Managing performers' rights: the role of contracts

By Katherine Sand, Former General Secretary of the International Federation of Actors (FIA)

While the recently adopted Beijing Treaty on Audiovisual Performances formally recognizes and strengthens the economic and moral rights of performers, an interesting complementary study of the management of performers’ rights and working conditions has been commissioned by WIPO. This involves a neutral and non-prescriptive review of the role of contracts in the audiovisual industries.

In the past, understandably, WIPO has focused little on copyright contracts. Any government involvement in the international harmonization of copyright contracts could be contentious, even if it were legally possible. Contracts are, by their nature, private agreements between parties that are governed by national law and are the product of free negotiation. So why commission a paper on the subject?

To answer this question, it is worth taking a step back and looking at the realities of the film and television industries. Contracts are all about the regulation of relationships and, as anyone who has sat through the lengthy final credits of a movie or a television program will realize, filmmaking or “audiovisual production” is an exceptionally collaborative art form, bringing together the contributions and expertise of a large number of people. At the center of these highly complex, creative and technical creations are the producers whose behind-the-scenes efforts bring together not only the resources but also the myriad moving parts that go into the making of a film.

(Photo: istockphoto - Camilo Jimenez)

Each of a producer’s relationships related to a production requires a contractual agreement, including with the most prominent among the creative contributors, the audiovisual performers (actors, dancers or stunt performers, for example). It was the intellectual property (IP) rights of these performers that took center stage at WIPO’s Diplomatic Conference in Beijing in June 2012.

Contracts between producers and performers are an essential part of the jigsaw puzzle of audiovisual production. They establish the way in which IP rights are handled, as well as the rights and obligations of producers and performers with respect to each other and to the production itself. Put simply, contracts have the potential to translate legal provisions into economic reality – one that is beneficial to all parties.

It is certain that the Beijing Treaty strengthens the precarious position of film and television actors by providing a clearer legal basis for the international use of audiovisual productions, both in traditional media and in digital networks. It will contribute to safeguarding the rights of performers against the unauthorized use of their performances.

However, IP rights, including those flowing from an international treaty, go hand in hand with contracts, which are both a means of expressing and conveying IP rights and a tool to help producers do their job effectively and achieve legal certainty.

Government representatives have spent years discussing performers’ rights in WIPO. The adoption of the Beijing Treaty therefore makes it an exciting time for the audiovisual industry. One interesting aspect of these discussions has been the growing international understanding of the legal and cultural traditions of different countries and the way these influence the treatment of performers in law. These varied national conditions have greatly informed the international debate, which has, at times, been a turbulent sea to navigate. In some legal systems, performers’ contributions to a film are viewed as “work made for hire” for which the producer is considered the author of the audiovisual work. In other countries, performers’ rights are very much like authors’ exclusive rights and are exercised as such. Many other countries have hybrid systems and, in some places, performers still have few or no legal rights at all. What has become clear in the discussions is that a single element is common to the vast majority of these systems – the performer’s contract.

The WIPO review refers to a wide range of contracts, from the very basic, which mainly specify payment and hours to be worked, to those with very detailed, collectively negotiated terms, in countries with highly developed film and television industries. These terms can include secondary payments when the work is reused, for example, when a film is shown on television or sold as a DVD or when television programs or commercials are repeated. They also set out standards for working conditions, obligations for performers and a range of other elements.

Contracts are closely linked to bargaining power. In developing countries with relatively little audiovisual production, performers and producers are less likely to be collectively organized. Performers will, almost inevitably, have a weaker voice in any negotiations, even if they are valuable “stars”. It is widely accepted that collective organization offers a positive way forward for both contractual parties. For years, the International Federation of Actors (FIA) has helped to establish guilds and unions of performers in emerging and developing countries, to train and inform collective counterparts for producers to deal with and, in this way, to develop social dialogue. Similarly, organizations of audiovisual producers are organized through their international entity, the International Federation of Film Producers Associations (FIAPF), in order to promote and build national film industries and good practice.

It is taken for granted that all parties working in the film industry aim to stimulate production. Recent decades have witnessed a significant amount of production in many countries that is “international” in nature, with filmmakers travelling to foreign countries to take advantage of diverse locations, lower production costs, financial incentives and possibly favorable exchange rates. International production can be of great benefit to the country in which a film is set, bringing in foreign exchange, foreign direct investment and generating employment and economic activity. Equally important, international production can also help support and sustain local, indigenous film production. All this works in favor of local producers, performers and production industries as long as all of their contracts are enhanced and not exploited by it.

It seems clear that, along with having top-notch laws (which many countries do), contracts play an important role in stimulating economic activity and translating legal provisions into economic reality. WIPO’s acknowledgment of the importance of contracts and its willingness to support dialogue and training in this area go hand in hand with the process of international norm-setting. It is now up to the parties themselves. The more national organizations of performers and producers work together to improve contractual practices, support their industries and improve the quality of their “social dialogue”, the more IP rights will have meaning and bring economic benefits to all.