Home » Contracts, Copyright/Intellectual Property, Kristine Kathryn Rusch » Stealing Intellectual Property

Stealing Intellectual Property

28 October 2017

From Kristine Kathryn Rusch:

I just had the most illuminating conversation. I had been consulting with someone about one of the TV deals I’m currently negotiating. I had run into a situation I had never encountered before, and I needed help evaluating it.

. . . .

The expert I consulted, gracious and interesting, had a lot to say about a lot of things. He gave me tips that are too on-point for my negotiations to share here.

And then he said something that scared the crap out of me.

Once a big company, studio, or someone with too much money has an option on your book, that organization will often register the copyright.

Initially, I was unconcerned when he said that, because, as I told him, the first thing I do when anyone connected to the film and TV industry comes knocking is this: I register my copyright with the U.S. Copyright office. If I answer someone’s email, it’s guaranteed that before I do, my work is registered.

If you don’t understand the value of registration, when it’s needed and when it’s not needed, then get yourself a copy of the Copyright Handbook from Nolo Press, and read the damn thing from cover to cover. I am not answering basic copyright questions here, although I did address some on a post some time ago. I also addressed a lot of copyright issues in my book on contracts and dealbreakers from last year.

It doesn’t matter if your copyright is registered, the expert said. They’ll register anyway, even before they’ve started production on anything. The strategy is to create confusion over who owns the copyright, and it’ll take litigation to straighten that confusion out.

The best thing I could do, he said, was to make sure that any agreement I have with anyone had an active termination date in which all rights reverted to me without me taking an action at all. What does that mean?

Instead of calling this a termination clause, he called it a snap-back. If the person I’ve negotiated with doesn’t have a screenplay by such-and-so date, then the rights licensed in the agreement automatically revert to me. If there’s no principal photography by such-and-so date, then the rights licensed in the agreement automatically revert to me. If the movie has not been made by such-and-so date, then the rights licensed in the agreement automatically revert to me. And so on, and so forth.

Link to the rest at Kristine Kathryn Rusch and thanks to Colleen for the tip.

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Contracts, Copyright/Intellectual Property, Kristine Kathryn Rusch

13 Comments to “Stealing Intellectual Property”

  1. “The strategy is to create confusion over who owns the copyright, and it’ll take litigation to straighten that confusion out.”

    Add a line at the beginning of the contract stating:

    All parties acknowledge that KKR owns and controls copyright of X and company Y will in no way try to claim copyright of same. (add something in there on Y getting to pay both sides legal costs if they do so anyway.)

    The ‘sh*t or get off the pot’ bit is nice if they were buying it just to tie it up (and keep you from offering/selling it elsewhere.)

    • That seems like it *should* protect against this (from my very non-professional-legal viewpoint). I think a key is knowing that it ought to be added at all. Now that we know companies might try to do this, we can at least add that kind of language to our personal ‘must-haves’. And I liked the suggestion that one of the comments on the OP made about a clause that all rights immediately revert automatically back to the author if the company even attempts to register a copyright for the work.

  2. R. L. Royall, Jr.

    IANAL but could you theoretically argue a countersuit, for the full amount of any profit you’ve ever made from your IP, multiplied by three, for the production company’s willful infringement of your copyright in that they were trying to claim it as their own and sue you for all your profits?

    • If your plan requires you to take legal action against a movie studio, you’ve already lost. The way I read the article was “if you see someone doing this, or you think they’re going to do this, walk away, because they’re intent on screwing you, and if you let them, you’ll never be able to afford to undo it.”

  3. A brilliant article that everyone should read, especially if you have dreams.

  4. This link went straight into my keeper file. I’ve had books optioned, and written original scripts and adaptations on my work with no clue that an option can involve such a scurrilous hidden agenda. Many thanks KKR and PG.

  5. Sell the whole thing, take the money, and run.

    • There is some merit to that kind of thinking. Not that you shouldn’t try to make a good deal, and what Rusch talks about is an absolute worst case scenario for a horrible deal.

      But on the other hand… if your IP original is produced, the studio is essentially raising your profile as a writer, and the profile of the IP. There is value to that. If you wrote it once, why couldn’t your write something very similar “from the writer of” Movie X, TV show X? Better than being an unproduced writer.

      Moreover, you still have the right to revoke the copyright after 35 years, regardless of whatever deal you sign. If you are young enough, it is worth taking a chance on that. There are also some limited protections from the Writers Guild, and with any major studio you should be able to insist that it is covered under their contract.

      The danger of holding out for a great deal is that you never get any kind of deal. And yes, to some extent, if the studio doesn’t think they can screw you, then they might not bother. Ultimately, it’s up to the writer whether they are willing to make that kind of devils bargain.

      That being said, no, you shouldn’t give up all your rights for absolutely no money.

      But there is an alternative, that some writers I know have successfully played to their advantage.

      First, the person trying to acquire the material wants to rush you into a bad deal. Don’t get rushed, but also don’t say no. Be wishy washy. Act like they might be able to take advantage of you, but you aren’t sure.

      DON’T bring in a lawyer right away. That costs you a lot of money and then the clock runs out against you. You want to get them to start blowing money on lawyers, not the other way around. Once they start blowing money on a contract, they’ll be under pressure to close a deal. Do as much research as you can into similar deals and try to figure out what you can get from them on your own before you bring in a paid lawyer. (Never hurts to use the line, my lawyer friend said a one year option was about right for $10,000. Is it possible you could go up to that. How about for two years?)

      Make them do as much work as possible. Ask for meetings to discuss their direction. Get some free lunches. Ask to meet with screenwriters or directors they are considering (or at least get lists of them). Get them “pregnant” as they say. The hope is that they get excited about the project and hopefully start to show it around before you sign the final deal. Say things like “this looks okay” but I have to think about it.

      In other words, try to play them as the sucker. Sharon Osborn successfully used stall and delay tactics on “The Osborns” television show so that MTV actually started airing the program WITHOUT A CONTRACT! Then they were screwed. It was a hit and she could take them to the cleaners. They assumed she was some dumb housewife but she was smarter than a fox.

      That’s an extreme example, but I know writers who have slow walked contracts and gradually gotten a little more and a little more out of the studio when it became anxious to make a deal because the executives had invested so much time into it. You might get lucky and they make the mistake of slipping it to a director who likes it before they have a contract. Then you will have a lot more leverage.

  6. Kriswrites.com should be a frequent stop on every writer’s reading list. She, and her husband, Dean Wesley Smith, have the BEST warnings/advice about the Business of Writing.

  7. And this is one of the reasons why indies should get copyright registration on their books. I hear over and over that it’s totally unnecessary and not needed – but here’s a perfect example of why it’s important.

  8. In software, companies apply for patents on just about anything for similar reasons. A big portfolio of patent applications, even applications with no hope of ever being granted, increase company valuations. They are also handy for discouraging smaller companies without a big war chest from venturing into areas the larger company has staked out for themselves, or, when a small company starts to succeed in an area, for negotiating down an acquisition price.

    The big war chest doesn’t have to win, just hold the little guy at bay long enough for them to starve.

    In business, gold writes the rules.

  9. Kris Rusch has done more to help authors avoid traps like this than any person or group I know.

    Her posts on contracts are gems.

Sorry, the comment form is closed at this time.