Filmmaker-2-Filmmaker: Tip 2 - Copyrighting Your Writing

[Author's Note: this post contains legal information but is not intended as legal advice. All the legal information contained in this blog post is public domain and available to everyone.]

Between high school and law school, I wrote 21 screenplays - 5 features, and 16 shorts.  Like many creative types, I only had a vague idea of what copyright was and had no concept of how to use copyright to protect that work.  As a result, I was too scared to show my writing to anyone for fear of theft.  Those scripts sat collecting dust for a very long time.

So when I get a question like this - "If I want to copyright a movie script in the U.S., how do I do it? And do I have to be a citizen?" - I feel compelled to pass on the knowledge and experience that I have been blessed with since that time.  This particular question came from my cousin, a man who is as much a movie buff as I am, and with whom I've spent countless hours geeking out over a wide variety of films.  And while the citizenship question is not one that most of you will face, it does tap into the fundamentals of U.S. Copyright Law.  So let's get to it!

U.S. Copyright Law is really an artist’s dream because there are so many devices built into it that help artists protect their work.  Here are some good ones:

1. The moment you create a work of artistic expression, such as a screenplay, and that work is fixed in a tangible form (i.e. you wrote it down), that work is copyrighted.  No registration of any kind is required.  You don't need official documentation to copyright something and, believe it or not, you don't even need to put that little © on the work (although it’s still advisable… the more information there is to demonstrate authorship and date of creation, the better you can protect yourself).  Basically, the moment you put pen to paper, you are the owner of that intellectual property (minus some exceptions that I won't go into here).
2. Just about everything creative qualifies for copyright protection (you can’t, however, copyright ideas or concepts). For those interested in the specifics, Section 102 of the Copyright Law outlines what is covered.  The list is not exhaustive and is left wide open for future types of artistic expression.
3. If you create a work, then you, your children, your grandchildren, and maybe even your great-grandchildren can benefit financially from it.  Most copyrights last for the life of the author plus 70 years.
4. If someone steals your work, you can sue for quite a bit of money.  Damages range from $750.00, to $150,000 for each infringed work!
5. And yes, even if you’re not a U.S. citizen, you can still benefit from U.S. Copyright Law protections.  According to the U.S. Copyright Office, “Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States.”

But even with all these protections, U.S. Copyright Law can’t prevent someone from stealing your hard work.  And if you end up in a situation where someone is claiming your writing as their own, you need to show that your work predates theirs.  For that, you need documented proof.  So although your artistic expression is copyrighted from the moment it’s created, registering it with the Copyright Office or the Writers Guild of America (WGA) is the best way to create that proof and take advantage of all those great benefits I just outlined.

True story: in 2003, I went to pitch several TV shows to development execs at a Hollywood production company that I had freelanced for.  The ideas were fairly detailed, but I had not written them down.  The execs politely informed me that the ideas weren't right for them and sent me on my way.  A few months later, I went back to interview for another low paid freelance position at that company, only to discover that I was interviewing for a job on a new show that bore a suspicious resemblance to one I had pitched them months before.  I put up a fight and, as you might expect, wasn’t hired by them again.  I felt angry and helpless, mostly because I didn’t have any proof that I had come up with the ideas myself.

If I had typed up my ideas into “treatments” and registered those treatments with the Copyright Office and the WGA, I could have sued for theft of my copyright because the registrations would have created a public record showing that my idea had existed before their show.

There are three main ways to register, they're all relatively painless, and you can do as many or as few as you want:

1. Register your work with the U.S. Copyright Office.  You can register online at the Copyright Office website. There’s a $35 filing fee (per work) and the processing time is roughly between 2-3 months.
2. Register your work with the Writers Guild of America.  You can register online at the WGA East or WGA West.  The filing fees for non-members are $25 per work for WGA East and $20 per work for WGA West.  You can also register with either by mail if you prefer.  I’ve registered works with both the Copyright Office and the WGA and the protections are comparable.  The whole point is to make sure that there’s an official record of your work somewhere in case you need to prove it.
3. The last option is known as the “poor man’s copyright.”  If you wish to have evidence that your work came first, but cannot pay the filing fees (remember, at the Copyright Office or the WGA, you must pay the fee FOR EACH WORK registered), you can mail yourself a copy of the work.  The envelope will be stamped with a date and that date will be the proof of origin.  Of course, the envelope must remain sealed once you receive it.  To open it would be to eradicate the purpose of sending it yourself (if the envelope remains sealed, no one can tamper with the contents). In my experience, the “poor man’s copyright” isn’t nearly as effective as the first two, mostly because people forget that they’re not supposed to open the envelope.  One time, I mailed myself my own screenplay (it cost $10 to mail).  A week later, I received it in the mail.  I was so excited to get a package that I neglected to look at the sender's address (MINE!) and tore open the envelope to find my own script.  Whoops!  Suffice to say, that was not $10 well spent.

Speaking from personal experience, registering my writing gave me the peace of mind I needed to feel comfortable showing it to others without fear of it being stolen.  My feeling is, if I can’t prove that I own the copyright, I can’t prove theft and thus, can’t win in a lawsuit.

As an aside: the Copyright Office is a great resource for artists and writers looking for information on how the law works.  It also contains the complete copyright law for you to peruse.

Quincy Jones: Steve Wynn Did Not Threaten to Kill Joe Francis and Bury Him in the Desert

Here's something fun for a Friday!  This is the opening paragraph of Yahoo's report on the on-going legal feud between Las Vegas casino magnate Steve Wynn and Girls Gone Wild auteur Joe Francis:

"Music mogul Quincy Jones testified Thursday that he never told "Girls Gone Wild" creator Joe Francis that casino mogul Steve Wynn had threatened to kill the soft-porn producer and have him buried in the desert."

I think that may be the greatest sentence ever written... Kudos to Yahoo's Anthony McCartney!  For the record, I have no desire to become gossip blogger, but sometimes the goings-on in the entertainment industry are so ludicrous that I can't help but report on them.   According to this LA Times piece, Francis made the death threat accusation while fighting with Wynn over an alleged $2 million gambling debt owed to Wynn's casino.  Francis further accused Wynn of plying him with prostitutes to keep him gambling in the hopes of luring high rollers to the casino. A Nevada judge awarded Wynn $7.5 million in a defamation lawsuit over that claim.

Anyone who has paid attention to Hollywood over the past decade knows that the entertainment industry is on the precipice.  Movie ticket sales are down, the networks are hemorrhaging money because of technological advances in time and space shifting (i.e. DVRs, iTunes, iPad, etc.), and there are overreaching attempts by the major media companies to kill websites that display their copyrighted works.  But I guess sometimes we all need a distraction from the bad news facing the industry.  And who knows, maybe there's a killer movie in here somewhere.  I say Zach Braff could play Francis and Laurence Fishburne could play Quincy Jones!

Who would you cast?

Hugo No Go: Why Copyright Net Bots Just Don't Work [Updated!]

Three days ago, fans of science fiction television, film, and literature were watching the online broadcast of the Hugo Awards on video streaming service Ustream. Midway through the broadcast – just as novelist Neil Gaiman was accepting an award for an episode of Dr. Who he had scripted – the broadcast went dark and viewers were confronted with the notice “banned due to copyright infringement.” The program never returned and a torrent of anger and frustration filled the twittersphere. You can read about the whole situation at io9 (thanks to Adam Doyle for the link). So why did this happen?

Because a net bot employed by Ustream determined that the Hugo Awards broadcast violated several copyrights and did what it was programmed to do: shut it down. See, like all awards ceremonies, the Hugos used brief clips of the nominated shows and films. The net bot (just a fancy word for “software”) determined that these clips infringed on the clip owners’ copyrights and cut off the feed. As it later turned out, no infringements had actually been made. The clips had been provided by the rights holders for use in the ceremony and, according to Ustream’s CEO, the net bot hadn’t been calibrated properly to filter out works that were permitted.

Maybe this was a simple case of bad programming, or maybe the bot was doing exactly what it was supposed to do. Either way, this little technical hiccup illustrates a growing problem in the online world: major copyright holders (often they are corporations), in attempting to prevent the unlawful use of their copyrighted material, are turning to net bots to automatically find and disrupt websites that display those materials. Unfortunately, the net bots are taking down lawful works because they can’t tell the difference between works that are in the public domain and those that are copyrighted.

In 2007, Cory Doctorow of The Guardian warned of this impending problem. His main thesis in opposition to these net bots is the difficulty in programming them to take down actually pirated works, while differentiating them from lawful uses. Because these programs cannot tell the difference, they have the potential to disrupt how we communicate. According to Doctorow, the bots “would [] have to be nearly perfect in regards to false positives - every time it misidentified a home movie of your kids' first steps or your gran's 85th birthday as Police Academy 29 or Star Wars: Episode 0, Jedi Teen Academy, your own right to use the Internet to communicate with your friends and family would be compromised.”

Five years later, Doctorow has been proven right. Last month, Youtube briefly removed video of the Curiosity Mars rover landing because it was flagged as an infringing use of copyrighted work by Youtube’s Content ID system, even though the video was uploaded by NASA and was in the public domain. A similar occurrence happened this past February when a man received a bogus takedown notice from Youtube because his nature video contained singing birds in the background, content that Rumblefish had deemed to be copyrighted.

These articles at Ars Technica and Motherboard explain how Youtube’s Content ID system works, and have nice breakdowns as to why the system is so flawed. Part of the reason appears to be a simple technical inability to program the bots to tell the difference between lawful and unlawful uses of copyrighted works. But there's also an element of corruption: automated systems like Youtube’s Content ID heavily favor large copyright holders because they pressured Youtube into having an automated system that went beyond the notice-and-takedown regime established under the current law (the Digital Millennium Copyright Act).

Because of this, Motherboard claims that the system encourages copyright holders to cast a wide net over a vast array of works, some of which are only tangentially related or completely unrelated to their copyrights. “YouTube’s system is [] heavily biased in favor of claimants, and [] is increasingly controlling of content that has serious educational or scientific value... many of Martin Luther King, Jr.‘s speeches are no longer available on YouTube thanks to automatic and manual copyright claims by the owner of King’s speeches, the British music giant EMI Publishing."  

Obviously the benefits to an automated system are cost effectiveness and speedy removal of copyrighted works from a website. But because there is no human being at the other end making determinations as to whether or not a work is being infringed, the little guy often suffers. Forget fair use of someone else's copyright, some people have had their own copyrighted work taken down because it was claimed to be owned by someone else – just two months ago, comedian Brian Kamerer had his video taken down from Youtube because NBC claimed it owned the copyright, despite the fact that Kamerer had made the video and it had been used (without his permission) on The Tonight Show.

I think that copyright law one of the things that make America truly great. Seriously. It sends a message that we as a society prize originality and expression. It says that we understand the value of independence and innovation. It shows that we are willing to allow the fruits of your work to be protected from theft. Certainly, we can all quibble over the specifics of the law, such as duration of the life of the copyright, how much in damages an infringer should pay, or the types of works protected; there are legitimate policy discussions to be had about these things. Even with all that room to argue, I think copyright protections are good for artists, good for innovators, and good for our country as a whole. But when a system isn’t monitored properly or at all, it can start to lay waste to everything it should be protecting. Copyright law is no exception.

[Update: 9:30am, September 5, 2012] Youtube has taken down Michelle Obama's DNC speech from last night because it triggered Youtube's copyright infringement filters.  Ugh.

Protecting The Brand: Aziz Ansari Case Study

Artists need to know how to protect their brand, and there are a lot of ways the law can help you do that: non-competes, licensing fees, lawsuits, etc.  But there are plenty of  non-legal ways to protect yourself, and I think comedian Aziz Ansari set a high bar for other artists.

Back in May, my wife and I went to see Aziz live at the Wilbur Theater in Boston.  As we expected, he killed it.  My cheeks hurt from laughing and I had a headache for days.  But Aziz did something unexpectedly impressive.  Before starting his act, he allowed the audience to spend 2-3 minutes taking pictures of him.  He even posed as if he were in the middle of telling a joke or interacting with audience members.  Although it wasn't really a part of the act, it was still quite funny and the crowd ate it up.  If I hadn't been in the cheap seats, I would have taken the opportunity to snap some pics myself.

[I've tried to find a clip of it online, but I've had no such luck.  If memory serves, he also did this at the beginning of his "Dangerously Delicious" concert; for $5.00, you can download the whole thing from his website.  I highly suggest checking it out!  He's hilarious.]

Logistically, it made sense to get the pictures out of the way up front: can you imagine how hard it is to do your act when little flashes are constantly going off in the near distance and your jokes are interrupted by the simulated "click" of a digital camera?  But the more I thought about it, the more I realized how brilliant this move actually was.  You see, Aziz knew that people were going to take pictures or video of him anyway, whether there was permission or not.  He understood that if he wanted to cut down on situations where his likeness would be misappropriated, or his act would be surreptitiously filmed without his permission (thus violating his copyright), he would have to control the opportunities in which the audience could make those infringements.

And it worked!  I was sitting in the balcony and I didn't see a single camera or iPhone light up once the photo-op ended.   But leveraging control over the situation was just part of the reason it worked; the other reason was because Aziz framed the situation as an implicit contract with the crowd. "I'll give you a great hour of comedy if you promise not to steal from me."  And because Aziz framed it like that, and then played into it seamlessly (and with humor), he got the audience to live up to their side of a contract they never realized had been made.  It was really amazing.  He did it his way and on his terms, and in so doing, he protected his brand without coming off like a money-hungry a-hole.

Filmmaker-2-Filmmaker: Tip 1 – Wiretapping

This is the first in what I hope will be an ongoing resource for up and coming filmmakers.  I want to warn you guys that it’s going to be a bit dry… I’ve fallen asleep twice while writing it.  So if you want to read something fun, take another pass at my Avengers analysis.  To kick off the inaugural Filmmaker-2-Filmmaker, I’m going to talk about something that doesn’t seem like a big deal, but it’s an issue that shows up often in documentaries and reality TV: recording phone calls, or, in legal speech, wiretapping.

Normally when people think of wiretapping, they think of this:

A couple of federal agents sitting in an unmarked van decked out with monitors and microphones listening to phone calls made by gangsters.  But in reality, you see it all the time when your on-air talent makes a phone call while being filmed.  In my producing days, we recorded phone calls for a variety of reasons: maybe a phone call made more logical sense to the narrative we were telling; maybe the person wasn’t willing to be put on film; maybe the person lived in another state and we didn’t have the budget to fly cast and crew to that location for an on-camera meeting.  I once produced a show where we filmed a phone call instead of trying to get a live interview because the subject had a history of violent criminal activity and was an accomplished bow hunter.  It would have been great to get him on screen, but it just wasn’t worth the risk to our safety.

So how do you protect yourself if you want to make an on-air phone call because you either won’t or can’t get your subject live?  The very first thing you want to do is make a good faith attempt to get a personal depiction release from anyone whose voice you want to use – yes, even if you’re only going to use their voice and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the best and easiest way to protect yourself legally. [If you need help drafting one, drop me a line. I’m going to tackle the topic of release forms in a future post.]

But maybe the person won’t sign a release form, or you make an executive determination that trying to get a release would be futile.  Then what do you do?

You determine if you are filming in a one-party or two-party consent state.  Here’s why: if you are in a one-party consent state, as long as one of the phone call participants knows you're filming the call and allows you to film it, you will generally not be subject to criminal or civil penalties, even if the other side does not consent.  Conversely, if you are in a two-party consent state, both phone call participants must allow you to film the call; without consent of both sides to the conversation, you could be liable for civil and/or criminal penalties depending on the state.  Let’s take a quick look at some sample penalties for violating the consent laws:

• Massachusetts is a two-party consent state.  A violation of the consent law carries a maximum criminal penalty of five years in prison and a fine of up to $10,000.  Mass. Gen. Laws ch. 272, § 99(C).  Massachusetts also permits civil suits against persons who violate the consent laws.  Courts may award actual damages, punitive damages, attorneys fees and litigation costs.  Mass. Gen. Laws ch. 272, § 99(Q).
• California is also a two-party consent state.  A first violation of the consent law is punishable by a fine of $2,500 or less and/or imprisonment of less than 1 year.  Subsequent offenses carry a fine of up to $10,000 and a 1-year imprisonment.  Cal. Penal Code §§ 631, 632.  Like Massachusetts, California permits civil suits.  Anyone injured by a violation of the consent laws can recover damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose an injunction preventing the use of that wiretapped phone call. Cal. Penal Code § 637.2(b).
• In comparison, New York is a one-party consent state and does not permit civil suits against persons who violate the consent laws.

To determine what type of state you’re in, you should check out the Reporters Committee For Freedom of the Press.  This website is a great resource for video journalists and documentarians.  It has a handy chart outlining which states are one-party or two-party, which states have criminal and civil penalties, and will give you detailed breakdowns of how the law works in each of the 50 states.  I used this site all the time during pre-production and principal photography and I like to think that having this handy resource kept my colleagues and me out of trouble.  It’s such an invaluable tool that I’ve gone ahead and placed it on my Resources For Filmmakers page.

The analysis doesn’t end there, however.  You may be in a one-party consent state, but if you have to make a phone call across state lines, it falls into federal jurisdiction.  In that case, you should assume that a two-party consent law applies, even if you’re making a call to another one-party state.

Unfortunately, if you find yourself in a two-party consent situation and one of the parties won’t consent, there really aren’t many workarounds if you need that phone call for narrative purposes.  In the few instances where that happened to me, I simply made the call off-screen and then staged it later with the information gathered from that call (hey, it’s reality TV!).  I want to give a word of caution here: if you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound later.  The criminal and civil penalties are not generally based on whether the other side’s voice is heard, they’re based on whether you knew or should have known about the consent laws and knowingly violated them anyway.

At the end of the day, producers aren’t lawyers.  Even if you have the best intentions and good information, you can still screw up (i.e. recording an interstate phone call without both parties’ consent).  If that happens, don’t try to lawyer yourself out of the situation.  Call me or an attorney you trust and inform them what happened.  There are always ways to protect yourself, even if you step in it.

Why Apple May Not Be A Billion Dollars Richer

(Author’s note: on top of being an Apple fanboy, I should disclose that I worked for Apple from October 2008 until August 2009 in their Westchester, NY retail store).

Maybe I spoke too soon.  There's a write-up over at Gizmodo (by way of the good people at Groklaw) explaining how the jury verdict in the Apple v. Samsung trial was flawed and may spend the next few years winding its way through the appeals process.  The crux of the problem seems to be the inconsistent findings of the jury and the relatively quick deliberation (3 days) for what was a fairly convoluted case.  There may be other problems as well, such as how the Galaxy Tab escaped patent infringement.

So it looks like this issue is far from resolved and Apple isn't going to collect its billions anytime soon.  Groklaw's analysis is a real eye-opener and if you're at all interested in this case, you should check them out.  I feel like I should have a deeper analysis here beyond "whoops," but in truth I didn't see all the evidence, I wasn't in the courtroom, and I don't know how deliberations went down in the jury room.  Having been a juror and a judicial clerk, I have a unique insight into the process and I can say that juries tend to take their responsibilities seriously.  Indeed, there's evidence here that the jurors in Apple v. Samsung made their choice deliberately and carefully.

Regardless of whichever way this case swings, I stand by what I said in my original post: Samsung should take the opportunity to invest in brilliant designers/ engineers and innovate new ways to differentiate itself from Apple's design language.  Take a look at the Windows-enabled Nokia Lumia 900.

This phone is sleek, attractive, and the Windows Metro operating system accomplishes the same tasks as iOS, but in a radically different (yet appealing) way.  It's just gorgeous!  Furthermore, Apple's design aesthetic is nowhere to be found.   I'm an iPhone man through and through, but I've seriously considered making the switch.  I'm not competent to speak about Microsoft's business strategy, but its design strategy is a winner.  Samsung may ultimately come out of this process in better shape than we expected, but nobody becomes an industry leader by following what others are doing.  To lead from the front, you need to innovate.  That's what Apple has done, that's what Microsoft is (finally) doing, and if Samsung doesn't want to be an also-ran, that's where it should be putting whatever money it doesn't eventually have to pay Apple.

Apple To Be A Billion Dollars Richer!

(Author’s note: on top of being an Apple fanboy, I should disclose that I worked for Apple from October 2008 until August 2009 in their Westchester, NY retail store).

I have a second Apple-related post coming next week, but as a gadget freak and a design junkie, I would be remiss if I didn't say something about Apple's courtroom victory over Samsung this Friday.  A jury of nine has smacked Samsung with a $1.05 billion fine as punishment for violating Apple's various mobile phone patents.  In a nutshell, Apple claimed that Samsung blatantly ripped off the iPhone's software and hardware designs following the release of the first iPhone in 2007.  The jury agreed.  Now I'm completely in the bag for Apple, but that doesn't mean the verdict was wrong.  After all, it's difficult to look at this...

...and not see that Samsung totally ripped off the iPhone.  This is an important victory because design is a big part of how we see and interact with the world. Permitting someone to co-opt the design language of an innovator without due deference sends the wrong message about what kind of society we are.  Patent infringement is a kind of theft, and our legal system was constructed as a way of protecting the rights of those who innovate.  One of the consequences of the verdict is that gadget designers will no longer be able to draw from the Apple well - within the year, we're likely to see smartphones and tablets take on radically different design elements, both in hardware and in software.  This is a good thing both for business and for the design world and I think that Steve Jobs would have been a fervent supporter of this outcome.

I'm currently reading his biography by Walter Isaacson and it's fascinating to see how Jobs approached each and every product as if it were art.  To him, a product shouldn't be defined solely by its function; it must be aesthetically pleasing as well.  Jobs once said to Fortune Magazine, “in most people’s vocabularies, design means veneer. It’s interior decorating. It’s the fabric of the curtains of the sofa. But to me, nothing could be further from the meaning of design. Design is the fundamental soul of a human-made creation that ends up expressing itself in successive outer layers of the product or service.”  When Jobs led the Macintosh development team back in 1982, he made his engineers redesign the Mac's circuit boards because they weren't pretty enough.  Even though the circuit board wouldn't be seen by the average user, to Jobs the entire computer had to be perfect - inside and out.  Otherwise, it failed as art.

Jobs was so protective of his design aesthetic that in 1985, when Steve Wozniak (Jobs' best friend and business partner) left Apple to design a universal remote, Jobs refused to let Wozniak hire the same company that designed the Macintosh.  He didn't want any other product to look or feel anything like the Mac.

Of course, Jobs famously appropriated Picasso's mantra "good artists copy, great artists steal," so maybe there's a little irony in Apple's triumph over Samsung.

Suing The Avengers

(Author's note: I don't want to be a one-trick pony, so this'll be the last of my legal movie analyses for a little while - unless there's a demand... or unless I change my mind).

Warning: Spoilers! If you haven’t seen The Avengers and don’t want to know what happens, read no further.

This past May, as I sat in the theater thoroughly enjoying Joss Whedon’s “The Avengers,” I began to wonder: what if I had been injured by falling debris during the final battle between the Avengers and the invading Chitauri army?  Anyone who has seen a comic book movie knows that superheroes cause a lot of collateral damage.  The Avengers is a unique example because destruction isn’t solely the result of the alien horde descending on New York with their massive floating bio-mechanical weapons.  The good guys who are charged with protecting the city cause their fair share of damage as well.  Unlike previous superhero entries, The Avengers have not one, but three super-powered being (Hulk, Thor, Iron Man), each with significant anger issues.

In fact, it has been estimated that approximately $160 billion in property damage was caused during the battle of New York.  That figure is staggering, not least of which because, thanks to the unsurpassed leadership of Captain America, the Avengers were able to keep the battle confined to a 4-6 block radius.  We also know that the Chitauri invaded New York without warning and the sudden nature of the attack meant that the Avengers did not have enough time to clear the battle zone of bystanders.  The film goes out of its way to show us innocent civilians caught in the crossfire.  It stands to reason that with so much damage, a storm of laser fire, and so little opportunity to get innocents out of harms way, someone is going to get badly hurt.  So when the battle is done and the superheroes have long since departed, who can you sue to recover your medical costs?

The obvious answer is to sue S.H.I.E.L.D.  After all, S.H.I.E.L.D. assembled the Avengers, and in legal parlance, is both the “actual” and “proximate” cause of the injuries.  But S.H.I.E.L.D. is a government agency and is protected by Sovereign Immunity, a legal doctrine that prevents government entities from being sued for monetary damages.  In certain situations, however, the government can waive its immunity by way of the Federal Tort Claims Act (FTCA), which allows federal agencies to be sued for damages as if they were private entities.  Under the FTCA, if you can prove that the Avengers acted without due care in their rescue of the city, you can sue S.H.I.E.L.D. for the negligent acts of its employees (in tort law, we call this Respondeat Superior).

Thus, in order to sue S.H.I.E.L.D. under the FTCA, we must determine if Iron Man, Hulk and Thor are employees of S.H.I.E.L.D.  The FTCA defines employee as, “officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty… and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation….”  So, were Iron Man, Hulk, and Thor acting on behalf of S.H.I.E.L.D. in an official capacity?

It’s best to stop right here because this will lead us down a rabbit hole that isn’t worth the travel.  S.H.I.E.L.D. can probably be liable for your medical costs, but there are inherent problems with suing a clandestine black-ops organization staffed predominantly with super-powered beings.  Chiefly, how can you know such an organization even exists?  To the best of my recollection, the finale of The Avengers had various news reports blaming the team individually for the destruction and nary a mention of their handler organization was to be found anywhere.  As far as the public is concerned S.H.I.E.L.D. doesn’t officially exist.  And even if you were to somehow hale them into court, you're only going to anger them.  And we all know what happens when you get Bruce Banner angry.

Besides, there’s lower hanging fruit to be had.

You can sue Tony Stark in his individual capacity for negligent rescue.  After all, he’s a billionaire and can afford it.  Not only that, he’s the sole member of the Avengers whose real life identity is known to the public at large.   A lawsuit against Stark sounding in negligence is a goodly bet.

In tort law, there is generally no duty to rescue someone in distress.  However, if you do commence a rescue, it must be done reasonably.  Any defendant who rescues unreasonably can be liable under a negligence action if the aggrieved party is injured as a result of the unreasonable rescue.  In this case, there’s no legal precedent instructing us how to deal with an armored man wearing jet boots leading an alien horde bent on destruction through the city.  Even still, I would be willing to argue in front of a judge that Stark’s actions, though well intentioned, were unreasonable.  Why?

1. At extreme speed, Stark led hundreds of aliens on a chase through the canyons of Manhattan, weaving in and out of columns, buildings, and directly into heavily trafficked areas.  Any professional driver will tell you that as velocity increases, there’s an inverse relationship with control (there’s a reason the world’s fastest cars are driven in the middle of the desert… they can’t stop and don’t corner).  Stark would know this due to his extensive time in the Iron Man prosthesis.
2. Both Stark and his alien nemeses fired lasers at each other for the duration of this chase.  Logic tells us how difficult it is to hit a moving target; it is even more difficult when both targets are moving at great speed.  The likelihood of both Stark and the Chitauri warriors accidentally striking bystanders and real property with their laser blasts is increased exponentially.  Moreover, Stark is a world-renowned genius (he built a fist-sized fusion reactor in a cave with only spare missile parts, after all).  He either knew or should have known the likelihood of causing bystander injury, yet he continued to lead chase through Manhattan.
3. Later in the battle, Stark led a hundred foot long space snake directly down Park Ave into the path of Bruce Banner, whose ability to stop the snake was, as far as Stark is concerned, highly questionable.  At this point in the battle, Banner had not yet transformed into the Hulk and had not demonstrated to his teammates that he could call out the Hulk at his command (it was pretty awesome though, right?).  As far as Stark knew, he was leading that beast right into the heart of Manhattan where it would crash into the team, killing every member of the Avengers, destroying a significant part of mid-town, and possible murdering hundreds – if not thousands – of innocent New Yorkers.

When you willfully undertake a rescue that could wind up killing thousands, that is per se unreasonable.  If I were a lawyer in the Marvel Universe, I would be unhesitant in representing a class-action suit against Tony Stark in his individual capacity.

There may be more causes of action that I just can’t think of at the moment, but I think Stark is your best bet to recover damages in a case like this.  And honestly, you’re lucky if you get injured in an attack that was prevented by Iron Man.  Imagine if all that damage were caused by a hero with no assets... like Aquaman.