Filmmaker-2-Filmmaker: Tip 3 - Sweat The Business Stuff

Have you seen Night of the Living Dead?  Even if you haven't, you are probably aware of its influence.  The 1968 George Romero horror film is the progenitor of every modern zombie trope; the shambling, the flesh-eating, the brain-lust.  Dawn of the Dead, 28 Days Later, Resident Evil, World War Z, the list of imitators and followers extends to infinity.  Everything you know about zombies came from this film.  On top of that, the film is great.  It was terrifying in a way that horror films just weren't until then.  The black and white cinematography is among the most beautiful ever put on film.  And forty-four years later, the film is still teaching us... about copyright?

Before the film was released, it was originally titled Night of the Flesh Eaters, and like all movies of it s day, there was a copyright mark next to the title (that famous little © followed by a date).  But when the title was changed to Night of the Living Dead, the copyright mark was negligently removed.  Based on the copyright law of the time, the absence of the © rendered the film's copyright invalid and the movie immediately entered the public domain.  That meant that anyone could make money off the movie and Romero couldn't do anything about it.  Today, the film is sold on home video by a number of different distributors and is available to view or download free on Hulu and YouTube.

Night isn't the only movie currently in the public domain, but it's rare to see a film on that list that isn't from the 20s, 30s, and 40s.  Thankfully, that law became defunct in 1988 and today artists are no longer required to place the © mark on their work in order to maintain the copyright, although I still recommend doing it (For information on how to protect your copyright, please see my previous post on how and why to register).  Romero has since gone on to make seven million zombie films (only a slight exaggeration), and he owns the copyright to many of them.

So why am I writing about this?  First, because it's an awesome anecdote and an appropriate one for the first day of October.  Second, because it functions as a cautionary tale for every artist out there.  It's tempting to say "I'll take care of the art now and worry about the business stuff later" because as artists, that's where our passion lies.  Our instinct says that if the art is good enough, the business stuff will just fall into place on its own.  Of course, that isn't the reality.  I can attest to that from personal experience...people will try to take advantage of you, either by design or accident.  No one is going to protect your work for you, which is why you need to sweat the business stuff from the moment you begin a project until the moment you deliver it.  It may not be fun to labor over copyright applications or contracts, but that's how you prevent the world from gaining unfettered access to your work (and let's face it, if you're an artist your work isn't just a living, it is an extension of you).  To Romero, the image of zombies in a field was the most terrifying thing he could think of.  To me, it's the idea that because of a little negligence, someone else can make money off your work.

If you're an artist or a filmmaker, you need to condition yourself to take the business side seriously from the beginning.  Don't leave it to the end and certainly don't leave it entirely in the care of another.  Here are some things you should be asking yourself:

  1. Is my original work registered with the U.S. Copyright Office?  If not, it should be.
  2. Regardless of whether I registered my copyright, did I put ©, the date of publication, and my name on the work?  If not, I should.
  3. Do I know what my value is?  If not, I should figure it out and stick by it.
  4. Do I have a contract?  If not, I should have one.  It doesn't need to be long or lawyer-y.  It just has to state the terms.  It doesn't even have to be drafted by a lawyer (although it helps).
  5. If I'm pitching original ideas, did I have people sign non-disclosure agreements?  I should.
  6. Do I own the copyright or does my employer?  This is called work-for-hire and the general rule is that if you are hired to do a creative work for someone, the employer, not you, owns the copyright (this is a bigger issue and I'll tackle it in a future post).
  7. Did I double and triple check all my papers (including papers that I had other people sign and papers that other people had me sign)?

Bottom line: pay attention to every little particular because the devil - or in this case, the zombies - are in the details.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA