Copyright exploitation agreements

11.15.10 Copyright exploitation agreements

This section is intended to serve only as a rough guide to the contents of agreements for the filming and broadcasting of copyright works. Such agreements can involve a complex assortment of different rights, such as rights of performance, broadcast and adaptation, and must cover important issues such as the period of time and geographical extent of the rights concerned. The Writers’ Guild and the Society of Authors have negotiated collective agreements dealing with the commissioning of original works and the adaptation of existing works. Similar agreements exist with respect to music. The exploitation of a work as a film or television programme can add substantially to an author’s income, but all the risk and outlay involved will devolve onto the producer. As a result, it is often the practice that a producer will negotiate a right to a share of these increased royalties. However, it is also common practice for an author to negotiate a share in the future profits of the film, etc. The size of this will vary depending on the reputation of the author.

Potential issues include:

1 Character merchandising rights. These are protected in English law by

copyright, trademark law, and the tort of passing off. The latter two depend on registration and use in a commercial context. Copyright will

Managing in the Media

belong to both the creator of the characters and the producer of the film from which they take visual form. Failure to agree who should register and license trademarks, and how the copyright interests should be divided and licensed, could lead to expensive and messy legal battles. It is in all the parties’ interests that these matters should be settled in the contract between the writer and producer. Normally, the responsibility for character merchandising will be undertaken by a third party, who will then pay all the parties an agreed level of royalties.

2 Rights acquired. These can vary according to the individual contract and to the nature of the project. For example, UK television production companies will often only acquire the exclusive right for 2 years to broadcast a performance of the script on domestic television. This period can be extended (to 3 years), and once broadcast is made further rights are triggered – for example, the right to unlimited repeat transmissions within the UK subject to the payment of an appropriate fee (which may vary according to the time of the repeat), rights to sell the programme abroad (again subject to the payment of royalties to the writer), an option to acquire the rights to issue the performance of a script on video, exercisable within 7 years of the first broadcast (again subject to fees being paid).

Contracts usually also provide for additional media rights (i.e. satellite, cable, video, and public showings of television programmes). Again, a royalty fee is payable. It will be a term of the contract that the script does not infringe other copyrights (unless permission has been obtained) and that it is not defamatory (although the writer will not have to reimburse the payment of damages if the defamatory matter was not included negligently or maliciously). This is a warranty.

The contract will often make credit provisions – in particular, it will provide for how the writer will be mentioned in the credits of the programme.

BBC contracts provide that for a year following the first broadcast, a writer must consult the BBC before allowing any other publication. Unless expressly dealt with by the contract, no right of publication passes to the television company.

Rejection, revision and payment are also covered in the contract. Naturally, there should be provisions in any contract dealing with when and how a writer should be paid, and what the consequences are for both parties in the event of the rejection of a script. For film scripts, there are standard form contracts that deal with the rights at issue at each of the following stages of production: treatment, first draft, second draft, and principle photography

Principles of media law

script. There are undertakings on the writer’s part to attend meetings, and to avoid the infringement of other copyright works. The agreement will decide the allocation of the copyright interests, and will deal with the rights of additional exploitation.