Last edition of the Festival de la Fiction in La Rochelle was an opportunity for the CNC to control the data pertaining to the production and export of French series.

Each year new series are produced in France, whether they are original creations or adaptations. In the first semester of 2021, we can highlight the significant success of « Haut potentiel intellectuel » (TF1) or « En thérapie » (Arte).

The strong appetite of the public for series appears very clearly in the situation analysis of the production of audiovisual fiction and over the past 20 years the share of fiction in 26 and 52 minutes format is increasingly important.

French series are also very successful internationally and circulate worldwide. For example, « Le bureau des légendes » is available in 112 territories, « 10 pour cent » is broadcasted on Netflix or « Les petits meurtres d’Agatha Christie » has been sold in more than 80 territories.

In view of this very positive assessment, it seems appropriate to consider the challenges of series development while taking into account the specific features of this format.

• Development of series

Development is a crucial period, during which it is essential for a producer to secure the rights to the burgeoning project of the series.

In this context, it is necessary to take into account the specificities of this format that leads to initiate the writing of preparatory works in the form of a pre-bible and presentations documents in order to be able to pitch the project to possible broadcasters and partners.

These different works can then be subject of option contracts or transfer of rights, depending on whether or not the author has already established sufficiently advanced writing work.

In both situations, care must be taken to detail the missions of the authors as widely as possible, by providing for the work to be delivered and any rewritings and adaptations of such literary works, in order to satisfy the producer and any broadcasters. It is important to provide for the possibility of organizing the following steps of the project: adding of co-authors, writing supervision, directing, writing of the rest of the series, etc. ensuring that the agreement of the future broadcaster will prevails.

Producer must consider the Author’s availability when choosing the duration of the option and also the need or not to add the time necessary to search for a co-author, which may impact the moment when the elements will be ready to be communicated to the broadcasters.

Regarding the scope of the assignment of rights, it is important for the producer to organize a wide scope and to provide in particular the possibility of producing all subsequent seasons but also any adaptations or remakes of the series. Moreover, in view of the evolution of the market, Producer must be able to exploit the series on television or via a platform.

• Applicable agreements and protocols

Many agreements and protocols are applicable to the production of audiovisual series, some of which deserve to be highlighted hereof.

With the exception of series with episodes under 5 minutes long, agreements must comply with the provisions of the memorandum of understanding of December 20, 2012 pertaining to contractual practices between screenwriters and producers of fiction. This implies in particular that the author’s initial remuneration must comprise at least 30% of bonus for unpublished work (not recoverable by the producer).

The definition of « Producer’s Share of Net Receipts » is also regulated by the agreement concluded on July 6, 2017 between authors and producers of audiovisual works relating to the transparency of author-producer relations and the remuneration of authors. In particular, it is understood that the producer ceases to reimburse himself for the on account payment as soon as the cost of the audiovisual work is amortized and then pays the author its proportional remuneration.

In addition, during the last edition of the La Rochelle Festival, the producers’ unions and the organizations of screenwriters and directors entered an agreement implementing mandatory standard clauses to benefit from CNC’s support in application of article L. .311-5 of the French Code du Cinéma et de l’image animée.

This protocol details a certain number of clauses to be included in the contracts of the authors of audiovisual works, in particular with regard to respect for the moral rights of authors (authorship, establishment of the final version etc.) but also with regard to their remuneration.

Implementation of these clauses is essential as otherwise, no support from CNC may be received for the projects involved.

Finally, we can mention the Charter for the development of fiction signed between France Télévisions, producers’ and scriptwriters’ unions which organize the development phase between the producers, authors and broadcasters: oral pitch, shortening of the writing stages, additional remuneration for the authors (30% bonus) for writing the 1st episode in return for a priority commitment and shortened delivery schedules, etc.

• Adapted series

It is frequent for series to be adaptations of pre-existing works (books, comics or foreign series). Thus, out of 14 French series produced in the first semester of 2021, 8 are adaptations of foreign formats: « En thérapie », « Plan B », « Luther » etc.

The case may be, an option agreement is first signed on the acquisition of the adaptation rights of the pre-existing work, then a definitive transfer contract, which can be integrated. in the option agreement, in order to provide more legal certainty for the parties.

The assignment of rights will also have, when possible, any derivative rights, being understood that in the case of a pre-existing literary work, new literary edition will have to be discussed.

It is necessary to provide for the delivery of any element required to proceed with the adaptation (translation, scenario, etc.) and to take into account the time required for the development of the series and thus provide for a sufficiently long and renewable option.

It is necessary to consider the involvement of the author of the pre-existing work in the series’ development. Some authors will demand the right to obtain the script, the choice of the director, or even the casting or other artistic or technical elements of the series; which will be subject to negotiations. These provisions are binding, and a fair balance must be found allowing the proper development of the project, knowing that a minimum freedom will be necessary to allow adaptation of the preexisting work.  

• Contracts with broadcasters and platforms

 Although in 2020, broadcasters’ contribution in the financing of fiction programs has decreased, probably due to the COVI 19 crisis, their share in the financing of fictions is up 62.1% and constitutes the largest share of and such contribution is essential in the development of a series.

Likewise, SVOD platforms are an essential interlocutor for producers. CNC’s SVOD observatory, published in 2020, established that in 2020 € 86 million had been invested in original French creations and foresaw that their share will be up to 231 million for 2021. Moreover, between 2016 and 2021, these contributions benefited to series up to 56%.

As platforms’ funding obligation was strengthened in 2021, significant contributions from them are expected in the years to come.

In this context, the producer of a series must ensure the best possible organization of his relationship with the future broadcaster of the series, whether it is a traditional channel or a platform.

This relationship can take different forms and in particular that of a development agreement, pre-purchase of broadcasting rights or co-production agreement or even the sale of the format.

It can be pointe out that in their relationship with SVOD platforms, producers benefit from the support of the public authorities in order to strengthen their position, to oppose to the Anglo-Saxon “buy out” practices. Indeed the provisions of the SMAD decree enabled producers to establish their position as executive producer of programs.

Each situation calls for the drafting and negotiation of a customized contract, taking into account the specifics of the project and its state of development.

Within the framework of development and co-production agreements, it is essential for the producer to ensure that he maintains a certain weight in the decision-making process and management of the development and production of the project. The producer must then ensure in particular that major decision can be discussed, and that the commitments correspond to the budget of the series, that his remuneration is preserved, that the cash flow is adapted, and that he will remain in charge of relationships with the authors and with the production of the series.

With regard to pre-purchase agreements, the producer must ensure that the broadcaster’s editorial control conditions are reasonable and that the schedule and delivery are consistent with the project.

Finally, in agreements pertaining to the sale of formats, producer needs to organize the transfer of all or part of the rights to the series and producer must notably establish a geographical limit and ensure a right of control over the series produced, as well as a remuneration proportional to the revenues to come from the exploitation of the format.

To draft and negotiate agreements suitable for the development of a series between the producers, the authors or the broadcasters, it is then judicious to resort to a specialized lawyer in order to study the characteristics of the project to best meet the needs of the parties involved.