How the Law protects Film Making

Media City, Manchester where much of the UK creative industry is located
Photograph Wikipedia

Jane Lambert

The announcement on Tuesday of a £13 million investment by Vistaar Productions in a post production facility in Manchester coinciding with the Deputy Prime Minister's trade delegation to India is a good time to consider the legal protection of film making in the United Kingdom.

Copyright subsists in films pursuant to s.1 (1) (b) of the Copyright, Designs and Patents Act 1988 ("the CDPA").  It is a property right that confers upon the owner the exclusive right to do a number of restricted acts. Those acts include:
  • copying the film;
  • issuing copies to the public;
  • renting or lending the film to the public;
  • performing, showing or playing the film in public;
  • communicating the film to the public;
  • making an adaptation of the work or doing any of the above in relation to an adaptation.
Anyone who does any of those acts without the licence (that is to say the permission) of the copyright owner infringes the owner's copyright. In England and Wales the copyright owner can sue the person who does those acts without his or her permission ("the infringer") in the High Court or the Manchester, Liverpool and certain other county courts for damages (compensation for any losses the copyright owner may have sustained) or, alternatively, the surrender of any profits that the infringer may have gained from his or her wrongdoing together with an injunction (or order of the court)  to cease and not repeat the infringement or risk a heavy fine or imprisonment.

A "film" is defined by s.5B (1) as "a recording on any medium from which a moving image may by any means be produced". The sound track accompanying a film shall be treated as part of the film for the purposes of this legislation but this provision does not affect any copyright that may subsist in the sound track as a sound recording. The definition of a film should be contrasted with the definition of a photograph and a broadcast. S.4 (2) defines a photograph as
"a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film."
A  broadcast is defined by s.6 (1) as
"an electronic transmission of visual images, sounds or other information which –
(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or
(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,"
but does not include certain types of internet transmissions.

There is no system of copyright registration in the United Kingdom. Copyright subsists automatically in a film from the moment it is made so long as the following nationality, residence or publication qualifications are met. The first way in which those requirements may be met is if the producer or principal director is a British citizen or resides in the UK (see s.154 (1) CDPA). Those requirements are also met if the producer or principal director is a citizen or resident of some other country that provides copyright protection for the works of British citizens or residents under a treaty or bilateral agreement with the British government. As most countries are party to the Berne Convention, Universal Copyright Convention or TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) that includes India, the USA and most if not all other film making countries. The requirements are also met if the film is first published in the UK or one of those other countries under s.155 (1) of the CDPA. Unlike artistic, dramatic, literary and musical works there is no requirement for originality for the subsistence of copyright in a film but s.5B (4) provides that "copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film."

Unless the producer and principal director are the same person a film is treated as a work of joint authorship - that is to say "a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors." The producer and principal director will own the copyright in their film unless they were employed to make the film under a contract of employment in which case their employer will own that copyright.

Subject to a number of exceptions, s.13B of the CDPA provides that copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons -
(a) the principal director,
(b) the author of the screenplay,
(c) the author of the dialogue, or
(d) the composer of music specially created for and used in the film.
It is important to note that different rules apply to films made for the Crown, Parliament or international organizations.

The director of a film also has the right to be identified as the director, to object to derogatory treatment of his or her film and the right not to have a film attributed to him or her falsely. These rights are known as moral rights and are subsist quite separately from the copyright in the film.

It is important to note that the film copyright in a film is only one of a number of copyrights that will involved in making the film. For instance, copyright is likely to subsist in the screenplay as a dramatic work and in the score for the sound track as a musical work. Design right is likely to subsist in the the designs of the props and costumes. Each of the actors is a performer with the right to object to the filming, taping or broadcasting of his or her performance. The studio or distributors of the film will almost certainly register trade marks. 

Francis Gurry, Director-General of the World Intellectual Property Day (the UN specialist agency for intellectual property) discussed the IP issues film making in "WIPO Director General Francis Gurry on 'Movies - A Global Passion." He made that video as a contribution to World IP Day which this year focussed on the cinema. There us more discussion on IP and cinema on the World IP Day page on the WIPO website.

This is a complex topic upon which everyone involved in film making and distribution requires specialist advice. We are lucky that one of our members, Thomas Dillon, has specialist expertise which he gained as Vice President and Deputy General Counsel EMEA in the Brussels office of the Motion Picture Association. We are also fortunate in sharing space with Atlas Tax Chambers who can advise on the tax incentives and other allowances that are available in this country. Should you wish to discuss this article further call me on 0161 850 0080 during office hours or message me through my contact form. You can also tweet me, write on my wall or send me a message through G+, Linkedin or Xing