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«Rights, Camera, Action! IP Rights and the Film-Making Process Creative industries – Booklet No. 2 Rights, Camera, Action! IP Rights and the ...»

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To many producers working in countries where broadband infrastructure is nascent, while traditional windows are corroded by piracy, these final observations may have seemed both abstruse and premature. However, we note that for all the glamour and novelty of broadband Internet as a vehicle for film distribution, the producer’s strategic discipline in licensing his IP rights remains remarkably similar to that which he will have brought to the traditional value chain. If this publication has one common thread running throughout, it is that for the creative film entrepreneur, IP rights are not a theoretical proposition: they are the living material on which their extraordinary occupation depends, the dynamic currency that leads them gradually and painstakingly towards the fulfillment of a singular creative vision and its expression into a unique work, the result of the collaboration of many.

We only hope that this all-too-brief introduction to IP and the film making process will have exposed a little of the complex IP wiring behind the production of even the simplest and most inexpensive film. We hope also, that by not playing down the considerable challenges involved in the enterprise of film production, we will have introduced a note of realism to readers whilst also nourishing their true ambitions.

Rights, Camera, Action! – IP Rights and the Film-Making Process ANNEX Glossary of Film Production Terms Above-the-Line: line items in the film’s budget that refer to sums paid to key talent and rights holders who are often also profit participants.

Advance: a sum paid in cash for the rights to distribute a film in a territory and/or a particular medium.

“A” List: a director or star whose presence in the film will ensure that it will attract finance and/or distribution.

Below-the-Line: line items in the film’s budget that refer to sums paid to contributors who are engaged on a work-for-hire basis.

Cap: usually, a limit to sales or distribution expenses that cannot be exceeded without the producer’s permission.

Chain of Title: the documents and contracts that demonstrate exactly how the rights in a project are controlled by the producer.

Charge: a legal charge over the rights of the film that ensures contractual obligations are satisfied.

CGI: computer generated effects.

Collection Agency: an agency set up to administer the collection of revenue from the film’s exploitation and the dispersal of that revenue to the financiers of the film. The collection agent also distributes net profits.

Common Law Rights: in the context of filmed IP the convention in countries such, as the UK and the US that the producer is the author of the work and controls its final shape and form.

Completion Bond or Guarantee: specialized production insurance that guarantees the timely delivery of the film to an agreed budget.

Co-production: a film that combines creative, production and/or financial inputs from more than one territory.

Rights, Camera, Action! – IP Rights and the Film-Making Process Co-production Treaty: a cross-national governmental agreement that sets out how a co-production must be structured to benefit from national incentives.

Cottage Industry: any small, low-profit, nationally-based industry that relies on little capital and local markets to survive.

Crossover Film: a modestly-budgeted film with a quirky edge that manages to attract a much wider audience than originally envisaged.

Day-and-Date: simultaneous release of a film across multiple territories and, more recently, multiple distribution platforms.

Debt Financing: finance lent to the production and recoverable in first position.

Deferrals or Deferments: delayed payments or remuneration paid to a supplier or contributor as and when the producer receives revenue from the film.

Delivery: the technical delivery of the elements of the film to distributors and/or financiers in order that it can be sold and/or distributed.

Development: refers to the time and actions necessary to move from an idea to a completed script (or screenplay) ready to be filmed.

Dialoguiste: the writer of dialogue only.

Director’s Cut: the early form of the film that is under the direct control of the director.

Droit d’auteur: the right of the author to assert paternity and moral rights over the works s/he creates; prevalent in countries like France, Italy etc.

Equity: an investment that attracts a significant share of the profits of a film but recoups back debt.

Escalator: bonus payments made to producer or participants if performance thresholds are exceeded or awards are won.

Executive Producer: usually a producer whose principal task is the financing of the film.

Final Cut: the right of a director, producer or financier (or a combination of all three) to approve the final shape and form of the film.

First Negotiation and Last Refusal: the right of a person or company to have the first opportunity to bid for rights and the last opportunity to match a third party’s bid.

First Position: the finance that comes out first as revenue is accrued.

Letter of Credit: a banking instrument often issued by distributors that allows a producer to cash flow an MG via a bank.

Long Tail: in commercial terms a phrase coined by Chris Anderson to describe products that are in low demand or have low sales volume but which can collectively make up a market share that rivals or exceeds the relatively few current bestsellers and blockbusters.





Rights, Camera, Action! – IP Rights and the Film-Making Process Gap Financing: finance (usually debt) against unsold territories.

Gross Deals or Adjusted Gross: direct participation by a major financier or talent participant in first revenues.

License: a time-limited grant of rights.

Life Rights: the right to make into fiction the real-life experiences of a living person.

Line Producer: non-creative, work-for-hire producer responsible for seeing the production is managed properly on a day-to-day basis.

Minimum Guarantee or MG: finance promised against exploitation of a film in a territory and/or medium.

Moral Rights: the right of the author of the work (usually the director) to control the final shape and form of the work.

Net Profits: the profits that return to the producer of the film.

Option: the instrument by which a producer controls a property for a limited amount of time before making the decision to purchase the rights.

Output Deals: pre-negotiated deals usually between studios or major producers and local distributors and/or broadcasters ensuring certainty of distribution.

Overage: any sums paid to any recipient of a film’s revenues after recoupment of the production cost and any sums payable to financiers.

Overspend: any costs incurred in the completion and delivery of a film which exceed the amount of its agreed budget including any contingency.

Package: consisting of factors such as expressions of interest from one or more lead actors and the attachment of a director to the project.

Participation: the share of net profits that is owned by a creative or financial contributor to the film.

Polishes: short engagements of a writer to improve sections or themes within a script shortly before financing or production.

Pre-Production: the preparation and organization of the film prior to principal photography.

Primary, Secondary and Ancillary Rights: rights windows usually defined, in order, as theatrical, video/DVD/TV and other (airlines, publishing, merchandising, etc.).

Principal Photography: the period during which the principal action and the principal actors are filmed.

Prints and Advertising or P&A: investment in the release of a film in the physical prints and the costs associated with marketing the film.

Producer: the person or company responsible for making the film; usually controls the rights.

Rights, Camera, Action! – IP Rights and the Film-Making Process Production Bonus: a further sum paid to a writer or rights owner on the first day of principal photography.

Production Budget: the cost of making and completing the film.

Production Insurances: standard film production insurances required to be in place by the completion bond that cover all risks associated with production such as illness, fire, theft etc.

Property: the script, story or other material a producer options or purchases to make a film.

Rebutable: rights granted by moral law to a rights holder allowing him/her to retain his moral rights.

Re-Format Rights: the right of a producer to convert the script to another format than originally envisaged, e.g., not film but TV.

Reserved Rights: those rights a writer of a spec script or owner of the rights might reserve for himself when granting an option or license, often radio or stage rights.

Residuals: payments to a contributor to a film from the exploitation of the film;

usually imposed and controlled by union agreements.

Rights: the underlying rights to the content of the film.

Rough Assembly: the early cut of a film in post-production.

Royalty: the payment to a rights holder of a share of a film’s exploitation in certain media.

Sales Agent: corporation set up to sell rights on behalf of the producer to distributors around the world.

Sell Thru: VHS/DVD distribution from which the purchaser owns the unit.

Separated Rights: similar to reserved rights but granted to a writer or rights owner in a work-for-hire context.

Spec Script: an un-commissioned script owned and controlled by the author until its purchase or option by a producer.

SPV (Single Purpose Vehicle): a UK limited company responsible for producing and delivering the film.

Supplementary Remuneration: similar to a royalty and used mainly in droit d’auteur countries to refer to a share of cinema revenue.

Syndication: licensing usually very successful films to local US TV broadcast networks.

Ten-Percenters: a slang term for talent and literary agents.

Tent Pole: those half-dozen pictures per year on whose success the US studios depend.

Treatment: a short document that outlines the shape and form of an intended feature length script.

Rights, Camera, Action! – IP Rights and the Film-Making Process Turnaround: a pre-negotiated process for the reversion of rights to the author at the expiry of the option or license.

Underlying Work or Underlying Material: the material or story that forms the basis of the script.

Underspend: any difference between the final audited cost of production of a film and the total amount of its agreed budget including any contingency.

Window: that period of time when a distributor or broadcaster is given an exclusive right to exploit a film.

Work-for-Hire: those contributors to a film whose rights are purchased with their employment contract.

Rights, Camera, Action! – IP Rights and the Film-Making Process

ACKNOWLEDGEMENTS

The authors wish to thank the following persons and organizations for their help and

support in the preparation of this publication:

Muhammad Ramzy, El Nasr Films, Cairo Valérie Lépine, Director General, International Federation of Film Producers Associations (FIAPF), Paris Richard Moxon, Davenport Lyons, London Philippe Carcassonne, Ciné B, Paris Pooja Bedi, Film Finances, Mumbai Bobby Bedi, Kaleidoscope Entertainment, Mumbai Sanjeev Wasswas, AP Film Distribution, Chennai Matthew Justice, Films, London Marc Samuelson Productions, Samuelson Productions, London Shira Perlmutter, International Federation of Phonograph Industries (IFPI), London François Hurard, Centre National de la Cinématographie (CNC), Paris Charlotte Lund Thomsen, International Video Federation Andrew Chowns, PACT, London Terry Illot, Bridge Media, London Angus Finney, Bristol Andy Patterson, Archer Street, London For more information contact WIPO at www.wipo.int World Intellectual Property Organization 34, chemin des Colombettes P.O. Box 18 CH-1211 Geneva 20 Switzerland

Telephone:

+41 22 338 91 11

Fax:

+41 22 733 54 28

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