Wipo National Seminar on Intellectual Property Rights for Professionals in the Film Industry

E WIPO/CR/NG/08/7 ORIGINAL: English DATE: October 4, 2008

COMMUNICATING FOR CHANGE WORLD INTELLECTUAL NIGERIAN COPYRIGHT COMMISSION PROPERTY ORGANIZATION (WIPO)

WIPO NATIONAL SEMINAR ON INTELLECTUAL PROPERTY RIGHTS FOR PROFESSIONALS IN THE FILM INDUSTRY

Lagos, October 13 and 14, 2008

PRODUCTION CONTRACTS

Document1 prepared by Mr. Richard L. Moxon, Senior Partner, Davenport Lyons

1 The views expressed in this document are those of the author, and not necessarily those of the WIPO Secretariat or its Member States. WIPO/CR/NG/08/7 page 2

PRODUCTION CONTRACTS

14th October 2008

Richard L. Moxon

30 Old Burlington Street, London, W1S 3NL Telephone: +44(0)20 7468 2600 Fax: +44(0)20 7437 8216 Email: [email protected] Web: www.davenportlyons.com WIPO/CR/NG/08/7 page 3

PRODUCTION CONTRACTS

A INTRODUCTION

This is a short overview of the various production contracts which you will require in producing a feature film and the important contracts and elements.

1. CAST AGREEMENTS 1.1 Specify the dates on which the artist is to render services.

1.2 Stop date beyond which a completion guarantor would not be able to foreclose.

1.3 Full assignment of rights and waiver of moral rights.

2. DIRECTOR’S AGREEMENT 2.1 The causes with respect to billing breaches force majeure illness very much the same so the differences will relate to “the start date” and the scope of services for the Director.

2.2 Rare for a Director to be hired for a specific starting date and a specific number of weeks.

2.3 Pre-production/Production Stage – development, casting etc.

2.4 Exclusivity between 4 and 8 weeks before commencement of principal photography for casting etc.

2.5 Most payments are for fixed fee but no overage.

2.6 Deferments/Profit participation.

2.7 DGA Director’s Guild of America minimum basic agreement.

2.8 Directors normally ask for more than the minimum in the DGA Agreement unlike Cast Agreements, Director’s Agreement will not specify a stated number of hours or any particular number of days a week.

3. LOCATION AGREEMENT 3.1 Details of the date on which shooting is permitted.

3.2 Specify insurance if requested by the owner.

3.3 Contain the right to portray the location fictionally and as real.

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4. RELEASES 4.1 Artwork

4.2 Background copyright material

4.3 Product

5. WRITER’S AGREEMENT After the underlying material has been obtained this is probably the most important agreement:

5.1 Approval of each stage of writing and cut offs

5.2 Dates of delivery – time is of the essence

5.3 Exclusivity?

5.4 Fixed compensation - 50/60% for first draft and 25/30% for revised draft and balance for the Polish. Possible payment on first day of principal photography.

5.5 Share of profits

5.6 Remakes (50%) and sequels (35%)

5.7 Full assignment of rights

5.8 Waiver of moral right

5.9 Writer’s Guild of Americas Basic Agreement

(i) minimum payments

(ii) credits

5.10 Compensation - screenplay and literary rights purchase no more than 10% of the transfer.

6. CREDITS Attached Credit List – use as a checklist

7. PRODUCER’S AGREEMENT 7.1 Very few differences from a Director’s or Artist’s Agreement.

7.2 Specify Producer’s rights of approval or rights of selection.

7.3 Executive Producer’s Agreement - similar in form to individual Producer’s Agreement except the former will maintain only a supervisory function and does not have a day- to-day responsibility for the direction of the film. Executive Producer services always non-exclusive.

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COMPOSER’S AGREEMENT

This is not the place for a full discussion on music agreement but it is important to acquire the necessary rights in the music. The various documents that are involved are as follows:-

1. Pre-Recorded Music - Synchronisation Licence

(a) This is the right to incorporate the music or a record in synchronisation with the film. It should be for the full period of copyright and should not be capable of termination once the licence fee has been paid.

(b) Find out whether music is in copyright - “Happy Birthday”.

2. Obtain clearance from publisher, performers and record Company

(a) Ownership of the publishing rights. The publishing rights are the right to exploit the mechanical rights i.e. the right to produce a CD or DVD of the music without additional payment. It is important to clear the mechanical rights otherwise distributors in each territory will need to pay mechanical royalties to the local collection society.

(b) If the composer is well established, the publishing rights will be owned by the composer’s publishing company and the producer should therefore look for a share of the publishing revenues.

3. Performing Right

This is the right to perform music in public. TV Stations, cinemas, opera houses have public performing licences for which they pay a fee based upon their usage. Television companies produce a log to the Collection Society to indicate how many compositions have been played and the composers of the works. Production company cannot acquire.

4. Agreement with Composer

(a) Some provisions usually found in the Director’s Agreement. (b) Composer’s Agreement will permit Producer to have lyrics written for any music written by the Composer. (c) Publishing/Soundtrack Royalty – to be negotiated at the time.

(d) Publishing rights.

Richard L. Moxon October 2008

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CREDIT LIST

Front End 1. Distributor (“………presents”) 2. Production Company (“a ………..Production”) 3. Associate Producer (“in association with …………..”) 4. Any of the principal cast receiving credit above title. 5. Film Title 6. Principal cast receiving credit below title. 7. Any special cast credits (“with ………..”) 8. Casting Director (“Casting by……”) 9. Line Producer 10. Costume Designer 11. Production Designer 12. Music Supervisor 13. Music Composer/Conductor 14. Editor 15. Director of Photography 16. Executive Producer(s) 17. Co-Producer(s) 18. Individual Producer(s) 19. “Based on “[book]”” 20. Writer 21. Director End Roller Credits 1. Character and Cast list 2. Line Producer 3. Production manager 4. 1st, 2nd and 3rd Assistant Directors 5. Assistant Production Manager 6. Casting co-ordinator 7. Script Supervisors 8. Production Co-ordinators 9. Assistant Production Co-ordinator 10. Office PA 11. Location Manager 12. Assistant Location Manager 13. Production Assistants 14. Pre-Production PA 15. Set Director 16. Assistant Set Director 17. Lead Dresser 18. Set Dresser 19. On Set Dresser 20. Art Director 21. Graphics 22. Art Department Co-Ordinator 23. Prop master 24. Assistant Prop Master 25. Props Buyers

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26. Truck Assistant 27. Assistant Costume Designer 28. Costume co-ordinator 29. Set Costumers 30. Chief Make up/Hair Designer 31. Key Make up Artist 32. Hairstylist 33. Assistant Hairstylist 34. Stunt Co-ordinator 35. Stunt Doubles 36. Stand-ins 37. Stunt performers 38. AD Production Assistant 39. Directors Assistant 40. A Camera Operator 41. A Camera Focus Puller 42. 2nd Assistant Camera 43. B camera operator/Focus Puller/Assistant Camera 44. Loader 45. Camera trainees 46. Video Co-ordinator 47. Video Assistant Supervisor 48. Sound Mixer 49. Boom Operator 50. Sound Assistant 51. Post |Production Supervisor 52. Sound Supervisor 53. Assistant Sound Supervisor 54. Dialogue Editor 55. Foley Artist 56. Sound Effects Editor 57. ADR Editor 58. Picture Conform 59. ADR Voice Casting 60. Post Production Accountants 61. Post production Assistant Accountants 62. Directors Assistant Post Production 63. Post Production Assistant 64. Visual Effects Producer 65. Special Effects Supervisor 66. Visual Effects Supervisor 67. Lead Title Design 68. Laboratory Contact 69. Negative developed at “ “ 70. Neg cutter 71. Post production scripts 72. Production Legal Services 73. Completion Guarantor 74. Insurance Services 75. Film Stock

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76. ADR recorded and mixed at “ “ 77. Recording Technician 78. Head engineer 79. Music Performed by the “……………………..” 80. Conducted by “………………………” 81. Music recorded and mixed by “……………………..” 82. Music Editor 83. Unit publicists 84. Stills Photographer 85. Production Accountants 86. 1st/2nd Assistant Accountant 87. Payroll Assistant Accountant 88. Accounting Clerk 89. Special Effects co-ordinator 90. Special Effects Best Boy 91. Special Effects Assistant 92. Special Effects Fabricator 93. Gaffer 94. Best Boy/electrical Gaffer 95. Generator Operator 96. Lamp Operator 97. Rigging Gaffer 98. Rigging Gaffer Best Boy 99. Key Grip 100. Best Boy/Key Grip 101. Lead man Set up 102. Head Painter 103. Best Boy 104. Scenic Artist 105. Assistant to “Cast member” 106. Foreman 107. Lead carpenter 108. Scenic Carpenters 109. First Aid 110. Electricians 111. Catering Company 112. Transport Manager 113. Cast Drivers 114. Cable Truck 115. Camera Truck 116. Construction Driver 117. Grip Truck 118. [list all other trucks e.g. electrics, fuel, hair/make-up, special effects, wardrobe] 119. Security 120. Financing by “…………………….” 121. Colour and Prints by “ “ 122. Dolby and [Kodak]logos 123. [DTS and SDDS] logos

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124. ”The characters and incidents portrayed and the names herein are fictitious and any similarity to the name, character or history of any actual persons living or dead is entirely coincidental and unintentional.

This motion picture is protected under the laws of the United Kingdom and other countries and its unauthorised duplication, distribution or exhibition may result in civil liability and criminal prosecution.”

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