Separated Rights

In my most recent post about writing credit, I mentioned that one of the perks of receiving screen credit on an original project that’s signatory to the Writer’s Guild of America is the screenwriter is entitled to something called separated rights. This post will take a look at what separated rights are and why they’re so important.

First, it’s important to understand the concept of droit moral, which is just a fancy Latin way of saying “moral rights.” Moral rights are rights afforded to the creator of copyrighted works, which are generally recognized in civil law jurisdictions, including:

• The right of attribution
• The right to have a work published anonymously or pseudonymously
• The right to the integrity of the work

Basically, any situation that could detract from the quality of the work or separate the artist’s chosen form of attributor from the work itself could be contested by an author’s moral rights.

Even more importantly, moral rights are retained by the author even in situations where all other rights under the Copyright Act are transferred to someone else.

But here’s the rub… when you sell a script, most contracts include a waiver or assignment of moral rights to the Company as much as allowable by law, and to the extent they cannot be transferred, the expectation that you will exercise those rights in a way that doesn’t have a negative impact on the project or company.

In other words, when you sell a script, your absolute right to be credited on the work and to have influence over the way the work is exploited goes away.

The reason for this is because the company is the ultimate owner of the film and, as such, needs to control all of the film’s underlying rights, including the work performed by each of the artists engaged on the project.

Especially in the case of WGA-signatory projects, a company can’t simultaneously guarantee the author the ability to retain moral rights (specifically the right of attribution) while at the same time adhere to the Guild’s requirement that they get to solely determine credit (because they may determine that writer not be afforded credit on the film).

The Writers Guild, however, collectively bargained for a compromise. In exchange for a screenwriter essentially giving up their moral rights and selling all ownership of their written work to a company, the company would instead be required to separate out certain specific rights and leave them with the author.

For feature motion pictures, separated rights include:

• Publication Rights. The right to publish the script, or books based on the script, subject to a holdback period.
• Dramatic Stage Rights. The right to produce a stage version of the material after two years following the release of the picture.
• Sequel Payments. A guaranteed payment for any sequels based on the film.
• Mandatory Rewrite. The writer is afforded the first opportunity to rewrite the script.
• Meeting with Production Executive. If the company wants to replace the writer, the writer is entitled to first meet with the company’s designated representative and discuss giving the writer a reasonable opportunity to continue performing services.
• Reacquisition. If the material is not produced, the writer has the opportunity to buy the script back.

For television works, separated rights include:

• Rights in the Original Television Material. The company has an exclusive period of time in which to produce a series. If they don’t, the writer and the company both have the non-exclusive right to produce the project on their own without requiring the approval of the other.
• Second Pilot. If a second pilot is produced based on the material, the writer gets paid for this second attempt.
• Series Rights. If a series is produced in a certain time period, the writer gets sequel payments. If a series is not produced, these rights revert to the writer.
• Sequel MOWs. If the original project was a Movie of the Week (MOW), the writer has first opportunity to write any sequels produced.
• Mandatory Rewrite. Same as above for programs 90 minutes or longer.
• Reserved Rights. Dramatic Stage Rights, Theatrical Rights, Publication Rights, Merchandising Rights, Radio Rights, Live Television Rights, Interactive Rights, and All Other Rights are reserved by the writer (although the company can and often does negotiate to acquire them).

On top of that, since screenwriters are usually engaged to perform their services as a work for hire, they are also entitled to a lot of other benefits that authors don’t typically get. Things like health insurance, a pension fund, and the ability to unionize and have the WGA collectively bargain with studios for minimum work standards… none of which authors are guaranteed as independent contractors or freelancers.

It’s worth mentioning that while separated rights and standards that are collectively bargained for are guaranteed for Guild-signatory writers (as long as they meet the eligibility requirements set forth by the Guild), there is absolutely no reason why a non-guild deal cannot or should not include many of these same rights to the non-union author of an original screenplay.

Screenwriting is one of the most limiting forms of writing where author’s rights are concerned. In order for a company to get all the rights it needs to have a clear chain of title (more on that concept coming in a later blog post), it necessitates transferring a lot of rights away from the writer that they might otherwise retain if they created the work in another medium (as a book, for example).

The trade-off is that screenwriting money is generally considerably better than writing pay in other media, we have a union to look out for and enforce our interests, and, in most cases, screenwriters get some degree of separated rights and other consideration for the rights that they’re giving up.

If you’re selling an original script, make sure your contract has provisions about separated rights. If it’s a WGA deal, those rights have already been hammered out very clearly. If it’s not a WGA deal, you need to make sure your attorney is negotiating a deal that sets aside an appropriate number of separated rights in exchange for all that you’re giving up.

For more information on separated rights, check out the WGA’s website.