Rights Clearance

Film and television producers quickly learn that getting clearances right is crucial to the successful exploitation of their work. Without the correct clearances, you can be prevented from distributing your work in certain territories or over certain media, which in turn prevents you from earning revenue.

Materials Copyright

Clearances apply to copyright materials used in a film or television programme, such as archive film footage, music, brands and products.  You must obtain the rights to include these in the form of an outright transfer or a licence of the copyright from the owner of these rights. Obtaining rights in this way constitutes copyright clearance.

Individuals Copyright

Clearances also apply to individuals: for example a voice over or an actor's performance must be cleared. This will normally be covered in a standard engagement contracts.

All necessary clearances should be listed in advance and the required paperwork drawn up.  In some cases you may not need clearance, such as where a work is "out of copyright". This will apply to works where the period of copyright (in the UK the life of the author plus 70 years) has expired.

Be aware that overseas materials will probably have different periods of copyright. Also be careful to ensure that all copyright in the work has expired. For example, although copyright in the lyrics to a song may have expired, the record company may still hold copyright in its recordings.
Negotiate clearances that are consistent with one another: If there are time limitations, try to ensure that all clearances have the same expiration date, otherwise there could be administrative problems in exploiting rights that expire at difference times.

Negotiating a Licence

This is the most common form of clearance: the copyright owner gives you a limited right to use the copyright material. Usually, the licence will be limited in terms of the territories in which the material can be used, the media (cinema films/television/webcast) or the time period. It is important as a producer to negotiate as wide a licence as possible to make your end-product capable of wide exploitation. If a particular piece of copyright work is proving difficult to clear, it may be better to do without it, rather than risk your ability to distribute your film/programme. 

Transfer

This is more unusual in media, but is a powerful clearance to get since it places the producer in the shoes of the owner, with total control over use of the copyright material. You would normally expect this type of transfer of rights from the cast and crew in relation to the copyright they generate in connection with making the film/programme and the writer of the screenplay. You would not expect to get this type of clearance for ancillary material such as pre-existing music used in the soundtrack, but should ask for it in connection with music specially composed for the film/programme.

Level of Clearance

You will need to negotiate rates for different levels of clearance depending upon the final use of your finished product. This would include the type of media and the territories which must be cleared for use. Even if you do not need to clear all rights up-front (for example, it is for the UK only) you will be asked by the broadcaster to pre-agree a price with the rights holder for clearing worldwide rights. This is also in your interest, because it prevents a rights holder from being able to inflate charges for clearances later if the programme is a success.

Distributors

Distributors should be contractually obliged to advise of any sales which would cause additional clearance payments. For example, where a copyright owner has accepted pre-payment as clearance only for limited territories, where the rest has to be cleared by additional payments when used. The distributor should ensure that any sales justify the costs involved. Some distributors are willing to administer clearance payments on behalf of producers, but remember that you are primarily responsible to the rights holder if clearance payments are not made when they should be.

Early Rights Clearance

Organising rights clearances early is essential for film or programme. Knowing which rights need to be cleared; the territories and media involved; will save a last-minute negotiations with the rights holder that will not be in your favour.