Out-Law Guide | 29 Nov 2005 | 11:15 am | 3 min. read
Film and television producers quickly learn that getting clearances right is crucial to the successful exploitation of their work. Without the correct clearances, you can be prevented from distributing your work in certain territories or over certain media, which in turn prevents you from earning revenue.
If you wish to include copyright material in your film or television programme, such as archive film footage, music and consumer brands/products you must have the right to do so in the form of an outright transfer or a licence of the copyright from the owner of these rights. Obtaining rights in this way constitutes copyright clearance.
Clearances also apply to individuals: for example an actor's performance in the film/programme must be cleared for all uses. This will normally be covered in standard engagement contracts for actors.
The first stage is to think about what the film/programme will comprise and decide what clearances will be necessary. In some cases you may be able to avoid having to seek clearance altogether, such as where a work is "out of copyright". This will apply to works where the period of copyright (in the UK the life of the author plus 70 years) has expired. Be careful when dealing with foreign works to ensure that the period of copyright in the relevant territory has in fact expired. Also be careful to ensure that all copyright in the work has expired. For example, although copyright in the lyrics to a song may have expired, the record company may still hold copyright in its recordings.
It is important to look ahead and take a broad view of the clearances you might require. Also ensure that the clearances you get are consistent with one another: if they have to be limited to a specific term, try to ensure that it is the same term. Otherwise you will face an administrative headache in exploiting rights that expire at difference times.
This is the most common form of clearance: the copyright owner gives you a limited right to use the copyright material. Often the licence will be limited in terms of the territories in which the material can be used, the media (e.g. only cinema films and not television) or the time period. It is important as a producer to negotiate as wide a licence as possible to make your end-product capable of wide exploitation. If a particular piece of copyright work is proving difficult to clear, it may be better to do without it, rather than risk your ability to distribute your film/programme.
This is more unusual in media, but is a powerful clearance to get since it places the producer in the shoes of the owner, with total control over use of the copyright material. You would normally expect this type of transfer of rights from the cast and crew in relation to the copyright they generate in connection with making the film/programme and the writer of the screenplay. You would not expect to get this type of clearance for ancillary material such as pre-existing music used in the soundtrack, but should ask for it in connection with music specially composed for the film/programme.
Often the contracts that you enter into with financiers will stipulate a minimum level of clearance in the form of media and/or territories which must be cleared for use. In many cases, even if you do not need to clear all rights up-front (for example, where a television programme is for UK only) you will be asked by the broadcaster to pre-agree a price with the rights holder for clearing worldwide rights. This is also in your interest, however, since it prevents a rights holder from being able to "hold you to ransom" for clearances later if the programme is a success.
Make sure that any distributor you appoint is under an obligation in his contract to advise of any sales which would trigger additional payments for clearances. This might arise where a copyright owner has accepted pre-payment as clearance only for limited territories, with the rest to be cleared by additional payments when used. The distributor should also be obliged to ensure that the sale generates sufficient revenue to justify the costs involved. Some distributors are willing to administer clearance payments on behalf of producers, but remember that you are primarily responsible to the rights holder if clearance payments are not made when they should be.
Organising rights clearances early is vital to the successful exploitation of a film or programme. Thinking ahead to what rights need to be cleared and then what territories and media they need to be cleared will save a last-minute plea to the rights holder, opening up the prospect of a demand for a higher price because of the urgency.