NATIONAL SEMINAR ON INTELLECTUAL PROPERTY RIGHTS

FOR PROFESSIONALS IN THE FILM INDUSTRY

organized by
the World Intellectual Property Organization (WIPO)

Chain of Title Basics:

Establishing Ownership in Film Productions
Speaker – Rob H. Aft
October 13, 2008

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Rob H. Aft
• International MBA
• 13 years as sales agent
„ TRIMARK

„ MDP

„ Kushner-
Kushner-Locke
• Board of IFTA
• International Travel/Festivals – Including Nigeria
• 7 Years Financial/Distribution Consultant for Banks, Finance Companies,
Companies, PPP,
Cannes, USC, UCLA

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ Purpose of Copyright
• Protection of Rights of Creators and Investors
• Encourage Creativity, Investment, Fair Trade

• DEFINITION OF COPYRIGHT

Original work of authorship

recorded in a fixed medium

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ International Standards
• WIPO Treaties
„ Paris Convention and Berne Convention
„ Treaty on the International Registry of Audio-
Audio-Visual
Works (The Film Register Treaty)
• Basic Recognition of the Rights of Creators
• Standard Methods for Transfer and
Aggregation of Creative Rights
• Standard Methods for Recording Ownership
„ WIPO Registry
„ US Government Registry
„ DGA Registry, etc.
• International Standards Can Vary

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ The Watchmen Case

• Even major US Studios
have problems with
copyright ownership
• Watchmen was
originally a graphic
novel
• Fox optioned the right
to develop the property
into a film
• Fox eventually
abandoned the project
but with certain
conditions in case it was
ever made

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ The Watchmen Case

(continued…
(continued…)
• Changed Elements clause
• Warner Bros. ultimately produced the film based on the
graphic novel
• Fox claims that since the director was changed from
Terry Gilliam to Zack Snyder they had the right to
reclaim the project
• A judge agrees they might have a case

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ Basic Documents
• Option/Purchase of Scripts and
Underlying Material (Book, Article, Life
Story, etc.)
„ Make sure “owner”
owner” has the rights
„ Be very clear about what rights are granted

for what purposes (all media,

merchandising, sequels, etc.)

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Basic Terms
• Parties to the Agreement
• Specific Work Being Licensed
• Compensation
• Term
• Rights Granted
• Dispute Resolution
• Warranties

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ Other Copyrights that Must Be

Obtained
• Music Licenses
• Film Clips
• Product/Trademark Clearances
• Name and Likeness Issues
• Character Licenses

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Talent Agreements

• Director Agreements
• Actor Agreements
• Writer Agreements

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ Errors and Omissions Insurance

• Also Called E&O
• Crucial for closing deals in most of the world,
particularly for TV distribution
• Policies cover errors in establishing ownership
• E&O companies can also be very helpful in
making sure that you are doing everything
necessary to establish ownership
• See Attached Checklist

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Avoiding Pitfalls
• Be Diligent about Spotting Potential Copyright Claims
„ Actor Releases (everyone who walks through a scene)
„ Trademarks
„ Music (including car radios, TV sets, etc.)
„ Clips in background
• Problems I Have Encountered
„ “Dog of Flanders”
Flanders” Writer
„ “Sold Our Souls”
Souls” Music Licenses
• Know Which Rights You Own and Which You Don’
Don’t
„ “Star Wars”
Wars”
„ Know how to enforce your rights (“
(“Coming to America”
America”)
• Get All Documents Signed
„ Don’
Don’t trust anyone else to do this
„ Remember all guild documents

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ Avoiding Pitfalls
• Be Diligent about Spotting Potential
Copyright Claims
„ Actor Releases (everyone who walks
through a scene)
„ Trademarks

„ Music (including car radios, TV sets, etc.)

„ Clips in background

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Avoiding Pitfalls
(continued…)
• Problems I Have
Encountered
„ “A Dog of Flanders”
Flanders”
Writer
„ “We Sold Our Souls”
Souls”
Music Licenses

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ Avoiding Pitfalls
• Know Which Rights You Own and Which You
Don’
Don’t
„ “Star Wars”
Wars”
„ Know how to enforce your rights
(“Coming to America”
America”)

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Avoiding Pitfalls
• Get All Documents Signed
„ Don’
Don’t trust anyone else to do this
„ Remember all guild documents

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 Chain of Title Basics: Establishing Ownership in Film Productions
Productions

„ More Pitfalls
• Moral Rights
„ Respecting the creative work of the author
„ Legal obligations vary by country
• Make Sure You Fulfill Terms of All Contracts
„ You can lose rights if you don’
don’t
„ Some obligations are ongoing – particularly to guilds
• Ambient Music
„ Cars, clubs, “wild sound”
sound”
• T-Shirts, Hat Logos
• Product Placement
„ Make sure you adhere to agreements
„ Parties to the Agreement

Chain of Title Basics: Establishing Ownership in Film Productions

Productions

„ Conclusions
• Stay Organized
• Use Attorneys
• Secure E&O Insurance
• Be Prepared to Prove Ownership to Secure
Distribution

• Hope You Don’

Don’t Get Sued
• If You Are Sued Make Sure You Can Prove
Ownership