CAMPAIGN REPORT ON PRODUCTION AND POST PRODUCTION: Who Owns the Ad? It belongs to the client, Michele Martin finds, but only if all the parties involved adhere to the small print and agree to part with their rights

THE CLIENT

THE CLIENT



Sholto Douglas-Home Head of Advertising BT’s Consumer Division



’Ownership of a commercial is very simple as far as we are

concerned.



We own all our films under the terms of our contract with Abbott Mead

Vickers BBDO, just as most clients do with their agencies, as far as I’m

aware. That said, we don’t own the background rights to things like

music, which we license on a project by project basis. Our contract with

the agency effectively leaves it to them to make sure all rights are

acquired on our behalf from the production company and director, but we

don’t worry about it. I assume it’s what most clients do - we certainly

have faith in our agencies. Besides, we’ve made 250 ads with AMV in

three years and never had any problems, so the system seems to be

working well enough.



Of course, ownership doesn’t necessarily mean that we can do exactly

what we want to with an ad. We couldn’t show any of our old commercials

starring Bob Hoskins, for example, because our contract with him expired

in December 1996. His three-year contract with BT only allowed us to use

him for that period of time, even though we hold a set of master tapes

of the ads here.



That kind of deal tends to happen with big stars, but it’s less of a

problem with commercials starring unknown actors, who assign unlimited

rights to us.’



THE AGENCY Frank Lieberman Head of Television Abbott Mead Vickers

BBDO



’The production company owns the right to a commercial until its

contract with the agency is fulfilled. In other words, once the director

has delivered the film, it has been approved by the client and we’ve

paid the final 50 per cent, it is ours. But we only hold it for the

client as the client’s agent, so in fact the client ultimately owns the

commercial. This means that even when an agency loses a client, that

client keeps ownership of the ads. Most of the elements are covered by

the tripartite standard production contract agreed by the Incorporated

Society of British Advertisers, the Institute of Practitioners in

Advertising and the Advertising Film and Videotape Producers’

Association. Nevertheless, a good deal of the burden to get the contract

right still falls on the production company’s shoulders.



Everyone who contributes to the making of an ad has creative copyright -

from the director right through to the model-maker - and it is up to the

producer to make sure all parties waive these rights, giving the agency

and client full ownership. However, if an agency wanted to reuse old

footage to make a commercial for a different client or product, it would

have to go back to all those third parties to get their permission all

over again.’



THE PRODUCTION COMPANY



James Bradley Managing Director and Partner of Concrete



’My understanding is that there is an agreement between the agency and

its clients that all creative rights are assigned to the client where

possible. In turn, copyright which arises during the process of

converting the idea to film is assigned by the production company to the

agency, once the final payment has been received. Of course, there are

some areas which are not so straightforward. For example, if an agency

wanted to use a cartoon or model animated character, there would be an

additional agreement based on a licence fee and creative approval by the

originator.



Even if the character is brand new, it is recognised that the copyright

is owned by the designer and that rights to use that property are up for

negotiation. Several years ago at Redwing, we created a character for

Ready Brek called Ready Eddie and ended up assigning the rights over to

Nestle for a fee. We were not in a strong position then, but it would be

a different story if we were to do a similar deal today. At least the

new industry production agreement makes it clear that a client does not

automatically own everything a production company creates.’



THE LAWYER



Andy Millmore Litigation Partner Macfarlanes



’A number of different copyrights exist in a TV commercial - including

the film, the script and other components. Copyright in the film itself

belongs initially to the producer (normally the production company),

while the director has moral rights, including the right to be credited.

The copyright in the shooting script will normally belong to the agency

or the freelancers who created the work. However, copyright can be

bought, sold or licensed and it is this transfer of ownership that needs

to be done effectively to ensure that a client owns the commercial he

pays for.



The rights must first be assigned to the agency in writing, including

the waiving of the director’s moral rights if the agency wants ultimate

creative control of final edits. Agencies usually do this using the

industry standard form contract which provides that, upon payment, the

production company will assign its rights to the agency. The ownership

of rights between the agency and a client then depends on a separate

contract, which usually gives a client ownership after it has paid the

agency fully for its work. But the absence of paperwork can be critical,

since Section 90 (3) of the Copyright, Designs & Patents Act 1988 says:

’An assignment of copyright is not effective unless it is in writing,

signed by or on behalf of the assignor.’ The key is to identify who was

the first owner of the component parts and the film itself, then to

check that the ownership has been transferred to the agency or the

client.’



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