The Chain of Title in a project is one of the most important aspects of ownership in an entertainment property.
But what is Chain of Title?
In the entertainment and creator industries the Chain of Title is a term of art. It means that you can prove, 100%, the ownership of a property. If there is one missing signature on a contract or you cannot fully and completely document ownership, well, no proper chain of title.
The Chain of Title is often discussed and rarely understood. At its core, the Chain of Title is the complete record of someone’s ownership of a property. Often, producers and creators fail to truly garner 100% of the rights in a property. For example, an indie producer wants to option for the rights to turn a book into a movie. They pay $5000 for the option to make the movie. However, the author they bought the book from has already passed away and there was a fight over the ownership rights by the family and the book publisher and even a question if the book publisher still owns part of the rights. Many people pass over these issues assuming they will get sorted out – and they often do. However, if they do not, a finished movie may not be able to be released for the certainty of a lawsuit.
As an entertainment attorney for many years, I saw these issues on a regular basis. A few years ago, I worked on a project that got shelved because one of the cameraman, who specialized in action/adventure work, died before he could sign his work-for-hire agreement. The project my client was trying to sell, couldn’t be sold because he couldn’t get a signature without going through a lot of time and expense and the distributor didn’t want to wait.
Chain of Title isn’t just important in the film business. These issues can happen in all areas of the creative arts. Books, Podcasts, Music, etc.
Why are these issues so common?
The Chain of Title issues in entertainment and creating have a lot to do with Copyright. When we talk about Chain of Title ownership, we are really talking about Chain of Title in the Copyright. I’m not going to detail everything about copyright in entertainment in this article – but the basic is that many of the participants in the creative process can have claim to joint copyright. A photographer holding a camera, an editor, a writer, etc. can all have some claim to the process. A guest on a podcast, the owner of a photo that appears in a book, a studio musician who helps on a hook, etc. They can all have interest in a property.
So, Chain of Title is much like a large puzzle – determining the origins of a property and then everyone who participated in anyway whatsoever in the creation of the property.
How do you make sure your Chain of Title is solid?
The written contract is really the key to having proper Chain of Title. Everyone who is involved in a production (music, podcast, film, theater, etc.) needs to have a written contract. The contract must include language on the copyright and the transfer of ownership in the production. It may sound ridiculous that you can’t just hire someone and assume they don’t have ownership but it’s true. The law does offer some presumptions in certain situations, but it is much better to live by the rule of thumb that there must be a written contract with language about copyright ownership.
As well, before you embark on producing, if you are producing another’s idea (such as a book or article) you must be certain there are no issues with the ownership. This is your own Chain of Title research. This is your due diligence before you option or buy.
You can deal with some of these ‘hidden’ issues in the contract between you and the original copyright owner. Contracts should contain a Reps and Warranties clause. Representing that they own what they say they own and they will Indemnify you from anyone that makes claim later. However, those representations and indemnifications are only good if your seller has the means to pay your legal defense and claim. This might be fine if the seller is Jeff Bezos who you know will always have the means to pay out, but for many, this may be a huge problem. Hence, it is best to do as much due diligence as you can before you ink the Option or Purchase Agreement.
It’s important in the Entertainment and Creator Business to make certain that you have a complete Chain of Title. At Creators’ Legal, we built our system with these issues in mind. As former lawyers and execs in the entertainment and creator business, we tried to think of every contract someone may need to make sure that they have all the proper documentation on their projects. We also build the Project Briefcase, a personalized dashboard, for each user to be able to organize and store all their contracts on a Project so they can prove their proper Chain of Title.
Eric Farber is a former Entertainment Lawyer and Advisor to dozens of high-profile clients, including the Tupac Shakur estate for over 18 years. He is the Founder and CEO of Creators’ Legal, Legal Solutions for the Creator Economy.
Creators Legal is the first and only legal platform build just for Content Creators. Get simple, straightforward, and trustworthy creator contracts in a fast, easy-to-use platform. With a powerful guided Form Builder, a secure e-signature system, and your own personalized dashboard to store and organize all your contracts, you can get yourself protected in minutes without the need for expensive entertainment lawyers!
Want to learn more? Check out CreatorsLegal.com, where you can get single use contracts or monthly and annual subscriptions on all contracts for creators! Try us now!