Digital Media – 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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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.

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Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
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Esports Sponsorships – Activities, Opportunities & Considerations

Erin Moskal — Wed, 24 May 2023 20:38:45 +0000

Esports Sponsorships Introduction

Sponsorships in Esports are an integral part of the landscape, just as they are in traditional spectator sports. Esports is an exploding entertainment sector on pace to outstrip the film and television industry in terms of sheer economic activity. Sponsorship – in terms of volume and complexity – is one of the fastest-growing and effective marketing communication tools with respect to Esports.

Currently, there are more sponsorship opportunities at the team level compared to those for individual gamers/athletes. But as individual athletes grow their own fan bases, athlete-specific sponsorships opportunities are on the rise.

Whether in acting, music, or the traditional sports realm, the legal considerations for Esports sponsorships generally align with considerations for other forms of sponsorship for talent. This blog will look at a few of those overlapping considerations, as well as some of the considerations that are specific to Esports sponsorships.

General Considerations in Esports Sponsorships

In any sponsorship deal, the sponsored activity is one of the primary items to be clearly identified. For the sponsor, the scope of the activity and the obligations of the sponsored athlete (or musical artist, influencer, etc.) tied to the activity should be as broad as possible, whereas it is to the sponsored athlete’s benefit to limit the ambit of that activity as much as possible.

The activity could include participation at an in-person or online Esports event, wearing sponsored clothing, or using a sponsored product.

Intellectual Property and Rights in Esports

The heart of any sponsorship agreement is the rights of association and all related rights that are granted to the sponsor. However, from the sponsored athlete’s perspective, it is important to limit those rights to ones that are necessary to carry out the sponsorship.

A sponsored athlete must deliver marketing and promotional value to the sponsor by its association with the sponsored athlete but wants to reserve any rights to itself not necessary to carry out the sponsorship. This helps the sponsored athlete maintain control of their brand and preserves potential future opportunities based on the rights it didn’t grant in a particular sponsorship.

One example is a sponsored athlete agreeing to appear at sponsored event and to allow promotion of that fact, but not granting the rights to film/record and make content for social media of their appearance at the event (unless of course, the sponsor is willing to pay more for that right).

Typically, a brand will want to be the “exclusive sponsor” associated with any sponsored athlete. But a sponsored athlete will generally want to try to limit the scope of that exclusivity, whether based on the territory that the exclusivity applies to (e.g. “Canada only”), or product category (e.g. “the exclusive energy drink sponsor”) and most definitely by the time period or term of the exclusivity.

The sponsored athlete will also need to grant the necessary sponsorship and other marketing and media rights for the sponsor to engage in all promotional activities contemplated in the agreement.

What Forms of Payment are Available?

Compensation generally comes in the form of a fee to a sponsored athlete, or the benefit derived by a sponsored athlete from a sponsorship arrangement. Fees are the most traditional form, but another common way to provide a benefit to the sponsored athlete is “in kind” consideration.

For example, a brand/sponsor may only provide free product (e.g. energy drink supplies) to an individual in exchange for some form of marketing or promotion by the sponsored athlete.

Often, there will be some combination of fee and “in kind” consideration provided for in the sponsorship agreement.

Esports Sponsors – Advertising and Promotion

In all sponsorship agreements, it is important to determine what advertising and promotional obligations a sponsored athlete takes on.

What are their deliverables?
Is it to use their social media platforms to amplify the brand the sponsor?
How many times are they required to post to social, for example, during the duration of the agreement?
Three times a week? Monthly?
What messages are they going to put out on social?
What level of approval does the sponsor have over the message being delivered through the channels?

Generally, as with other social media influencers like Esports athletes, the question of authenticity often comes up.

Is the product or brand sponsoring anything the athlete would naturally be associated with or use?
Is the product or brand off-base or disconnected from the athlete?
If so, does the sponsorship ultimately do damage to the brand of both the athlete and the sponsor?

Specific Considerations for Esports Sponsorship Deals

Like all sponsorships in entertainment or in traditional sports, the timing of key events in a season will dictate how much urgency, and therefore, leverage an athlete has in negotiating a sponsorship deal.

For that reason, it is important that Esports advisors and lawyers know the key dates in an athlete’s season, as well as upcoming tournaments, and use these dates and potential results to parlay them into a better deal for the athlete.

What are “Break Clauses”?

All sponsorship agreements can potentially contain a “break” clause which allows one of the parties to terminate the agreement early in specific situations.

A specific application of a break clause to an Esports sponsorship may provide a right to terminate a sponsorship in favour of the sponsored athlete if the athlete misses an event or fails to reach a particular threshold (e.g., not making it through to the next round of a gaming tournament).

More athlete-friendly break clauses may provide for an athlete to terminate a sponsorship without further obligation where a sponsor loses its official status with a particular league, or it may instead provide that a sponsor loses their renewal rights under the agreement.

Esports-Specific Payment Considerations

Again, the level and timing of payments are important in all sponsorship arrangements. How much of the sponsorship fee is paid upfront versus paid over specified milestones? Additionally, how much of the compensation is contingent on the sponsored athlete reaching certain thresholds?

Events can often act as triggers for payments to sponsored athletes, which acts as a hold back on sponsorship fees until closer to the time that a sponsored athlete is scheduled to receive the benefits of the sponsorship arrangement.

This allows for payments and cashflow to occur at a time closer to when the promotional benefits provided by athletes are realized when based on events (e.g. the League of Legends World Championships), rather than dates in the future. In Esports, payments schedules and thresholds are often determined based on the last fixture in a tournament, which provides incentive for an athlete to continue providing benefits to the sponsor until the tournament is over, regardless of their involvement in the last fixture.

For help with your esports sponsorship agreement, whether as a sponsor, or as someone receiving a sponsorship opportunity, or sponsorship generally, please get in contact with us. We are happy to help!

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
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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

Influencer Contracts: Top 10 Legal Considerations

Erin Moskal — Fri, 07 Oct 2022 20:30:17 +0000

Social Media Influencers

Social media influencers are killing it these days. The highest paid influencers can earn up to one million dollars for a single post! If people aspire to earn a living as an influencer (or perhaps just make some cash on the side), it may be exciting to receive an offer from a company who wants them to promote their products – typically in the form of a contract known as an influencer agreement. However, there are some things they should keep in mind before signing on the dotted line.

This blog discusses 10 common legal considerations that arise in an influencer contract. We got in touch with the founder of MODERNSPEAK Kristyn Snell who shared some valuable tips based on her experience running an influencer management agency. The blog post does not discuss what an influencer’s followers might think about their vegan cooking brand if they decide to promote a new line of beef hotdogs.

Preliminary Considerations

First, a couple preliminaries about influencer contracts: this contract may or may not be with the sponsor directly. Influencer contracts are often signed with marketing companies hired by the sponsor to promote the sponsor’s brand, and they would in turn engage an influencer.

Components of an Influencer Contract

If an influencer is presented with a contract for an influencer marketing campaign, there will generally be two parts: the terms and conditions and a statement of work (“SOW”). The terms and conditions usually contain the sponsor’s standard contractual terms and may or may not be negotiable. The SOW describes the specific nature of the engagement as an influencer promoting a sponsor.

Top Considerations Before Signing

Now, on to the main event. Below are ten common considerations to keep in mind when deciding whether to agree to an influencer partnership agreement:

1. Exclusivity

If there’s an exclusivity requirement, there should be as much clarity as possible about the specific companies and/or brands that an influencer cannot promote, and for how long. Exclusivity requirements are generally considered by courts to be acceptable kinds of restrictions in a talent or influencer contracts, so long as the restrictions are reasonable, and the influencer is being paid enough.

Kristyn Snell the founder of MODERNSPEAK influencer management agency says:
We can’t think about exclusivity without also considering usage. Usage refers to how a brand will be using the influencer content after it’s created. From organic social sharing to paid advertising and everything in between, one thing to consider when it comes to these two common clauses is the length of both terms. If an exclusivity term is 3 months, but a usage term is 6 months that could be implied exclusivity based on how the brand will be using the influencer’s likeness to promote the product for that extra term.

2. Compensation

Speaking of being paid enough, how much will the influencer be paid? What’s the payment schedule? There should be clarity about what the influencer needs to do to get paid. If the influencer collects HST or another form of tax, they must be sure to ensure their fee is plus applicable taxes. They wouldn’t want to have to be in a situation where the fee includes any taxes owing.

Kristyn’s experience has taught her an important lesson when it comes to compensation and conversion fees. If a brand agrees to pay the equivalent of an influencer’s home currency fee in their currency, the influencer must be sure to protect themselves from potential fluctuation on that currency conversion, so they aren’t losing out on money when it comes time to get paid. And they should consider fighting for NET 30 payment as well as a portion of their fees upon signing of the contract.

3. Likeness

An influencer’s image is their livelihood. While the sponsor should be given the right to use the influencer’s image for the campaign, they should make sure they are allowed to do all that they want to with the influencer’s image, so long as the influencer is not offside of the limited set of exclusivity obligations. Also, the influencer would want to have approval over which images and likenesses of themselves the sponsor is allowed to use for the campaign.

4. Termination

Under what conditions may an influencer be terminated? Sponsors often require the right to terminate “without cause” or for “convenience,” meaning the influencer may not have done anything wrong. In that case, how much will the influencer be paid for what they’ve done so far? What about for their troubles generally? Maybe it’s not enough.

Also, sponsors are more sensitive than ever to what might be mined from the past 15 years of an influencer’s social media posts. In addition to doing their diligence on an influencer, a sponsor will often include a morals clause in an influencer contract that allows for their termination and/or damages should they be convicted of a crime, or if some other unsavoury information comes to light.

Kristyn Snell: Consider also including a reverse morals clause where an influencer may terminate the relationship with the brand if they are also found to be in moral conflict and the influencer, being tied to the brand, could be damaging to their reputation. It’s also a good idea to add a Kill Fee to an influencer contracts so if a brand does decide to terminate the contract before all the deliverables are completed an influencer can be paid for the work that has been done.

5. Sponsored Posts

What are the requirements about how an influencer identifies their relationship with their sponsor? They must be sure to be on the same page.

6. Approvals

The influencer must sure there is clarity about the approval process, so that they are not later told the agreement is terminated because they didn’t get approval for a video they’d already posted to Instagram or another social media platform.

7. Deadlines

If an influencer will be offside of their obligation for missing deadlines, are the deadlines clearly set in the agreement? Also, are they reasonable in the circumstances? How should deadlines automatically extend if an influencer is waiting for approvals? When it comes to setting the rates for an influencer marketing campaign, consider adding in a rush fee for any requests that are less than two weeks from contract to live dates.

8. The “Entire Agreement” Clause

If amendments to the contract need to be in writing, an influencer shouldn’t rely on a phone call letting them know the deadline to deliver was extended. The influencer must ensure the agreement clarifies how changes can be made, and they must ensure they follow the steps when there are changes to the arrangement.

9. Content Ownership

If there’s any reason why the sponsor shouldn’t own all the influencer’s content being made for the campaign, ensure the appropriate arrangement for all intellectual property is clearly outlined in the influencer contract. Regardless of copyright ownership, for how long can the sponsor use the content?

10. Scope of Deliverables

The influencer should ensure that the SOW clearly defines what they need to deliver. They will want to avoid “scope creep,” which happens when there are open-ended obligations to deliver content, and the influencer is continuously asked to deliver more (well beyond what they expected) for no additional compensation. Clarity between the influencer and the sponsor regarding their influencer marketing campaigns obligations will help lead to a healthier relationship, whether an influencer is promoting a skin cream or anything else under the sun.

Working with an Entertainment Lawyer

If you need help to review your influencer contract, or draft an influencer contract template, please get in touch. We work with influencers to ensure their rights are protected and they clearly understand their obligations. We also work with managers and agents to help review the influencer contracts their clients are offered, and answer any related legal questions.

About Our Co-blogger

With over ten year’s experience in public relations and influencer marketing, Kristyn founded MODERNSPEAK, a global creator management agency in 2019. Kristyn is most creative when surrounded by people, collaborating, mentoring and bridging opportunities between creatives, consumer brands and tourism destinations. When her dream job didn’t exist, she created it.

https://www.modernspeak.co/
https://www.instagram.com/modernspeak
https://www.linkedin.com/company/modernspeak-inc

Updated to September 20, 2022

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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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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ABCDEF GEE, What’s The Deal with Music Interpolations?

Erin Moskal — Fri, 22 Apr 2022 11:30:49 +0000

Music Interpolations – Introduction

The biggest song in the world, at the moment this is being written, is Gayle’s, abcdefu – a very catchy song about an ex-boyfriend.

The song inspired talented Canadian artist Tyler Shaw, to offer his own take on the pop hit: the romantic, Love You Still (abcdefu romantic version).

The Original

Gayle’s version of the chorus begins:

A-B-C-D-E, F-U

And your mom and your sister and your job

(don’t worry, she’s not mad at her ex’s dog)

Tyler’s Version

Tyler’s version goes like this:

A-B-C-D-E-F-G-H-I love you still

And you know I always will

More Than A Cover

Tyler’s version is definitely based on Gayle’s version – Tyler doesn’t deny that – but Tyler’s version is not considered to be a “cover” of Gayle’s song.

Why is this? Tyler’s version is something more than a cover – it changes important elements of the song, most notably, the lyrics, and creates a derivative of the original song. Despite not being a cover, Tyler’s version (no, not Taylor’s version) is based on Gayle’s composition. As such, in order to produce his version, Tyler’s team needed permission from the people and/or companies that represent Gayle’s composition.

Like with most songs, they are not just written by one person, and to find out who the writers and publishers are of that composition. One place to find out who the owners of a composition are, is the ASCAP Repertory. From a search of the composition, you can see the list of writers, and Universal Music representing each of three writers, either directly or indirectly. A search on SOCAN’s Public Repertoire yields different search results in this case, … but that’s for another blog.

Music Interpolations Or Derivative Works

Whether its an interpolation or a derivative work – one composition is based on the other – and permission is needed. In the case of Tyler Shaw’s, Love You Still (abcdefu romantic version), he needed permission from Universal Music.

Check out the credits on the song on Tyler’s song – they list the same writers as Gayle’s version, plus Tyler. To be clear, simply giving people credit does not mean you have permission to use their music; however, in order to get permission you may need to promise to give credit where its due: to the writers and publishers of the original work. Giving credit where it’s due – both are strong songs in their own right.

Unfortunately, finding the proper rightsholder is only the first challenge. The next one is getting them to respond to you, at all, let alone getting them to give you permission to use their composition.

Response Songs

Another popular type of derivative works are “response songs” – especially on TikTok. Response songs are written from the perspective of a different character in the same song. The artist recording the response song is generally not the writer or owner of the original song. Response songs usually require permission from the rightsholder as well, being the publisher(s) of the original song, as there tend to be elements of the response song taken from the original.

Also to note is that every song writer is their own music publisher until they provide their publishing rights to someone else. For more information about publishing rights, here are some of our blogs: Music Rights Administration and Music Publishing Agreements

Copyright: Recording v. Composition

So far, I have focused my discussion on the rights in the composition – the underlying written music of the song – and have not addressed the rights in Gayle’s recording. The copyright in Gayle’s recording is distinct from the copyright in the underlying composition. Tyler does not need permission to use the recording if none of it is used in his song. In fact, Tyler did not use any of the original recording in his version, and no permission was required. However, if someone wanted to sample Gayle’s abcdefu, they would need permission would from both the owner of the recording and the owner of the composition.

Music Interpolations – Conclusion

If you have questions about who you need to get rights from, or about the process, or if you need help navigating the agreement that a publishing company provides to you, we can help.

In the meantime, here are the videos for the two songs:

Gayle’s abcdefu (original version)

Tyler Shaw’s Love You Still (abcdefu romantic version)

Is there a great song out there you have a unique take on – perhaps with new lyrics?

Updated to April 11, 2022

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10 Software Services Agreement Tips

Erin Moskal — Fri, 01 Apr 2022 12:30:37 +0000

10 Software Services Agreement Tips – Introduction

If your team creates software solutions, the following service agreement tips should provide some of the key issues to cover in your initial discussions with a potential client.

Statement of Work

The agreement should include a statement of work, which identifies the project’s scope and the respective responsibilities of you and your client. Oftentimes, if conflict arises, it’s because the scope wasn’t properly defined, which led you and your client to interpret the extent of each party’s obligations differently.

Proprietary Rights

While creating the work as the service provider, you may create new generic elements that you want the right to use for future client work. Therefore, ensure these generic elements (and third-party software) are distinguished from the code that will be owned by your client. Review the agreement sections detailing ownership of the Intellectual Property so that you and your client are clear on who will own and have the right to use elements of the work created.

Delivery

How and when is the work being delivered? Ensure the answers are clearly outlined and are attainable.

Fees

Clarify what you are being paid and when. It can’t hurt to clarify that HST, if applicable, will be added. Regarding the payment schedule, one option is that a portion is paid when the agreement is signed, and the rest is paid on milestones associated with deliverables. Consider your cash flow before agreeing to a schedule that seems too delivery-focused. Also, you can leverage Intellectual Property to ensure payment by making sure that the full rights to use the deliverables don’t transfer to the client until payment is received in full.

Change Requests

Plans change over time, and the scope of your arrangement may need to be amended at some point along the way. To plan for this, there should be a process set out in the agreement to account for change orders. The process should require changes orders be made clearly and in writing, and that changes in fees and schedule are spelled out and agreed.

Warranty versus Maintenance and Support Services

Are maintenance and support services included in your fee? If so, to what extent will these services be provided before you start charging extra? Also, how will both parties deal with any defects in the deliverables? Do you provide a period of warranty to cover your client for a certain amount of time, or indefinitely, to fix bugs?

Delays

What situations should extend the deadlines? If your client is late on providing you assets or the collateral you need to finish the job, how should the deadlines be amended? Who will bear the cost resulting from delays?

Publicity

Do you intend to showcase the client’s logo and a sample of the work you’ve done for the client on your web site? Be sure to get the go ahead in advance.

Indemnification

Among other protections, the agreement should provide that the client will cover you should the assets they provided (such as their artwork / logos) infringe the rights of others. Why should you be exposed? Make sure that risk stays with the client.

The Right Client

A well-drafted agreement can only go so far in helping you deal with a difficult client. If, during pre-agreement discussions, the client is being very difficult, demanding unrealistic timeliness, and/or providing insufficient financial incentives, they may not be the right client for you. While it’s easier to say no to a potential client when you have other opportunities available, not having other business might not be a good enough reason to do business with a client that isn’t a good fit.

10 Software Services Agreement Tips – Conclusion

This blog merely scratches the surface of considerations to keep in mind when working with service agreements. If you are a software service provider or potential client, and have questions about service agreements, 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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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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Five New Year’s Resolutions From Your Local Entertainment Lawyers

New Year’s Resolution #1: Don’t Rush

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Conclusion

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

Introduction: Your Path to Success with an Entertainment Lawyer

What is an Entertainment Lawyer?

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What Does An Entertainment Lawyer Do?

Contract Negotiation and Review

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Why Do I Need An Entertainment Lawyer?

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Industries Served by Entertainment Lawyers

Live Action and Animation

Video Game, App, and Software Development

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Conclusion: Your Path to Success with an Entertainment Lawyer

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Esports Sponsorships – Activities, Opportunities & Considerations

Esports Sponsorships Introduction

General Considerations in Esports Sponsorships

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Intellectual Property and Rights in Esports

What Forms of Payment are Available?

Esports Sponsors – Advertising and Promotion

Specific Considerations for Esports Sponsorship Deals

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Esports-Specific Payment Considerations

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Corporate Law: Why, When & How to Incorporate Your Entertainment Business

Can an Entertainment Business Incorporate?

What are the Reasons to Incorporate your Company

Limited Liability

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Corporate Tax Credits

Investors

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The Process of Incorporating your Business

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Who Can Help you With Incorporating your Company?

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Influencer Contracts: Top 10 Legal Considerations

Social Media Influencers

Preliminary Considerations

Components of an Influencer Contract

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Top Considerations Before Signing

1. Exclusivity

2. Compensation

3. Likeness

4. Termination

5. Sponsored Posts

6. Approvals

7. Deadlines

8. The “Entire Agreement” Clause

9. Content Ownership

10. Scope of Deliverables

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