Managing performers' rights: The role of contracts

• Author: Katherine Sand
• Position: Former General Secretary of the International Federation of Actors (FIA)
• Pages: 8-9

p. 8 2012 | 4

MANAGING

PERFORMERS’

RIGHTS:

the role of contracts By Katherine Sand, Former Gene ral

Secretary o f the Internationa l

Federation of Ac tors (FIA)

While the recently adopted Bei jing Treaty on Audiovisual Per-

formances formally recognizes and strengthens the economic

and moral rights of per formers, an interesting complementary

study of the management of per formers’ rights and working

conditions has been commissioned by WIPO. This involves a

neutral and non-prescr iptive review of the role of contracts in

the audiovisual industries.

In the past, understandabl y, WIPO has focused little on c opy-

right contracts. Any government involvement in the international

harmonization of copyright contracts could be contentious,

even if it were legally possi ble. Contracts are, by their nature,

private agreements between pa rties that are governed by

national law and are the product of fre e negotiation. So why

commission a paper on the subject?

To answer this question, it is worth taking a step bac k and

looking at the realities of the l m and television industries.

Contracts are all about the regu lation of relationships and, as

anyone who has sat through the len gthy nal credits of a movie

or a television program will re alize, lmmaking or “audiovisual

production” is an exceptionally collaborative art form, bringing

together the contributions and ex pertise of a large number of

people. At the center of these highly co mplex, creative and

technical creations are the producers whose behind-the-scenes

efforts bring togethe r not only the resources but also the myriad

moving parts that go into the mak ing of a lm.

Each of a producer’s relationships related to a produc tion

requires a contractual agree ment, including with the most

prominent among the creative c ontributors, the audiovisual

performers (actors, dancers or stunt performers, for example).

It was the intellectual proper ty (IP) rights of these performers

that took center stage at WIPO’s Diplomatic Conference in

Beijing in June 2012.

Contracts between produc ers and performers are an es sential

part of the jigsaw puzz le of audiovisual production. They estab-

lish the way in which IP rights are handl ed, as well as the rights

and obligations of producer s and performers with respect to

each other and to the production itself. Put simply, contracts

have the potential to translate legal provisions into ec onomic

reality – one that is bene cial to all parties.

It is certain that the Be ijing Treaty strengthens the pre carious

position of lm and television actors by providing a clearer legal

basis for the international use of audiovisual productions, both

in traditional media and in d igital networks. It will contribute to

safeguarding the rights of pe rformers against the unauthor ized

use of their performances.

However, IP rights, including those owing from an interna-

tional treaty, go hand in hand with contracts, w hich are both a

means of expressing and co nveying IP rights and a tool to help

producers do their job ef fectively and achieve legal certaint y.

Government representatives have spent years discussing

performers’ rights in W IPO. The adoption of the Beiji ng Treaty

therefore makes it an exciting time for the audiovisual industry.

One interesting aspect of the se discussions has been the

growing international understanding of the legal and cultural

traditions of different c ountries and the way these inuence the

treatment of performe rs in law. These varied national conditions

have greatly informed the internation al debate, which has, at

times, been a turbulent se a to navigate. In some legal systems,

performers’ contrib utions to a lm are viewed as “work made

for hire” for which the producer is c onsidered the author of

the audiovisual work. In other countries, performers’ rights

are very much like authors’ exclusive r ights and are exercised

as such. Many other countries have hyb rid systems and, in

some places, perfo rmers still have few or no legal rights at all.