«Rights, Camera, Action! IP Rights and the Film-Making Process Creative industries – Booklet No. 2 Rights, Camera, Action! IP Rights and the ...»
Reserved rights are not just rights which the author of the underlying work is allowed to exploit without constraints: most agreements have the author agreeing not to exploit those rights for a set period of time (holdback), to permit the full exploitation of the rights purchased by the producer without competitive threats. In general, the producer will insist on a right of first negotiation whereby prior to any sale of the reserved rights the author wishes to undertake, the rights have to be offered to the contracting producer first. Equally, the producer may be granted a last refusal right whereby the author is obliged to offer him a sale of his reserved rights on terms equal to those offered by another bidder.
1.v Into the Void – commissioning a script By the time the producer has exercised his option and purchased or licensed the rights to the underlying works, the script for the project should be fully in development, or even completed and ready to shoot.
Writers of scripts are authors. The scripts they write may be seen by the film makers as a template for a director to take and turn into an audiovisual narrative, but most national intellectual property laws also recognize it as a work of authorship in its own right.
As a result, an agreement between a producer and a writer is generally both an employment contract and a rights’ acquisition agreement. The producer typically hires the script writer to produce a treatment (a short narrative canvas for the film) Rights, Camera, Action! – IP Rights and the Film-Making Process and a first draft script; the agreement may also specify any further drafts, re-writes or polishes that he expects for the agreed fees.
The legal status of the writer’s contract varies according to prevailing copyright and related rights’ legislation.
In the US, unless a script is written and spontaneously submitted by a writer (referred to as a spec script), the contracting producer is presumed the sole author of the work and therefore is entitled to the copyright and all rights in the script commissioned by him. Under this work-for-hire doctrine, the writer merely fulfils a service contract and has employee status. He owns none of the intellectual property in the work.
In the UK, the writer of any script, whether commissioned or unsolicited, is deemed the author – not of the resulting film – but of the screenplay itself. The British writer’s
contract is therefore both an employment contract and a rights’ acquisition contract:
remuneration is specified for the various stages (treatment, first draft, first draft rewrites, second draft, second draft re-writes, etc). The rights held by the writer in his screenplay are listed and assigned separately to the producer. The different rates paid constitute both remuneration for a service and a purchase of the rights in the material generated by the writer. Typically, when the rights in a feature film script are acquired for use on television, the initial remuneration for the script writer will cover only a limited number of transmissions on free-to-air television. Any further transmission thereafter is covered by collective bargaining between the local writers’ guild and the producers’ trade body, with specific residual payments corresponding to specific forms of exploitation after a specific number of runs, for subsequent use.
The script writer’s entitlement to authorship may seem weak at first glance, because his rights are almost always assigned to the producer as a matter of course. However,
the power to assert his rights is useful on at least two counts:
(ii) Some established writers may use their authorship status to negotiate a limited license over certain rights to their work, rather than a straight assignment, and to retain or reserve certain rights.
Equally, although the US work-for-hire approach suggests no rights are retained by the script writer, influential writers can successfully negotiate to retain some sets of rights. These separated rights are granted only when the script is an entirely original work, not based on previous works. They are also only granted to writers who do not share a screen credit with other writers who may have been brought in by the producer to polish or doctor the script. The rights secured by these more powerful writers may include the right to publish a book derived from the script, or to produce a live theatrical performance. Another important right is that which allows the writer to buy the script back from the production company after a time (normally three or five years), if the film has not started production. Unlike the more limited turnaround provisions which may allow a writer to try to get the film made once the producer has given it up, this right is not limited in time: it’s an outright re-purchase which allows the writer to enjoy full and ongoing ownership of what he wrote.
In Europe’s droit d’auteur countries, the writer of the screenplay, be it an original one or a screen adaptation based on underlying material, has a presumption of authorship of the script as a distinct work. Interestingly, he is also deemed an author of the finished film, regardless of how much of the script ended up being shot by the director. As such, all transactions with the producer entail a negotiation for the full or partial assignment of those authors’ rights. The writer’s advance remuneration for writing the script is also legally treated as an advance due to the writer as the author of the work. The advance is against a proportion of all net receipts from the commercial exploitation of the film in all media.
In practice, the advance will represent most of the writer’s remuneration, as the majority of films fail to generate sufficient net revenue and this revenue has to be shared proportionately with other creative contributors who share in the authorship of the work. In France, for example, there is separate authorship status for the script writer, the writer of the film’s dialogue (the dialoguiste is sometimes separate from the writer of the overall script), the writer of the adaptation of an underlying work, the film’s director and the composer of the film’s score.
Rights, Camera, Action! – IP Rights and the Film-Making Process
1.vi The Art of War – producers, writers and their agents Like actors, directors, composers and other creative people, many script writers use a talent agent to represent them with the producer and ensure the best possible terms for their work engagement and/or assignment of rights.
Agents – also humorously described as ten-percenters in Hollywood, in reference to their commission – have been a growing force in the worldwide film industry. In Hollywood, film studios regularly complain that agents – as exclusive gatekeepers to the best talent – have far too much power. According to disgruntled film executives, the big agencies are making a major contribution to driving movie production costs upwards by negotiating high fees and revenue shares for the stars, directors and writers.
Agent representation is a major asset in a script writer’s approach to the film industry. On the whole, writers are vulnerable because their work – whilst being described as vital to a film’s success – is often treated as disposable by the producers and film financiers during the process of development. Acting out of their own sense of necessity, producers will frequently decide to replace the writer or bring in an additional one in order to get the final shooting script which satisfies their expectations and those of the director. The role of the agent is therefore not limited to making sure his client gets paid well, but also to doing everything in his power to ensure the writer will be kept creatively involved by the producer throughout the life of the project, from concept to filming.
This is not always easy to secure: historically, writers in mature film industries in North America and Europe have not always enjoyed the security of guaranteed payments. Over time their unions have negotiated standard clauses whereby a producer may not withhold payment on a commissioned script if he happens to be disappointed by its content. In return, producers have approached writers’ contracts in such a way as to limit their risk past the first draft stage: they will sometimes insist that the contract be flexible enough to enable them not to go ahead and commission the writer for re-writes or a further draft. In this so-called “step-deal” approach, the writer can count therefore on a guaranteed “flat fee” for the initial work, regardless of the producer’s intentions thereafter but the producer has the power not to exercise his contractual option to use the writer’s services for further Rights, Camera, Action! – IP Rights and the Film-Making Process re-writes and/or drafts. The standard deal structure will then be to negotiate a set fee payable in full to the writer if and when the film goes into production. The original flat fee (for the first draft of the script) and any further payment made to the writer for further drafts will then be treated as an advance on this production fee and deducted from the final amount payable when the film is finally shooting.
However, this deal only works well if the writer does not have to share credit with another writer who may have been brought in by the producer after the first draft stage. An established writer with a good agent can insist no second writer can be brought in to re-write his first draft or that – if one is – the initial draft has to be thrown away first.
In the section below, we analyze three case studies borrowed from real development situations. Each typifies a specific set of development issues and ways of structuring the development in response to those.
1.vii Development – the real stories Scenario One – factual works as the source for a fiction film The Farmer Wants a Wife is to be the “true story” of how the life of a female journalist is affected by researching and writing a series of magazine articles about a matrimonial agent dedicated to helping lonely farmers in England’s remote rural areas to attract a wife.
This bittersweet comedy project, developed by a British film company, was based on a television documentary series itself based on a series of feature articles written by a freelance female journalist and published by a UK life-style magazine. The film makers made the journalist, a real-life character, the core of the story, pitting her urban sophistication sharply against the more innocent scene of rural England.
The film producers were initially approached by the company which had produced the documentary series. This company believed the story had a wonderful potential as a feature film and thought the film producers’ past body of work made them ideal to take on the adaptation.
Rights, Camera, Action! – IP Rights and the Film-Making Process The development process which followed required the film producers to assemble a
complex chain of title on unusual underlying material:
The easiest rights to secure were those held by the documentary film company. They had approached the filmmakers and were therefore entirely disposed to transfer the rights, which eventually went to the film producers for a very small sum of money.
Before this could take place however, the film producers had to contact the publishing company behind the magazine which had commissioned and run the articles. This was needed because – although the publishers had already signed away the re-format rights of the article to the documentary company – it was not entirely clear whether or not these rights included a cinema film version. A conversation helped to clarify that point and clear this vital link in the chain of title, pending necessary documentation.
Finally, since the film makers had decided to make her the central character in the script, the journalist herself had to be approached for her consent in proceeding with the adaptation. Not to have taken care of this would have exposed the producers to a potentially damaging legal action because the journalist may then have been within her right to sue them for defamatory treatment, invasion of her privacy or libel, once the film was in production or on release in the cinemas. Like most other European countries (and most states in the US), the UK has libel, anti-defamation and protection of privacy laws. These are sometimes ambiguous and difficult to interpret, especially when public figures and famous people whose entire careers depend on being in the public eye are involved. Film makers anywhere in the world should always be aware of what these laws may entail before endeavoring to make a film based on someone’s life story, even if the character’s name is changed in the script and some of the events altered. The price of not doing so can be as high in some cases as an injunction on the exploitation of the finished film. In an injunction, the court would grant the plaintiff the right to stop the exploitation and/or circulation of the finished film. To avoid these, it is essential to seek the consent of the person Rights, Camera, Action! – IP Rights and the Film-Making Process involved through a life rights agreement. Perhaps the most famous case of a movie involving a real life story and running into legal trouble as a result is Citizen Kane, Orson Welles’ timeless cinema masterpiece. The film was based on the life of press magnate William Randolph Hearst and the similarities between him and the fictional character of Charles Foster Kane were sufficiently striking for Mr. Hearst to attempt to use legal means to stop the film from being released.