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From Issue 9, March 2003:

Just credits – are you getting yours?

For many writers, the credit and payment are the key elements of any writer’s Agreement, yet the legal basis on which credit is accorded may not always be clear. Sean Egan looks at the sometimes confusing subject of writers’ credits.

It is often difficult for a writer to object to a particular credit as he or she may not see the final programme until a cast/crew screening, once the film or programme has been locked off.

Basic entitlement

So what is a writer’s entitlement to a credit if the Agreement is silent? This question arises more often than one would think. Assuming that the producer has included a standard assignment of copyright and a waiver of moral rights, there is no obligation to accord credit unless there is an express credit clause. The standard clause waiving any claim for loss of opportunity to increase his/her reputation is relevant, but its omission does not impose the right to a credit.

The importance of the assignment of copyright is that if the producer has not properly acquired rights in the work, the writer can object to the use of the work as an infringement of copyright and the producer will need the writer’s cooperation to negotiate an appropriate credit clause. Without the acquisition of appropriate rights, the reproduction of a work in any medium is sufficient to be an infringement of copyright. This would include making a programme or film based on it or storing, such as in a pc, a copy of the work or a script based on it or commissioning a rewrite from another writer.

One of the moral rights introduced by the Copyright Designs and Patents Act 1988 is the right to be accorded appropriate credit for your work, the so-called ‘paternity right’. I find it ironic to think that the usual use of ‘paternity’ is for unwanted creation! A writer needs to be aware that before being able to bring an action for infringement of moral rights, that right needs to be asserted which can even be done by writing a letter to the producer. This moral right is not infringed where there is use of work in a fair manner (i.e. ‘fair dealing’) for the purposes of criticism and review, but whoever is making that use must accord the writer with proper credit.

Forms of Credit

The types of credit accorded writers generally follow standard practice, particularly in television. Television drama should give a writer first credit in the main credits for the programme, whether at the beginning or end. With films, the writer’s credit tends to appear in the main titles after the cast and crew and before the producer and the director.

Writers need to consider whether they are prepared to rely on broadcasters conforming to the usual practice or require contract safeguards. With film agreements there is much more open negotiation because there is not the generally perceived safety net of broadcaster standard practice.

Writing agreements for films usually allow the producer to appoint another writer and therefore the credit clause will allow for this writer’s credit to be included. The judgement as to the nature of the credits between various writers is often dealt with by reference to the screenwriting credits agreement between the Film Production Association of Great Britain and the Writers’ Guild of Great Britain 1^st May 1974. This agreement distinguishes between main writing credits and subsidiary writing credits and deals with sharing credits, the size and position of credits and the right of the writer to remove his or her name from the film. From a writer’s point of view, this is an excellent starting point but only likely to be treated as binding on PACT members and is subject to individual negotiation. (PACT, the Producers Alliance for Cinema and Television, is the producers’ ‘union’.) It contains an arbitration procedure, which is usually the most effective way of solving a dispute. For writers it is beneficial as the arbitrators are appointed by WGGB. Though the procedure covers the writers’ entitlement vis-à-vis the producer, producers often see it more as a mechanism for resolving disputes between writers rather than with the producer.

Another important concept to bear in mind is that the credit should apply not only to all positive copies of the film (and preferably all negative copies too) but that the same credit is accorded on all paid advertisements and publicity material. The exceptions to according these sorts of credits are a frequent source of argument between producers’ and writers’ representatives. Producers are reluctant to extend credit entitlements to publicity material which is why promotional material, particularly advance fliers, refer to non-contractual credits. With advertisements, producers need to negotiate a position that distributors (who will not have been appointed by the date of the writer’s agreement) can agree to and so normally provide for the distributor’s standard exclusions to apply. Writers should be cautious of these clauses since there is always scope for these standard exclusions to be unreasonable. The exclusions will invariably include teaser and small advertisements. The small print of these exclusions is always worth checking.

The size and prominence of credit is important. This is usually tied to the size and prominence of other writers’ credits or that of author of the underlying novel and sometimes the director. Tying credits in this way on a favoured nations basis is a helpful and simple technique for writers’ agents but is often resisted by producers who do not want to link too many credits together.

Omissions

Standard credit clauses include a statement that accidental omission of a credit by the producer or an omission (whether accidental or not) by a third party, e.g. a distributor, is not treated as a breach of the writer’s agreement. Even so, a writer should be entitled to expect in the credit clause that if notice is given that the credit is incorrect, at the very least the producer will use all reasonable efforts to correct it. The problem is that reasonable efforts in this context are vague. If the clause provides for reasonable efforts without the obligation to incur expense, then it is difficult to see how a correction can be addressed except on a subsequent run of posters or publicity material, and for a screen credit there will be no obligation to correct.

Breach of a credit clause

If the producer is in breach of the credit clause, which as you can see may be unlikely, the writer needs to be aware of what action can be taken if the producer refuses to correct the error. The writer’s remedy will depend on how the agreement is drafted and whether the assignment of the writer’s rights are affected by termination of the agreement. From the producer’s point of view, a well-drafted agreement will provide that for any breach by the producer, the assignment of rights are unaffected. The issue of rights is critical because if the writer can legitimately argue that the producer no longer has the rights then the film cannot be exploited and you can be sure the producer will respond to any request to comply with the agreement.

Top tips

1. A writer should see a rough cut of the film or programme or the film at the earliest stage after the credits have been added so that if there is any concern about the credit, there is an opportunity to make this known when the cost of correction is at its lowest.

2. A writer should look carefully at the credit clause in any agreement to be signed because it will not be re-negotiable.

3. A writer should have a clear sense of his/her position if other writers are brought on board and the likely impact of this on the credit.

A sample ‘credit’ clause in a film script Agreement:

(This is not the only formulation of a credit clause but covers many of the most common points.)

"Subject to the producer producing or causing to be produced a film based wholly or substantially upon the script and the writer not being in material breach of this assignment the producer agrees that the writer shall be entitled to a credit on all positive copies of the film issued by or under the control of the producer on a single card in the main titles of the film and in all paid advertising issued directly under the control of the producer, subject to distributor's customary exclusions and otherwise in accordance with the Screenwriting Credits Agreement 1974. All other matters as to credits shall be determined by the producer in its absolute discretion.

The failure of the producer to comply with the provisions of this clause and the failure of third parties to accord the said credit shall not constitute a breach of this assignment by the producer or a breach of any of the writer's common law or statutory rights in any country of the world and the producer shall make reasonable efforts to remedy any such failure of which the producer receives written notice from the writer as reasonably practical without incurring any legal costs or other expenses.”

Different meanings of the credit descriptions (with acknowledgements to Clive Dawson’s website www.screewriting.demon.co.uk):

Written By: is the most prestigious screenwriting credit. It means that the writer created both the original story and wrote the screenplay.

Screenplay By: means that the writer based his or her screenplay on other sources material, for example a novel, or a story created by another writer.

Story By: the writer receiving this credit created the original story on which the screenplay is based, often the most difficult and original part of the whole creative process.

Screen Story By: is given as a credit when a story is based upon other source material but is substantially new or different from the said source material.

Based on an Idea By: what it says – the idea came from someone who had nothing to do with the writing, maybe someone who isn’t even a writer.

Created By: often refers to the person who had the idea for a long-running television series and maybe wrote some episodes, though this is not necessary. This person may well receive a format fee of 10% of whatever the writer of each and every episode receives for the duration of the series.

However, there are many variations on the credits and their meaning can also be important in establishing exactly how creative a writer has been (and therefore how likely they are to be hired for another similar job):

Written by X and Y: this suggests that X is probably the senior writer of the two, although it could be alphabetical and they could have made a similar contribution to the script.

Written by X & Y: this suggests an equal partnership between two writers.

Written By X with Y: this suggests that X is definitely the more important of the two writers.