ESTABLISHING

OWNERSHIP IN FILM
PRODUCTIONS
BY
Michael Akpan
Nigerian Copyright Commission
At
WIPO/NCC Seminar for Film Professionals
Lagos
13 – 14 0ct0ber, 2008

Outline of Presentation
„ Copyright Protection of Film;
„ Determination of Copyright Ownership;
„ Acquisition of Rights (Pre – Production);
„ Acquisition of Rights (Post- Production);
„ Challenges of Rights Management; and
„ Conclusions/Recommendations.
Statutory Definition of Film
„ Section 39 (1) defines Cinematograph films to
be:
- First fixation of visual images
- Capable of being shown as a moving picture
and being the subject of reproduction; and
- Includes the recording of a sound track
associated with cinematograph film,

Nature of Copyright Protection

„ Owner of copyright in a film has the right to control,
amongst others;
- The making of a copy of the film;
- Causing the visual images in the film to be seen in
public or the sound associated with the film to be
heard in public;
- Utilizing the sound track in the film for a record; and
- Distributing to the public for commercial purposes,
copies of the film by way of rental, lease, hire, loan or
similar arrangments.
Ownership of Copyright in Film
„ Determination of ownership is important for
two major reasons:
- Only the copyright owner can exercise the
rights attached to films under the copyright
Act; and
- Subsequent licensing activities may require
legal capacity such as may arise from the
ownership status.

Ownership (cont.)
„ First Ownership is determined in line with the
provisions of the law.
„ The author of a work is regarded as the first
copyright owner (Section 9 (1)).
„ An author in the case of a film is:
“the person by whom arrangements for the
making of the film were made, unless the
parties to the making of the film provide
otherwise by contract between themselves”
(Section 39 (1))/
Obligations to Conclude Contracts
„ The maker of a film is obliged to conclude,
prior to the making of the film, contracts in
writing with all those whose works are used in
the making of the film.
„ The Copyright Law recognizes the
independent status and creative quality of the
different component works.
„ While the final product becomes the
intellectual property of the copyright owner,
the law nevertheless, protects the interest of
authors of component works.

Types of Film Contracts

„ Agreements concerning acquisition of rights
in underlying materials;
„ The employment agreements;
„ The Production agreement, pertaining to
arrangements for financing and producing the
film; and
„ Distribution agreements.
Acquisition of Rights (Pre-Production)
„ Film maker may:
i. Conclude agreement to acquire rights to an original
screen play or an underlying literary work such as
book, a play, treatment or idea;
ii. Conclude agreement with a writer to prepare a
screen play based upon a proposed story initiated
by the writer or based upon a concept developed
by the production company;
iii. Obtain licenses for music and other materials to be
used for production;
iv. Review and clear the film script from a legal and
factual viewpoint (i.e obtain releases where
necessary)

Acquisition of rights (cont.)

„ It is important to obtain the broadest
possible grant of rights including:
i. Rights in characters embodied in the film;
ii. Rights to do remakes, sequels and to
exploit derivative works in all present or
future formats;
iii. Right to distribute the film in all formats
presently known or that maybe invented in
the future.
Rights Acquisition (Post-Production)
„ Generally, copyright is transmissible by assignment,
testamentary disposition or operation of law as
moveable property.
„ An assignment may be limited to some rights,
geographical location, or specific period.
„ Assignment or an exclusive license must be in
writing.
„ A testamentary disposition of material on which a
work is first written or otherwise recorded, in the
absence of any contrary indication, is presumed to
include any copyright or prospective copyright in the
work vested in the deceased.

Important Provisions of Licenses

„ License Grant Clause;
„ Sub-licensing clause;
„ Consideration (fixed payments or running
royalties);
„ Confidentiality clause;
„ Term/Duration clause;
„ Termination and consequences of
termination;
„ Limitation of liability, indemnity, warranties &
disclaimers;
„ Dispute resolution clause.
Challenges of Rights Management in
The Film Industry
„ Low level of awareness;
„ Insufficient professional support;
„ Absence of clearly defined industry
practice/standards;
„ Absence of effective business models in
downstream sector of the film industry
(distribution & marketing);
„ Impact of ICT;
„ Weak law enforcement;
„ Paucity of funds.

Conclusion & Recommendations

„ Need for development of industry standards
and adoption of model contracts;
„ Proper guild regulation of practitioners;
„ Basic training on copyright for practitioners;
„ Increased use of professional services;
„ Establishment of collective management
platform.
END OF PRESENTATION

THANK YOU