A Writer's Guide to Copyright Infringement

by Victor Knapp, Esq.

Published in The Dramatist (The Journal of the Dramatists Guild of America, Inc.) January/February 2001

       You might be watching television one night and see a program or movie that leads you to jump out of your chair and exclaim, "Hey, that's my play!" Or, you might have submitted your work to several agents, theaters, or producers, only to subsequently ascertain that a new play remarkably similar to yours is in production. Or, you might have licensed or granted certain rights to a theater or producer to present your play and find out that they are exceeding their rights by improperly changing your work or presenting your play in unauthorized venues.

       Are you protected? If so, what rights do you have? What can you do to protect and enforce these rights, and what remedies are available to you? We will attempt to address these issues without engaging in an exhaustive discussion of copyright law (which fills volumes of treatises, textbooks, casebooks, and articles). For such a complete discussion, we recommend you consult with a qualified attorney experienced in intellectual property and litigation. In the meantime, we offer this discussion for your general understanding of the subject.

       Copyright protects only the original expression in an author's work. Since the goal of copyright law is to expand existing knowledge by the creation of new works, certain "building blocks" of authorship are not protected by copyright. These building blocks include facts, ideas, metaphors, general themes, and plots. Similarly, phrases that convey ideas typically expressed in a limited number of stereotypical fashions also are not subject to copyright, so that future authors may build upon them. These scènes à faire include incidents, characters, and settings that are indispensable or standard parts of a given topic.

       You might ask, "Isn't my play composed of all these elements that the courts have ruled are unprotected? Does that mean my work is unprotected?" The answer is "Yes" ¼ and "No." You will receive protection to the extent that what you have created is original expression. Ultimately, the court will decide whether the elements of your work that you claim were infringed are protected by copyright. Many courts have grappled with the distinction between themes, facts, and scènes à faire on the one hand and copyrightable expression on the other. As a general rule, though, the more that your work is detailed, creative, and original in its elements, the more copyright protection it will receive.

       Contrary to popular belief, registration with the Copyright Office is not required (although, it is highly recommended) for a dramatic work to be protected. Copyright protection occurs once the work is "fixed in a tangible medium" (that is, written down or recorded).

       Some authors mail a copy of their work to themselves, just as some screenwriters file their works with the Writer's Guild of America. This practice (known as "poor man's copyright") merely establishes that, as of a certain date (the postmark or WGA filing date), the work existed, thus predating any subsequent infringing work. It does not create protection (because protection already existed when the work was written down) and, more importantly, does not provide the benefits that a formal copyright registration does.

       For $30, registration with the Copyright Office will afford you the following benefits:

       1. You are able to sue for infringement in U.S. District Court. Without registration, any lawsuit that you bring will automatically be dismissed. It also pays to register early, since there is currently a backlog of about nine months between the date an application is filed and the date a certificate of registration is issued. If you wait until you are about to begin a lawsuit, you will need to file your application on an expedited basis and will pay additional fees. Additionally, you probably will have lost other substantial benefits you would have had if you had filed earlier.

       2. If you do sue for infringement, a registration certificate (which you obtained within five years of the publication of your work) will provide substantial evidence in court. It will establish that you have two things you otherwise would have to prove an original work of authorship and ownership of a valid copyright.

       3. Early registration (that is, before the infringement or within 90 days of the first publication of your work) also allows you to be awarded statutory damages, as well as the costs of litigation and attorney's fees. Statutory damages might be the only compensation for an author unable to prove actual damages from an infringement. Additionally, you increase your ability to attract attorneys (who, as a general group, are somewhat concerned with payment of their fees), if the court has discretion to award you attorney's fees in a successful lawsuit.

       You have the exclusive right to allow reproduction of your work; creation of derivative works based upon your work (that is, adaptations for books, theater, film, and TV, as well as translations); distribution of copies of your work; public performances of your work; and public displays of your work. For this very reason, a theater or producer needs a license or formal production contract with you, before presenting your work. If they exceed the grant of rights that you have given them, they are infringing your copyright.

       Copyright infringement occurs when a third party violates any one or more of the above-mentioned exclusive rights, in an unprivileged manner. To prove copyright infringement, you will be required to prove the following.

       1. Ownership of a valid copyright in the work. This is usually established with a copyright registration certificate.

       2. Copying by the defendant. This can be difficult, because different District Courts have different rules about what is "copying." In essence, you must prove that the defendant did copy your work and did not independently create their work.

       Since direct evidence of copying is rare (and it is quite unlikely that a defendant would admit to copying), the courts allow you to prove copying by using circumstantial evidence. To do this, you must establish that the defendant had access to your work and that there is "probative similarity," in other words, a certain level of similarity between the two works to suggests that the defendant copied your work. You may establish their access to your work with proof that you made a direct submission to the defendant or to someone with a close or business relationship to them; the defendant read or saw the work performed; or the work received such wide publicity that access should be inferred. "Probative similarity" serves as indirect proof of copying. The term has been applied in confusingly different ways by various courts throughout the country and is confused often with "substantial similarity," which is the third element (discussed below) that a plaintiff must prove to establish infringement. "Probative similarity" simply means that there is a minimal level of similarity between the two works that might imply the defendant had copied plaintiff's work.

       However, what if you cannot establish that the defendant (who claims to have been living in an igloo in Alaska for the previous 20 years) had access to your work? In that case, the courts have required, as a substitute to proof of access, that the works be so strikingly similar that there is no reasonable possibility that the defendant independently created their work. This level of similarity is much higher than "probative similarity."

       3. Assuming you have proved the two previous points (and many infringement cases have been dismissed because the plaintiff could not prove copying by the defendant), you must also prove that what the defendant copied was protected and that their copying created a "substantially similar" work. In making this assessment, the court will evaluate how much of the protected elements of your work the defendant has taken and how much of the defendant's work those elements represent.

       Even if only a small amount of your work has been copied, the court may find infringement if what was taken is qualitatively significant. Conversely, even if a large amount of material has been copied, the court might not find it actionable if the material was not qualitatively significant (and, thus, worthy of less copyright protection). Courts also have held that the copying need not be verbatim to constitute infringement. Otherwise, a clever plagiarist could always escape liability by paraphrasing a work or disguising the copying with minor changes.

       Copyright law not only provides protections for you against infringement but also allows several defenses for defendants in claims of infringement. One defense is that the defendant did not copy your work but independently created his or her work. Another defense is that the defendant obtained the materials or expression in question from a different source (or even a common source) than your work.

       However, the most common defense is "fair use." In essence, fair use allows a defendant to take a limited amount of your work, in certain limited purposes like commentary or criticism. (For a more detailed discussion of parody, public domain, and fair use, see Newsletter articles "Parody Is No Laughing Matter" by Ralph Sevush, October/November 1997, and "New Developments in Copyright" by Lloyd Jassin, July 1999.)

       Assuming you are successful in your lawsuit, the following remedies are available to you.

       1. Preliminary Injunction. The plaintiff need not wait until trial to obtain a court order enjoining any further acts of infringement. A court might even grant a "temporary restraining order" immediately preventing any alleged acts of infringement while the application for the preliminary injunction is pending.

       2. Permanent Injunction. If there is a threat of future infringement by an unsuccessful defendant, the court can issue a permanent injunction.

       3. Impoundment and/or Destruction of Infringing Articles. A court may order the impounding of all copies claimed to have been used to violate your rights.

       4. Money Damages and Profits. For many litigants, this is the most, if not only, important concern. A successful copyright owner can elect either actual damages, as well as any additional profits of the infringing defendant, or statutory damages.

       Note that actual damages, such as lost sales or uses of the work, might not be easiest to prove. Similarly, the defendant's profits from the use of the work might not be substantial, unless such use resulted in a successful long-playing production. Even then, the award will be for the defendant's profits attributable to the infringement, which might be a substantially discounted figure, after taking into consideration all other elements that arguably contributed to the production's success.

       For these reasons, the ability to collect statutory damages (by virtue of having filed your copyright registration early) is very important. A court may award a successful plaintiff no less than $750, or more than $30,000, for each work infringed. If the plaintiff can prove willful infringement, the amount can be increased at the court's discretion up to $150,000.

       5. Costs and Attorney's Fees. These are available to a successful litigant (either plaintiff or defendant) and are entirely at the court's discretion. The specter of having to pay the other side's legal fees is a strong incentive for the party with the weaker case to settle the matter without engaging in protracted litigation. Remember that attorney's fees are only available to a plaintiff who registered their copyright before the infringement (or within 90 days of the first publication of the work).

       Because many a plaintiff fails to prove that a defendant copied their work, you should always create a paper trail for any submissions. This can mean keeping copies of all correspondence (query letters, synopses, notes of the length of the submission) with any theaters, producers, or agents. It also might be a good idea to keep a journal of any conversations with these parties about their interest (or lack thereof). Memories of dates, times, names, and what was discussed tend to fade over time.

       Additionally, you should mark any submitted materials with the appropriate copyright notice (© Year, Name) and register the work with the Copyright Office before sending it out. The proper document to use for plays, songs, and musicals is Form PA, available from the Copyright Office in Washington, DC, at 202-707-3000 or http://www.loc.gov/copyright/

       Though it is wise to protect yourself, it is not a prevalent practice or even likely that someone would steal or infringe upon your work. Each year, producers for theater, film, and television receive thousands of submissions (containing numerous repeated themes and ideas) and do not necessarily have the need or the desire to copy from any of those submitted works. In fact, most producing groups do not accept unsolicited material, for fear they might be subjected to a later claim of copyright infringement.

       With this in mind, many agents, theaters, and producers insist that an author sign a release agreement before accepting their submission. This is more common in the movie and television industries and less so in the theater. You should carefully review any release forms before signing them, as many forms may contain over-broad language that insulates the producing group from their wrongdoing. (See "An Analysis of Release Forms" in the May/June 1994 Newsletter.) Not all release forms are created equal, and most companies will not "negotiate" the language in their agreements, so caveat emptor.

       Copyright infringement can be a complicated issue to resolve. However, a more likely and more easily discernable infringement occurs when a publisher, producer, or director exceeds the scope of the license granted to them for publication or production of your work. Examples include a producer having a production videotaped without your approval, unauthorized productions in unlicensed territories, or a director who rewrites your play without your consent. A publisher may be exceeding your grant if they put the play in a searchable online database or provide downloadable versions on the Internet or other forms of electronic publishing not necessarily granted in the publishing agreement.

       Usually, such behavior is simply the basis of a breach of contract claim, but you may choose to view particularly egregious conduct as a copyright infringement. The threat of statutory damages and legal fees can often bring the most abusive circumstances to a screeching halt.

       You can help protect and defend your copyrights by promptly filing for registration of your work and by creating an appropriate "paper trail" of your submissions. Maintain your contract files, as well. Use Guild articles and form agreements to become familiar with helpful contractual provisions with publishers and producers that safeguard the integrity of your work.

       However, before proceeding down the road of litigation, a final thought to consider. The movie you saw at the multiplex, the one that "stole your idea," could well be drawing on the same notions bubbling in the popular culture that occurred to you, without the movie producer having ever seen, much less "stolen", your work. Like fire and the wheel, some ideas have more than one mother, and are created, more or less spontaneously, at different times, in different places, under diverse circumstances, and completely independent of each other. Just something to keep in mind, before investing you limited resources of time, money and energy into a quixotic fight to recover "property" that may not have been truly and solely yours in the first place.