IP Protection for Film Producers: Making Your Project a Reality
Yes, you filmmakers and producers are creatives, but, whether you want to or not, you are also entrepreneurs. Creating a film involves a significant investment of time and money.
In this blog, we explore the crucial role of business law in setting you up for production success.
Shares in your company: you might want to attract investment in your production company by offering shares in your company to an investor. Before you do, you should think about how many shares as well as what class of shares you would like to offer. Will the investor have any voting rights? Can the investor sell the shares to a third party, or should the investor first offer you the opportunity to buy back those shares? Will the investor also become a director of your company? There are many commercial considerations to think about before you do offer any shares.
Finance: if you have a tv or film project to be financed, you should think about what kind of financier or investor you are looking for: are you looking for a loan, such as a tax credit loan or a loan against presales? Or are you looking for an investor (so called ‘equity investor’) who would offer a higher-risk investment for a higher return and share in net profits?
At-risk investments: in the film/tv industry, these are commonly called ‘equity investments’. Typically, your investor would provide you money under and investment contract and would expect a share in gross receipts to repay the investment as well as a premium. Your investor will need to understand that if your project doesn’t do well, the investor won’t get their money back.
Co-productions – aka becoming a shareholder and director of a new company
Some producers partner up with other producers. This could be as part of a one-off coproduction or a more permanent arrangement. If you decide to collaborate with one or several producers for a longer term, you might consider setting up a new company together. In that case you will need to consider whether you will both or all be shareholders and directors. You will also need to agree how to regulate your business relationship between yourselves: who will own which type of and how many shares? Will you all be directors and shareholders? Who will be responsible for what? What happens if one of you decides to part ways?
If you decide to set up a co-production for one film or project only, similar considerations will apply. Of course, you will only need to consider your respective rights and responsibilities for one project only, which will make matters slightly easier. Whilst only being for a short(er) term your coproduction agreement will still need to set out how the IP in the film is shared, how the project will be licenced and distributed, how profits are shared and also who will be responsible for what aspect of production. It is advisable to agree at the outside in which areas which producer would have the final say and whether there are any areas where decisions would need to be made jointly.
Strategies for protecting your IP
Before you partner up with any other producers you need to talk about who will get to own which share (if any) of the IP that you will be creating in developing and producing your film. Thinking about IP protection is crucial at this stage. One way of deciding how IP ownership is to enter into a co-production agreement between yourself and your co-producers (see above). It’s also crucial that you enter into contracts with every single cast and crew member who works for you in any capacity. Whilst not every crew member’s work will create IP in doing what they’re doing, certainly all cast members will do. By entering into standard cast and crew agreements with each of them, you can ensure that you will be the owner of the copyright and IP that they may have created through their contributions to your film.
Some projects will also register trademarks for the film. That’s particularly relevant in the case of animations. It’s comparatively rare to see trademarks, such as brands or logos, being registered for a live-action feature film or tv series, because there wouldn’t typically be as many items that can be registered in the first place.
Some producers decide to register the screenplay for the film with the US Copyright Office. There is no comparable office in the UK. Whilst registering the screenplay with the US Copyright Office creates a layer of comfort around other producers not being able to steal your screenplay, please note that registering your screenplay is not a requirement as far as copyright is concerned: if you have entered into an option agreement, scriptwriter agreement or assignment agreement with the author of the screenplay, then – depending on the terms of that agreement - you should still be the owner of the copyright in that screenplay.
Partnering with a Media Lawyer for Effective IP Protection
I have advised entrepreneurs both in and outside the film and tv world. Examples include digital nomads and solo entrepreneurs, as well as individual producers who have partnered up to set up their own production company and production companies looking at their next big project. If you have any questions about effective IP protection, please don’t hesitate to contact me here.