Software – 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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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.

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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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The Working for Workers Act, 2021, within the Entertainment Industry

Erin Moskal — Fri, 14 Jan 2022 16:00:25 +0000

The Working for Workers Act 2021 – Introduction

On December 2, 2021, Ontario Bill 27: Working for Workers Act, 2021, received Royal Assent and was passed into law. Bill 27 introduces new measures to improve employment standards for workers across the province. Most significantly, Bill 27 prohibits non-compete agreements between employers and employees, except in certain limited circumstances, and requires employer’s with 25 or more workers to have a “Disconnecting from Work” policy. This blog will discuss these key changes with a particular focus on the entertainment industry.

The Prohibition of Non-Compete Agreements

Bill 27 defines a non-compete agreement as “an agreement … between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.” Non-compete agreements have traditionally been used to stop former employees from starting their own business in competition with, or working for competitors of, their former employers.

The prohibition on non-compete agreements is straightforward and the sole exceptions are non-competition in the context of the sale of a business or in the case of “executives”. Bill 27 defines an executive as “any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position.” It remains to be seen how courts will interpret who qualifies as an “executive”, but it is likely that an employee’s duties within an organization will be more important than whether that employee’s job title contains the word “Chief”.

Notably, other employee-related restrictive covenants remain enforceable in Ontario, including agreements of non-solicitation (a prohibition on soliciting a former employee’s clients or employees), non-disclosure or confidentiality, and assignments of intellectual property.

The Right to Disconnect

Employers with 25 or more employees are now required to have a “Disconnecting from Work” policy. Bill 27 defines “disconnecting from work” as “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”. Employers with 25 or more employees as of January 1^st of any given year are now required to have a written policy setting out their disconnecting from work policy by March 1 of that year.

The importance of an employee’s right to “disconnect” from work at the end of the workday has gained acceptance, in significant measure due to the impact of COVID-19 on the workplace – in particular the increase in working from home, which has been widely recognized as having blurred the division between work life and home life.

Application to the Entertainment Industry

The prohibition of non-compete agreements and the right to disconnect from work are changes that will undoubtedly affect the entertainment industry. Production companies, animation and game development studios, artistic venues, management companies and labels, to name a few, will need to adjust their employment practices accordingly. On the other hand, truly independent contractors, who have and continue to play a large role in the entertainment industry, and who have always been outside the provisions of the Employment Standards Act, will not be affected by the new rules.

Working for Workers Act 2021 – Conclusion

As with all new legislation, the full impact of Bill 27 will take some time to reveal itself. If you are in the entertainment industry and have questions about how to apply these concepts to your specific circumstances as a worker or as an employer, or how to implement the new rules in your workplace we encourage you to speak with Edwards Creative Law or another entertainment or employment lawyer.

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Updated to January 12, 2022

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What is a Sunset Clause and why you should care?

Erin Moskal — Thu, 23 Dec 2021 20:31:11 +0000

What is a Sunset Clause – Introduction

Have you ever watched the sun go down on the beach? I bet you could actually see it wane into a tiny disc on the horizon, like a golden coin, and then evaporate in a whisper. The sun has officially “set”. Yet, it is not immediately dark. The afterglow often remains for an hour or two, providing some of the sky’s warmest and most dramatic colours. And that’s the end of my legal blog, enjoy your evening (signed, Bob Ross).

Breakdown

But that is not the end of my blog. My point is, that although “a thing” may be technically over, there is sometimes a residual period during which elements of the “now over thing” remain. A sunset clause in a contract is an example of this. A sunset clause provides for a set period of time, after the termination or expiration of a contract, during which one party continues to receive certain benefits (such as a share of revenue) under the contract. Often, sunset clauses are found in agent agreements in the film and television industry or manager agreement in the music world; however, sunset clauses are found in many other contexts as well.

Background

The theory behind sunset clauses is that, even though a contract has ended, a manager or an agent should still be entitled to receive benefits for work done by them during the term of the contract. Without a sunset clause, when a contract ends the artist may continue to benefit from the agent or manager’s work, without compensation to the agent or manager.

For example, a manager works for years to get an artist a big deal, which lands moments after the manager’s contract with the artist ends. The manager, the person responsible for bringing the deal to the artist, may be cut out. A sunset clause protects managers and agents in such a scenario.

What is a Sunset Clause – The time debate

How long should a manager be able to share in their former client’s income? Perhaps, like the light of dusk after the sun has set, it should decline after time. The manager likely has no active responsibilities or obligations to secure the income stream, even if the manager was directly responsible for having created the opportunity.

Leverage

Sunset clauses are not a foregone conclusion in an agreement. Like any provision, a party is only as likely to get the benefit a sunset provision if they have leverage to make the other party agree to it. What could such leverage be? Maybe the agent is a career-maker who greatly increases their clients’ prospects of having a successful career. Maybe the manager has a direct line to the head of A&R at Republic Records. To an artist, the prospect of paying a continuing revenue stream after having been made successful and wealthy may not seem so bad. But even managers who are not in the habit of making their clients career superstars may (and still do) ask for a sunset clause. However, always keep in mind managers need good talent to manage as much as artists need good, smart, connected agents and managers.

We help artists review sunset clauses they are asked to agree to when starting to work with an agent or manager. We also help managers prepare sunset clauses.

What is a Sunset Clause – Conclusion

The big question generally is whether a sunset clause is reasonable? One answer is that “sunset clauses are reasonable so long as they’re reasonable.” Helpful? The point is that not all sunset clauses are the same. There are many different ways a sunset clause can be written, just as there many different factors involved in preparing a sunset clause. Questions to consider when planning a sunset clause include how long the sunset clause will last, the scope of the revenues subject to the sunset clause, the commission percentage throughout the sunset clause term, and whether any specific outcomes must have happened during the term in order to trigger the sunset clause.

If you have received an agreement with a sunset clause, or if you want a client to sign an agreement with one, please let us know how we can help.

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Updated to December 23, 2021

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Esports: Opportunities and Legal Considerations for Creators

Erin Moskal — Fri, 17 Sep 2021 14:30:29 +0000

Esports: Opportunities and Legal Considerations for Creators – Introduction

Esports is an exciting, evolving and lucrative field of entertainment. On pace to outstrip the film and television industry in terms of sheer economic activity, Esports attracts an audience that is only eclipsed by the FIFA World Cup and the NFL Superbowl.

Esports is a term used to describe competitive video game playing, often taking the form of organized competitions involving professional gamers, massive prizes and huge audiences. Esports is not limited to sports games (e.g. FIFA, MLB The Show) but may encompass any video game. Popular Esports franchises include League of Legends and Counter-Strike. Esports are usually viewed over online streaming platforms, particularly YouTube and Twitch. The immense popularity and rapid growth of Esports has led to many opportunities for creators, as well as novel legal issues.

Direct Opportunities for Esports creators

Esports has led to obvious and direct opportunities for video game creators. The traditional model for video game creators to make their fortune is to make a video game, have it published by a reputable publisher, and reap untold rewards through the sale of the game; however, this route is not at all easy or assured. It also ignores that the Esports industry is mature enough to have incumbent publishers and game titles that already have massive audiences, e.g. Epic Games, the developer/publisher that brought us Fortnite and Rocket League (note, I play in the Rocket League but will not be live-streaming my games on Twitch anytime soon).

Ancillary Opportunities for Esports creators

In addition to the direct opportunities for video game creators, the rise of Esports has resulted in many ancillary opportunities for creative industries generally that were not previously common in the video game industry. These opportunities include sponsorship, music licensing, endorsement and brand partnerships. Esports, like other platforms, can leverage its huge audience into advertising and promotional dollars. This can take the form of sponsorship deals with Esports athletes (e.g. Lol star Faker and his team are part of a multi-million dollar deal with Nike for apparel and the creation of a training facility), team naming rights (Shopify Rebellion) and even branded brick-and-mortar “stadiums” where Esports are played.

The ancillary opportunities in the Esports industry are many, something of which I have first-hand knowledge.

I was lucky enough to serve as counsel for Universal Music Canada in a novel, innovative partnership and music licensing deal with OverActive Media (OAM), a Toronto-based company that owns a number of Esports team franchises including the Toronto Defiant and the Toronto Ultra. OAM plans to build a new, self-funded entertainment facility located on the Exhibition grounds in Toronto.

The deal with Universal Music Canada included the licensing of walk-up music for athletes, in-platform promotion of Universal Music artists and initiatives, and in-person events. I also acted as in-house counsel for Universal Music Canada on a partnership deal with Luminosity Gaming that included music and promotion of Universal artists on the platform.

Legal Considerations for Esports

Many of the legal considerations around the ancillary opportunities in Esports are the same as those that exist for “real” sports. For every sponsorship, music placement, brand partnership, or Esports based promotional event there are numerous considerations to be negotiated by the parties, including payment terms, benefits, responsibilities, and ownership of rights. Ideally, these terms are recorded in a contract signed by the parties. The parties must also consider what may legally be delivered to sponsors and whether content will infringe the rights of third-parties, including copyright, trademark rights, personality rights and the right not to be defamed.

Also, where there are sports of any kind, there is sports betting. While a fair amount of this will happen illegally, betting platforms and regulators from various countries have already begun to involve themselves in the activity and associated revenue of legal Esports gambling. In May 2018, the US Supreme Court ruled that federal government cannot limit states from regulating sports betting, opening the doors for legal Esports gambling to a massive audience. Countries where Esports gambling is currently legal include Canada, the UK and the United States.

Esports: Opportunities and Legal Considerations for Creators – Conclusion

Esports has taken the world by storm. How the law will adapt to this rapidly evolving field of entertainment remains to be seen, but evolve it will. If you have any questions or need any guidance with legal issues around Esports or endeavours related to Esports, please give us a call. We are happy to help!

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Updated to September 16,2021

Author: Burt Gidaro, Entertainment Lawyer

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 free 15 minute Discovery Call please feel free to Contact Us.

Edwards Creative Law Welcomes Entertainment Lawyer – Michael Duboff

Erin Moskal — Mon, 21 Jun 2021 17:51:54 +0000

At Edwards Creative Law, we’re passionate about providing entertainment legal services that exceed our client’s expectations. To help us fulfill that commitment, we’re extremely pleased to welcome Michael Duboff to our growing team of Canadian Entertainment Lawyers.

Michael is an entertainment lawyer with a focus on film, television, immigration, and litigation. He has worked with a variety of artists, facilitating projects and performance opportunities, locally and across the US border, and assisting them with organizing their business structures.

Born and raised in Winnipeg, Michael’s practice will have a special focus on Manitoba in addition to his Ontario clients.

Prior to working as a lawyer, Michael worked professionally in both the music and film/tv industries – as a musician in an alternative rock band and as a freelance director/writer/producer in Toronto and Vancouver. His passion for the arts and artists helps drive his practice and makes him grateful to be able to continue to work for and with the vibrant arts communities. Michael is a member of the Law Society of Ontario, the Canadian/Ontario Bar Association, Onscreen Manitoba and Manitoba Music.

To book a call with Michael to discuss your entertainment law projects please visit our contact section.
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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 and additional blogs, please visit www.edwardslaw.ca

Annual General Meetings in Canada and COVID-19

inkline_admin — Thu, 16 Apr 2020 17:43:15 +0000

Annual General Meetings in Canada and COVID-19 – Introduction

Annual General Meetings in Canada (“AGM”) are a requirement for both Federal and Provincial Corporations. Physical distancing in the time of COVID-19 has left many Ontario corporations wondering how and when they should proceed with their annual meeting. Generally, the Business Corporations Act (Ontario) (“OBCA”), requires an AGM to be held within 15 months of the last preceding AGM.

Ontario Corporation Legislation

Extensions of Time

To take pressure off Ontario corporations to hold an AGM the government of Ontario enacted O. Reg 107/20. Effective March 17, 2020, if the deadline to hold an AGM falls within the period of the COVID-19 declared emergency, then the deadline to hold an AGM is extended to 90 days after the end of the emergency. For corporations whose deadline to hold an AGM falls within 30 days after the end of the emergency, then the deadline to hold an AGM is extended to 120 days from the end of the emergency.

Alternatives to In-person Meetings

In addition, O. Reg 107/20 provides that all meetings of directors and shareholders, including the AGM, may be held by telephone or electronic means (which would include video conferencing) and explicitly overrides any provision of the articles or by-laws of an Ontario corporation requiring Annual General Meetings to be held in-person.

Federal Corporation Legislation

Timelines for Annual General Meetings in Canada

What about federal corporations incorporated under the Canada Business Corporation Act (“CBCA”)? Corporations Canada recently stated that Canada corporations must still observe the statutory timelines, which require an AGM to be held within 15 months of the previous AGM and no more than six months after the corporation’s financial year-end.

Amendments to Corporate By-Laws

Further, the CBCA only permits virtual AGMs if the corporate by-laws (or, in more limited circumstances, the articles) permit the corporation to do so. For Canada corporations whose articles or by-laws prohibit virtual meetings or are silent on the issue to comply with their obligations under the CBCA and the public health requirements of social distancing, the board of directors should amend the by-laws to permit virtual meetings, with the change effective until the next meeting of shareholders or members (when the change can be confirmed or rejected by the shareholders).

Annual General Meetings in Canada and COVID-19 – Conclusion

The other option for Canada corporations is to delay the AGM, which not-for-profits can do by applying to Corporations Canada. Unfortunately, business corporations need court approval.

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Author: Byron Pascoe, Entertainment Lawyer

Force Majeure – What you Need to Know

inkline_admin — Thu, 19 Mar 2020 22:15:34 +0000

Force Majeure & Current Events:

We all have many questions as we grapple with the sweeping effects of COVID-19 on our professional and personal lives. Many may find it difficult or impossible to perform their contractual obligations given the restrictions imposed in response to the outbreak. If COVID-19 makes it impossible for you to perform your contract on time, or at all, consider invoking the force majeure clause.

Canadian Contract Law:

In contract law, force majeure refers to events that are out of the control of the parties and that may make performance of the contract difficult or impossible. The underlying principle of a force majeure clause is that no party to a contract should be held to its obligations if performance is prevented or delayed by events that are both unforeseeable and beyond that party’s control. If you are unable to perform your contractual commitments as a result of the COVID-19 outbreak, a force majeure clause may relieve you of some or all of your obligations.

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Clause Application:

A force majeure clause typically starts with a list of specific events – for example, natural disasters, such as earthquakes, hurricanes and tsunamis as well as epidemics, quarantines and government shutdowns. If the parties clearly allocate the risk of a specified event, as an event that relieves the parties of their obligation to perform, even if it was foreseeable, it is likely to be enforced by the courts.

A force majeure clause typically ends with a general statement of the type of events (“Act of God”, “unforeseen”, “unavoidable”, etc.) that can be invoked to justify a party’s failure to perform. Even if a specific event is not listed, or the contract does not contain a force majeure clause, a court may still relieve a party of its obligations if the event was unforeseeable and beyond the party’s control.

Additional Resources: Thomson Reuters