General information about film law
The legal relationships between persons participating in the production and exploitation of films is regulated in various legal statutes. Because film is an immaterial property, copyright law gives the legal foundation for the production and exploitation of films. Civil law, labor law, personality law, trademark laws, unfair competition laws, film subsidy law, and public media law also have to be considered.
Important principles of film law
It is important to understand the difference between copyrights and neighboring rights in German copyright law:
Only the authors of works of literature, science, and art acquire copyrights. In the area of film, these works include literary works, musical works, architectural works and props, and the film works themselves. Authors of such works are, for instance, novelists, comic artists, authors of screenplays, directors, camera operators, cutters, film composers, and film architects. In addition to copyrights, the German copyright act protects so-called “neighboring rights.” These rights protect certain contributions to the shaping or production of works. These contributions can be of an artistic, organizational, or economic nature. Owners of such neighboring rights to films are, for instance, actors performing screenplays, musicians performing film music, and the film producer.
Because film is one of the economically most important areas of copyright law, it is regulated in special provisions of the copyright act (§§ 88ff. UrhG). These provisions are designed to protect the legal status of film producers and their interest in the least restricted exploitation of the film and its accompanying productions.
While general copyright contract law (§ 31 sect. 5 UrhG) generally requires a narrow interpretation of grants of rights in favor of authors and artists, §§ 88ff. UrhG provide for a preferably comprehensive grant of rights in favor of the film producer. In addition, other provisions protecting the interests of authors and artists (e.g., rights of rescission) are limited with respect to film works. Even the moral right of integrity (prohibiting the deformation of works) is limited in the film area to gross deformations.
It is important to know that authors and artists have a non-waivable right to reasonable compensation for the grant of rights in the film business since the copyright reform of 2002. Within the last fews years, various collective agreements for the determination of such reasonable compensation in the film business have been made. In addition to a right to reasonable compensation for the grant of rights, authors and artists have a non-waivable right to additional reasonable compensation if the film is especially successful.
Important contracts in film law
The first step in filmmaking is the development of the underlying script. Usually, script development begins with the writing of short exposés (of several pages), followed by longer treatments and finally entire screenplays (with many re-writes and polishes). The film producer enters into script development contracts with authors. Although §§ 88ff. UrhG provide for a comprehensive grant of all rights to the work and its adaptations to the film producer, such script development contracts contain extensive provisions listing all possible rights of use in detail. This remains necessary because §§ 88ff. UrhG do not provide for the automatic grant of usage rights accompanying the film exploitation (such as merchandising rights, remake rights, publishing rights to the screenplay, or novelization rights). If screenplays are based on literary material by other authors (such as novels or comic books), the producer must acquire the necessary adaptation rights from these rights holders too.
In the production phase, the film producer has to enter into contracts regulating the financing of the film (such as co-producers, TV stations, film subsidies), employment contracts with the director, actors, camera operators and production crew, and the relevant post-production contracts with cutters, translators, producers of dubbed versions, and the rights holders of the film music, such as film composers, recording companies, and music publishers.
In the exploitation phase, the producer has to enter into contracts with distributors, world sales agents, TV stations, video-on-demand providers, and so on. The film market has experienced many changes in recent years. In particular, SVOD providers (such as Netflix, Amazon) have become more and more important. A producer who enters into worldwide exploitation deals with SVOD providers must understand that this could affect the international marketability of the film in other areas (national TV, TVOD, SVOD, and DVD/Blu-ray exploitation). In recent years, the big SVOD providers (such as Netflix and Amazon) have become interesting financing and production partners (in particular with respect to series) for film producers.
The law office of Dr. Hans-Jürgen Homann can advise you on all relevant questions and on drafting all the necessary contracts. I would be glad to talk to you about
your legal needs.
