Main legal issues needing attention during the creation and use of audio-visual works

With the continuous innovation and widespread application of mass communication technologies such as the Internet, digital technology, and multimedia, audio-visual works have diversified forms of expression, geometric growth in the number of products, and continuous expansion of communication channels. At the same time, legal issues have gradually increased. This article analyzes the legal issues involved in the creation of audio-visual works at different stages.

1、 About Audiovisual Works

Audiovisual works are works (audio and video) recorded on a material carrier and contain relevant images and dubbing, usually referring to films, television, video, and other works. Audiovisual works belong to collective works, that is, they are created with the participation of multiple types of personnel, including screenwriters, directors, actors, photographers, sound recorders, artists, makeup, costumes, props, and post editing, subtitles, lyrics, composition, and animation production. Such works have both the characteristics of deductive works and some of the characteristics of cooperative works.

The creation process of audio-visual works includes the arrangement of various materials, as well as the collocation of sounds, images, and words. The selection and arrangement of materials are all aimed at expressing the creative intent and purpose of creators in the fields of literature, art, and science. The process and means of creating audio-visual works are relatively complex, and audio-visual works exist throughout the entire industry chain of the film and television industry. For example, from novel publishing to game development, theme parks, and derivative product development.

2、 Investment model of audio-visual works

（1） Individual investment model

The independent investment model, in which a producer acts as an investor to independently invest in the production of audio-visual works, has the advantages of clear copyright and reduced communication costs. However, there are shortcomings such as high capital pressure and non dispersed investment risks.

（2） Joint investment model

The joint investment model includes the investment model of joint participation in production and the investment model of fixed investment return, wherein:

1. Investment model for joint production

This investment model consists of two or more producers acting as investors. Its characteristic is that all investors participate in the entire process of creating audio-visual works, including script development, selection of main creators, publicity and distribution, etc.

The following issues need to be noted when adopting a joint production investment model:

(1) The ownership of copyright in audio-visual works needs to be clearly agreed upon;

(2) Clear agreements need to be made on the production cost budget of audio-visual works, the investment proportion of each investor, the principle of income distribution, and the way to bear the overspending;

(3) It is necessary to make a clear agreement on which of the investors will act as the executive producer, distributor, and propagandist of the audio-visual works, as well as their corresponding rights and obligations.

2. The investment model of fixed investment returns

This investment model is characterized by two or more producers jointly acting as investors, with one or more investors only providing funds and not participating in the entire process of creating audio-visual works.

The following issues need to be noted when adopting a fixed investment return investment model:

(1) Ownership of copyright: Under this investment model, the copyright usually belongs to the actual producer, and for some/some investors who only provide funds, only the producer's right of authorship is enjoyed;

(2) The return ratio of the investor, the time of investment and payment collection.

（3） Commissioned production shooting mode

1. The main feature of this investment model is that the entrusting party provides funds, and the production company, as the trustee, is responsible for producing audio-visual works, including early preparation, early filming, and post production.

2. Issues to be noted when adopting this investment model:

(1) Ownership of copyright: Under this investment model, the copyright usually belongs to the entrusting party;

(2) Production cost budget of audio-visual works, selection and employment of main creators, shooting cycle, service fees, and income distribution (rewards).

3、 Issues needing attention at different stages of audio-visual works creation

The stages of audio-visual works creation are mainly divided into five stages: project approval, preparation, production and shooting, distribution, and derivative product development.

（1） Project approval stage:

Looking for good projects depends on the producer's market judgment. In addition, at this stage, the main attention should be paid to submitting the script (outline) of the audio-visual work to the State Administration of Radio, Film and Television or relevant competent departments for project approval before shooting.

（2） Preparatory stage

1. Characteristics: The most important stage of clarifying the ownership of rights

2. Main issues to be noted at this stage:

(1) The issue of adaptation rights

Applicable conditions: The novel or literary work has been published and requires the right to adapt.

Attention: Clarify two relationships, namely, the relationship between the original work and the audio-visual work, and the relationship between the author of the original work and the producer; The type, content, and duration of adaptation rights, as well as the ownership, exclusivity, and other rights of audio-visual works, should be clearly stipulated in the "Adaptation Rights Transfer Agreement".

(2) Script issues

Screenplay is the foundation for the creation of audio-visual works, which can be divided into two forms: original creation and adaptation creation.

The main issues that should be paid attention to in screenplays are: clarifying two relationships, namely, the relationship between screenplays and audio-visual works, and the relationship between screenwriters and producers; The copyright of the script; Replacement conditions and handling methods of screenwriters; Ownership of copyright in audio-visual works.

（3） Production stage

The execution stage of audio-visual production involves many and complex matters. This stage fully demonstrates the importance of producers. Main issues to be noted at this stage:

1. Signing of various contracts and documents

(1) Contracts signed by the crew: employment contracts for directors, actors, and staff, as well as leasing contracts for clothing, props, and venues. Particular attention should be paid to the issue of ownership of copyright; The problem of leaving the group halfway; Participate in late publicity and dubbing issues; Problems with overdue filming (make-up), etc.

(2) Contracts signed by investors: music contracts, script contracts, adaptation rights contracts, certain important director and actor contracts.

(3) Music contract: For published music works, the mode of signing an authorized use contract is usually adopted, in which a clear agreement on the method, duration, scope, etc. of authorized use is required. In addition, it is recommended to require relevant persons of musical works to provide documentary evidence of their legal copyright to ensure that there are no legal obstacles to the use of authorized musical works in the distribution process of audio-visual works.

For unpublished music works, the mode of signing a commissioned creation contract is usually adopted, in which a clear agreement on the ownership of copyright is required. In addition, it is also recommended to require the relevant person of the music work to provide corresponding proof documents.

2. Supervision of the crew

For investors, it is necessary to supervise the production team, including the implementation of production cost budgets, financial payments, etc.

3. Manage advertising placement

Usually negotiated jointly by the producer, director, and screenwriter.

（4） Release stage

The distribution stage is the stage where the value of audio-visual works is reflected. The following main issues should be noted in the signing of the issuance contract at this stage:

1. Authorization period: Different issuance channels have different authorization periods. The authorization period should be clearly agreed in the issuance contract.

2. Time of initial issuance: The time of initial dissemination through each issuance channel should be clear to ensure the maximization of investors' interests.

3. During the film distribution process, the distribution and screening contract signed by the producer and the cinema line should clearly stipulate the box office allocation, payment period, cinema supervision, etc.

（5） Development and use stages of derivative products

The scope of derivative products usually includes toys, games, theme parks, etc. The main issues that should be paid attention to during the development and use stages of derivatives are:

1. Acquisition time of derivative product rights: The best time is at the preparatory stage or later stage through negotiation;

2. The acquisition method of derivative rights: one-time buyout or contract payment plus later sharing.

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