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Legal Eagle

Copyright

Q: Film copyright

I want to make a low budget film but perhaps paying the actors' expenses only. I want to retain copyright and show the film wherever I like - can I do that and not face problems with the actors?

A: The copyright in a film belongs to the producer and the principal director. If you wish to own the copyright you will need to obtain an assignment of the director's interest in it. Otherwise he will have an equal say with you as producer over any dealing with the copyright in the film.

Under English law, any performer who is a citizen or a subject of or an individual resident in the United Kingdom - or another member state of the EU or a country enjoying reciprocal arrangements with the UK - has a prior right of consent to his performance being recorded in any such territory. That is unless the recording is made by that person for his private and domestic use. Consequently, any film made for commercial exhibition without the consent of the performers in it will be an infringement of their rights. But the giving of such consent is an absolutely standard contractual term, usually incorporated into contracts between producer and performer. It would otherwise be implied from the fact that if you engage an actor to act in a film, he can hardly be heard to say he did not consent to the making of the film.

It follows from the above that, if you wish to retain copyright and show the film wherever you like, then you will need a worldwide assignment of copyright from the director and you will also need consent from the performers to the making of the film without any restriction on place of exhibition.

As to low budget films where the actors are expected to defer payment of their remuneration until after shooting is completed and the film is distributed and revenue starts to come in, reference should be made to my Legal Eagle column in The Stage issue of December 14, 2000 (see entry called 'Safeguarding wages on 'deferred payment' contracts' in the Contracts section) where I dealt with this in some detail.

However, whatever remuneration may or may not be paid to the actors, you should note that where copies of the film are rented or lent to the public, eg by videogram or DVD, the performers have a statutory right to equitable remuneration which cannot be contracted out. Even if contractual provision is made for what the producer considers to be equitable remuneration, any performer who considers it less than equitable may apply to the Copyright Tribunal for it to be fixed by the tribunal. Such performers' rights as to consent to recording and as to equitable remuneration subsist in the European Community until 50 years from the end of the calendar year in which the performance takes place or 50 years from the end of the calendar year in which the recording is released by exhibition to the public, whichever is the later.

Where an agreement for film production is concluded between a performer and film producer, the performer is presumed, in the absence of agreement to the contrary, to transfer to the film producer any rental right in relation to the film, eg by video exploitation, but that does not include the performer's right to equitable remuneration which cannot be assigned except to a collecting society for the purpose of enabling the latter to enforce the performer's right on his behalf.

First published August 2002