From tricky Release Form Submissions to copyrights, NDA to contract, consideration, the media and entertainment law professional has proved to be a guiding light for screenwriters at Screenwriters Association and beyond.
By Mayur Lookhar
Mankind is grappling with its worst crisis since World War II. The only hope is taking guard against the deadly Coronavirus. The vaccines serving as a great shield against it.
Whilst most such pandemic are often temporary in nature, but life poses many challenges, risks time and again. Vaccines save lives, in the virtual world, the anti-virus software act like a firewall against hacking. Creativity, too, has to pass many hurdles before a dream turns into reality. For screenwriters, lyric writers, registering an intellectual property is just the start of a long struggle. Rookie writers, with no godfathers/godmothers, find it more tough. The journey to pitching content begins with Release Form Submission, some strange clauses that threaten to dampen their spirits. It’s in these times, that a legal eagle can show you the way. His/her role doesn’t end with it. Copyright, credit, consideration disputes, creativity is riddled with such issues.
In the past, a screenwriter waged a lone battle, but a few years ago Screenwriters Association (SWA) turned a new corner when it pledged legal aid to writers in copyright and other disputes.
Advocate Anamika Jha, a young lawyer from Patna, was roped in to lead its legal team. The legal consultation often comes free of cost. Jha has been sensitising creative people on the dos and don’ts pertaining to the legal aspects of their craft. And it’s not just in the capacity as Legal officer SWA, but the young woman has been generous enough to share her wisdom through her personal blog www.attorneyforcreators.com .
Speaking exclusively to Beyond Bollywood, Jha enlightened budding screenwriters on the legal hurdles that they are likely to encounter in the entertainment industry. The media and entertainment law professional has added a disclaimer though – views expressed in this interview are strictly personal and does not represent the views of the organization she is part of.
As an entertainment journalist, it’s perhaps odd to interview someone at 10 am. Now the interviewee is likely to be a non-celebrity, but having said that, it’s also odd to interview lawyers at this hour. Is it the pandemic that has altered schedule for all, including legal eagles?
Yeah, that is correct. It’s this work-from-home [situation] that has given us this liberty. Otherwise, we would have been heading to our office, or court at this hour. We are having digital hearings [court proceedings] but that only for essential cases – example bail application or Covid-19 related. There might be very few non-essential cases that are being heard digitally.
Before we talk about your association with SWA, could you please tell our readers about your background?
I have done my Law from Symbiosis Law School, Noida [Uttar Pradesh]. I completed my law in 2018. Thereafter, I worked in a law firm for some time, and then shifted to an in-house role in Dish TV and later in Digispice. Then I came to Mumbai to work as a legal officer with SWA. I’m working here since October 2019.
Is it a full-time assignment or on consultancy basis? Why did you choose to align with SWA?
It is a full-time [appointment]. I am fully dedicated to SWA.
I was always inclined towards Copyright Law. It is related to creative people. I found it interesting. Whilst working in a law firm, I worked on a big litigation related to copyright. When I saw the vacancy at SWA – to lead their legal department, I found it a very good opportunity through which I can directly work with people associated with the film industry and get further exposure in media and entertainment law. The monetary compensation is good too. Here I am able to help the most vulnerable as well as the most intelligent strata of Bollywood people. I found this interesting and rewarding as well.
Can you explain to our readers that how writers would need legal guidance from the moment they start pitching their registered materials?
Being aware of law and how to intermix the legal knowledge with your work is very important when it comes to screenwriters. Whatever you create, it is an intellectual property. And you have to treat it as one. Before your IPR gets transformed into a film or any audio-visual material, it is a confidential information. I see people sharing work among their peers, and they don’t even keep a track of it. Firstly, try sharing your work only with people/a production house whom you can trust. Never go and narrate. Just share it through an e-mail. In case of oral narration, do send a follow up email explaining the narrated work. Include a confidentiality disclaimer that this work is only shared for pitching purpose. When it comes to pitching, you should maintain the confidentiality of your work.
Sometimes, people share their idea frequently. They just send a logline, which includes the USP of their project. In law, idea is not protected, expression is protected under Copyright Law. If you share your idea frequently, then anyone can make a film of your work and you cannot easily protect it. Try to share a detailed synopsis. That will help you from a legal point of view.
Producers often require writers to submit their release form submission before reviewing unsolicited concepts/synopsis. What are the red flags that a budding writer should look out for in these forms?
I constantly encounter this question while working. You need to understand what is the purpose of a release form? They make you sign a release form so that tomorrow they do not receive an unsolicited work. However, it is important that release form should not become a tool to exploit. Now there are few clauses that are red flags and shouldn’t be signed at all.
The first is related to confidentially. They say that whatever you submit is ‘not in confidence’. That means they are not bound to maintain the confidentially of your work. That is a big no. Whatever you send is in confidence, it is your intellectual property.
Another clause that I find problematic is that tomorrow they might make certain work which is identical to your work. It shall be presumed that they have independently made that work and you should not have any claim over it. Come on! You cannot create an identical work without taking anything from my work. You can make a work having generic similarity, but when it comes to identical work or substantial similarity, a writer is entitled to take action against you.
Another [problematic] clause is that since you have submitted your work here, we have received an exclusive right to review it, to pitch it to different platforms, and that you [writer] shall not go to any other platform. Any release form or Non-Disclosure Agreement having an exclusivity clause should never be signed.
It’s strange as to how can producers include a clause wherein, they can reject your story idea/synopsis and yet state that they could make something similar or even identical. If you have rejected an idea/synopsis then why would you even contemplate on making a similar concept in future?
That is completely illegal. If you have rejected my work, then you cannot make anything substantially similar or identical to the work that I have submitted to you. If you want to make a work based on my submission, then you should have an agreement with me.
Now suppose we have a shared an idea on Hindustani classical music. The producer doesn’t like it and rejects it. Tomorrow another writer pitches a similar concept involving Hindustani classical music but in an altogether different way/expression. The producer hasn’t taken anything from writer A, but it has completely worked on writer B’s work. The only similarity here is the broad theme of Hindustani classic music. Thus, Writer A cannot claim that my story or my idea has been stolen. A writer here first needs to know whether s/he has a case or not.
For a young screenwriter not agreeing to these contentious clauses, does s/he run the risk of being not able to pierce into this industry?
No, I don’t see that happening. Be it any profession, your work will speak for itself. I encourage screenwriters to negotiate well with the producers. We even convince producers to agree to certain clauses favourable to writer, while negotiating. There is struggle at the beginning in any field. Ultimately, if you have good ideas and original work, then you will definitely receive a break.
I reckon both SWA, the legal team must have had discussions with the producers’ body. What’s been their stance, logic behind having such clauses in the release form?
SWA has connected with some producers and directors. We have received response from few production houses who are ready to cooperate, and even deleted some unfair clauses. However, they also presented their side. Like the example I gave before on Hindustani classical music. Producers receive lots of ideas every day. Hence, there is bound to be a generic similarity in ideas. No one has copyright over a generic concept/idea. I believe, we need to understand both sides and come to a fair document.
Are producers open to suggestions, changes advised by SWA or their legal team?
Not everyone right now, but in future there might be a case where they reply and respond. Writers, too, have to be cautious about it. You should say no to unfair clauses. The power of a union will be stronger if the member also cooperates.
There are writers who might be compelled to sign contentious clauses because of economic constraints. In case of a dispute, do these release forms, the contentious clauses stand in the court of law?
Release forms may give an upper hand to the production house, wherein they will state that this person had agreed to such terms and conditions. I would suggest that there has to be some protest from the side of the writer when you receive a release form with any unfair clause. Look if you write [raise] your concerns beforehand over some clauses, you might get some response from the producer. So, registering your protest will give strength to your case when the matter is heard before a court of law. As a SWA member, you can take the help from their legal team. Again, I say there has to be substantial similarity between your submission and the work of the producer for you to have a case. Merely signing a release form doesn’t give a blanket protection to the production house, but you need to do your due diligence and take legal help accordingly.
We cannot say that these release forms don’t have a legal standing. If you are an adult, a person of sound mind, then if any document that you sign, will work as an estoppel. So, you cannot easily go against whatever you have signed. It will always be presumed that you had signed with a sound mind, and you should adhere to it. So, even if you signed some unfair clauses in a document, you cannot say that this is not enforceable. If you can state that you were aware of the risks, you pointed out to them, and yet they didn’t agree to remove the clauses. It shall provide weight to your argument. It depends entirely upon the court whether it buys into your argument or not.
Getting producers to review your story/concept is such a huge challenge. What does a writer need to guard against if a producer likes the synopsis and then asks for the screenplay?
If possible, you can have an NDA with the producer, wherein you ask the producer to read, evaluate the script. Even If they don’t like the script, they ought to maintain the confidentially of this script. If a producer is ready to sign an NDA, then very good, otherwise you can mention in the e-mail when you are sending your script, that you [producer] liked my synopsis, and now I am sending you my full script but this is given under strict confidentiality. You can also state that the producer needs to obtain your consent if they want to share it with any platform or channel.
And if they like the screenplay, what are the things to watch out for before signing an agreement?
You need to understand the nature of your contract. Suppose you are only giving limited right, for example you give right to make only a Marathi film, but not for the Hindi. You need to clearly mention what all rights you are giving to the production house, and the rights that you are retaining for yourself. Prequel, sequel rights, duration of assignment, territory and all aspects should be clearly mentioned. The scope of the rights should be defined as per the negotiations between you and the production house. Most of the production houses want the entire rights. If this is the negotiation between the parties, then that should be mentioned in the agreement.
Consideration plays an import role. The payment break-up is very important. Some times they say that they will pay you 10 % as the signing amount, and the rest amount shall be paid at the time when the shooting will start and some portion when the film will be released. Such payment break-up is not good for the screenwriter. Suppose because of the pandemic, the shooting hasn’t begun, but as a writer, you are doing your work, and so your payment should be in that way. There can be a certain amount of payment that can come when the shooting starts. A certain amount should be paid when you submit your first draft. Similarly, when you submit your final draft, and the producers approves it, then certain amount of the consideration should be paid at the moment. After finalizing the consideration amount, it is important to identity the break-up of the payment.
What are the things that ought to be followed in shared credits?
Sometimes it is written in the contract that credit shall be provided as per the discretion of the producer. I don’t think that clause should be acceptable to the writer. Now if you have written the story, screenplay, but the other writer is writing the dialogues. It should be clearly written that the story, screenplay credit shall be given to you. If you have written the entire thing, then written by, screenplay and dialogue credit should be given to you. That promise has to be mentioned clearly in the agreement. If you don’t do that, then maybe the producer can share the credit as per his/her discretion.
Another important point is termination. In many agreements, there is a term of unilateral termination wherein a producer can terminate the agreement anytime without any notice. This is again problematic. Generally, writers work on exclusive or first priority basis. Termination can happen if there is a breach of agreement, or if your work was not up to the mark. But it should not be terminated without citing any reason.
A producer okays a screenplay, script early but then during production stage, maybe the director or someone gives creative inputs which is incorporated into the photography. What does the principal writer need to guard against in such a scenario?
This happens very frequently. Suppose another writer has contributed 30 % of the work. The principal writer should receive the first credit, without objection. This should be mentioned beforehand in the agreement that if another writer is brought on board, that you have contributed 70 per cent of the work so you should get first credit. Shared credits have to be purely on the respective contribution basis. Even in a 60-40 ratio, you should receive the first credit. Now some other person may make some small changes, for instance shifting the location to another country. That doesn’t entitle such a person for any credit. In my personal opinion, the second writer should only get credit if s/he contributes at least 30 percent to your script.
I believe legal eagles have only been part of SWA in the recent years. How successful has SWA, you been in tackling alleged plagiarism cases? What has been your observation in most such cases?
I was fascinated by the Dispute Settlement Committee [DSC] of the SWA. Before that I have never seen such an efficient mediation. This committee has elected members who are skilled mediators. I’m part of DSC as the legal mediator. If the writer has a genuine case, then DSC has been able to help them out. Not just in case of plagiarism but also in cases of non-payment, breach of contract, non-credit. For example, there was one case where a writer was promised the story as well as other credits in the agreement, but when the project came on a big platform, s/he only got screenplay credit but no story credit. That project had started streaming on that platform. When the writer approached us, DSC took cognisance of the matter, and they brought both parties on board, heard them out, and it was resolved that the platform had to edit their credit part and added the missing credit. Everything happened in a cordial manner. We hear both the sides, check into their logic, evidence and then we try to come to a conclusion.
Has there ever been a case wherein a writer has gone to court after feeling that that s/he didn’t get justice from SWA? And the court ruled in their favour?
No, I haven’t come across any such case. Look satisfaction, dissatisfaction is very subjective term. I can firmly say that there is a duly codified system set in place at SWA. We adhere to the principal of natural justice. Even if both parties don’t agree, they have always been satisfied with the process that we follow at SWA. At least in my time, I haven’t come across any case wherein anyone has had any reservation with the process.
Going forward how do you foresee things changing for writers in dealing with legal aspects to the craft?
People want to be aware of their rights. Each day I get 3-4 calls just related to legal query. I believe writer are becoming aware of their rights and that is the best part. Apart from SWA, I have also started my personal blog – www.attorneyforcreators.com – wherein I have written more than 25 articles related to rights of the creative community.
In Indian society, usually we are told to keep distance from doctors, police, lawyers. Often you approach a lawyer, and they would demand money for even a small issue. But here you have been generous enough in creating awareness through blogs all without any money.
I can relate to what you say. I get comments on my LinkedIn posts complimenting me for the blogs, but they hope that they never have to encounter legal issues themselves. I’m that kind of a lawyer who is telling you how to avoid legal hassles, how you can be cautious from the very first stage. If you are legally aware then it mitigates the possibility of any litigation. I feel engaging with lawyer, prior to getting into any litigation will help you avoid litigation per se.
I don’t intend to be personal, but I wonder do non-legal persons still fear swiping right to lawyers on dating apps?
[laughs]. I don’t know how right this is but yes, people do fear lawyers. For instance, a landlord may get scared to give you a house, people might not pick you on dating apps. But I always say it is wise to keep a lawyer near you. If a lawyer is your romantic interest, then you are going to avoid most of your problems. The tip of dating a lawyer is, “argue less, the rest all will be fine”!
Have you ever had such an experience on a dating app?
[Pauses]. No, I don’t have such experience but my friends do. They share good stories of dating involving a lawyer and a non-lawyer.
What is your personal status?
Right now, I am not married. When I’m in Mumbai, I live alone. Being a lawyer, you have long working hours. My parents often complain that I don’t answer their calls. This pandemic has given me the chance to stay with my family for a longer period. This is the only good thing about the pandemic.