Byron Pascoe – Edwards Creative Law

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

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

The History of #CandianContent Posts

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

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

New Canadian Music Releases in 2023

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

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

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

New 2023 Canadian Film and Television Series

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

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

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

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

Canadian Books Released in 2023

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

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

#CanadianContent – Video Games

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

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

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

Canada Day 2023 Concerts

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

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

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

Check out our popular blog posts:

Neighbouring Rights in Canada – Being a Musician is a Business
Setting up a Music Publishing Company in Canada
Copyright Protection & Classical Music
Work Made for Hire Explained
10 Co-Production Considerations in Canada – Ask an Entertainment Lawyer
Film Profits & Points – Ask an Entertainment Lawyer
The “Just Trust Me” Legal Agreement

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30 Things Music Lawyers Do & Why You Should Hire One

Byron Pascoe — Fri, 17 Mar 2023 19:28:55 +0000

What is a Music Lawyer and What Do They Do?

When asked what a music lawyer does, the initial answer is reviewing and preparing music law agreements or contracts for creators. That’s just the beginning of what a music lawyer can do for your music business.

As music lawyers, our team strives to be an important member of your music team. Our music lawyers are a valuable source of information, providing legal and strategic advice based on their entertainment industry expertise.

We help with an artist’s career by ensuring that you collect the money you’ve earned, and help you leverage your (intellectual property) rights to maximize your income. We advise entertainment law clients across the music industry, including musicians, music producers, music publishing companies, beatmakers, composers, singers, managers, record label companies, live music festivals, venues, and music services companies.

30 Things Music Lawyers Do

Artists and Performers

If you do live performances and record music – whether you are a songwriter, or someone is writing for you – here is a list of thirty things a music lawyer (or entertainment lawyer) can do for you:

1. Review and prepare agreements for major deals with creative collaborators, from co-writers to producers.

2. Review and negotiate distribution agreements, from an indie label to an American major label.

3. Assist you in delivering legal obligations to record labels.

4. Review publishing administration and co-publishing agreements.

5. Prepare band agreements (help negotiate the deal and get the responsible parties to sign).

6. Help you deal with musicians leaving your band, whether parties are amicable or not.

7. Review music industry production agreements.

8. Review management agreements and help you strategize your professional relationship with your manager or management company.

9. Provide advice if your relationship with your manager is going south, including by potentially negotiating, preparing and/or reviewing a management termination settlement agreement.

10. Prepare performance agreements for venues to sign when engaging you to perform live music.

11. Help to you to access royalty statements if you’re not receiving them according to your contractual entitlements, and to review royalty statements to ensure you are being paid properly.

12. Review and prepare featured artist agreements, whether you are the featured artist or engaging the featured artist.

13. Review and help negotiate offers and agreements to sell parts of your music catalogue (songs, albums, and other media).

14. Help keep you protected against accusations of music theft and help if someone allegedly stole your music.

15. Prepare agreements with a partner, such as graphic designers, producing album artwork and other graphics or media.

16. Help you understand contracts to buy and lease beats from websites.

17. Prepare P2 visa applications for artists performing in the United States.

18. Review agreements to compose orchestral music.

19. Negotiate singing contest (and other kinds of contests) agreements.

20. Review agreements to perform music on television.

21. Review agreements to have music synchronized in a film, television show, advertisement or digital media site.

22. Help musicians and songwriters to get samples cleared and music interpolations approved.

23. Provide corporate services, including, setting up a corporation, providing advice with respect to share classes, drafting a shareholders’ agreement, drafting annual resolutions, and documenting when business partners join and leave the corporation.

24. Work with your business manager and/or accountant to ensure everyone is on the same page about finances and is planning for successful careers.

25. Provide advice about whether songs are protected by copyright or are in the public domain, for example if you are interested to adapt, arrange, remix or sample a public domain work.

26. Review influencer and endorsement deals to promote a product or service (ie: brand partnerships).

27. Provide advice about service providers, from grant writers to trademark lawyers.

28. Assist with litigation – either to sue or defend a claim.

29. Answer questions about copyright (intellectual property).

30. Help to ensure you are properly registered to earn all neighbouring rights royalties.

Music Industry Labels and Other Music Entertainment Businesses

As music lawyers, our law firm works with artists across Canada in hip hop, pop, folk, rock, country, blues, and other musical genres. Our entertainment lawyers provide our clients with legal and strategic advice regarding contracts and professional relationships with business partners around the globe.

In addition to artists, we work with other players across the music industry as well. Here is a sample of the music law services we provide to our clients:

Producers: A music lawyer can help prepare and review producer agreements, and publishing deals.

Beat Makers: We help navigate buyout and royalty agreements with artists who want to use their beats, whether a so-called “brain trust” producer agreement or another form of agreement.

Managers: We prepare management agreements, and oftentimes help with their clients’ legal needs.

Music Investors: We prepare agreements for investors looking to invest in artists, music events and other music industry businesses.

Music Service Providers: Our law firm prepares agreements for their clients to sign, which highlights matters from scope to compensation.

Record Labels: We prepare artist agreements, provide advice in dealing with other labels and distributors (major label or not), negotiate agreements with digital media service providers and aggregators, and help find sources of passive rights-based income.

Music Publishers: A music lawyer can prepare agreements for their writer and producer clients.

Music Festivals: From sponsorship agreements to employment agreements, we work with festivals to assist with their music law needs.

Venues: We prepare agreements between venues and artists, both for fixed fee and royalty sharing deals.

Any music lawyer is most effective when speaking regularly with their client and their client’s agents or music team, listening to them, understanding their interests and providing solutions.

Lawyers may not be magicians, but there are many ways we can help. We don’t time-travel (yet), so it’s best to get our input up front to avoid headaches down the road. We look forward to speaking with you about how we can help your music business and career.

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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
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How to Start a Music Festival in Canada

Byron Pascoe — Fri, 29 Jul 2022 12:00:17 +0000

Music festivals are one type of business that investors may want to consider. Unlike investing in artists or record labels, a music festival can be more attractive: its financial success may be more predictable, and less dependent on public reaction to new music or emerging artists. However, the decision to invest in music festivals is not without risk.

Here are some considerations we typically discuss with our clients when providing advice on investing in music festivals:

Team Due Diligence

Who is running the festival? What is their experience? Are you, as the investor, joining the operating team? Or are you considered a consultant or silent partner?

Venue

Is there an agreement with the venue? Is it signed? Is the down payment paid? Are the terms reasonable?

Security

What type of security is in place for the festival to reduce the risk of harm to attendees, and liability for the festival operators?

Timeline

Is there enough time to prepare for and promote the festival?

Insurance

What insurance policy is in place? Has the premium been paid? Is it possible to add you or your company to the insurance policy as a beneficiary?

Musical Acts

Are the music artists for the performance confirmed? Have you seen the agreements between the acts and the festival? Is there a termination clause for reasons such as bad behaviour? Is your investment contingent on the festival having acts or artists of a certain prominence? Are there geographical restrictions (e.g., radius clauses with other music festivals)? Do the agents representing the acts have a direct relationship with the artists? What is the risk of the artists being no-shows?

Ownership

Which person, people or entity owns the festival? Do they or it have any debts? Do you, as an investor, retain any ownership of the festival? Or do you have an option to purchase shares (stock) of the corporation that owns the festival (if there is indeed a corporation)?

Other Investors

Are you one of many investors? The only investor? Who has priority? Are “most favoured nations” clauses required in your investment agreement?

Revenue Model

How will your investment be reimbursed? What premium are you entitled to? Are alcohol and merchandise sales considered differently than any other revenue sources?

Profit

What profit will you receive? What is the definition of profit? What protections are in place to ensure that proper reporting, statements and payments are made? What is the timeline for reports and payments to be provided?

Budget and Financing Plan

Do you have the budgets and projections? Do they look reasonable in the circumstances?

Cash

How are you ensuring that cash transactions will be included into the revenue model?

Perks

Do you want VIP tickets? How many? What else do you want?

Other Revenue Possibilities

How else can you earn money from the festival? Is it permitted to film the performances and monetize that content?

Marketing

What is being done to promote the festival? Do the artists playing the festival have any obligations to promote the festival via their social media platforms?

Additional Funding Sources

Is the festival getting all the available government incentives?

Professional Services

Does the festival have a competent and experienced accountant and lawyer familiar with live music events?

We help music investors review and prepare agreements regarding their investments in music festivals. We also work for music festivals, and help them prepare investment agreements. Oftentimes, before we get to reviewing or drafting an agreement, we get involved in the deal terms between the parties.

If you are considering investing in a music festival, or any other entertainment business, or if you have an investor for your music business and need legal counsel to help you to negotiate and formalize your arrangements with your investors, please let us know.

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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Canada Media Fund: Performance Envelope Program

Byron Pascoe — Mon, 23 Aug 2021 16:23:02 +0000

Canada Media Fund: Performance Envelope Program – Introduction

Please be advised, in response to the disruption in Canada’s screen-based industries caused by the COVID-19 pandemic, there may be specific exceptions to the following information found in the COVID-19 Flexibility Measures to CMF Programs – 2021-2022.

The Canada Media Fund (“CMF”) is a great way for Canadian television producers to receive financial support for their projects. This series of blogs will discuss the different “programs” under which the CMF distributes funding and what producers must do in order to receive this funding.

The Performance Envelope Program

The CMF offers funding through a variety of “programs” designed to support specific niche areas of production. The majority of CMF funding is given through the Performance Envelope Program (“PEP”). Under the PEP, Canadian broadcasters receive a “funding envelope” from CMF. Broadcasters then allocate the CMF funds to projects they believe will have the greatest market success. Importantly, while the broadcasters determine what projects will receive funding, the actual CMF funds are paid directly to producers.

PEP Requirements

In order to receive funding under the PEP producers must meet an array of eligibility criteria, which are set out in detail in the CMF Guidelines.

Broadly speaking, in order to qualify, applicants must either be:

a for-profit production company that is “Canadian-controlled”¹ with its head office in Canada and is in good standing will all applicable talent and industry associations and guilds; or
a “Canadian Broadcaster”.²

Additionally, all applicants must own and control the rights necessary to produce and exploit the project.

All eligible projects must also be designed for distribution on at least two platforms. One of the platforms must be TV (referred to as the TV Component) and must be made available by one or more Canadian Broadcasters. The second platform may be either a Digital Media Component (a DM Component is defined further below), a TV Component made available to Canadians by one or more Canadian Broadcasters, or a TV Component made available to Canadians by a Canadian entity through non-simulcast digital distribution (which means that the content cannot be made available simultaneously with the television broadcast). It is important to note that a TV Component made available by the same type of Canadian Broadcaster cannot, by itself, satisfy the requirements for both platforms. That is to say, a single component may not be double counted to satisfy the requirement that a program be distributed on at least two platforms.

Both the TV Component and the DM Component (if an applicant has a DM Component) have certain requirements that must be met in order to qualify for funding. This blog will now discuss those requirements.

Canada Media Fund: Performance Envelope Program – TV Component Essential Requirements

CMF’s mandate is to promote Canadian content. As such, CMF requires that the projects it supports are made by Canadians, primarily made for Canadians, and are set in Canada. Each TV Component must meet three “essential” requirements.

First, a TV Component must receive 10 out of 10 points on the CAVCO certification scale.³ Points are awarded for Canadians⁴ who hold key positions in a project, such as director, screen writer, or lead performer. To receive 10 points, all of the key positions must be held by Canadians. Importantly, in the case of treaty co-productions, international co-producers are treated as Canadians. The full CAVCO point scale is attached below.

Second, the underlying rights to a project must be owned, and significantly and meaningfully developed, by Canadians.

Third, the TV Component must be shot and set primarily in Canada.⁵

In addition to the three essential requirements, there are numerous other requirements set forth in the CMF Guidelines.

CAVCO Point Scale

DM Component Requirements

DM Components also have essential requirements. First, a DM Component must be an audiovisual, multimedia, or interactive project that:

is associated with and derived from the TV Component that is funded by CMF in the same fiscal year;
is made available to the Canadian public via a digital network (usually the internet);
provides a coherent digital or social media experience to the audience before, during or after the broadcast of the TV Component, and aims to augment engagement and discoverability towards the TV Component; and
meets either one or a mix of the following activities:
- interactive or linear original content related to the TV Component but created specifically to be consumed on digital media platforms;
- promotion, marketing and discoverability activities and applications using digital and social media aimed at locating, leveraging or building audiences; and
- interactive online activities or applications providing a synchronized experience during the broadcast of the TV Component.

Second, a DM Component must also qualify as Canadian Content, meaning that:

the DM Component’s underlying rights are owned, and significantly and meaningfully developed, by Canadians; and
the DM Component is produced in Canada, with at least 75% of its Eligible Costs being Canadian costs.

In addition to the above there are several other requirements for DM Components to qualify for CMF funding, which can be found in the CMF Guidelines.

Canada Media Fund: Performance Envelope Program – Conclusion

The CMF has a number of programs ready to be taken advantage of by television and other producers to support the development of new Canadian content, of which the PEP is the most widely used. This blog has set out to provide a brief introduction to the entry and eligibility components of the PEP. For a more detailed breakdown of the program, we recommend you visit the Guidelines here or speak with an entertainment lawyer.

Footnotes

[1] Canadian Controlled means it is a) under Canadian ownership and Canadian executive and creative control; b) under the financial control of Canadian citizens or permanent residents; c) the applicant retains and exercises all effective controls or approvals consistent with those of a producer; and d) the Applicant owns all rights (including copyright) and options necessary for the production and distribution of the digital media project in Canada and abroad (with appropriate case-by-case exceptions for a purchased format), and retains an ongoing financial interest in the project.

[2] A “Canadian Broadcaster” includes any of the following: (i) a Canadian programming undertaking, public or private, licensed to operate by the Canadian Radio-television and Telecommunications Commission (CRTC); (ii) an online service owned, controlled and operated by a Canadian CRTC-licensed programming undertaking; (iii) an online service owned, controlled and operated by a Canadian broadcasting distribution undertaking; and (iv) CRTC-licensed VOD services.

[3] Additional considerations and exceptions to the point scale can be found here.

[4] A Canadian is a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time they perform any duties in relation to the production.

[5] Explanation of what “shot and set” means can be found here.

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Check out our related Blog Posts:

“Just Trust Me” Legal Agreements in Canada
Setting up a Music Publishing Company in Canada
Copyright Protection & Classical Music
Work Made for Hire Explained
10 Co-Production Considerations in Canada – Ask an Entertainment Lawyer
Film Profits & Points – Ask an Entertainment Lawyer

Learn more about our Services:

Film & Television
Music
Interactive Digital Media
Software
Legal Support Services
International Services

Updated to August 23,2021

Author: Michael Duboff, 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.

Can Agents Sign on Behalf of Performers? What are the Risks/Benefits?

Byron Pascoe — Mon, 19 Apr 2021 15:10:22 +0000

Understanding the Role of Agents in Contract Signing: An Introduction

Can agents sign on behalf of performers? A client recently asked, “what is the risk of having an agent sign a contract on behalf of an actor or other performer hired for a production?” While the practice of having agents sign on behalf of performers is commonplace, it can carry some risks of which producers should be aware.

The Legal Dynamics of Agent Representation

For starters, an agent is a party who is legally empowered to act on behalf of another party (known as the “principal”) to affect the principal’s legal relations with third parties (e.g. by entering into a contract on the principal’s behalf). Where an agent signs a contract on behalf of a principal, it is as though the principal themself has signed the contract.

Importantly, agents are only able to bind principals where a legal agency relationship exists, and whether or not such a relationship actually does exist is often less than crystal clear. In addition, producers often only communicate with agents and do not receive confirmation from the principal that the agent is authorized to sign on their behalf.

Navigating the Legal Minefield: Assessing the Risks Involved

The main risk for producers is that if a legal agency relationship does not exist the principal will not be bound by the terms of the contract and any assignment of rights, waiver of moral rights or the like will not be enforceable.

Practical Solutions to Mitigate Risks

To address this risk, it is recommended that producers take one of the following steps:

Have the principal sign the contract as a party– this is a great option but may not be practical as agents often like to insert themselves between the producer and their client.
Have the principal sign an inducement acknowledging that they are bound by the agreement—also a great option, but it raises the same practical issue as the first suggestion.
Have the agent provide a proof of agency—this “proof of agency” could be the contract between the principal and the agent under which the agent is granted their authority, or a Power of Attorney.

Scrutinizing Proof of Agency: A Critical Step

When reviewing any proof of agency, Producers should be mindful of limitations on the agent’s authority to bind the principal. For example, the agent’s authority may have expired, or the agent may only be authorized to bind the principal with respect to certain matters. Ultimately, producers should see something in writing verifying the agent’s legal authority to bind the principal.

Need Assistance?

If you receive a proof of agency and require help interpreting its limitations or having questions about how to draft proper inducement language, we would be happy to assist.

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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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Music Law
Video Game and App Law
Publishing and Literary Law
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“Shown In Canada”: CAVCO Reinterpretation

Byron Pascoe — Mon, 28 Dec 2020 15:45:32 +0000

“Shown In Canada”: CAVCO Reinterpretation – Introduction

Shown In Canada: CAVCO Reinterpretation – The Canadian Film or Video Production Tax Credit (“CPTC”) is available for productions that are shown exclusively through eligible online video services. Prior to March 6, 2017 such productions were considered ineligible.

Background

Before March 6, 2017 programming shown exclusively on online video services was not considered to have met the requirement of being “shown in Canada”. Despite the plain meaning of the phrase, the Canadian Audio-Visual Certification Office (“CAVCO”) interpreted “shown in Canada” to mean that the production must be broadcast on television (including licensed video-on-demand services), shown theatrically, or distributed on DVD. CAVCO has now reinterpreted the “shown in Canada” requirement to include productions that are shown on eligible online video services (for a non-exhaustive list of eligible online video services – services that CAVCO has pre-determined to be eligible – click here.)

Agreement with Canadian Distributors

Production companies are still required to have an agreement in writing with a Canadian distributor to have the production shown in Canada within two-years of completion. This means that a production with a direct agreement between a production company and an eligible online video service is not eligible for the CPTC.

There is no requirement that the online video service itself be Canadian. This allows producers to make their productions available on the service that makes the most sense for the production creatively and from a business perspective.

Eligibility Requirements

CAVCO’s current criteria for determining an eligible online video service are the following:

the service must carry other content pre-screened or pre-qualified by either (a) the online service or (b) the distributor, under an arrangement with the online service;
the service must be readily accessible to Canadians in Canada; and
the service must have Canada as a part of its target audience.

“Shown In Canada”: CAVCO Reinterpretation – In Closing

CAVCO will review online video services on a case-by-case basis to determine whether they meet the criteria. As with any production that relies on tax credits, it is essential to plan proactively instead of trying to access tax credits based on prior productions.

Our Services

Please contact us if you would like a consultation to discuss the tax credits and your production.

Recent Blog Posts:

Online Concert Licensing and Royalties – Part 1

Online Concert Licensing and Royalties – Part 2

Termination Clauses in Employment Contracts

COVID-19 Killed My Tour – Rights and Obligations – Part 1 – Venues

COVID-19 Killed My Tour – Rights and Obligations – Part 2 – Partners

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Updated to December 28, 2020

E dwards Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit https://edwardslaw.ca

Canada Day: The Perfect Day to Support Canadian Content (6th Edition)

Byron Pascoe — Tue, 30 Jun 2020 20:05:59 +0000

The History:

Since 2015, I’ve been sharing suggestions of how to support Canadian content on Canada Day – including our nation’s films, music, television programs, books, and more.

While there’s reason to consume and share #CanadianContent all year round, Canada Day is the perfect day to celebrate it, be proud of it, and support the creation of more of it.

Canada Day 2020 is a year unlike any we have ever experienced. While attending live Canada Day concerts in our neighbourhood park or on Parliament Hill are not an option, there are other ways to experience Canadian music on Canada Day.

In addition to the Canada Day House Party, there are virtual Canada Day concerts across Canada. Greater Sudbury’s Canada Day celebrations features Amanda Rheaume, Patricia Cano, Jim Cuddy, and more.

The Halifax virtual Canada Day concert featuring Joel Plaskett, Classified, Reeny Smith and more is available at HFX Civic Events Facebook. The Ottawa Music Industry Coalition Canada Day special airs both on Rogers TV Ottawa and on Rogers Facebook at 9pm, and features Kimberly Sunstrum, Miguel de Armas, Lynne Hanson, and Rory Taillon.

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Music

To get a taste of some of the many Canadian talents you haven’t heard of, spending time watching the virtual JUNOs is a great start. Visit the CBC website and then check out the nominees and winners of interest.

Among them were some stand out Canadian acts including The Dead South – a 4-piece Bluegrass-Folk quartet from Regina, Saskatchewan who have been busy since their massive hit, “In Hell, I’ll Be in Good Company”, as of late with their album Sugar & Joy. There was also Neon Dreams, a Canadian duet of Frank Kadillac and Adrian Morris with their rock-pop mash-up with some rap and hip hop mixed in.

Another recommendation is Quantum Tangle – a Yellowknife-based duo comprised of Inuk-Canadian vocalist Tiffany Ayalik and Anishinaabe-Métis guitarist Greyson (Grey) Gritt who combine Indigenous Throat Singing with spoken-word storytelling and blues-inspired folk-rock.

Film/Television

Also online this year was the Canadian Screen Awards, presented by the Academy of Canadian Cinema & Television. While Antigone won best picture, The Twentieth Century and The Song of Names each also made their mark. Cardinal and Schitt’s Creek were big winners on the smaller screen. Schitt’s Creek, which had its sixth and final series air earlier this year, was recently nominated for four Primetime Emmy Awards.

One of the biggest homemade series is Transplant, a medical drama series that follows Dr. Bashir “Bash” Hamed (Hamza Haq) who came to Canada as a refugee during the Syrian Civil War. The series was picked up by NBC.

Other recommendations include the 2020 docu-series Deeply Rooted by Canada-born filmmaker Cazhhmere, whose ancestors were among the first black settlers to come to Canada (Nova Scotia) in the 1600’s. It chronicles her journey as a member of a multi-generational Black-Canadian family and the stigma and racism that she has encountered throughout her life. This and a ton of other short and longer form content is available at gem.cbc.ca.

There’s also Shoot to Marry, a 2020 real-life, romcom doc produced, written, shot, directed and edited over a 5 year period by filmmaker Steve Markle, focuses on interesting women with the hope of finding love and enlightenment. It premiered at the Slamdance Film Festival in 2020 where it won the Best of Breakouts Audience. At the Canadian Film Fest, it won Best Feature.

Motto is an interactive novella… or as people over 30 would call it, a choose your own adventure! This was an original collaboration between AATOAA, Vincent Morisset’s acclaimed digital production studio, and prize-winning novelist Sean Michaels, and tells a story using a gigantic collection of tiny videos. It follows a Ghost named September who has gone missing. Head to Motto – on your phone (use Safari on iPhones).

In animation, there’s Trailer Park Boys: The Animated Series, a spin-off of the original series which airs on Netflix. Produced by the Ottawa-based animation studio Big Jump Entertainment, it features the misadventures of our favourite trailer park residents in Dartmouth, Nova Scotia… or possibly our favourite trailer park residents in all of Nova Scotia.

Lastly, one more in animation, is Hero Elementary, produced by Toronto’s Portfolio Entertainment, and Twin Cities PBS. It follows the diverse students of “Sparks’ Crew” who work together, using their science and their unique superpower gifts to help people with their problems and save the world. We can all use some Sparks’ Crew in our lives…

Books

A pandemic may be the right time to read that book that you say you haven’t had a chance to pick up. For some recommendations, there’s the Canada Read 2019 winning book by Max Eisen, his Holocaust memoir, By Chance Alone, and the 2019 Scotiabank Giller Prize winning book by Ian Williams, his novel, Reproduction.

Video Games

Toronto’s Cellar Door Games recently released Rogue Legacy 2 – a sequel to the 2013 indie hit – a genealogical rougue-lite combining randomized runs and changing characters with persistent upgrades and dead heirs. For more ideas of Canadian gaming creators to follow and support, check out the Canadian Game Awards at cgameawards.ca

Enjoy the content, and congratulations to our country’s creators on another great year of creating content for audiences near and far.

CanCon – Being a Musician is a Business

Byron Pascoe — Sat, 24 Nov 2018 00:08:06 +0000

What is CanCon?

For years we’ve spoken about music law, producer agreements, SOCAN, and more, to future producers and recording engineers at The Audio Recording Academy (TARA), run by the one and only Shannon Murray, at her Raven Street Studios. Recently, we received a question about MAPL, which led to this blog. What is it? Why should you care?

MAPL, which is an acronym for Music, Artist, Performance and Lyrics, is the system used to determine whether a piece of music or television content qualifies as Canadian Content aka “CanCon”.

How is it determined?

In Canada, the Canadian Radio Television and Communication Commission (CRTC) requires that CanCon make up a certain minimum percentage of radio and television content. As we shall see, to qualify as CanCon the MAPL system requires that content must be partly written, produced, presented, or otherwise contributed to by Canadians. These requirements stem from federal legislation, under the Broadcasting Act of Canada.

Having met the CanCon thresholds doesn’t guarantee a radio station will pick up your tracks, but knowing what it means for music to be considered CanCon (which surprisingly isn’t triggered by drinking Tim Hortons and wearing Roots), is one of the many music industry tidbits you should know, and it may give you a competitive edge. It may be a relevant consideration when deciding who your co-writers will be, and where you record your music.

What is MAPL?

To qualify as CanCon a musical selection must generally fulfill at least two of the following conditions:

M (music): The music is composed entirely by a Canadian.

A (artist): The music is, or the lyrics are, performed principally by a Canadian.

P (performance): The musical selection consists of a performance that is recorded wholly in Canada, or performed wholly in Canada and broadcast live in Canada.

L (lyrics): The lyrics are written entirely by a Canadian.

The categories of MAPL:

Under the MAPL system, a “Canadian” means a citizen; permanent resident; a person whose ordinary place of residence was Canada for the six months immediately preceding their contribution to a musical composition, performance or concert; or a licensee, i.e., a person licensed to operate a Canadian radio station.

There are four other special cases where a musical selection may qualify as Canadian content:

The musical selection was recorded before January 1972 and meets one, instead of two, of the four conditions.
It is an instrumental performance of a musical composition written or composed by a Canadian.
It is a performance of a musical composition that a Canadian has composed for instruments only.
The musical selection was performed live or recorded after September 1, 1991, and, in addition to meeting the criteria for either artist or production, a Canadian who has collaborated with a non-Canadian receives at least half of the credit for both music and lyrics.

How is CanCon categorized?

The minimum percentage of Canadian content that must be spun on CRTC licenced radio stations depends on the type of radio station and the type of music it broadcasts.

Please don’t take offence, but the CRTC puts the following genres into the “Popular Music” definition: pop, rock and dance, country and country-oriented, acoustic, and easy listening, and puts the following genres into the “Special Interest Music” definition: concert, folk and folk-oriented, world beat and international, jazz and blues, non-classic religious and experimental music. From my perspective there’s definitely sufficient folk music, and music from the other Special Interest Music categories to merit the percentage allocated required for Popular Music.

The requirements for Popular Music on commercial, community, campus and Indigenous radio stations is at least 35% CanCon each week. Also, at least 35% of Popular Music broadcast between 6:00 a.m. and 6:00 p.m. Monday to Friday must be CanCon. CBC / Radio Canada stations must ensure that at least 50% of Popular Music broadcast each week is CanCon.

Requirements for Radio Stations:

The CanCon requirements for Special Interest Music allows for lower percentages. For example, commercial radio stations must ensure that at least 10% of all Special Interest Music broadcast is CanCon, and ensure at least 25% of all concert music, and 20% of all jazz and blues music programmed is CanCon.

There are always exceptions, including that radio stations with formats that don’t have as many Canadian options, such as oldies, and adult standards, foreign language stations (i.e., not English and French) have lower percentage requirements.

International Co-Productions:

If you’re a solo Canadian performer, but the co-writer of your music and lyrics isn’t Canadian, the allocation of Canadian content on the radio should not be the deciding factor of whether you focus your musical career on adult standards or pop, but the choice of recording your music in Toronto or Hamilton, or Los Angeles or New York, will determine if you meet the CanCon threshold or not.

What we’ve been saying for years, to whomever would listen, is that once an artist reaches a certain popularity level their music should no longer qualify as CanCon for the purposes of the threshold percentages. Radio stations will continue to play Drake, Bieber, Mendez, and Alessia (yes, Alessia Cara, after winning the Grammy for best new artist, can go by one name) without having to include them in their CanCon allocation, which means more room for emerging Canadian talent.

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Updated to October 19,2021

Author: Byron Pascoe, Entertainment Lawyer

Ask a Lawyer: What is E & O Insurance and Does My Production Need it?

Byron Pascoe — Sun, 01 Mar 2015 09:57:57 +0000

What is E & O Insurance? Does my production require E&O? What should I be budgeting for E&O? And…. who can help me figure it all out?

E&O stands for Errors and Omissions Insurance… which is producer’s liability insurance. Whether or not you think it’s worth the fees and time, if you plan to have your production broadcast on television or exhibited in theatres, you will likely be told that it’s necessary.

E&O generally covers lawsuits relating to content contained in your production. For example, claims of defamation, invasion of privacy, right of publicity, infringement of copyright and trademarks, and unauthorized use of titles. It doesn’t cover contract-related claims (for example, an actor sues the producer for non-payment), wrongdoing or fraud by the producer, etc.

While E&O might not be top of mind in pre-production, it should be to save time and money in the long run.

The following are general tips to think about early on that should help keep insurance premiums down and policy exclusions to a minimum:

Ensure everyone who contributes to the production, from the scriptwriter to the crew, signs an appropriate contract, or waiver of rights.
Ensure all actors and other recognizable people provide permission to appear in the production.
Ensure you understand all of the music rights you need to obtain and get those rights granted.
If you have a composer, ensure there’s a clause in the agreement requiring that she indemnifies the production regarding her contributions infringing the rights of others.
If you plan to use stock footage, there’s a bundle of rights to consider – from the creators to the owners to all of the music rights holders.
Obtain written permission if there are distinctive locations, buildings, businesses, personal property or brands on screen.
If you intend to have companion material, such as web-only content, give it the same scrutiny as the rest of the production’s content.
Purchase a script research report before filming to alert you to potential problems including names of fictional characters that are coincidentally similar to real people, as well as uses of copyrighted or other protected materials.
Ensure rights are granted to the correct entity and that all rights granted are assignable.
Ensure your crew, appearance and other agreement templates have been approved by your lawyer.
As releases are signed, ensure they are safely secured and scanned.

Before producers pay everyone from key creatives to the crew, producers have leverage to get everything signed that needs to get signed. Leverage is lost months or years later, after everyone has been paid, when the project has an opportunity to make a big sale requiring E&O, and the producer needs waivers signed.

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As for the E&O-related costs, there’s the insurance premium to get the coverage, the cost of a title report from a title clearance services, and, possibly, a script research report and legal fees.

The role of a lawyer is to help make certain that the production contains no material that could give rise to a claim, from a missing link in the chain of title, to music that wasn’t but should have been cleared. Your lawyer will identify the risks, work with you to remove the risks from the production, and/or speak with legal counsel for the insurance company and/or the exhibitor to find a solution.

To learn more, and to help plan a proactive E&O strategy, request an E&O application from a Canadian entertainment industry E&O insurance broker. Review the questions and the clearance guidelines. At the very least, don’t read the E&O application for the first time when you need the policy in place a week later.

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Updated to May 7, 2024

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Is Equity Crowdfunding coming to Ontario? Ask An Entertainment Lawyer

Byron Pascoe — Thu, 22 May 2014 00:26:27 +0000

Is Equity Crowdfunding coming to Ontario? Introduction

The revolution is coming – from Saskatchewan, of all places. On December 6, 2013, this rounding error in securities markets became the first Canadian province to allow equity crowdfunding: perhaps not all that surprising, given its populist traditions, independent attitudes and slim(mer) bureaucracy. The US is on the same track – the JOBS ACT (“Jumpstart Our Business Startups Act” – I love how US legislation is named for the acronym, it’s all about marketing) gave the Securities Exchange Commission a mandate to develop a crowdfunding framework. Last fall, the SEC published draft rules. The period for public comment closed in early February and the Commission is now studying the responses. Equity crowdfunding could be legal in the US this year.

Equity Crowdfunding Structure in Ontario

Of greater significance to local game developers, Ontario is not far behind. In the next 6 weeks the Ontario Securities Commission will be publishing its proposal for an equity crowdfunding structure – also followed by 90 days of public comment. Add a few months to finalize the rules and we could be equity crowdfunding in Ontario by the end of the year. Check out the OSC’s August 2013 progress report at http://www.osc.gov.on.ca/documents/en/Securities-Category4/sn_20130828_45-712_progress-report.pdf and, to get a sense of the likely draft rules, see page 25.

Crowdfunding Statistics in the Games Industry

So what? Kickstarter was founded in 2009. Since then, almost $1,000,000,000 has been pledged to almost 135,000 projects, of which 44% were successful in meeting their funding goal. Successfully funded projects have taken out just under $850,000,000. Games are the number one category – over 20% of the total dollars pledged, with a success rate of about 87%. That’s $186,000,000 for the game industry through crowdfunding in just over 5 years. One of the craziest stats is that of the 56 projects that raised over $1M on Kickstarter over 50% of those (29) were games. (https://www.kickstarter.com/help/stats)

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Equity Crowdfunding: What Are The Benefits?

What does “equity crowdfunding” bring to an already plentiful crowdfunding table? The quick answer is a completely different incentive premise, more cash, lower initial cost but the potential for a much higher end cost. Let’s start with the incentive: crowdfunding is currently a donation or the pre-buy of a “reward” (a copy of the project or product itself, stuff related to the project or product, an experience, etc.). The incentive in equity crowdfunding is a piece of the business – big difference. You can see how this might mean more cash. Equity crowdfunding gives access to fans/investors rather than fans/consumers. The upside for the investor is much greater but also much more speculative. There’s only so much anyone is willing to pay for a custom t-shirt, even a fan, but how much will people pay for a shot at owning a share, however small, of the next casual game megahit?

Is Equity Crowdfunding coming to Ontario? Conclusion

That also means that your cost of “fulfillment” is lower – you don’t have to print and mail those 5000 t-shirts, or “give away” your game, or spend time delivering on your promised “experience”. You just have to focus on building your business – except that it’s no longer your business.

That’s the rub – it’s a business you share with your investors and, assuming your business is incredibly successful (why not, could happen), you will share that success with them. There’s lots more to consider, of course, but it is going to be a revolution. For the first time in the history of capitalism, technology has made it feasible for small private companies to access “public” funds to finance the growth of their businesses and the regulators are about to make it legal.

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Updated to October 19,2021

Byron Pascoe – Edwards Creative Law

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

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Footnotes

[3] Additional considerations and exceptions to the point scale can be found here.

[4] A Canadian is a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time they perform any duties in relation to the production.

[5] Explanation of what “shot and set” means can be found here.

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