Contracts 101: Pitfalls to avoid in your Entertainment Deals – Part 3

(A NATAS speaking engagement personified)
By Andrew J. Contiguglia, Attorney at law

Licensing and releases.

Basically licenses and releases are all about permission. There are two types of permission. There is getting permission from people to use their product, and there is giving permission to other people to use your product. So, if you are out filming on location you are going to have to get releases from individuals if you are promoting their products. If you are depicting a person who is readily identifiable, you need to get a release from that individual. In one particular case, a client was producing a film in Las Vegas and the scene involved a hotel room in the Venetian Hotel. When the Venetian management found out about it, it was able to argue that it was the only hotel in the world that had a particular type of pattern on the walls or couches. Rather than enter into costly litigation, the production company scrapped the whole film and had to redo it.

Those are the types of issues you need to be aware of when you are actually out filming on location. I like to play it very, very conservatively. If you are going to go out and film Coors Field, and you know the guy over Coors Field, you need to talk to him about getting a release or some sort of agreement that allows you to film there. Some people have the mistaken idea that the location they use is getting free advertising, so they won’t mind, but that’s not always the case. Many of these companies don’t like to have their names on products that they are not involved with. You can run into myriad problems in that particular arena and you want to avoid that. So the best thing to do is to ask permission ahead of time. The worst case scenario is that they will say no and you will have to figure out different circumstances or locations. But sometimes they will say yes. There are many companies with divisions devoted to product placement that want to try to get their products involved in productions. There are agents for products who try to get CocaCola, Pepsi, Mountain Dew, etc. placed into TV shows and movies. The best example is Reese’s Pieces and the movie E.T. M&M/Mars said they didn’t want to have anything to do with the production, but Reese’s wanted to promote its new product. Steven Spielberg used Reese’s Pieces in the movie and boom ­they became a huge hit.

Another example: if you are launching a cooking show and you need to use certain products, is it necessary to get permission to show the products? Yes, it is. I would not gamble on implied permission. You can’t assume that the company that created the product is going to agree with your belief that they are receiving free advertising. It takes one phone call and an exchange of letters to get permission for something like that. If you ever watch the Food Network the cooks either mark out the brand names on their containers or put them into a completely different container. You see Emeril using nice containers of olive oil but you have no clue what brand he is using. Therefore, he is not giving favor to any particular brand.

Sometimes you will get special pitches ­and pitch a brand ­but that is typically worked out between the producer of the show and producer of that product.

I have a client who did an automobile safety DVD for teenagers. He hired actors who are now car drivers because his background was in filming NASCAR races. He built relationships with these NASCAR drivers and hired them as talent. Obviously he couldn’t use their cars because of the various licensing agreements. They actually drove regular cars as part of this instruction video for teens, which turned out to be a really nice product. The video eventually got picked up by an insurance company, who, wanted to provide a link on its Web site to the instructional video. We did a licensing agreement for this insurance company giving them a nonexclusive license to use various footage described on the attachment. We listed each scene and gave them a nonexclusive license to use different clips for a particular purpose. We made it a nonexclusive because we didn’t know who else would want to use it. That is something you need to take into consideration. Don’t give away all your rights.

If you give someone an exclusive license for something you created, you are simply selling it to them for a fixed period of time to use for a particular purpose. If you give an exclusive license to use or market your product, that gives you no ability to do it. If someone else has an exclusive license, then you cannot license it to anyone else. That didn’t come up in our case, but it would be a great idea. If I was representing the insurance company and I didn’t want any other insurance companies to have this product on their Web site, I would build something in the licensing agreement that would make it exclusive for insurance providers but no one else.
Monday, March 6, 2006, 11:30 AM ­KUSA, Denver, Colorado.

Miller & Steiert, P.C.
1901 W. Littleton Blvd. Littleton, CO 80120
3037982525
andrewc@m-s-lawyers.;
www.m-s-lawyers.
com

(C) Andrew J. Contiguglia, 2006, All Rights Reserved

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