Clearing rights for film and television
This guide is based on UK law. It was last updated in March
2008.
Overview
Film and television producers quickly learn that getting
clearances right is crucial to the successful exploitation of their
work. Without the correct clearances, you can be prevented from
distributing your work in certain territories or over certain
media, which in turn prevents you from earning revenue.
What are clearances?
If you wish to include copyright material in your film or
television programme, such as archive film footage, music and
consumer brands/products you must have the right to do so in the
form of an outright transfer or a licence of the copyright from the
owner of these rights. Obtaining rights in this way constitutes
copyright clearance.
Clearances also apply to individuals: for example an actor's
performance in the film/programme must be cleared for all uses.
This will normally be covered in standard engagement contracts for
actors.
The first stage is to think about what the film/programme will
comprise and decide what clearances will be necessary. In some
cases you may be able to avoid having to seek clearance altogether,
such as where a work is "out of copyright". This will apply to
works where the period of copyright (in the UK the life of the
author plus 70 years) has expired. Be careful when dealing with
foreign works to ensure that the period of copyright in the
relevant territory has in fact expired. Also be careful to ensure
that all copyright in the work has expired. For
example, although copyright in the lyrics to a
song may have expired, the record company may still hold copyright
in its recordings.
It is important to look ahead and take a broad view of the
clearances you might require. Also ensure that the clearances you
get are consistent with one another: if they have to be limited to
a specific term, try to ensure that it is the same term. Otherwise
you will face an administrative headache in exploiting rights that
expire at difference times.
How to get clearance
Licence
This is the most common form of clearance: the copyright owner
gives you a limited right to use the copyright material. Often the
licence will be limited in terms of the territories in which the
material can be used, the media (e.g. only cinema films and not
television) or the time period. It is important as a producer to
negotiate as wide a licence as possible to make your end-product
capable of wide exploitation. If a particular piece of copyright
work is proving difficult to clear, it may be better to do without
it, rather than risk your ability to distribute your
film/programme.
Transfer
This is more unusual in media, but is a powerful clearance to
get since it places the producer in the shoes of the owner, with
total control over use of the copyright material. You would
normally expect this type of transfer of rights from the cast and
crew in relation to the copyright they generate in connection with
making the film/programme and the writer of the screenplay. You
would not expect to get this type of clearance for ancillary
material such as pre-existing music used in the soundtrack, but
should ask for it in connection with music specially composed for
the film/programme.
Broadcaster/financier input
Often the contracts that you enter into with financiers will
stipulate a minimum level of clearance in the form of media and/or
territories which must be cleared for use. In many cases, even if
you do not need to clear all rights up-front (for example, where a
television programme is for UK only) you will be asked by the
broadcaster to pre-agree a price with the rights holder for
clearing worldwide rights. This is also in your interest, however,
since it prevents a rights holder from being able to "hold you to
ransom" for clearances later if the programme is a success.
Dealing with distributors
Make sure that any distributor you appoint is under an
obligation in his contract to advise of any sales which would
trigger additional payments for clearances. This might arise where
a copyright owner has accepted pre-payment as clearance only for
limited territories, with the rest to be cleared by additional
payments when used. The distributor should also be obliged to
ensure that the sale generates sufficient revenue to justify the
costs involved. Some distributors are willing to administer
clearance payments on behalf of producers, but remember that you
are primarily responsible to the rights holder if clearance
payments are not made when they should be.
Summary
Organising rights clearances early is vital to the successful
exploitation of a film or programme. Thinking ahead to what rights
need to be cleared and then what territories and media they need to
be cleared will save a last-minute plea to the rights holder,
opening up the prospect of a demand for a higher price because of
the urgency.
Contact: Yvonne Dunn (yvonne.dunn@pinsentmasons.com
/ 0141 248 4858) or see Yvonne's
biography.
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