Written by Sébastien Lachaussée
& Elisa Martin Winkel
Filmmaking involves various steps from the idea of fiction through his writing to produce a finished film. The exploitation of a film requires respect for the intellectual property rights and the assignee of the exploitation rights of a work must be able to reconstruct the entire chain of title to escape a conviction for counterfeiting. In designing a film obtaining these rights occurs at different times and raises various questions that we will discuss : original scenario, real life stories, adaptation, but also film music and respect of trademark law.
I) Inspiration, movie screenplay and law issue
The subject and the screenplay of a movie can be original, new, find inspiration in real facts or consist in adaptation of pre-existing works. If the idea and the screenplay are original, the Producer should only obtain the adaptation rights of the screenplay from the scriptwriter or the relevant right holders. The Producer can also hire one or several scriptwriter to develop a screenplay and buy the rights in the same time. In these circumstances the film adaptation of the scenario does not usually give rise to problems and that is why we will not linger on this matter. However some situations can be more complex, this is notably the case for projects as “real life stories” movies and adaptation of literary work.
A) Adaptation of real life stories
According to the principle of freedom of expression taking inspiration from real facts to make a movie is perfectly authorized and in fact, this is even very common as testify the cinematographic releases : “11.6” of Philippe Godeau, “Yves Saint-Laurent” of Jalil Lespert, “Grace de Monaco” of Olivier Dahan… However if the principle is clear it also has limits : respect of privacy rights and respect of the presumption of innocence.
1) Respect of privacy right
Article 8 of ECHR clearly states that : « Everyone has the right to respect for his private and family life, his home and his correspondence » Therefore the freedom of creation of the script writers and directors shall not contravene to the rights of respect of privacy of a third party. As an example, the adaptation of Jacques Mesrines’s criminal saga into a film by Andre Genoves in 1984 gave rise to a trial. It was established that the use, without permission, of the surnames of two people who had been abducted in June 1979 by the perpetrator was an unlawful interference with their privacy. Judges stated in that sense and explained that the privacy was infringed because the two victims were identifiable and represented at their domicile and that it was sufficient to constitute the infringement even if the film doesn’t comprise any unkind statement towards the plaintiffs.
Nonetheless the principle of freedom of expression is very strong and sometimes judges apply pretty lightly the privacy right. As an illustration in the “Kings and Queen” case, confronting the director Arnaud Depleschin and his ex-partner the judges rejected the infringement of privacy. In this case, the ex-partner of the director had recognized herself in one of the movie principal character and asked for damages for the breach of her privacy. The Court of Paris estimated that even if the director develops his movie from his life and his close relatives’ lives he had created a fictional work that cannot be reduced to the identifications alleged.
In the same way, a veterinarian found guilty for the assassination of his son didn’t obtain the interdiction of Alexandre Arcady’s movie “Mariage mixte” based upon his story. The judges headed that nothing forbids to find inspiration in a particularly exceptional criminal case and to deliver its own vision of the fact to the public.
However we notice that, as a component of privacy rights, a principle of a right to oblivion exists, even for the facts already divulged. A judgment of the Paris Court dated April 20th 1983 stated that "any person who has been involved in public events can, over time, claim the right to be forgotten (...) which should benefit all, including prisoners who have paid their debt to society and try to re-enter."
A difficulty appears because it supposes to conciliate two fundamental freedoms : freedom of expression and respect due to privacy. Thus judges evaluated on a case by case basis whether the balance between these two freedoms is respected, and then mainly take into account the extent of the public dissemination of facts.
The right to oblivion is finally subject to a low application by the jurisdictions. In the sixties, about the film “Landru” of Claude Chabrol, judges were already evoking a "lapsing of silence" before rejecting the request for compensation of the former mistress of the murderer because she had published herself her memoirs, and that the film resumed facts easily accessible in judicial chronic.
Similarly, the film “Faits d’hiver” of Robert Enrico released in 1998 and inspired by a criminal story does not affect the right to oblivion, the judges felt that the public revelation of facts already disclosed could not constitute a violation of the respect of privacy.
It finally appears that, as regards criminal acts widely divulged in the press and in literary works, the right to oblivion has trouble to apply, leaving a considerable freedom to directors and producers who want to adapt them to screen. In any event, each project of real facts adaptation is different and can raise a conflict within respect to privacy, it is therefore deeply recommended to the producer of such projects to get in touch with all the involved persons and to obtain their consents. As an example for Yves Saint-Laurent’s biopic, Pierre Bergé, former partner of the creator, as supported Jalil Lespert’s project while he didn’t give his consent to the competing project leaded by Bertrand Bonnello, promising conflict between him and the production of this last project. With movies like “Landru” and “Fait d’hiver” we broach a widespread category of movies: adaptation of court cases. This necessarily leads to the question of the respect for the presumption of innocence.
2) Respect for the presumption of innocence
The presumption of innocence is guaranteed by Article 6 of the ECHR. It is understood that if it is breached the judges may award damages to the victim and to prescribe all necessary measures at the expense of the person or entity responsible for the infringement, yet the production and distribution of a film bearing on a pending case is highly likely to undermine this principle.
In France a case can be used as a reference in such matter : “Noces Rouges”, a movie directed by Claude Chabrol and based on a criminal case known as « evil lovers of Bourganeuf ». The movie release was scheduled before the trial of the alleged perpetrators of the murder and this is why their lawyers took legal action to enforce their right to a fair trial. The judges then considered that if the production of a film inspired by a court case is not prohibited, the exploitation of this film must not undermine the integrity of the judicial process and they therefore postponed the movie release. We can deduce here, that no matter what, the release of any movie based on a criminal case should happen afterwards to any conceivable legal action related to the case that the movie is dealing with.
Respect of the presumption of innocence is an essential component of judicial security but it is also a component of personality rights and it is why it must be exercised outside legal considerations.
We can remind the “Villemin” case : in this series Pascal Bonitzer and Raoul Peck come back on the assassination of the young Gregory Villemin in 1984. Following the broadcasting of the series the channel France 3 and later Arte have been obliged to pay damages to Bernard Laroche’s relatives. The judges stated that “the directors necessarily lead the viewer to think (...) that the little Gregory spent his last minutes of life aboard Bernard Laroche’s car” and thus they infringe the respect due to presumption of innocence. In order not to conflict with the principle of presumption of innocence it is absolutely essential not to shine through the guilt of a person in respect of any criminal act and that the judicial process being closed or not. Treating a court case so requires caution and to adopt the greatest possible neutrality regarding to the people involved in some way in this matter. It now appears necessary to say that the adaptation of real facts often requires the adaptation of a prior literary or journalistic work: “Parkland” of Peter Landesman adapted from the novel by Vincent Bugliosi, Four Days in November: the assassination of President John F Kennedy, “The Bling ring” of Sophia Coppola from a Vanity Fair article ...
In these circumstances, acquisition of the adaptation rights of the prior work is necessary or, at least, highly recommended. Indeed, finding inspiration in a true story after reading a book is risky and may constitute plagiarism. We can remind here the “Seraphine”case : the scrip of this film has been held to be a counterfeit of the biographic novel of Alain Vircondelet in view of the many similarities between the book and the film, including similar or identical scenes. Judges distinguish documentary research and counterfeiting adaptation of a work by the slavish or quasi-slavish reproduction of parts or all of a work.
B) Adaptation of pre-existing literary work
Adaptation of literary works is a very common practice and Marie-Pierre Valley, artistic director of Wild Bunch explains : "For a director, it is a chance to rely on the reputation of a book, then this is much easier to communicate about it.”
Adaptation of a literary work can fall under two circumstances : either it exists one or several right holders to the work, either the work has fallen into public domain.
1) Adapting work of the public domain
If adapting a book from the public domain is free, directors and producers must respect the moral rights of the author, including the integrity of the work. Moreover if the work has been previously adapted care must be taken not to infringe the previous adaptations. This can be tricky and as an example we can mention the “Diabolique” case. In this case Henri-Georges Clouzot’s widow stated that the movie of Jeremiah Chechik was more a remake of her former husband’s movie “Les diaboliques” than an adaptation of Boileau-Narcejac’s novel. Both critics and producers agreed, therefore she concluded a deal with producers.
Thus, adapting a work of the public domain requires some cautions and it may be wise to contact the relevant holders of the moral rights for the adapted work or any right holders of a work of similar inspiration.
2) Buying and optioning adaptation rights
It is for the producer to find the rightful owner of adaptation rights, usually publisher or author, and convince him to assign them to him, but also minimize its investment risks. In these circumstances the common practice is to option adaptation rights and this requires very specific contracts. In a first time it is necessary to characterize the adaptation, that is to say what shape will take the work : a « live action » movie, an animation movie, both ? Will it be displayed on theatres or on TV ? etc...
Above all, the producer must be careful and consider all possible aspects of the future exploitation of the movie He shall take into accounts every characteristics of the project to secure the development, the production and the exploitation of the movie.
As an example, it is necessary to anticipate remake, prequel and sequel of the film and related rights. Of course is the project is suited for the merchandising it shall be included in the agreement. By the way, often the licensed merchandising rights will affect only the merchandising rights on the object derived from the film and not on objects derived from the adapted comics or work. We also remark, that if the transfer of rights relates to a work included in a series of scenarios, the resulting sequel and prequel rights should not be directly related to stories from other works in the series because it would defeat the possible cession of adaptation rights of these works. In addition, with regard to the exploitation of the film, it is obvious that a producer has all interest in negotiating with the right holder the possibility of an extension of the acquired rights, particularly through a preferential pact to ensure the possibility of exploiting the film peacefully. Similarly, a producer can obtain a preferential right on other adaptation rights related to the work or even that some of these rights are « frozen ». As an example, if a producer bought the rights for a « live action » adaptation of a book it is possible to predict that the adaptation rights for an animation movie or a play may not be transferred for a certain time period. As the adaptations of literary work are frequent the contractual practice is very effective when it comes to assignment of adaptation rights. However it is to note that all these assignments shall comply with the moral rights of the authors.
3) Respect of the moral rights of the authors
The adaptation of a work must not tarnish or distort the initial work. In this respect an understanding with the authors or the relevant right holders can allow the producer to minimize the risks. Therefore it is common to invite the authors to contribute to the script drafting or the choice of director and actors or at least to pre-watch the movie. Thus the assignment agreement with reference to the adaptation of the comics “Michel Vaillant” predicted that the designer and/or the script writer attend(s) the first writing sessions in order to “transmit to producer and writer (s) his/their knowledge of the world of Michel Vaillant and thus optimize the adaptation”. Similarly for the production of “Les daltons” the publisher had appointed a literary editor to monitor and assist the project. It is primordial to notice that the moral right of the authors is limited by the unavoidable modifications due to cinematographic creation. In 1951 the Court of Bordeaux stated in that sense that by conceding the adaptation right the author necessarily gives his consent to any modifications required because of technical conditions and rules of a different mean of expression. Even if the adaptation presents some unreliability in comparison with the original work judges estimates that “the cinematic expression does not have to be molded in a text, as dense and prestigious the text is, while the film must reach an audience of great diversity and that the dialogue must be accessible."(About the adaptation of Georges Bernanos’s book “Dialogue des Carmelites”). The renown of the original work is not taken into accounts by Courts : even the adaptation of such a famous book that “The Little Prince” implies a certain freedom to be recognized for its adaptation and this freedom justifies an adaptor personal contribution if required by transposition to the screen. The principal challenge for a producer when adapting a literary work is always to minimize the importance of the author and/or editor as decision-makers in making them participate in the projects in order to avoid any future legal actions, notably related to respect due to the integrity of the work.
Finally we note that the indication «freely inspired" does not, in any way, protect producers from the point of view of copyright : you can’t freely find inspiration in a literary work without buying adaptation rights and paying respect to moral rights of the authors.
II) Elements included during the movie making and related rights
Within every film it is possible to find many copyright protected works : music, paintings, sculptures, brands… These elements are to be considered during the movie development because often the producer needs to obtain the rights related to the use of these works.
A) Music in films
Music is an essential component of a movie, and the producer shall obtain the authorisation of every relevant right holder, meaning the authors but also the performers and the publishers. By the way we can distinguish different circumstances either it is a music designed for the film or a pre-existing music.
- Music designed for the movie
Sometimes a producer entrusts a composer with a movie soundtrack : Yann Tiersen for “Amelie” of Jean-Pierre Jeunet, Emilie Simon for the soundtrack of “The march of penguins” of Luc Jacquet…
In this situation the producer concludes a commission contract with the composer and will pay him for the work he provides to compose the soundtrack within the context of the commission. Most of the time the authors are affiliated to a collective management society such as SACEM in France and it is this society who will take care of the author’s remuneration due to the broadcasting of the film incorporating the music.
Therefore there is a double bidding : on the first hand a commission bonus comes to pay the creation and realisation of the musical work which special features are defined by the producer and in the second hand the sum collected by the collective management society to pay the different exploitation of the work. Indeed the theatres’ managers and the TV channels pay some licence fee to the SACEM for the broadcasting of music.
Moreover the order of the soundtrack can comprise the recording or just the composing of the music. If the order comprise the recording the composer will be in charge and manage the whole process, if not the producer shall manage himself the recording and hire the necessary performers.
It is to note that in French author right the composer of a specific movie soundtrack shall be considered as one of the co-authors of the movie and the producer must at any moment respect this statute in his relationships with the composer.
Furthermore resort to a composer for the soundtrack involves an extremely significant cost and should be consider only if the project requires such an investment. This is why most of the time the movies comprises pre-existing musical works.
- Pre-existing music
Sometimes developing a movie soundtrack requires using pre-existing music among which we distinguish the so-called "illustration" music and the music from the general catalogue.
Illustration music are musical pieces edited by societies specialized in adding sound to audio-visual work. In these circumstances the authors and performers have already consent for the music to be used as a soundtrack so the producer has a single talking partner which really ease the process to obtain synchronization right. Another advantage is that these musics are rather cheap which is great for producers: prices oscillate between 150 and 450 euros per started minutes, but you can even find cheaper.
If a producer wants to synchronize music from the general catalogue it is wise to contact collecting societies. Indeed most of the editors are affiliated to a society and these societies are in charge to deliver the necessary authorizations for the use of the music, or if they have not the ability to do so, they can indicate the affected right holders.
Costs for the synchronization rights of a music vary depending of the editors and prices oscillate between 450 and 1000 euros per started minute. It is to note here that synchronization rights for classical music are always high because of the massive investments implied by their recording.
Finally, in any situation :
- As the synchronization of a music can threaten its integrity it is necessary to obtain the authorization of the person entitled with moral rights to avoid law issue
- It is primordial that the producer consider the production and commercialization of the film sound track. Indeed the synchronization right does not include publishing rights.
B) Artwork included in films
In a movie it is usual that some protected artworks appear : paintings, sculptures, drawings… The status of these works is complex and some authors have been claiming damages for the unauthorized use of their works.
For some time now judges consider that the incorporation of a protected work in a secondary work does not constitute a counterfeit if the incorporated work is not the principal subject of the secondary work.
On this matter a case law is significant : the conflict between a postcard editor and the architect of “Place des terreaux” in Lyon. Judges estimated that as it is represented on the postcards, the work of the architect is blended in the ensemble of the square and is only an element of it. Such a presentation of the work is therefore accessory to the postcard subject and does not constitute a communication of this work. The main idea is that there can’t be any counterfeiting of a work if this work is accessory in the secondary work.
This principle perfectly applies to movies as the Court of Paris underline it in the “To be and to have case”. In this case the author of several posters appearing in the classroom used as movie setting asked for compensation. Judges applied the same reasoning that in the previous case and considered that even if in the documentary of Nicolas Philibert several drawings appeared on the classroom walls, these drawings are “nested with the subject” and that “such an accessory communication does not infringe the copyright monopoly”
Consecration of the accessory theory really comes to ease movie production and secure the exploitation of movies. Indeed, unless a movie has an artwork for main topic, the producers can become disinterested in rights issue related to artworks to appear in the movie they produce.
C) Respect of trademark law
Beyond the consideration due to authors’ rights it can also happen that a movie include some elements constituent of a trademark law infringement.
In this way, in 2006 the clothing brand Brice clashed with the success of the film “Brice de Nice” of James Huth. The judges then considered that "the grammatical construction" T-shirt Brice " mentioned in the film and which combines the name of a garment and the name “Brice”, constitutes an infringement by reproduction of the Brice trademark filed for clothes. "
The use of counterfeits in a movie can also be considered and Louis Vuitton has recently filed a lawsuit against Warner Bros. arguing that the film company voluntarily presented a fake Louis Vuitton bag as a real in a scene from the movie The Hangover 2 of Todd Phillips. New York judges have however rejected the request of the creator saying that it was "highly unlikely" that the spectators had noticed that it was a forgery because it appears only a few seconds on the screen.
Moreover it is possible that the title of a movie itself constitutes counterfeiting itself. Thus, in 2006 the use of the title “Angélique” for a movie has been considered as an infringement of the mark "Angelique Marquise of Angels" because the word "Angelique" was an essential and characteristic element of the sign and therefore prohibited the use of the word for similar purposes. Cases about titles are frequent, the society that owns the brand « Tout peut arriver » designed and registered for a TV show claimed damages for the use of the brand as a movie title. In this case judges did not recognize the counterfeiting because of the specialization principle, but however the risk exists.
In general, the obvious appearance, visual or audible, of a trademark in a movie can lead its holder to pursue the producers in order to denounce an unauthorized use of the brand. Therefore the respect of trademark law needs to be considered while producing a movie. Then if a brand is mentioned on the film it can be judicious to use fictive brands. Thus the airline company “Oceanic airlines” is frequently used in US movies and avoids to producers conflicts with all existing airline companies. If the appearance of a specific brand is unavoidable the producer really should get in touch with the trademark holder to obtain an authorization for the use of the brand.
Finally if conflicts exist between producers and trademark holders, these relationships can also be beneficial for production, particularly with the massive development of product placement strategy. Indeed this strategy consisting in obtaining a movie financing by use of the brand in the film is growing bigger and bigger. This method can even allow producers to find a substantial part of their financing.
If this strategy is less developed in Europe that in US it is not negligible either. Thus, product placement unable to fund 3% of Gerad Pires’ movie “Sky fighters”, representing 588 000 euros.
In any case and as soon as a protected work is involved in the process of creation of a movie, it is primordial for the producers to take into accounts all the rights that stem from the protection of this work.
Mostly, if there is any doubt it is necessary to contact the right holders of the work in order to forestall any potential conflict and to obtain their authorization.
Finally as assignment of author right are highly complex contracts it is strongly advised to approach a specialized firm in order to negotiate at the best the assignments of rights. If it appears that obtaining the right is too expensive or too constraining it is wise to modify the project and to find alternative solutions.