The Importance of Securing Chain of Title
by Jindra Rajwans, B.A. (Hons.), M.A., LL.B., M.B.A., LL.M.
NOTE: The information in this article is not intended to be
legal advice and is of a general nature. Consult a lawyer
for advice for any specific situation.
Professionals in the film industry, especially writers and
producers will hear about a concept called “chain of title”,
if they have not already heard about it. Chain of title
refers to the succession of title of ownership of copyright
back to the original owner.
When an idea for a film is formulated in writing by an
author who is not an employee or who has not by contract
negotiated away his or her copyright in the respective work,
that person is generally considered the original author and
owner of the copyright in that work.
As the old adage goes, copyright does not exist in an idea
itself. Rather, in Canada and the United States (and most
other jurisdictions in the world), copyright protection
exists for works in tangible form. It is the expression of
the idea rather than the idea itself that is subject to
copyright protection. In other words, the idea has to be
“fixed” in material form.
For a literary work such as a screenplay, copyright protects
it or any substantial part of it in any material form from
being, among other things, produced, reproduced,
distributed, published, translated, adapted, made into a
film, or communicated to public by telecommunication without
the permission of the author.
Now, screenplays oftentimes start out with an idea and then
a treatment or synopsis is derived from such treatment.
Alternatively, some screenplays are derived from novels or
stage plays. In cases where a screenplay is derived from a
treatment, the first thing to note is that the screenplay is
a derivative work of the treatment, and as such, the
treatment is the first element in the chain of title.
Without the permission of the author of the treatment to
create a screenplay based on it, the chain of title would be
broken, so to speak. Moreover, the screenplay is oftentimes
a joint effort among more than one author, therefore, the
producer who wishes to use the screenplay may likely have to
obtain the appropriate rights from all those joint-authors
who contributed to that screenplay.
If there is a possibility that a producer believes that a
specific third party may have some rights in the screenplay,
then the producer may want to take precautions by having the
third party execute a quitclaim or other similar document
that effectively establishes that the third party has no
interest in the screenplay.
To ensure that the producer fully owns the film, the
producer will also have to secure all the necessary rights
from everyone involved in the production so that chain of
title of the film itself, is intact. Agreements with the
director, actors, cinematographer and everyone else involved
in the production will have to be executed.
The most significant reason why producers want to keep an
eye on the chain of title is to ensure that they can secure
distribution. Distributors will want the producer to ensure
that all rights to the film have been secured, and they will
require the producer to make certain representations and
warranties in regards to the ownership of the film.
For example, the distributor will likely require the
producer to represent and warrant that the film does not
violate or infringe, among other things, any agreement with
any third party, trade-mark, trade name, copyright, moral
right, patent, literary right, dramatic right, and rights of
privacy and publicity. If any of these representations and
warranties turns out to be untrue, the producer will usually
have to indemnify and hold harmless the distributor for any
breach of the respective representations, warranties and any
covenants under the distribution agreement.
Prior to making a film, it would be prudent for a producer
to make himself or herself aware of the kinds of agreements
required to secure chain of title of the film, and a lawyer
oftentimes can provide valuable assistance with these
matters. Although there is an upfront cost and time to
properly secure chain of title, the cost of not doing so can
ultimately be much greater as the chances of entering into a
distribution deal may be jeopardized.
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Jindra Rajwans is a business and entertainment lawyer in
Toronto, Canada. The entertainment area of his practice
focuses on providing legal services to writers, directors,
producers, actors, musicians or other professionals, and
companies in the entertainment industry.
mailto:jrajwans@rajwans.com
416.323.5777
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Copyright (c) 2006 Peter D. Marshall / All Rights Reserved
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