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Writer's Toolbox

by Philip Moscovitch

I Shall Be Released

There you are, ready to submit your great idea to a production company, when they stick a jargon-heavy document under your nose. You balk at clauses like this one:

“I acknowledge that you receive numerous submissions, and that many submissions are similar or identical to those developed by you or otherwise available to you… I agree that I will not be entitled to any compensation because of the use by you of any such similar or identical material.”

You’ve just been handed the dreaded release form, and it puts you in a bind. Sign it, and you may feel that you are legitimizing story theft. Refuse, and the producer might never look at your idea. Now what?

The lawyer

Joseph Sisto is a media and entertainment lawyer at the Montreal firm Lapointe Rosenstein. He’s also written, directed and produced independent films. And he says releases are no big deal.

While writers should be concerned about protecting their work, Sisto says “they shouldn’t allow the concern to paralyze them or stall their careers… Reputable producers and literary agents are usually worried about maintaining their good reputations, so it’s unlikely that they would opt to steal a good story rather than just option it.”

He adds, “The release is just a way for producers to minimize the risks of being sued by a writer that submitted a treatment or screenplay that bears a similarity to a film or TV show that is later produced based on another writer’s work. Of course, if the writer can prove that his work actually was stolen, release or no release, the writer can seek legal redress. So the release does not eliminate the writer’s rights altogether.”

While Sisto says it’s ok to sign a release, he still offers some words of caution. “At the risk of sounding self-serving, a screenwriter should never sign anything without having it reviewed by an entertainment lawyer first… That being said, writers should look out for releases that are worded too broadly, or that are exceedingly lengthy.”The Writers Guild never condones signing a release, but they will look one over and let you know how bad it is.

The agent

While some assure writers that the release form is simply a way for producers to protect themselves, agent Jennifer Hollyer says they are entirely unnecessary and that writers shouldn’t sign them.

“The rationale is to protect the production company,” Hollyer says. “I can understand a company not wanting ambiguity about where the project originated, but the language I have seen on some of these essentially allows them to steal the idea.”

While companies may appear intransigent on the subject of releases, Hollyer says that in most cases the stance is negotiable, and that she has never advised a client sign a release.

“I would say that 90 percent of the time a release isn’t required in Canada… There are some companies who feel more strongly about them than others. They tend to be larger companies, where there’s not so much of a personal relationship and they don’t know who’s submitting to them.”

Hollyer says one simple way to sidestep the whole problem is to make sure you are represented by an agent.

“The issue for the producer is, do you trust the person submitting the project to you. A project submitted through an agent should be enough to allay the fears of the production company, and the company usually has been dealing with the agent over a number of years… Generally if you submit something cold you’ll get a release faxed back to you. Otherwise, it’s a conversation.”

The producer

Gretha Rose, president of PEI-based Cellar Door Productions (Eckhart, Chef at Large) says releases are industry standard in the US, and that more Canadian producers ought to be insisting on them.

“I was discussing a possible series idea, and I remembered someone had sent something similar in a few years ago–and I wouldn’t go ahead with the idea. But in situations like that you think, ‘Oh God, I should have had a release.’

Rose agrees with Hollyer that in Canada the phenomenon is so far limited mostly to larger companies and that smaller producers like herself take a more personal approach. “Anything I do with anyone is a conversation,” she says. At the same time, Rose believes that releases “should be a standard business practice.”

Protecting yourself

There are several ways for writers to protect themselves from story theft–release or no release.

Under Canadian law, you automatically own copyright in your work. But registering it can help you enforce your rights. The Writers Guild offers an inexpensive screenplay registration service, and you can also register with the Government of Canada’s Copyright Office. And if you’re sending your material to the States, make sure you register it first with the WGA.

Sisto offers another suggestion–when you go to meet with a producer, take along a witness. Make it clear that if the producer wants to go ahead with your idea you expect to be compensated. Now, “you have an oral contract and a witness to prove its existence.” A paper trail is also helpful. If you have to assert your claim to an idea, you’ll need all your letters, emails, and meeting notes.

Bottom line: avoid the release if you can. If you feel your idea has been stolen, the release makes the task of proving it that much harder. But if you do feel you have to sign, make sure you protect yourself.