He said, she said. It’s a common conundrum not limited to affairs of the heart, muddling perfectly healthy business relationships as often as it does domestic ones. Fortunately for doc-makers, contracts are a lot more acceptable than pre-nuptial agreements.
Most commissioning editors have experienced the ‘in the ether’ syndrome when, over a short period, several almost identical proposals land on their desks. In this circumstance, it is understandable that producers who unsuccessfully submitted a proposal, if they subsequently see the program on screen, will be convinced that their idea has been ripped-off. Letters from a broadcaster assuring them that their’s was one of a number of similar unsolicited proposals is unlikely to assuage their concerns. But, since a factual film’s subject matter is frequently in the public domain – that is to say, about real events and people – it’s not, as such, an original work that can be protected by copyright. How then to protect the producer’s position?
Before approaching a broadcaster with a proposal, it is good practice to obtain from individuals central to any telling of the story, a letter confirming their agreement to collaborate in the production. Not only does this add credibility to the proposal, it enables the producer to discover whether anybody else is pursuing the same story.
Having established contact, a wise next move is to obtain some kind of exclusivity agreement. This need not be complicated, but simply provide that for a certain length of time – six months to a year for topical subjects – the individual(s) will agree to collaborate exclusively with the producer. It is also helpful to stipulate that the producer be informed if the individual is approached by other producers and/or broadcasters.
In order to be legally binding (and fair), the agreement can’t be one-sided. A good way to achieve balance is to acknowledge that exclusivity is granted on condition that, if the producer is successful in mounting the production, the individual will, say, be engaged as a consultant on the production and/or receive a specified fee, a credit or some other benefit.
If a fee is to be paid, it must not be left open for negotiation. It can prove highly problematic for the producer if reasonable terms cannot then be agreed upon. At the very least, express the fee as being ‘commensurate with industry rates’, or ‘in accordance with the provisions of the production budget.’
The agreement should also contain a warranty from the individual confirming that they’re in a position to sign on the dotted line, and there’s no prevailing legal or other reason that limits their ability to do so. It’s surprising how often the inclusion of this kind of wording flushes out stumbling blocks in what an individual is and is not entitled to do.
If there happens to be published works on the topic, it may be helpful to obtain an exclusive option to acquire television documentary rights for the work. Note, however, that the price paid for such rights should be modest, given that the subject is in the public domain and can, therefore, be researched by anyone.
While it’s useful to employ these devices, if the subject of a program proposal is in the public domain, it’s extremely difficult to prove that it has been plagiarised by another program. Nonetheless, it is worth taking as many precautionary steps as possible, if only to put broadcasters on notice that the producer is safeguarding his rights, and may cause a fuss if these appear to have been infringed.
Dorothy Viljoen is a freelance television and film business affairs consultant, and business affairs adviser for the Producers Alliance for Cinema and Television in London. This article is adapted from her book Art of the Deal (published by PACT), now in its third edition.