The importance of fair remuneration for our culture and economies
When one thinks about writers and directors, one instinctively pictures the handful of superstar movie moguls that in our minds, define the profession. The reality however is that the overwhelming majority of audiovisual creators are relatively unknown, self-employed individuals that face a huge challenge in their profession.
They are not wealthy, do not benefit from sick pay, pension or regular wages, and are engaged in a full-time career where a huge proportion of their work is unpaid. Each project can take years to come to the stage or screen, and there are absolutely no guarantees that it will not stall on the way. Usually, the only way that they can remain in the industry is to try to earn a livelihood from their royalties from previous projects and use them to navigate the cycles of paid and unpaid work.
Unfortunately, because of the way that screenwriters and directors actually get paid, the option to earn an equitable living from the success of their back catalogue is more often than not, denied them.
“We are fortunate and grateful to be able to do a job we love but that doesn’t mean we should be denied the opportunity to share in the success of our work.”
– Yves Nilly, French screenwriter and President of Writers & Directors Worldwide.
The principle for fairly remunerating audio-visual authors is well established in international copyright protection instruments such as the Berne Convention, the WIPO Copyright Treaty and the 2012 Beijing Treaty. In practice however, it’s far more likely that authors will be forced to accept whatever contract is offered. And in most cases, this will be a crude lump sum payment rather than any kind of equitable share in the ongoing success of the work.
The 2015 economic study into screenwriters and directors’ remuneration in Europe, conducted by SAA [insert link on FR site to SAA] revealed that in 2013 writers and directors received only 0.37% of the revenues within the EU’s successful audiovisual market – a market valued at €122 billion.
The reason that authors can’t negotiate harder is that without an unassignable, unwaivable right to remuneration set into law, they have a vastly weaker negotiating position against the powerful, well-funded producers and distributors. For authors who don’t earn a living from their back catalogue and who are about to begin the long, unpredictable process of bringing new work to the stage or screen, holding out for a better deal is simply not an option.
Walking through the individual steps of this process, one can understand just how challenging it is for audiovisual creators and why so many of them do not survive the journey.
The development of an original film project for example, begins with the creative stage for the author. This comprises all of the brainstorming, storyboarding and development necessary to produce a single concept for a project. These ideas are continually reworked until very occasionally, they lead to the writing of a screenplay or the composition of a team of authors. This process alone can take several years to complete.
The finished screenplay is then used to locate an appropriate producer. This essential step generates the funding to advance the project but if it’s unsuccessful, the author must start again at the very beginning.
The next stage requires the producer to acquire the rights from the author to use the work. Because independent authors negotiate this acquisition from such a point of weakness, the majority of them receive their first and only payment at this stage. This inequity is exacerbated by having the negotiation take place prior to the start of production and long before anybody could accurately estimate the value of any future success. There is therefore no way to ensure that this initial payment is fair for either party.
The following stage of the process is occupied with pre-production as the team begins refining the work. Potential sources of further funding are investigated while the producer evaluates the commercial potential of the project, estimating budget and return on investment. This can take up to six months.
Production and post-production can then consume another year with shooting days for the cast and crew, editing, music selection, special effects, subtitles and so on. With this completed, the process moves into a lengthy period of sales and marketing as the producer looks to sells the rights to distributors who will use the film in different markets. Promotion begins and the authors are asked to support the launch at film festivals, on TV shows and in media interviews.
Finally, after years of work, the film is released and (one hopes) widely distributed via theatres, DVD, video-on-demand or TV transmission. This last stage lasts for the entire life of the work. The producer receives a portion of each resale payment and other partners receive a return on their investment in relation to the success of the film. The majority of writers and directors however, those whose work is the very core of the entire project, receive no share in this success.
There are a number of issues with the way this process fails the screenwriter and director. However positive the intent, a lump sum payment made way before the project is even produced, is never going to fair to either party. If a film fails, the producer has to bear the cost of this lump sum and if it succeeds, the people who created the initial work are unlikely to have been equitably remunerated. Even worse is that because the journey from idea to finished production is so long and uncertain, the inevitable wait for the next sporadic payment is usually the catalyst that forces such creators to leave the industry altogether. Consider also the issue facing young writers and directors or those from less-developed areas of the world. They are denied an opportunity to build a career based upon the success of their work.
The net outcome of a lack of fair remuneration is that everybody loses. Screenwriters and directors cannot afford to create. Producers and distributors become starved of exciting new work. The public misses out on the wealth of diverse culture from an industry that can no longer provide it. And the entire world is deprived of the economic powerhouse that creative industries represent.
To put that last point into context, a 2015 study by EY1 found that the film, television, book and performing arts industries contributed €775 billion to the world’s economy and supported more than 13 million jobs. This is a contribution that any government should fight to protect.
Despite the complexity of this issue, the solution is deceptively simple. A small change in the law for screenwriters and directors can ensure fair pay and restore equality. Imposing an unassignable, unwaivable right to remuneration from exploitation of the audio visual work across all media would bring their rights level with other players by guaranteeing them a fair share in the future success of their works.
In this law, creators would be listed as authors and would receive remuneration proportional to amount of revenue generated by each use of their work. This right would be unwaivable and unassignable so it could not be ignored or transferred to a third party following an inequitable negotiation. Finally, the remuneration would be paid for by the end users (such as the TV channels or digital platforms) to the organisations mandated by authors to collect and distribute it.
“Right now, Latin America seems to be leading the way in establishing a remuneration right for audiovisual authors. We believe they’re setting an example for the world to follow.”
– Horacio Maldonado, Argentinean film director and Vice-President of Writers & Directors Worldwide.
This is not a new solution. An audiovisual remuneration right for some, if not all kinds of exploitation, is already operating successfully in almost 20 countries and has quantifiably stimulated the domestic production of new work. This number is growing all the time with both Chile and Colombia signing it into law in the last 12 months and China well on the way to adding it. Countries all over the world are beginning to realise the tangible cultural and economic value that protecting their creators can deliver. Proposals for such a remuneration right are currently (2017) under consideration by the European Parliament but success is not assured.