Appendix 3: Contractual issues
This section is not intended as a legal primer: appropriate legal advice should be sought on any substantial purchasing commitments (perhaps taking care to keep the costs of legal advice to both parties proportionate to the scale of the project). The UK law on copyright is evolving rapidly as case law clarifies the latest copyright legislation, and further changes can be expected soon. There are, though, a number of factors specific to video production which you may want to consider at the contract stage.
Of course a clear description of what is to be supplied, any relevant filming and delivery dates, total costs and payment dates is needed.
If your agreement allows for changes in specification to lead to additional costs, it may be worth clarifying on what basis and at what rates those costs may be charged. Will, for example, additional filming days or other costs incurred be payable "at cost" (and what are those rates?), with a small handling charge, or with a full contingency, overhead and profit mark-up? Or should your agreement set an absolute budget ceiling, and require the producer to refuse requested additions to the specification after contract?
Master tapes, show copies
What, physically, is to be delivered? Producers often regard the production of a master tape as completion, with the master tape to be retained by the producer and all show (DVD, web or other) copies chargeable as extras.
It's worth checking costs of copies. Copies ordered by you direct from specialist duplicators (and made from your programme master) may prove substantially cheaper.
UK law currently vests copyright in a video production with its creators and organisers: i.e. with the producer and not with you. You may wish to negotiate an assignment of copyright to your organisation as part of your contract. You will need at least a licence. The programme's creators also acquire moral rights in the completed programme, making their consent a legal necessity for alterations to the programme. Again you may desire a waiver of moral rights, which is at present possible in the UK, though in some countries such a waiver is not allowed.
Copyright in the production is not the same as copyright in all the materials used in it. Separate copyright will exist in the script, video filming, photography, graphics, music and other elements.
If you want to be sure that you will have the right to re-use video filmed for you or graphics created for you when you came to make further videos in the future, you may want to insist on taking possession of and copyright in the original camera tapes - the rushes - as part of your contract price, on project completion. Otherwise, you'll want to be certain that you are working with a producer who you can trust to treat you fairly. It can save trouble later if these issues are addressed before you choose a producer.
If your production includes music, your producer must ensure that the copyright and performance rights in the music are licensed for your use. This will normally be a non-exclusive licence - that is, other videos may use the same music.
Specialist library music services offering great variety at reasonable rates are available. If you wish to use a commercial recording or pop song, ensure that all rights are costed and cleared in advance; rates are very varied and can be enormously high - from a few hundred to tens of thousands of pounds for non-exclusive use of a song on a corporate video.
If you wish to include archive picture or sequences recorded from broadcast TV, again all rights should be costed and cleared in advance.
Your producer should handle this for you, but it's worth checking: you may be prevented from using your video or face costly changes if this issue is ignored.
It might prove unwise to agree a contract where additional unspecified charges can be raised to meet royalty payments to copyright or performance rights holders. These costs can be substantial.
Rights clearances are required by law and are always important. Where a video is to receive very limited, controlled screening breaches may escape detection; nevertheless all rights should be cleared.
Where a video is to be shown to wider audiences, or distributed to the public in any way, breaches of underlying rights will almost certainly come to light and cause subsequent difficulties.
Occasionally commissioners see their programme or filming they have paid for being used by third parties or for uses of which they do not approve: it may be worth specifying in contract that your producer has no rights to show or use your material except with your agreement.