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The Pixel Lab 2015 | Dealing with Disputes: Who has the power - and when does it shift? - Christoph Fey

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You may have a good idea. You may even know how to make your voice
heard in this crowded digital marketplace. But do you know how to protect yourself along the way, from scratch to screen and beyond?

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The Pixel Lab 2015 | Dealing with Disputes: Who has the power - and when does it shift? - Christoph Fey

  1. 1. ThePixelLab 28June-4July Inverness, Scotland #PixelLab
  2. 2. DealingwithDisputes: WhoHasthePower-and WhenDoesitShi"? Christoph Fey Unverzagt Von Have #PixelLab @powertothepixel
  3. 3. DEALING WITH DISPUTES WHO HAS THE POWER ? AND WHEN DOES IT SHIFT ? Christoph Fey The Pixel Lab 2015 Inverness, July 2, 2015
  4. 4. THE HIDDEN SIDE OF FORMAT DISPUTES
  5. 5. HOW TO OWN RIGHTS NEGOTIATE DEALS RESOLVE DISPUTES
  6. 6. ALL BEGINS WITH THE IDEA
  7. 7. persocial
  8. 8. IGNITION PITCH COMMISSION EXECUTION
  9. 9. IDEA CONCEPT PILOT FORMAT
  10. 10. YOU NEED BOTH GOOD IDEAS & SAFE HANDS
  11. 11. YOU ARE ALWAYS NEGOTIATING IN THE SHADOW OF THE LAW
  12. 12. IS IT YOURS ?
  13. 13. IS IT REALLY YOURS ? CREATING IT   Creating it alone   Creating it with someone else   Hiring someone else to create it BUYING IT   Buying the idea   Buying the concept   Buying the pilot   Buying the format STEALING IT   Copying it and calling it your own
  14. 14. CAN IT BE OWNED ?
  15. 15. What is a “format” anyway ?
  16. 16. SORRY, IT IS SO EASY TO STEAL WHY BUY IT WHEN ONE CAN JUST STEAL IT ?   WHEN YOU PITCH IT When you pitch it, you must disclose it. No pitch, no deal.   WHEN YOU RELEASE IT Confidentiality ends as soon as it is released into the public.
  17. 17. CAN IT BE PROTECTED ?
  18. 18. IDEAS ARE FREE AS THE AIR
  19. 19. THE LAW OF CONTRACTS TRADE SECRET SUBMISSION RELEASE
  20. 20. PITCH DISPUTES Questions you need to ask: 1.  Is it really your idea ? 2.  Is your idea the kind of original idea with a commercial value that has to be paid for ? 3.  Is there some action – more than just the submission of that idea – that has created a business relationship with the recipient ? 4.  Have you conditioned the disclosure upon the recipients’ agreement to pay for the use of your idea – before you submitted your idea to the recipient ?
  21. 21. PITCH DISPUTES Questions you need to ask: 5.  Has the recipient voluntarily accepted the submission on those terms and thereby implicitly agreed to pay for the use of your idea ? 6.  Has your idea been used by the recipient in such a way that it would deny you the ability to make money from your own use of that idea ? 7.  Is the ultimate use by the recipient substantially similar to your submitted idea ?
  22. 22. SO WHAT CAN YOU DO TO PROTECT YOURSELF ?   Write it down, the more detailed the better   Number and date all creative material, name the creators and include a copyright notice (©)   Keep a diary and record minutes of all development meetings   Save all your drafts – new over old   Register your creative material   Keep sensitive information confidential   Mark all material as “confidential” to indicate that it is disclosed under an obligation of confidence   Keep a copy file of all material that has been submitted while noting the recipient and the date   Keep a diary and record minutes of all pitch and sales meetings   Follow up your meetings with written notes sent by mail or e-mail to create a communication “paper-trail”   Sign exclusive know-how and talent deals   Make a pilot   Select a domain name and set up a website   Register the title for trademark protection
  23. 23. THE LAW OF COPYRIGHT EXCLUSIVE PROPERTY FREE ACCESS
  24. 24. THE BUSINESS OF COPYRIGHT SCARCITY ABUNDANCE
  25. 25. COPYRIGHT ? OR RIGHT TO COPY ?
  26. 26. PUBLIC DOMAIN What cannot be monopolised by copyright ? One is free to use:   Facts   Ideas   Themes   Creation methods – such as style and technique   Old works for which copyright has expired (70 years p.m.a.)
  27. 27. IS YOUR COPYRIGHT INFRINGED ? Not all copying is copyright infringement as copyright extends only to those components of a work that are original. 1.  What is copied ? 2.  Are the copied items protected by copyright ? 3.  Is the copyright protected expression of originality copied to such an extent that there is substantial similarity ? 4.  Is there a defence of fair use ?
  28. 28. WHEN IS CLOSE TOO CLOSE ?
  29. 29. WE‘VE BEEN HERE BEFORE Increasing demand leads to copycats Market is saturated Format disappears for a while … … But absence creates need New hit show is launched
  30. 30. Do you want to LEAD … or do you want to FOLLOW ?
  31. 31. KNOW YOUR FORMAT  Is it PROTECTable ?  Is it REMAKEable ?  Is it SCALEable ?  Is it TRANSFERable ?
  32. 32. HOW TO SELL IT Why and for what is the buyer paying you money ?   INTELLECTUAL PROPERTY ?   BUSINESS RELATIONSHIP ?   TRACK RECORD ?   KNOW-HOW ?   FIRST-MOVER-ADVANTAGE ? The best protection is to be the first to market
  33. 33. When people offer you money …
  34. 34. HOW TO NEGOTIATE THE DEAL  KNOW YOURSELF   Think about what you need.   Consider what will happen to you if no deal is struck.   Think about your alternatives to a negotiated agreement.   Assess your reservation price for each round of negotiations.   Do you want to do a long-term, or just a one-off deal ?   Who should be negotiating the deal on your side ? Do you want to do this yourself, or do you want to have an agent ?   Be prepared to walk away.
  35. 35. HOW TO NEGOTIATE THE DEAL  KNOW YOUR BUYER   Understand what they want, and why they want it.   Consider what will happen to them if no deal is struck.   Think about their alternatives.   Investigate how they’ve negotiated in the past.   Know how they earn their money, and what drives their cash.   Do they have the ability to scale-up a hit ?   There is always some one above: Who’s the one who’ll finally make the decision on their side ?
  36. 36. HOW TO NEGOTIATE THE DEAL  KNOW YOUR MARKET   Follow the money.   Know the size of the market.   Investigate what budgets are paid in this market.   Consider what rival formats are on the market.   Can you segment markets and hence slice-up the deal ? If so, set different prices for different markets – sub-divided in terms of territory, language, time, medium and use – to be able to capture the highest return from each market.   What parameters of the deal are fairly set, and where’s room for negotiation ?
  37. 37. HOW TO NEGOTIATE THE DEAL  KNOW YOUR RIGHTS   Know precisely which rights you want to give, and which rights you want to keep.   Rights in WHAT ? -  The FORMAT -  The FILMED SHOW -  The DERIVATIVE PRODUCTS -  The BRAND NAME   In a format licence deal, you license the rights to: 1.  PRODUCE – but only within certain LIMITS; and 2.  EXPLOIT – but only within certain LIMITS.
  38. 38. HOW TO NEGOTIATE THE DEAL  KNOW YOUR CONTRACT   If you receive an offer, you may accept or reject that offer.   When you make a counter-offer, then you have rejected the offer and have yourself made a new offer.   Keep in mind that the deal is not closed until all of the deal terms have been agreed.   When you reach an agreement, be sure to write it down.   By writing the first draft, you can choose language which reflects your interpretation.
  39. 39. REMEMBER 7 RULES Rule #1: One product doesn’t fit all Rule #2: One price doesn’t fit all Rule #3: Budgets are negotiated numbers Rule #4: Rights are negotiated in the shadow of the law Rule #5: Distribution is the power behind the throne Rule #6: Big groups need to feed the beast Rule #7: Eat the whole cow
  40. 40. … AND 1 QUESTION Who owns the audience ?
  41. 41. d of TV as We Know It
  42. 42. “You aren’t advertising to a standing army; you are advertising to a moving parade.”
  43. 43. FIRST GROW THEN SHARE
  44. 44. INVENT OPTIONS FOR MUTUAL GAIN
  45. 45. First think “and” … before you think “or”
  46. 46. Who doesn’t ask, doesn’t get
  47. 47. Who should make the first offer ?
  48. 48. Every present expects ... a counter-present in return
  49. 49. When they say, “it‘s not about the money”, ... it’s about the money
  50. 50. So, speak about money
  51. 51. ... and don‘t tell everyone how well you‘ve done
  52. 52. THINK BEFORE YOU SUE
  53. 53. DISPUTE RESOLUTION PROCESSES There are four different ways to resolve disputes:   NEGOTIATION   MEDIATION   ARBITRATION   ADJUDICATION
  54. 54. SEPARATE THE PEOPLE FROM THE PROBLEM
  55. 55. But what if the people are the problem ?
  56. 56. How can you help them to break a commitment … gracefully without too much loss of face ?
  57. 57. FOCUS ON THE INTERESTS NOT THE POSITIONS
  58. 58. Start with the WHY
  59. 59. Know the FACTS … and don’t contradict yourself
  60. 60. Draw the LINE
  61. 61. … and don’t forget: always, always start with the WHY
  62. 62. Christoph Fey Monbijouplatz 2 · D - 10178 Berlin +49 (0)30 - 288763-33 fey@unverzagtvonhave.com www.unverzagtvonhave.com

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