Producing an audiovisual work is a complex process involving many people and can lead to numerous conflicts. However, Spanish law provides that it is up to the director and producer to decide on how it is ultimately released for public viewing.

In the audiovisual industry, it is known as final cut privilege, i.e. the right to decide on the final version of an audiovisual work (for example a film or series). Exercising this right can lead to a variety of problems between the various individuals involved in producing the work, since their creative interests (for example, of the actors or directors) are often at odds with the producers’ business interests.

It is no secret that battles were fought between the directors and producers when making the final version of the films Blade Runner (Ridley Scott, 1982) and Brazil (Terry Gilliam, 1985). In these cases, the producers chose to remove several scenes to speed up the plot and make it more agreeable to audiences. This did not prevent, years later, the well-known “director’s cuts”, in which scenes that had initially been eliminated saw the light of day as part of those movies.

In the anglophone audiovisual industries, final cut privilege is usually set out in an agreement. This gives established or popular directors stronger bargaining power and enables them to decide on the final version of their works that will be released to audiences. At times even the leading actors have this prerogative. However, it is usually producers who get to decide on the final version of a work.

What is the practice in the Spanish audiovisual industry? Article 92.1 of the Copyright Law (LPI) provides that it is the director — as co-author of the audiovisual work ex article 87 LPI—, and the producer, who have the final say on an audiovisual work, all in accordance with the agreement reached between both parties.

Determining the final shape and form of a work is particularly important, because from the moment it is created it is afforded intellectual property rights (economic and moral rights).

The Spanish courts have hardly addressed this issue. The most important decision was the order by Madrid Provincial Appellate Court no 3/2017, of January 13, 2017, [ECLI:ES:APM:2017:225A] which confirmed the dismissal of a request for an injunction by the director of a documentary against her producer.

The decision confirmed that it is up to both the director and the producer to decide on the final version of an audiovisual work. The justification for this shared responsibility lies in the fact that it is the producer who provides the economic means to produce the work and, as a result, is able to influence how it is made so that «it is suitable for commercial exploitation». From this it transpires that it is the terms of the agreement between the parties that prevail.

However, what happens if no specific clauses on the final cut have been included in the agreement? In the eyes of the Madrid Provincial Appeal Court, it is necessary to turn to the courts for them to find a solution to break the deadlock.

Nonetheless, it should also be borne in mind that according to article 91 of the LPI, the producer may exploit the parts of the audiovisual work that have already been made if the author (the director for example) does not complete, due to an unjustified refusal to do so, or reason of force majeure, his/her creative contribution.

In light of the above, when producing an audiovisual work, the agreement between the producer and director must clearly determine how the final cut will be made. This is essential in order to avoid potential disputes that may jeopardize the commercial exploitation of an audiovisual work, the production of which is usually an economically high-risk venture.

Ricardo López Alzaga

Intellectual Property Department