We work with both production companies and creative teams. Our work ranges from a quick review of an agreement to make sure there are no howlers through to drafting all of the media agreement documentation for a production.
We are always happy to provide a scope and fee estimate so please do call us.
Reasons to work with us
- We have the depth of legal and commercial experience to review issues in context. For example, we deal with the buying and selling of media businesses, investment and finance for the arts, licence agreements and other commercial agreements.
- Enforcement and protection of technology and intellectual property is a key driver and we have the ideas on how to achieve this.
- We act for businesses of all sizes. We find clients who have worked with larger law firms in the past are attracted to us because they know they will be regarded as important and receive better value for money.
- Finally, but importantly, we get to the job done.
Main areas we cover
The focus is on how to make the deal as commercial as possible whilst retaining sensibility and proportionality – time is money. We have summarised below an overview on the issues we are most commonly called upon to help with.
- Media agreement frameworks;
- Joint ventures for media agreements;
- Risks protected; and
- Commercialising copyright.
Media agreement frameworks
We find that most media projects result in the creation of a joint venture company, e.g. a writer partners with a production company to produce a TV series. Both parties set out to profit. The joint venture is a pooling of resources under the media agreement.
Structuring the media agreement
There can be a long line of contracting parties involved in a media agreement for a production. For example:
- The media agreement is between the joint venture company and the broadcaster/publisher.
- The media agreement deals with delivery which requires the pooled resources of the parties to the joint venture.
- The parties to the joint venture are usually the production company and the creative team.
- The joint venture company usually has supporting agreements covering the supply of various necessities such as:
- licences for production;
- broadcasting agreements and re-seller rights; and
Dovetailing of the media agreement
Our skill is in checking that the agreements making up the media agreement dovetail.
The joint venture company used for production
The joint venture company issues shares to the production company and the creative team company. The share split depends on their commercial negotiations. The joint venture company requires bespoke articles of association and a shareholders’ agreement to reflect the commercial responsibilities and benefits. This is core business for us and we guide you on what you need to agree.
Under a joint venture the income received via the media agreement via royalties and or fees will be paid out according to the respective shareholdings after expenses. Accounts will be required to determine the trading position. Directors will need to vote in favour of payments or dividends according to the respective share rights and provisions set out in the articles and or shareholders’ agreement.
A key issue, that is often forgotten, is spin-off rights i.e. what if there is a sequel. Will the parties enter into similar terms for the sequel? We know the likely issues that will arise and factor in the desired outcome.
Risks protected as part of the overall media agreement
For many productions there are a vast number of agreements involved. We have picked out some of the more problematic areas we see people struggle with to highlight pitfalls. We are often used as a review service once negotiations are underway to check for cracks.
Media agreement financing
There are numerous ways to finance the media production. Due to difficulties in small operations raising finance, increasingly, finance will come from the broadcaster or publisher. Common terms we work through include:
- Pre-emption: Will the publisher or broadcaster have the right of first refusal to buy the rights once the work is complete?
- Exclusivity: Does the publisher or broadcaster enjoy exclusive use of the work?
- Further rights: Does the right of first refusal extend to further productions?
- Veto: producers often agree to consult the publisher or broadcaster on key decisions.
These days, such finance structures are common. Producers will want to:
- Retain the copyright to their works; then
- Licence the rights to the publisher or broadcaster.
There will be a balancing act.
Media agreements and endorsements
When a celebrity or sports personality endorses a media project, the project often reaches a larger audience, which boosts revenues.
Most celebrities or sports people restrict use by way of a licence agreement. When working with production companies who use the celebrity endorsement we look out for:
- Unauthorised use: The terms should include the celebrity or sports person’s express “consent” for the use of their name/image.
- Penalties: The position of damages payable if the production company is in breach will need addressing. The celebrity will push for a liquidated damages clause which entitles the celebrity to an immediate payment. The production company will want to see evidence of loss.
- Consent: Celebrities usually try to require their express consent for each marketing method. However, a list of “permitted uses” can reduce this requirement and leave the production company with more flexibility under its media agreements.
Bargaining power dictates terms. Nevertheless we know the arguments that improve your position.
Media agreements and image rights
The media agreements often need to deal with image rights. Image rights enable reproductions. The term “image rights” suggest rights are limited to images. However, this term now extends to:
- Voice likeness;
- Voice recognition; and
- Facial recognition.
The image right is often licensed separately and then fed into the media agreement as part of the deliverable.
Image rights license terms
The producers account to the image holder for the “receipts”. To limit the image holder’s entitlement, a narrow definition of “receipts” is important.
If the image rights agreement fails to cover all of the intended uses, then the production project is at risk. The risk is of an injunction to prevent further use of the image/name without express consent. The risk causes delay and assessment of a payment for damages arises.
Sponsorship is a means of financing the media agreement. These key issues are often unaddressed, until a dispute occurs. We foresee disputes to prevent wasted costs and management time.
Copyright cannot be registered but it is still an income generator. Unlike the position with other forms of intellectual property (such as trade marks) it is not possible to register your ownership of copyright in the UK. But, copyright is of value as the owner gains an exclusive right to use the copyright and receive fees directly or under a licence to use copyright.
The usual roads to commercialisation of copyright are:
- Licence the use of copyright; or
- Assign the full ownership of copyright.
Licence of copyright
We draft and review licence agreements to ensure that copyright ownership rests in the correct hands. Having licenced the copyright, issues of infringement do arise which we resolve. For example, it is not unknown for licensees to refuse to stop using the copyright after the licence has expired or overstep permitted usage.
Assignment of copyright
If you want to transfer copyright absolutely to a third party you need a deed of assignment rather than a licence. The chances are that you do not want the responsibility of being connected with the copyright post assignment. To avoid this risk you will need to include in the assignment an exclusion of your liability.