Should I register my script at the WGA or the Copyright Office? Why?

28 Jun Should I register my script at the WGA or the Copyright Office? Why?

I am asked this question all the time.  My answer is registration at the Copyright Office is much better, and significantly more valuable. With apologies to my friends and colleagues who work at the WGA, I wouldn’t bother registering at the WGA East or West, but I would take the time to file a claim to copyright in the Copyright Office. Here’s why:

First, the script you seek to register is the culmination of hours and hours of research, writing, revising, listening, and otherwise creating a valuable story. Aside from confirming that the story has a beginning, a middle and an end, that the characters evolve, and the reader or viewer will care about the characters, the script needs to be protected from those who might take it from you without permission.  Given the investment made in creating the script itself, a proper final investment in protecting it, and providing the means to bring infringers to justice is important.

Registering at the WGAE, WGAW or Copyright Office will not prevent someone stealing all or part of your work.  Just as locking the doors and windows to your car when parking on the street does not guarantee the car will not be stolen, it is the reasonable thing to do to protect your car.  Registering your work at the Copyright Office and including proper copyright notice on your work is the most you can do to protect your work if it is stolen.

The differences between the WGA registration and copyright registration are many.

• Duration
• • WGA. Registration at the WGA must be renewed every five years. If you don’t renew your registration at the five-year mark, the copy held by the Guild will be destroyed, and then the Guild will not be able to submit your work as evidence in any Guild-related or legal proceeding. https://www.wgawregistry.org/regfaqs.aspx#quest26
  • CO. Copyright registration lasts for the life of the author(s) plus 70 years. If your script is unpublished, then the copyright office will retain the work for 120 years. If the script is published, the work will be retained for 20 years. For an extra fee, the Copyright Office will keep published works for the full term of copyright. https://www.copyright.gov/circs/circ04.pdf
• Fees
  • WGA. The fee for a non-WGA member to register a work at the WGA is $25. A WGA member can register a work for $10. Renewals are required every five years. Only electronic filings are allowed, no paper filings are permitted.
  • CO. In the Copyright Office, the fee to register a claim to copyright electronically is $45 if the work is by a single author, the copyright claimant is the same as the author, the work was not created as a work for hire, and the claim is for one work. If any one of those qualifications are not satisfied, such as there are two authors, the fee for registering electronically is $65. Paper filings are permitted, but the fee is $125.

• Legal Effect
  • WGA. At the WGA, they state that registration would “potentially discourage others from using your work without your permission. … the Registry…can produce the registered material as well as confirm the date of registration.  Registering your work creates legal evidence for the material that establishes a date for the material’s existence….” (Emphasis added.)
  • CO. In the Copyright Office, the date a properly completed application is received by the Copyright Office, along with the appropriate fee is the effective date of registration. Receipt of the certificate will happen in about four to six months. Certainly, the effective date of registration will establish the existence of the script on that date.
• Filing a claim for infringement.
  • WGA. If your work is infringed, and you have a WGA registration, you must still file a claim to copyright before bringing a suit against the infringer. While for many years there was an open question whether simply completing the application and filing suit after the application was completed, but before the certificate was issued would be sufficient, the US Supreme Court cleared that up in 2019. The Supreme Court held that the registration certificate must be in hand before commencing the suit.  Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 586 US ___ (2019) (Docket No. 17-571).
  • CO. If your work is infringed, and you have a copyright registration certificate in hand, you are holding the keys to the courthouse, and an infringement case may be brought. 17 USC 411(a).  However, if you elect not to file suit in federal court, and instead elect to sue in the Copyright Claims Board (“CCB”), you need not have a registration certificate in hand. Instead, the CCB will hear your case based upon a completed application.  In either event, the CCB can award damages of up to $30,000, for actual or statutory damages, while a federal court can award an unlimited amount for actual damages, and up to $150,000 per infringement for willful statutory damages.  If you do not register your work within 90 days of its authorized publication, the maximum damage award available under the CCB is limited to $7,500.  The CCB is expected to begin working on December 27, 2021. https://www.copyright.gov/about/small-claims/faq.html
• Effect on Credit
  • WGA. Under the WGA Basic Agreement, if an employer engages a WGA member to write one of the drafts of a screenplay, all writers of all drafts of the screenplay are subject to the Credit Arbitration rules of the WGA, even if one or more such writers are not a WGA member. When the picture is completed, a notice of tentative writing credits must be circulated by the producer to all the writers. If there is an objection to the proposed credits, the Guild will determine all the writing credits to be issued on a picture.  The WGA acknowledges that registration generally does not help in determining writing credit.  “However, if there is a dispute as to authorship or sequencing of material by date, then registration may be relevant.” https://www.wgawregistry.org/regfaqs.aspx#quest17
  • CO. If the only effect that WGA registration has on credit is clarifying the date a particular version existed, then copyright registration does the same thing. If a writer was engaged by a producer to create a screenplay, whether an original, revised, or polished screenplay, it would be very unusual for that screenplay to be anything other than a work made for hire, and the date of delivery of that version of the script would be clear.
• Proper Notice.
  • WGA.  The WGA Basic Agreement, Article 37, provides for the content of a cover page, with multiple writers, to include

Name of project

By

(Name of first writer)

(Based on, if any)

Revisions by

(Names of subsequent writers, in order of work performed)

Current revisions by

(Current writer, date)

Name, address, and telephone number of Company, if applicable.

• CO.  The Copyright Act does not require that a work of original authorship include a copyright notice. But including a proper copyright notice may deter an infringer from stealing the work. It is unlawful to remove a notice with intent to facilitate infringement. The presence of the notice will also remove an infringer’s defense of “innocent infringement” because the infringer was not aware of the owner’s claim to copyright. 17 USC 401(b). An innocent infringer may not be subject to statutory damages, if found to infringe.
  • A proper copyright notice has three elements. First, the C in a circle symbol ©, or the word Copyright or the abbreviation Copr. is one element of the notice. The second element is the year of creation or publication, and third the name of the copyright owner. 17 USC 401 (b). The notice must be placed in a location on the work to give “reasonable notice of the claim to copyright.”   17 USC §401 (c).  By simply adding a proper notice below the name address and telephone number of the Company, significant protections are created for the owner.  A sample notice appears at the end of this blog post.

Surely, registration at the WGA is cheaper.  But it is far less valuable, and merely establishes the existence of the work on a particular date. The same thing will be established with a copyright registration certificate, and that certificate will be the keys to the courthouse in the unlikely and unfortunate event you think your script is infringed.

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Marc Jacobson is an entertainment attorney in New York NY.  He is admitted to practice in NY, CA and FL, is the founding chairman of the NYS Bar Association Section on Entertainment, Arts and Sports Law, and is listed in Best Lawyers in the USA, Chambers USA, and SuperLawyers.  This blog first appeared at the blog for the NYS Bar Association Section on Entertainment, Arts & Sports Law. https://bit.ly/2STTekM

© 2021 Marc Jacobson.