Thursday, August 20, 2015


When pitching a project, whether a TV program or game show concept, a video game idea, a proposal for a book or magazine article or circulating a demo of your song, it is a good idea to file a copyright registration on it before making it public. It is also important to create a paper trail in order to keep track of where and to whom your work is submitted. In the event that you someday decide that someone stole your work or "infringed" your copyright you will need to prove two things in order to win a copyright infringement lawsuit: (1) access to your work and (2) substantial similarity between your work and the allegedly infringing work.

"Substantial similarity" is a legal term of art which compares one work to another to decide if they are too similar or so similar that the connection is strikingly similar. However, most cases are thrown out before the issue of substantial similarity is proven because they fail to show access.  The threshold of "access" basically means that the person who you think infringed your copyright actually had access to your work before they created or developed their work. In other words, unless your work was already widely accessible (e.g., a Top 10 hit record or a website broadcast show) you are going to have to show that the alleged infringer somehow had access to your work.

Although you can prepare a confidentiality or non-disclosure agreement, it is unlikely that most people you contact will be willing to sign it in advance. In fact, some of the bigger media corporations have a policy whereby they insist that before they will accept or review any submission you sign a document waiving any claims you might later have against them (although their position is they might already be working on a similar idea and do not want to be sued such agreements must still be approached with great caution as they tend to be ambiguous and overly broad in scope).

I am not suggesting that you plan a lawsuit, just that you be prepared in case someone infringes your work. You can create a paper trail by following these procedures:

- keep a journal or daily diary of who you give or send your work to, and start a correspondence file of your own keeping copies of all your cover letters (and even the rejection letters you might receive as they also show access).

- mark all submitted materials with the appropriate copyright notices.

- if you are lucky enough to get an appointment to present your work in person, write a self-serving letter to confirm the meeting and retain a copy of the letter for your file.

- if there is a visitor's log available, upon arrival sign in and note the date and time of arrival.

- take note who is in attendance at the meeting and their positions with the company.

Again, I am not suggesting that you start any frivolous lawsuits but it can be an unscrupulous business and you should be prepared for every eventuality. It is good practice to get in the habit of keeping a paper trail in the ordinary course of doing your business. It just might come in handy if something goes wrong somewhere down the line.

Wallace Collins is an entertainment and intellectual property lawyer with more than 30 years of experience based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656;