Film – Edwards Creative Law

Five New Year’s Resolutions From Your Local Entertainment Lawyers

Michael Duboff — Thu, 21 Dec 2023 21:49:27 +0000

It’s getting to that time of year where individuals reflect on the previous year’s accomplishments and everything they want to work on and improve in the coming year. At Edwards Creative Law, we are no different!

This year, we have come up with a few potential New Year’s resolutions for our creative blog readers out there – but since you’re a regular reader of this blog, you probably already know this stuff!

These fundamental considerations are for creatives of all types to keep in mind when working with others – whether it is a longtime partner, a new collaborator, or someone engaging you for a job.

New Year’s Resolution #1: Don’t Rush

Starting a new project is always an exciting time. However, it is important to take time to make sure that the project, and individuals you will be working with, are the right fit. It’s easy to rush into things when excitement abounds. However, putting the time in upfront can avoid trouble down the road.

It may be much more difficult (and expensive) to resolve a dispute that arises 10 months into a project – after everyone has already put in a bunch of time, effort, and money – than if that issue had been identified and dealt with at the outset because the parties had taken more time to consider their agreement.

It may be a red flag if a prospective partner is putting pressure on you to sign agreements before you have had the opportunity to thoroughly review them.

New Year’s Resolution #2: Know Your Partners

As part of your due diligence before making any commitments, you should spend time getting to know your partners. Have conversations with them. Discuss each of your expectations of the project and of each other. Complete independent research.

Look up the individuals or organizations online to see if they have credits or a virtual footprint. For example, if the partner is selling themself based on prior work and successes, this can often be found online. In addition, speak to mutual acquaintances for their thoughts.

You never know how long you may be tied to a partner, and therefore, you want to make sure they are the right fit.

New Year’s Resolution #3: Discuss Key Terms

Once you are confident in who you are working with, make sure to have conversations with them about the project. Key terms and expectations should be discussed at an early stage.

What are the obligations or services that each party needs to perform? Are there deliverables, and if so, what are the details? Is anyone contributing finances? Who is entitled to receive compensation and/or revenue from the project? What does ownership of the project look like?

New Year’s Resolution #4: Agree on Terms

A direct follow-up to the previous point is to make sure there is agreement on the key (essential) terms of the relationship. Some key terms are identified in the previous paragraph. Recording the agreed terms in some form is important.

While a long-form agreement is not required, a recording that sets out the agreed-upon terms as well as both parties’ agreement of those terms is important in creating an enforceable contract. The parties’ agreement can be shown through signature or a clear communication (such as, an email) wherein each party writes that they agree to the terms.

New Year’s Resolution #5: Work with an Entertainment Lawyer

If you have any questions, issues or need assistance with the topics discussed in this blog (or other entertainment legal topics), know that there are entertainment lawyers to whom you can always turn.

Our job is to advocate for you in legal matters relating to the entertainment industry. This may be to discuss legal considerations relating to your work, draft, and review agreements, evaluate legal risks and discuss how to minimize or avoid them, and many other types of legal services.

Conclusion

This blog identifies a few fundamental legal considerations for creatives to keep in mind as we enter the new year. Remember to take your time, make sure the opportunity is the right one for you, and make sure that the key terms to the relationship are discussed and agreed upon.

If at any time you have questions and are uncertain how to proceed, we encourage you to reach out to an entertainment lawyer for assistance.

From all of us at Edwards Creative Law, we wish you a happy and safe holiday season!

Edwards Creative Law is Canada’s Entertainment Law Boutique, providing legal services to Canadians, and international clients who partner with Canadians, in the Film & Television, Music, Video Games and Apps, Publishing and Literary industries.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.

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Canada Day 2023: The Perfect Day to Support Canadian Content (7th Edition)

Byron Pascoe — Fri, 30 Jun 2023 13:01:39 +0000

The History of #CandianContent Posts

Canada Day 2023 – This series of blog posts was initiated in 2015 with the intention to share some Canadian content ideas on Canada Day – including films, music, TV programs, books, games, and more.

While we know every day is a good day to consume and share #CanadianContent, Canada Day is another reason to celebrate it, be proud of it, and support the creation of more of it.

New Canadian Music Releases in 2023

It’s been a breakout year for a variety of Canadian performers still very into their careers including Elijah Woods, Devon Cole, Aysanabee, LAVI$H, Jules is Dead, Katherine Li, and many more.

The JUNOs which took place in Edmonton highlighted the many songs popular on streaming platforms to radio, around the world, from vocalists, producers and composers based here in Canada. The annual event moves locations to Halifax in 2024.

For recommendations to build your playlists, check out the recently announced Polaris Prize longlist, with albums from soon to be household names from JayWood to Zoon, alongside industry veterans.

New 2023 Canadian Film and Television Series

A breakout hit in Canada, and ideally soon in the US with a forthcoming release on The CW, “Sullivan’s Crossing” filmed in Nova Scotia included musician T. Thomason in the ensemble cast.

The Oscars constantly has Canadian content, and this year was no exception, including with Women Talking directed by Canada’s own Sarah Polley. Brendan Fraser was the first Canadian to win the Academy Award for Best Actor for The Whale.

Canadian representation at the Prime Emmys included Sandra Oh, Norm MacDonald, and Seth Rogen.

For a full slate of fellow Canadians, check out the nominees of the Canadian Screen Awards. The Porter, Sort Of and Brother are among the many stand outs to check out.

Canadian Books Released in 2023

Unfortunately, the vessel who provided endless interviews with Canadian writers and those far away, Shelagh Rogers recently retired from CBC and her popular radio show The Next Chapter. However, an archive of those interviews and book recommendations are still available online.

Whether you’re intrigued by the unique premise of Scotiabank Giller Prize-winner Sean Michaels’ “Do You Remember Being Born” set to release in September, or you’re drawn towards the poignant narrative of Michelle Porter’s “A Grandmother Begins the Story” published in May, or you’re reading the latest collection of preschool books from Super Simple Songs to your young child, there’s undoubtedly a Canadian book out there for every reader.

#CanadianContent – Video Games

Video games have always been a significant part of the Canadian cultural landscape, as this genre of entertainment continues to be a significant economic driver of the entertainment industry beyond the more traditional ways to ingest content on screens.

In 2023, we have seen some great additions including Montreal’s EA Motive “Dead Space,” a thrilling game that quickly gained traction amongst PlayStation 5, Xbox Series X/S, and PC players.

Out of Vancouver there was “Sons of the Forest” from Endnight. Also with a Vancouver connection was “Minecraft Legends” and out of Toronto came “Ravenlok” by Cococucumber.

Canada Day 2023 Concerts

We have returned to being able to celebrate Canada Day in person, with many other people, and here are some of the performances happening across our country.

Ottawa (LeBreton Flats) – The daytime ceremony will feature Canadian artists such as Delhi 2 Dublin, Tyler Shaw, Josiane and Diyet. Later performances will feature Jann Arden, Aysanabee, Preston Pablo, Jojo Mason, Dax and Madison Violet.
Toronto (Woodbine Park) – If you’re celebrating in the GTA, be sure to visit the Q107 Canada Weekend from June 30^th to July 1^st. Canada Day performances include, After the Gold Rush (Tribute to Neil Young), Monkey Wrench (Tribute to the Foo Fighters), Aeroforce (Tribute to Aerosmith) and more.
Toronto (Harbourfront Centre) – Toronto Symphony Orchestra will kick off festival season with Broadway star Jewelle Blackman playing a free concert on Canada Day. Other performances include the Strumbellas, Crystal Shawanda, the Toronto All-Star Big Band and more.
Winnipeg – The Forks – This year’s theme for Canada Day at The Forks is “Finding our North Star” and the celebration will conclude with a drone show pairing ancestral celestial teachings with cutting-edge drone technology which is new to Winnipeg. Performances include Darryl Buck, Onna Lou, Tommyphyll, HERA, Jade Turner and more.
Vancouver (The Shipyards) – This year, in Vancouver, Canada Day will be celebrated live at the Waterfront at The Shipyards. The event will run from 11:30 pm to 4:30 pm with entertainment and a Beer Garden. This event will feature performances by local artists such as Melanie Dekker – with the Sensational Side-kick, Blazing Eraz, Randy Swallow, and Mostly Marley.
Surrey (Cloverdale) – This free event allows you to experience Western Canada’s largest Canada Day event in the heart of Cloverdale. This event features performances by Broken Social Scene, Corwn Lands, Neon Dreams, JenZ, Kiera-Dawn Kolson, PIQSIQ. and more.
Canada Place (Port of Vancouver) – The Vancouver Fraser Port Authority invites residents and visitors on July 1 for the second annual Canada Together which features a diverse lineup of entertainment and activities and the return of the annual citizenship ceremony welcoming new Canadians. This event will feature performances by Pat Chessell, Spakwus Slolem (Eagle Song Dancers), Adam Woodall Band, The Fugitives, Tegan & Sara and more.
Halifax-Dartmouth (Dartmouth Ferry Terminal Park) – If you’re in the Halifax-Dartmouth area, be sure to visit KANA’TA: Canada Day 2023 celebrations on Saturday, July 1, 2023. This Canada Day event offers a variety of new and refreshed cultural, musical, and family-friendly events to enjoy. Music for this event will feature performances by ANSMA House Band, Dubey Downey, Asia, Cory Adams, Cyndi Cain and JRDN (Jordan Croucher).
Montreal (Old Port) – On July 1st, Montrealers can celebrate Canada Day in the Old Port of Montreal. Like a big neighbourhood block party, everyone is invited to come to the Quai de l’Horloge to have fun, and enjoy a piece of cake. DJs Lux and Klein will end the festivities with a musical performance to get everyone dancing to the beat.

If you’ve been waiting for a good time to start spending more of your entertainment bandwidth with content made in your Canadian neighbourhood and/or by other Canadians, it’s Canada Day. Enjoy!

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Manitoba Tax Credit Bonuses – Filming in Manitoba Series: Part 2

Michael Duboff — Fri, 23 Jun 2023 15:47:00 +0000

What Makes Manitoba an Appealing Destination for Filmmakers?

Manitoba has a strong film tax credit program. With base tax credit percentages of 45% and 30% for its cost-of-salaries (“MBCOS”) and cost-of-production (“MBCOP”) programs, respectively, the province has become one of the most appealing and cost-effective locations to film in Canada.

How Can Manitoba’s Film Tax Credits Be Increased Further?

What may not be known is that both of Manitoba’s primary tax credit options can be increased further when a production utilizes tax credit bonuses.

The MBCOS tax credit can be increased from its base 45% to a total of 65% when all three of its available bonuses are applied and the MBCOP tax credit can increase from 30% to 38% when its singular available bonus is applied.

What is the MBCOS Frequent Filming Bonus and How to Qualify?

A production will be eligible for the frequent filming bonus of 10% where the subject production is the third film that the applicant production company has shot in Manitoba within a two-year period.

This can become a rolling bonus as long as the ratio of three film projects in two years is maintained. For series, projects will earn one frequent filming credit for every two hours of airtime. Therefore, after the first four hours, the series will have the required credits to qualify for the frequent filming bonus and the bonus can be applied to the remainder of the series.

In order for the production to be eligible, ownership of the production must be identified to confirm that each of the three films in the two-year period are owned by the same entity (referred to as the Principal Owner). This bonus is applied for via the Frequent Filming Bonus Eligibility Form that can be found here.

How Can Manitoba Producers Benefit from the MBCOS Producer Bonus?

A production can receive a 5% bonus where the applicant production company has a Manitoba resident fill the role of Producer, Co-Producer or Executive Producer.

To qualify, the Manitoba resident must receive a screen credit for any of these three roles in the production. This bonus is applied for within the MBCOS application form in both the Part A – Registration Certificate and the Part B – Completion Certificate.

What is the MBCOS Rural and Northern Bonus and How to Qualify?

A production can increase its refundable credit amount by another 5% via the rural and northern bonus. A production is eligible for this bonus where at least 50% of its Manitoba shooting days occur at least 35 km / 22 miles from Winnipeg’s center (a “rural day”), which is measured by the most direct driving distance from the intersection of Portage Avenue and Main Street in the city.

A rural day is defined as 7.5 hours of principal photography occurring in the rural location. To calculate the number of rural days, take the total number of hours spent on principal photography in the rural area and divide that number by 7.5.

In addition to the shooting requirement, at any time during principal photography, the applicant production company must have a permanent establishment in Manitoba that is located at least 35 km / 22 miles from Winnipeg’s center. Like the Producer Bonus, this bonus is applied for within the MBCOS application form in both the Part A – Registration Certificate and the Part B – Completion Certificate.

Can Federal Programs be Combined with MBCOS?

One additional production tax credit bonus that isn’t technically a “Manitoba tax credit bonus” is the availability to utilize the federal Canadian Film or Video Production Services Tax Credit (PSTC) on top of the MBCOS tax credit.

The MCBOS tax credit will reduce the production costs on which the PSTC is applied. Where a production is also eligible for the PSTC, the 65% tax credit (where all three former bonuses are applied) is increased to a total 70.6% refundable credit on eligible Manitoba labour!

What is the MBCOP Production Company Bonus and How Does it Benefit Productions?

The only bonus available for the MBCOP tax credit is one that most productions will utilize. This is an 8% tax credit bonus for eligible productions that co-produce with an eligible Manitoba production company increasing the base credit for 30% to 38%.

This production tax credit bonus is applicable to eligible productions where principal photography commences after May 31, 2020.

How Can You Successfully Navigate Manitoba Film Tax Credits for Your Production?

Like all film tax credit programs, Manitoba’s available tax credits and added bonuses provide substantial benefits to productions that film in the province.

However, the programs and their various regulations and processes often can be difficult to navigate to determine which tax credit routes are the most beneficial to your production. Being aware of the available bonuses and how they operate, as discussed in this blog, and determining which tax credits and bonuses are the most beneficial to your production, is just one piece of the picture to help you plan for your production’s success.

For further information about Manitoba’s tax credit programs, we encourage you to visit our first blog entitled Tax Credit Overview – Filming in Manitoba Series: Part 1.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

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What is an Entertainment Lawyer & How to Hire One: A Comprehensive Guide

Erin Moskal — Mon, 19 Jun 2023 12:00:50 +0000

Introduction: Your Path to Success with an Entertainment Lawyer

Hiring an entertainment lawyer can be a critical step in the career of an artist, producer, director, writer, developer, or entertainer in Canada. This guide will walk you through the process, answering key questions, such as “what is an entertainment lawyer”, and providing insights into the world of entertainment law.

What is an Entertainment Lawyer?

You may be wondering, what is an entertainment lawyer? How is an entertainment lawyer different from a “regular” lawyer? An entertainment lawyer restricts their practice to the needs of client in the entertainment industry. They work with clients in various sub-industries: for example, music, film, television, video games, visual arts and theater, and help navigate complex legal issues, protect intellectual property rights, and negotiate contracts.

What Does An Entertainment Lawyer Do?

Contract Negotiation and Review

One of the primary responsibilities of an entertainment lawyer is to negotiate, review, and draft contracts for their clients.

This may include negotiating contracts for record deals, film and television productions, talent management, and licensing deals.

Intellectual Property Protection

Entertainment lawyers also help clients use the Canadian legal system to protect their rights, such as copyright law and trademark law, ensuring they are properly registered and enforced.

Litigation and Dispute Resolution

In cases where disputes arise, most entertainment lawyers represent clients in court or alternative dispute resolution processes, such as mediation and arbitration.

Why Do I Need An Entertainment Lawyer?

You may be asking, “do I need an entertainment lawyer”? Hiring an entertainment lawyer is essential for anyone in the entertainment industry because of the unique legal challenges and complexities it presents.

An entertainment lawyer can help protect your rights, negotiate better deals, and ensure that you are following industry-specific laws and regulations.

An entertainment lawyer possesses the knowledge and experience necessary to navigate the legal landscape of the entertainment world, which can be invaluable for all entertainment professionals.

How Much Does an Entertainment Lawyer Charge?

Lawyer’s Hourly Rate

Most Entertainment lawyers charge an hourly rate for their services. This rate will vary based on experience, location, and the complexity of your case. It’s important to discuss the hourly rate with your prospective entertainment lawyer to ensure you have a clear understanding of the costs involved.

What are Hourly Services

Hourly services involve billing clients based on the number of hours an entertainment lawyer spends working on their case. This billing method is common for matters with an uncertain scope (such as negotiating contracts), as it allows for greater flexibility in addressing evolving legal issues.

What are Fixed Fee or Flat Fee Services?

Some entertainment lawyers may offer fixed fee services, where a specific task or project is completed for a prospective client at a predetermined, flat rate. This billing method provides clients with certainty regarding costs and can be advantageous for matters with a well-defined scope (corporate law, for example).

Estimates for Legal Services

Can I Get an Estimate for my Legal Matter?

An estimate for legal services is a rough projection of the total cost of legal representation based on the entertainment lawyer’s understanding of your situation and the anticipated scope of work.

While it can be difficult to provide precise estimates due to the unpredictable nature of legal issues, a well-informed estimate can help clients budget for legal expenses and set realistic expectations. It is essential to discuss estimated costs with your entertainment lawyer and be prepared for the possibility that actual costs may differ from the initial estimate.

Industries Served by Entertainment Lawyers

Entertainment lawyers serve a wide range of entertainment industries, including live action, animation, video games, app and software development, music, and modeling.

Each of these industries has its own set of legal challenges and considerations, which an entertainment lawyer can expertly address.

Live Action and Animation

In the live action and animation industries, an entertainment lawyer can help production companies and independent producers with matters such as intellectual property protection, licensing agreements, talent contracts, distribution deals, production agreements, and postproduction.

They can also assist with navigating regulatory requirements and obtaining necessary permits for film and television projects such as distribution rights for example.

Video Game, App, and Software Development

An entertainment lawyer plays a crucial role in the video game, app, and software development industries. They can help protect intellectual property rights, negotiate licensing agreements, and draft contracts with developers, distributors, and other parties.

They also have expertise in contract law and navigating the legal complexities of digital distribution and revenue-sharing arrangements.

Music Industry

In the music industry, an entertainment lawyer can assist with a variety of legal matters, such as negotiating and drafting record deals, publishing agreements, and performance contracts.

They can also help protect intellectual property rights, make contractual agreements, manage licensing deals, and resolve disputes involving royalties, copyright infringement, or other industry-specific issues.

Modeling Industry

Entertainment lawyers are also invaluable to the modeling industry and business, as they can help negotiating and drafting contracts with agencies, photographers, and other industry professionals. They can also assist with issues related to image rights, licensing agreements, and the protection of intellectual property.

Conclusion: Your Path to Success with an Entertainment Lawyer

Navigating the entertainment industry can be complex and challenging, but with the right legal guidance, you can protect your interests and maximize your opportunities for success.

In summary, hiring an entertainment lawyer is a wise investment for anyone in the entertainment field. They can provide expert guidance and assistance in navigating the unique legal challenges and complexities of the industry, helping you to protect your rights, secure better deals, and ensure compliance with industry-specific laws and regulations.

Now that you’re equipped with the knowledge to find the ideal entertainment lawyer for your needs, take the next step and contact our law firm by booking a complimentary discovery call. Our team of experienced professionals provides personalized, effective legal representation for clients in the entertainment industry.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

Check out our popular blog posts:

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Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
Corporate Law
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Corporate Law: Why, When & How to Incorporate Your Entertainment Business

Mark Edwards — Mon, 21 Nov 2022 15:39:58 +0000

Can an Entertainment Business Incorporate?

Do you ever wonder how to incorporate your entertainment business? Most businesses reach a point when they consider whether to incorporate. This decision on whether or not to incorporate is no different in the entertainment industry. Film producers, music labels, talent agencies, and video game developers are just a few examples of entertainment industry businesses that may eventually decide to contact a corporate lawyer to help them incorporate.

This blog will discuss relevant legal considerations regarding when and how to incorporate your entertainment business.

What are the Reasons to Incorporate your Company

The following are a few advantages of incorporating.

Limited Liability

Corporations are legal entities separate from their owners. As a result, a corporation is responsible for its own debts and other obligations. The liability of the shareholders, directors, officers, and employees of the corporation is limited – with a few exceptions, these individuals cannot be held personally responsible for the debts of the corporation.

Corporate Grants

There are certain industry grants that are only available to incorporated businesses.

Corporate Tax Credits

If you want to access Canadian cultural tax credits, such as are available for films, television series or interactive digital media, the applicant must be incorporated.

Investors

Shares are a convenient and attractive solutions for investors (the shareholder) financing your entertainment business.

Continuous Existence

Private and public corporations live on until they are wound up or dissolved. Other business structures, like a sole proprietorship or partnership of individuals (ie: LLP), are more difficult to continue when the individual owner or partner dies.

Tax Implications

There are a variety of financial tax advantages for corporations. We recommend getting in touch with an accountant for further financial advice on this point.

When is the Best Time to Incorporate your Business?

When is the right time to incorporate your business? Unfortunately, there isn’t a single answer to that question. It will depend on the particular circumstances of your business. For example, for film or television production companies, if you want to access available tax credit programs or other grants, you will want to ensure that you incorporate early in the pre-production stage.

If your business is not required to be incorporated, the decision of when to incorporate is less obvious. As your business grows, a number of things change: risk increases (when to incorporate, to manage and minimize that risk, will depend on your tolerance for that risk): the need for investment capital increases (when to incorporate, to provide a structure for investment, will depend on the capital intensity of your particular business and the availability of other sources such as profit and your own resources); taxation increases (when to incorporate, to minimize tax, will depend on whether you are retaining income in the corporation or paying all of it out to yourself as soon as it’s received).

In addition, incorporating can help to impose structure onto your business – through designated roles and corporate governance (practices and procedures that standardize the decision-making process.

The Process of Incorporating your Business

If you do decide to incorporate, the first question you need to ask is whether you are going to incorporate provincially or federally. One of the main distinctions between the two jurisdictions is that if you incorporate at the provincial level, the registered office of the corporation must be within that province.

A federally incorporated company can have its registered office in any of the provinces or territories. From a corporate governance standpoint, if you choose to incorporate federally, at least 25% of your directors must be Canadian residents. Ontario does not have a similar restriction.

Both Canadian and provincial corporations can be incorporated online without a law firm’s assistance, but a corporate lawyer can add significant value – prior to incorporation, by advising on the choice and availability of the corporate name, and on the use of multiple share classes and their attributes; and after incorporation, by issuing shares, electing directors, appointing officers, passing general and specific operational by-laws and other opening resolutions, setting up the corporate minute book and completing both mandatory and optional filings.

Ontario Incorporation

More information on incorporating within Ontario, can be found here. The basic government fee for registering an Ontario corporation is $300.00 CAD.

Federal Incorporation

More information on incorporating federally, can be found here. The basic government fee for registering a federal corporation is $200.00 CAD.

Who Can Help you With Incorporating your Company?

If you are a business owner and have questions about incorporating your company, we encourage you to speak with Edwards Creative Law or another entertainment lawyer. Our law firm is happy to answer your questions about incorporating and to assist you with the incorporation and post-incorporation processes necessary to incorporate and to transfer your existing business into the new corporation. Read our post about The Meaning and Importance of Shareholders’ Agreements in Canada.

Updated to November 21, 2022

Edwards Creative Law is Canada’s Entertainment Law Boutique, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

Check out our popular blog posts:

Learn more about our entertainment law services:

Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
Corporate Law
International Services

Guild Members and Producer Signatories: Writers Guild of Canada

Erin Moskal — Fri, 24 Jun 2022 13:00:14 +0000

Signatory Producer and Writer Status

The Writers Guild of Canada (the “WGC”) represents English-language writers working in film, television, broadcast, and digital media production in Canada. The WGC’s primary collective bargaining agreement is the Writers Guild of Canada Independent Production Agreement (the “IPA”). The IPA places minimum requirements on producers who engage WGC writers. In most cases, WGC writers are only permitted to provide their services to producers who are signatories to, and therefore bound by the terms of, the IPA.

But what happens when a non-WGC writer is engaged to provide services to a non-signatory producer, but decides to join WGC before the services are complete? Is the writer allowed to keep working on the production? Is the producer required to become a signatory to the IPA? This blog will answer these questions and consider the impacts of the WGC in some common situations.

Non-WGC writer, non-signatory producer

Where a writer is not a WGC member and the producer is not a signatory to the IPA, the parties do not need to comply with any WGC or IPA requirements. The parties are free to negotiate their own terms.

WGC writer, signatory producer

Where the writer is a WGC member and the producer is an IPA signatory, their engagement is generally subject to the minimum requirements of the IPA. The terms offered by the producer cannot be less favourable than what is set out in the IPA.

Non-WCG writer, signatory producer

A producer who is a signatory to the IPA is free to engage non-WGC writers; however, the producer remains beholden to the terms of the IPA and must comply with its minimum requirements. The writer must sign a declaration confirming their decision to not become a WGC member at that time. The writer will be treated as a non-WGC member, but the engagement will be governed by the IPA and the writer may not receive less than what a similar WGC member would receive.

WGC writer, non-signatory producer

As a requirement of membership, a WGC writer may not agree to provide writing services to a non-signatory producer. But what happens when a non-WGC writer enters into a contract to provide writing services to a non-signatory producer, but joins the WGC before the services are complete? In this scenario, the writer can complete their services pursuant to the original contract.

If the writing services have already been completed, then the contract can continue as a non-union production and the original terms agreed upon between the producer and writer will stand, even if they are less favourable than those set out in the IPA.

However, if the producer wishes to engage the writer to provide any additional writing services (for example, a rewrite or a polish) then the producer must become a signatory to the IPA or the writer is prohibited from providing those services. To proceed, the producer must sign a Voluntary Recognition Agreement whereby the producer agrees that the additional writing services will governed by the relevant terms of the IPA.

For other legal information for writers, publishers, and producers, we recommend you visit our blog on Collaborating with Artists and Other Writers.

Updated to June 23, 2022

Edwards Creative Law is Canada’s Entertainment Law Boutique, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

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Writer Defamation: What You Need to Know

Erin Moskal — Fri, 20 May 2022 17:33:01 +0000

Writer Defamation – Introduction

Johnny Depp, the actor famous for portraying Captain Jack Sparrow in Disney’s beloved Pirates of the Caribbean film series, is in the news a lot lately. At the time this blog is being written, Depp is involved in a highly publicized trial against his ex-wife, Amber Heard. Depp is suing Heard for “defamation”.

This blog will unpack what exactly “defamation” is and will explain what you, as a writer, need to be aware of when preparing your next manuscript or screenplay to avoid being sued.

What is Defamation?

Defamation – which includes “libel” and “slander” – is a legal action in tort where one party alleges harm to their reputation as a result of the dissemination of false information. In other words, defamation is where one party accuses another party of spreading harmful lies.

The source of the law on defamation varies across Canada. In Ontario, the law on defamation can be found in the Libel and Slander Act. Libel refers to defamatory words that are part of a permanent record, typically, because they have been recorded in writing. Slander refers to defamatory words without a permanent record. These may be statements that are spoken out loud and may even consist of non-verbal communications.

To establish something is defamatory a plaintiff (that is, a person who is suing someone) must prove three elements:

A statement was made by the defendant about the plaintiff;
A reasonable person would conclude that the statement harms the reputation of the plaintiff; and
The statement was communicated to at least one person other than the plaintiff.

This is a low very threshold. It is typically not difficult for a plaintiff to prove these three elements. Because a prima facie defamation suit is so easy to establish, defamation cases are usually determined by the defences.

Defences to Defamation

For writers, the three most important defences against allegations of defamation are:

True Statement/Justification – True statements are not defamatory. Once a statement is determined to be prima facie defamatory, there is a presumption that the words are false. A defendant can defeat a plaintiff’s claim by proving that the statement is true.
Fair Comment –This defence is often relied upon in journalism, as it protects free expression. A defendant may be able to successfully defend a defamation claim if they establish their statements are comments on matters of public debate. For a defendant to succeed, the statements must be recognizable as comment (that is, an expression of opinion), be made without malice, based on proven fact, and relate to a matter of public interest.
Responsible Communication on Matters of Public Interest – This defence is a favourite of media defendants, such as newspapers. The statement made must relate to a matter of public interest and the defendant must have attempted to verify the allegation. In other words, the question is whether the communication was made responsibly.

Other defences to defamation include Absolute Privilege, Qualified Privilege, Consent, and Innocent Dissemination. However, these defences are not usually relied upon by writers.

Questions and Considerations for Writers

With all of this legal discussion, the primary question remains: as a writer, what do I need to do to protect myself from a claim of defamation?

First, consider if the statement would be regarded as harmful to the person’s reputation in the eyes of a reasonable person. If the statement is not harmful, it is unlikely to be defamatory.

If the statement is likely to harm someone’s reputation, consider if the statement is true. If the answer is “yes”, then you have a good defence. If the answer is “no”, determine whether your circumstances place you and your statements within one of the recognized defences. If none of the defences apply, then you may be at risk of a claim.

Consider Changing Names

One way to reduce risk is to change the names within statements. Make up a new name for individuals instead of using real names. This is not an iron-clad strategy as a statement does not need to identify a person by name in order to be defamatory. However, it may help to disconnect your statement from real people, and thereby weaken the argument that your statement is harmful. Of course, in some circumstances simply changing a name may not be effective, especially where there are other details that are sufficient to identify a real person.

Consider the Purpose of the Statement

The last point to keep in mind is to ask what the overall purpose of your statement is. Defamatory statements tend to be critical. Ask what the purpose of the criticism is? Does the criticism add value to your story or serve a greater purpose? May it be interpreted to be an attack? Is it made with malice? Having a bona fide purpose may help to reduce risk of defamation. Statements made carelessly, without regard for the subject individual, and especially with malice, are more likely to be defamatory.

Writer Defamation Conclusion

Defamation can be intimidating for writers. However, it is easy to plan and be confident in your writing if you understand the law and its limits. Keep a critical eye on your writing – the truth of your statements, as well as the subject and purpose of them. Once you understand what defamation is you can write knowing where the line is drawn (hopefully). If you are a writer and have questions about defamation or publishing works, we encourage you to speak with Edwards Creative Law or another entertainment lawyer.

For information about other topics in publishing law, we encourage you to visit our blog entitled Collaborating with Other Artists and Other Writers.

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Canadian Copyright Law: Does Digitally Restoring Public Domain Films Revive Copyright?

Erin Moskal — Mon, 09 May 2022 17:46:03 +0000

Canadian Copyright Law – Introduction

Canadian Copyright Law: Does Digitally Restoring Public Domain Films Revive Copyright? Copyright can be a muddy area of law, despite the Copyright Act (Canada). One reason is the difficulty the law has in keeping up with emerging technologies. The digital restoration of old films is one example.

This is an era of digital restorations and re-releases of old films but the copyright status of those restorations is unclear. Does the digital restorer have copyright in the restored version of a public domain film or can it be freely used by a third party on the basis that the film is in the public domain?

This blog explores how, if at all, digitizing and/or restoring a film is treated under copyright law in Canada? More specifically, if the film in the public domain and copyright has expired, is the digital restoration of the film result in a copyright in the digitally restored version?

The Nature of Copyright

Copyright law in Canada is governed by the common law and by the Copyright Act (the “Act”) Copyright subsists in every original literary, dramatic, musical, and artistic work if it meets certain requirements set out in the Act.

The threshold for what is “original” is not particularly high. What is required is an exercise of skill and judgment: the work must be more than a mere copy of another work, but it need not be creative.

In CCH Canadian Ltd. v Law Society of Upper Canada [2004] 1 SCR 339, the Supreme Court of Canada wrote the following about the exercise of skill and judgement:

[Skill, means] the use of one’s knowledge, developed aptitude or practiced ability in producing the work. [Judgment means] the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.

Canadian Copyright Law and Digital Restoration

Canadian courts have not considered specifically whether digital restoration of a film gives rise to copyright in the digitally restored version. However, we can draw certain conclusions about the probable outcome based on the exercise of skill and judgement required to digitally restore a film.

The digitization of film can be a process that is solely automated, and software based. There is widely available software that can perform the process of converting tape to digital file that takes only a trivial human effort. The process of film restoration, on the other hand, is not so rote. Often, restoring film refers to the actual repair of damaged film in order to restore what was originally captured. Restoration may also involve digital colour correction or audio manipulation. Restoration is not a purely mechanical process, but one that requires a combination of “evaluation of different options”, “intellectual effort” and “practiced ability”.

The Criterion Collection is one organization that frequently re-releases digitally restored versions of older films. Lee Kline, Criterion’s technical director, in speaking about the process involved in Criterion’s digital restoration of Alfred Hitchcock’s film, Foreign Correspondent, offered the following insights:

“[T]he first step in the process is tracking down the negative, or a print, that is in decent condition. In this case, that meant going to the Library of Congress, which had the original negative of the film. Criterion scanned it at 2K resolution, frame by frame, into digital files … Color is graded; dirt and scratches are retouched; audio is remastered. The team uses a combination of automated software that detects and removes flaws in the image, and manual re-touching of every frame. The entire process can from [sic] a few weeks to a few months for a single film, depending on the original condition it was in. [Emphasis added]

Kline adds that restoration of a film involves determining what the restored film should look like. To do this the works of both the director and cinematographer from the relevant time period are considered, as well as whether the film was shot on location or in studio.

Kline’s comments show that the process of digital restoration is a combination of automated software and human effort. If a film’s digital restoration follows a similar process, the resulting digital restoration may well be protected by copyright.

Canadian Copyright Law – Conclusion

Like most novel legal questions, we will not have certainty until it is addressed by our courts or legislature. However, some answers are more likely than others.

If you are looking to copyright a public domain film that you have digitally restored, you will need to ensure that the exercise of skill and judgment is evident in your process. Simply running automated software will not suffice. Adding in your own elements or touches to the digitally restored version makes a stronger argument for passing the originality test. On the other hand, if you would like to use another individual’s digital restoration of a public domain film, you need to be equally aware that the digitally restored version may be subject to a new copyright. Contacting the individual that digitally restored the film and understanding their process is a good first step.

For further information about copyright law, we encourage you to reach out to us for a consultation or visit our blog on Moral Rights in Canada.

Updated to April 11, 2022

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(Existing) Music in Productions – The Unsung Hero

Erin Moskal — Mon, 11 Apr 2022 15:33:23 +0000

(Existing) Music in Productions – Introduction

Music may be the unsung hero (pardon the pun) of film and television productions. From short films to full length pictures, from web series to TV series, and everything in between; music more often than not plays a vital role.

For a producer seeking to obtain music for use in a production there are three main options:

To license existing music from a musician/band;
To commission the recording of new music (from an individual song to a complete score); or
To license music from music libraries and catalogues. This blog’s focus is option (1): licensing existing music.

The Two Types of Rights

To feature music within a production you must, at the very least, obtain the following two necessary rights:

The master use right (typically attained through a “master use licence”) which is the right to use a specific sound recording of a song/composition; and
The synchronization right (typically attained through a “sync licence”) which is the right to use the underlying composition.

To use a piece of music, you must first obtain permission from the rightsholders. This includes everyone who controls a share of the recording (for a master use licence) or the composition (for a sync licence). In Canada, where the rights are held by multiple people, any one of them can prevent the music from being used by the others. This includes preventing the others from issuing master and sync licences.

Who Provides These Rights?

Master Use License

A master use license is granted by the party or parties who own or control the rights to the recording. Independent artists generally own their own masters and are in a position to make those decisions. An artist signed to a record label generally does not control those rights, which are held by label; however depending on the label’s deal with the artist, the label may require the artist’s prior written approval.

To figure out who controls the rights, ask the artist or label directly, or contact one of the artist’s representatives, such as their manager or lawyer. Sometimes this contact information is easily available on the artist’s web site or Facebook page, and sometimes you will need the help of others to find it.

Sync License

Writers control decisions about the use of their compositions; that is, until they give those rights away. A writer is “self-published” – meaning they are their own publisher – until another music publisher gets granted such rights.

The publisher is the person or company who must grant permission for the composition’s use in a production. For example, if I write a song and don’t have a deal in place with a publisher, I control my own publishing. If I have a publisher, that publisher likely controls the publishing rights in my composition. If I write the song with Jimmy, and if neither Jimmy nor I assign publishing rights to anyone else, Jimmy and I jointly control the publishing rights.

To figure out who controls the publishing rights, one option is to search for the composition in the SOCAN repertoire which lists the composers/authors and publishers, if any, for many compositions. Sometimes, if there are multiple people and companies listed on SOCAN’s repertoire, one of those people or companies controls the decision about the use of the composition.

By way of further example, if Jimmy and I co-write a composition, and don’t have publishers, only Jimmy and I will be listed in the SOCAN repertoire. If my music publisher is Warner Chappell Music Canada and Jimmy’s publisher is Sony ATV, then the SOCAN registration would list Jimmy, me, Warner Chappell and Sony ATV. In this scenario, to get the sync rights to use the composition, both Warner Chappell and Sony ATV would need to approve the use and the fee. The information on SOCAN’s website is available to anyone.

Fees

If there are multiple players involved, such as two publishers, they may want to ensure they’re getting as much money as possible. A publisher may ask that their fee be on a most favoured nations basis, meaning that if you offer Warner Chappell $500 for my 50% share of the publishing rights, and Sony ATV agrees to license Jimmy’s 50% share of the publishing rights for $400 on a most favoured nations basis, then $500 needs to be paid to Sony ATV instead of the $400.

Generally, the fee for both the master use and sync licenses are equal, caused in part by “most favoured nations” requests.^[1] A common related term is “sides”. Each of the master use and sync licenses are commonly referred to as a “side”. So, if you receive a quotation for the use of a song and master as being “$500 per side”, then the total fees paid for licensing both sides of the track would be $1,000.

We are often asked by producers how much they should pay for the master and sync rights. The answer we give is that prices vary drastically across the industry – but generally speaking, the higher the budget of the production, the higher the fee. Also, if the production is going to air on TV (ideally a lot), producers should remind rightsholders of the money they can receive from performance rights royalties through SOCAN and its partners around the world. If the program is successful these royalties may exceed any upfront fees.

We are often asked by musicians how much they should request to license their master and sync rights. Musicians should consider asking for payment on a most favoured nations basis, meaning that what they receive will be at least as much as what is paid for other music used in the production.

Song Covers

You may choose to use a “cover” of a song rather than an original recording. This may be because you want a new take on an existing song (e.g. a song that features a woman vocalist that originally featured a man). It may be to save money. If you want to use a popular song, but can’t afford it, one option may be to pay a lesser amount for the right to use a cover recording. This would mean you pay for the sync rights to the original composition, and for the master rights to the cover recording. There are various ways to get a cover recording: from hiring a musician to finding a cover online.

Practically speaking, where the owner of the music publishing and the master recording are related or “friendly” to one-another, the music publisher will often refuse to license “sound-alikes” in order to ensure the master owner gets paid for their side. There are even cases where a performer owns or has approval rights over the music publishing in a hit that they have “re-recorded” (think Taylor Swift), and they will only ever license the music publishing if the licensee also agrees to use the re-record of the track.

Grant of Rights

It’s important you get the master use and sync rights in perpetuity (forever), throughout the universe, in all media.

If your rights don’t last forever, you must go back to get more rights if you want to exploit those rights at a later date. It will add a complication with your distributor if you don’t have the music rights in perpetuity.

If your rights don’t cover the “universe” – for example, if the rights are limited to a certain geographical area – you may need to go back to get more rights if you and your distributor want to exploit the rights around the world. It will add a complication with your distributor if you don’t have the music rights throughout the universe.

If your rights don’t cover “all media” – for example, the rights are only for use on the Internet – you will need to get more rights if you want to exploit the rights in other media, such as video-on-demand. The rights should be granted for all media “now known or hereafter devised (invented).” Invariably, the future will produce new forms of distribution that are presently unknown, and your grant of rights should anticipate such future developments. For example, a long time ago if music rights were provided to a producer for TV only, the producer would need to go back to the rightsholders if the producer wanted to distribute the series on DVD, and nowadays for streaming, and much more.

(Existing) Music in Productions – Conclusion

This process has the potential to get more complicated. The more players there are involved and the higher the profile the recording and composition the greater likelihood of complexity. One way to navigate these waters is to engage a music supervisor to help you get the rights needed for a price you can afford.

If you need ever assistance or advice regarding the concepts discussed above, please let us know and we would be happy to help.

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Updated to April 11, 2022

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Moral Rights in (Canadian) Copyright Law – What You Need to Know

Erin Moskal — Fri, 25 Mar 2022 12:30:19 +0000

Moral Rights in (Canadian) Copyright Law – Introduction

Moral rights in a copyright work are entirely separate from the legal or economic rights. They can not be sold or transferred, and they can only be waived, which they frequently are in entertainment law agreements.

What exactly are moral rights? What are authors giving up when they waive their moral rights? Why is waiving moral rights important for some purchasers or licensees of an author’s works?

The Background

Generally, moral rights in copyright law protect an author’s connection to and vision for the work. (Note: author refers to any creator of a copyrightable work, such as a book, song, screenplay, design, painting, and so on).

The definition of moral rights in Canada is found in sections 14.1 and 14.2 (re authors) and sections 17.1 and 17.2 (re performers) of Canada’s Copyright Act (the “Act”). The author has the following moral rights:

to the integrity of the work,
to be associated with the work as its author by name or under a pseudonym, and
to remain anonymous.

The Act states that moral rights cannot be assigned but may be waived, in whole or in part, by the author. An assignment of copyright does not, by itself, constitute a waiver of any moral rights. There must be express language detailing the waiver.

Where the waiver is made in favour of an owner or licensee of copyright, it may be invoked by the owner or licensee as well as by anyone authorized by the owner or licensee to use the work. Moral rights continue for the duration of the copyright in the subject work and, when the author dies, the author’s moral rights pass to their successors (for further detail see section 14.2(2) of the Act).

The Right to Integrity of the Work

In the context of moral rights, integrity refers to maintaining the author’s intended meaning of the work and protecting it from defamation or destruction. For example, this right protects the work from being altered in a way that is counter to its original intention without the author’s permission.

It also protects the context in which the work is presented and protects it from being used in a way that is derogatory or offensive to the work. It protects the work from being destroyed without first being offered back to the author.

When a work is being incorporated in a larger work, a waiver of the right to integrity is critical. Such a use almost always involves adapting the work, effectively violating its integrity.

For example, without a waiver, an animator’s character designs for an animated film or series could not be revised and the author would need to approve each context (story) in which they were used, which is completely impractical and would likely render the work unusable by the producer.

The Right to Association

The right to association protects an author’s right to be credited in connection with the use of their work. The author has the right to be named publicly as author of the work. This right also allows the author to determine how and in what context their work is used and how they are associated with it. This right has been said to exist even after the author no longer owns the work.

For example, this right may allow an author to remove their work from a museum exhibition even where the museum owns the work. Alternately, the author may choose to remove their credit or association to the work from the museum’s exhibition.

Waiving the author’s right to association means that the owner or licensee of the work does not have to credit the author to use of the work. However, despite the general waiver of this moral right, most agreements under which works are sold or licenced will contain a clause that expressly defines the specific credit to be given to the author.

The Right to Remain Anonymous

The converse of the right of association is the right to remain anonymous. The author has the right not to be credited for or associated with their work.

Moral Rights in (Canadian) Copyright Law – Conclusion

Moral rights are found in many types of entertainment law agreements. As with other provisions, it is important for the parties to understand them and the implications of their waiver or non-waiver. If you are a creator of copyright works or someone who purchases or licenses such works, and have questions about moral rights, we encourage you to speak with Edwards Creative Law or another entertainment lawyer.

For information about other instances of gathering and waiving rights in agreements, we encourage you to visit our blog entitled Gathering and Waiving Rights – Ask An Entertainment Lawyer.

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Updated to March 24, 2022

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