Aishwarya chats with IP lawyer Sushrut Desai on how writers and creators can safeguard their work with copyright.
Part 2 coming next week!
Sushrut Desai who has been practicing law for 14 years, specializes in intellectual property rights and has also been a consultant for the Screenwriters Association in India. He was a part of the Group General Counsel, Tata Group, and as a counsel in the Chambers of Cyrus Ardeshir in the Bombay High Court. Find him on LinkedIn.
Aishwarya Javalgekar is a writer, book editor and podcast producer. As the Head of Originals, she specializes in creating stellar content across formats - books, podcasts, newsletters, etc. She is a member of WICCI - Print Media and has a publishing certificate from Humber College and previous experience in Zubaan Books and Simon and Schuster Canada. Follow her on Linkedin, book a consultation call with her or drop her an email at aishwarya@boundindia.com.
Bound is one of India’s leading storytelling companies that helps you grow through stories. Follow us @boundindia on Instagram, Twitter, and Facebook.
Produced by Aishwarya Javalgekar
Edited by Kshitij Jadhav
Aishwarya chats with IP lawyer Sushrut Desai on how writers and creators can safeguard their work with copyright.
Part 2 coming next week!
Sushrut Desai who has been practicing law for 14 years, specializes in intellectual property rights and has also been a consultant for the Screenwriters Association in India. He was a part of the Group General Counsel, Tata Group, and as a counsel in the Chambers of Cyrus Ardeshir in the Bombay High Court. Find him on LinkedIn.
Aishwarya Javalgekar is a writer, book editor and podcast producer. As the Head of Originals, she specializes in creating stellar content across formats - books, podcasts, newsletters, etc. She is a member of WICCI - Print Media and has a publishing certificate from Humber College and previous experience in Zubaan Books and Simon and Schuster Canada. Follow her on Linkedin, book a consultation call with her or drop her an email at aishwarya@boundindia.com.
Bound is one of India’s leading storytelling companies that helps you grow through stories. Follow us @boundindia on Instagram, Twitter, and Facebook.
Produced by Aishwarya Javalgekar
Edited by Kshitij Jadhav
Today is a very, very special session, because today I'm doing something completely new for the book people as well. I'm talking to social Desai, who is an IP lawyer. I mean, he does a lot of other things. But specifically, I want to understand, you know, how it works, how copyright works? And what is the opportunity with these? So my first question is, I think the basic one that we all need to know. One is, you know, what does an IP lawyer even do? What does it mean? And how did you become an IP lawyer?
00:31
Um, I graduated from government law college 2008, I haven't always been an IP lawyer. In fact, even now, I suppose IP lawyer is not a correct definition. For me, there are people who are dedicated to doing that. And by by those IP lawyers, who generally mean people who draft the contracts, though, and who advise and do your agreements and things like that. I am basically a litigator, my job is to draft suits, or defense suits and argue them in the High Court, because in only the high court has jurisdiction under the under the Copyright Act, so all our cases go before. So so that's where I come in when the contract goes wrong, and some disputes arise, that's when I enter into the picture, basically. Okay, so you're basically not involved in the initial contract as drafted only when there is an issue you kind of come in. So what's happened is over the years, because of my litigation experience, there have been people who've been sort of coming to seek advice, before things go wrong at the contract stage. Therefore, I would imagine that's when people will want the advice. Yeah, I don't want things to go wrong. Exactly. And I've had the benefit of working very closely with the screenwriters Association, from a pretty Junior sort of stage in my career till now. And, and that's been an association that's gotten me very deep into writers rights, and also copyright law in general, especially when this has been a pretty transformational time for copyright law, because of the amendments or not, but we'll come to that later. Okay. So, you know, how often do you have to go to court on a day to day basis? What do you sort of do? So I could work from 1030 to 430. And a lot of that time we are in that building, we're not always arguing and on our legs, because we're not always on our legs. So but whenever you have to be ready when a matter is called out to be able to go there and argue, and before 1030. And after 430, is when we do our rafting, meeting clients, advising them reading papers, preparing for the next day and things like that.
02:37
Can we go into you know, what does it actually mean? Like, what is it? What is copyright? What is, uh, you know, what are the differences between them specifically? And what can be copyrighted? Right.
02:52
So I IP is, is a catch all term, it's an umbrella term stands for intellectual property. And the best way to understand it, and the way we were taught in law school, is by something known as the
03:05
apples analogy, or the apples fallacy, where basically, an apple is a property right. And so it's a physical thing. Now, if I give you an apple, I have one less apple.
03:17
But this is not true of intellectual property. If I write a book, and I give it to you, I still have the book. But you also have it. So in that sense, intellectual property is distinguished from physical property. And you had a whole bunch of laws that came about to try and protect this category of property. And this, this category, property is divided broadly into patents, trademarks, and copyrights. And copyright is basically, your right to any artistic work that you have created.
03:53
This could be a work in writing, it could be a musical piece, it could be a movie, it could be a poem, it could be lyrics,
04:02
it could be a software program, because a software program also has to be written. So anything that is written,
04:09
or anything that is created artistically, and is unique, and has never existed before can be copyrighted. And in fact, I wouldn't say can be, I would say is copyrighted. Because unlike trademark and patent, you don't have to do anything extra to protect a copyright. If I write something original, it is automatically copyrighted by the fact that I have written it. I don't have to go and register it somewhere else in order to get that protection. So that's what that is. and at what stage
04:40
something become copyrightable. You know, like, for example, if you're looking at a book, so if I just have the idea of a book, or I have a pitch with, you know, some rough outline, is that something that is copyrightable or is it you know, a manuscript say I have a finished manuscript of a book is at that stage, you know, something that I can copyright
05:00
or only after say, it becomes a physical book with a book cover and something that is a product as a whole and can be sold. Is it only copyrightable at that stage? Right?
05:13
That's a great question actually. And then the last thing that you mentioned that when it actually becomes a book is the moment that is known in copyright law as the moment of publishing, when you publish something, and the work becomes public, that is when
05:29
the whole world is put to notice that you are the owner and holder of this copyrighted original work. But that does not mean that your earlier drafts, which you might have shared with your publisher, or your producer, are not copyrighted.
05:45
They are also equally copyrighted, the moment of protection comes at the time of creation of this document.
05:54
So in the olden days, what what what screenplay writers used to do, before we had the registry at the screenwriters Association, what writers would do is they would take their script that they've written, put it in an envelope, go to the post office and mail it to themselves. So what would happen is they would get a stamp that would prove that this day, this document existed, so so that in the future, if there is a dispute, if somebody else says that they have a script that is similar, for example, you can open this envelope show to quote and say, See, this is a sealed envelope. This is a postage stamp, and this is a document inside.
06:30
Yeah, now we do the same thing on the registry. And I think now also maybe, you know, because we use Microsoft Word, or we use these kind of software that also track when changes were made, right, or when a document was saved. Does that also help as proof in terms of? Absolutely, because what what what you have to understand about copyright is, okay, take a situation where two things are extremely similar, and they come to a court and the question is, who owns it.
06:58
And if they are so similar as to cross that threshold of infringe copyright infringement, so very high threshold, but let's assume for the sake of argument that these two do cross that threshold, what the court will look at is which one came into existence first.
07:13
And that becomes a very, very powerful indicator of who the original author of the document is. And that's pretty much what it boils down to, in a lot of cases. So in the example, that you just gave off a Microsoft Word document, certainly, if you can prove electronically in a way that cannot be tampered with, that you created this document on a certain date. It's absolute proof. That's why people email documents for themselves now. Yeah, that's true. But that's so interesting, because when I say ideas are not copyrightable, right? Like if I just have an idea, saying, I'll write this book, or I create this podcast, that's not something I can copyright is anyone could have come up with the idea. But that's so interesting about the creative process, because say, two people came up with the same idea for a book or a screenplay or a podcast, you know, say, you know, it's me, and you and I came up with the idea of one your before you did, but you wrote the screenplay, or you finish the book, you know, two months before me? Yeah, so then that's something that you can copyright or like, by copyright law, that's something which will put you as the owner, rather than me, right? There's an expression in copyright law that says that you cannot copyright and that an idea is not capable of protection, only the expression of that idea is capable of protection. Now, what that means is that I may have an idea of a boy meets girl story, where the parents are in opposition to it. And then in the end, they run away together, and then they have to kill themselves. Now, this is a story that has been told 1000 times in history. Yeah.
08:48
So this idea, if it was predictable, then after Shakespeare, nobody would have been able to do it, or probably even before that.
08:56
Maybe Shakespeare would not have been able to do it. But therefore, therefore, if you only change a few things about this idea and give it a unique expression, by by setting it with unique character, populating it with unique characters, setting it in a unique setting or a timeline, explore new themes, and you make it original enough,
09:15
you will get you will get copyright on it. In fact, this is something that we've seen so many times, with authors who have sometimes
09:28
an overestimation of how unique their idea is.
09:33
And I always tell them, Listen, we had one author who came up to us he wanted to file a suit, because he written a script about a dog who
09:45
is the favorite dog of a wealthy man who passes away and then his family has 20 days to win over the dog and whoever the dog likes the most after 20 days, will get his entire fortune. And he was convinced this is an extremely unique idea and he was
10:00
He was horrified that is that some other person he knew was writing it. So I told him and this is what I tell all my clients when we use this in court is a website called tvtropes.com. Anytime you think you have an original idea, please go to tvtropes.com and put your idea in there. And you will get category wise how many other ideas have the same thing so when we put this dog inherits fortune, we got about 13 novels 40 films, 30 manga anime series, and like just, you know, unbelievable amount of material. So ideas are not that many. Yeah, absolutely. globally.
10:37
Okay, not just in the English language as well. Yeah, not just in the in bigger because copyright is universal. Unlike a trade now, which is, which is only for the territory in which you register it. A copyright is universal. When when JK Rowling wrote Harry Potter in England, you couldn't suddenly copy and read Harry Potter in India and publish it, because her copyright is protected even in India.
11:01
That makes a lot of sense. And, you know, when you said that there is this threshold, you know, where you know, spurt two things to be considered very similar, or almost as copyright infringement. What is that threshold that is so high? And how similar do they have to be, they have to be extremely similar. So in the example that I just gave you of this TV Tropes, clearly the threshold of dog inherits fortune and family members have to win him over is not unique enough, because and that is evident from a cursory glance at what how many other materials have been written of a similar nature. So now, whoever this writer is, who's saying that you have copied my dog inherits millions idea has to not stop at that he has to list down 10 other similarities. Maybe the characters are the same, maybe the resolution is the same, the climax is the same, maybe the midpoint is the same. Maybe the twist is the same. And maybe that twist is unique and not found in any of the other places on that TVTropes page, but is found in this. So you have you have to show very direct links, because it is an incredibly high threshold, like people think that they can,
12:13
that they can get away with
12:16
pointing out a few similarities. That is not it at all. Okay, I'll give you I'll give you a situation that happens quite commonly. A writer writes something, the producer says I don't like it. Writer walks away disappointed, the producer goes to a cheaper writer and tells him here's the script for that don't think she's bulky banana? Yes, exactly, this happens.
12:38
So, and then this first writer will come and say that you stole the idea from me, and you've done copyright infringement. But now this writer and producer are no fools. They have been in business for a long time. And they know how many things they have to change, in order to not meet this high threshold of copyright infringement. Let me call it Binondo, the legal mumbo jumbo, and we saw the girl dying, the boy dies. I mean, there's there's 1000 tricks like this. And they're not even that complicated. And and, and what that does is it creates a product that you can arguably say, is different, arguably. And then you you're the first writer who tries to stop this fellow from coming out, saying this was my idea. So basically, when you go to court asking for an injunction that don't release this movie, because it's mine, intellectual property, so so so that's called the interim stage. So at that interim stage, the judge will say, I don't know, it looks like there's about 1015 things that are different. So I don't think I can give you an injunction. Now what this writer could have done different, which is what we advise all our clients to do, is to forget about copyright infringement as a concept, don't even don't even pay any attention to it. Instead, you pay attention to breach of promise, okay, and breach of confidentiality, and breach of trust.
13:58
So if, if this first writer had shared the script with the producer, and said that the script that the document that was shared with you was shared in confidence. It contains proprietary materials authored by me, and should not be shared with third parties without my knowledge or consent.
14:17
If you merely go those lines in your document that you've shared, and if you share it over email, as opposed to going to their office and dropping off a physical copy, which is untraceable.
14:29
There's a thread doesn't mean,
14:32
because then what happens is, then when I walk in code, the first question that the judge will ask me is, do you have any proof that you had given this script to them? And I will say, Yes, this is the proof.
14:45
Until I shared the script, you didn't want to make this movie. Now that I've shared the script suddenly wants to make the movie and this is a breach of promise, then I can apply a different test, then rather than applying the test of copyright infringement. I can tell the court to apply the test
15:00
I have breach of confidence and say that, that when I have shared this with him in confidence if he has gone and misuse my intellectual property, now that's something that the man deserves to be exempted for. He deserves an injunction against him to stop him from releasing this.
15:16
Right. Now, that's super helpful, because, you know, I was going to ask you this question. There are so many writers who have this exact concern, right? That when they send their screenplays or their pitches, like whether it's movie ideas, whether it's book proposals to publishers, and then the question is always okay, what if they say no, to me, but then they turn around and make the exact thing? Or it? Most often, it's not the exact thing you know, and it is it is inspired by it or whatever, like you said, with a lot of different variations, what is it that they can do? So this is a great, great point. And this is also where, why this, you know, it's become important now to sign these NDAs as well, right, like a lot of, you know, whether it's clients, whether it's freelancers, whether it's writers, they're getting into that habit of signing a nondisclosure agreement, before they share any of their work, sort of have that proof saying, hey, look ahead, sign this. How effective do you think that is?
16:12
It is effective.
16:14
If, as a writer, if you're getting a producer to sign an NDA, that's amazing. I mean, that means you have a lot of clout as a writer, so good for you. Okay. Producers can also refuse to sign NDAs. I'm just asking, do they do that as common practice? Of course, of course, they will. In fact, in fact, the standard practice is for the producers to offer you a document design, they will give you a document,
16:38
as a writer, saying that the that you are wanting to submit an idea to me, you are aware that I may have similar ideas in development.
16:48
And that if I go and develop those other ideas in development, you should not come and catch my next thing. I've copied your idea. Now, we make it
16:58
almost like for them that leeway to go and say, Okay, I'm working on multiple ideas, not about your idea.
17:06
So, at what point can you know?
17:12
Like, from your experience, has it ever been a scenario where someone you know, there is there are two works, which have this issue of copyright infringement and the
17:22
the things that are copied, I literally word for word like, has there ever been a case that you have come across, where it's not just certain tropes or certain specific details that are copied, but there are entire paragraphs or entire chapters that are verbatim copied, which, you know, I'm assuming would make your case super easy, as well. It's happened, it's happened. In fact, in fact, this was, this was one of one of my early cases, where I was I was very, very passionately arguing on behalf of this writer, to get him an injunction against a fairly large producer, who had made up I mean, this was just kind of a blockbuster kind of film. I mean, for obvious reasons, I can't even but it was a it was a it was a big film, a well known film, well known director and producer. And I had made a shock saying, look at all the elements in my screenplay, look at all the elements in your film. They are absolutely identical. And, in fact, they are so unique, that it is impossible that another mind independently came up with the same 2030 choices at this stage. But that's not only the milieu and the setting, and the character, but also the flow and the twist and the climax and everything. And the side characters. I mean, this would be a remarkable coincidence. If, and obviously, that's not something one could believe. And we had some proof of communication with the producer. The writer had communicated with the police. So we had a pretty strong case. And
19:02
when it looked like the judge was going to give an injunction, the producers lawyer said Lordship, we'll just keep the matter back for about half an hour. We will try and work it out. We'll offer him a settlement will try and work it out so that you know no adverse orders are passed. So when we stepped out, agreed on a number, went back into court and withdrew the case.
19:24
Producers brother, who was in court came up to me and he said Sir, our grandma's money batanga.
19:31
I said sure, is like
19:35
CV we got off cheap
19:38
in the settlement, but
19:42
be careful so I survive or even got off cheap because you pay my fellow a pretty handsome amount and he's also very happy. So he's like Nene geyser. Gaina. Actually European filament, the object client if you copy and make landing copy here, like in your defense, I can present in code
20:00
Vice President is defense ERP client with your nav showroom, when that big production company will come catch my neck. So that's why the settlement is a good thing.
20:09
Since things like this happen.
20:12
That's so funny, though. So that's clear. That's a great story. But you know, when how often do cases like that come to court? In the sense that how often do writers who realize that, you know, the copyright has been infringed? Or, you know, someone has created something that's very similar to the ideas they discussed? How often do they actually decide to take the legal, you know, sort of polls? What other options are there for them? Like, do they have to sort of go and fight it in court? Can they do something else.
20:46
So fighting in court, especially in the High Court, is expensive.
20:50
It's not something that every writer has either the ability to or the inclination to do, frankly, because it's not as if success is guaranteed. So you don't want to,
21:02
you know, spend a lot of money on something that's not a short thing.
21:06
Which is why in a lot of those cases, the writers will go to the dispute settlement committee of the screenwriters Association.
21:14
And you will, they have a whole system of submitting a complaint, and the body will analyze it and will present a report. And so many times what happens is, if the dispute settlement committee gives an gives a decision in your favor in the favor of the writer saying that, yes, your work has been copied, then that writer can approach the High Court
21:39
and present this report to the high court and say that the expert body, which is part of my trade and industry, has evaluated both these scripts has evaluated my allegations, and found in my favor. So that's what that has to and that is something that carries a lot of weight in the code. So But then, in that instance, typically, it is too late to try and fight for an injunction to stop the release of the movie. So then that is something that becomes a sued for damages. So whoever, whichever writers do this,
22:15
my advice to them is that
22:18
keep aside a set of money for those lawyers, let that fight, go on and move on with your life. Don't Don't make this litigation your life.
22:27
Think of it as an investment. And we'll grow one day and maybe maybe give you a bonanza someday, because I know so many people who after fighting for years, then get a payout. That also happens. But you shouldn't sort of put your life on hold and say no, I'm not a writer. Normally, I'm a litigant and make that your life. That is.
22:46
Yeah, that's great advice you were also working with for a while with the screenwriters Association on these kinds of disputes. Right? Yeah, it was.
22:57
Yeah, can you give me a couple of you know, stories or anecdotes of what kinds of disputes were coming to the association?
23:05
Oh, it will be disputes, where writer, for example, has been engaged by a producer to write a thing and then halfway through gets fired? And the question is, what is his view in terms of credit, what is his do in terms of money, now that he's been fired halfway through. So that's something that the dispute settlement committee would evaluate.
23:23
Sometimes it would be outright cases of infringement. Where, or like the example that you gave where the writer feels that I gave an idea to a producer, and now he's making it without me. And the third would be a category of cases that mostly in my view, are without merit, where a writer sees a movie that's been released, or this car trailer has come out. And he'll say, wait a minute, this looks like exactly something I have in my drawer, and then you'll open this drawer, and you'll find something and say, you've copied this, you've copied this. Those are typically not they don't have much merit those cases in my experience.
24:01
Yeah. I don't know. It's very interesting, because actually, I don't think there is a body like that for books, the way that this association works to sort of solve these disputes, these kinds of disputes. You know, there's, I think, no sort of Industry Association as a whole that brings everything together, that can resolve these kinds of disputes within the publishing world, you know, so it's, I think what this conversation is also stressing is how important that kind of some sort of governance system is within our industry to look at, you know, to make also writers feel in a way, like there will be a forum for them to be heard, because again, right, like you said, going, you know, actually filing a case in court is very expensive. Already, compared to even screenwriters, book writers don't really make that much money even if the book is out it sort of the royalties that they get the advances that they get are not that high, so them trying to fight for that book or for COP
25:00
We get infringement for something like that. And court is just another thing altogether.
25:05
Have you ever come across a, you know, scenario whether with the screenwriters association or you know, with the legal cases that you do where, say a book is out, right, like so book is published, and then the author of the book that in another format, you know, say, on film, there seem to be very heavy copyright infringement.
25:28
That in different formats, that I share that that doesn't happen so much, actually. Because what happens? Once a work is published as a book now, it's probably like the highest level of protection available to you. Which is why in the south, a lot of screenwriters publish their books as books first.
25:47
Where so that nobody can dispute whether I give it to you whether I actually rotate or not, because you're here is a book with my name on it. So anytime something like this happens, also, you have to understand once there's a book out, there's somebody vastly more powerful than the writer who gets to sit at the table. And that is the publisher. Yeah, so if some, if some producer tries to steal a publishers book, that publisher is not going to sit by it. Yeah. Right. He, he's, he's gonna want his, his, his piece of the pie. So So now and so, which is why that happens very rarely. Because producers might mind willingly stomp over and unknown writer, they're not going to stomp over Penguin Random House.
26:29
That is very true. What if it's an indie publisher, though that themselves don't have money. And it's like a local publisher local book, or, for example, say the book was published in, you know, the book was written in Canada, right? And then the movie is in Hindi, in a way where there is a chance, however, smaller back that they will not even see the movie or will not even realize that there are the similarities are there has been copied.
26:58
I think this is the kind of thing that would that used to happen earlier. But now that information flows so quickly, any producer would be would take 10 times before copying even original language book. Because proving the case against you so easy, once an earlier work has been published, and it's in public domain, then defending those similarities is next to impossible.
27:28
Assuming assuming the similarities reached that, that threshold, it becomes very, very difficult to sort of just talk it off and say, Oh, I came up with the same idea. So I have not seen that happen. And also, the other thing is, that is not that expensive auction books.
27:46
Yeah. So they can just do it the proper way. And just the proper way. Blacks and the budget of a film is over 1015 clothing for small film. So you might as well just, yeah, so this is a very measly amount compared to the full film budget. So they might as well option that makes a lot of sense. And, you know, in terms of the law itself, how creative friendly is the law as a whole, you know, is it sort of leaning towards creators because the fact that the threshold is so high? Is that something in your opinion, is a good thing is a bad thing? Like how does it play out for, you know, creators who are very concerned and anxious about your work constantly being copied or so
28:28
the threshold being high is not something that's unique to India, copyright law is universal. It is there are there are international conventions that have been ratified by all countries. So corporate law kinda looks the same in all countries. So the threshold that we follow the threshold that the whole world follows, so, we are not overly friendly or unfriendly.
28:49
But what we have done is we have had some recent amendments,
28:54
that was championed by by people like Mr. Javed Akhtar and Mr. Andrew magically through parliament where they ensured a few things that till now,
29:06
we're not guaranteed number one, like loyalty will always be given to the author of a work irrespective of a clause in the agreement that may say that there is no royalty payable. So even if you have a clause that says that whatever I paid, the writer is everything, and he will get no royalties after this. The courts will read it as if there is no such clause. Okay. Right. So so that is a very, that's a very powerful, very important, like sort of change. I didn't even realize there were auto contracts that
29:41
say that have a clause like that saying that there is no more royalties payable. The advance is basically all that they get will do it. Because I mean, it all depends on on what kind of a contract you draft No. So many times writers of original work will get the contract off the writer of an adage
30:00
See, you know, so if I'm for I'll give you an example, if I'm, if I have a contract that I signed with the writers who work in my agency, obviously, that contract will say that whatever creative output you give, does not belong to you, it belongs to the client. Right? So if I'm on an assignment for Pepsi, and I write Adel manga more, I don't own that. Right.
30:27
Right. And he Oh, and the pen Pepsi owns it from the get go, in this example. So we see a lot of these exploitative contracts, where this kind of a contract will be placed in front of a writer who's creating original work.
30:44
And anything you write anything you create is owned by the client. And you have no rights, you have no rights.
30:52
So, so the amendments to the law now fix those kinds of situations. The other thing that it fixes is with an assignment. So if if I've created a work and I assign my assign the rights in it to you.
31:10
An assignment is basically a complete wholesale transfer in perpetuity, have all my rights in it. Okay, so if I write a screenplay, I have to assign it to my producer. And that's how that's what gives our producer the right to go and turn it into a movie.
31:23
Okay, section 19 Four, which was introduced in the Copyright Act says that
31:32
unless otherwise specified,
31:35
the person to whom I'm giving my assignment of my work, has to utilize it within a period of one year or else it comes back to me.
31:44
Okay.
31:46
After you assign it to me, I just shelve it, and then I just never use it again. And you don't own the rights either. And I don't do anything with it either. And it just never cease. That's exactly right. That's exactly right. Then what however, however, is something you should know that that this this provision, or this protection is something that you can contract out of. So you can say that I know that this section protects me, but between us I'm willing to give that up, unlike royalty, which can be given up this thing can be going up. But then what it does is it allows the writers to have some bargaining power and tell the producer ketiga exile may be too short, but Iboga Kana tinsel pazza Okay, so, you know, like you give the example of the royalties clause that some sort of contracts have, can you tell me any other things, you know, specific clauses or specific word wordings or verbiage in contracts that writers should kind of, you know, be aware of or look for as red flags? Okay. The biggest red flag I would say is the words work for hire.
32:55
If you are the author of a creative work that is original to you, and you're handing over a completed or semi mostly completed work to a publisher, and if you see those words work for hire, that means a producer is trying to call him he's he's trying to pull a fast one on you.
33:13
Okay, because what does work for me? What is work for hire the copywriter I described who came up with this, Gabriel manga. He's
33:24
okay, so so he is somebody who is providing his creative services for a fee.
33:31
Right, almost like a salaried or a contracted employee. Yeah. And, and the term of art in in, in our profession is a contract of service versus a contract for service. Okay. A contract for services is what a writer and an ad agency does.
33:51
He has a contract under which he provides services. Okay, a contract, a contract of service is different. A contract of service is when I own the work, and I'm just giving it to you. I own a document or manuscript, and I am giving it to you under an assignment. So I never worked for you. I was never your employee. If you don't, you can't fire me. Right.
34:22
It's like, think of it as the same thing as buying a physical piece of property. Right? Like if I it's like walking into an Apple Store, buying a phone, walking out with it. And then when Apple asked you to pay the money, you save money, go to hell and you're fired. I didn't like the way you did it. Like but you have the phone. You can go on and tell me I'm fired. So So that's so that's, that's what a contract of assignment is. It's, I used to have it. Now you have it. That will give me the money. If you don't give me the money, you don't have it. You got to give it back. As simple
35:00
is that if you see work for hire, it means. So those are contracts. And this we see, quite commonly, less. So now, because there's a minimum basic contract that we've drafted with the help of the screenwriters Association, you can go to their website and download it. And you can see the kind of the clauses that you should have in your contract.
35:19
So it happens less now. But earlier, it was very common for a producer to meet a writer, like idea that the writers given read the whole script, like the whole script, and then give a contract that says, I, as the producer had an idea that why not make a movie like this, I came to know that you are a writer, you told me that you'd be very happy to write my idea. Therefore, I'm giving you a salary. Now go write my idea. Right. Now, if this car if this writer writes, sign such an agreement, despite knowing fully well that all the recitals are lies, then this writer is his own worst enemy, nobody can help him.
36:00
Because he has, he has he has put a signature to a document that is false. And then quote can help him. So the solution is don't don't sign something that's not true.
36:12
That's a good one. Anything else other like, like work for hire any other words or red flags that writers should look for? I think the work for hire is really the most important one, because what that what that does is if you see that word, it will mean that you will see 10 Other clauses that follow logically from that and all those 10 are wrong. For example, if you see a work for hire, you will see a termination clause that says you can be fired and the script will belong to the to the producer
36:42
will see that you can be fired, and then you the movie may be made and your name will never be put on it. So all those illogical exploitative clauses are downstream of work for hire. Whereas if you go into the other category of contract, which is a contract of assignment, then all those follow on clauses will generally be absent. Right? It's a different category. So
37:06
I mean, beyond that, now, these people should really consult a lawyer to see what exactly is exchanged. But this is a red flag. The words work for hire black services, the termination where you can no longer be recognized as a writer, you know, those are the red flags. So those are very important sort of red flags to know. I think, you know, that's why I was kind of asking you because for a lot of writers, they kind of don't know where to even start getting advice from a lawyer, what kind of even basic things to start looking for, or what kind of red flags exist. So this can be a starting point for them to think about even the fact that when they when someone sends a contract, they need to look for red flags, or they need to see and actually search is there you know, is this contract fair? To me? I think that question of fairness, right? Unless that comes to them from within saying, I need to think about is this fair for me? Is this your normal compensating me for actually the amount of work I'm doing? We'll get a lot of writers exactly like you mentioned, who will end up signing that exploited a contract? And then there is nothing that can be done if they realize later, right? Yeah, no, but But now, now, I don't think any any person who's literate enough to be a writer, savvy enough to find producers has really any excuse if he doesn't do his due diligence on the contract. The screenwriters Association is a union, which provides incredible services for writers and they have an in house lawyer who is there to vet contracts for you. They have a they have a model contract on their website, they have the thing I told you earlier about what you should send on emails to to protect yourself and this is shared in confidence. Those words are there on the websites, you can go there literally copy paste it and make it the footer of your every email. So don't do these steps, then that's on you
38:57
know what I was hoping for, you know, book writers or other kinds of writers or creators who don't have that kind of support, you know, specifically that the screenwriters association is giving sorry, I mean, I'm sorry if I come across as as too harsh in this, but I don't know where it's coming from after, after now, 14 years of being a lawyer. I'm frankly annoying a lot of writers as close personal friends. I am a little bit now tired of these arguments keep I am to an artist, you're not if you're an artist, you be a businessman, right? You have a valuable product. You please think of yourself as a businessman, that's when somebody will deal with you that way. You think of yourself as this artists then then you will be treated that way, you know? Yeah, no, I 100% agree. You know, there's this whole discourse about or artists or writers, you know, it's like what they are lost in their own world and they're introverts and they can only do art and they can't think of anything else or they shouldn't even like from
40:00
Um, I don't know, centuries ago artists have always other than doing cave paintings. Artists have always created art for money, right? Like, whether it's even these big painters, whatever. They had patrons, right. They had people who were paying them when they were clearly providing services for
40:19
me. Those were feudal times. Now we are living in a modern in a modern democracy with rule of law. You don't need to be like this. Have you heard of script notes? The podcast of Craig Mazin? No, I would highly recommend everybody. I mean, firstly, they they talk a lot about writing, which is great. Craig Mazin is the guy who created Last of Us, which is on HBO right now. He created. So he's basically a phenomenal writer, and he is a champion of workers rights. And on their podcast, they keep talking about that. He's the one who leads them on strikes. He's the one who negotiates with, with the producers. So So don't tell me you can't be an artist and a businessman and a champion. You can be that. And in the West, if you're trying to be the best, there are examples of people who are like that. Yeah, definitely.