- Dinkar Sharma
- 23 January 2020
SWA drafts 'Standard Release Form' for Screenwriters
Prepared by legal experts, the new draft eliminates risks for Producers and writers, both
A 'Release Form/Letter' is a legal agreement that acts to terminate any legal liability between the releasor (screenwriter) and the releasee (producer), signed by the releasor. Producers often have concerns about unsubstantiated allegations of plagiarism, since they receive much work from writers, and hence need to protect themselves with a Release Form. This contract binds the writer and producer to ‘honour the sanctity of a script’.
However, SWA and its Dispute Settlement Committee (DSC) had come across a few Release Forms issued by some production houses, which have clauses that have caused concern across the fraternity of screenwriters. SWA’s legal experts believe that such a document absolves producers of all legal obligations, leaving its members’ intellectual property vulnerable.
Anjum Rajabali, senior Executive Committee member of SWA, said, "It's like I ask my neighbour to keep an eye on my house while I’m on vacation and he asks me to sign a note that I can’t sue him for stealing, even if later I see the same things in his house.” SWA’s Legal Office Anamika Jha adds, "We analysed release forms from around 15 production houses and found several clauses which are unfair to writers and won’t stand in the court of law.”
In fact, even a lot of SWA members had written to the Association about such unfair Release Forms, which have clauses that expose them and their work to huge risk and vulnerability. Some of such clauses are listed as below:
1. The clause that prohibits the writer from laying a claim or litigating if s/he believes that his/her work has been misappropriated, infringed upon or plagiarized by anyone, including a production house, is legally untenable as it violates Section 28 of the Indian Contract Act, 1872, as it asks the writer to waive his/her statutory right to seek legal remedies. This condition, while remaining a standard clause in most release forms, is legally unenforceable.
2. The material being submitted to the production house by the writer is indeed in confidence, as it contains his/her intellectual property, which is extremely valuable to the writer. The Hon’ble High Courts of Bombay and Delhi in numerous judgments have declared and established that such information by nature is proprietary and confidential. Putting such information into unsolicited and non-confidential category makes these writers helpless in case their work is misappropriated in future in any manner. Hence, the work submitted must be always be considered as ‘solicited’ and ‘confidential’.
3. There is a redundant indemnity provision in several Release Forms/Letters, which states that the writer shall indemnify the production house if it faces any loss due to infringing content. Such indemnity is unnecessary at this stage, since there is no assignment of rights or monetary dealing involved. The indemnity shall come into the picture only if and when the production house moves ahead with the content submitted to make an audio-visual work and there is any transactional dealing vis-à-vis the work. For the same, the parties have to execute a copyright assignment/licensing agreement. The indemnity clause shall be included in the same. There seems to be no rationale for having an indemnity clause in a release letter.
The Executive Committee of SWA, along with Legal experts, had been working towards a solution for quite some time. After analyzing the Release Forms of several production companies and with the help of Copyright and legal experts, the Association has now drafted a Standard Release Form, which ensures that neither party is exposed to any unnecessary risk. The draft hopes to help writers bypass legal complications, while maintaining clear control of the copyright over production houses, in accordance with Copyright Amendment Act 2012. It simplifies the legal complications putting an end to the conflict between writers and producers over the copyright of scripts that has been going on for long. (Click here to read a brief introduction of the Copyright Amendment Act 2012, from SWA archives.)
"We have drafted an ideal and unbiased Release Form, which serves the purpose of an initial contract and doesn't victimize either party. It asks producers to honour confidentiality, respect copyright and do away with redundant clauses. It will especially help new writers safeguard their interests, who are often left with no option but to comply with the conditions set by producers,” says Anamika Jha.
SWA’s Honorary General Secretary Sunil Salgia says, “The Association will look to gain production houses' approval with the draft, as it would help granting writers better bargaining power during contracts. We have already reached out to leading producers and production houses. If these production houses do not agree to our proposition, we will approach the companies' CEOs to work out something that is mutually beneficial.” Salgia, however, also points out that the request cannot be legally enforced as it directly involves only the writer and producer, not the Association.
Anjum Rajabali concludes, “Writers, too, need to develop confidence in their script and learn to say no to one-sided Release Forms. While young writers may not find the new contract convenient, as they might not want to turn down opportunity, they will have to take a stand. Just like they will not accept a meager amount for their intellectual property, they should also turn down unfair contracts.”
Dinkar Sharma is a freelance writer-director and script consultant. He studied screenwriting at Film and Television Institute of India, Pune. Formerly, he worked with Whistling Woods International as a faculty for Screenwriting. He's a guest script-mentor at FTII and WWI, and guest faculty for recently started FTII short-term script writing courses.