Director’s Agent — Submission provided to Screenrights

Production Company — Submission provided to Screenrights

Director’s Agreement

The competing claim was for retransmission royalties in respect of a television series. Reliance was placed by the Production Company on section 98 of the Copyright Act 1968 (Cth) (Act) regarding the maker and owner of copyright in cinematographic films. Since 19 December 2005, the Act includes a limited retransmission right to directors (see the Copyright Amendment (Film and Directors’ Rights) Act 2005 (Cth), which recognises the director as a maker and owner of the film for this purpose but only if certain exceptions do not apply. One exception is where the director directed the film under the terms of his or her employment under a contract of service, in which case the employer is to be substituted for the director as the maker in the absence of any agreement to the contrary: s98(5).

In the present circumstances Screenrights is of the view that there was an agreement to the contrary. Specifically, while the Director’s Agreement referred to the relationship between the two parties as that of Employee and Employer as submitted by the Production Company, the following clauses were agreed in the Director’s Agreement :

Clause A: “Despite anything to the contrary in this Agreement, the Director retains the right to collect (and authorise others to collect) sums from time to time equal to the Directors Collecting Society Income.”

Clause B: “Directors Collecting Society Income means:

(a) the retransmission royalties in relation to the Mini-Series in Australia under Part VC of the Copyright Act 1968 (Cth) received by the Audio-Visual Copyright Society Limited trading as Screenrights which the Director is entitled to collect.”

Thus, even if it is accepted that the Director directed the film under the terms of his or her employment under a contract of service as submitted by the Production Company, read together the above clauses of the Director’s Agreement represent an “agreement to the contrary” for the purposes of s98(5).

The Production Company’s submission that based on the employment relationship no royalties are payable to the Director is not clearly supported in light of terms which evidence a contrary mutual intention.

The Director’s Agreement also included a clause in which the Director “assigns to the Producer the whole of his/her interest in the copyright in the Mini-Series.”

However, as a result of Clause A, “Despite anything to the contrary in this Agreement” which would include the assignment clause referred to above, the Director still retains rights to receive the retransmission royalties to which the Director would be entitled as an owner of copyright.

Accepting that the Director retains the right to receive retransmission royalties, the question becomes – what share of retransmission royalties is due to the Director?

The Explanatory Memorandum to the Copyright Amendment (Film Director’s Rights) Bill 2005 (EM) indicates that the director’s ownership of copyright under section 98 means that they are entitled to retransmission royalties jointly with the producer, subject to any agreement to the contrary. The EM refers to the allocation by Screenrights under its Distribution Policy of funds collected under the retransmission scheme to owners of copyright in the film and anticipates that this allocation will be divided between the producers and the directors (Para 78). The EM does not include any commentary on the individual shares.

The Director’s Agreement does not include any express transfer or assignment by the Production Company of its right to receive retransmission royalties. Therefore, a claim by the Director to 100% of the royalties is not clearly supported; rather the Production Company retains its share along with the Director retaining his/her share.

Accordingly, given that the contract is silent on the share and there is no agreement to the contrary, the better view is that the Production Company and Director are tenants in common of the retransmission royalties and are entitled to a proportional share, being 50%.

The Production Company and Director are each entitled to an equal share of the retransmission royalties for the television series, being 50% each.

Writer’s Agent – Submission provided to Screenrights

Producer, Broadcaster and Public Company

• Writer’s Agreement between the Writer’s service company (“the Contractor”) and the Producer
• Submission from Agent

The Writer represented by the Writer’s Agent was the scriptwriter of a drama series. The producer, broadcaster and public company, jointly as Claimant 2, agreed on their respective shares of script royalties as against the Writer. Screenrights advised the parties that their competing claims would be resolved in accordance with the Express Resolution Process (ERP) and that Presumptions 2 and 3 applied in favour of Claimant 2. Presumptions 2 and 3 provide that the relevant scriptwriter is assumed to have assigned the entire copyright comprised in the relevant scripts for the series to the producer, and therefore, the related right to receive script royalties resides with the producer, subject to any rights to script royalties granted or reserved to the applicable scriptwriter.

The Writer’s Agent challenged the applicability of presumptions 2 and 3. Under the ERP, a party challenging the applicability of a presumption must provide “sufficient evidence” for the presumptions to be overturned or put into question.

The Writer’s Agent claimed that:

1. Under the Writer’s Agreement, the Writer, and not the Producer, was entitled to claim script royalties;
2. That the Contractor (that provided the Writer’s services), and not the Producer, was entitled to collect ‘Collection Society Income’; and
3. That the relevant clauses in the Agreement should be construed such that the rights of the Producer are only in relation to the film portion of the royalties and not in relation to script.

Screenrights’ decision was that the Agent had not provided “sufficient evidence” to overturn or put into question the presumptions because the Writer’s agreement did not reserve an entitlement to the Writer to collect Screenrights script royalties. The Agent requested that an independent expert be appointed by an independent organisation to review Screenrights’ decision.

The independent expert reviewed the decision and affirmed it, concluding that:

• in relation to Presumption 2, no exception to it was clearly demonstrated whereby the Writer retained or was granted rights to Screenrights script royalties; and
• in relation to Presumption 3, no reserved rights were expressly stated in relation to the assignment of the entire copyright comprised in the scripts.

This reasons for this determination included:

• The wording “Nothing in this Agreement shall prevent the Contractor or the Writer from being entitled to receive Collecting Society Income under Clause [X]” did not confer an express right to the Contractor to collect Screenrights script royalties. Rather, the clause indicated that no other clause in the Agreement should affect the Contractor’s entitlement to collect Collection Society Income.
• Collection Society Income” is defined in the Agreement as “moneys that the Writer is able to collect as an author of the Screenplay from AWGACS”. The competing claim is for script royalties payable by Screenrights and not for monies payable by AWGACS.
• It appears clear that the parties intended that the Contractor or Writer would only be entitled to collect royalties payable by AWGACS in relation to the Writer’s status as author of the applicable screenplay, and not any other collecting society income.
• There was a clear outright assignment of copyright in the script without any reservation of rights to the Contractor or Writer. Absent any other provision to the contrary the Producer is solely entitled to claim the script royalties from Screenrights.
• With regard to the Writer’s Agent’s submission that the relevant clauses in the Agreement, when read together, indicate that the intention of the parties was that the Writer would be entitled to “script royalties” and the Producer would be entitled to “film royalties”, this interpretation does not reflect the fact that the Producer is the owner of the copyright in the relevant script and in the finished program and, therefore, is the proper claimant of the script royalties which Screenrights allocates between the owners of such copyrights.

Claimant 2 is entitled to 100% of the script royalties for the Program.

Writer’s Agent – Submission provided to Screenrights

Film Agency – Submission provided to Screenrights

• Writer’s Agreement
• Production Agreement

A clause of the Writer’s Agreement referenced by the Writer’s Agent states, “Nothing in this agreement will prevent the Writer from being entitled to receive direct payments which the Writer is exclusively entitled to receive … under collective agreements negotiated by collecting societies, including but not limited to Screenrights, or under licensing or other schemes sanctioned by law, either in Australia or under international laws and the Producer will make no claims to any such payments.”

It was not accepted that the proper interpretation of the clause is that the writer is to receive direct payments from collecting societies, exclusively.

Rather, the ordinary meaning of the words used in this clause suggested the writer is entitled to secondary royalties and the writer is exclusively entitled to collect.

With respect to Screenrights royalties for the script allocation, a writer is not necessarily entitled to the royalties. Therefore they are not exclusively entitled to collect the royalties.

Entitlement to such royalties may be assigned along with the copyright in the script. In the Writer’s Agreement there is a clause which assigns the copyright to the Producer excluding the collection society rights covered in the clause referenced above. Since it has been concluded that the clause referenced above only covers secondary royalties that a writer is exclusively entitled to receive, the assignment of copyright includes an assignment of the right to receive Screenrights royalties for the script allocation.

The intention of the reference to Screenrights is to preserve potential payment of royalties to the writer in the event that a collective agreement is negotiated in the future by Screenrights whereby Screenrights royalties for the script allocation is agreed to be exclusively payable to a writer.

While not necessary to the decision, the conclusion reached was supported by the contextual background namely that the Production Agreement granted to the Film Agency all rights in the copyright in any script in connection with the Film and required that the Producer use a standard form of contract to effect this intention. It would therefore follow that any Screenrights royalties for the script allocation would be payable to the Film Agency. The Distributor obtained an assignment of the rights from the Film Agency.

On the basis of the above 100% of the royalties subject to this competing claim were paid to the Film Agency.

Production Company – Submission provided to Screenrights

Writers’ Agent – Submission not provided to Screenrights

• Writing Services Agreement (including an Inducement Letter between the Writer and Production Company)

The Writing Services Agreement provides that all copyright together with any cable and satellite retransmission rights are held by the Producer and the Fee includes equitable remuneration for cable and satellite retransmission rights. The terms of the Writing Services Agreement were supported by an Inducement Letter with the writer.

No other material was produced to substantiate the Writers’ competing claim.

Accordingly, in the absence of any compelling evidence from the Writer’s Agent that the writer had a reserved a claim to Screenrights royalties, the better claim to Screenrights royalties was made out by the Production Company.

100% of the royalties subject to the competing claim were paid to the Production Company.

Agent on behalf of Co-Producer 1 and Distributor (Company A) – Submission provided to Screenrights

Agent on behalf of Co-Producer 2 (Company B) – Submission not provided to Screenrights

• Assignment and Assumption Agreement between the parties
• Three separate Co-Production Agreements between Co-Producer 1, Co-Producer 2 and other production companies
• Other documents

Company A made submissions in relation to the entitlement to receive retransmission royalties attributable to Episodes of the series, produced by Co-Producer 1 and Co-Producer 2 under three separate Co-production Agreements (the “Agreements”).

1. The submissions were that the relevant agreements indicate: Co-Producer 2 had no rights to collect royalties in any language or relevant territories, particularly after the Assignment and Assumption Agreement altered the defined territories for exploitations and granted Co-Producer 1 all rights to collect royalties.
2. Company A may collect all relevant retransmission royalties due to an agreement with Co-Producer 1.
3. The Agreements defined the ownership and distribution rights for the parties and in light of the subsequent agreements Co-Producer 1 as Distributor may collect all retransmission royalties payable.
4. Co-Producer 2 may share in the royalties as per ownership splits identified in the Agreements, but cannot collect as this is the right of Co-producer 1 who also acts as Distributor.
5. Co-Producer 2 granted and assigned to Co-Producer 1 as Distributor the rights to exploit all episodes in all languages throughout the territory for the Term. Co-Producer 1 as Distributor had the right to make and exhibit foreign language versions and Co-Producer 2 had no rights of ownership in such versions.

In the absence of any compelling evidence to the contrary from Company B, Screenrights accepted that Company A was entitled to 100% of the available Screenrights royalties.

Writer’s Agent – Submission provided to Screenrights

Film Agency – Submission provided to Screenrights

• Writer’s Agreement
• Production Agreement

A clause of the Writer’s Agreement referenced by the Writer’s Agent states “Nothing in this agreement will prevent the Writer from being entitled to receive direct payments which the Writer is exclusively entitled to receive … under collective agreements negotiated by collecting societies, including but not limited to Screenrights, or under licensing or other schemes sanctioned by law, either in Australia or under international laws and the Producer will make no claims to any such payments.”

It was not accepted that the proper interpretation of the clause is that the writer is to receive direct payments from collecting societies, exclusively.

Rather, the ordinary meaning of the words used in this clause suggested the writer is entitled to secondary royalties and the writer is exclusively entitled to collect.

With respect to Screenrights royalties for the script allocation, a writer is not necessarily entitled to the royalties. Therefore they are not exclusively entitled to collect the royalties.

Entitlement to such royalties may be assigned along with the copyright in the script. In the Writer’s Agreement there is a clause which assigns the copyright to the Producer excluding the collection society rights covered in the clause referenced above. Since it has been concluded that the clause referenced above only covers secondary royalties that a writer is exclusively entitled to receive, the assignment of copyright includes an assignment of the right to receive Screenrights royalties for the script allocation.

The intention of the reference to Screenrights is to preserve potential payment of royalties to the writer in the event that a collective agreement is negotiated in the future by Screenrights whereby Screenrights royalties for the script allocation is agreed to be exclusively payable to a writer.

While not necessary to the decision, the conclusion reached was supported by the contextual background namely that the Production Agreement granted to the Film Agency all rights in the copyright in any script in connection with the Film and required that the Producer use a standard form of contract to effect this intention. It would therefore follow that any Screenrights royalties for the script allocation would be payable to the Film Agency. The Distributor obtained an assignment of the rights from the Film Agency.

On the basis of the above 100% of the royalties subject to this competing claim were paid to the Film Agency.

Writer’s Agent – Submission provided to Screenrights

Distributor – Submission provided to Screenrights

• Writer’s Agreement
• Marketing and Distribution Agreement
• Production and Investment Agreement
• Other documents

It was accepted that the heading of a clause “Writer’s Prize Money” was not relevant to the interpretation of the clause.

The ordinary meaning of the words used in this clause suggested the writer is entitled to secondary royalties payable as the writer being the author of the script. Subject to express contractual provisions to the contrary, Screenrights relies on copyright ownership to determine the proper recipients of royalties, so Screenrights royalties would not be captured here. In any case, the Writer’s Agreement grants the Rights (includes all of the rights in the Script) by way of assignment.

While not necessary to the decision, the conclusion reached was supported by the contextual background namely that the Production and Investment Agreement and related Marketing and Distribution Agreement had the effect that monies received in relation to Collection Society Rights (which would include Screenrights royalties for the script allocation) formed part of the Gross Receipts to be disbursed by the Film Agency in accordance with the terms of the Production and Investment Agreement. The Distributor obtained an assignment of the rights from the Film Agency.

Collection Society Rights is defined in the Production and Investment Agreement to mean “the exclusive right to join and register…the script…with all relevant collection agencies…and collect any and all fees and royalties received by any such collection agency”.

On the basis of the above 100% of the royalties subject to this competing claim were paid to the Distributor.

The Film Agency – Submission provided to Screenrights

Writer’s Agent – Submission not provided to Screenrights

• Production Deed

In a Production Deed the Film Agency covenants with the funding body that it is the beneficial owner of the copyright in the script and of the sole and exclusive right to reproduce this script by means of a cinematograph film.

The Distributor obtained an assignment of the rights from the Film Agency.

In the absence of any compelling evidence to the contrary such as a Writer’s Agreement, 100% of the royalties subject to this competing claim were paid to the Production Company.

Distributor – Submission provided to Screenrights

Producer’s Agent – Submission provided to Screenrights

• License Agreement

The Producer granted the Distributor broad rights to distribute the Picture including “Non-Theatrical Rights” and “Television Rights”.

The term Non-Theatrical Rights was defined to include the exclusive right to distribute to Non-Theatrical Markets, “…“Non-Theatrical Markets” means and includes… schools, libraries, hospitals…Army, Navy, Air Force and other military or armed services installations, and ships at sea flying the flag of a Domestic Territory only, and other institutions that typically license recorded entertainment materials from programming suppliers.

Therefore educational and government use were covered.

The term “Television Rights” was defined to include free television, “Free Television” means…(b) exhibition by means of satellite or cable television for which subscribing members of the public may pay for the transmission service provided by the satellite or cable system, but do not otherwise pay a premium for the programming transmitted by the satellite or cable system.”

Therefore retransmission was covered by Television Rights.

There is nothing in the agreement that indicates collection society income ought to be treated any differently from other revenues. It was not accepted that the term “Any rights not expressly granted hereunder shall be reserved to Licensor” resulted in the retention of collection society income by the Licensor.

100% of the royalties subject to the competing claim were paid to the Distributor.

Writer’s Agent – Submission provided to Screenrights

Distributor – Submission provided to Screenrights

• Foreign Collecting Society Statement
• Writers’ Contracts

The Writers’ contract provided was in a foreign language.

The Writers’ Agent advised that they were instructed by the Collecting Society that the relevant clauses in the contract provided for the distribution of royalties to the writer.

Though not referring to the specific title or writer subject to the competing claim, the Certificate confirms the reciprocal agreement between the Collecting Society and Writers’ Agent, and states that members of the Society retain their cable retransmission rights and off-air recording rights in the contract they sign with producers and by doing so, keep their right to be remunerated for such uses.

However, in this instance a narrow construction of the clauses of the Writer’s Contract was accepted. Specifically;

A: There is no relevant reference to educational copying/communication in the Writer’s Contracts and therefore the writers do not have the right to collect Australian educational royalties nor do they have the rights to assign the collection of such royalties to the foreign collecting society.

B: There is no reference to retransmission royalties from a third party platform in the Writer’s Contracts and therefore the writers do not have the right to collect retransmission royalties from a third party platform or the right to assign the collection for such royalties to the foreign collecting society.

As a general principle, the law which applies in relation to the existence, validity, scope and duration of copyright rights is the law of the country where legal protection is claimed, not where the copyright was created, being Australian law.

Regulation 4(1) of the Copyright (International Protection) Regulations 1969 provides that provisions of the Copyright Act relating to subject matter made or first published in Australia also apply in relation to subject matter made or first published in a Berne Convention country, a UCC country, a WCT country, or a WTO country. The script was a work made or first published in such a country and should therefore be treated as if it were made or first published in Australia.

Therefore, the writers’ rights under French copyright law are not effective to entitle them to statutory royalties in Australia.

Accordingly, Screenrights is of the view that French law cannot be applied to determine the entitlement to royalties payable by Screenrights.

100% of the royalties subject to this competing claim were paid to the Distributor.

Producer A and Producer B – Submissions provided to Screenrights

Distributor – Submission provided to Screenrights

• Format License Agreements
• Distribution Agreements
• Production and Investment Agreement
• Production, Investment and Licence Agreements
• Other documents

A Section of the Season 1 Format Agreement states that the Licensee (the Producer) “shall retain, solely, the copyright, rights in the nature of copyright and all other intellectual property rights in and to each episode of Series 1 of the Program… in any and all media …throughout the Australian Territory… in perpetuity.”

Further, there is no clause in the Season 1 Format Agreement in which the Producer grants the right to collect the relevant Screenrights royalties to the Distributor. Therefore it is the Producer as the copyright owner in the program who holds the right to collect Screenrights royalties for educational copying and communication.

The Season 2 Distribution Agreement provided to Screenrights between the Producer and a related entity to the Distributor (Related Entity) states that the copyright in the Program is owned by the parties in accordance with the International Distribution Agreement, which designated a specific share of the copyright in the Program to both parties.

However, the PILA for Season 2 includes a clause which states that the Related Entity, a party to the PILA, assigns its copyright in the program for the Australian territory. Screenrights accepts that the outcome of this is that the Related Entity (and accordingly, the Distributor) has no copyright interest in the season 2 Program in Australia and the relevant copyright owners (of which the Producer is one) hold the copyright as tenants in common.

Accordingly, Screenrights concluded that the better view is that the Season 2 PILA prevails over the provisions stipulated in the Distribution Agreement and the right to collect the relevant Screenrights royalties for the episodes of season 2 of the series rests with the Producer.

The Distributor did not establish a right to collect the relevant royalties for the Program.

The available royalties were paid to Production Company A and Production Company B in the proportions registered.

Production Company A (Company A) – Submission provided to Screenrights

Production Company B (Company B) – Submission not provided to Screenrights

• Copyright record from the US Library of Congress
• Other documents

Company A advised that Company A and B entered into a Co-production Agreement to produce documentaries giving Company A a 50% share of copyright.

Company A provided a copyright ownership record for the Film from the US Library of Congress which stated that the there are two parties to the title, one of those being Company A. It was found that Company A owned 50% of the Film copyright including the right to receive royalties.

On the basis of the above and in the absence of any submission from Company B, 50% of the royalties subject to this competing claim were paid to Company A.

Distributor – Submission provided to Screenrights

Production Company – Submission not provided to Screenrights

• Acquisition of Rights Agreement

An Acquisition of Rights Agreement granted the Distributor broad distribution rights including non-theatrical, excluding ships and airlines, all forms of pay and free television in the relevant territories as well as a beneficial interest in and the exclusive right to collect “Copyright Revenues”. Copyright Revenues is defined to include all royalties which the registered copyright owner is entitled to collect by reason of any statute, government regulation, operation of law or for any use of the Picture pursuant to the exercise of the distribution rights, including revenues from the retransmission of the Picture by any means.

There was no compelling evidence to the contrary.

The Distributor was paid 100% of the available Screenrights royalties.

Production Company – Submission provided to Screenrights

Director’s Agent – Submission provided to Screenrights

• Director’s Agreements (not relevant to the program in question)
• Standard directors contract clause recommended by Director’s Agent to members

Neither member provided the relevant Director’s Agreement for the program.

The Program was produced after 19 December 2005.

Reliance was placed on section 98 of the Copyright Act 1968 (Cth) (‘the Act’) regarding the maker and owner of copyright in cinematograph films in making its decision.

Since 19 December 2005, the Act includes a limited retransmission right to directors (see the Copyright Amendment (Film and Directors’ Rights) Act 2005), which recognises the director as a maker and owner of the film for this purpose subject to certain exceptions.

The Explanatory Memorandum to the Copyright Amendment (Film Director’s Rights) Bill 2005 (“EM”) indicates that the director’s ownership of copyright under section 98 means they are entitled to retransmission royalties jointly with the producer, subject to any agreement to the contrary. The EM refers to Screenrights’ Distribution Policy which allocates 68.5% of funds collected under the retransmission licence scheme to owners of the copyright in the film and anticipates this allocation will be divided between the producers and directors (Para 78).

The EM does not include any commentary on the individual share allocation to any one owner. Therefore, the better view is that where no exception applies and underlying contracts (where available) are silent on the share, the owners are tenants in common of the retransmission royalties and entitled to a proportional share of the retransmission royalties.

Screenrights paid the film retransmission royalties subject to the competing claim as an equal share between the two parties.

Distributor – Submission provided to Screenrights

Producer’s Agent – Submission provided to Screenrights

1. License Agreement
2. Amendment to the License Agreement
3. Copy of Instrument of Transfer

The Producer granted the Distributor broad rights to distribute the Picture including “Non-Theatrical Rights” and “Television Rights” in the Territory, which is defined to include Australia and New Zealand.

The term Non-Theatrical Rights was defined to include the exclusive right to distribute to Non-Theatrical Markets, “…“Non-Theatrical Markets” means and includes… schools, libraries, hospitals…Army, Navy, Air Force and other military or armed services installations, and ships at sea flying the flag of a Domestic Territory only, and other institutions that typically license recorded entertainment materials from programming suppliers.

Therefore educational and government use were covered.

The term “Television Rights” was defined to include free television, “Free Television” means…(b) exhibition by means of satellite or cable television for which subscribing members of the public may pay for the transmission service provided by the satellite or cable system, but do not otherwise pay a premium for the programming transmitted by the satellite or cable system.”

Therefore retransmission was covered by Television Rights.

There is nothing in the agreement that indicates collection society income ought to be treated any differently from other revenues. It was not accepted that the term “Any rights not expressly granted hereunder shall be reserved to Licensor” resulted in the retention of collection society income by the Licensor.

100% of the royalties subject to the competing claim were paid to the Distributor.

Writer’s Agent

Producer

1. Director’s Agreement between the Writer and the Producer
2. Submission from Agent

The Writer was the script writer and the director of a documentary program. Both the Writer and the Producer claimed script royalties. Screenrights advised the parties that their competing claims would be resolved in accordance with the Express Resolution Process (ERP) and that Presumption 4 applied in favour of the Producer. Presumption 4 provides that statutory royalties are not usually payable to the writer/s of a script for any documentary produced in Australia given the terms of relevant industry agreed contracts. There are no industry agreed contracts for writers of documentaries.

The Agent challenged the applicability of Presumption 4. Under the ERP, a party challenging the applicability of a Presumption must provide “sufficient evidence” for the Presumption to be overturned or put into question. The agent relied upon the Director’s Agreement, which was the only agreement the Writer had with the Producer, and the fact that the Writer had a writer’s credit on the program.  The Director’s Agreement dealt with directing services only. The Agent submitted that the Writer had not assigned any rights in the script to the Producer and that, as the Writer was credited in the program as writer, he was entitled to script copyright and therefore script royalties.

Screenrights’ decision was that the Agent had not provided “sufficient evidence” to overturn or put in question the Presumption because the Director’s Agreement did not deal with the script or script royalties and the credit was not evidence of any ownership of copyright. The Agent requested that an independent expert be appointed by an independent organisation to review Screenrights’ decision.

The Independent Expert reviewed the decision and affirmed it. The Independent Expert noted that

1. the requirement of “sufficient evidence” is a safeguard against the arbitrary or inappropriate allocation of royalties;
2. it is an objective standard that requires more than a mere assertion and that standard will be higher where a party seeks to overturn the Presumption than where it seeks merely to put the Presumption into question;
3. where a party seeks to overturn the Presumption, the evidence should have a factual basis that either displaces the Presumption or is adequate to justify a finding of entitlement to payment of royalties; and
4. where a party seeks to put the Presumption into question, it must put forward evidence that at least tends to suggest an entitlement to royalties.

The evidence put forward by the Agent did not reach those standards.

Screenrights’ internal decision was affirmed. The agent did not provide sufficient evidence to overturn or put into question the applicability of Presumption 4 under the ERP.

There were 3 sets of claims, the claimant 1 in each case being:

Directors’ Agent (as agent of each of the directors)

There were 3 sets of claims, the claimant 2 in each case being:

Producer or broadcaster

1. Submission from the Directors’ Agent
2. Submission from the producer
3. Production and Investment Agreement
4. Director Loan Out Agreements between the directors’ service companies and the producers.

The competing claims were for retransmission royalties in respect of a television series. The main claims were between three directors of the series and the producer. There was also a competing claim from a broadcaster against the producer, but no evidence or submission was provided to support that claim.

Section 98 of the Copyright Act 1968 was amended in 2005 to give a director of a film the right to royalties when the film is included in a free to air broadcast retransmitted across a different network. The right is not available to the director where there is “an agreement to the contrary” (s 98(5)), the film is a commissioned film (s 98(3)) or the director directed the film under the terms of his or her employment under a contract of service (s 98(5)).

The television series was not commissioned and, although each the directors was employed by a service company, they were not employees within the meaning of s 98(5). The issue was whether there was “an agreement to the contrary” so that the directors did not have a right to the royalties.

Each of the Directors’ Loan Out Agreements acknowledged that production company would “exclusively own all results and proceeds” of the director’s services, including all rights of every kind. The director’s service company assigned to the production company all “all its right, title and interest (including copyright) present and future in all the results and proceeds of the Services … without reservation, condition or limitation”. The Agreement acknowledged that the director’s agent was entitled to collect royalties under any statutory licensing scheme relating to cable retransmission. The relevant clause read:

The Production Company acknowledges that the Australian Screen Directors Authorship Collecting Society (ACN 071 719 134) will be entitled to collect monies on behalf of the Director that the Director is entitled to pursuant to any statutory licensing scheme relating to the cable re-transmission and/or private copying of the Film.

The Independent Expert found that this was a mere acknowledgement of an entitlement to collect royalties, that all copyright had been assigned to the production company, and that the retransmission right was not reserved to the director. Each Director’s Loan Out Agreement was therefore “an agreement to the contrary” under s 98(5) and the directors did not own copyright in the retransmission right in respect of the television series and were not entitled to any royalties.

The Production and Investment Agreement required the producer to join Screenrights, register the television series with it and appoint it as its agent. The PIA granted the producer the exclusive right to market the film, including obtaining any benefit from statutory licences under the Copyright Act. There was no requirement for it to disburse any income from royalties from Screenrights. The Independent Expert determined that the producer was entitled to retransmission royalties, subject to resolution of the competing claim from the broadcaster.

The producer is entitled to 100% of the retransmission royalties for the television series, subject to resolution of the competing claim by the broadcaster.

Distributor

Writers’ Agent

• Distribution Agreement between the Producer and Distributor
• Assignment of Assets from distribution company to Distributor
• Certificate from an foreign authorship society in relation to foreign Copyright Law
• Email correspondence between:
  • Distributor and the Writers’ Agent;
  • Producer and the Writers’ Agent; and
  • Distributor and the Producer.
• Submission from Writer’s Agent
• Submission from the Distributor

The Writer and the Distributor claimed retransmission rights in respect of a film produced overseas.

The Producer licensed certain distribution rights, including the retransmission rights, to a distribution company, the assets of which were subsequently transferred to the Distributor. The Producer then entered into an agreement with the Distributor whereby it, as Licensor, granted the Distributor a licence of all copyright and any other rights in the film throughout the world except for some specified countries. The Distributor was also granted all royalty rights, defined as ‘The right to collect, on behalf of the Licensor, blank tape levies, cable retransmission royalties and educational copying royalties in the Territory’.

The Writers’ Agent submitted that the Writer, a citizen of a foreign company, was entitled under the copyright law of that country to the script royalties for the film. It also relied upon the fact that the Producer had confirmed in writing via email that it did not have any entitlement to the script royalties for the film.

The Independent Expert found that

1. The Distribution Agreement granted the Distributor the right to collect royalties from educational copying and retransmission in Australia.
2. The question of copyright ownership and entitlement to royalties is mixed question of fact and law. Any admission as to ownership is therefore not conclusive and the emails from the Distributor could not be relied upon as evidence to support the Writer’s claim.
3. As a general principle, the law which applies in relation to the existence, validity, scope and duration of copyright rights is the law of the country where legal protection is claimed. The law of the country where the copyright was created or registered is not relevant. Australian law is to be applied to determine who is entitled to the royalties.
4. Regulation 4(1) of the Copyright (International Protection) Regulations 1969 provides that provisions of the Copyright Act relating to subject matter made or first published in Australia also apply in relation to subject matter made or first published in a Berne Convention country, a UCC country, a WCT country, or a WTO country. The script was a work made or first published in such a country and should therefore be treated as if it were made or first published in Australia.
5. There was nothing in the material provided that indicated that the Writer was entitled to the royalties under Australian law.

The Distributor was entitled to 100% of the royalties for the film.

Writer’s Agent – Submission provided to Screenrights

Producer – Submission provided to Screenrights

Writer’s Agreement between the Writer’s service company and the Producer.

Under the Writer’s Agreement, all copyright in the script and program was assigned to the Producer. The right to receive Collection Society Income, defined as moneys the Writer was able to collect from AWGACS, was reserved to the Writer. The Producer retained the right to collect and authorise others to collect moneys due to the owner(s) and/or controller(s) of the rights in the script and the program from collection societies, including Screenrights’.

The Writer claimed that (1) under the Writer’s Agreement, s/he was entitled to claim script royalties, (2) that “Collecting Society Income” included Screenrights royalties, and (3) because of Presumption 6 of the Presumptions under the Express Resolution Process applied.

The Producer was given the express right under the Writer’s Agreement to receive royalty income from Screenrights. The provision entitling the Writer to receive royalty income specifically related to income collected by AWGACS only, that is, income from to the secondary royalties AWGACS is entitled to collect and not to income collected by other collecting societies. There was no provision entitling the Writer to receive income collected by other collecting societies.

Presumption 6 provides that the industry agreed contract (the SPA-AWG Miniseries and Telemovie Agreement 2010) usually applies and has the effect that statutory royalties are payable to the Writer. In light of the express provisions in the Writer’s Agreement, the Presumption could not be applied. The parties had turned their minds to the issue of statutory royalties and income from collecting societies and had agreed upon the entitlements of each party.

The Producer is entitled to 100% of the royalties for the Program.

Writers’ Agent – Submission provided to Screenrights

Producer’s Agent – Submission not provided to Screenrights

Foreign Collecting Society Statement

Writer’s Contract

In the absence of any argument from the opposing claimant, it was found that the Writers’ contract provided for the retaining of all intellectual property, including copyright in the Film, by the writer and the entitlement to retain script royalties through Screenrights.

On the basis of the documentation provided to us, Screenrights is of the view that the better claim to Screenrights royalties is made out by the Writers Agent.

100% of the royalties subject to the competing claim were paid to the Writers’ Agent.

Directors’ Agent – Submission provided to Screenrights

Producer’s Agent – No Submission provided to Screenrights

Foreign Collecting Society Statement

Directors’ Contract

The Directors’ contract provided was in a foreign language.

The Directors’ Agent advised that they were instructed by the Foreign Society that the relevant clauses in the contract provided for the distribution of royalties to the director in accordance with the rules of the Foreign Society.

Though not referring to the specific title or director subject to the competing claim, the Certificate confirms the reciprocal agreement between the Foreign Society and Directors’ Agent, and states that members of the Society retain their cable retransmission rights and off-air recording rights in the contract they sign with producers and by doing so, keep their right to be remunerated for such uses.

In this instance, it was assumed that the Directors’ Agent had reviewed the foreign language contract and made its submission on the basis of an interpretation of the contract favourable to the Directors’ Agent position.

However, if a similar form of contract were to be provided in the future as evidence under the Competing Claim Resolution Procedures (ADR or ERP) in relation to a different dispute, Screenrights may not necessarily make the same assumption, depending on the outcome of any independent expert decision under the Competing Claim Resolution Procedures interpreting this form of contract.

On the basis of the documentation provided to us, Screenrights is of the view that the better claim to Screenrights royalties is made out by the Directors Agent.

100% of the royalties subject to the competing claim were paid to the Directors’ Agent.

Writers’ Agent – Submission provided to Screenrights

Producer’s Agent – No Submission provided to Screenrights

Foreign Collecting Society Statement

Writer’s Contract

The Writers’ contract provided was in a foreign language.

The Writers’ Agent advised that they were instructed by the Collecting Society that the relevant clauses in the contract provided for the distribution of royalties to the writer in accordance with the rules of the Collecting Society.

Though not referring to the specific title or writer subject to the competing claim, the Certificate confirms the reciprocal agreement between the Collecting Society and Writers’ Agent, and states that members of the Society retain their cable retransmission rights and off-air recording rights in the contract they sign with producers and by doing so, keep their right to be remunerated for such uses.

In this instance, it was assumed that the Writers’ Agent had reviewed the foreign language contract and made its submission on the basis of an interpretation of the contract favourable to the Writers’ Agent position.

However, if a similar form of contract were to be provided in the future as evidence under the Competing Claim Resolution Procedures (ADR or ERP) in relation to a different dispute, Screenrights may not necessarily make the same assumption, depending on the outcome of any independent expert decision under the Competing Claim Resolution Procedures interpreting this form of contract.

On the basis of the documentation provided to us, Screenrights is of the view that the better claim to Screenrights royalties is made out by the Writers Agent.

100% of the royalties subject to the competing claim were paid to the Writers’ Agent.

Writers’ Agent – Submission provided to Screenrights

Producer’s Agent – No Submission provided to Screenrights

Foreign Collecting Society Statement

Writer’s Contract

The Writers’ contract provided was in a foreign language.

The Writers’ Agent advised that they were instructed by the Collecting Society that the relevant clauses in the contract provided that the writer retains a clear entitlement to the script royalties for the film.

The Statement confirms the reciprocal agreement between the Foreign Society and Writers’ Agent.

The Writers Agent submits that it is their understanding from the Foreign Society that the writer, on becoming a member with that Society, assigns or otherwise transfers to the Society all of his/her economic copyrights including for any use of his audio-visual works in any country.

In this instance, it was assumed that the Writers’ Agent had reviewed the foreign language contract and made its submission on the basis of an interpretation of the contract favourable to the Writers’ Agent position.

However, if a similar form of contract were to be provided in the future as evidence under the Competing Claim Resolution Procedures (ADR or ERP) in relation to a different dispute, Screenrights may not necessarily make the same assumption, depending on the outcome of any independent expert decision under the Competing Claim Resolution Procedures interpreting this form of contract.

On the basis of the documentation provided to us, Screenrights is of the view that the better claim to Screenrights royalties is made out by the Writers Agent.

100% of the royalties subject to the competing claim were paid to the Writers’ Agent.

Producer and Distributor – Submission provided to Screenrights

Writers’ Agent – No Submission provided to Screenrights

Employment Contract

It was accepted that, as a full time employee under a contract of service, it can be assumed that the copyright in any works created in the course of the writer’s employment vested on creation in the company, pursuant to the operation of section 35(6) of the Copyright Act 1968 (Cth).

This submission was found to be supported by the clause titled “moral rights” of the contract provided, which stated that all rights in intellectual property created by the writer in the course of employment would be owned by the employer.

On the basis of the documentation provided to us, Screenrights is of the view that the better claim to Screenrights royalties is made out by the Producer and Distributor.

100% of the royalties subject to the competing claim were paid to the Producer and Distributor.

Writers’ Agent – Submission provided to Screenrights

Distributor – No Submission provided to Screenrights

Foreign Collecting Society Statement

Writers’ Contract

The Writers’ contract provided was in a foreign language.

The Writers’ Agent advised that they were instructed by the Collecting Society that the relevant clauses in the contract provided for the distribution of royalties to the writer in accordance with the rules of the Collecting Society.

Though not referring to the specific title or writer subject to the competing claim, the Certificate confirms the reciprocal agreement between the Collecting Society and Writers’ Agent, and states that members of the Society retain their cable retransmission rights and off-air recording rights in the contract they sign with producers and by doing so, keep their right to be remunerated for such uses.

In this instance, it was assumed that the Writers’ Agent had reviewed the foreign language contract and made its submission on the basis of an interpretation of the contract favourable to the Writers’ Agent position.

However, if a similar form of contract were to be provided in the future as evidence under the Competing Claim Resolution Procedures (ADR or ERP) in relation to a different dispute, Screenrights may not necessarily make the same assumption, depending on the outcome of any independent expert decision under the Competing Claim Resolution Procedures interpreting this form of contract.

On the basis of the documentation provided to us, Screenrights is of the view that the better claim to Screenrights royalties is made out by the Writers Agent.

100% of the royalties subject to the competing claim were paid to the Writers’ Agent.

Writers’ Agent – No Submission provided to Screenrights

Production and Distribution Company – Submission provided to Screenrights

Various legal agreements

Relevant provisions of the agreements were redacted, including provisions relating to the grant of rights and revenues, to such an extent that an entitlement to royalties from Screenrights was not clearly supported by the agreements.

Neither claimant received the royalties subject to the competing claim.

Writers’ Agent – No Submission provided to Screenrights

Production and Distribution Company – Submission provided to Screenrights

Writing Services Agreement between the Writers and Producer

Production and Distribution Agreement between Producer and Production and Distribution Company

The Writing Services Agreement provides that the entire copyright and all other rights in the work written by the Writer, any film based on it, vests in the Producer.

The writer did not expressly reserve any right to receive royalties, including from Screenrights, under the Writing Services Agreement.

Under the Production and Distribution Agreement, the Producer granted the Production and Distribution Company an exclusive, world-wide and irrevocable licence to distribute and otherwise deal in and with respect to the Film.

No other material was produced to substantiate the Writers’ competing claim.

100% of the royalties subject to the competing claim were paid to the Production and Distribution Company.

Writer’s Agent – No Submission provided to Screenrights

Production Company – Submission provided to Screenrights

Assignment Deed between Writer and Production Company

Under the Assignment Deed, the Writer assigned all  right, title and interestin the work to the Production Company.

The Writer did not expressly reserve any right to receive royalties including from Screenrights, under the Assignment Deed.

The Assignment Deed provides, however, that that the Writer is entitled to a percentage share of receipts from the Production Company in respect of the film.

The Writer may have a contractual entitlement against the Production Company. The calculation would depend on a range of agreements which Screenrights does not hold.

No other material was produced to substantiate the Writers’ competing claim.

The Writer’s claim is against the Production Company, not Screenrights.

100% of the royalties subject to the competing claim were paid to the producer

US Distributor – Submission provided to Screenrights

EU Distributor – Submission provided to Screenrights

Production Services Agreement between Producer and US Distributor
Deal terms between US Distributor and EU Distributor – a brief agreement containing only deal terms

Under the Production Services Agreement, all rights and title in respect of the film vest in the US Distributor.

Under the Deal Terms, the US Distributor provided the EU Distributor with “Worldwide, excluding the US… Exclusive TV rights, including, without limitation, Pay TV, Free TV, both terrestrial, cable and satellite, pay per view, VOD and NVOD by all cable, satellite and all other methods of television transmission or delivery systems now known”.

The US Distributor asserted that it did not grant the educational copying rights to the EU Distributor.

It was found that the EU Distributor held the rights to collect royalties during the licence relevant period, as Screenrights royalties fell within the broad definition of ‘TV Rights’ and due to the absence of any qualifying provisions.

100% of royalties subject to this competing claim were paid to the EU Distributor.

Writer’s Agent – No submission provided to Screenrights

Production Company – Submission provided to Screenrights

Writing Services Agreement between the Writers and Production Company
Extract from the Deed of Assignment between Production Company, Producer and Writers

It was found that each of the writers fully assigned to the Production Company the whole of the film, television and allied rights in the work produced under the Writing Services Agreement.

The Writers did not expressly reserve any rights to receive royalties, including from Screenrights, under the Writing Services Agreement.

The Writing Services Agreement does, however, provide that the Writers are entitled to receive a percentage share of the net profits of the Film, from the Producer.

The Writers may therefore have a contractual entitlement against the Producer. The calculation would depend on a range of agreements which Screenrights does not hold.

No other material was produced to substantiate the Writers’ competing claim.

The Writers’ claim is against the Producer, not Screenrights.

100% of the royalties subject to this competing claim were paid to the Production Company.

Production Company – Submission provided to Screenrights

Writers’ agent – Submission not provided to Screenrights

22 Writers Agreements and extracts of 3 Production and Investment Agreements

The Writers Agreements contain an assignment of the Writers interest in the copyright of the script to the Production Company.The Writers Agreements do not provide a reservation of collecting society income to the writers.

One Writers’ Agreement did reserve collecting society income to the writer. However, it is limited to income the writer “is able to collect as an author” from the Australian Writers’ Guild Authorship Collecting Society. Subject to express contractual provisions to the contrary, Screenrights relies on copyright ownership to determine the proper recipients of royalties, so Screenrights royalties would not be captured here. In any case, the Writers’ Agreement also expressly reserves Screenrights royalties for the Production Company.

Further, the Production and Investment Agreement provides that Screenrights royalties form part of the Gross receipts to be shared by the investors to the Production and Investment Agreement.

On the basis of the above, and due to the absence of any submission from the Writer’s Agent, 100% of the royalties subject to this competing claim were paid the Production Company.

Production Company A (Company A) – Submission provided to Screenrights

Individual on behalf of Production Company B (Company B) – Submission provided to Screenrights

Various agreements, including a Deed of Assignment between Company A, the Production and Distribution Company (Company C) and Company A’s predecessor-in-interest (Company D)

It was found in a previous expert determination that all rights in the film were jointly owned by Company C and Company D. Company B was found to have no relevant claim in respect of royalties paid by Screenrights.Under the Deed of Assignment, Company A was assigned “all rights of action and all other rights of whatever nature”.

On the basis of the documentation provided, and the nature of rights assigned included “all rights of action”, Company A established its right to receive distribution of the royalties.

100% of the royalties subject to the competing claim were paid to Company A.

Production company – Submission provided to Screenrights

Agent on behalf of the Distributor – Submission provided to Screenrights

Sales Agency Agreement between the Production Company and the Distributor

In the Sales Agency Agreement, the Production Company confers exclusive distribution rights in relation to the film on the Distributor.The ‘distribution rights’ are widely defined to include the rights to exploit the film in the media and further include all legal and equitable rights that fall within the general scope of copyright in the film (or any derivative work) including the right to “display [the film] publicly”.

It was found that the definition of ‘distribution rights’ was sufficiently broad under the Sales Agency Agreement to provide the Distributor with a right to receive the royalties from these rights.

The Production Company did not submit any further materials to substantiate its claim.

100% of the royalties subject to the competing claim paid to the Distributors Agent.

Production Company (Company A) – Submission provided to Screenrights

Writers Agent of a Writer (Company B) – Submission provided to Screenrights

1993 Series and Serial Agreement (1993 SASA)

Writer’s Agreement between Company A and Company B (attached as a schedule to the 1993 SASA)

Under the Writer’s Agreement, Company B assigned to Company A “the whole of his/her interest in the world copyright in the Work in all media other than cinema, live theatrical performance and commercial publication of the script in script form…”The Writer’s Agreement also provides that “the rights assigned to the producer (Company A) will remain vested in the producer (Company A) whether this agreement expires in its normal course or is terminated for any cause or reason”.

Other than for the limited express exceptions of “cinema, live theatrical performance and commercial publication of the script in script form…” Company B assigned all rights in the work to Company A. Company A submitted that this includes the right to receive royalties from Screenrights.

Company B submitted that the 1993 SASA contains a schedule of fees, characterised as Basic Use Fees, which are payable by Company A to Company B, on the exploitation of certain rights by Company A.

Company B submitted, and Screenrights agreed that there is no express agreement for Company A to pay Company B a fee for retransmission of the Free to Air broadcast on pay television, and that this is because the right to receive retransmission royalties from Screenrights did not exist at the time.

There are no provisions in the 1993 SASA which would enable the incorporation of future versions of the SASA, including the terms which contemplate the right to receive retransmission royalties from Screenrights.

It was found that, even though the right to receive retransmission royalties from Screenrights was not contemplated under the 1993 SASA, Company B’s assignment of rights to Company A was broad enough to encompass all rights, other than those expressly excluded. In the absence of any other documentation, it was found that Company A has the better claim to royalties paid by Screenrights.

Company B may have a contractual entitlement against Company A in connection with the Basic Use Fees. However this is outside the scope of Screenrights’ assessment, because there is no correlation between the payment of fees under the contract, and payment of royalties by Screenrights.

On the basis of documents submitted, 100% of the royalties subject to the competing claim were paid to Company A.

Agent of a Production Company (Company A) – Submission provided to Screenrights

Agent of a Film Sales Company (Company B) – Submission provided to Screenrights, but found to be erroneous

Collection Agreement, to which Company A’s predecessor –in-interest (Company C) is a party

Secondary Rights Agreement between Company A and its Agent

Under the Collection Agreement, Company A’s predecessor-in-interest has a right to participate in the total revenue derived from the exploitation and distribution of the film, as well as the secondary rights owned by the producers.Company A submitted, and Screenrights accepted that it acquired all Company C’s rights and interests under the Collection Agreement.

Under the Secondary Rights Agreement, Company A’s Agent is broadly entitled to collect royalties on behalf of Company A, include from retransmissions in various broadcast modes, including cable, satellite, internet and other wireless applications.

Company B did not produce any material to support its claim.

100% of the royalties subject to this competing claim were paid to Company A.

Production and Distribution Company (Company A) – Submission provided to Screenrights

Agent of a Distribution Company (Company B) – Submission provided to Screenrights

Distribution Agreement between Company A and Producer

Letter Amending the Distribution Agreement, and conferring rights on Company B

Under the Distribution Agreement, the Producer granted Company A with broad rights to distribute “and otherwise exploit the [film]…including all literary, music, and other material embodied [in the film and also] including …theatrical and non theatrical rights…standard broadcast television rights…pay television rights…and home video devices”. Company A’s rights cover Australia and subsisted for a specified period of time.There is an addendum to the Distribution Agreement, which adds a ‘source of revenue’ clause. This operates as a ‘catch all’ clause for any further revenues to be received by Company A which are not already covered by the Distribution Agreement.

Under the Amendment Letter, the Producer subsequently assigned secondary producer rights to Company B.

It was found that the ‘source of revenue’ clause was broad enough to capture royalties to be paid by Screenrights.

However, the Producer was not in a legal position to assign the secondary rights to Company B, at least in relation to the entitlement to royalties from those secondary rights.

100% of the royalties subject to the competing claim were paid to Company A.

Production and Distribution Company (Company A) – Submission provided to Screenrights

Agent of a Production Company (Company B) – No submission provided to Screenrights

Two separate Exclusive Assignment of Licence Rights Agreements between Company C and Licensor

Sales Agency Agreement between Licensor and Company A.

The Exclusive Assignment of Licence Rights Agreements were each with a separate Licensor for the purposes of distribution and exploitation of the film. The two Agreements split the worldwide geographical territory in which the film can be distributed and exploited by the licensors. The distribution rights under the Exclusive Assignment of Licence Rights Agreements extended to all rights under copyright, including theatrical, non-theatrical, video, standard television and pay television rights.

Under the Sales Agency Agreements, the Licensors conferred all distribution and exploitation rights in the film to Company A.

Company B did not make any submissions to Screenrights, nor produce any material to support its claim.

On the basis of the above and in the absence of any submission from Company B, 100% of the royalties subject to this competing claim were paid to Company A.

Production and Distribution Company (Company A) – Submission provided to Screenrights

Distribution Company (Company B) – No submission provided to Screenrights

Licence Agreement between Company A and Producer

Under the Licence Agreement, Company A has the right to “exploit the film on free-TV, Pay-TV and any other form of television now or hereafter invented…” in Australia and New Zealand for a specific term and thereafter it may assign its rights with consent of the licensor.

Company B did not make any submissions to Screenrights, nor produce any material to support its claim.

Solely on the basis of the Licence Agreement, 100% of the royalties subject to this competing claim were paid to Company A.

Production and Distribution Company (Company A) – Submission provided to Screenrights

Agent of a Production Company (Company B) – No submission  provided to Screenrights

Letter Agreement between Company A and Company C

Company A was the only claimant who made a submission. The Letter Agreement provides that:

1. During the “Series Term”, each episode and all its “elements” are exclusive to Company A in the “Broadcast Territory” and
2. Company A will have ownership of the “Broadcast Rights” in the program if it exercises certain rights within a certain period.

The Letter Agreement supports Company A’s entitlement to royalties, provided that:

1. the Series Term has not yet terminated, and
2. Company A still owns the Broadcast Rights and
3. the Broadcast Territory includes Australia.

On the basis of the above, and due to the absence of any submission from Company B, 100% of the royalties subject to this competing claim were paid to Company A.

Production and Distribution Company (Company A) – Submission provided to Screenrights

Agent for a Production and Distribution Company (Company B) – Submission provided to Screenrights

Representation Agreement between Company B and its Agent; andCertificates of Copyright Registration showing Company A and Company B as co-owners of copyright.

Copyright in the feature film is owned jointly by Company A and Company B. Copyright ownership was agreed and not in dispute. The disagreement concerned the territory distribution rights.

Company A claimed that it owned “exclusive worldwide rights” in the film (excluding in Canada and the US), while Company B’s rights were restricted to Canada and the US. Company A claimed that it was therefore entitled to 100% of royalties from Screenrights.

No evidence was submitted by either claimant that demonstrates that their territory rights, or the other claimant’s territory rights, are restricted to a certain geographical area (like Australia or New Zealand).

Company B submitted its Representation Agreement to Screenrights, which appoints the agent as Company B’s exclusive agent in relation to the Distribution Proceeds throughout the worldfor the term of the Agreement.

The Representation Agreement was not sufficient to establish that Company B held anything other than joint ownership of copyright in the film, with Company A.

It was found that Company A and Company B were each entitled to equal shares of the royalties available for distribution by Screenrights.

50% of the royalties subject to this competing claim were paid to Company A and 50% of the royalties subject to this competing claim were paid to Company B.

Production and Distribution Company (Company A) – Submission provided to Screenrights

Agent for a Production and Distribution Company (Company B) – Submission provided to Screenrights

Co-Production and Distribution Agreement between Company B and Company C (Company A’s predecessor-in-interest)

Representation Agreement between Company B and its Agent

Under the Co-Production and Distribution Agreement, all copyright in the feature film, as well as all exclusive distribution rights in the film are owned jointly by Company B and Company C.Company B claimed it was entitled to receive 100% of royalties from Screenrights, on the basis that it was a co-owner of rights with Company C, and Company C had not made a claim.

Company B submitted the Representation Agreement to Screenrights, which contains a warranty that Company B “is the…co-owner of copyright [and] to the best of the [its] knowledge [it] has not previously conveyed the right to collect the Distribution Proceeds to any third party”.

The warranty was not sufficient to defeat Company A’s claim under the Co-Production and Distribution Agreement, despite the agreement being between Company B and Company C.

Company A submitted, and Screenrights accepted, that Company C had assigned all of its rights in connection with film under the Co-Production and Distribution Agreement to Company A.

It was found that both Company A and Company B were each co-owners of rights, including the right to receive royalties from Screenrights.

50% of the royalties subject to this competing claim were paid to Company A and 50% of the royalties subject to this competing claim were paid to Company B through its agent.