The strike is only nominally “over”.

Software is a strange beast, and I find that most attempts at analogies to software don’t quite fit. But one thing is for sure, software development is a creative endeavor, and Microsoft would be equally as crippled if all their programmers quit as Hollywood was hurt by the writer’s strike.

Thanks for responding. I guess we have to agree to disagree on the effect of the belt and suspenders contractual language. Litigants argue things in the alternative all the time. Contracts prepare for alternative contingencies all the time. And since there’s no lawyer in the world who can be absolutely sure how contractual language will be interpreted, the fact that the contract provides for two alternative interpretations doesn’t undermine the language’s validity as to alternative 2 should alternative 1 legally fail. And if the contract provides for transfer of the entire copyright, then all of those rights you question belong to the studio for 35 years at least.

And I also think we have to agree to disagree on the impact of the derivative works exception. That means the movie studios would own not only the finished motion picture, but all drafts based on the original draft, all other works based on the motion picture (tv series or coloring books, for example). All of the derivative works in the market at the time termination occurs are marketed under the studio’s brand, etc. And finally, the time between issuance of the termination notice and the actual termination can be as long as ten years, so in the intervening time period the studio can flood the market with derivative works (all of which it would own even after the termination). This suggests that a competing remake will have a hard time competing on the marketing front. Also, the competing remake will have to take material only from the original draft and not based on material found in subsequent drafts or in the completed motion picture. Either the first draft will have to be so complete that only minimal edits will have to be done in subsequent drafts, or parts of the remake will need to be very far removed from the first movie and audience recognition may suffer as a result.

I agree with you that some copyrights may have a very long life–that was not what I meant to insinuate. And I think we also agree that the actual individuals who do the creating deserve better than the short end of the stick in favor of corporate interests. At the same time, the premise of your essay is that the writer’s strike was about something more than money. Respectfully, I disagree. Termination is still an issue, as the case involving the Siegel heirs illustrates (which occurred outside of the context of the strike). And what the writers won was additional income from residuals on derivative works, which aren’t subject to termination. So, maybe the strike was about money, maybe it should have been about money, and maybe the writers are better off for it.

“The creative force behind Windows is Microsoft not Microsoft’s programmers whereas the creative force behind an original film or TV show is the writer and not the company that bought it.”

Specious claim. Microsoft may set the coding schedule but the actual feel of the program is definitely a creative enterprise controlled by the programmer. Go ask a mac fanboy.

This guy’s article gets to details, which is wrong. This whole copyright paradox comes down to the broken idea that you can control creativity. Big media did it for awhile and the party’s ending – and they are not happy about it. Lessig – you even talk about it. 1000 years ago people sat around fires and trading oral histories and danced to music they made. We are just slowly returning to that distribution method today.

http://artfulwriter.com/?p=125

The Big Kids are losing ranks,
and they’re shamelessly using the very same slogan that really should have been copyrighted during the writers’ strike. Not that that would matter.

This is Matt Prager. To respond to a few of your points:

I think boots-and-suspenders would end up being tricky for the studios as there’s a fairly simple argument to be made that a studio – with its battlion of attorneys – should know whether something is work-for-hire or not. That knowledge makes boots-and-suspenders border on, if not fraud, then something that kind of smells like it. Also, there’s the issue of what, exactly was exchanged. If I sell a screenplay to a studio, I’m obviously giving them the right to make and distribute a movie. But am I giving them the right to sell it on DVD? To stream it? To air it on HBO? To make a theme park ride out of it? How about to make a sequel out of it? Or a TV series? Or a videogame? My belief is that, were one of these contracts to come before a court, boots-and-suspenders would severely curtail the infinite copying and distribution rights studios currently have under their unenforceable work-for-hire clauses.

As for your point about termination. True, 35 years doesn’t help a writer today. And, yes, studios would still own the derivative work they’d created. But to use a tangible example, THE STING was released in 1973, meaning it’s in its termination phase. The writer (David S. Ward) could terminate his copyright and sell remake rights to THE STING to some other studio. He could sell rights to have a STING casino in Las Vegas or do a TV series of THE STING etc. etc. In other words, THE STING’S age doesn’t make it valueless in the market.

And as for whether or not a copyright is just a dusty memory 35 years later, take that up with the Siegel family and the SUPERMAN copyright case . Also, something could have been written and made 35 years ago to no fanfare because the script’s time hadn’t come yet. Think of the musical CHICAGO which was a flop when it first came out in the 70s, for example. There are, I think, plenty of reasons for studios to fear copyright termination – creative works can have long afterlives.

The studios and networks have begun to colonize the internet (for example) here:
http://www.hulu.com/browse/alphabetical/movies

And
There is a twilight dimension beyond those which are commonly known to the general public,
wherein a few elite writers and studios live quite happily together, here’s one:
http://artfulwriter.com/?p=125

The internet affords those writers an alternate means to distribute products derived from the blueprints they create. And the internet is in jeopardy of falling under the pervasive control of an ISP cartel which is already suspected of operating un-transparently to the detriment of content that competes with that which ISPs prefer.

Writers seem to have little to say on this subject. Their silence will remain mysterious until a wealth of newly-produced content makes its presence felt in regions of the media universe separate from the old.

Having attempted to read the current Minimum Business Agreement, I believe that the future transparent relationships between content creator, producer and distributor will “brand” consumer interest and loyalty far more effectively than a studio logo. I also believe that consumer boycott of old-media-studio product is an infinitely more effective means to dismantle the engines of tyranny. And that the most fundamental relationship, between storyteller and audience, has survived the Twentieth Century.

The problem with my vision of the very near future is that writers haven’t yet addressed this topic, and they haven’t directly and transparently addressed their public…yet.