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‘The Presence and Absence of Creators in Contracts, 1910-2022’, CREATe panel at the LCH Conference, June 2023

Posted on    by Elena Cooper
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‘The Presence and Absence of Creators in Contracts, 1910-2022’, CREATe panel at the LCH Conference, June 2023

By 31 October 2023November 2nd, 2023No Comments

Following on from the recent blog about the ISHTIP Workshop 2023, we continue reporting on CREATe participation at summer conferences: also in June 2023, a panel of our academics contributed to the 25thAnnual Conference for the Association of Law, Culture and the Humanities, hosted by the School of Law, University of Toronto. This follows on from CREATe’s contribution to last year’s conference convened by Emory Law School, Atlanta, USA.  The theme of this year’s conference was ‘Absence: The Present and The Past’ and the CREATe panel comprised three presentations exploring ‘The Presence and Absence of Creators in Contracts’.

First, Dr Amy Thomas, Lecturer in Intellectual Property and Information Law, CREATe, presented on the findings of the UK Authors’ Earnings and Contracts report, as well as the first global study of Indie Authors’ Earnings, both conducted in 2022. The Covid-19 lockdown and the UK’s withdrawal from the EU had disproportionate effects on already vulnerable members of the UK author population and accelerated pre-existing trends of steadily declining earnings and living standards. A major exacerbating factor in author earnings, argued Dr Thomas, were changes to contractual practices which limited an author’s earning potential by curtailing immediate cash injections (e.g. advances) and long-term earning potential (e.g. trends towards buy-out contracts). Dr Thomas considered the symbiotic connection between the disruption caused by absence and isolation of the author, broadly conceived, and contractual relations between authors and key cultural gatekeepers. The author’s absence, Dr Thomas argued, manifests on two fronts: absence from social and professional spheres, and absence from foreign markets. This, in turn, poses risks to the sustainability of the UK writing profession, and cultural diversity of writings on offer.

Secondly, Dr Kenny Barr, Research Associate, CREATe presented a paper building on his co-authored research, commissioned by the UK IPO, examining so-called ‘buyout’ contracts for music commissions in the age of subscription video on-demand (SVoD). This involved data gathered through a creator focus group, stakeholder interviews and analysis of contracts. The UK TV production sector, over a number of years, has been the site of sustained growth, including the emergence of SVoD series, like Disney+ and Netflix, with lavish commissioning budgets. While music forms an integral part of this content, a number of stakeholders have articulated concerns, suggesting buyout deals are becoming increasingly common in respect of music commissions. The agreements involve one-off fees at the ‘front-end’ of the deal, with creators required to waive any claim to potentially valuable ‘back-end’ royalties. Therefore, these copyright buyouts contractually ensure creators’ absence from any future interest or subsequent control over works they create. Dr Barr reflected on the possible consequences of such deals becoming the industry standard, before considering the extent to which commissioning codes of practice (akin to those governing control of IP in agreements between broadcasters and independent producers) may offer music creators a more equitable and sustainable presence in this ‘golden age’ of the screen production sector.

Finally, Dr Elena Cooper, Senior Research Fellow, CREATe, who also chaired the panel, presented on the contracts concluded between actors and film production companies in the early film industry in England in the 1910s and 1920s, a time of absence, in the UK, of statutory intellectual property protection for actors as regards their performances. Drawing on original archival research, Dr Cooper explored the ways in which contracts, and their interpretation by the courts, were implicated in cultural power struggles between a new class of ‘stock actors’: actors employed exclusively by film companies and who were unknown to the public at the point of hire. Whereas film companies offered actors who had already achieved notoriety in the theatre favourable terms as regards attribution and pay, stock actors were paid significantly less and were initially denied any attribution at all. Drawing on original court records held at The National Archives, London, Dr Cooper explored how the development of the common law by the courts significantly shifted the balance of power in favour of stock actors and contributed to the legal conditions for the rise of film-stars as owners of aspects of their own identity.

The discussion, which also featured questions from the floor from Dr Helena Whalen-Bridge (Associate Professor, National University of Singapore), spanned both legal issues and social/cultural practices, including those relating to attribution, the use of pseudonyms, ownership of goodwill and the right of integrity. The full programme for the 2023 conference is available online. Next year’s conference to take place on 17 and 18 May 2024, will be hosted by the University of British Columbia, Vancouver, Canada.