Prepare for the Long Haul Part 2: Establishing a Chain of Title for Intellectual Property

POSTED ON February 5, 2019 / IN

BY:

STEVEN C. BEER, JAKE LEVY AND NEIL J. ROSINI

This Q&A was originally published in the Fall 2018 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.

A clean chain of title is important both for purposes of monetizing a documentary and protecting it against infringers. Distributors, exhibitors, platforms and most others looking to acquire substantial rights in a production will check the chain of title. Just as when a physical piece of property is offered for sale, buyers will decline to make a deal if the chain of title showing ownership of the property is questionable. Also, should the documentary be copied without authorization in an infringement of its copyright, a clean chain of title—including registration of copyright of the finished production in the name of the producer—is generally a requirement for successfully pursuing a remedy in court.

A chain of title begins with ownership of an idea, the treatment (if any), a script (if applicable) and the completed production itself, including all its variations. The producer—whether an individual or a business entity—should be able to establish clear title to all of that intellectual property. This sometimes is accomplished by written assignment from third parties who don’t work for the producer. But generally it happens through work-for-hire agreements with individuals and third-party entities who work on the project at the request of the producer, including writers, crew, on-camera talent and editors. The effect of those agreements will be that the “results and proceeds” of those individual efforts will belong to the producer that employs them as if the producer were the author.

Collaborations, which by definition involve effort by multiple contributors, require special attention. Joint efforts can result in joint ownership, rather than ownership by a single person or entity, and make both exploitation and protection against infringers more cumbersome (or worse), compared to having a solitary owner. The remedy here also involves agreements; a single producer—either an individual or a business entity owned by one or more collaborators or other individuals—can acquire full ownership of a project and all of its elements through written assignments and work-for-hire agreements.

Collaborations also deserve special attention because of the consequences of a breakup.  When collaborators part ways, who or what owns the intellectual property? Will there still be joint ownership, but only one person or entity in charge of finishing the production and exploiting it? Can a collaborator create a competitive project? Entering into collaboration agreements that address these questions is advisable from the very beginning of a project, even if enthusiastic partners would prefer to think of more positive topics than a divorce.

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