Promote and Protect:
How to Safeguard Your
Creative Work From Theft

By David Walter

Say you've got a stupendous idea for the next "Die Hard" knockoff. You bounce it off a few industry folks, but get no takers. A couple of years later, you choke on your popcorn when you see a movie trailer about murder and mayhem in a Bulgarian nunnery. That's your idea! Was it stolen? Maybe. Maybe not.

"Ideas get stolen all the time," says Brooke Wharton, an entertainment attorney and author of The Writer Got Screwed (but didn't have to). Several writers, who asked not to be identified, recounted the brazen thefts of their ideas.

But just because someone else executes your idea doesn't mean it was stolen. "When you come up with something, you may find that 50 other people came up with the same idea," says William Jenner, a producer and attorney. "I don't think enough writers are willing to believe that many, many times it's just coincidence."

Whether a writer's idea is obviously stolen, subconsciously appropriated, or coincidentally co-developed, the result is the same: the writer is left unpaid, uncredited, and unhappy. Compounding the problem is that there is no sure way to protect an idea from theft -- only the execution of an idea can copyrighted. However, writers can help make their ideas theft-resistant.

The WGA's Registration Service registers scripts and treatments at a cost of $10 for members and $20 for non-members.

Create a paper trail. "If you have a meeting with someone to whom you're going to pitch, one way to protect your idea... is to hand a very short copy of your treatment or idea in a treatment form to the person," notes Wharton. "It establishes that (a) they have it and (b) they have it in written form."

Put it in writing, "even if only a paragraph or synopsis or log line," advises producer and attorney Yvonne Chotzen. Like Wharton, she recommends writing a treatment. Chotzen's partner, Jenner, suggests following up with a simple one-page letter that summarizes the pitch and restates the synopsis.

Write the script. "The best way to preserve your ideas," says Wharton, "is to write them into a tangible expression of the work, which would be to write your screenplay." A completed script is less likely to be the target of either willful or unintentional theft than is a 25-words-or-less premise.

Ian Abrams, a TV series co-creator and screenwriter who now teaches at Drexel University, says writers can further protect themselves by looking beyond the "obvious possibilities" of their stories. "The obvious things are things that everybody does," he says. An example of the multiply obvious: A character, granted three wishes by a genie, wishes for more wishes.

"The writer should make sure his personality is stamped on every page of the story," advises Abrams. "At least it's taking a step to be proactive, and at the same time makes you a better writer."

Register the treatment and/or script. Should a theft of intellectual property or copyright infringement occur, a writer seeking a legal remedy must prove that his or her execution of an idea preceded execution by someone else. The Writers Guild of America's Registration Service registers scripts and treatments at a cost of $10 for members and $20 for non-members. Copyright registration, which provides additional legal protection, is available for $20 from the U.S. Copyright Office.

Use an agent or attorney. Wharton says using an agent (or manager) gives writers "a better chance of being treated fairly." She suggests that unagented writers seek "hip-pocket" (single-project) representation.

Produced screenwriter Stephen Greenfield says hiring an entertainment attorney can be useful, particularly for writers not yet established in the industry. "It doesn't cost much to funnel a script through an attorney," he notes. "But it does tell the producer there is an audit trail."

Use a nondisclosure agreement. Greenfield says he may use a document prohibiting producers and agents from disclosing his idea to others. He says, "I would have to explain to them upfront: 'I believe that the concept of the material I'm doing is so valuable, I would prefer to nondisclose you on this. Nondisclosure simply means that for a period of time you're obligated not to show [the idea] to anyone else until you take me on as a client or draw up a business relationship with me.' " Fellow writers claim producers and agents will not sign such an agreement. But Greenfield argues that some will. "If the level of intrigue is high enough," he says, "they will want to see the material you've got."

Know whom you're dealing with. "I've been in the business for almost 20 years," says Catherine Bacos Clinch, a produced screenwriter and screenwriting instructor at Loyola Marymount University. "If I've never heard the name of the person or the production company, how legitimate can they be? How big-time can they be?" But emerging writers, she notes, may not be so discerning, and thus more vulnerable to unscrupulous practices.

Writers lacking a network of contacts can glean information about industry professionals and companies from the trade newspapers, screenwriting-related Internet Web sites and news groups, the screenwriting forums of commercial on-line services, and writing-related periodicals, among other sources.

Even when writers take every possible step to safeguard their ideas, theft may still occur. "This is an industry where scruples are not high on anybody's list of personal goals," says Clinch. "And you have to know that going in."

Wharton advises writers not to worry excessively about theft. To get their scripts read and find employment, writers -- especially emerging writers -- "have to pretty much throw caution to the wind an let it go as a concern," she says.

"Work hard at your craft, learn how to write, and don't worry about people ripping you off," suggests Jenner. "If you have material, that's what executives need...," adds Chotzen. "We need new writers. We're hungry for their ideas."

And remember, says Abrams, "it is almost always easier to pay you off than rip you off. It's almost always in a studio's best interest to treat you fairly. They don't want bad publicity. They don't want lawsuits. They don't want a bad reputation in the community of creators and writers who talk to each other."

(12/19/09)