An Agreement made the day of 201[ ] BETWEEN THE BRITISH BROADCASTING CORPORATION whose principal office is at Broadcasting House Portland Place, London W1A 1AA (“the BBC”) and the format owner or owners named above (“the Owner”)
INTRODUCTORY The Owner has created or has agreed to create a format and characters (defined in further detail below as “the Format”) suitable for use in a television programme(s) or online production, whether as a single programme or production or as the Format for a series and the BBC wishes to enter into this Format Agreement with the Owner to exploit the Format
Changed Format Rights
Print and Publication Rights
Non-Derogation From Grant
Joint Ownership of Format
Warranties and Indemnity
BBC Public Services
IT IS AGREED AS FOLLOWS:-
Definitions The terms set out below shall mean as follows:-
(A) “Audio Publication”: the exploitation of any product which is capable of bearing sound (unaccompanied by visual images) now or hereafter known derived from a recording of the performance of the script based on the Format including the right to sell electronic copies of the product where, notwithstanding other provisions of this Agreement, the sound recording may be edited for that purpose;
(B) “BBC Script Agreements”: the Television Script Agreement (“TSA”) and the General Script Agreement (“GSA”) each dated 1 June 2012 between the BBC, the Personal Managers’ Association Limited and the Writers’ Guild of Great Britain (as amended by agreement between those parties from time to time) and “BBC script agreement” shall mean an agreement incorporating the terms of the TSA or the GSA between the BBC and an individual writer;
(C) “Changed Format Rights”: the right on an exclusive or non-exclusive basisto develop and exploit by all means and media now or hereafter known a revised television version of the Format in which certain elements such as the identities of the characters and their personal relationships and setting may be changed from the original Format for use in territories outside the United Kingdom;
(D) “Download to Own Rights” or “DTO”: the right to sell for permanent ownership to the public by electronic transmission to or from any storage medium (now or hereafter known) solely for private use copies of or access to recordings of the performance of the script based on the Format (but not including Videogram Rights or so-called video on demand rights);
(E) “Educational Drama”: a Programme based on a script which is identified and commissioned as part of BBC Learning’s remit but which is not intended for first Transmission on BBC One, BBC Two, BBC Three or BBC Four in Peak;
(F) “Extract Format Fee”: the amount payable by the BBC for Public Service extract use in accordance with Schedule Four of this Agreement which shall be calculated by multiplying the Format Fee by the duration of the extract, with the basis of the calculation being per thirty (30) seconds (or any part thereof); (G) “FDPP”: the first day of principal photography of the Programme;
(H) “Film Rights”: the right to produce exhibit and exploit by all means and media (including allied customary merchandising and prequel, sequel, remake and, videogram exploitation rights) a film for the cinema (as opposed to a film for television) based on the Format;
(I) “Format”: the expression of an original idea for a television programme or online audiovisual production recorded in writing or otherwise and consisting of such elements as its setting, characters and their relationships its themes and how the narrative might develop;
(J) “Format Fee”: the fee specified at the head of this Agreement payable when the Script for a Programme is not written by the Owner which after two years from the Programme’s original Transmission shall be adjusted by the increase in the RPI from the month of the original contract to the month of the Repeat Transmission;
(K) “Gross Receipts”: the gross revenue less taxes, duties or other government levies derived from distribution of the Programme incorporating the Format anywhere in the world or in the case of transmission by a co-producer in its own service, the deemed gross revenue determined under the BBC Script Agreements from time to time;
(L) “Merchandising Rights”: such exclusive rights in the Format as are generally understood in the film and television industries as merchandising rights throughout the world (including without limitation to manufacture, package, market, sell and distribute items of merchandise based on the Format and the right to register the Programme title or Programme characters as a trade mark in all or any appropriate trade mark classes anywhere in the world, but excluding merchandising rights arising from exploitation of the Stage Rights and/or Film Rights based on the Format);
(M) “Narrative Repeat”: a repeat Transmission made within seven days of the first Transmission;
(N ) “Online Commission” a script based on the Format commissioned for a Programme created specifically for first Transmission on the BBC’s websites or on BBC Red Button (as included in the BBC’s Public Services listed in Schedule Five);
(O) “Primary Channels”: BBC One, BBC Two, ITV1, Channel 4, Channel Five;
(P) “Primary Rights”: the exclusive right to commission scripts and the right to make and exploit by any means now or hereafter known a Programme or Series incorporating such scripts based on the Format (including without limitation a production for initial Transmission on television, a television production in which the BBC wishes to exploit Theatric Rights, or a so-called spin-off, prequel or sequel);
(Q) “Print and Publication Rights”: the exclusive right to print or publish a work based on the Format in printed book magazine and/or periodical form and including without limitation any novelised version, adaptation, dramatisation, narrative part work continuity and/or syndication based on the Format;
(R) "Programme": an audiovisual production incorporating script(s) based upon the Format;
(S) “Programme Sales”: all forms of audiovisual distribution of the Programme however transmitted or delivered whether now or hereafter known excluding Video Rights;
(T) “Public Service”: Any service or activity falling within the definition of UK Public Services set out in the BBC’s Agreement with the Secretary of State for Culture, Media and Sport and any successor to or variation of that definition, which both promotes the Public Purposes of the BBC as set out in the BBC’s Royal Charter, and is contained in the list of services in Schedule Six; (U) “Repeat Transmission”: any Transmission made after the first Transmission;
(V) “Reserved Rights”: the Film Rights, the Stage Rights, the Print and Publication Rights and any rights in the Format not specifically granted to the BBC under this Agreement;
(W) “RPI”: the general index of retail prices, all items index compiled by the UK Office for National Statistics and published in the United Kingdom in the Monthly Digest of Statistics by the Office for National Statistics;
(X) “SCTW”: Secondary Channel Transmission Window;
(Y) “Secondary Channel”: BBC Three, BBC Four, CBBC, CBeebies;
(Z) “Secondary Rights”: the following rights in the Format: the Changed Format Rights, the Merchandising Rights;
(AA) “Series”: a series or serial produced under a single budget based on the Format;
(BB) “Stage Rights”: the right to produce and perform live stage plays based on the Format;
(CC) “Theatric Rights”: the right to produce a film originally intended for television based on the Format, in a version suitable for the cinema and to exploit the film by all means and media (including in the cinema and all allied customary merchandising and prequel, sequel, remake, videogram and television spin-off exploitation rights);
(DD) “Transmission”: a performance of a script incorporating the Format by any televisual means and media whether now or hereafter known (including without limitation by broadcast, making available and so-called on-line means). A Transmission of a Programme on a BBC channel shall mean a simultaneous or non-simultaneous Transmission in some or all BBC regions or so-called BBC nations served by each such channel;
(EE) “Video Rights”: the right to exploit audiovisual recordings of the Programme by whatsoever means now or hereafter known, intended solely for private use by the public including both DVD (which shall include future formats for physical products) and DTO rights;
(FF) “WDP”: a collective management organisation appointed to determine and organisethe pattern of distribution and payment of monies due to writers in respect of inter alia Online Commissions.
1.1 In consideration of the rights herein granted the BBC will in accordance with the provisions of Schedule Two to this Agreement pay to the Owner the Format Fee and other fees in respect of the exercise of the Primary and Secondary Rights and the fees in respect of extract use in Schedule Four.
1.2 The Format Fee will be 10% of the fee the Owner would have received had the Owner written the script or the highest writer’s fee paid for a script for the Series whichever shall be the greater.
1.3 In any case where payment for a use of the Format has not been specifically set out, appropriate payment shall be agreed in good faith prior to exploitation taking place.
2. Licence 2.1 The Owner hereby grants to the BBC subject to the payments set out below in this Agreement:
(a) the sole and exclusive licence to exercise the Primary Rights and Secondary Rights throughout the world; together with
(b) the sole and exclusive right to register a trade mark in the title of the Programme and in any other appropriate programme element in all appropriate classes provided that the BBC will not use such trade mark registration(s) in order to frustrate the legitimate and reasonable use by the Owner of any rights not granted to the BBC or which revert to the Owner under the terms of this Agreement.
2.2 The BBC’s licence in the Primary Rights and its exclusive licence of theSecondary Rights, shall (unless otherwise provided for in this Agreement) commence on the date of signature of this Agreement and shall continue thereafter until:
If the Owner is also writing a script, the expiry of the BBC’s right to produce a Programme incorporating the last script commissioned under the BBC’s minimum terms television script agreement or
a period of two years from the date of this Agreement (if scripts have not been commissioned) or
(c) expiry of a period of three years from FDPP if first Transmission has not taken place; or
(d) twelve months from the date of first Transmission of the last Programme of the latest Series; unless within that period the BBC has commissioned scripts for a further Series, in which case the BBC’s exclusive licence shall be extended by Principle Photography and Transmission in the manner described above.
2.3 The Owner confirms that the licence of the Primary Rights granted under Clause 2.1 (a) above shall include the right to use the Format and Programme extracts for any purposes permitted by law and for the miscellaneous uses set out in Schedule Five without separate or additional payment under this Agreement.
2.4 Following expiry of the licence of Primary Rights the BBC shall remain irrevocably entitled to exploit Programmes produced prior to such expiry throughout the world, for the full period of copyright in the Format and any extensions, renewals or revivals thereof.
2.5 For five years following expiry of the licence of Primary Rights, and provided first Transmission has taken place, the Owner shall be obliged to offer the BBC notice of the right of first negotiation for the right to produce any further Programme(s) based on the Format (to be addressed and delivered in writing to the Head of Talent and Rights Negotiation). In the event that the Owner does not accept the BBC’s offer or that the BBC fails to make an offer within 28 days of such notice the Owner shall be entitled to conclude an agreement with a third party without further reference to the BBC provided that the third party offer is in excess of any such BBC offer.
2.6 The BBC will not exploit the Theatric Rights (or any spin off, sequel or prequel to the productions licensed under the Primary Rights) without prior agreement with the Owner as to the terms.
3. Owner’s Scripts The Owner shall be commissioned to write [ ] scripts for Programmes in the first Series. The Owner shall also be commissioned to write [ ] scripts for Programmes in any further Series, subject to the Owner’s availability to meet reasonable delivery deadlines and to good faith negotiations.
4. Changed Format Rights 4.1 The BBC’s exclusive licence to exploit the Changed Format Rights shall terminate upon the later of two years following the termination of the Primary Rights or where sub-licences have been granted the date of expiry of the last sub-licence granted by the BBC to a sub-licensee of the Changed Format Rights on a territory by territory basis.
4.2 Exercise of the Changed Format rights in the USA shall be subject to the Owner’s prior written approval of the deal terms (including without limitation the choice of any agent) and for other territories to prior consultation by the BBC in good faith with the Owner.
4.3 Following termination of the BBC’s exclusive licence in the Changed Format Rights the BBC and the Owner shall jointly control the Changed Format Rights, but neither party shall exploit or authorise exploitation of the same without the consent of the other (not to be unreasonably withheld) and agreement between them as to all the terms of the licence to be granted to any third party.
5. Merchandising Rights 5.1. Notwithstanding the provisions of clause 2 the exclusive basis of the BBC’s licence of the Merchandising Rights throughout the world will expire and the licence shall continue on a non-exclusive basis upon the later of:
two years following first Transmission of the last episode of the First Series (unless concept approval in the form of a style guide and business plan for the Merchandising Rights has been agreed with the Owner such agreement not to be unreasonably withheld), or
if the BBC fails in any one year to achieve the minimum threshold as set out in that business plan, or
upon expiry of the BBC’s licence of the Primary Rights.
5.2 Notwithstanding the provisions above, following notice to the BBC by the Owner of Owner’s intention to exploit the Film Rights the parties shall agree such arrangements as are appropriate in the circumstances.
5.3 Any exploitation by the Owner shall be subject to the BBC’s approval in relation to quality control and the BBC's Commercial Policy Guidelines in relation to any association of products with the BBC and to the provisions of a trademark licence where appropriate.
5.4 Merchandising Rights shall be irrevocable save to the extent this Agreement expressly provides otherwise.
6. Print and Publication Rights 6.1 The BBC shall have the exclusive right to publish so-called “the making of” books during the period of the BBC’s licence of the Primary Rights on terms to be agreed in good faith.
6.2 During the period of its licence of the Primary Rights the BBC shall have first refusal to acquire the Print and Publication Rights throughout the world on terms to be agreed in good faith.
7. Reserved Rights 7.1 Subject to the BBC’s right to a good faith first negotiation to acquire the Film Rights, live events and/or exhibition rights,the Owner shall retain the right to exercise any rights in the Format not specifically granted in this Agreement subject to the BBC’s right to participate in the net receipts from their exploitation (unless such rights are licensed to the BBC) and for the avoidance of doubt the BBC will not participate in payments to the Owner for the provision of writing or other services to such productions.
7.2 During the BBC’s licence of the Primary Rights the Owner will not licence any Reserved Rights to any third party without the written approval of the BBC, nor will the Owner derogate from the Owner’s grant of any rights under this Agreement or, where the Owner is also writing scripts, under the BBC’s minimum terms television script agreement.
7.3 The BBC will not inhibit the licensing by the Owner of the Reserved Rights in compliance with this Agreement and the BBC will give reasonable assistance to facilitate such licensing including the provision of appropriate quitclaim documents.
8. Accounting 8.1 The BBC shall account to the Owner as follows:
(a) Payments due on FDPP or Transmission or Repeat Transmission as relevant shall be made within Fourteen days of the event;
Programme Sales payments and Changed Format Rights licensing payments shall be made no later than the end of the month following the month in which the BBC receives the Gross Receipts; but if a third party is the distributor then the BBC shall pay or procure the payment to the Owner no later than the end of the month following the month in which the BBC is notified of exploitation;
Download to Own Rights, international iPlayer, transactional on-demand, Videogram Rights, Audio Publication and Merchandising Rights payments shall be made in respect of the Six-month periods to 30th June and 31st December in each year commencing on the first applicable reporting period after the first issue of recordings or the release of the first item of merchandise respectively and the corresponding royalties shall be paid no later than three months from the end of the period to which they refer;
(d) Each payment shall be accompanied by a statement of account which shall show how the amount due to the Owner is calculated. Unless specifically requested no payments will be made in respect of any period in which the sum due to the Owner is less than £10 in which case the amount will be carried forward to the next accounting period but shall in any event fall due for payment within Twelve months. For Video Rights the BBC shall be entitled to set aside 20% (Twenty per cent) of the royalties due as a reserve against returns, as shown on each statement of account. Such reserve shall be liquidated on the statement of account for the following period.
8.2 Where the Owner receives payments in respect of exploitation of Changed Format Rights, Stage Rights or Film Rights, the Owner shall account to the BBC for royalties payable and payment shall be made no later than the end of the month following the month in which the Owner receives the proceeds.
8.3 Each party agrees that on receipt of a prior written notice from the other it will permit the other or their professional representative to examine and take copies of its records of account relating to the relevant exploitation (but not more than once in any calendar year and during business hours only). The said examination shall be at the expense of the party requesting it unless errors to that party’s disadvantage exceeding 10% (but subject to a minimum of £150) are disclosed in which case the cost of such examination shall be paid by the other and if no notice requiring such examination has been given within twelve months of receipt of any payments and there is no other dispute relating to those payments then the party receiving them shall be deemed to have agreed that those payments are correct and to have waived any claim in relation to them.
8.4 Each party shall keep any information regarding the affairs of the other or any third parties which come to their attention as a result of the examination or otherwise strictly confidential provided that each party may disclose such information to their professional advisers and each party reserves the right to require any professional representative of the other who examines the records of account to sign an undertaking of confidentiality in similar terms to that given herein.
9. Collective Management 9.1 The Owner agrees that where the BBC has agreed with WDP any form of use for which the Owner’s rights to remuneration in respect of the BBC’s own use of the Format will be managed collectively on behalf of the Owner that WDP shall undertake the collective management. Uses for which collective management arrangements have been agreed are set out in Schedule Seven.
9.2 This Agreement will not prevent the Owner from being entitled to receive income under collective agreements negotiated by recognised foreign or domestic collecting societies for secondary uses of the Format by third parties under international law and the BBC will make no claim to any such income. In the event that the BBC and the Owner receive income under such a collective agreement, the BBC shall not be under any obligations to make any payment to the Owner from its share under the collective agreement.
9.3 The Owner will make no claim against the BBC, whether for payment or otherwise, which shall arise out of any failure by the Owner or any organisation which may represent the Owner to enter into any agreement with foreign or domestic collecting societies or any failure on the part of such a society to make any payment to the Owner. For the avoidance of doubt the Owner shall not be entitled to make any claim against the BBC where the BBC has met all relevant obligations pursuant to clause 9.1 above.
9.4 By signing this Agreement the Owner agrees that the BBC may disclose to a collective administration body information which the BBC holds about any such Owner and any previous agreements between the Owner and the BBC which involve Formats created by the Owner including the Owner’s name and agent’s address or if the Owner has no agent the Owner’s home address so as to assist the collective administration body to identify those entitled to receive monies collected and held by it as a result of its activities as a collective administration body.
10. Joint Ownership of Format Where it is agreed by the Owner either that a further writer shall be introduced to develop the Format or that the BBC has developed the Format substantially after this Agreement is entered into all payments to be made by the BBC under Clauses 1 and 4 to 7 will be shared or made as is specified by subsequent agreement between the parties. For the avoidance of doubt where the Owner is identified in this Agreement as more than one person all such payments will be shared between such persons equally or in such other proportion as is specified in this Agreement.
11. Credit 11.1 Subject to the following provisions of this Agreement the Owner shall be accorded a screen credit at the front of all master recordings of the Programmes produced under the control of the BBC for which the Owner shall not have written the script substantially in the form: "Series Created by[ ]". 11.2 The BBC shall use its reasonable endeavours to procure that the distributors of Programmes accord to the Owner a credit in accordance with the provision of Clause 11.1 on all copies of Programmes issued by the BBC and its approved distributors provided however that the BBC shall not be liable for the neglect or default of such distributors if the BBC shall have notified such distributors of the credit to which the Owner is entitled.
11.3 No casual or inadvertent failure on the part of the BBC or any third party to comply with the above provisions relating to credit shall constitute a breach of this Agreement provided that the BBC has used reasonable efforts to secure compliance and the Owner acknowledges that the only remedy of the Owner for a breach of the said provisions shall be damages (if any) and in no event shall the Owner be entitled to injunct or otherwise restrain the production, marketing, distribution or exhibition of any Programmes for any alleged failure on the part of the BBC or any third party to accord the credit herein provided for.
12. Warranties and Indemnity 12.1 The Owner warrants that the Owner:
(a) is or will be the sole author of the Format which is wholly original to the Owner (except to the extent that it is based on or relates to the work of third parties provided by the BBC) and does not infringe the copyright or any other right of any third party nor to the best of the Owner’s reasonable knowledge and belief contain any defamatory statement which if published in any form whatsoever might confer on any person firm or company a right of action or claim for damages;
(b) has full right, title and authority to enter into this Agreement and the Owner is not bound by any previous agreement which adversely affects this Agreement;
(c) has not charged or encumbered the rights granted to the BBC to or with any third party;
(d) is a “qualifying person” within the meaning of the Copyright, Designs and Patents Act 1988;
(e) will at the expense of the BBC do all such further acts and sign or execute all such further documents or deeds as the BBC may require to protect vest in or confirm to it the rights intended to be granted hereby;
(f) will indemnify the BBC against all actions proceedings costs claims and damages and any compensation agreed on the advice of Counsel arising from any breach or non-performance by the Owner of any warranty contained in this Agreement. The BBC will consult with the Owner prior to settling any claim for which the Owner may be liable pursuant to this clause.
12.2 The Owner agrees that:
(a) the Owner shall be responsible for all national insurance, personal tax or VAT which may be payable in consequence of this Agreement;
(b) the Owner shall not incur any liabilities on behalf of the BBC or pledge the BBC’s credit;
(c) nothing contained in this Agreement shall place the BBC under any obligation to make, produce or exploit any Programmes or any part or parts of them or to exploit the Primary Rights or the Secondary Rights.
13. Moral Rights 13.1 The Owner asserts the Owner’s moral right to be identified as the author of the Format but acknowledges that so long as the BBC has complied with its obligations in this Agreement then the BBC will have a valid defence to any claim that the Owner’s moral rights have been infringed.
13.2 The Owner waives the Owner’s moral right to object to the Programme as a derogatory treatment of the Format but reserves the right to require the BBC to remove the Owner’s name from the credit of any Programme if the Owner regards the final edited version of the Programme intended for UK Transmission as a derogatory treatment of the Owner’s work.
14. BBC’s Licensees The BBC shall be entitled to license sub-license or deal with any of the rights hereby granted and the benefit of the whole or any part of this Agreement and the warranties and covenants of the Owner contained herein to any other person firm or company whatsoever PROVIDED THAT the BBC will remain liable in an ongoing manner for its obligations and undertakings as set out in this Agreement. The BBC will give the Owner notice of any licence of the entire benefit of this Agreement within twenty-one days of its occurrence.
15. Publicity The BBC shall be entitled to use the Owner’s name, approved biography and approved photograph or likeness in association with any use of the Format licensed under this Agreement but not so as to suggest that the Owner approves or endorses any product other than the Programme based on the Format itself.
16. Confidentiality The Owner agrees not to disclose to any person (other than professional advisors) confidential information relating to the contents of the Format or the BBC’s plans for the development of the storyline of a Series and for the avoidance of doubt will not disclose (or allow the disclosure of) the Format to another producer or broadcaster prior to its first Transmission.
17. Notices 17.1 Any notice required to be given under this Agreement shall be in writing (not e-mail) and shall be delivered to the address of the other party set out at the head of this agreement or such other address as may be notified in writing to the other party from time to time. Notices to the BBC shall be addressed to the Head of the Talent and Rights Negotiation Group.
17.2 Any such notice duly given shall be deemed to have been received: if delivered by hand at the time of delivery; or if sent by post two working days after posting.
relation to the subject matter of this Agreement and sets out all the terms agreed
between the parties. Any amendment or alteration to such terms must be made in
writing and signed by an authorised signatory of each party.
18.2 This Agreement shall not be deemed to create any relationship of partnership or
employment between the parties.
18.3 All sums payable under this Agreement are set out in this Agreement exclusive of VAT.
18.4 The Owner shall not assign, transfer, charge or part with any of Owner’s rights or obligations under this Agreement without the prior express written consent of the BBC.
18.5 All monies due to be paid to the Owner in accordance with this Agreement may be sent and made payable to the Owner's duly authorised agents (if any) whose receipt of such monies shall be a good and sufficient discharge of the payments due.
19. Non-Derogation From Grant 19.1 The rights granted to the BBC by this Agreement are in addition to and not in derogation of those granted by any BBC script agreement between the Owner and the BBC and accordingly, where scripts based on the Format are commissioned in accordance with the BBC Script Agreements, all uses of those scripts as incorporated in a Programme which are licensed by the script agreement shall not be inhibited by this Agreement unless such use falls within a specific category of Reserved Rights.
19.2 No BBC script agreement for a Programme shall operate to limit or restrict in any way the arrangements which are set out under this Agreement for the exploitation of the Format. In the case of any irreconcilable inconsistency between this Agreement and such agreement the provisions of this Agreement shall prevail.
20. Law 20.1 This Agreement shall be construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English Courts.
20.2 The unenforceability of any single provision of this Agreement shall not affect any other provision herein.
21. Headings The headings of the clauses of this Agreement are provided for reference only and shall not limit or affect the meaning or interpretation of the said clauses.
FORMAT AGREEMENT SCHEDULE ONE FORMAT DESCRIPTION
[Full format details to appear here]
FORMAT AGREEMENT SCHEDULE TWO Payments
1. Programmes Commissioned for BBC One or BBC Two
1.1 The Format Fee, which is payable on FDPP, will acquire one Transmission on BBC One or BBC Two. For scripts for Programmes of fifteen minutes or more in duration (excluding Long Running Series) a further payment equal to the Format Fee is payable as an advance against subsequent television repeats and commercial exploitation (“the Advance”)
1.2 If the Programme is Transmitted on a Secondary Channel a fee of 10% of the Format Fee is payable or set off against the Advance as appropriate. This payment shall acquire unlimited Transmissions during a six month SCTW on BBC Three or BBC Four or unlimited Transmissions during a twelve month SCTW on CBBC or CBeebies. Each such SCTW begins on the day of the first Transmission on the respective Secondary Channel.
2. Programmes Commissioned for BBC Three or BBC Four
The Format Fee will acquire unlimited Transmissions during a three month SCTW. The three month period shall begin on first Transmission of the Programme.
On FDPP an additional 10% of the Format Fee is payable which will acquire unlimited Transmissions on BBC Three or BBC Four during a further six month SCTW. The six month period begins immediately following expiry of the initial three month SCTW.
2.3 On expiry of the six month SCTW described in paragraph 2.2 above further six month SCTWs may be purchased subject to the payment on Transmission of 10% of the Format Fee. Each further six month period begins on the day of the first Transmission on BBC Three or BBC Four after expiry of the previous SCTW.
2.4 Upon Transmission on a Primary Channel of a Programme of 15 minutes or more in duration (excluding Long Running Series) the Advance is payable less any SCTW payments already made.
3 Programmes Commissioned for CBBC or CBeebies 3.1 The Format Fee will acquire unlimited Transmissions during a three month SCTW. The three month period shall begin on first Transmission of the Programme.
On FDPP an additional 10% of the Format Fee is payable which will acquire unlimited Transmissions on CBBC or CBeebies during a further twelve month SCTW. The twelve month licence period begins immediately following expiry of the initial three month SCTW.
On expiry of the twelve month SCTW as described in paragraph 3.2 above further twelve month SCTWs may be purchased subject to payment on Transmission of 10% of the Format Fee. Each SCTW begins on the day of the first Transmission on CBBC or CBeebies after expiry of the previous SCTW.
Should the BBC wish to transmit the Programme on BBC Three or BBC Four, the BBC shall pay 10% of the Format Fee to acquire unlimited Transmissions during a six month SCTW which shall begin on first Transmission of the Programme on BBC Three or BBC Four. On expiry of the initial six month SCTW, further SCTWs may be purchased subject to the payment on Transmission of 10% of the Format Fee. Each further six month period begins on the day of first Transmission on BBC Three or BBC Four after expiry of the previous SCTW.
3.5 Should the BBC wish to transmit the Programme of fifteen minutes or more in duration (excluding Long Running Series) on a Primary Channel a fee of 100% of the Format Fee is payable as an Advance less fees paid for any SCTWs including the fee paid on FDPP as specified in paragraph 3.2 above, in respect of the first Transmission and the relevant percentage under paragraph 5 below is paid in respect of subsequent Transmissions on Primary Channels.
4 Online Commissions 4.1 The Format Fee acquires the right for the BBC to produce Programmes based on the Format but not written by the Owner originally intended for Online usage.
4.2 Online usage and any other uses agreed with WDP by the BBCshall be paid for through the BBC’s collective administration arrangements with WDP.
4.3 Should the BBC wish to transmit an Online Commission on BBC 1 or BBC 2 the BBC shall pay the Owner the Primary Channel Format Fee less the on-line commissioning fee or in the case of BBC 3 or BBC 4 shall pay 10% of the Primary Channel Format Fee to purchase each six month SCTW (or twelve month SCTW in the case of CBBC and CBeebies).
The BBC will pay the Format Owner (or deduct from the unrecouped Advance if applicable) the following percentages of the Format Fee as fees for each repeat Transmission on Primary Channels:
Repeat Fee as percentage of the Format Fee
Narrative Repeat as percentage of the Format Fee
Peak (1830 – 2300)
5.1 The Off-Peak rate only applies where the Programme was first Transmitted at a time commencing in the Peak period.
5.2 Repeats of an Educational Drama Programme shall be paid at the applicable rate above.
5.3 Repeats of children’s programmes (other than Educational Drama Programmes) will be paid at the Peak rate for Transmissions commencing between 0925 and 2300 and will be paid at the Off-Peak rate for Transmissions commencing between 2301 and 0925.
6. Programme Sales:
6.1 0.525% of Gross Receipts whether or not the script is written by the Owner excluding sales to ITV1 Channel 4 & Channel Five for broadcast on free terrestrial television in the UK where payment to the Owner shall be in accordance with clause 5 above.
6.2 Where the Gross Receipts arise from a grant of a licence for the use of the Programme in a service provided by a body owned or controlled by the BBC or by a body in which the BBC has an interest as a shareholder or in a service (other than a Public Service) for which the BBC is editorially responsible the share shall be 0.56% of Gross Receipts.
7. Video including DTO Rights: as per Schedule Three.
8. Spin-off, prequel, sequel, Audio Publication and Theatric Rights to be agreed in good faith.
9. Changed Format Rights
9.1 Subject to clause 4.2 of this Agreement, Changed Format net income which shall mean gross receipts received from exploitation of the Format and/or the Owner’s scripts less 30% commission and all costs directly attributable to licensing the Format (except where such rights are licensed to a body wholly owned by the BBC where no commission will be charged) shall be divided equally between the BBC and the Owner.
10. Merchandising Rights
10.1 Merchandising net income (which shall mean gross receipts from exploitation of the Merchandising Rights less 30% commission and any costs incurred through undertaking trademark searches and obtaining trademark registrations and any third party image costs (but no further sub-commission or other deduction) shall be divided equally between the BBC and the Owner.
11. Print and Publication Rights
11.1 If the BBC’s right of first negotiation with regard to the Print and Publication Rights results in the Owner licensing those rights to a third party the Owner shall pay to the BBC 10% of its gross income from such exploitation.
12. Reserved Rights 12.1 If, subsequent to the BBC’s right of first negotiation, the Owner makes an agreement as permitted under this Agreement with a third party to exploit the Film Rights within five years of the First Transmission of the last programme in the last Series the Owner will pay to the BBC 15% of the Owner’s net income from exploitation of the Film Rights (but for the avoidance of doubt not of any monies received for screenwriting services), but if the Owner makes such an agreement after that period the BBC’s share shall reduce to 5%.
12.2 The BBC’s share (if any) from the exploitation of any Reserved Rights other than Film Rights shall be the subject of good faith negotiation between parties reflective of the degree to which that exploitation is dependent upon or similar to the Format, scripts, storyline, and other elements of the Programme or Series.
FORMAT AGREEMENT SCHEDULE THREE VIDEO RIGHTS 1. The BBC will pay the Owner the following sums in respect of the exercise of Video Rights in the Transmitted Programme in respect of a script. Payments will be made for DVD sales where the script has been written by a writer other than the Owner and for DTO whether or not the Owner is the writer of the script .
The BBC will ensure that the following percentages of the gross revenues received by the distributor shall be paid to the Owner:
Units Percentages 0.525 % regardless of unit sales volume
up to 30,000 0.2%
30,001 to 50,000 0.25%
50,001 to 100,000 0.3%
100,001 to 500,000 0.4%
Over 500,000 0.5%
3. The BBC shall not without the written consent of the Owner include on any one product scripts based on two different Formats.
4.1 Where DVDs are distributed overseas pursuant to any further sub-licence granted by the BBC’s licensed distributor the royalty shall be 0.5% of gross revenue received by the BBC in respect of Videos of the work sold.
4.2 Where the BBC wishes to distribute products within the UK pursuant to any sub-licence intended to be granted by the BBC’s licensed distributor the BBC and the Owner shall agree in good faith the payments due to the Owner in respect of such sales.
5. In respect of sales to hire libraries the Owner shall in addition to the royalties set out above be paid 0.3% of the net rental income which the BBC receives in respect of the hiring or renting of DVDs.
6. The Owner shall be entitled to a credit on any packaging on a physical product.
7. The Owner shall be entitled to three complimentary copies of the product.
8. The BBC shall be entitled to set aside as a reserve against returns of DVDs 20% (twenty per cent) of the royalties due as shown on each statement of account and such reserve shall be liquidated on the statement of account for the following period.
9. Nothing in this Agreement shall entitle the BBC to Transmit the product or perform it in public except for the purposes of advertising and promoting the product.
10. The Owner acknowledges that the payments set out above take account of all the circumstances including the right to equitable remuneration for rental.
FORMAT AGREEMENT SCHEDULE FOUR EXTRACT USAGE The payments under Schedule Four will be made for use of extracts from scripts based on the Format but not written by the Owner.
1. Extracts in New BBC Programmes 1.1 (Subject to the terms of this Agreement) the BBC shall be entitled without consent to make use of extracts from the Programme based on the Format for incorporation in new programmes upon the terms set out in paragraphs 1.3, 1.4 or 1.5 of this Schedule Four as applicable.
1.2. The Owner’s consent shall be required for the use of extracts from comedy Programmes in programmes where the editorial principle for the selection of extracts is (a) the choice of a presenter in the role of celebrity rather than critic or interviewer, or (b) that the extract is a defining moment in the original Programme
1.3. If the new programme in which the extract is incorporated is intended for first Transmission on BBC One or BBC Two, the BBC shall pay the Owner:
(a) the Extract Format Fee to acquire One Transmission on BBC One or BBC Two and all Public Service uses associated with such Transmission;
(b) if the programme incorporating the extract is subsequently repeated on BBC One or BBC Two, those percentages set out in paragraph 5 of Schedule Two, but applied to the Extract Format Fee for each repeat Transmission on BBC One or BBC Two and all other Public Service uses associated with such repeat Transmissions; and
(c) if the programme incorporating the extract is subsequently repeated on a Secondary Channel, 10% of the Extract Format Fee to acquire unlimited Transmissions on during a six month SCTW on BBC Three or BBC Four or unlimited Transmissions during a twelve month SCTW on CBBC or CBeebies and in each case all other Public Services uses associated with such Transmissions. Each such SCTW begins on the day of the First Transmission on the respective Secondary Channel.
1.4. If the new programme in which the extract is incorporated is intended for first Transmission on Secondary Channels the BBC shall pay the Writer:
(a) the Extract Format Fee to acquire unlimited Transmissions on Secondary Channels for a three month SCTW and all other Public Service uses associated with such Transmissions. The three month SCTW will commence on the first Transmission of the Programme on the Secondary Channel;
(b) if the programme incorporating the extract is subsequently repeated on a Secondary Channel, 10% of the Extract Format Fee to acquire unlimited Transmissions during a six month SCTW on BBC Three or BBC Four or unlimited Transmissions during a twelve month SCTW on CBBC or CBeebies and in each case all other Public Services uses associated with such Transmissions. Each such SCTW begins on the day of the First Transmission on the respective Secondary Channel; and
(c) if the Programme incorporating the extract is subsequently repeated on BBC One or BBC Two, those percentages set out in paragraph 5 of Schedule Two, but applied to the Extract Format Fee for each repeat Transmission on BBC One or BBC Two and all other Public Service uses associated with such repeat Transmissions.
1.5. Where the extract is used online in conjunction with BBC Public Services intended to complement the original Programme neither consent nor payment shall be required. For the avoidance of doubt, payment shall be required (unless otherwise provided for in clause 2.3 of this Agreement) for any use of an extract in a manner outside the context of the original Programme such as an aggregated genre based site.
1.7. For distribution of the new programme incorporating the extract the BBC shall pay the Owner that fraction of the Gross Royalties described in Schedule Two and Schedule Three as the duration of the extract bears to the duration of the new programme.
1.8. Payments under paragraphs 1.3 and 1.4 of this Schedule Four shall be made so as to be received within fourteen days after Transmission and payments under paragraph 1.7 shall be made by the date they would be due under clause 8 of the Agreement.
2.Standalone Use of Extracts 2.1. The BBC shall be entitled to make available to the public on a commercial basis extracts from the Programme as single and separate products to members of the public via any platform (rather than for incorporation in another programme or product as set out in paragraph 3 of this Schedule Four).
2.2. Extracts of a maximum of four minutes duration may be made available in the form of programme clips, so-called commercial minisodes comprising a narrative sequence of clips by way of a preview to promote sales of the Programme, or audio clips consisting of an extract from the Programme soundtrack.
2.3 The extracts must be made available by service providers from within a BBC-branded area within the service provider’s platform and/or will always be in association with the BBC brand.
2.4 Each extract must be made available as an individual item and extracted unaltered from the original Programme (save for any editing of music or editing of a minisode).
2.5. The BBC shall pay the Owner a royalty of 0.525% of Gross Receipts, or 0.56% in the case of sale to a service provider over whom the BBC has a degree of control whether editorially or by way of shareholding as described in paragraph 6.2 of Schedule Two or such share as agreed in writing between parties.
3 Extract Sales Outside the BBC 3.1 Where extracts are to be sold by the BBC’s extract sales business (currently known as Motion Gallery) for incorporation in another programme or product such sales (with the exception of comedy extracts which require further written consent and agreement of terms with the Owner) will be paid a royalty equivalent to the Owner’s rate for World-wide Programme Sales as set out in Schedule Two of the Agreement.
FORMAT AGREEMENT SCHEDULE FIVE MISCELLANEOUS USES The BBC will have the right without further payment to make and use (and authorise the making and use of) copies of scripts or Programmes based on the Format for:
1 the private purposes of the BBC (including staff training) or for purposes necessary to give effect to this Agreement but without prejudice to the payment provisions hereof;
2 televising by the BBC of brief excerpts from the scripts in programmes relating specifically to the history of the BBC;
3 deposit, if the recording is considered of permanent interest, with the National Film Archive (being part of the British Film Institute) and with similar archive-holding bodies for preservation purposes and for private study by bona fide students;
4 showing at television and film festivals and award ceremonies and in accordance with the Agreement from time to time between the Performers’ Alliance and the British Film Institute;
5 publicity and promotional purposes in all media now known or hereafter devised or discovered and for the purpose of technical trials;
6 making dubbings of the recordings into foreign languages and/or to add foreign language sub-titles for the purposes of effecting sales;
7 making and broadcasting adaptations in the form of English language teletext subtitles or sign language (by any means whether now known or hereafter invented) for the purpose of assisting those viewers with hearing disabilities;
8 making broadcasting and exploiting programmes incorporating the script which contain descriptions of a performance of the script on a separate audio channel (by any means whether now known or hereafter invented) in the form of an audio description of the visual elements of the programmes incorporating the Script for the purpose of assisting those who are visually impaired;
9 in the case of Educational Drama Programmes, educational demonstrations or study purposes throughout the world or at educational festivals or competitions and including the right to use an adaptation or translation for the purposes of this sub-clause 9.
FORMAT AGREEMENT SCHEDULE SIX PUBLIC SERVICES
Television Services BBC One BBC Two BBC Three BBC Four CBBC CBeebies BBC News 24 BBC Parliament BBC Red Button BBC HD BBC Alba
Public Service Syndication The BBC Trust service licences for each of the services outlined above permit Public Service Syndication as described in the BBC Trust’s Statement of Policy on syndication of BBC on-demand content (August 2007)
FORMAT AGREEMENT SCHEDULE SEVEN COLLECTIVE MANAGEMENT
The following forms of use will be collectively managed on behalf of the Owner by WDP:
1. Public Service on-demand use of Programmes (including Online Premieres) and Programme extracts
2. BBC Red Button
3. BBC HD where the Programme is not simultaneously broadcast on a Primary Channel or a Secondary Channel
4. Aggregated website genre pages on BBC Online
Signed by or for and on behalf of the Owner…………………………………………………………………………………………………………………
Signedfor and on behalf of The British Broadcasting Corporation…………………………………………………………