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Unscripted: Legal and Commercial Issues in Docuseries

Wednesday 27th July 2022

Having recently advised on a number of docuseries as part of our wider work on licensing, broadcasting and content exploitation/distribution arrangements (including advising various rights holders (comprising both high-profile media and sports personalities, as well as leading sports clubs/organisations) on deals involving leading streaming platforms,  free to air channels and subscription broadcasters), we take a look at some of the key practical considerations to address in negotiations and contracts:

  • Content & Approval – by their very nature, the more sensitive, revelatory and sensational the content, the greater likelihood of significant interest and viewing figures. However there is clearly a balance to be struck in this regard, with rights holders seeking comfort around the content distributed versus producers requiring sufficient “creative licence”, as well as avoiding potential operational challenges/delays created by additional layers of edit/approval rights. A deal specific negotiation is therefore likely in order to reach an appropriate compromise, perhaps by reference to approval over initial creatives/narratives and scoping out agreed parameters around specific inclusions/exclusions, but without extending to the rights holder having an excessive level of control over the final production.
  • Confidentiality – on a similar theme, in order for genuine, personal and revealing content to be captured, production companies are likely to be fully integrated into the world of the rights holder and given unprecedented access for a particular period. Aside from managing what actually makes it into the final version, this also raises issues around confidential information which must either remain confidential absolutely (e.g. particularly personal or sensitive matters) or which must remain confidential for a particular time period (e.g. until the announcement/launch of a project or deal). Bespoke, specific and detailed drafting on these issues is likely to be key in order to protect the rights holder, including in respect of their reputation and third-party contractual and regulatory obligations.
  • Exclusivity – typically it is perhaps expected that the production of a docuseries would be an exclusive deal, although it remains important to define such exclusivity specifically (for example, in relation to a specific time period or a particular subject matter). Further, rights holders should also consider their wider commercial programme to ensure “fit” and avoid conflict/inconsistency between their different arrangements, which is of increasing importance and relevance in view of the value of (and partner demand for) rights containing exclusive content and access into the rights holder’s world (for example, providing that a sponsor’s right to monthly social media posts of exclusive/behind the scenes footage can co-exist with a behind the scenes docuseries filmed over the same period).
  • Third Party Releases – allocating responsibility for all necessary third party releases (and the costs of the same) should be clearly set out in the contractual documentation. Whilst a starting point may be for the producer to take such responsibility, this is unlikely to extend to all individuals, locations and similar which are featured, particularly where the same may include the rights holders’ family, employer/employees, place of work, rental premises, sponsors and similar. Again, the responsibility and risk attaching to featuring the relevant third party content should be addressed, both in the rights holder/production agreement but also in the rights holder’s arrangements with third parties (e.g. ensuring consent from employers/employees, property owners etc.).
  • Minimum Commitments/Obligations – whilst the key drivers/priorities for rights holders in exploiting a docuseries will vary, the parties must consider and detail appropriate contractual provisions to ensure that their commercial intentions are reflected as binding obligations. In particular, this may include minimum broadcast/distribution obligations to support the PR and brand development opportunities arising from the docuseries, possibly in relation to the territories (and different language versions) in which the series is available, along with the channel(s) on which it is broadcast, along with specific minimum marketing commitments in terms of exposure and/or investment.

Centrefield’s specialist commercial lawyers undertake a wide range of work around content production/exploitation, along with other licensing, broadcasting and sponsorship/endorsement work in sport and media.

If you would like more information on any of the points raised above or any advice in connection with such matters (or in other areas), please contact David Bentham (Partner, or Oliver Sadler (Legal Director, Oliver