Wednesday 6 May 2009

Music Use in Film and Television Production

Yesterday (5 May 2009) the European Audio-Visual Observatory published the paper An Introduction to Music Rights for Film and Television Production, which should be required reading for film and television producers. Well, for Legal and Business Affairs departments, anyway. Francisco Javier Cabrera Blaquez, the Observatory's Analyst of Legal Information outlines the mysteries of what should be cleared and from whom and provides summaries of some trade practices in selected jurisdictions.

As owners of film copyright, producers will welcome this clear explanation of how to deal in the rights of a key contributor. And producers in the UK (at least) have good reason to be grateful to and respectful of the music creators who contribute to their films. See or listen to film composer George Fenton's (below) new 8 part series, You Heard It at the Movies, which began yesterday on BBC Radio 2.

Grateful because since 1 July 1994 the calculation of duration of copyright protection in a UK film ceased to be 50 years from the end of the calender year in which it was made and became “70 years from the end of the calendar year in which the death occurs of the last to die of the following persons – the principal director, the author of the screenplay, the author of the dialogue or the composer of music specially created for and used in the film” [ UK Copyright Designs and Patents Act s.13 B (2) (a) to (d) ].

By virtue of this grisly statutory equation, the first owners of copyright in a film have acquired a greatly extended period of protection during which to accumulate economic benefit from exploitation of the copyright protected film. "First owners of copyright"? Isn't that the producer? Well, no, not any more. With effect from 1 December 1996, in the UK the author and first owner of copyright in films made after 1 July 1994 became the “producer and the principal director” [s. 9 (2) (ab)]. Great news for British directors! Or not.

Reading Francisco Javier Cabrera Blaquez's paper will demonstrate how composers continue to benfit economically from their work when it is exploited within the film. But no such economic benfit accrues to the director. By contract UK producers and production companies acquire from the director, broadly, all rights both in the film and the income from its exploitation - leaving the director to pay the gas bills only from their initial fee.

The Directors Guild of America, by dint of years of negotiation, has secured for directors contracted under DGA agreements ongoing participation in film revenues. No such luck for UK directors whose longevity so benefits their co-authors! Shame, UK, shame.

But before directors and producers start wrangling to improve the directors' position they may wish to reflect soberly upon the experience of the British music industry in the 1990s. Falling music revenues attributable to file-sharing and digi-piracy can, in part, be attributed to an industry that was so fraught with internecine battles over historical contracting practices that it forgot to keep an eye on the real Enemy at the Gates - the music user who did not want to, and did not, pay for music - the ISPs whose profits are swollen by traffic in unlicensed content and the generation of digital consumers who now no longer expect to pay for music.

"Those who cannot learn from history are doomed to repeat it" - George Santayana. The UK audio-visual industry will be better served as a whole in addressing the threat to income posed in the current digital climate if it is united. Such unity could be promoted by UK producers (and legislators) supporting and promoting a better shakedown in the rights and income stakes for directors - think how grateful they might be. And maybe, just maybe, on that gratitude a common position that may benefit all concerned can be founded.

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