Broadcasters prefer the straight ‘commissioning’ deal in terms of which all rights in and to a television production are assigned by the producer to the broadcaster. The phrase “all rights in and to the production” is all encompassing and usually includes rights to the name, the characters, the set and title design and other rights like sequel, remake, translation rights. This means the broadcaster will own the production in its entirety and the producer will not be entitled to exploit any aspect of the production independently.
Fortunately, there is much work afoot to level the playing fields and more balanced deals are being negotiated. However, for the many deals in which rights have already been assigned, there is some benefit to exploring whether any remedies are available post assignment. A possibility very rarely considered are the moral rights conferred on the author of a work by the Copyright Act.
While copyright is a property right, moral rights are personal rights that protect the reputation of the author of a work. In the case of a film, the author is the person who made the arrangements for the making of the film. Moral rights consist of two elements, the first is the right to claim authorship of a work (known as the right of paternity) and the second is the right to object to any distortion, mutilation or modification of the work which could prejudice the author’s honour or reputation (known as the right of integrity).
The right of paternity is relevant to issues of accreditation. Although it does not create an obligation for a credit to be provided (which is why the nature, wording and placement of credits should be specifically negotiated), it does entitle the author to claim a credit. If the claim is made, failure to provide such a credit or the false accreditation of an incorrect party would constitute an infringement.
Where a work will be adapted or altered in any way, the author’s right of integrity may entitle the author to object even if copyright in the work has been transferred. Importantly, this is not an unlimited right and in cases where the author of a work has authorised the television broadcast of that work s/he may not object to any modifications which are absolutely necessary on technical grounds or for the purposes of the commercial exploitation of the work. It is not clear how a court would determine whether a modification is “absolutely necessary on technical grounds or for the purposes of the commercial exploitation of the work,” but in other jurisdictions (where claims of this nature are more common) courts have looked at a number of factors, including a consideration of the norms of the particular industry.
What happens if an author’s moral rights are infringed? The Copyright Act provides that such an infringement is deemed to be an infringement of copyright. The usual remedies for copyright infringement (including an application for an interdict or a claim for damages) will be available to the author.
Since moral rights are personal rights, they cannot be assigned and they are not at all affected by an assignment of copyright. The author of the work would have to agree to waive these rights and undertake not to enforce them. Where an agreement does not contain a waiver, the author retains moral rights in respect of the work.
Of course, like any infringement claim, a claim for infringement of moral rights can be very costly. Renegotiation is an option to be considered when either party to an agreement is dissatisfied. While the nature and extent of what may be renegotiated will vary from deal to deal, this route will often be the most commercially practical for both parties.
Karen Willenberg is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.