When you’re signing agreements in entertainment, it’s important to read the fine print.  There’s a pesky tendency for contracts to include a representation that all of the rights you’re granting are, in fact, yours to grant.  It’s easy to gloss over, but it should really make you stop, think and take a step back.  You’re probably so excited by the opportunity, you may have forgotten to cross the t’s and dot the i’s.  Ask yourself – DO you have these rights?  A third party interested in your work won’t be thrilled if you don’t have what’s called “chain of title” all squared away.

As a quick primer, chain of title was traditionally understood as a real property concept but has since branched out into intellectual property, particularly in the digital age.  It refers to the concept that every person who contributed to the creation of a film, TV show, work of fiction, or any other type of media has assigned or licensed their rights to the appropriate party, and that the owner of the end result is, in fact, the rightful owner.  For example, let’s say you developed a video game, and you had other people create art and sound for it.  While your friends may not make a fuss about you using their content, a distributor who wants to license the game from you may have some qualms if you can’t show that you own every piece of what you’re granting.

To help you sort things out, here are three scenarios that may result in you not having chain of title.

  • Someone contributed and they didn’t sign over their rights.

This is essentially the scenario described above, but let’s dive in with a hypothetical: a team of people contributed to your pilot script.  Multiple writers had ideas, thoughts and story lines that ended up in the final draft.  Luckily, that draft has now been picked up by a network and production company, and deals are being put in front of you.  While the writers may say it’s cool, the network won’t see it that way.  They’ll ask who worked on it, and if you admit that there were multiple people, they’ll want to see your Writer’s Agreements.  If you don’t have them….that’s a problem.  The best case scenario will be that the network lets you hunt down your writers to get the paperwork, but the worst case is the network pulls the plug because it’s too much of a hassle and passes your script up for the next guy’s.  You may be thinking “can’t I just say I own it?”  Sure, but without proper work for hire language, that would be a lie.  If someone ever made a claim, you’ll have a lot of people upset with you and you may be liable for breach of contract, copyright infringement, and whatever other claims they can throw at you.  Better instead to take care of the contracts before you get to this stage, instead of risking it all because you didn’t want to make things awkward with your team.

  • You’re infringing on someone else’s work or otherwise using something without permission.

Have you ever included someone’s music in your sizzle reel because you thought it was public domain, or used a photograph you found online?  Maybe you wrote your entire script based on someone’s life but didn’t think to check with them.  All of these things affect chain of title, and without signed agreements or releases from the respective rights holders, you run the risk of a potential claim against you.  If there’s one thing a buyer doesn’t like, it’s buying a lawsuit.  Tempted to cry fair use?  Remember, fair use only comes into play once you’re already in trouble.  You may consider getting (or be required to get from a buyer) a Fair Use Letter from an attorney if you feel strongly that the material should be included and that you don’t need to pay for it, but it’s best to err on the side of caution and secure the rights.

  • You gave the rights to somebody else.

Don’t remember that other deal you signed from way back when?  Maybe you thought you only signed over part of your rights, or maybe you thought that the other deal had expired or terminated.  Be extra careful and make sure to review all agreements that could change or somehow affect your ability to perform under a new one – on top of representing that you have all the rights, many contracts also require you to represent that you aren’t breaching another agreement by way of signing this one.

Deals can fall apart quickly if an interloper comes out of left field claiming they have rights to your work and ought to be compensated.  Avoid weak links or a break in the chain and secure those rights early – otherwise, your project could be dead in the water.

Leah Norod

Associate Attorney

(212) 865-9848

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