The rights conundrum

Worship the producers of DVD nature documentaries. Securing rights for material from disparate sources can be an excruciating endeavour. Photographer and DVD producer CHRIS SATTLBERGER knows the situation first hand. Here, he shares his experience and offers some tips.

The ritual happens twice a year. Scores of media executives from around the world descend on the French Riviera town of Cannes for MIPTV in April and MIPCOM in November – the biggest TV programme markets. Content-hungry broadcasters are the main targets for programme sellers.

While the show organisers have never embraced packaged media, the trip to Cannes is of interest to DVD producers like myself in search of content. I knew the acquisition of DVD rights was a challenging endeavour, I just did not appreciate how big a challenge it is. Not to beat around the bush, it’s a mess.

While everybody at MIPTV, or any other market for that matter, obviously wants to sell programmes, closer inspection reveals a host of pitfalls for the prospective buyer looking to acquire rights for DVD. The problem seems to have its root in the way many programmes are made and the way their contracts are written.

To simplify – a lot of great programming is not available for DVD simply because the rights are unclear. I am not talking about the original broadcast rights or the straightforward home video rights. As long as one simply sticks a programme ‘as is’ on a DVD, things go relatively smoothly – ‘relatively’ being the operating word here.

Have you ever tried to combine National Geographic material with Discovery Channel programming in one series? If you have, you’ll know what I’m talking about. Brand conflicts aside, the real problems start the moment one wants to combine various disparate programmes on one DVD, say, for inclusion in the Extras section. At this point things start to unravel.

Many, mostly older, contracts do not clearly specify which rights are granted when it comes to editing or combining existing material. It then boils down to a definition of ‘edit’, ‘footage’, ‘full programme’ – a field day for the lawyers, but rarely something worth fighting over, especially with the usually rather limited production budget for DVDs.

I am not talking about Hollywood feature films here, where budget and rights are not an issue, but rather the re-purposing of existing programming material for inclusion in DVDs. What this means in real life is that it is imperative to double check the rights situation of any programme one may hope to acquire. This extends not only to the obvious, but to the use of all elements, graphics, still images, music, etc.

My discussions with several programme providers revealed vastly different approaches to the problem. While some own all the rights (either by dint of contract or simply because they produced the programme on a work-for-hire basis), many do not.

A typical example regards nature series which I know first hand, where very often some footage which the original crew didn’t manage to get, was licensed in. You may wonder why a camera crew wouldn’t get all that is on the shotlist. Ever tried to get a good lion kill? Or a pack of wolves marauding through a forest in just the right light?

Many, if not most, nature documentaries rely on third-party material, and herein lies the problem. To save cost, many of these footage bits were licensed in on a very restrictive (broadcast-only, for example) basis and now need to be re-cleared for additional usage.

The Devil is in the details. This is especially true in the case of co-productions where one partner’s ‘segment use’ (allowed) is another one’s ‘footage’ (not allowed, thus incurs footage rates). Cutting through all this can be a nightmare, made worse by the fact that not too many people have had to deal with this before.

Quite often the mention of editing rights elicits blank stares, and usually a ‘I’ll have to check with legal’. Which, of course, is the first step on the road to perdition, as lawyers being lawyers, the legal department will always find something wrong, an unclear clause, anything.

So, what’s the DVD producer to do? First of all, be clear, very clear, what you need. Not what you want (you won’t get it anyway, unless you have a budget funded by some licensing fee), but what you need. How much editing do you really need to do to make the title or the series work? Do you really need to change the title sequence to accommodate your publisher or distributor? Is the co-edition with some other publisher or distributor really necessary? Does their logo really have to go in the DVD rather than on the packaging? Can you subtitle? The list goes on.

At the end of the day, it boils down to doing your homework and also getting as clear a brief as possible from your publisher or distributor. Be as upfront as you can with potential programming sources and try to head off conflicts early. Also plan for much longer lead times than you may be used to in producing home video-style DVDs, as rights clearances can take forever.

Always have a plan B, that is, locate more than one provider of material you need. Don’t forget, even big, very big, broadcasters or distributors can and do make mistakes or have material with unclear rights in their catalogue.

Is the above situation likely to change? I would – cautiously – say ‘yes’, for a variety of reasons, amongst others the much-derided mobile market. While I am probably a sceptic on this one, it does force everyone in the industry to re-evaluate contracts and rights.

So, the next time you sit at the bar in the Martinez sipping your overpriced Martini, spare a thought for the poor guys in the legal department who have to pour over dubious wording while you live the good life!...

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