Media lawyer, Pamela Forte of Forte Law, explains why trust is no substitute for a legally binding agreement when it comes to collaborating on feature film development material.
If I had £10 for every time someone’s said to me, “We don’t need an agreement – we trust each other,” I could buy a small Caribbean island. And the area of film production where this occurs most frequently is in the development stage.
You know how it is. You may be a producer or director working in collaboration with a writer or another producer/director. You’re working together on a treatment/first draft script. You feel a tad uneasy about the copyright and rights situation but it’s not worth having an agreement drawn up at this stage, is it, There’s plenty of time to sort out the legal side when you bring the financiers on board and, hey, you trust each other, don’t you?
I can never understand this logic. So the time to enter into an agreement is when you don’t trust each other? I’ve experienced both variations and, believe me, the ones where the trust has gone out of the relationship take longer and hit your legal-fees budget much harder. Financiers and the money they bring to the table, welcome though they are, can often show up the cracks in relationships built on the most solid foundations. At this crucial stage you don’t want to discover the person with whom you are collaborating has an entirely different view as to the direction the project should take.
Far from damaging trust, entering into an agreement before the collaboration commences builds trust. It ensures you and your collaborator are clear as to the expectations you both have in respect of issues such as ownership of resulting copyright works and the basis on which these may be further developed and/or exploited by you, together or individually. Having an agreement in place before you approach a financier will also underline your professionalism and demonstrate your attention to legal detail.
Convinced? If so, what do you need to cover in the agreement at this stage? Here are a few issues you might want to think about:
- Ownership of any existing material. This might include any outline, treatment, etc, on which the collaborative work is based. Is it owned by one or both/all of the collaborators? Have any necessary rights been acquired from third parties?
- Ownership of copyright in the resulting copyright works and the proportion each party will hold. Copyright can be held in any proportion, not just 50:50. Holding a nominal share of the copyright is a good way of ensuring you won’t be cut out of the production at a later stage without acceptable terms being agreed.
- Waiver of moral rights. Financiers will invariably require moral rights to be waived and it is preferable for the parties to agree specific contractual provisions in place of the rights comprised in moral rights.
- Licence/consent to exploit jointly owned rights in specified ways. Where the copyright is jointly owned, it may be useful for the parties to provide advance consent to specified forms of exploitation.
- Rights of the owner of any existing material to exploit that material in ways which do not compete with the collaborative work. For example, if the existing material is a play, its author may wish to reserve the exclusive right to exploit live stage rights, radio rights etc.
- Warranties and indemnities. (Originality, non-infringement of third-party rights etc.)
- Provisions which will apply if a film is produced based on the collaborative work.Depending on the nature and circumstances of the collaboration, these may include provision for the parties to have an ongoing role in the production and a share of net receipts as these may eventually be defined in respect of the film. These provisions need to be drafted carefully to achieve the outcome of protecting the parties’ position while ensuring there is sufficient flexibility to meet financiers’ requirements.
So the next time you’re planning to proceed on trust alone, just ask this question: if you and your collaborator wrote down your expected position on the above issues, would your answers be the same? Time to get your agreement down on paper?
Pamela Forte established Forte Law, a media and entertainment law practice, in 2007. Forte previously worked for 16 years as an in-houselawyer at S4C where she gained extensive experience in film and television financing, production and distribution including structuring complexinternational co-productions involving treaty finance. In 2009 Forte lectured on copyright and film-related issues at Newport University’sInternational Film School and she contributes regularly to media and legal journals. She is recognised in Chambers Directory 2010 as a mediaand entertainment law expert.
Disclaimer: The points made above are intended as general guidelines and should not be regarded as a substitute for legal advice on any particular agreement.
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