If you are a writer, a videomaker or a producer it is important that you know the many contracts that regulate film rights. It will be useful for you to produce any audiovisual product!
We are here to explain everything to you and, step by step, we will clarify your doubts. Thanks to the collaboration of Angelisa Castronovo, one of our lawyers specialized in the field of entertainment and film rights.
Film rights: lot of professionals involved
First of all, film rights are rights deriving from one or more intellectual property. They are also used for the production of collective works, under the protection of copyright.
Film rights involve many people, that is, all those who participate in the preparation, production and distribution of the cinematographic work.
The audiovisual product, considered a work of ingenuity of a creative nature, is in fact the work of several professionals who deal with numerous services including:
1. The writing of the subject, that is the plot of the film
2. The writing of the screenplay
3. The composition of the soundtrack
4. The artistic direction or the film direction
5. The realization of production
In reality, many other figures are hidden behind the cinematographic or audiovisual works and, now, we will see together those just mentioned.
Who owns the copyright?
As we said before, the filmic work falls into the category of collective works. The author or co-authors of the original work hold all copyrights to their creative contribution. Until, however, they decide to sell them to a producer who intends to use them in the desired adaptation.
As a result, the copyrights, once transferred, are the responsibility of the producer as regards their economic exploitation. The authors will always remain the holders of the so-called moral rights.
But who exactly are the authors?
Those who write the history are called authors. Art. 44 in fact specifies that “the co-authors of the cinematographic work are considered the author of the subject, the author of the screenplay, the author of the music and the artistic director (Ed. the film director)”.
All these subjects therefore have the right to be mentioned as co-authors during the screening of the film. With their name and with the type of contribution made.
Specifically, the film director, is the one who is entrusted with the artistic direction of the film. The director’s performance involves his creative contribution which must therefore be regulated in a special contract.
For the music of a film, however, its realization can be commissioned to a composer. Also in this case the producer will have to acquire from the author of the music all the patrimonial rights and economic exploitation of the songs.
If the soundtrack of the film is already existing, it will be necessary to acquire the license of the rights of the respective owners.
The copyright belongs to all the people mentioned above, which is the author of the subject, the author of the screenplay, the director and the composer of the original music.
The producer, on the other hand, among the many activities he has to carry out, has the task of acquiring copyrights. This can be done by drafting the relevant agreements that we list immediately ⬇️
The right deal that protects your film rights
So, once the producer is involved, first you have to deal with a complex series of contractual relationships. In fact, these are necessary to ensure the producer the ownership of the final product! The production of a film, without this step, cannot exist. The most used contracts in cinema are:
1. The directing contract used to acquire the rights of the director and to commission the related performance.
2. The contract for the assignment of rights, necessary to acquire the rights to the subject and the screenplay
3. The eventual option contract for the pre-production phase of the film (Ed. the producer does not always decide this path, sometimes in fact he chooses directly the contract for the assignment of rights mentioned in point 2)
Let’s explain them step by step.
The directing contract
If you are a producer it is important to know how to draw up a film direction contract.
First of all, the director must declare, in the preconditions, that he is interested in taking over the direction, that he has no other contractual ties with third parties; he must also have considered the cast, the script, the places of work and the period of filming.
⚠️The preconditions are an integral part of the directing contract, without these there can be no directing contract!⚠️
The director, once he has clarified his intentions in the preconditions, undertakes to:
1. Fulfill his duties as director and director of editing
2. Start shooting and carry out the task respecting the times decided in the processing plan
3. Make himself available for the production to carry out all the activities necessary for the pre-production of the film
4. Participate in the film promotion initiatives envisaged by the launch plan
Therefore, the producer, in order not to create misunderstandings, should explicitly declare the assignment performance period and the shooting locations. Without forgetting the remuneration, refunds and the edition of the film in its final version.
This last point is very important. In fact, it is possible to change the initial version of the film in accordance with the production, if the final cut has not been granted to the director! For the producer this could be a lifeline if the footage does not turn as planned. 😉
The contract for the assignment of rights
To understand how the assignment of copyrights works, we must first clarify an extremely important issue. The author owns two types of rights: the right of authorship of the work – non transferable – and the right of economic exploitation that comes from the work, which is transferable.
This means that, the moral copyright of which the right of authorship is part, cannot be transferred. The creation of the work, therefore, cannot be attributed to someone else. In addition, the right to the integrity of the work prevents changes from being made by others (Ed. except in exceptional cases). Great news for the authors! 🙂
The object of the assignment of copyright will be the rights related to the publication, reproduction, diffusion, distribution, mise-en-scène and promotion of the work. As the author created it, in addition to all the numerous other uses expressly mentioned in the contract.
Once this is clarified, we can talk about the rights assignment contract.
The contract for the assignment of rights takes place when the producer acquires the rights of economic exploitation of a work to be created – which can be a subject, a novel, a story, etc … – from which he then intends to have a screenplay made that will be commissioned to specialized authors.
Through a specific contract the author or co-authors then assign the right of economic exploitation of the work in exchange for a cash consideration.
⚠️ The author, when signing the contract for the assignment of the right of economic exploitation, must not transfer his or her works to the client without time limits. The contract for the assignment of copyright is in fact a real collaboration contract. It should not be seen as a relationship of subordination with the client! ⚠️
The author, for his part, has numerous obligations, including that of delivering the work by the date established in the contract.
The customer, on the other hand, will have to pay a sum of money for the performance and assignment of rights.
Another important factor is that, the right of economic exploitation of the work lasts for the entire life of the author, up to 70 years after his death. After this period of time, the work is in the public domain and can be used freely.
The essential elements for the contract of assignment of rights, which usually has significant tax and contribution advantages for the authors, are:
1. The object of the contract that must be specified in detail (the type of work and which property rights are transferred)
2. The remuneration established and the methods of payment
3. The deadline within which the work will be delivered
4. The guarantee by the author that the work is not subject to any constraint and does not infringe the rights of third parties
5. The non-competition agreement in favour of the customer
6. The guarantee that the author will not use the work in any way
7. The place of jurisdiction in the event of a dispute
The option contract
The contractual option agreement is a very common choice in the development of a film project.
The author, when signing this agreement with the production company, chooses to submit to the pre-sale of the rights of his or her work. It is like a semi-acquisition of film rights!
Why does this sort of semi-acquisition take place?
First of all it allows producers to reduce financial losses in case of project failure. In addition, it guarantees the author a fair amount of money from the potential buyer after the acquisition of the so-called copyrights.
⚠️ A very important fact that must not be forgotten: it is not sure that at this stage the work is actually transposed. To start pre-production, in fact, the terms for financing and budgeting must first be approved⚠️.
It may happen that, in case of troubled development, the rights expire (Ed. usually do not have to pass more than 12 or 18 months). If it reaches beyond the allowed period, the author can sell the rights to another producer without any problems. The owner of the work always remains in full possession of his copyrights. In fact, he can give them to someone else in case the agreements have not been successful!
The elements of the option contract that must be present are:
1. The cost to be paid for granting the right of option
2. The period of time for the right of option
3. A possible fee for the author, that is a small percentage of the proceeds of the film
4. Any royalties to be paid to the writer regarding the following productions (Ed. in case of sequels or television series based on the work)
5. The rights reserved to the author in the option contract
6. A lawyer to help you sign the agreement
The film lawyer: a support towards the best choice for you
If you are looking for a lawyer who is an expert in film rights, the first step is to consider what kind of consultancy you are looking for. It is also important to understand the professional who is right for you based on his specialization.
There are, in fact, lawyers specialized in different fields of law. We are specialized in the protection and preservation of copyright and intellectual property. With us you can safeguard any type of project: from science, to literature, design, fashion, figurative arts and cinematography.
We also collaborate with a network of lawyers ready to respond to any of your needs and who, if necessary, can offer you a customized solution.
Eventually we could recommend a consultancy with one of our lawyers expert in film rights such as Angelisa Castronovo 🙂
The article was written thanks to the kind collaboration of the lawyer Angelisa Castronovo
