Top 10 tips for archive and stills clearance

When you are clearing stills and archive for your programmes and content, remember to look out for the following in your licence agreements:

* Ensure that the owner/archive library warrants that they either own, or are the authorised licensee, of the material. You’d be surprised how often this is missing! Then ask for an indemnity to back this up (in the event they are not in fact the owner and someone else is, you want to ensure they will reimburse you the costs and expenses of any claim against you).

* Ask them to warrant that the material does not breach any third party rights (including copyright, moral rights, image rights, privacy).

* Ideally you want a warranty that you do not need to obtain any further consents and licences (e.g. if the archive is a piece including contributors and music and actors, a warranty that you do not need to clear any of those separately). Quite often, this warranty is not given and you may find yourself having to clear these ‘underlying rights’ with the relevant rightsowners.

* Make sure that if you breach the licence, e.g. exploiting beyond the agreed term or territories, that the owner/licensor cannot revoke the material and make you take it down (it’s obviously a costly exercise to call back and re-edit, and not ideal for your relationships with commissioning broadcasters & platforms). Instead, ensure they acknowledge they have no right to injunct/restrain the programme or content. N.B they’d still have a damages claim if you were in breach. E.g. in the above two examples, a logical amount would be an extra licence fee for the increased usage outside the licence.

* Carefully check the rights licensed — do they cover what your commissioning broadcaster/platform is asking you to clear for? Are you obliged to include a quote for any ‘clearable’ rights, e.g. uplift fees for an extension of the licence term or licensed rights?

* Do you need to overlay graphics/other effects, mash it up with other content or otherwise ‘modify’ or ‘adapt’ the archive/stills — if so, check your licence allows for this, sometimes it is expressly prohibited.

* Watch out for material marked ‘editorial’, quite often this will be too restrictive for your project.

* Check if you need to licence the right to use the archive/stills for promotion of your programme/content.

* Check the credit requirements are consistent with your broadcaster/platform’s credit guidelines, ideally insert wording in the credit clause along the lines of ‘subject to the credit guidelines of the relevant broadcasters, platforms and distributors’.

  • Ensure there is a provision allowing you to assign the agreement (ideally without limit, but at the least, to financiers broadcasters distributors and group companies).

#Please note that the above Top 10 Tips are for information and guidance only and do not constitute and should not be relied on as business or legal advice. Mint & Co do not accept any responsibility or liability for your reliance on the above.