Tony Morris has had a lifetime of experience working with film producers, old and new, and with film projects large and small. He could tell stories all night long about film producers dumb mistakes. He’s written an excellent legal handbook that is written in an easily digestible step-by-step guide to sorting out the legal issues filmmakers face. He also teaches an evening course Basic Legal Contracts which you can join in person in London or live online.
Film producers dumb mistakes
1. I came up with a great idea for a movie and discussed it over a couple drinks with a studio guy at Cannes. The studio is now making a film based on my concept but won’t pay me. I am going to take him to court.
Tony Morris: There’s no copyright in an idea only the expression of an idea in permanent format e.g. a script, a digital file, a format book
• An idea or concept maybe protected as confidential information
• Confidential information may be made the subject of a formal non-disclosure agreement; alternatively, information shared in circumstances where it is apparent that a duty of confidence arises may be protected
• In the absence of a written agreement, the person divulging what he/she believes to be confidential information may send written confirmation of the position – even after a meeting – for example by email
2. I paid a friend to write the screenplay for my film so obviously I own the copyright and the right to turn the piece into a television series.
• The author of an original work will be the first owner of copyright; if a work is created by an employee for his/her employer in the course of employment, then the employer will own it
• In the absence of a written assignment (i.e. transfer of ownership) copyright will remain vested in the author so that the commissioning party will only acquire a licence (a right to use the work); the terms of the licence – period, media, territory – will be limited by what was in the contemplation of the parties at the time of the commission
3. I wrote and produced the film so I own all the rights in it.
• The first owners of copyright in a film are the producer and principal director of the film
• A producer will usually seek to acquire all of the copyright and rights in underlying contributions to a film in order that exploitation of the film will not be subject to challenge by any of the contributors
• Producers are advised to acquire outright ownership of copyright in the script, the director’s copyright, all and any designs, artwork and stills and, if possible, all original music and sound recordings created for the film. All performers should provide consents to the producer enabling their performances to be used for all of the purposes of the film.
4. I did confirm to the director in an email that he could have sign-off on the final cut, but I have changed the ending quite a bit so I suppose he won’t mind if I bypass him before taking the film to Berlin. I’ll also take his name off the credits as a precaution in case he objects to the change.
• As one of the authors of the copyright in a film, a director has moral rights in his/her work, principally the right to be identified as an author (the paternity right), usually complied with by way of credit, and the right not to have a derogatory treatment made of his/her work (the integrity right).
• Changing the ending of a film without a director’s consent will likely constitute an infringement of the moral right of integrity
5. For the scene with the archaeologist, we are going to set up a shoot on the forecourt of the British Museum; I’m sure they won’t mind.
• Consents are generally required to film in all locations.
• Application should be made to those responsible for controlling ‘public’ spaces. Local authorities are responsible for granting permissions for shooting on their streets.
6. I don’t now need to get sign-offs from the actors as I have had an offer for distribution both in Europe and the States and will be signing the contract next week.
• An actor has a right in his/her performance the use of which requires consent. Consent may be implied, for example, by an actor willingly performing a role in front of cameras.
• Nevertheless, the extent of the consent may be limited unless expressly set out in writing. For example, payment to an actor for a performance given on the understanding that a film is only to be shown in a festival will not necessarily entitle a producer to exploit that performance commercially
7. The little girl is played by Shona, the six year old niece of my friend, Delia. I told her it was a short about telling bed time stories which is a bit of a porky-pie as it’s really a drama-docko about paedophilia.
• Performer’s consent for a minor must be obtained from a parent or legal guardian
• A performer has moral rights in his/her performance which include the right not to have a derogatory treatment made of a performance
• Using a performance in the manner contemplated in this example would be a derogatory treatment quite apart from potentially giving rise to a claim for misrepresentation
8. I don’t need to bother with the Pearl Jam track as we’re only using 5 seconds.
• Regardless of how short a music clip maybe it needs to be cleared
• Clearance needs to be obtained of each of the underlying musical composition, the performance by the performers of the composition and the sound recording made of that performance
9. There’s a clip from Star Wars: The Force Awakens playing on TV in one scene but it’s in the background so I don’t need to clear it.
• If a directorial decision is made to deliberately include a clip of an existing film, programme, piece of music, photo etc. that is in copyright then it needs to be cleared
• The permitted fair use of incidental inclusion only applies if the copyright is genuinely in the background – such as when interviewing on the street and a car drives by with music playing on its music system
10. Above the TV there is an official poster for Star Wars; it’s really cool with all the main characters so we are going to keep it in shot.
• The poster is a copyright work and its use must be cleared as it is being intentionally included in shot
11.I’ve got some wicked footage for my feature which my ex shot on his iPhone and shared with me when we were still together. He shot it when we were at Glastonbury. In it Adele is dancing with Robbie Williams and they are both singing along to Mumford and Sons playing live. I am going make it the opening sequence.
• Checks need to be made with the organisers of Glastonbury to ascertain whether footage shot at the festival may be commercialised without consent
• The singing and dancing by Adele and Robbie, even as members of a large audience, will be regarded as performances and thus require their respective consents for inclusion
• If it’s audible, the use of the copyright in the composition being performed by Mumford & Son will need to be cleared as will the performances by the band
• Copyright in the footage shot will be owned by the producer’s ex who will also need to give his consent to its use and exploitation
12: I’m not too worried about paying everyone else as I have a verbal understanding with the sales guy who told me he that he will collect all the income and pay me. That way, when I get the money at some point, I will be able to pay everyone else’s shares as well.
• All sales and distribution agreements should be in writing
• Sales agents ought not to be responsible for collecting income from multiple sources and accounting for it to multiple profit participants
• Where there numerous profit participants in a film it is usual to enter into a Collection Account Management Agreement (CAMA) administered by a neutral third party who will collect all of the income and then account to the sales agent and the profit participants in accordance with the payment priorities agreed between them
*Tony Morris is a partner and Head of Media + IP Law at Marriott Harrison LLP, solicitor, London. Tony is also the author of The Filmmakers’ Legal Guide http://www.marriottharrison.co.uk/2015/10/29/the-filmmakers-legal-guide/ and a regular lecturer on Raindance Producers’ Certificate courses. Take one of his courses and learn how to avoid film producers dumb mistakes