Case Update: Philip Antony Jeyaretnam & Another v Kulandaivelu Malayaperumal & Another [2019] SGHC 214

Significance: Singapore High Court holds a person who assumed responsibility over the well-being and financial affairs of another person who lacks mental capacity to be a fiduciary and imposed an equitable lien over a HDB flat purchased with monies taken from the person lacking mental capacity.

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Film Financing 8: Get To Know Your Film’s Intellectual Property Rights – Copyright And Trademark Protection

In the production of every film, issues surrounding intellectual property rights would naturally arise such as the ownership and exploitation of copyrights in the film, screenplay and music. Thus, it is important for all parties involved to understand the basics of intellectual property rights which arise in every film production.

Copyright protection

The law of copyright protects expressions not ideas. Copyright protection triggers automatically when an original work is reduced to some material form. As such, a single film would contain a few separate copyrighted work – the original screenplay, the musical score, the sound recording, and the film itself.

The law of copyright grants the copyright owner exclusive rights

In general, the law of copyright grants the copyright owner the exclusive rights to exploit the copyrighted work for duration of its protection. In Singapore, the law of copyright is governed by the Copyright Act (Cap. 63).

For the screenplay and musical score, the duration of copyright protection is the duration of the author’s life plus seventy (70) years.

For the sound recording and film, the duration of copyright protection is seventy (70) years from the date of first publication.

For a novel, screenplay or musical score, the copyright owner has the exclusive right to:

  • reproduce the work;
  • publish the work;
  • perform and communicate the work to the public;
  • and make an adaptation of the work.

For the sound recording, the copyright owner has the exclusive right to:

  • make a copy of the sound recording;
  • enter into a commercial rental arrangement; and
  • publish the sound recording if unpublished.

For the film itself, the copyright owner has the exclusive right to:

  • make a copy of the film;
  • cause the film to be seen in public; and
  • communicate the film to the public.

Copyright protection also extends to derivative works, i.e. works which are based upon existing works and which contain some element of material alteration. For example, a screenplay adapted from a novel would have its own separate copyright protection. Thus, to have the right to make a film, you would need to have the express authorisation of every copyright owner whose work you will rely upon.

 

The transfer of ownership or rights

Ownership of copyright may be assigned to another even if the copyrighted work has yet to exist, provided that the assignment is in writing and signed by the assignor. Thus, if a sound recording is made pursuant to an agreement, the commissioning party would be the copyright owner.

The copyright owner may grant exclusive or non-exclusive rights to another through a licence in writing and signed by the copyright owner. An exclusive licence authorises the licensee, to the exclusion of all other persons, to do an act which the copyright owner has the exclusive right to do.

 

Defence to copyright infringement – fair dealing

A fair dealing with a work would not constitute an infringement of the copyright in the work. For example, dealing with a work for the purposes of research or study may constitute a fair dealing.

Under section 35(2) of the Copyright Act (Cap.62), the following factors are considered in determining whether an act constitutes fair dealing:

  • the purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational purposes;
  • the nature of the work or adaptation (e.g. fiction-based versus fact-based works);
  • the amount and substantiality of the part copied;
  • the effect of the dealing upon the potential market for the work; and
  • the possibility of obtaining the work within a reasonable time at an ordinary commercial price.

The rights of a copyright owner is governed by the law of each country

There is no single worldwide copyright law, so the copyright in each work varies from country to country. In general, a work is protected in the country which the work was first published or which the author of the work resides in. Pursuant to the Berne Convention and TRIPS Agreement, a work that is first published in one country will trigger copyright protection in the other signatory countries as if it were published there. This means that the copyright owner would own separate copyrights in each country, and the corresponding rights and remedies would vary accordingly.

Trademark protection

Producers may want to consider registering a trademark in a particular film title if there are long-term prospects such as producing a sequel or merchandising opportunities (think “Harry Potter” and “Star Wars”).

A trademark is essentially any sign that is capable of being represented graphically and which is capable of distinguishing goods or services provided in the course of trade from a particular origin. Registering a trademark gives the owner the right to control the use of the trademark. Consumers are protected as well when they wish to acquire a particular quality of good from a particular source.

In general, the appearance of trademarks in a film (e.g. a scene along a shopping street which features Starbucks) will not amount to trademark infringement as it is not “used in the course of trade” and will not mislead or confuse consumers as to the source of the goods. Instead, companies pay to have their products feature in films as a means to subtly advertise.

Series Contents

Film Financing Intro: Producing a film, writing a screenplay, or acting in a film? What you need to know to navigate the law and finance of the film industry

1: An Overview: 3 Things for Film Producers

2: Understand the Different Types of Business Structures

3: The 3 Important Approaches To Negotiating A Fair Deal

4: Negotiating A Fair Deal With Writers

5: Raising Finances For Your Film

6: An Introduction To Completion Bonds

7: Distributing Your Film – Entering Into Distribution Licence Agreements

8: Get To Know Your Film’s Intellectual Property Rights – Copyright And Trademark Protection

Film Financing 7: Distributing Your Film – Entering Into Distribution Licence Agreements

In order to bring a film to its end users, production companies (licensors) enter into licence agreements with third party distributors (licensees). A licence agreement refers to a limited grant of rights to a licensee, while the licensor (i.e. the owner of the film) retains all other rights to the film. Examples of distributors include subscription-based VOD streaming services such as Netflix, cinema chains, and entertainment media buyers for large retail chains.

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Film Financing 6: An Introduction To Completion Bonds

Completion bonds are contractual agreements whereby producers pay a fee to completion guarantors, who issue a guarantee that the film will be completed in accordance with the script and delivered on schedule to distributors. For independently financed films, investors often want the film to have a completion bond before they are willing to invest in the film. Completion bonds essentially protect the investor, by ensuring that they will be repaid the film’s financing after the film is delivered to the distributors.

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Film Financing 3: The 3 Important Approaches To Negotiating A Fair Deal

The best agreement is one that is fair to all parties. All too often parties attempt to negotiate by demanding for more than what is fair to them. Parties are suspicious of each other and the lack of trust ends with parties feeling short changed.

As such, it is crucial for producers to set the stage for an alternative negotiating style that builds on openness and trust. This approach is far more advantageous in the long run as parties build good relationships and the producers are able to work out a financially profitable objective. By setting the stage, producers influence all other parties to the deal to adopt an open and honest negotiating style. Below are 3 important approaches that producers can apply when opting for this strategy.

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Film Financing 2: Understand the Different Types of Business Structures

Registering a suitable business entity structure is important for film financing because the structure affects the options in terms of what you can offer to investors.

In theory, there are many options for a business structure: sole proprietorship, general partnership, limited partnership, limited liability partnership (LLP), private limited company.

I’ll just cut straight to the point. If you want to have more options in terms of offering equity / shares to investors, then opt for a private limited company.

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