Can you yield non -existent audiovisual format rights?

Patricia Mariscal, lawyer at Bardají&Honrado, reflect on the assignments of rights in audiovisual formats and shed light on the clauses that refer to formats that "could exist in the future."

The vast majority of contracts signed in the field of audiovisual production contain a Intellectual property rights assignment: From the screenwriter to the producer, from the producer to a television network, from television to a SVOD platform ... this is logical, since it is a business, the audiovisual, which is built around creations and benefits that generate Intellectual Property Rights: From the Bible of a television format, to the final product (the can), through the interpretations of the actors or the work of a director.

The Right transfer clauses They are usually very extensive and, in general, they contemplate a whole beam of faculties that cover not only the Use that is initially intended to make of the assigned object (The script, the format, the interpretation of the actor ...), but Any other that could come to consider in the future.

The reason for being of these detailed enumerations of rights and powers is found in article 43 of the Intellectual Property Law, which provides that The assignment only reaches the modalities of exploitation expressly planned. Given the possibility that a certain type of exploitation is not understood included in the assignment, it is reasonable that the rights acquirer wants to leave all the flanks covered, even if this supposes the Inclusion of faculties whose exercise is remote.

Sometimes, even the eagerness for exhaustivity present in this type of clauses is such that they are included Formats already in disuse (How can the video-cassette or the laser-disc) or exploitation windows that are completely alien to the object of the assignment; For example, the exploitation of rights over a script in thematic parks.

Formats that still do not exist

However, Acquiring rights that we are not going to exercise can become against us, since the Intellectual Property Law provides for the obligation to exploit when the assignment has occurred with exclusive character. In addition, the reform operated by Royal Decree-Law 24/2021 last November introduces the possibility that the Author revokes the authorization given to the exclusive assignee if, after 5 years since the assignment, the work was not exploited. Although the law always refers to the exploitation of the work as a whole, it should be interpreted that the same rule applies to each of the rights that are subject to assignment. In this sense, if the acquirer of rights on a television format is given all rights, including the possibility of creating foreign versions from the original format, and these adaptations do not occur, the author could - according to the text of the law - revoke their authorization for this specific exploitation. It should be noted, however, that this faculty of revocation does not Applies to the works created by more than one author.

And if these prolific enumerations of rights and exploitation possibilities were not enough, it is customary format/medium “known or to know”The modalities of explotación“existing or that could exist in the future”.

It is curious the effort of the acquirer (or of his lawyers) in including this subsection, since the Intellectual Property Law (Article 43.5) is absolutely clear and sharp by establishing that the transmission of exploitation rights It does not reach the modalities of use or means of diffusion exceptive or unknown at the time of the assignment.

A clause that lacks utility

Therefore, to the question of whether it is possible to acquire rights on modalities, formats or exploitation windows that could exist in the future, the answer is not flatly. When the time, transferor and assignee, would have to sit down to negotiate if these new forms of exploitation are included in the initially agreed assignment and under what conditions.

And what happens if I include this type of clauses in a contract? Being a forecast contrary to an imperative norm, It becomes ineffective and is not put. Therefore, although its inclusion has no greater impact on the parties (since it does not make the assignment as a whole), the reality is that It lacks any utility. In spite grabbing the possibility that one day the law changes and allows the transfer of non -existent rights.