ABA-IPL 29 th Intellectual Property Law Conference April 2-4, 2014 Characters And The Law:...
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Transcript of ABA-IPL 29 th Intellectual Property Law Conference April 2-4, 2014 Characters And The Law:...
ABA-IPL 29th Intellectual Property Law Conference April 2-4, 2014
Characters And The Law:
TRANSACTIONAL ISSUES AND STRATEGIES
By Cydney A. Tune
Pillsbury Winthrop Shaw Pittman LLP
705140084
© 2014 Cydney A. Tune. All Rights Reserved.
1 |
In the “converged” world, characters move in many directions and onto a number of media platforms – further increasing the complexity
Possible sources include:
Books; comics; TV; motion pictures; games; advertisements; etc.
Possible media include:
Traditional media: such as TV, film, books, home video, console games
New media: such as social media, online streaming or downloading
2 |
There can be many contributors and the rights of each must be addressed.
• The artist, writer or other creator of the character• The producers of projects that will incorporate the
characters• Distributors• Creators of advertising and
promotions with the characters• Merchandise creators, producers
and distributors• Creators of derivative versions• Technology providers
A web of contracts is involved
3 |
KEY CONTRACT ISSUES AND TERMS
Carefully identify all of the content to be created or licensed.
What does the work entail? What character is involved? Are there multiple characters?
Be very specific
KEY CONTRACT ISSUES AND TERMS
4 |
RIGHTS OWNERSHIP
• Owner of character(s) needs to preserve rights
• Producer of project will want to own rightsin the Project
• Who will own newly-created characters?
• Who will own other newly-createdcontent?
• Who will own rights in merchandise that is created?
• Who will own rights in any spin offs?
• Specify credits
5 |
GRANT OF RIGHTS
Character owners should carefully consider all potential exploitations and develop a strategy for each
Best done at the outset
Consider potential target audiences and:
• distribution channels
• territories
• best platforms
• protection of “image”
6 |
GRANT OF RIGHTS
• Carefully delineate the limited rights being granted
• Carefully reserve all other rights to the owner
Producers typically seek: all forms of TV, home video interactive multimedia, advertising and promotions, soundtrack rights, merchandising and commercial tie-ins
Each party will want the right to use new characters owned by the other
7 |
TERM, TERMINATION AND REVERSION OF RIGHTS
What should the term be?
When can the agreement be terminated?
A lot of financial and other resourcesinvested by Licensee
vs.
Need of Licensor to protect its property and avoid wasting opportunities
When should rights revert?
What if Licensee is not exploiting continuously or tapping full potential?
8 |
9 |
CLEARANCES, REPRESENTATIONS AND WARRANTIES
Each party should “stand up for” their contributions
• Representations and warranties must be carefully crafted
• Each should indemnify the other for breach of representations and warranties and for material breach of any obligations
Clearances must be done carefully and diligently
• Responsibility should be clearly allocated
• Ownership and licenses are often complex but need to be sorted out
Owner(s) need to protect and enhance character’s image
• Include detailed approval processes; at various stages
• Include Quality Control provisions
• Avoid tarnishment by association
Address rights enforcement –specify obligations, costs and processes
10 |
APPROVALS AND CONTROL
11 |
FINANCIAL TERMS
Always hotly negotiated
• Usually royalty-based, but can be fixed fee (e.g., artwork).
• Amounts vary depending on type of use and leverage of the parties.
• Advances and recoupment insome circumstances.
• Be sure to define key terms,such as “net revenue.”
Include a well-crafted audit provision
ABA-IPL 29th Intellectual Property Law Conference April 2-4, 2014
Good luck!
Cydney A. Tune
Pillsbury Winthrop Shaw Pittman LLP