The rise and rise of SVOD
Netflix, Amazon Prime, Now TV, Mubi, Hulu, Apple TV+ Britbox, Disney+ … there is no denying that SVOD streaming services are on the up. With content being snapped up at an amazing rate this puts the content owner in a stronger negotiating position than ever before. It’s all too easy to get caught up in the excitement of a commission but before rushing into signing the commissioning agreement take a step back and consider what rights you want to retain and how these can be best exploited via the ever growing SVOD services. Are you happy to sign away a 12 month iPlayer window to the BBC (against Pact’s current advice whilst Terms of Trade are being negotiated) or would you be in a better position to make a SVOD deal if the 30-day window is adhered to? Do you want to agree a worldwide SVOD deal with one of these services or should you consider carving out territories that they are not operating within so that you can exploit these through a different service? Do you want to sign away merchandising rights as part of a catch-all clause or should these be held onto and exploited separately? These are just a few of the questions that those on the verge of signing a commissioning agreement or considering SVOD offers should be asking themselves. There are great deals to be had and it’s important to have a really good understanding of the potential rights exploitation of your content and to make the most of it. The Cow Shed Media Services can offer you advice on how best to make the most of your content. Contact email@example.com
Talent and Social Media…
Who can forget the moment at the end of 2017 when Great British Bake Off judge Prue Leith accidently revealed the show’s winner hours before the finale was due to air? And earlier the same month Debbie McGee had let slip that the Reverend Richard Coles was leaving Strictly Come Dancing hours before it was confirmed on BBC. Prue’s Tweet remained ‘live’ for just 89 seconds before it was deleted, but this was long enough for it to be re-tweeted, leading to a national outcry about the spoiler. So, with the rise and rise of social media, what can production companies do to keep these kinds of revelations under wraps until transmission? For starters it’s always good to have a robust clause in your presenter and talent agreements about publicity in general but also explicitly cover social media usage. No, this isn’t going to stop them hitting the button or making accidental blunders like poor Prue who was disorientated by different time zones, but it will let them know that it’s something to be taken seriously. As well as a contractual clause it’s also good practice to provide your talent with some ‘Social Media Guidelines’ tailored to the programme. Social media is great publicity so don’t attempt to completely stifle it’s use - encourage its usage but be very clear on what can and can’t be made public and at what time/dates certain revelations can be made. And if all else fails, you could always pretend it was a double bluff…! If you need guidance on appropriate publicity and social media clauses for contracts, or require a bespoke ‘Social Media Policy’ drafted for your production, contact firstname.lastname@example.org
Filming and Working with Under 18s
Anyone who has worked on a production where under 18s were involved will know that there is a whole other level of regulations and guidelines that need to be adhered to in addition to the usual contributor considerations. OfcomWhen you are commissioned to produce a programme for a broadcaster you will be contractually required to make that programme in accordance with the Ofcom Broadcasting Code. The Code contains two main principles in relation to under 18s involvement in programmes: Due care must be taken over the physical and emotional welfare and the dignity of people under 18 who take part or are otherwise involved in programmes. This is irrespective of any consent given.People under 18 must not be caused unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes. This ‘due care’ obligation is ongoing throughout the whole of the production process, including after transmission, and therefore should be kept under constant review. In addition to the Code, Ofcom has also produced some Guidance on the involvement of under 18s in programmes. This is a helpful source for setting out what may be appropriate for you to consider and apply, depending on the circumstances of your particular programme. Taking these guidelines into account is crucial; in the unfortunate event of a complaint relating to the participation of under 18s in a programme Ofcom will consider the extent to which the guidelines have been followed. Channel RequirementsIn addition to Ofcom’s Code and Guidance each of the channels will have their own guidelines and advice in relation to filming and working with under 18s. Some of this information is readily available online whilst others will provide additional guidance and support once a programme is commissioned. Either way, it’s important that you consult with the commissioner throughout the process, often even before you have approached your potential under 18 contributors, to ensure that you don’t fall foul of what is expected and thereby breach your contractual obligations. Team EffortEnsuring compliance with Ofcom’s Code and Guidance and any specific commissioner requirements is a team effort. All members of the production team should be familiar with the relevant guidelines and rules that are applicable to the programme they are working on and how this has an impact on their part in the process. It is a particularly useful and worthwhile exercise to have a whole team ‘briefing session’ to ensure that everyone has a proper and thorough understanding of how to deal with the involvement of under 18s from the outset, and to ask any questions and iron-out any misunderstandings at an early stage. In addition, most channels will require any member of the production team who has direct contact with under 18s to have an up to date Disclosure and Barring Service (DBS) check. During busy times these can take several weeks to be processed so applying for these as early as possible is a must. ConsentTake a look through the Ofcom Broadcast Bulletin and you will see that a good proportion of the investigations are around the issue of consent. Consent when filming with under 18s is an area that often causes additional confusion and lots of questions are raised: Can a 16 or 17-year-old consent to filming themselves? Do I have to get parental consent from both parents? What if the under 18 only lives with one parent? What if the parents give consent but the under 18 doesn’t want to be filmed? Can a school consent to the filming of their students? Can consent be obtained after filming has taken place? All of these are valid questions in certain circumstances and often there is no black and white answer. Therefore, it is vital that you have answers to these sorts of questions before they even arise and that the whole production team are fully aware of the levels of consent needed and why. In addition, as with all contributors, consent for the participation of under 18s must always be ‘informed’. Depending on the nature of the programme you are making this can go beyond merely giving a description of the programme and their involvement in it. For example, it may also be appropriate at this early stage to clearly outline the potential positive and negative consequences of their involvement in the programme, especially around transmission. You may also need to think about ongoing consent. There are circumstances where the signing of a release form at the outset of filming will not be enough to demonstrate informed consent, especially if filming continues over a long period of time or there are changes to the programme description or their role within it. Cameras Off…As previously mentioned, your duty of care to under 18s continues not only during filming but in the lead up to, and following, transmission of the programme. This is often a time where keeping in touch with contributors is not at the forefront of the production teams’ minds, or team members that were involved with filming have moved on to other productions. Having a robust ethos within the team as to how under 18s (and indeed all contributors) are handled will be invaluable at this point to ensure that best practices continue through post production and beyond transmission. Potential considerations around this time may focus on any change in circumstances since filming took place and whether this may affect the edit or transmission. Have viewings been agreed? If not does this need to be reconsidered? Do schools need to be made aware of transmission so that they can offer support? What are the potential impacts of social media following transmission and how can you help minimise these? Having a plan in place at the outset of production will help you to navigate through this period and ensure that nothing is missed or overlooked. Independent ExpertsIt may be necessary to obtain advice from an independent expert to assess not only an under 18s suitability to take part in the programme but also to offer ongoing support throughout the production process. Whether or not such an expert is needed will depend on a number of factors including the individual themselves, the extent of their contribution to the programme and the nature of the programme. Giving consideration to the need for an expert at an early stage, and continuously reviewing this need, are vital elements of your ‘due care’ obligation. Child Performance LicencesAs well as obtaining consent from a contributor and/or their parents, you may also need to obtain a performance licence from the under 18’s Local Authority prior to filming taking place. Each Local Authority deals with applications differently and it will be for them to determine whether the contributor is “taking part in a performance” and if a licence is required. Whilst it is well established that children appearing in scripted programmes are ‘performing’, it is now also accepted that children appearing in other types of programmes where their participation is directed, manipulated or controlled in some way will also require a licence. This is another area that needs to be given early consideration in the production process; depending on the Local Authority you may need to allow several weeks for a licence to be processed prior to any filming taking place. ConclusionsThis is only a brief summary of some of the considerations needed when embarking upon a production involving under 18s. It is central to your programme’s success that any involvement with under 18s is properly planned for and that the whole production team understand, and are working to, the same guidelines. It is recommended that, where under 18s have a significant involvement in your production, you have in place a ‘Working with Under 18s Protocol’ as soon as possible after commission – this may even be a requirement of the commission. With extensive experience of working on productions involving under 18s, we can work with you to better understand your contractual obligations and to help you give full consideration to all aspects of working with under 18s that may apply to your production – from finding potential contributors to providing support through transmission and beyond. © Laura Hammond, 2018 Laura is Director of The Cow Shed Media Services, a company offering business affairs and compliance advice to independent production companies throughout the entire production process. Laura has provided legal support and advice on numerous programmes involving under 18s including the BAFTA winning Educating… series, Tiny Tots Talent Agency and What Would Your Kid Do?
When a Location Agreement is not enough…
Most production companies will have a standardised one-page Location Agreement that is used day-in and day-out in all variety of filming locations. These ‘one-pagers’ certainly serve their purpose when you need non-exclusive access to a location and want to keep things simple. Nevertheless, a Location Agreement is not going to be adequate when you want exclusive access, filming will be for an extended period, or where obtaining access is integral to the editorial objectives of the filming. In these circumstances a much more robust and comprehensive Access Agreement is going to be required. A good starting point is the Access Agreement Template and Guidance, available via the Pact website. As well as the points covered in those documents you will also need to keep in mind the commissioning broadcaster requirements, for example, in relation viewing rights, fees and credits. However, in some circumstances you will find that the access provider will either want to heavily negotiate your agreement or will have their own version that they will want to use. When entering into these kinds of negotiations it is paramount that you are fully aware of both your obligations under the Ofcom Broadcasting Code and the requirements and guidelines of the commissioning broadcaster. Another necessity is to negotiate access in a timely manner. Do not be fooled into thinking that you can get your Access Agreement signed on the morning of filming. This never works. You will either end up wasting everyone’s time and taking a hit to the budget by delaying filming or, if you do begin filming without an agreement signed, then you firmly place yourself in a very weak negotiating position further down the line. No commissioning broadcaster is going to be impressed with requests to infringe their own guidelines, to increase the budget or delay delivery – all very real consequences of not getting your Access Agreement right. Please contact Laura at The Cow Shed Media Services if you would like to discuss your Access Agreement requirements further. Laura has experience of drafting and negotiating Access Agreements for a huge variety of locations including the MOD for Royal Marines Commando School, various schools for Educating…, numerous public bodies for Dom on the Spot, an entire train network for The Railway: First Great Western and a mountain for The Jump!
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