BLACK-ISH CASE: A LESSON IN PROTECTING YOUR RIGHTS UNDER A WRITER COLLABORATION AGREEMENT

The Hollywood Reporter just released last week that a settlement between Black-ish writer Kenya Barris and former writing partner Bryan Barber was made in connection with the lawsuit Barber filed against Barris that was scheduled to proceed to trial this month. In 2016, Barber filed a lawsuit against Barris, alleging that the ABC comedy was based on a pilot he and Barris co-wrote back in 2006 during a previous development deal with VH-1. Barber’s actionable claims against Barris included  breach of implied contract, and breach of implied confidentiality among other claims. In April of this year, Barris filed a motion for summary judgment, which was subsequently denied.

Interestingly, copyright infringement was not a cause of action against Barris (which would be a federal jurisdictional issue regarding authorship under the U.S. Copyright Act that would place the case in federal court rather than state court),  the claims alleged all center around an implied contract and an implied confidentiality agreement, not breach of any express contracts. Barber’s complaint does not reference on the pleadings any writer collaboration agreement or any mention of a confidentiality agreement that were executed between the parties, establishing his right of authorship and/or ownership in the original pilot noted in his complaint. Although Barber’s case has settled, the two-year litigation is a great example for writers to take note of the importance of having a writer collaboration agreement when there are multiple authors writing a script for film or television.

What is a Writer Collaboration Agreement and Why is it Important?

A Writer Collaboration Agreement is an an agreement between two or more writers that sets forth the terms and conditions of their work together, the division of responsibilities, copyright ownership and authorship rights, and the sharing of revenues derived from the commercial exploitation of the work.  It is also a critical document to negotiate and prepare on the onset of a relationship that helps to manage the parties’ separation in the event of a dispute and separation-a prenuptial agreement in the writing world figuratively speaking.

Absent an agreement to the contrary, under U.S. copyright law, a collaborative work will be considered a “joint work,” which means that the collaborators will share an equal split of ownership. Without a writer collaboration agreement setting forth the expectations of the co-authors, questions arise as to 1) who will own and control the copyright; 2) whether a revenue split different from an equal pro-rata share should be allocated to co-authors; 3) credit of the work; and 4) whether the work will be abandoned or owned by an author in the event of a dispute among the writers. The agreement is not only critical to memorialize the arrangement between the parties, but also helps to establish copyright chain-of-title of the work for third-parties like production companies, studios and networks who want to know who they have to secure consent for commercial exploitation of the work. It is also a needed document to base copyright registration of your work with the U.S. Copyright Office.

To protect your intellectual property rights in your collaborative work, it is highly recommended that you engage an experienced entertainment attorney. Contact Crespo Law Office to assist in the negotiation and drafting of a writer collaboration agreement for your next project. We also assist in registration of your copyrights through the U.S. Copyright Office to put all third-parties on notice of your ownership in your work.