Clearing rights in film

Financing in place, shooting days scheduled, cast signed. And then, somewhere in the final weeks before the premiere, the distributor asks the question you would rather not hear: can you send the chain of title?

Clearing rights, known throughout the film industry as clearances, is the process of gathering all the permissions and licences your production needs. It is not a formality. Distributors refuse delivery if your clearances are not in order, financiers pull out, and you will not get errors and omissions insurance without complete documentation.

Start early. Many productions underestimate how many rights are involved in an average film.

Which rights do you need to acquire?

• Rights in the underlying work. Is your film based on a book, article, podcast or true story? Then you need permission from the rightsholder. That usually starts with an option agreement, followed by a definitive transfer or licence once the production is greenlit.
• Screenplay rights. The screenwriter holds copyright in the script. Those rights have to be transferred or licensed to the producer in writing, including the right to adapt the screenplay.
• Music rights. Using existing music means arranging permission twice: for the composition (from the composer or publisher) and for the master (from the label). Commissioning an original score instead? Then you arrange the rights through the contract with the composer. One point that regularly surprises producers: even a few seconds of recognisable music in the background has to be cleared.
• Rights in what is shown on screen. Works of art, logos, branded products and recognisable buildings can be protected by copyright or trade mark law. Check element by element whether you need permission, and do it during the shoot rather than once you are in the edit.
• Image rights. Does your film or documentary revolve around recognisable people, living or dead? Then image rights come into play. With documentaries and productions based on true stories this is one of the most underestimated clearance categories. In my practice I regularly see this point raised too late.
• Location rights. Shooting on location requires permission from the owner or the site manager. Record arrangements on access, liability and fees, since an oral agreement is not enough here.
• Archive material and clips. Are you using existing footage, news fragments or film clips? Arrange licences with the rightsholder. Prices vary considerably depending on the source, the length of the fragment and the territory of exploitation.

What does the clearance process look like?

Start by mapping every element that contains third-party rights. Then work out, element by element, who the rightsholder is and exactly what permission you need. Record everything in writing, and archive the documents carefully.

Keep a clearance report as you go: an overview documenting, per element, which right you acquired, from whom, on what terms and for which territory. This report forms the basis of your chain of title, the paper trail showing that all rights were properly acquired and passed on to the producer. Financiers, distributors and insurers always ask for it.

What if a clearance cannot be obtained?

Sometimes a right simply cannot be obtained. The rightsholder refuses, demands an unworkable fee, or cannot be traced. You then have a few options: alter the element so that it is no longer recognisable, cut it from the production, or, in exceptional cases, rely on a statutory exception such as the right of quotation. That last route always calls for legal assessment, because the exception is narrower than it looks and cannot simply be assumed.

Solving a clearance problem before release is always cheaper than litigating afterwards.

Help with your clearances?

Whether you are at the start of a production or discover halfway through that there are gaps in your rights structure, do get in touch. We will look together at what is needed and how you can move forward.