There has been a rapid increase in the number of films based on real life personalities and historical figures. While personality rights as a concept is still developing in India with even its jurisprudence being in a highly nascent stage, it is important to obtain rights from the personality/ legal heirs (in case the personality is dead) on whose life the film is to be made to avoid any legal disputes.
A life rights agreement from a film producer’s perspective could be structured as follows:
1) Title: this clause provides the names, addresses and other details of all the parties entering into the agreement.
e.g. This agreement (“Agreement”) is made at [•] on this day of [•] by and between
[•], an adult Indian inhabitant residing at [•] (hereinafter referred to as “Personality” which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include his/her heirs, executors and permitted assigns) of the FIRST PART;
[•], a company incorporated under the Indian Companies Act, 1956, with CIN No. [•] and PAN No. [•] and having its offices at [•], (hereinafter referred to as the “Producer” which expression shall, unless it repugnant to the context or meaning hereof, be deemed to mean and include its successors and assigns) of the SECOND PART;
2) Recitals: the recitals provide a brief overview about the parties as well as the intent behind entering into the agreement.
i. The Personality is a well-known [ sportsman/ actor/politician, etc].
ii.The Producer is engaged in the business of production of cinematograph films.
iii. The Producer is desirous of making a film on the life story of the Personality (“Film”). The Personality has agreed to narrate his/ her life story to develop a script and make the Film based on the Script as well as grant the other rights as detailed in the Agreement on the terms and conditions as specified under the Agreement.
3) Definitions -The definitions clause could include definitions in relation to the rights being granted by the Personality to the Producer, Term and Territory of the Agreement, Intellectual Property Rights and any other defined term under the agreement.
4) Principal Understanding
i. The details of the rights being granted to the Producer by the Personality should be specified in this clause. For instance
a. the exclusive right to make a screenplay adaptation of the life story of the Personality in all languages deemed fit by the Producer.
b. exclusive right to make feature films film(s), television series, web-series and other adaptations on the life story of the Personality and all exploitation rights in such productions on all modes, media and formats of exploitation.
c. the exclusive right to make derivative works of such productions as mentioned above such as remakes, sequels, prequels, novels, television programs, games, etc.
d. dubbing and sub-titling rights in all languages and right to exploit such dubbed and sub-titled versions.
e. right to use the real name, likeness, photograph, silhouette of the Personality and/ or his/ her family members in the Film.
f. other incidental and ancillary rights.
ii. A no-objection should be taken from the Personality for creative treatment and cinematic liberties including the right to make deviations from the narrated story to meet creative requirements. Further, a no-objection should be taken for any actor to portray the real-life role of the Personality.
iii. The Producer should take all creative decision rights in its control.
iv. Wherever possible, the Producer should require the support and cooperation of the Personality in obtaining no objection certificates from the friends, family members and other characters incidental to the story of the Personality.
v. If required, the producer should also have a clause on having the right to issue a public notice in trade magazines and newspapers inviting claims and objections from third parties in relation to the rights being acquired by the Producer under the Agreement. In the film industry, this is considered as an important due diligence measure to avoid any future claims and acts as a proof of abundant caution taken by the producer.
vi. An acknowledgement may also be taken from the Personality that the Agreement does not create any obligation on the Producer to use the story of the Personality for the production of the Film and the Producer shall have the sole discretion to portray the Film as ‘based on true story’/ ‘inspired by’ instead of calling it a biopic on the life of the Personality. The Producer should have the ability to elect to refrain from using the real-life name of the Personality and use a pseudonym instead.
vii. An acknowledgement should be taken from the Personality that the Agreement would be binding on the legal heirs of the Personality and that he/ she does not have any ‘will’ to the contrary. Further, that if the Personality makes any such ‘will’ in the future, it shall record the assignment of the rights in favour of the Producer to the exclusion of others.
The consideration payable by the Producer to the Personality along with the payment tranches should be captured in this clause. Details on whether consideration is exclusive or inclusive of indirect taxes such as GST should be captured. Further, it should be mentioned that the consideration would be subject to withholding taxes such as TDS.
Since a life rights agreement has assignment of certain rights, stamp duty would be payable on such an agreement. For instance, in the state of Maharashtra, the stamp duty is as high as 0.5% of the consideration if the consideration exceeds INR 10 Lacs and 0.25% of the consideration if the consideration is below INR 10 Lacs [Article 5(h)(A)(v) of Schedule 1]. In other states it is relatively lower. It is therefore important to specify who would be responsible for payment of stamp duty.
It may also be prudent for the producer to record whether any statutory royalties (under Copyright Act) would be payable to the Personality or not. If the Personality is not authoring any story and merely narrating his/ her life incidents, then the Producer should take a waiver of right to receive royalties or any other similar benefits to which the Personality may be entitled pursuant to any law in force or which may accrue to the Personality under a similar doctrine, principle or law for exploitation of the life story and assignment of rights under the Agreement.
If the Personality is not entitled to any share in profits/ revenues of the Film, then an acknowledgement to that effect ought to be taken.
6) Ownership of rights
i. The Personality should acknowledge the Producer’s ownership of intellectual property rights, derivative rights, in the story of the Personality as well as the rights granted by the Personality under the Agreement in all modes, media and formats of exploitation for worldwide territory in perpetuity.
ii. An assignment of such rights should also be taken on a without prejudice basis as well as a perpetual license on all future modes, mediums and formats of exploitation not in existence. An annexure on existing modes, media and formats could be added. [Please refer to the post on ‘A flawed amendment’ for understanding the rationale behind this clause].
iii. In all assignment agreements, it is important to take a waiver of Section 19(4) of the Copyright Act, 1957 to ensure that the assignment does not lapse if not exercised within one year of the execution of the Agreement.
iv. A waiver of moral rights/ special rights of the Personality may also be sought by way of an abundant caution.
7) Exclusivity- An undertaking should be obtained from the Personality that he/ she has not given and shall not give similar rights to any other third party which would prejudice the interests of the Producer.
8) Representations and Warranties
i. The Personality should represent that the aspects of his/ her story as narrated to the Producer would be true and accurate. Where possible, authentic sources should be provided.
ii. A representation that the story would not be obscene, defamatory, contrary to public policy, infringing the rights of any third party.
iii. The Personality should not do any act which would prejudice the rights granted to the Producer.
9) Confidentiality– The Personality should not disclose, reveal any confidential information without the consent of the Producer in relation to the Film. Further, no press statement, interviews in relation to the Film should be given without the express written consent of the Producer.
10) Indemnification- Personality should indemnify the Producer for any breach of representation/ warranties, false representation of facts, character profiling, etc.
11) Credits- If the Personality would be entitled to any credits in the Film then a clause to that effect may be added.
12) Force Majeure- a force majeure event is an act of God which is beyond the reasonable control of the parties. The parties may have a clause on force majeure event providing that neither party shall be responsible for failure of obligations if it is due to a force majeure event.
The Producer may terminate the Agreement on the following grounds
i. breach by the Personality of the representations, warranties, obligations under the Agreement;
ii. Personality doing any act/ omission which might prejudice the rights of the Producer;
iii. Force Majeure Event, Film being abandoned, shelved, etc.
iv. If any objection is received to the public notice given by the Producer.
The Consequences of such termination would depend on the commercial understanding between the parties. For instance, if the agreement is terminated due to breach by the Personality then a refund of any consideration paid may be sought. If it is terminated for any reason which is not due to the breach of the Personality, then a pro-rata payment may be made. If the Producer is terminating the Agreement, then it may not want the rights granted to it and therefore such rights should revert to the Personality. However, if the Producer intents to continue with the project without using the real name of the Personality then it may choose to have a clause to retain such rights.
The Producer should take an acknowledgment from the Personality to the effect that the Personality shall not be entitled to rescission, injunctive or other equitable reliefs.
15) Boiler plate clauses:
(i) Governing law and jurisdiction– the governing law and jurisdiction should be mentioned. If the parties agree to arbitration as a dispute resolution mechanism then an arbitration clause should be added and the jurisdiction clause should be subject to such arbitration clause.
(ii) Assignment-Neither party having the right to assign the agreement or any of its rights and obligations without the prior written consent of the other party.
(iii) Relationship of parties– Each party remaining independent with respect to the other and nothing in the agreement amounting to partnership, agency, joint venture, etc.
(iv) Waiver – failure of any party to demand strict performance by the other of any of the terms, covenants or conditions of the agreement shall not be construed as a continuing waiver or relinquishment thereof and either may at any time demand strict and complete performance by the other party of the said terms, covenants and conditions.
(v) Modification-No modification or amendment of any provision shall be valid or binding unless executed and delivered by the parties in writing.
(vi) Severability- in the event any provision of the agreement is declared to be void, invalid or unlawful by any court or tribunal of competent jurisdiction, such provision shall be deemed severed from the remainder of this agreement and the balance shall remain in full force and effect.
(vii) Notices- all notices should be in writing. Mode of sending the notice and the contact details should be mentioned.
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