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Using the intellectual property of others? Permission is the key!

In National Lampoon’s Animal House, several imposing gents ask a group of scared young frat boys, [in a deep imposing voice], “May we dance with your dates?”  The would-be dancers had the class to ask politely before holding close the girls that seemingly belonged to others.

That’s a good lesson – don’t take what belongs to others, at least without asking first. That’s FIRST.

I recently read a funny and poignant coming of age script that had been years in the making, written and re-written by a very talented aspiring screenwriter.  The script very skillfully wrote into the plot and dialog popular songs from the period in which the story was set, songs directly relevant to the journey and experience of the characters.

Characters would, for example, sing along to the music playing on the radio, and would comment on the song or the sage wisdom of the lyrics. These song references were woven right into the plot and dialog, and were therefore integral to many scenes, and setting the tone of those scenes; imagine the Queen sing-along scene from Wayne’s World – perfect integration, all setting era, tone, and character – in a single hilarious moment.

There was only one problem; the writer hadn’t gotten licenses or permissions for the integrated, copyright protected songs.  While the written scenes were technically violations of the songs copyrights, incorporation into the script isn’t the truly big problem.

That will come when the writer, having re-written and polished the script to a brilliant shine, will shop the script. Eventually someone will ask to see the clearances for the integrated songs – and that’s when the other shoe will drop.

It is highly unlikely that a producer will agree to buy the script without one of two things happening: one, licenses or permissions are obtained for each of the songs – therefore clearing the way for each of the songs to be used if the movie moves into production; or two, the script will have to be rewritten with “cleared” songs. Each avenue has it’s own problems, some financial, some practical and logistical.

The problem with getting licenses for established songs, and songs with enough popularity and recognition to connect with the audience and add to a scene, is that it will cost money – likely many thousands of dollars. The writer likely doesn’t want to (or can’t afford to) invest many thousands of dollars into the song elements of the script PRIOR to the script being optioned or sold. And a would-be producer is unlikely to front that money for a script the producer doesn’t yet control. And there’s the possibility that licenses for the use of extremely popular songs simply can’t be had.

The rewrite option offers little relief. The writer must find new songs that adequately substitute for those originally used – and must still get licenses. But even if possible, the writer faces hours, if not weeks of rewrites, in the hopes that the revised draft equals the earlier effort.

So what is a writer to do?

Don’t write into your script any copyright protected elements for which you do not have the rights – in writing. Just don’t – because there’s too great a chance your exercise will end in futility.

The exception is the spec TV script, which falls into a grey area of tacit permission. While it is technically a copyright violation to write a script incorporating or derived from a copyright protected show, characters, plot lines, etc., it is industry practice when such scripts are used as writing samples within the industry.

The best option is to write your script with only general references to music included. Then, when your brilliant script is optioned or sold, you and your production team can collaborate on selecting the best music to fit the story – and which can be obtained, considering resources, connections, budget, etc.

It may even be that the intended star of the flick,  that hot up-and-coming actor/rock star/juggling puppeteer will contribute song material written just for the project.

But above all, never, ever, dance with someone else’s date – without getting permission. FIRST.