Legal Issues: Multi-Platform Media and Emerging Technologies

By Mary Barroll (French)

“Multi-platform distribution” has become a new buzz phrase for traditional broadcasters and film producers and distributors. Traditional entertainment industry players understand that they must begin to inhabit the new emerging media platforms such as the Internet, wireless, cell phone and online and console gaming platforms or become obsolete. However, these new forms of distribution, or “multi-platform” productions are very challenging from a legal, business and regulatory point of view for a number of reasons.

Growing list of Distribution Channels

As all producers know, even existing distribution models for traditional forms of media such as television or film contemplate a variety of complex licensing and distribution agreements for the various formats such as broadcast licenses in specific territories, DVD sales, VOD licensing, educational distribution licenses and cinematic release in theatres. Coupling those traditional agreements with a dizzying array of other licensing arrangements for distribution of clips, segments or whole productions on a variety of new platforms such as cell phone, on line distribution via the internet, downloads for playback on portable devices, adaptation to game platforms, among other modes only adds to the onerous complexity of clearing rights, tracking and reporting usage or exhibition, and revenues earned, enforcing intellectual property rights and resolving disputes among parties to the agreements and ensuring none of the agreements conflict with each other.

Supporting Guild and Union Collective Agreements

Yet another challenge that multi-platform producers struggle with is when the type of project being produced necessitates using materials whose distribution and exploitation is governed by guild or union collective agreements that do not contemplate such use, or oblige the payment of minimum fees and/or residuals or royalties that may be too expensive for the average interactive production budget for which the revenue generating business models are still in nascent forms or the returns are low or unpredictable. Unfortunately, the result may be that producers of multi-platform projects simply avoid using the talents of highly skilled members of guilds or unions in favour of those that they can afford or are not prohibited by collective agreements from performing a variety of roles in a multi-platform production dependent upon the economical multitasking of its contributors.

Rights Clearances and Management

Many popular forms of multi-platform productions are based on content derived from users or “user-generated content”, which necessitate the drafting of complicated online agreements to obtain the required rights from the user to exhibit the content on its website specific to the contemplated present and future use of the user-generated content and govern the users’ use of the website and their behavior in respective of other users and third party content whether user-generated or otherwise. These agreements also function to clear copyright, trademarks, publicity, personality and privacy rights and to protect the producer and the website owner from liability arising from third party suits for defamation, infringement of intellectual property rights and prosecution under criminal law for obscenity, harassment and hate propaganda, among other offenses. Since many of these user-generated content productions target young people, it is also critical for the producer to ensure that the user who is intended to be bound to the terms of the online agreement has reached the age of majority in his/her jurisdiction and has the legal capacity to understand and enter into a legal agreement. This is a considerable challenge given the remote relationship with the user and the difficulty of proving identity. These legal considerations are not unique to user-generated content productions, as they are now ubiquitous in online registration or user agreements that allow the user to play an online game, subscribe to a service or otherwise consume or use the production. However, the very things that make user-generated content appealing, namely the interactivity, the multiplicity of sources and variety of inexpensive content and relatively uncontrolled access, the popularity among young users, to name just a few, are the same characteristics that exacerbate the risk, increase the need for ongoing monitoring of users and increase the complexity of the online agreements which must be used.

Aligning Legal Agreements Across Platforms

Finally, one of the brain-teasing challenges in multi-platform projects that is not often discussed is the difficulty in aligning the terms and conditions of legal agreements that are used in traditional business models with the legal agreements utilized in the various multi-platform extensions or productions based on the same underlying creative work. For example, broadcast and/or distribution licenses for a film or TV show will typically have as a fundamental condition very strong exclusivity provisions related to the protection of the territory or territories acquired. When distributing a film or TV production via the Internet that crosses international borders, or when distributing related content such as a game or online interactive extension, it will be necessary to consider geo-blocking access of users in different territorial regions to protect the exclusive rights acquired by broadcasters or exhibitors of the accompanying traditional media production in the relevant territory. Likewise, if the multi-platform extension includes the transmission of game or other content to the user via phone, email or text messaging, it will be necessary to consider and apply privacy laws and policies particular to the relevant territory for the legal collection and use of confidential identifiable information that allows such transmission.

Be Aware and Prepare

Given the wide variety of forms that multi-platform productions can take, particularly during these early stages in the developing business models and continually emerging new forms of technology, no one template can be relied upon as the definitive system of legal agreements. Each production must be analyzed with particular attention paid to its constituent parts in terms of types of productions, methods of dissemination, forms of media and distribution territories to arrive at a strategic approach to manage the legal and business issues that will arise in these new and exciting forms of entertainment and information. In all cases, it is advisable to consult with an experienced lawyer as early as possible to assist the producer in navigating the potholes before they grow into legal pitfalls.

  • By klashton, June 2, 2009 @ 8:58 am

    I’d like to rectify any impression that the above article may have given about at least one union’s terms re both digital distribution and original online content. Each union has different terms and conditions and they are evolving so please check with the relevant union when budgeting and planning.

    The Writers Guild of Canada treats digital distribution as another form of distribution of a television program. Revenues go into a pot with other standard distribution revenues and a royalty is paid (after deduction of the cost of the budget). If there are no revenues – no payment is required. Even if there are revenues it takes a while before there are sufficient revenues for a royalty to be payable.

    For original digital content script fees are fully negotiable. At no time are writers prohibited from performing more than one role. We just ask that the writing services be clearly identified and separately compensated in any contract.

    So you can see that there’s no reason to avoid using highly skilled professional writing talent. They are very affordable and quite good at what they do.

    Kelly Lynne Ashton
    Director of Policy
    Writers Guild of Canada

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