In the current economy and with the rapid growth of internet use, intellectual property (IP) rights have never been more valuable. However, it has become difficult for online users to even differentiate between legal and illegal films, which is putting those rights at risk. As the well-known film director Peter Jackson told The New York Times: ‘Piracy has the very real potential of tipping movies into becoming an unprofitable industry, especially big event films.’

All IP infringements, particularly copyright infringement in this sector, reduce the income from legitimate sales. If copies of a product, such as a DVD, are made without the rightful owner knowing about it, the people who put the hard work into making the product receive no payment or reward from their creative work. As such, the government, the film industry and other interested parties do their best to protect and promote copyright in the film industry.

A real impact
According to the UK IP Office’s IP Crime Report 2007, the audiovisual sector lost an estimated £459m due to copyright infringements in 2006, with the film industry alone said to have lost £338m. The loss of £102m in cinema admissions is thought to equate to 13.4% of the legal market in the UK. Similarly, an estimated loss of £238m DVD retail sales equates to 15% of the legitimate market. Market research carried out around this time found that 26% of the UK population had acquired or viewed pirate film material. That percentage has likely increased since.

The film industry is actively involved in combating copyright theft and supports a number of organisations involved in the enforcement of film theft legislation such as The Federation Against Copyright Theft (FACT), the UK IP Office and The Trading Standards Institute. FACT works closely with statutory law enforcement agencies to combat the growth of pirate DVDs and other broadcast material, including internet piracy. The organisation is accepted as a prosecution authority in its own right and facilitates investigation and prosecution. It also runs an accreditation scheme to provide a benchmark of security standards for film companies. In addition, there are a number of organisations which focus on security measures for the prevention of film theft. New technologies and delivery channels are developing fast, such as digital fingerprinting and watermarking.

However, film- and video-related IP concerns are not limited to copyright infringement of the released film. It is important to consider IP from the very beginning, at the point the original idea is first conceived, if you are to prevent other people taking the idea and developing it themselves. Protecting your IP rights is something that should be considered as soon as the initial concept has arisen.

Which IP rights should you consider?
There are three different IP rights that can be used to protect works in the film and video sector, although copyright is undoubtedly the most important. These are:

  • Design rights: These cover the look of a product. They can protect a whole product, part of a product or how a product is decorated. The Disney logo, for example, is a registered design, so it can only appear on products where Disney has given its permission.
  • Trade marks: These protect brand identities. You can register a name, symbol, logo or word as a trade mark in order to distinguish your goods or services from those sold or provided by another trader. For example, there are lots of bunnies but only one Bugs Bunny®. They are particularly valuable in cases where similar products are made by different traders. If you have a registered trade mark, you must renew it every 10 years to keep it in force.
  • Copyright: This right is automatically generated when a person or company creates a work that is capable of being protected by copyright. Copyright is essentially the right to prevent other people from copying, adapting, distributing (or doing other unauthorised acts to) that work.

Focusing on copyright
Copyright protects all sorts of different works or creations in different disciplines such as writing, music, art, film and TV. In the creative industries (such as the film and TV industries) copyright exists at lots of different levels to protect the end product of that industry, ie the film or TV programme. For example, in a film, copyright exists in the film sound track, the film screenplay, the set designs used in the film and the film itself. If that film is eventually shown on TV, copyright will also protect the broadcast of the film.

Copyright is intended to give the copyright owner the right to control the copies that are made of a particular work, for example by granting somebody else – for a fee – the right to make a copy of the original work. Copyright applies to any medium. This means that another cannot reproduce your copyright protected work in another medium without permission. This includes, publishing photographs on the internet, making a sound recording of a book, a painting of a photograph and so on. The film and TV industries therefore rely on copyright to protect their interests and their right to generate income from exploiting the works that they create.

As a general rule, copyright in a film runs out 70 years after the end of the year in which the death occurs of the final author. Authors may include the principal director, the authors of the screenplay and dialogue, or the composer of any music specially created for the film. The only exception to this is where the work is completed by an employee in the course of his or her employment. In some situations two or more people may be joint authors and joint owners of copyright.

You should also note that for copyright works originating outside the UK or any other country of the European Economic Area (EEA), the term of protection may be shorter if it is shorter in the country of origin. There may also be variations in the term where a work was created before 1 January 1996.

Protection is key
There are numerous benefits of copyright protection. Most importantly, it allows you to protect your original material and stops others from using your work without your permission. The existence of copyright may be enough on its own to stop others from trying to exploit your material. If it does not, it gives you the right to take legal action to stop them infringing your copyright, and to claim damages. By understanding and using your copyright and related rights protection, you can:

  • sell the copyright but retain the moral rights;
  • license your copyright for use by others but retain the ownership; and
  • object if your work is distorted or mutilated.

It’s important if you’re serious about your idea that you think about copyright from the beginning. If you have your work in the form of a script or manuscript, you can indicate your copyright by making sure the piece of work is produced as a hard copy, copyright marked ©, dated and signed. You then need to post it by recorded delivery to yourself and finally, deposit it somewhere secure such as a bank or firm of solicitors. Prior to this, circulation of any documents must be restricted accordingly, as without copyright protection a competitor can develop the idea with impunity. It is also a good idea to ask a producer to sign a confidentiality agreement acknowledging that any discussions are confidential and that no use can be made of the ideas without asking permission of the author.

Trademarks and design rights may not always be applicable until you have built up some goodwill and reputation in your film, brand or characters.

Content supplied by Melissa Todd (non-practising solicitor and LawWorks Choices volunteer). Photo credit: Lolly Knit

Image: Callum Farrell: