However, copyright only protects “the expression of ideas”, not the ideas themselves. That means, once you sign the release, the producers have a pretty good argument that you cannot sue them for doing a giant robot attacking an oilrig movie just like the basic idea of the script you submitted. Who would win that argument, I can’t tell you. I can say, the more detail they use from your script, the weaker their argument that the release bars your claim, but it may require that they use a huge amount of your detail for you to win.

The other thing about contests is that if you actually win, usually you have just sold your script to the sponsor for very little money. That’s right. The “prize” for winning is that you get paid next to nothing for your script. (Check the rules of the particular contest.) Of course, if you are out of town and trying to get noticed, it might not be a bad trade off, provided the contest has some credibility.

As to your final question, no the release does not mean that you can’t use these characters in other scripts if you do not win the contest. In fact, if you don’t with the contest, the script is yours to do with as you will. The release language does not prevent you from doing anything except suing the sponsors and judges and their companies.

My advice (not in a legal sense, just thoughts on a weblog):

1. Submission releases are common requirements for accepting scripts from unrepresented writers. Get used to it.

2. Check out each contest before you submit to see if anyone has really heard of it. The more reputable the contest, the less likely you will get something stolen. Some contests are quite well known and bring a great deal of notice to the winners. Others are just moneymaking schemes for the sponsors (who charge an entry/reading fee).

3. Accept the fact that as an emerging writer, you do need to share your writing and it is subject to having its ideas used by others, whether you sign releases or not. To get some ideas on how to protect yourself, check out this post.

Good luck with the contest.