The Internet is fast becoming a forum for film makers to showcase their work internationally. Online festivals such as the Hollywood Digital Film Festival and the Italian International Festival of Short Films and New Images are already attracting widespread interest. Australian company kgrind has recently run Australian, UK and US heats in its short film festival "Antifest". Putting your film online can give you worldwide exposure. If all goes well you might get picked up for a distribution or development deal. But what should you look out for when you submit?
What sites should you submit your film to?
It is relatively simple to put the film on your own site, as you don’t have to worry about losing control of the rights. The big catch is that, unless you have a highly trafficked site, nobody might see it. Luckily, there are hundreds of other sites calling for submissions. Some are dot coms collecting films in the hope of one day finding a way to make money from their site. Others are pay-TV distributors looking for fillers, or studios trawling for new directors. Many market-test submissions by running viewer choice competitions (eg www.click-flick.com). As most sites do not charge for screening your film, you may decide to send your film to as many sites as possible. However, there can be traps in the fine print, so it is vital to understand what you are agreeing to when you provide the film.
Check the terms of submission
Most sites offer terms of submission which you must accept before they will show your film. Some sites display their terms and ask you to click: "accept" as you enter your contact details (eg www.AlwaysI.com). Others ask you to download their terms of submission and send in a signed copy with your tape (eg www.pop.com). You will generally have very little chance of negotiating changes to the terms of submission although it is always worth a try (see "Understanding Contracts" Art + Law March 2000). It is therefore important to read the terms of submission very carefully before you deliver your film. If you can’t see any terms of submission, e-mail them and ask what they intend doing with your film before you send it in.
What rights do they need?
All that is needed from you in order to show your film online is a simple licence (or permission- same thing) to show the film on that site for a limited period on a non-exclusive basis (meaning you can put your film on other sites at the same time). However, many sites want more rights. Whether you want to give them these extra rights is a matter for you. Is it worth the exposure or the chance to win some prize?
What rights do they want?
Some sites, particularly those running competitions, want you to hand over copyright. You should only give up copyright ownership if it is really worth it – which is almost never.
Permitted use clauses
Many sites include in their terms of submission a list of things they can do with the film. This may just be screening it, or it may be quite substantially more. Scrutinise very carefully. What in fact can they use the film for? Some sites provide that they can show the film on their own site forever, or on other sites at their discretion. Others go much further. The US site www.iCast.com provides that by entering in their competition:
"you are granting iCAST, its affiliated companies, business partners and licensees a worldwide, perpetual, royalty-free non-exclusive right to use your entry in connection with all aspects of the operation and promotions of their Internet businesses"…
A clause like this gives rights over your film to just about anyone connected with the site. What rights? In this case, the right to use your film for just about anything that helps them promote their business. They don’t have to pay you, get your approval for edits or even credit you as the creator. In other words, you are giving them free advertising content.
Entry conditions to competitions
Some competition sites impose entry conditions, for example that your film is low-budget, Australian or hasn’t won anything before. You might be denied the prize if you breach these conditions. Some conditions are quirky: to enter kgrind’s Antifest, your film must have been rejected elsewhere.
Granting exclusive rights
Beware of granting any kind of "exclusive" rights – meaning that you can’t give those rights to anyone else. Some sites (eg www.AlwaysI.com) have exclusive screening deals, meaning that you can’t show the film on other sites for a certain period. Others might try to appoint themselves as your film’s exclusive marketing agent. Weigh up any kind of exclusive deal with particular care. At the very least, make sure you can terminate with reasonably short notice if it’s tying up your film without results.
Appointment as marketing or distribution agent
Some sites solicit your film for review, and may then send a separate offer to act as the film’s distribution agent. Examples of these include www.TripMedia.com, www.pop.com, www.filmfilm.com, www.bigfilmshorts.com, www.AtomFilms.com and www.micromedia.com. Other sites such as www.AlwaysI.com offer a "click-on" distribution agreement up front. You should scrutinise the terms of any such agreement carefully. What are they obliged to do? Are they your exclusive agent? What is their commission? Does that include costs and expenses? What is the scope of their authority?
Any offer to show, distribute, market or develop your film should always be reviewed as a whole to gauge whether it is worth doing. Contact Arts Law to see if we can help.
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Check your rights
Virtually all invitations to put your film on the net will require you to click on a warranty of some kind. These warranties are guarantees which you give the website owner.
Warranties can include:
- That you have obtained all necessary clearances for underlying rights:
Does your film use third party material such as a clip from TV or a Picasso in a background shot? If you are a student film maker or have played to very small audiences, you may not have had any trouble so far even though you have illegally sampled the Blair Witch Project and a Metallica soundtrack. However, these days people are paid to search the web for infringements and notify the lawyers.
That you own copyright in the film itself: Do you really own the film? If it is a student film make sure you didn’t sign away copyright when you enrolled in the course. Some film makers also inadvertently assign copyright in their film by entering competitions.
- That your film does not infringe any third party rights:
Does your short film send up a feature film and closely follow the plot? Might it defame an identifiable person? (see our information sheet on defamation).
- That the film does not infringe any laws:
An example: Kgrind’s "Antifest" requires you to warrant that your film will not contravene censorship laws (contact the Office of Film and Literature Classification on (02) 9289 7100 and see generally the discussion of censorship and obscenity in "Classifying Multimedia" in this issue).
What happens if I breach a warranty?
If you give a warranty and it turns out to be untrue, you can be sued directly by the affected party or by the website owner if they get sued. This can be very expensive.
If you put your film on the Internet it can probably be bootlegged. Digital copies can be as good as your original copy, and their origins difficult to trace. A copyright notice helps but doesn’t prevent downloading. And while encryption and data-tagging methods are being developed, the Internet will probably always be pirate-infested. So? You may enjoy your film becoming a cult bootleg. Similarly, the showing of your film on a pirate site wouldn’t normally jeopardise your chances of a TV deal as the two markets, Internet and TV that is, are not yet converged. However, you may need to ensure that your underlying rights holders (such as composers) also accept the risk.
Sally McCausland is a Legal Officer at Arts Law. With thanks to Sava Pinney, Australian Film Commission for site tips and useful feedback.