From Issue 1, November 2001:

How moral is the producer's contract?

Sean Egan, Head of the Arts and Media Department at solicitors Bates, Wells & Braithwaite, gives pointers on some common concerns that affect scriptwriters.

There are certain issues I see again and again that seem to cause undue anxiety to writers.  The issue of so-called ‘moral rights’ and how they should be dealt with in film and television agreements is one of the most common sticking points between producers, writers and agents.

These rights were imported from France where there is an acknowledgement of the creator’s importance in the producing and exploiting of copyright material.  European legislation required the UK to incorporate similar rights into UK copyright law. This was effected by the Copyright Designs and Patents Act 1988.  The moral rights brought in by that Act are the right to object to derogatory treatment of the work, the right to be identified as the author (or director) of the work, the right to object to the work being falsely attributed and the right to the privacy of certain photographs and films.

It is the first two that are of main importance.  In truth these rights would cause much less concern to writers if they were not ‘moral’ but, say, ‘associated’ rights.  It is the use of ‘moral’ that causes writers particular concern as producers’ standard wording provides for these rights to be contractually waived, with the implication that producers have some ‘immoral’ purpose in mind.  Some producers make their contracts less objectionable by referring to the section numbers, namely sections 77-85 in the Act, but this in turn provokes the predictable questions from those who do not have a copy of the Act by their bedside!

The first thing to bear in mind is that these rights did not exist in UK law before 1989 and the way they appear in the legislation causes producers’ lawyers to reach for the smelling salts as they are broadly and imprecisely defined.  That is not necessarily a bad thing but it demonstrates that when you import continental style legal principles into a non-principle based legal system, lawyers are going to have to learn new ways of thinking.

Film and television agreements as standard provide that producers can make any use they wish of a script, in contrast to the practice in the theatre where any script changes are controlled by the writer.  So the waiver of the right to object to derogatory treatment from a producer’s point of view is essential, since that moral right could mean the writer could object to the way in which the work was re-written by another writer, and this UK producers and financiers consider to be unacceptable.

If a writer were able to object to script changes – which could be minor but which could also make a male lead female and move the location from 18^th century Paris to 21^st century Brixton – the producer would not be able to satisfy the financiers that the writer could not halt production by exercising his/her rights.  This would effectively prevent any financing by UK financiers who are more conservative and risk-averse than most.

Similarly, producers consider the right to be identified as the writer is dealt with in the credit clause as a specific contractual right that is hedged about with practical limitations such as accidental omission.  For that moral right to stand would undermine those limitations within the credit clause.  Producers want to remove this uncertainty.

So what can you do when presented with a blanket waiver of these rights?  Occasionally producers may accept limited waivers.  If the basis of your entering the agreement is your trust in a particular producer, then you might waive these rights only in favour of that person.  If you have star status, you may be able to argue that the moral right to object to derogatory treatment is retained although I have never seen this.

For producers to change their position on moral rights requires either a gear change in their attitude towards the importance of protecting writers’ work, which is not likely, or copyright legislation that makes these rights inalienable, which has been proposed by EC legislators but is years away.

For the time being there is not much that a writer can do except be aware that in selling the rights to their novel or script they will be giving the producer the right to make changes to which they cannot object. This is the nature of the beast for the time being. Building a relationship of trust with producers is more likely to ensure that a writer is consulted (which writers and their agents can negotiate into contracts). This may enable writers to persuade producers not to make changes that the writer believes will result in a derogatory treatment of their work.

Alternatively, writers must become their own producers.

© Sean Egan 2002

Sean Egan is Head of the Arts & Media Department at Bates, Wells & Braithwaite, Solicitors.