(i) Is what we created indeed a “joint ownership”?

California has a unique law (Civil Code 980) that covers products of the mind which are not fixed in any tangible medium or expression. Because of this law, ideas which are still just concepts can be protected as separate or joint efforts. Once a creative idea is fixed in some expressive medium, federal law preempts California law and the work is fully subject to the U.S. Copyright Act. Under both sets of law, a work is joint, if a person actually contributes to the fixation of the work or to the idea. It is not enough for a person to agree to be a part of the joint work -- neither is it enough for a person to contribute non-creative efforts. For example, a person who creates the text of a story is entitled to protection for his/her efforts -- but, a person who types the text into a computer and formats it for publication has no protectable right, because the work is not creative.

Given this background, and your stated facts, I believe that your efforts are a joint work up until the point that any portion of that work is actually fixed into a medium -- at that point, only the actual contributors are entitled to protection of the copyright laws -- regardless of any oral or implied partnership agreement to the contrary.

Had you a written partnership agreement under which the partnership would have become the owner of the creative work, and the partnership was specially commissioning the work from its members, then there would be a partnership which would own everything, and no individual partner would own anything. But, as this did not occur, my explanation in the previous paragraph, is, I believe, the correct interpretation of law concerning your circumstances.

And, if so, do we need to be able to prove this if the other two creators have changed their minds as to our relationship back then now that it is 3-4 years later?

A: As previously mentioned, I believe that the only protectable interests here are those which have actually been fixed in a tangible medium.

Would the main script bearing all four of our names suffice?

A: No.

(ii) Is the feature film script we have written considered a derivative work? If so, do my writing partner and I have the right to create such a work, at least on a non-exclusive basis?

A: To the extent that it uses actual text or illustrations from a prior work (or works so substantially similar that it is clearly a copy of a preexisting work), yes, otherwise no.

(iii) What if nothing has an official copyright registration?

A: A copyright exists at the moment of creation. Registration is simply notice to the world of the work's ownership. It does not absolutely prohibit the actual creator from proving that the registration is a fraud or mistake.

Now, if my understanding is correct, then we do have the rights we need to create the feature film, and copyright it as a derivative work of the original material. We would just owe to the other writers 25% each of whatever monies we paid to ourselves in order to license on a non-exclusive basis the derivative rights in the original work (in this case $0). If this is true, then although we have all the rights we need already, I feel it would be prudent, helpful, and possibly necessary for future deals if we are able to get their consent as well so that we can gain exclusive rights.

A: Getting an agreement, even if it does not perfectly follow the actual legal state of your joint and/or separate efforts, is probably less costly than trying to litigate the matter after the fact. Because your circumstances are so complex, that in the event that something becomes highly valuable, the litigation costs will be stupendous, and the case could go on for years -- meanwhile, no one would know where he/she stands.

Assuming you agree with that, then that brings me to my main overall question, what all forms/agreements do I need to get in writing from the other two, or more likely, in writing between all four of us to gain exclusive rights for my writing partner and myself ( I assume I would only need exclusive derivative rights) and to make everything binding?

A: If it were me, I would probably form an LLC, and draft an operating agreement under which everyone would have an established stake in the works created. Then, I would have each member assign his or her intellectual property rights in all of the currently created works to the LLC. Whether or not you want to include derivative works in the LLC is up to you -- but, in my view, you need a clear statement of ownership in the original works, and an equally clear cut off point after which, your works are your own and not subject to LLC ownership (unless you want the works to be subject to that ownership).

That said, you will not find "forms" online that can accommodate your requirements. You will need a custom-drafted agreement, if you want to get this right the first time.

In the real world, what usually happens is that the various creators cannot afford to hire an IP lawyer to draft the necessary documents, the parties throw something together, and then if something breaks out and makes money, suddenly there is enough dough to hire lawyers and negotiate a settlement of the ownership rights. I suspect that this is what will happen in your case.

That said, you may want to seek out a website with a fairly straightforward LLC agreement and form the organization with a stock operating agreement. More than likely, the agreement will be full of holes, but it will be better than nothing at all.

Hope this helps.

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