Creative Rights or Financier's Rights:
Is is one or the other - or both!

by Jerry Isenberg
Chairman of the Caucus

There is a theory of financier rights that proposes that whatever creative rights may belong to writers, directors or producers, they are always subservient to the rights of the financier. This theory has quite widespread acceptance and arises from the basic tenant of the entrepreneurial society that those putting the money up have the right to make whatever decisions they wish regarding the way that money is spent. Whether that power is used wisely or badly is not of materiality. In fact, in the entrepreneurial philosophy, it is the issue of competency that separates the successful from the failed.

Whatever the validity of this theory in the entrepreneurial world, its validity in the creative world is made suspect, if not totally negated, by the singular peculiarities of our industry. The film and television industry is noted for product whose value is as much if not more a function of the vision and talent of its creators as it is for the business decisions of its financiers. Of course, the financing party bears the responsibility to choose the product and to insure it has the commercial elements necessary for exploitation. But to the extent that the reaction of the audience who actually experiences the product which contributes to its economic viability, economic value is the responsibility of the creative team (writers, producers and directors) who actually produces the product.

It is necessary here to state one guiding principle, which if not accepted makes all else moot. That principle states that it is the writer, director and/or producer who are acknowledged as having the superior creative experience, talent, and vision to realize the product. In fact, the actions of a financier to override the creative choices of the writer, director, or producer is the admission by the financier that he/she has chosen people who are inferior in either experience or vision regarding the particular project. This is not the marking of a successful entrepreneur or executive.

So, there is business logic for certain creative responsibilities being vested in the “creative team.” How does this economic logic get translated into a right or rights? The answer lies in the credit system that is a fundamental structure of this industry. The system of screen credits was created and exists to protect both the creative individual as well as the studio, network or company hiring the producer, writer or director.

The need for credits arises from the imperative to identify responsibility for the creative components of a project. Because each project is singular and to some extent unique, the suitability of an individual for hire is sometimes totally dependent on the history of his/her past works. It is the artist’s screen credits that identify the individual as suitable for a given job. Conversely, there are many circumstances when an individual’s credits will disqualify them from consideration. Not only do those hiring use credits to determine suitability, they also depend on the system to guarantee that the individual actually did the work for which they are credited. Falsifying credits is akin to fraud.

The Guild system of credit determination and protection arose to protect artists from unwarranted or even unscrupulous claim to credit for work not performed. While the Writers Guild and the Directors Guild have established credit determination processes that protect the individual from other Guild members claiming unjustified credit, the Producers Guild has never been able to establish clear definitions as to the “meaning” of each producing credit. Hopefully, the recently invigorated PGA will succeed in their efforts to establish meaning behind each producing credit.

Yet, while the Guilds have had success in regulating who gets credit, the real validity of that credit depends upon the individual’s ability to make the decisions and work under the conditions the industry expects and measures the credit upon. Although the Guilds have acted to define the boundaries between themselves, there is little that defines the boundaries between financiers and talent. The boundaries tend to be set in each circumstance by the relative powers of the parties involved. Attempts by the individual to assert controls beyond their “power” often results in some form of retribution. In most cases it results in the labeling of the individual as “uncooperative.”

To the extent that financiers extend their powers into the creative areas that are the natural province of talent, they invalidate the credit system. A director stripped of the power to select actors, choose his/her cameraman, or locations will receive screen credit as if they had the power. A writer forced to write dialogue or actions they resist (or have it written by someone else) will receive credit as if they performed it all willingly.

The truth remains that if one is to benefit from the credit earned for success, one stands to suffer from the credit earned in failure. That system protects the financier as well. What is crucial is that the whole system depends upon the integrity of the credit. Invalidation of this system by financiers not only discredits their own decision-making tool but it opens the talent to having credit on work that does not reflect their ability or intention, thereby putting their careers and livelihoods at risk.