Screenplays are at the heart of every film production, because it’s hard to make a good film out of a bad script. Drafting and negotiating script contracts is often difficult. At the beginning of a film project, there may be only an exposé or treatment, and no one can say where the journey is headed. Producer want to take as few financial risks as possible in this start-up phase of a film project; authors, on the other hand, want to be covered for all eventualities and, in particular, to participate in the success of their film. What should be considered when negotiating and drafting a screenplay contract? This is particularly important for foreign producers and authors doing business in Germany.
Script creation
The script is usually created in several stages. Producers should conclude reliable development contracts with authors, even for the preparation of an exposé or treatment. If they want to develop a screenplay later on the basis of these preliminary stages, they need the appropriate editing and exploitation rights. The development of the script then usually takes place in several versions. Legally, we are dealing here with a contract for the production of a work according to § 631 of the German Civil Code (BGB). This means that we also have to take into account the special features of the law on contracts for the production of works when it comes to mutual delivery and purchase obligations. We also have to distinguish between the producer’s obligation to accept (and pay) for the work and the obligation to actually produce a film based on the script. No producer will commit to the latter. It is also necessary to regulate the conditions under which the producer can further develop the script with a new author without the consent of the first author.
Granting of rights to the screenplay
The producer has an interest in acquiring as many rights of use to the screenplay as possible, and copyright law helps with this effort. This is because § 88 para. 1 of the German Copyright Act (UrhG) provides that, in case of doubt, the author grants the producer the exclusive right to use the work either unchanged or adapted for the production of a cinematographic work and to use this cinematographic work and adaptations thereof in all types of use. At this point, the Copyright Act wants to protect the investment of the film producer and thus provides that in case of doubt – i.e., unless a different contract is concluded – the film producer can produce a film on the basis of the script and exploit it in all types of use. However, the producer cannot and should not rely on this rule of doubt. In practice, the right to produce a single film usually appears to be too restrictive. The producer wants to claim the right to produce any number of films, such as prequels, sequels, spin-offs, TV series, animated films, etc. The producer will also want to acquire ancillary rights, such as the right to produce a play or a video game. The rights of use for the exploitation of these productions are also regularly listed in detail on many pages in the contracts.
However, since 2017, § 88 para. 2 UrhG has provided for a very decisive restriction of this acquisition of rights: authors always remain entitled to use their screenplay for other purposes after the expiry of 10 years after the conclusion of the contract. Thus, the initial exclusive remake right of the first contract partner changes to a non-exclusive right. This statutory provision may only be deviated from if a common remuneration rule pursuant to § 36 UrhG or a collective agreement applies to the contract. Very often, such rules do not exist, so that exclusive remake rights can only be acquired with this 10-year restriction. This can lead to problems, especially in an international context, for example, when American studios want to acquire unrestricted remake rights.
Remuneration
From the producer’s point of view, it is advantageous to pay a lump sum fee to reduce the financial risk, usually divided according to the stages of script development. However, § 32 UrhG requires that the author must receive appropriate remuneration for each right of use granted. Therefore, as a rule, further compensation must be provided for the exploitation of the individual rights. In the television sector in particular, there are joint remuneration rules with individual broadcasting organizations that provide for such remuneration.
Script development in a team
Especially in the development of a new series, e.g., for Netflix and Amazon, but also for public and private German broadcasters, script development is increasingly taking place with teams of authors. Often there is a senior creative producer who oversees the entire project development as showrunner, and often this showrunner is also the main writer and director of the series. Sometimes several directors of different episodes work together with several authors on script development. This offers numerous advantages. The authors can support each other with their creative input, while at the same time ensuring more consistency in the content of the individual episodes.
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