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Author: Anna Weeden

Behind the lens of April 2025: UK Film and TV insights

Posted on by Anna Weeden

We are pleased to share that we have launched the first edition of our UK film and TV newsletter.

This debut edition includes some brief updates on important changes affecting the industry, and some spotlight articles that delve deeper into M&A activity in the industry as well as the impact of the government’s new Employment Rights Bill.

If you would like to sign up for future editions, please get in touch.

HARBOTTLE HIGHLIGHTS

Broadcast Summit 2025

Partner Ed Lane and managing associate Clare McGarry attended the Broadcast Summit on 2 April.

Their key takeaways were as follows:

  • “Fewer, bigger, better” is still a popular phrase, and there was lots of chatter about consolidation within the indies market.
  • Alternative funding models are the thing, including brand-funded content (if you can access it!)
  • Despite the difficult climate, there was positivity in the air both in terms of commissioning and M&A activity improving.

Indielab TV Accelerator 2025

We continue our partnership with Indielab in 2025 and will be hosting the Indielab TV Accelerator throughout April, May and June. This three-month programme is designed to help individuals develop the skills and networks needed to take their indie to the next level across the evolving TV and content ecosystems. It also offers the chance to collaborate with new industry partners, and gain insights from experts in the field.

Bafta Elevate 2025/6

On Friday 28 March, we had our first session with the talented new BAFTA Elevate cohort. Partner Sarah Lazarides and managing associate Clare McGarry focused on how producers and directors should look to protect their IP and secure their position, particularly when entering into co-productions. In the coming months, more of our lawyers will provide tailored sessions designed to share essential industry knowledge and expertise.

INDUSTRY UPDATES

HETV: Hot off the press

A pretty punchy report from the House of Commons CMS Committee was released on 10 April which contains recommendations which, if implemented, have the potential to transform upend the industry. The stated aim: to protect and reshape the UK indies market.

Here are some highlights:

  1. Enhanced tax incentives for HETV to match the new independent film tax credit.
  2. Terms of trade for streamers, “akin to the PSB terms of trade”.
  3. Greater support for freelancers, including a commissioner for freelancers.
  4. A distribution tax relief and a reduction in VAT on cinema tickets, to support struggling cinema numbers.
  5. A controversial 5% levy on streamers’ UK subscriber revenue to rebalance the HETV market.
  6. Increased funding for the UK Global Screen Fund.
  7. Government should abandon its proposed data mining exception for AI training, plus a stronger framework for AI which should “consider the interests of copyright holders, creatives and audiences”.

Update on PACT/Equity negotiations

Pact and Equity are continuing to meet and progress discussions. In the meantime, interim fee increases have been approved across both the Cinema Films Agreement and TV Agreement for 2025.

New UK independent film tax credit now officially available

From 1 April 2025, the new UK Independent Film Tax Credit which forms part of the AVEC became officially available – it has a net rate of 39.75% (overall equating to 29.25%) and it applies to films with budgets up to £15m and which began principal photography on or after 1 April 2024.

Equity issued open letter to the industry on AI training

In February, Equity published an open letter to the industry on AI training. This was a call to arms to industry stakeholders stressing the need for an urgent conversation to ensure that any exploitation of rights-protected content in the context of AI is carried out with recognition of performers’ property rights and applicable data protection laws.

The letter provides some background on the current issues (specifically that most AI models being used have been trained on vast quantities of (often rights-protected) materials, which have been scraped from online sources without consent from or compensation for creators and performers) before going on to summarise its interpretation of the legal position on performers’ rights under the Copyright Designs and Patents Act and data protection rights under the GDPR. Whilst the legal analysis produced by the union is open to debate in certain areas, Equity has flagged in its letter that it considers the current activities of AI companies to constitute a breach of existing IP rights. Where performers’ rights are breached, Equity has said it will robustly defend members, including via the courts if necessary. It is worth noting that the government is running a consultation on whether to update IP laws to allow for the commercial data mining of protected works by AI companies, which would circumvent some of the issues raised by Equity in this letter. The government’s request for the public to feed into its consultation has now closed and we are eagerly awaiting the outcome.

Pact is seeking feedback from its members before planning to respond to Equity.

BBC published protocol for generative AI content

In January, the BBC established a new editorial guidance policy for generative AI in its content creation. The guidelines emphasise three core principles: (i) acting in the best interests of the public; (ii) prioritising talent and creatives; and (iii) being open and transparent with audiences about the use of technology.

The BBC has emphasised that, subject to certain exceptions (such as where AI is the subject of the content and its use is illustrative), generative AI must not be used to directly generate news content or factual journalism, as a key aim is to build audience trust and to prevent dissemination of biased, false or misleading information.

The BBC has experimented with the technology through various pilots which has led
to AI being used to generate subtitles and live text pages, and for translation
purposes.

UK introduced ESTA-style VISA

The government has introduced a new Electronic Travel Authorisation (ETA) scheme, which is a security measure for visa-exempt travel similar to the US ESTA. This may be relevant for overseas individuals travelling to the UK for a production. The ETA is aimed at strengthening border security and streamlining entry procedures for visitors.

As of 8 January 2025, citizens of 49 countries, including the United States, Canada, Australia and Japan, must obtain an ETA before travelling to the UK. European Union nationals will need an ETA starting from 2 April 2025.

Travellers can apply for an ETA through the UK ETA app or online. The application requires personal details, travel information and a valid passport. The decisions are usually made within three working days.

The ETA costs £10 and is valid for multiple entries to the UK over a two-year period or until the relevant individual’s passport expires, whichever is sooner.

It should be noted that the ETA is not a visa and does not grant the right to enter the UK; it merely authorises travel to the UK. Upon arrival, travellers will still need to meet the entry requirements set by UK Border Force officers. For the most current information and to apply for an ETA, please refer to the government’s guidance here.

High Court dismissed TV formats copyright infringement claim

In a recent case in the UK, the High Court considered the extent to which TV formats can be protected by copyright. Comedian Joshua Rinkoff created a comedy show “Shambles” which involved a live comedy night, combining short clips of stand-up comedy with behind-the-scenes narrative in the form of a sitcom. Rinkoff claimed that the Baby Cow Productions’ series “Live at the Moth Club” copied this format.

In considering whether a format can be protected as a dramatic work, the judge cited the fact that there were at least two conditions which must be met. First, there must be a number of clearly identified features which, taken together, distinguish the show from others of a similar type. Secondly, those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.

The High Court dismissed the claim for copyright infringement finding that: (a) there was no copyright in the series; and (b) even if there were, there was no infringement. The case highlights the challenges of claiming copyright protection for a format, which to date, has not been found to subsist in a TV format in this jurisdiction. It is a reminder of one of the fundamental principles of copyright law in England and Wales, in that it protects the expression of an idea, but not the idea itself, and the importance of clearly defining and documenting unique elements to establish protectable works.

UK Film and TV production bounces back (for some)

Film and high-end TV production in the UK is officially bouncing back from its slowdown in 2023, felt during and immediately following the Hollywood writers’ and actors’ strikes. According to the British Film Institute, which compiles the official data, the total spend on film and TV production last year (based on the year in which principal photography started) reached £5.6 billion ($6.9 billion), which represents a 31% increase from 2023 when £4.23 billion ($5.37 billion) was spent.

Wicked was the highest-grossing release in the UK in 2024, with box office sales of £59.6 million. 65% of total UK production spend on film was accounted for by productions from the five major U.S. studios and the three major US streaming platforms (Netflix, Apple and Amazon), also representing a 49% increase in spend in 2024 versus 2023. A few of the films which were shot by these studios and streamers in the UK last year include The Running Man, Wake Up Dead Man: A Knives Out Mystery, How to Train Your Dragon, Project Hail Mary, and Jurassic World Rebirth.

But whilst the studio landscape is coming back strong, the picture is mixed for Indies. Pact released a major report into the state and future of the indies TV sector, outlining shrinking production company numbers, a loss of talent and threats to “niche” genres such as specialist factual – times are tough and much of the industry is still feeling it.

IN THE SPOTLIGHT

M&A: here to stay?

Written by partner Ed Lane.

M&A activity had, in the past 12 months or so, been confined to the bulge bracket – witness the mega merger between Skydance Media and Paramount and the sale by Warner Bros. Discovery and Liberty Global of All3Media to Redbird IMI. Deals at the lower end of the market have been harder to come by – until recently, that is. In the past few months, we’ve seen Mediawan take a majority stake in Slow Horses and indie See-Saw and ITV Studios pick up majority stakes in indies Eagle Eye and Moonage Pictures.

We have also seen a raft of so-called ‘start-up deals’, where investors back talent in a new venture, including BBC Studios’ backing of Samphire Films.

At a more macro level, further consolidation amongst the larger media players and streamers is expected as consumers tire of a deluge of content – Disney recently announced it was merging Hulu + Live TV with competitor Fubo TV. Heavyweights such as Comcast/NBCUniversal and Warner Bros. Discovery are expected to separate out and look for options in relation to their cable network division.

That being said, the macro-economic conditions – primarily interest rates – are not looking as auspicious as they were at the start of the year. Interest rates had been expected to come down reasonably quickly as the global economy got back to business after the Covid-19 pandemic and related supply shock, and prior to this, they had been on a steady downward trend. However, President Trump’s economic policies, in particular the imposition of wide-ranging tariffs, may halt that return to normality.

Employment rights: A once in a generation shift

The Employment Rights Bill, described by the government as “the biggest upgrade to workers’ rights in a generation”, has been making progress through parliament over the last few months. Senior associate Lucy Burrows delves into the latest round of amendments to the Bill and how they provided further insight into what lies ahead for the film and TV industry.

Read the full article here.

Changes to consumer laws and B2C engagement take effect

Posted on by Anna Weeden

The Digital Markets Competition and Consumer Act 2024 (DMCCA) came into force on 1 January 2025, and is now in effect, bringing with it significant changes to consumer law since the Consumer Rights Act 2015.

Snapshot of the DMCCA

Outright ban of “unfair commercial practices”. The DMCCA overhauls existing consumer protections under the Consumer Protection from Unfair Trading Regulations and introduces several new provisions aimed at enhancing consumer rights and processes. This includes the outright banning of certain unfair commercial practices such as drip pricing and those in relation to fake or concealed incentivised consumer reviews.

Changes to subscription rules. The DMCCA also tightens the rules around B2C subscription contracts, adding new requirements for subscription services to comply with, however these changes are not expected to come into force until Spring 2026.

Strengthens the role of the CMA. The CMA will now be able to directly investigate suspected infringements and issue enforcement notices without the need for lengthy court proceedings. The DMCCA brings with it the ability for the CMA to impose penalties of up to 10% of global turnover. This is a significant shift from the previous regime which largely required court involvement for enforcement actions.

Phased implementation

The first set of changes relating to consumer law are now in effect, and the CMA has published guidance on unfair commercial practices that are banned by the DMCCA and subject to enforcement action. It is worth noting that many of these “unfair commercial practices” are not new in principle, but the main difference now is that the CMA has the ability to investigate and impose penalties for breaches of these rules. The CMA has also published guidance on how it will enforce the DMCCA. For the first 12 months, the CMA will target particularly harmful behaviours to consumers such as aggressive sales practices that prey on consumers in vulnerable positions, fees that are hidden until late in the buying process, information being given to consumers that is objectively false, unfair and unbalanced contract terms and fake reviews.

What can we expect next?

The CMA will likely start the first wave of its investigation and enforcement, focusing on the “most egregious” breaches of the DMCCA. The CMA has indicated that it will be consulting further on drip pricing this year, including in relation to fixed-term period contracts. We expect this further guidance in relation to drip pricing to be published this autumn. Look out for our further articles on the impacts of the DMCCA on influencer marketing, prize draws and competitions and subscription services.

New statutory right to neonatal care leave and pay: key takeaways

Posted on by Anna Weeden

The new statutory right to neonatal care leave came into effect on 6 April 2025. This allows parents to have additional time off to be with a baby who is receiving neonatal care.

Under the Neonatal Care (Leave and Pay) Act 2023, eligible parents can take time off work to be with a baby who is receiving neonatal care. This new right introduces a leave and pay entitlement for qualifying working parents, with the aim of providing better support to those families and an element of income protection.

Neonatal care leave

Neonatal care leave is a day one right for employees; it does not apply to workers or self-employed contractors. It also only applies to parents of babies born on or after 6 April 2025.

Qualifying parents (including fathers, non-birthing, adoptive and surrogate parents) who have a baby admitted to neonatal care up to the age of 28 days may be eligible for neonatal care leave after their baby has been receiving care for seven days or more. 

The entitlement is to one week’s leave for each week a baby has neonatal care, up to a maximum of 12 weeks. Neonatal care leave must be taken as seven consecutive days, so parents have to take a minimum of one week.

Neonatal care leave is additional to other types of family leave, and each parent has their own leave entitlement. This means that fathers and non-birthing parents now have a specific right to leave, allowing them to spend more time with their baby receiving neonatal care. Where parents do not meet eligibility criteria, they may be able to rely on other forms of statutory leave, such as parental leave or time off for dependents.

Both neonatal leave and pay (see below) can be taken in two tiers; Tier 1 is while a baby is still receiving care plus a week after, and Tier 2 is within 68 weeks of the birth. Neonatal leave can therefore be accrued and taken at a later date. The notice an employee must give their employer depends on whether they are taking Tier 1 or Tier 2 leave.

The leave is not limited to the time when a baby is in a neonatal hospital unit. It can also apply to certain neonatal care after leaving hospital or to palliative/end of life care.

Neonatal care pay

Additionally, eligible parents may be entitled to up to 12 weeks of neonatal care pay if they have 26 weeks of continuous service with their employer and meet the minimum National Insurance earnings threshold (for April 2025-26, this is an average of £125 per week gross).

The current statutory rate for neonatal care pay is £187.18, although of course it is open to employers to offer an enhanced pay entitlement under their own workplace policies. 

Next steps

Employers should consider whether to introduce a specific policy on neonatal care leave and pay, or how their existing policies may need updating. They may also wish to consider communicating the new entitlement to managers or employees more generally.

For further information, advice on a specific situation or to update your own workplace policies, please contact our employment team.

The future of UK Employment law in the film and TV industry: 2025 and beyond

Posted on by Anna Weeden

The Employment Rights Bill, described by the government as “the biggest upgrade to workers’ rights in a generation”, has been making progress through Parliament over the last few months. The latest round of amendments to the Bill has provided further insight into what lies ahead.

A headline change is the day one right not to be unfairly dismissed. This is expected to be subject to an initial period of employment, when a lighter touch procedure for dismissal can be used. The details of the process and the period haven’t been confirmed, but nine months has been suggested. For companies who hire in crew and talent for specific productions or projects, this could mean significant change is needed in practices for recruitment and terminations.

The Bill outlines further updates to workplace harassment laws. Employers are already under a positive duty to take “reasonable steps” to prevent sexual harassment and must implement measures to assess and mitigate the risk of sexual harassment. The Bill strengthens the law to require employers to take “all reasonable steps” ( “all” being the key word) and introduces liability for third party harassment. Many production companies are already thinking ahead to this duty, with risk assessments that extend to third party harassment, but this will be one to revisit as the detail emerges. What is clear is that solely relying on the roll out of ED&I training is no longer enough.

Other changes of significance include: the introduction of day one rights in respect of statutory sick pay, paternity leave and parental leave; a right to bereavement leave; and enhanced maternity protections. Dismissals of employees who are pregnant, on maternity leave or during a six month return to work period, would be prohibited, other than in specific circumstances. New flexible working rights are also proposed, meaning that an employer can only refuse flexibility requests where it has a “reasonable” basis to do so. As expected, these changes move the law towards stronger rights and protections, and work life balance, for working people.

Far reaching changes are also expected in respect of restrictions on zero-hours contracts (including the right to request guaranteed hours and reasonable notice of work schedules) and the practice of ‘fire and rehire’. For some sectors these will mean huge upheaval; for those in film and TV it will depend on their current use of such practices. The Bill also bolsters collective rights, including introducing changes to the trade union recognition framework and the ability of unions to take industrial action, developments which could be very significant for the media industry.

And what of the anticipated single status of worker? The government originally proposed to remove the (often confusing) distinction between ‘employees’ and ‘workers’, which would mean that if someone was not a genuinely self-employed freelancer, they must be an employee. Again, this would be particularly relevant to production companies, who may be in the practice of engaging crew as workers. For now, this change does not appear in the Bill, but further consultation is expected in 2025.

So, what next? Most legal changes won’t come into force until 2026, but it’s never too early to start preparing and thinking especially about recruitment and dismissal processes, and how this might need to change in your organisation. In the meantime, we’ll watch this space as the Bill moves through Parliament and the devil in the detail comes into sharper focus, with further updates to come.

Agree to disagree: what the Higgs v Farmor’s School judgment could mean for employers and employees

Posted on by Anna Weeden

The Court of Appeal gave judgment last week in another of what has been a series of cases dealing with conflicts between beliefs expressed by employees, and the categories of protected characteristics under the Equality Act 2010. 

In this case, an employee of a school, Mrs Higgs, had expressed concerns  via her private social media about teaching in schools relating to same-sex marriage and gender identity. Another parent saw the comments, which had been posted in a manner which did not identify the school and used the employee’s maiden name (which was different from the name she used at school), and had complained to the school about the views expressed, which were described as offensive. Following an investigation and disciplinary process, the employee was dismissed and brought, amongst other claims, a claim that she had been subjected to detriment because of her protected beliefs.

The case takes a robust approach, supporting the freedom of employees to express and manifest protected beliefs, though it recognises that some limitation is likely to be appropriate in the manner of expression of belief and related conduct.

Where does all of this leave employers in practice? They will be keen to ensure that they are complying with their Equality Act obligations in providing a safe workplace for all employees. However, they will surely also wish to avoid being drawn into personal disputes between employees arising out of conflicting views on contentious topics, or getting caught up in social media storms as part of wider campaigns on contentious topics, whether covered by the Equality Act or not.

Fundamentally,  it is useful to recognise that there is a level of conflict built into the Equality Act. Protected characteristics include gender re-assignment and sexual orientation, but protection of religion and belief  includes protection of a belief that sex is immutable and cannot be changed. Most of the major world religions do not recognise same sex marriage as the equivalent of marriage between a man and a woman. The Courts have also made clear that it is an error on the part of an employer to engage in stereotypes, which includes making an assumption about an individual’s personal beliefs by reference to their race or religion. Not all individuals who adhere to a religion believe in every rule or dogma of that religion, and religious beliefs are not always aligned with ethnic or national origin. Non-belief is protected in the same way as belief. Employers can therefore find themselves managing staff who hold deeply opposing views, each of which gives rise to a right to be protected from detriment because of their belief or other protected characteristics.

Employers will clearly  not want to find themselves refereeing disputes between employees or being pressured to take sides where conflict arises. There is a clear risk to employers of being on the receiving end of Employment Tribunal claims if they are seen to punish an individual because of a protected characteristic. Such cases will often be very popular in the media and can therefore do reputational harm as well as cost a lot of time and money.

The Court of Appeal judgment also expressly deals with the impact of rights to free speech under the European Convention on Human Rights in addition to the Equality Act rights. Under the Human Rights Act 1998, UK courts are obliged to interpret legislation in line with the European Convention as far as  is reasonably possible, so that the provisions of the convention are effectively indirectly introduced into UK statutory employment provisions. Such rights go beyond those relating to protected characteristics and will therefore include rights to speak about political issues of the day.

The right to free speech is not absolute. It is, however,  wide-ranging, and  in the Higgs v Farmor case, the Court of Appeal expressly cited the principle that the freedom to speak only inoffensively  is a freedom not worth having. There is no right to be protected from hearing things with which you disagree and employees could usefully be reminded of this.

Some limits on freedom of speech are permitted, to the extent that such speech would infringe on the rights and liberties of others, but no one has a right not to hear an opposing or, to them, disagreeable view. 

It will not be appropriate, therefore, for employers simply to seek to forbid employees from expressing views in the workplace or sharing the fact of any protected characteristic they may hold. In the Higgs v Farmor’s case, one of Mrs Higgs’ beliefs was that as a Christian she was required to bear witness to her beliefs, which would involve speaking about them. This is itself a protected belief, although the protection afforded to manifestation of belief does not extend to or permit continued proselytising or hectoring of those with different views.  Clear guidance that employees should not persist in conversations with others who  have made it known that they disagree, or are simply not interested, should be acceptable.

It is therefore useful for employers to now give thought to providing clear guidance to employees, whether in an overarching stand-alone policy detailing an expectation of respectful disagreement in relation to engagement on contentious topics, both in the workplace and beyond, or by adding to individual existing policies. The guidance can remind employees that they should not conduct themselves in a manner likely to amount to bullying or harassment, or to create a degrading or hostile environment for any employee. That does not preclude them from being open about their protected characteristics or beliefs, but they must not do so in a hostile or intimidating fashion. Employers can also helpfully remind staff that the workplace is not the right forum for discussion of contentious topics where feelings run high and disagreement is evident. 

Such guidance can remind staff that whilst they may enjoy the protections under the Equality Act, in relation to protection of belief non-believers are protected in the same way as believers, and so are free to make known their non- belief.  No employee is entitled to impose their views on a colleague or to subject a colleague to detriment on the basis of what they do or do not believe, and an Employer is entitled to say that disputes on  such issues are ultimately not for the workplace. 

Reminding employees that where differences arise, they should “agree to disagree”, or seek to disagree agreeably and respectfully, will be useful guidance both generally and as part of anti-harassment and bullying and equality polices published by employers. Such an approach can manage expectations and also provide employers with a  basis on which to intervene, if necessary, where conflict has arisen, without being seen to take sides.

Employers will already typically include provisions in social media policies, reminding employees not to identify their employer in personal posts and to avoid any suggestion that personal views expressed in any way represent the views of the employer.  A reminder that employees are entitled to have social media accounts and to post on subjects of interest, and that the employer does not take responsibility for such material, will also be helpful. This might usefully also remind employees that employers will not generally seek to intervene in disputes relating to such material.

We can hope that the pragmatic approach taken by the Court of Appeal might serve, in time, to discourage any practice of seeking to pressure employers to disassociate themselves from employees who have expressed views which are not palatable to all, provided that those views are not expressed in a manner which goes beyond the limits of freedom of speech.