ART TWO
This is part two of this blog series. Part one can be found here.
Approvals/Controls
This is one of the threshold questions for producers seeking to adapt formats – how much control, if any, will the originator of the format have over the adaptation? On one hand, the format originator has a creative and financial attachment to the original show; it is in its best interest that the format is treated sensitively, packaged appropriately and produced at a budget and quality level that will enable it to succeed – because if the adaptation fails, the “brand value” of the format could be tainted for the long-term. On the other hand, the adapting producer and its local production partners are probably best positioned to understand the tastes and culture of the target market and navigate any regulatory issues.
Moreover, an overly restrictive approvals mechanism that interferes with casting, production, distribution or sponsorship agreements could cause the entire production to grind to a halt and frustrate the practical realities of production. Therefore, the appropriate level of approvals (or consultation rights) for the format originator should be determined on a case-by-case basis, taking into consideration the leverage possessed by the respective parties, but in all instances it may be more efficient to delineate a reasonable list of approval items with as much specificity as possible in order to limit confusion and facilitate communication between stakeholders.
One specific issue related to approvals that should be discussed up front is to what extent the new adapted series will adhere to the story, setting and aesthetic of the original. For an adapting producer, the optimal situation is contractual flexibility – the right, but not the obligation, to use the original scripts, characters and plotlines – or to exercise creative license and go off in a completely different direction. Adapting producers should also be cognizant of any guild obligations and contractual obligations that may be triggered by using an original script verbatim. Producers may be obligated to pay residuals and other passive fees, or accord credit, to the original writers.
Producers should be wary of any obligations and/or restrictions that may exist with respect to third party talent. The writer or showrunner of the original series may have an attachment or right of first negotiation to render services on remakes, and a passive credit and fee entitlement if he or she does not render services. In certain rare circumstances, creative talent may have an absolute approval right with respect to foreign remakes. Accordingly, producers must conduct appropriate due diligence and request to review applicable agreements (redacted, if necessary).
Trademarks and Other Brand Elements
In addition to the issue of creative approvals and consultation rights when adapting a series, producers must pay heed to what right, if any, they have to use the trademarks, trade dress, logos and other identifying brand elements of the original series, its source network and its original creators. For example, a format licensing deal will typically include a license to use the original title of the format and its logo – but this use will certainly be subject to certain “style guide” limitations and other contractual restrictions that could be prohibitive.
If referencing the trademarks and names of original producers is going to be an important part of selling and marketing a show, adapting producers should ensure that they are entitled to use those trademarks and names in a sufficiently flexible manner (and should pay particular heed to any restrictions on use in advertising). Any trademark license should be irrevocable and should have a term at least coterminous with the license period for the new series.
Regulations and Other Local Considerations
Whichever side of a deal they are on, parties need to consider whether the financing, production and/or distribution of the new series will be affected by local regulations. Production and financing of audiovisual content in Canada, for instance, is governed by CAVCO and Telefilm guidelines, while European productions have their own guidelines (both for individual territories and on a pan-European basis). In China, all productions are governed by the sometimes opaque SARFT guidelines, which were recently extended to streaming platforms such as Youku and Iqiyi. Producers should consult with the applicable regulations and engage local counsel as appropriate. Of course, producers should ensure that the cost of regulatory filings, and the time for regulatory approvals are built into all schedules and budgets, and also that their partners are advised of any potential difficulties in order to manage expectations.
On a final note, producers should always look into what is necessary to protect their intellectual property in local markets. This includes registering copyright and trademarks as applicable, prosecuting infringement as it arises, and ensuring that all agreements with third parties are sufficiently protective. This is particularly pertinent when operating in Asia, where the status of, and respect for, intellectual property protection is steadily improving but is still not on a par with the United States and other Western countries.
About
Susan Bodine (sbodine@cdas.com) is a partner and Simon Pulman (spulman@cdas.com) is an associate in the New York office of Cowan, DeBaets, Abrahams and Sheppard LLP.
Filed in: Entertainment, Legal Blog, Television (Traditional to Broadband), Trademarks and Brands
March 25, 2015