Copyright for film and tv that every filmmaker should know

WHAT ARE RIGHTS IN THE FILM AND TV WORLD?

Rights are incredibly important in film and TV – rights mean money! Every film or tv programme will contain different sorts of rights depending on the project: if the film is based on a book, the author and publisher will have rights. The scriptwriter will have rights. The producer and director, as creators of the film, will also have rights. And of course, every single contributor to a film will have a stake in the copyright, too.

SO, WHAT IS COPYRIGHT IN A FILM OR TV CONTEXT?

In a nutshell, copyright is the right that exists to an idea that has been written down. Once an idea is protected by copyright, no one can use it without your permission. Copyright protects you from someone who may want to steal that idea from you.

HOW CAN YOU PROTECT YOUR IDEA FOR A FILM?

If you have an idea for a film – that’s great! But for this idea to be protected by copyright, you need to write it down. There is no need to register it in the UK – but it does need to be captured in writing. It doesn’t matter where you write it down – but unless it’s written down somewhere – anywhere – your idea will not be protected by copyright. For example, if you share an idea with another producer in a conversation and the other producer steals your idea, you cannot sue that other producer for breach of copyright.

WHO OWNS THE COPYRIGHT TO A FILM?

Generally speaking, the owners of the copyright to a film are the producer and the author. They will jointly own the copyright to the film. Most films are protected by copyright laws until 70 years after the death of the last one of the following to die: director, scriptwriter, film music composer.

In practice, the copyright for a film is usually transferred to the production company that produces the film. Next, we will look at the transfer of rights in film and tv contracts.

WHAT TYPE OF CONTRACT DO YOU NEED TO TRANSFER COPYRIGHT IN A FILM OR TV PROJECT?

You can either grant someone permission to use your rights, or you can transfer your rights to someone else entirely. The first way of allowing usage of rights is called a ‘licence’ and the second way is an ‘assignment’. There are very important differences between these two:

WHAT IS A LICENCE?

A licence is basically a ‘permission to use’. If you’re a rightsholder, such as a writer, you can grant a producer the right to use your work for the duration of the licence. Licenses are part of every option and shopping agreement. Licenses are also used by producers when they negotiate a licence agreement with a broadcaster.

WHAT IS AN ASSIGNMENT?

With an assignment of rights, the ownership of the rights is transferred from the original rightsholder to the new rightsholder. Once rights are assigned, the original rightsholder will no longer have any rights to the material.

LICENSE VS ASSIGNMENT – DOES IT MATTER?

Yes it does – an assignment is an outright transfer of rights. It’s akin to selling a house. When you sell a house, you transfer ownership of the house from yourself to the buyer. The house is no longer yours. That’s what happens in an assignment. By contrast, if you grant a lease to someone, they have exclusive use of your house for a while. But after a while, they will leave and you can use your house again. This is what happens in a licence.

An assignment is a transfer of ownership, it is indefinite and irrevocable, it needs to be in writing and it needs observe certain legal formalities to be valid. A licence is not a transfer of ownership, but only an exclusive or non-exclusive permission to use something. It allows the rights to return to the licensor (the person who grants permission to use their rights) after a set period of time. An exclusive licence needs to be in writing. A non-exclusive licence doesn’t need to be in writing, although it is always best practice to enter into a contract.

HOW AND WHEN IS COPYRIGHT TRANSFERRED IN FILM OR TV?

Usually, a producer will have an idea for a film based on their own imagination or based a book they’ve come across. In other cases, the producer is approached by someone else with an idea for a film, such as a scriptwriter who has written a treatment or script. Note that in most cases, the producer will not contract people in his or her personal capacity, but through a production company set up for this purpose. In a nutshell, this is because contracting through a production company removes the producer from the risk of being sued in their personal capacity.

Unless the idea is the producer’s own, the production company will first obtain an exclusive licence (i.e. permission to use) for the underlying idea. Once financing is secured for the project, they’ll then receive an assignment (i.e. transfer of ownership) of the audio-visual adaption rights of the project. This is often agreed in an option agreement – you can read about them here.

At the same time, through cast and crew agreements, the production company will become the owner of everyone creative contributions – meaning they own the rights to the actors’ performances, the composer’s music etc.

When a film is completed, the production company will be the sole owner to all rights in the film. Remember that to obtain a valid assignment or exclusive licence, the contracts that transfer these rights to the production company will need to be in writing and comply with certain legal formalities.

Lastly, the production company will be able to licence (i.e. give permission to use) the film to broadcasters or distributors. After the licence has expired, the distribution and licensing rights will revert to the production company.

If you want to go into more detail about the legal side of film production, you can read more about the types of contract that are required at each step of development and production in my next blog post. If you have any further questions or want to talk further, comment below or write to me here for a free consultation.