The world of Polish film and advertising is evolving, inevitably following the course set by the American entertainment industry. This applies not only to the growing number of film co-productions (including international projects), increasingly higher advertising and film budgets, as well as the professionalization of the productions themselves.
This course results in many benefits for actors – better working conditions, more interesting projects, sometimes higher fees – but also entails the need to accept or adapt to the changing environment; an environment in which film production is not only an artistic endeavor, but also a business venture.
Producers often invest their own money, not seldom counted in millions of Polish zlotys, in film production, incurring liabilities against investors, co-producers, institutions supporting them financially (e.g. PISF), bearing financial and legal risk – becoming liable for creative elements used in the film. Oftentimes the producer has to enter into agreements under different jurisdictions (e.g. in the case of international co-productions or employing the services of international distributors). For this reason, producers must form with co-creators and actors quite complicated and long agreements which are often looked at with suspicion by actors. What’s obvious, every actor is entitled to and should pursue their best interests, including, in particular, legal aspects of participating in productions. However, when negotiating agreements, actors and their agents have to realize the nature and significance of certain contractual provisions of the producer.
The scope of transferred copyrights and related rights is of elementary importance for the producer. In modern film agreements, fields of exploitation often cover well over one page and this may seem a bit exaggerated for the artist reading such agreements. One must bear in mind, however, that in order to rationally and effectively exploit a film the producer has to enjoy full rights to such film; moreover, those rights have to be acquired from all co-creators and performers in exactly the same scope. One departure, e.g. restricting the right to use the artistic performance of one actor, automatically means limiting the possibility to exploit the film as a whole. What’s more, it often happens that the actor, apart from the artistic performance, from the legal standpoint goes beyond the role of performer (e.g. by proposing changes to the script, modifying dialogues) and in this capacity could be considered a co-creator of the film; the producer must also cover such situations. That’s why such provisions in agreements with the producer are frequently non-negotiable or negotiable merely in a very limited scope and does not follow from the ill will of the producer, but from specific economic needs. This is even more apparent in the case of international co-productions, especially involving co-producers from the United States. Due to the “work for hire” rule prevalent in the US according to which – simply put – all rights belong to the producer, co-producers from across the ocean demand Polish partners to guarantee the full scope of rights to the film, including – to the maximum extent permitted by the law – the limitation of moral rights of the actor (in certain jurisdictions the “waiver of moral rights” is an allowed practice).
With regard to the fields of exploitation, it is merchandising that raises the greatest emotions. On one hand, not every actor wants their image to grace cups with popcorn in cinemas; on the other, merchandising constitutes an increasingly vital field of exploitation of the film. It is worth however to distinguish in this scope,the right to use the actor’s image functioning under the so called “artistic mask” (film frame, photos from the shooting), in which case involves not so much merchandising use of the actor itself as the character played by such actor (appropriately made-up, designated, etc.).
The situation is slightly different in the case of participating in an advertising project. On one hand, the specificity of advertising requires some sacrifices on the part of the actor – giving up the right to mark their own artistic performance, often no influence on the script due to its explicitly commercial nature. On the other hand, the scope of transferred rights or granted permissions is much more restrictive in this case. The advertising campaign is usually meant to take place in a predetermined period of time – much shorter than the exploitation of a feature film. Due to the purpose and nature of the advertisement, it is a common practice to specify in detail the manner and time of exploitation of the artistic performance. We should remember this could be achieved by means of various legal measures. License for a definite period of time and for a specific manner of exploitation is the most straightforward solution for the actor (in practice, such succinct expressions can easily be found in agreements: “6 months – TV and radio – Poland”).
But also in the case of an advertisement the producer producing a given film advertisement upon the client’s order must have the legal security of such film in mind. For this reason an often encountered model entails the transfer of rights to the actor’s artistic performance along with the producer’s obligation and reservation that such rights shall not be exercised by the client after the lapse of the agreed period and in the manner exceeding what was specified in the agreement. Should the broader exploitation be needed, it is necessary to pay additional remuneration.
Another vitally important but often underestimated problem is whether the actor is exactly aware which advertisement he/she agrees to participate in. Of course, usually everyone more or less understands this: what kind of product, what kind of advertisement. However, as soon as the advertisement is to be implemented some problems may arise. It may turn out that the parties did not specify a number of particularly significant – for both parties – details such as whether only the image of the actor may be used, but not their name, or what exactly the actor is supposed to say, in what setting, how the actor is to be presented etc. In order to avoid such surprises – e.g. unexpected demand on the part of the actor to appear in a cosmetics advertisement in a specific outfit or without it – the parties should strive for the actor to accept the advertisement script as soon as possible. Obviously, the best solution would be to incorporate the storyboard into the agreement.
Prior to commencing negotiations of agreements, both parties should realize the needs and interests of the other party. The odds of successful negotiations and cooperation increase if the actor understands the business and legal needs of the producer and the producer, respecting the actor’s needs, clearly and transparently explains why certain provisions have to be included in the agreement.
Even with the best of intentions sometimes disputes are unavoidable. It therefore pays to entrust settling such disputes to specialized institutions of arbitration – familiar with the market and the specificity of the industry, all the more since the Court of Arbitration for the Audiovisual Market at the Polish Audiovisual Producers Chamber of Commerce began operating the middle of this year. The dispute may be conferred to the settlement of this court by explicitly indicating in the agreement that all disputes between the parties are to be settled by such court or by conferring to it an already existing dispute.