Robin Hood And The Much Needed Change In Copyright Policy

robin

A few years ago, Ridley Scott decided to direct a big budget Robin Hood film from an original script by Ethan Reiff and Cyrus Voris. The script was called Nottingham and it was a particularly unique take on the Robin Hood mythos: it was to be a medieval police procedural where the protagonist, the Sheriff of Nottingham, used forensic analysis and new investigation techniques to hunt down Robin (my understanding was that Robin would've been a fairly minor role, played almost like a movie monster). Well that's new! The take on the story wowed Scott and when he got involved, he hired writer Brian Helgeland to do a page-one rewrite of the script... because in Hollywood, the best way to show you love and appreciate someone's work is to scrap it altogether and replace it wholesale with something else. Anyway, the new collaboration yielded an even more intriguing concept: what if the Sheriff and Robin Hood were the same person but didn't know it?!! The story would be a Fight Club-esque exploration of personality disorders couched in the language of a medieval action film.

Like 'em or not, both of those concepts were definitely unique takes on the subject matter. But somewhere between the numerous rewrites and day one of principal photography, the story lost these elements and became 2010's Robin Hood, a fairly sober three hour origin story about the rights of landowners, following a middle-aged Robin as he tried to get King John to sign the Magna Carta.  Snore. The Sheriff himself showed up for about five minutes and was played as a bumbling ass.

Sadly, we'll probably never see Nottingham since the copyright to that script is now owned by Universal Pictures and they'll never let it out of their death grip. In Hollywood, when a writer pens a spec script (that is, an original, non-commissioned, unsolicited screenplay), the studio will always acquire the copyright from the writer before the script goes in front of the cameras. There are two ways this can happen: the first is through an "option." The studio pays the writer a nominal fee for the exclusive right to turn that script into a film for a stated period of time. The writer will retain ownership over the copyright until the script goes into production, at which point the studio will buy it outright (as always, I'm speaking in generalities and the specifics of each deal will depend on a number of different factors, such as the writer's reputation, the studio's negotiating tactics, etc). The second way is that the studio bypasses the option and buys the script directly from the writer.

Either way, the copyright eventually passes to the studio, and the studios tend not to be shy about exercising complete dominion over the work. They can shelve the script entirely or rewrite it from page one, changing literally everything that makes that script distinctive: the title, character names, thematic subtext, you name it. Even if the original writer is kept on board to do those rewrites, he is no longer working on his own property. He's just a hired gun and has no say over the changes demanded by the studio. Imagine getting fired from your own script because you didn't like the changes being made to it and you have a sense of how F'd up Hollywood can be sometimes. And this kind of thing happens all the time, where the final film bears so little resemblance to the original work that it becomes a functionally different entity altogether. And the saddest part is that these original screenplays languish forever in dusty studio vaults, never to be seen or heard from again.

So I'm 500 words into this essay and I haven't even stated why I'm writing it. Well honestly, I'm a film fan and I want to see Nottingham, which means that I'd like to see Reiff and Voris get another crack at having their script made. The fact that this will never happen is a creative travesty and I personally believe it violates the spirit of copyright. The protections given to copyright holders in the Constitution weren't meant to give them unassailable right to prevent others from using their work. Sure, there were protections against infringement, but the real purpose of the law was to promote artistic progress for the betterment of society, not for individual profit. Article I, Section 8 of the U.S. Constitution reads that:

“Congress shall have the power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Just check out Title 17, Chapter 1 of the U.S. Copyright Law to see what I'm talking about. There are whole species of escape hatches and exceptions built into the law that are designed to give artists leeway in using and relying on the works of others.  Fair use is a great and popular example of that.  In other words, the "exclusive rights" given to copyright holders under the law aren't so exclusive when you step back and look at the law in its entirety. But over time, the copyright policy in this country shifted away from innovation for the greater good to favor the copyright holder, which in many cases tend to be giant corporations. These corporate copyright holders are granted a wide latitude when protecting their work, often at the expense of individual artists. Hell, just this past week the new Copyright Alert System went into effect - a system intended to prevent online piracy of copyrighted works. Now fighting piracy is a decent (if not noble) intention, but this new law was backed by the RIAA, an organization that spent 10 years suing teenagers and dead people for downloading music from peer-to-peer sites, so you have to wonder what their motivations truly are. Just a small example: as a result of an RIAA lawsuit, Joel Tenenbaum of Massachusetts owes the record companies $675,000 for downloading 22 songs.

I'm on record saying that this type of one-sided treatment needs to stop, which is why I think the copyright laws in the country should be revised to better reflect the needs of individual artists. In particular, I would support a change that would permit copyright to automatically revert back to the original author after a certain period of time - say 10 years - if it went unused or was otherwise changed to such a degree that it could no longer be considered a derivate work. In practice, this system would allow the studio to use the screenplay it had just purchased and try to make it into a film. If the script underwent dramatic changes (as with Nottingham), the original script could revert back to the screenwriters, who could then have another chance to make the film they envisioned.

I'm sure there are lots of kinks to work out with the change I've envisioned; namely, how to enforce the automatic reversion, determining what is considered "use" of the material, and how continuous that usage must be over the 10 year period, but I think this is a conversation worth having. There's no reason why Nottingham and Robin Hood can't co-exist. Especially in light of the fact that A) Robin Hood bombed, and B) a revisionist take on the material favoring the Sheriff as a medieval detective could have enormous franchise potential. If Universal doesn't want a piece of that pie, there's no reason it has to throw the entire thing in the trash.

[Author's note: I realize that I've posted two entries in a 3 week period bagging on Ridley Scott films, but I'm actually a big fan. I think Kingdom of Heaven is a masterpiece.]

Greg Kanaan

The [Legal] Artist, Boston, MA, USA