South Africa, and Cape Town in particular, has built an international reputation as a place to make film and television. Local crews, varied locations and favourable time zones attract foreign service productions, while local producers continue to develop their own series and features for broadcasters and streaming platforms.
The past two years have been difficult. No new approvals were granted under the Department of Trade, Industry and Competition (dtic) film and television production incentive from March 2024, leaving many productions waiting on claims. In August 2026, industry bodies and the dtic told Parliament they had agreed a three-month plan to restart adjudication, clear the backlog and revise the incentive guidelines, with roughly R2 billion allocated across this and the next two financial years. Separately, on 26 June 2026 the Constitutional Court ruled on the Copyright Amendment Bill and the Performers’ Protection Amendment Bill and sent them back to Parliament, leaving the proposed royalty-sharing provisions for authors and performers unresolved.
In this environment, sound production agreements matter more than ever. Funders, financiers, insurers and distributors all want to see that the producer owns what it is selling and that every key relationship is properly documented.
Who owns the film?
Under the Copyright Act 98 of 1978, the author of a cinematograph film is the person who undertook the arrangements for making it, usually the production company. But a film is built from many other works that each carry their own copyright: the screenplay, the underlying book or format, the music, artwork, photographs and set designs. Performers also have separate rights under the Performers’ Protection Act 11 of 1967.
The producer therefore needs a clear chain of title: written agreements showing that it has acquired, or licensed on sufficient terms, every right needed to make and exploit the film. An assignment of copyright must be in writing and signed by the person assigning it. Gaps in the chain of title are one of the most common reasons distribution deals and errors and omissions insurance are delayed.
The key agreements in a production
Most productions involve a set of interlocking contracts. The main ones are:
- Option and rights acquisition agreements for books, true stories, formats or existing scripts. These give the producer an exclusive period to develop the project, with a purchase price payable if the option is exercised.
- Writer agreements covering the drafts to be delivered, fees, credit and the assignment of copyright in the screenplay.
- Co-production agreements setting out each producer’s contribution, ownership of copyright, control of creative and financial decisions, territories and the split of revenue. Official treaty co-productions have additional requirements.
- Financing and investment agreements, including gap and bridging finance against incentives or pre-sales, and the security and recoupment order that goes with them.
- Director, cast and crew agreements covering fees, working conditions, credit, consent to recording and the assignment of rights.
- Service production agreements, where a local company provides production services for a foreign producer that owns the film.
- Location, music and clearance agreements for property access, licensed music, archive footage, artwork and brands visible on screen.
- Distribution and licence agreements with broadcasters, streaming platforms and sales agents, setting out territories, media, term, delivery requirements and minimum guarantees.
Issues that deserve careful attention
Commissioned works. The Copyright Act contains a default rule that the person who commissions and pays for certain works, including a cinematograph film, owns the copyright, unless the parties agree otherwise. Producers and commissioning broadcasters should not rely on the default. The agreement should state clearly who owns what.
Moral rights. Authors have the right to be credited and to object to distortions of their work that would prejudice their honour or reputation. Agreements should address credits and editing in a way that respects these rights while giving the producer the freedom it needs.
Performers’ consents and royalties. Performers must consent to the recording and exploitation of their performances. Cast agreements should contain clear, broad consents, buy-out or residual terms, and image rights for publicity. Given that the proposed royalty-sharing rules remain before Parliament, long-term agreements should be drafted with possible legislative change in mind.
Incentive compliance. If the production relies on the dtic incentive, the qualifying spend, local crew and other requirements must be reflected in budgets and contracts from the start, and the producer must keep records that will satisfy the claims process. Financiers will look closely at what happens if the incentive is delayed or reduced.
Labour and contractor status. Crew are usually engaged as independent contractors, but labelling alone does not decide the question. If the reality of the relationship is employment, labour law protections can apply. Children may only perform in productions in line with the Basic Conditions of Employment Act 75 of 1997 and the rules made under it, which require permission from the Department of Employment and Labour.
Classification and distribution. Films distributed in South Africa must comply with the Films and Publications Act 65 of 1996, including classification requirements.
Personal information. Casting databases, crew records and footage of identifiable people involve personal information under the Protection of Personal Information Act 4 of 2013.
A practical checklist for producers
- Secure the underlying rights in writing before development money is spent.
- Use written agreements with every writer, director, performer and key crew member, with clear assignments and consents.
- Keep a chain of title file that a distributor, financier or insurer can review quickly.
- Agree co-production and financing terms, including control, recoupment and security, before principal photography.
- Build incentive requirements into budgets and contracts, and plan for delays in payment.
- Clear music, archive material, locations and visible brands.
- Obtain film permits and location consents, including municipal permits for public spaces.
- Arrange production insurance and errors and omissions cover.
- Review distribution agreements for territory, media, term, delivery and reversion of rights.
How O’Reilly Law can help
We draft and negotiate option, writer, director, cast and crew agreements, co-production and service production agreements, financing documents and distribution and licence agreements. We review chain of title for financiers and distributors, advise on copyright and performers’ rights, and assist producers with disputes over rights, payment and credits.
Contact us to discuss the agreements for your next production.
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This article is general information and not legal advice. Correct as at November 2026.