Creative defences

Film or tv production can expose mammoth amounts of financial investment and collective creative input to losses through the theft of ideas and ownership. Li Jingjue, legal director at media multinational Huayi Brothers, examines the risks and challenges in film and television production under the amended copyright law

CHINA’S FILM and television industry has been on a three-decade long growth spurt, with a seemingly endless string of new business models springing up one after another. It is the core duty of legal counsel to come up with legal solutions for production and promotion that live up to both commercial value and corporate expectation. Ever on the lookout for even the subtlest changes in the legal and regulatory environment, we must recalibrate corporate policies in a timely manner so as to continually provide excellent legal services.

The regulatory shifts that befell the entire entertainment industry in the past year, however, were anything but subtle. The third amendment to the Copyright Law was passed on 11 November 2020, and subsequently came into effect on 1 June 2021, attracting considerable attention from the public and legal officers alike. We found the situation very challenging indeed.

RIGHTS ALLOCATION

The allocation of rights and benefits is the first core issue to figure out in any film or television project. To ensure efficient and successful distribution of film and television products, and the subsequent allocation of benefits, we co-ordinate the rights attribution between producers, authors and performers, and clarify the ownership of copyright via thorough and precise contracts.

The new Copyright Law introduces the concept of “audiovisual works” on top of the original clause, with article 17 stipulating that “the copyright of films and television series, which are audiovisual works, shall belong to the producer, while scriptwriters, cinematographers and other personnel are entitled to authorship and remuneration according to the contract. The copyright of audiovisual works other than films and television series shall be determined by the agreement entered into by parties concerned, or in the absence of which, go to the producer.”

Strict preparatory measures must be taken to ascertain the exact type of audiovisual works in a project, especially when it comes to the rights allocation of the above-mentioned “other audiovisual works”. We must perform complete and prudent contract reviews and be ready to deviate from the established framework designed for regular films and TV series.

AUDIOVISUAL WORKS

Any work that consists of a series of fixed related images, with or without accompanying sound, susceptible of being made visible and, where accompanied by sound, susceptible of being made audible
Source: Treaty on the International Registration of Audiovisual Works

Take for example a clip-edited music video as part of a movie’s marketing campaign. Based on the original Copyright Law (amended on 26 February 2010), it would fall under the category of a quasi-film (a product created in a similar manner as film) or a video recording, and adopt the rights allocation rules accordingly. The production company or the chief distributor would obtain the identity of, and rights from, the video or recording producer via a commission production contract, and engage or obtain license from the relevant musicians and any subjects of neighbouring rights.

Under the new Copyright Law, we must first determine what it is. The music video is obviously not a film or TV series, so we need to further work out the rights allocation among “parties concerned”, after obtaining the producer’s identity.

The extension of authorship is a common but tricky issue. If interpreted literally, “parties concerned” must include all subjects remotely involved in the production, but for obvious reasons this is not practical.

To avoid any disputes arising from ill-defined rights allocation, producers should strictly define the scope of authorship via pertinent contracts or rights statements, taking into account the nature and production cycle of a music video, and allocate the benefits in the manner agreed upon.

To sum up, the eventual rights allocation must, against all odds, be the recipe that pleases everyone. Laws and regulations, industry practice and the rules of audiovisual works must be observed, corporations must be satisfied with the room for revenue and input-output ratio, and the departments in charge of the actual allocation should not be overburdened in their often limited timeframes.