Page 117 - Law and the Media

5 Rights Clearances

Philip Alberstat

5.1 Introduction

When producing an original programme, publication, or one that incorporates pre-existing
material, it is vital for the producer or editor to ‘clear’ any rights belonging to third party
contributors. Failure to clear such rights will result in infringement of the copyright, moral
rights or performers’ rights of the contributor, and may result in legal action and financial
liability.

The producer or editor must decide whether he wishes to acquire copyright outright, in other
words assign it, or clear it for specific use under a licence. If copyright is to be assigned, the
lawyers for each party should draw up the terms of purchase at the earliest opportunity. If
copyright is to be cleared for specific use, the terms of a licence must be agreed between the
producer or editor and the contributor that allow the pre-existing material to be exploited as
part of the programme or publication.

The producer or editor must determine at the outset whether the contributor’s work is to be
exploited in only one form of media, such as television or print, or in all forms of media. This
is a particularly important consideration in light of the widespread publication of material in
new media formats.

Rights clearance is a time-consuming and costly process. Using extracts from copyrighted
music or clips of film, television and radio footage and interviews can be extremely
expensive. However, it is important to ensure that all contributor rights are cleared before the
programme is broadcast or the article published. Failure to do so risks embroiling the
producer or editor in lengthy civil litigation, an even more expensive exercise, or possible
criminal proceedings. Broadcasters and distributors should always ensure that producers and
editors give appropriate warranties and indemnities.

Several specimen agreements for obtaining rights clearance can be found in Appendix C to
this book.