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THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties
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THE PIXEL LAB 2010: Gregor Pryor of Reed Smith - Digital Rights Issues for Cross-Media Properties

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  • 1. Digital rights issues for cross-media properties Prepared for Power to the Pixel Lab 2010 Gregor Pryor Partner Global Digital Media Team
  • 2. Executive summary
    • Digital production and distribution is a core business driver for film industry moving forward
    • Latest production focus is on international cross-media property development
    • Clear divisional distribution and exploitation strategy attracts financiers
    • Beware digital seduction…
  • 3. About Reed Smith LLP
    • Top 15 law firm in the world, over 1,800 lawyers
    • Dedicated Media and Technology practice consisting of over 80 lawyers globally
    • Ranked Tier 1 in Chambers 2009 for Film and Television Finance and Production and Digital Media
    • ‘ Wired 100’ most influential people in digital media
    • Disproportionate number of lawyers who were previously in-house counsel
  • 4.
    • What’s the difference between a lawyer and a trampoline?
  • 5.
    • You take off your shoes before jumping on a trampoline…
  • 6. Cross-media realities
    • Social networking is stimulating ‘referral’ behaviour and promotional brand-building
    • Content is syndicated and cross-pollinated across platforms and destinations for access on multiple devices
    • Cloud technology enables “Martini” model
    • But what does cross-platform really mean…?
  • 7. Cross-media realities
    • Let’s turn to the music industry for an example…
  • 8. Cross-media realities
    • ‘ Pump it Up’ DVD series
    • 335,000 single music sales
    • “ The first time it came on, I nearly fell off my rowing machine…”
    • Third DVD series alone sold over 200,000
    • Raises important questions from a legal/rights perspective, starting in pre-production
  • 9. Cross-media realities
    • What about film industry examples?
  • 10. Is cross-media really new?
    • www.blairwitch.com
    • Developed in late ’80s, with a final production budget of $25,000 and a marketing budget of $1.2m – went on to gross $250m
    • 3 rd most successful independent film of all time
    • Spawned merchandise, games, books, music, sequels
    • What would the marketing strategy be today?
  • 11. Overview
    • Pre-production onwards: cross-media strategies and due diligence
    • Exploitation and distribution: ‘the continuation approach’
    • Legal hygiene
    • Q&A/Discussion (also known as legal therapy or “free advice”)
  • 12. Cross-media strategies
    • Planning
    • Research consumption patterns in your demographic, build business case
    • Seed your development – see Blair Witch
    • Identify partners
    • Prepare intellectual property portfolio and contractual framework
  • 13. Cross-media strategies
    • Pre-production
    • Create a destination and syndication partners
    • Leverage social media
    • Seed your database
    • Selling and business development based on development works
    • Multiple production streams
  • 14. Cross-media strategies
    • Production and distribution
    • Maintain continuity throughout production
    • Tightly defined release schedule across different platforms underpinned by affiliate/partner licences
    • Watch for tripwires – exclusivity, MFNs, co-ownership and territorial copyrights
    • Recoupment and profit
  • 15. Cross-media strategies
    • Intellectual properties and laws
    • Copyright in all contributory sources
    • Performers’ rights
    • Moral rights
    • Trade marks
    • Database rights
    • ‘ Image rights’
    • Personal data
    • Privacy
    • Domains
    • Social distribution networks
  • 16. Cross-media strategies
    • Good or bad?
  • 17. Cross-platform strategies
    • Should cross-platform producers embrace P2P technologies as a means of seeding or distribution?
  • 18. Cross-platform strategies
      • Copyright remains the lynchpin – ignore people who tell you otherwise
      • © is a negative right – the right to restrict certain acts of exploitation
      • Clear contributions without holdback or restrictions to ensure no limitation on cross-media products
      • Be wary of ‘copyright sharing’, open source models
      • Copyright is the core asset and is mostly platform neutral
  • 19. Cross-platform strategies
    • Copyright exists in the following types of work:
      • Literary works – books, formats, computer programs
      • Dramatic work – scripts, plays, mimes
      • Musical work – musical compositions
      • Artistic work – set designs, sequences, computer graphics
      • Sound recording – synchronised sound recordings
      • Film – fixation of sounds and images, soundtracks
      • Broadcast – transmission of sounds and/or images
      • Qualifying performance (dramatic, musical, reading, variety)
  • 20. Exploitation and distribution
    • Key acts restricted by copyright/rights in performances:
      • Reproduction right
      • Communication to the public right - includes “broadcasting” (but not on the Internet) and making available
      • Distribution right - does not include digital distribution
      • Performance right - showing the work in public
      • Adaptation right
      • Rental and lending right
      • Correct terminology is critical because….
  • 21. Exploitation and distribution
    • Issues specific to digital content: copying
      • Streamed content – is there a reproduction?
      • If so, who makes the reproduction (i.e. who needs a licence):
        • End user?
        • Content aggregator?
          • Consider liability for authorising or procuring reproduction – how much involvement/control does the aggregator have?
        • ISP?
  • 22. Exploitation and distribution
    • Issues specific to digital content: broadcasting
    • Transmission of content on the Internet is not a broadcast unless it:
      • takes place simultaneously on the Internet and by any other means (a simulcast);
      • is a concurrent transmission of a live event or part of linear programming
    • Significance: A webcast falls under the broader ‘communication to the public’ right.
  • 23. Exploitation and distribution
    • Issues specific to digital content: making available
      • Means “making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them”
      • In other words…..on demand
    • Significance: Prescriptive terminology in licence agreements
  • 24. Exploitation and distribution
    • Issues specific to digital content: territoriality
      • On the Internet, where does a restricted act take place?
      • How can copyright works be licensed on a territorial basis?
      • What laws are relevant to exploitation in different territories?
      • Can technology provide the answer?
    • Significance: Economic incentives to license territorially
  • 25. Exploitation and distribution
    • Issues specific to digital content: moral rights
    • Paternity – right to be identified as author/director/performer
    • Integrity – right to object to derogatory treatment
    • Privacy – right to prohibit/authorise issuing to the public works commissioned for private/domestic purposes
    • False attribution – self explanatory
    • Note: The Performances (Moral Rights, etc) Regulation 2006 extended moral rights protection to performers from 1 February 2006
    • Significance: Moral rights cannot be assigned; must be waived
  • 26. Exploitation and distribution
    • Issues specific to digital content: database rights
      • A database is a collection of independent works, data or other materials which:
        • are arranged in a systematic or methodical way; and
        • are individually accessible by electronic or other means
      • Database rights result from substantial investment in obtaining, verifying or presenting the contents
      • Infringement by extraction and/or re-utilisation of whole/substantial part or repeated and systematic extraction and/or re-utilisation of insubstantial parts
      • Significance: fanbases, crowdsourcing, communities = targetted advertising = value
  • 27. Exploitation and distribution
    • Other considerations:
    • Trade marks, passing off and domain names
    • Trade marks: trade mark licences may be required for inclusion in digitally transmitted content
    • Is inclusion in the work incidental?
    • Consider celebrity endorsement claims – does content feature a person whose identity has become a brand?
    • Several projects scuppered by domain name mistakes
    • Personal data and privacy
    • Personal data has many forms – Naomi Campbell leaving a Narcotics Anonymous meeting
    • No statutory right of privacy in the UK, but largely protected by law of confidence
  • 28. Exploitation and distribution
    • New copyright models – Creative Commons, open source
    • Strong tools for collaborative creation and licensing
    • Viewed with fear or scepticism by financial community
    • http://wiki.creativecommons.org/FAQ
    • Use in conjunction with legal advice
  • 29. Legal hygiene
    • Chain of title for all properties
    • Property portfolio bible
    • Retain originals and get signatures for everything
    • Take advice
    • Conclude short-term deals if unsure of proposition
    • Collect money that is yours to collect
    • Enforce rights in your properties
  • 30. Legal hygiene Licensor Licensee Non-exclusive Exclusive Time-limited Perpetual No sub-licensing or assignment Can sub-license and assign Certain territories only Worldwide Limited by restricted act (reproduction plus broadcast or making available) All forms of exploitation restricted by copyright Restricted uses No restricted use Advance/royalty/revenue share Free/promotional/ancillary
  • 31. Legal hygiene
    • Grant clauses - heard these before?
    • Copy, adapt, edit, transmit, cache, sell, rent, perform, display, exhibit, distribute, analyse, compile, download, upload, sideload, modify, translate, re-format, format, encode, decode, translate, store, use, view, exploit, dub, re-produce, republish, broadcast, make available, compress, frame, fixate, access, execute, synchronise…
    • (Note different terminology in different territories)
  • 32. Legal hygiene
    • What is the Internet?
    • The global communications system of computer networks accessible by the public which interconnect, either directly or indirectly, individual computers and/or networks using Transmission Control Protocol/Internet Protocol (or derivatives or future versions thereof) [and which enables users to engage in two way transmissions of data over such networks in order to transmit and receive content] [and any analogous or derivative system now existing or hereafter invented].
    • Why is that different to the World Wide Web?
    • A network of interlinked documents and resources residing on the Internet that utilise hypertext protocols and language, which are available for display using browser software.
  • 33. Legal hygiene
    • Licensing models
    • Content can be licensed and distributed according to:
    • Delivery media
    • Fixed media
    • Device
    • Time
    • Business model
    • Product set
    • Platform
    • Distribution models should be carefully planned and monetised. Aggregators should be held to account.
  • 34. Legal hygiene
    • How to determine the model that works for you
    Licensor Licensee Are specific and limited media uses necessary? Why do they need general, broad media definitions? Is there are convergence risk? If so, short term licence? Will a longer term or options to continue prejudice my product? Will a detailed platform specification help? Will a broad platform specification cause problems?
  • 35. Legal hygiene
    • Trends
    • Slight revitalising of finance models
    • 360 º commissioning
    • Focus on profitability instead of revenue
    • Bundled premium products
    • End of love affair with advertiser-funded content distribution
    • New consumption formats
    • Reduced production costs
  • 36. Legal hygiene
    • For producers
    • Ensure your rights are cleared
    • Aggressive holdbacks – ‘no warehousing’ clauses
    • Concerned about compliance – make licence conditional
    • Set out conditions precedent for exploitation
    • Include approval mechanism for syndication and new models
    • Consider short exclusive windows
    • Question those promising digital nirvana
    • Consider collective licensing/publishing
  • 37. Legal hygiene
    • How to protect your content
    • Viacom v Google case result ratifies burden of enforcement in the US and, for the most part, in Europe
    • Newzbin case provides some comfort for rightsowners
    • Seek recourse for direct commercial exploitation
  • 38. Future
    • Web 2.0 applications
    • Powered sharing (uploading/downloading)
    • Network as platform
    • Leverage metadata
    • Service hosts and access via API
    • Web 3.0 applications
    • Open source culture
    • Virtual user environment
    • Semantic/artificial intelligence
    • Cloud storage and data mining
  • 39. Future
    • Ongoing issues for producers
    • Reputation management
    • Street teams and commercial spoofing
    • E-money and user-to-user commerce
    • Open versus closed platforms
    • Fraud, misrepresentation and criminal behaviour
    • Adaptation and derivative works
    • Jurisdiction and enforcement
    • Search engine optimisation
  • 40.
    • Gregor Pryor
    • Partner
    • Digital Media Team
    • Email: gpryor@reedsmith.com
    • Phone: +44 203 116 3536

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