What to stipulate in the contract with the producer?

Video creation is becoming more and more technically simple. However, the high competition leads to the complexity of the content, and it includes many objects of copyright. Creating a video requires a certain organization of the project. This role is played by the producer. It is the producer who takes the initiative and bears responsibility (paragraph 44 of the Resolution of the Plenum of the RF Armed Forces of 04/23/2019 No. 10).  


Agreement between producer and author

Who will own the exclusive right?

The activity of the producer is not creative, and therefore he does not become the author of such works, therefore copyrights arise for the authors of the elements of the video (director, screenwriter, composer). Among copyrights, it is worth highlighting the exclusive right, on the availability of which the ability to use the work depends. The exclusive right to the entire video as a whole belongs to the producer. However, the producer does not have exclusive rights to the incoming elements. In this regard, it can arise only in the event of the conclusion of an agreement (paragraph 1 of article 1240 of the Civil Code of the Russian Federation).

The agreement can be either licensed or on the alienation of exclusive rights. In the first case, the right to use is transferred with some restrictions, for example, in terms of time and purpose. In the second case, the transfer of exclusive rights occurs, which the former copyright holder can no longer influence the use of the video. You can read more about these types of contracts in the articles from our lawyers.

The first question that the author needs to decide is how he will transfer the exclusive right to the producer: with restrictions or without restrictions. If the author creates an object specifically for the video, then the agreement will be considered as an agreement on the alienation of rights, only if the parties do not provide for a license agreement (paragraph 1 of Art. 1240).

However, if the object was not previously created for a specific video and an agreement is concluded between the author and the producer, then it will be considered as licensed. If the parties want to alienate the exclusive right, then it is necessary to write that it is transferred in full (paragraph 3 of Art. 1233).

Permissible restrictions under the license agreement

The license agreement for using the copyright object as part of the video will differ from the usual license agreement. As practice shows, in such an agreement, restrictions can be established only on (1) the term and (2) the territory (А40-76743 / 2019). Other restrictions will be invalidated (paragraph 2 of article 1240 of the Civil Code of the Russian Federation).

Author reward

This question is mandatory when concluding a license agreement or an agreement on the alienation of exclusive rights. There are four main reward models:

  1. One-time payment;
  2. Recurring payments;
  3. Profit percentage;
  4. A combination of these methods. 

The same rules apply to the contract between producer and performer. 

More detailed aspects can be found in the articles on these treaties.

Agreement between producer and customer

Order of receipt of funds by the customer

In the case of creating video content, the investment model of the filming company (А40-51703 / 2016) can be used. In this case, the exclusive rights remain with the producer, however, he undertakes to return the funds after the video is published. In this case, it is necessary to establish the sequence of payments to the investor and the producer. In case of receiving income, the investor is the first to receive money in the amount that he transferred to the producer. The producer then reimburses his expenses. After that, you should set the proportion for the distribution of income between them.

At the same time, if the producer does not fulfill his obligation to create an audiovisual work, it is impossible to force him to shoot a video in court. For the customer, the only option is to collect damages. The video is the result of the creative work of the authors. The producer does not apply to them, in this regard, only property claims can be presented to him (А40-51703 / 2016).

Third Party Copyright Dispute Resolution 

This condition of the contract is associated with the initial emergence of exclusive rights for the authors of the objects, which are all included in the audiovisual work. The contract may stipulate the obligation of the producer to conclude contracts with the authors without additional payment to the customer, so that the customer can use the audiovisual work. Another obligation follows from this obligation - to settle disputes arising with the copyright holders of the objects included in the video content (А56-5865 / 2015).

Thus, a producer's contract with both authors and customers may contain many conditions that will eliminate possible disputes in the future. When concluding an agreement between the producer and the author, it is imperative to provide for the transfer of exclusive rights to the producer, as well as the issue of remuneration. In the event of an agreement between the producer and the customer, the procedure for the distribution of profits should be envisaged, as well as the obligations of the producer to guarantee the existence of exclusive rights to the objects included in the video.


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