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.

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.

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.

The Legal Implausibility of Crimson Tide, or How To Find Drama Within The Constraints of Reality

(Author's note: when I first heard about Tony Scott's death last night, it got me thinking very critically about his body of work.  I've often been a fan and I think that Crimson Tide, Enemy of the State, and Spy Game emerge as a near perfect trifecta of paranoid-intellectual popcorn cinema.  They're action films with a brain.  As I got to thinking about his films and the various legal issues surrounding them, there was one that I couldn't shake, and that is the subject of this post.   Whatever Scott's demons, he was an inventive and visually kinetic director who knew how to direct actors, create tension, and weave propulsive narratives.  He may never be considered the auteur that his brother Ridley was, but his is a voice that will sorely be missed).

About two years ago, in response to criticism that his script for “The Social Network” deviated from the reality of Facebook’s founding, Aaron Sorkin said, “I don't want my fidelity to be to the truth; I want it to be to storytelling.”  It was right for him to say this because the job of Hollywood is to tell stories.  Sorkin and director David Fincher were not, after all, making a documentary about Mark Zuckerberg.  They were telling a story, the driving force of which is drama.  I think that most people generally accept this.  They know that they’re not watching something that is literally true; they understand that when they see the words “based on a true story”, the real story is an inspirational launch-point for what they are about to see and not a word-for-word retelling.  I am one of those people.

But sometimes the demands of creating drama, conflict, and tension distort reality to such a degree that I must fundamentally reject what I am seeing on screen.  This happened to me with the 1995 submarine action film Crimson Tide.

Before I get started with the legal analysis, I want to say first that Crimson Tide is, above all else, a Masters-level course on pacing, tension, and drama.  Any filmmaker who desires to make tightly scripted thrillers should add Crimson Tide to his or her diet.  Furthermore, despite the legal impossibility of the film’s ending, it is still a fantastic yarn filled with excellent performances by Gene Hackman (my all-time favorite actor) and Denzel Washington.  The score, by Hans Zimmer, is what we in the film industry refer to as “awesome.”  Tony Scott's direction is as clear as it's ever been.  Even after what I am about to say, I will still watch Crimson Tide and enjoy the first 111 minutes of its 116-minute run time.

The ending is what we in the legal field refer to as “total garbage.”  The film, as you may remember revolves around a mutiny on board the U.S.S. Alabama, a nuclear attack sub.  The mutiny is led by Denzel’s dashing and popular Lt. Commander Ron Hunter against Hackman’s gruff but respected Captain Frank Ramsey.  During a skirmish with a Russian sub, communications between the Alabama and the National Command Authority are cut off.  The Captain believes that the Alabama has been ordered to fire its nuclear payload, while Commander Hunter wants to wait and reestablish communications to find out if the Alabama has been ordered to launch.  Time, as you might expect, is not on their side.  A Russian splinter group has taken control of that country’s nuclear stockpile and has threatened to launch its own missiles against Washington D.C. within the hour. (I love this movie so much that I just typed the entire plot of the film from memory, not once referring to Wikipedia).

The problem with the movie occurs in the last ten minutes of the film.  The standoff between Hunter and Ramsey ends when a cadre of sailors loyal to Hunter reestablish communications with the National Command Authority and discover that the Alabama has been ordered to stand down.  The Russian splinter group has been defeated by the Russian army and the nuclear stockpile has fallen back into the hands of U.S. allies.  Despite tearing the ship’s crew apart, Hunter has just saved the world from nuclear annihilation.  A few weeks later, Ramsey and Hunter stand before a dais of admirals who chew them out over the mutiny.  Instead of being court-martialed, however, Hunter learns that Captain Ramsey recommended that Hunter be promoted and given his next command at the next possible convenience.  The two men shake hands and literally walk off into the sunset! Pardon my legal jargon, but WHAT THE HELL?!!

Hunter had just led a mutiny aboard a U.S. Navy vessel in a time of war.  I refused to believe that he would have gotten off without so much as a slap on the wrist.  So I looked into it and here’s what I found:

Article 94 of the Uniform Code of Military Justice (UCMJ) states that “any person… who…with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny….” For those who are interested, the provable elements for mutiny can be found here.  I won’t spend this time analyzing whether Hunter’s actions constituted mutiny since pretty much every major character within the film admitted that it was in fact mutiny; For the sake of brevity, I’ll take the film at its word.

What I’m much more interested in here is the punishment.  Article 94 says that, “[a] person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.”  The text of the UCMJ isn’t helpful in determining what factors a court-martial would use in sentencing a mutineer, so I dug around further and discovered that there has never been a documented case of mutiny on a United States naval vessel.  Thus, there is no precedent in the modern era for determining how a mutineer on a U.S. naval vessel during a time of war would be charged and sentenced under Article 94.  Since I'm not a military man, I wanted to get a military perspective on the situation, so I posed this question to my friend and colleague Matt Brecher who had worked in the U.S. Army Judge Advocate General Corps. This is what he said:

“The maximum punishment is death, however [the mutiny] would more likely be punished by a dishonorable discharge and a lengthy prison sentence in a military prison, loss of all rank, and forfeiture of all pay.  Aggravating factors leaning toward life imprisonment or death would include mutiny during a time of war.  However, it may be a defense to such a charge if an order or leadership is unlawful, or if the person committing such act is acting pursuant to a regulation or order authorizing their act.”

Matt goes on to say that, “[g]enerally, if he were actually charged with mutiny, I would expect a General Court Martial (as opposed to a special or summary court martial), meaning that the court is empowered to issue any type of punishment authorized under the UCMJ, including death, life in prison, and dishonorable discharge.  The factors to consider would be the legality of the original commander's actions as commander, and whether there were legal grounds for the "mutinous activity."  This might include the commander becoming unfit for command, but would likely require a naval regulation authorizing his relief."

Surprisingly, Matt does not think that Hunter would be court-martialed for mutiny.  "I would not expect a mutiny charge, but rather a charge of disobeying a lawful order, disrespecting a commissioned officer, and other lesser included offenses.  They would likely each receive a letter of reprimand in their permanent fiche at the very least.”

While reasonable minds can disagree on the severity of the punishment and the type of administrative hearing Hunter would receive, he would certainly have received some sort of punishment.  Just because Ramsey liked the guy and recommended him for promotion wouldn’t absolve him of guilt.

So Scott flubbed the ending in an attempt to give the audience a happy ending.  This makes total sense… when you’ve just put the audience through a non-stop tension-filled thrill ride where nuclear Armageddon was imminent, you understand that the audience needs a catharsis.  But being a film-buff and also a shameless revisionist, I believe such a catharsis could have been reached while still maintaining some semblance of reality.

Obviously, we can’t have Hunter given the maximum punishment (death) because Denzel is our protagonist and we like him.  Furthermore, the final scene demonstrates that Scott was keen on showing that Ramsey developed a profound respect for Hunter because Hunter bucked authority to do what he thought was right – he was his own man. My preferred ending to Crimson Tide ends thusly:

Ramsey meets Hunter for coffee two years after the incident.  Hunter has just been released from a military prison.  It is revealed in their conversation that Ramsey visited Hunter often in prison, bringing him books on military history (including a copy of Von Kriege by Carl Von Clausewitz - callback to an earlier scene!) and had grown to respect Hunter for standing up for what he believes in.  It is also revealed that Hunter was given a significantly reduced sentence (including a dishonorable discharge) because of his stellar record, because his actions averted nuclear catastrophe, and because Ramsey testified at the court-martial defending Hunter’s actions.

The benefit of such a scene would bring full circle a theme that the film played with tangentially in the early going: how a man’s will intersects with the rigid structure of the military.  An ending like this could show that Hunter was too willful to be a military man (something the film toyed with in Denzel’s early scenes with Hackman) and that being his own man in a world of rules and regulations would cost him dearly.  It would also have the desired effect, showing the growing friendship between two former enemies.  Lastly, an ending like this would have kept the happy ending the audience craved, been truer to real life, and helped an already excellent action film become a Great Film.  Full stop.

In Defense of The Dent Act

Summer 2012 has given us two of the biggest films in history, both from a cultural and box-office standpoint.  With the summer movie season waning, I thought this was a good opportunity to  look back and discuss the relationship these films have with the law.  Today, I begin with The Dark Knight Rises.

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

The Dark Knight Rises raised a number of interesting legal issues that could each be the subject of their own posts: the way the film dealt with the Bruce Wayne bankruptcy, the federal response to the siege of Gotham, to name a few.  But one stands taller than the others and that's the subject of this post.

In the immediate aftermath of the movie’s release, there was some discord amongst critics about one issue in particular… something they felt was so wrong-headed that they had to call the director on it – they hated the Dent Act. More specifically, there was some hand-wringing over the Act’s constitutionality.

Cliff notes version: it is utterly constitutional.

Let’s step back for a minute.  What exactly is the Dent Act? At the beginning of the film, we learn that shortly after the death of Gotham’s District Attorney Harvey Dent, sweeping anti-crime legislation was passed that gave the city’s police and prosecutors “teeth” to fight organized crime in the city.  We know that eight years after Dent’s demise, the Dent Act did it’s job, almost completely decimating crime in the city, and leaving a gaping hole for Bane and his League of Shadows thugs to storm in and take the city.

So what tools does the Dent Act grant law enforcement Gotham City to combat organized crime?  Did the Act authorize a mass hiring of police officers, in effect turning Gotham into a police state?  Did it place stricter sentences on those convicted of organized crime activities?  Did it finally root out the bad guys in Gotham’s notoriously corrupt police force?  Unfortunately, the movie doesn’t tell us much about the mechanics of the law and only pays it lip service before delving into the “Batman coming out of retirement” storyline. The only substantive information we have on the Dent Act is told to the audience by Joseph Gordon-Levitt’s character; apparently the Act has kept hundreds of mobsters behind bars by denying them parole.

I readily admit ignorance here. Like others when I first heard this, I threw my hands up in disgust.  “How unconstitutional is that?!” I nearly screamed aloud to my wife in the theater.  As it turns out, it’s pretty damn constitutional.

Let’s get some basic facts out of the way: the discretion to grant or deny parole typically resides in a state’s parole board.  They have the right to determine if an offender should be released before his full sentence has been served and they may grant or deny parole based on a variety of factors.  What concerned me was whether a piece of legislation could make that determination for them.

As a rule, states have the power to regulate their own law enforcement and legislate their own criminal codes.  With some Eighth Amendment exceptions (such as sentencing juveniles to life in prison with no possibility of parole), the state is allowed to make a blanket determination regarding who should and should not be released from incarceration before the full sentence has been served.

In reality, many states have done just that. The Massachusetts legislature recently considered an overhaul of the state’s criminal sentencing laws that, among other things, would abolish parole for repeat violent offenders. Massachusetts already bans parole for anyone convicted of first-degree murder. Pennsylvania considered a similar overhaul of their criminal sentencing statutes three years ago.  Sixteen states have taken it much farther by abolishing the parole system altogether.

Therefore denial of parole under the Dent Act for prisoners convicted of violent crimes such as murder, assault, or drug dealing (in many states, crimes of possession with intent to distribute are considered crimes of violence) is constitutional because there is a framework for just that kind of legislation in other states.  On the other hand, I think the Dent Act will have a harder time demonstrating its constitutionality when is denies parole to those convicted of non-violent crimes such as racketeering, gambling, prostitution, and money laundering.

Movies so often get it wrong when it comes to portraying the law so it’s nice to find a case where the movie gets it right (even though I’m convinced no one in the screenwriting process actually did the necessary legal research).  While we don’t know anything else about the substance of the Dent Act, the parts we do know about will probably hold up under scrutiny.  And frankly, even without knowing the Act’s other substantive provisions, I think that denying parole to 1000 dangerous and violent criminals would be enough to give Gotham’s Police Department a break in getting its crime problem under control.  Putting the Batman out of the job was probably just icing on the cake.