adelphi consulting understanding film and intellectual property presentation by ese oraka
DESCRIPTION
A presentation delivered by Principal Partner Adelphi Consulting, Ese Oraka, at the Film Production Fund/Project Nollywood Act/LBS Entrepreneurial Development Service Capacity Building Workshop, Lagos, Nigeria. The Federal government launched Project ACT, a 3 billion naira film intervention fund managed by the Ministry of Finance and the Ministry of culture and tourism. A sub component of this fund is the Film Production Fund 700 million Naira film production fund with the aim of the allocating grants to production companies and independent producers who were at different stages of production. Sometime in April, prequalified applicants for the fund- as part of the process- attended two day workshops organized in conjunction with Lagos Business School in Lagos, Kano and Abuja. Here, they were expected to receive training on things that related to the business side of film production, and participants attended session’s on business modeling business planning and related stuff. For those who were not there or for those who were there and didn’t get the slides; feel free to download and share with your relevant networks.TRANSCRIPT
Understanding Film & Understanding Film & Intellectual PropertyIntellectual Property
A Presentation at The Film Production Fund/Project Nollywood Act/LBS Entrepreneurial
Development Service Capacity Building Workshop
Presented ByEse Oraka
Founding Partner, Adelphi ConsultingTwitter.com/@eseoraka
Facebook.com/AdelphiAfricaInsightsbyadelphi.blogspot.com
Content Content 1. Film Industry Value Chain2. Global Film Industry3. Nigerian Film Industry4. What is Intellectual Property?5. IP Asset Protection6. Types of IP
-Patents, Trade Secrets, Trademarks, Copyrights, Contracts7. Laws Governing Copyrights8. Analyzing Protection Mechanisms9. IP Value Creation in Action10. Other Considerations
- Distribution- Soundtracks- Merchandising- Assignments, Licenses & Work for Hire- Navigating the Digital Landscape
11. Business Models12. Other Considerations
Film Industry Value Film Industry Value ChainChain
Global Film IndustryGlobal Film Industry• Once upon a time- The big Hollywood studios - had their stars under contract- owned most of the large theatre chains, they - made nearly all of their profits from box office tickets.
• In the present time- Profits of Majors mostly from publicizing, branding and
licensing entertainment properties across the world, - Properties include DVDs, Cable & satellite television,
streaming, pay television, in-flight entertainment, toys, games and amusement-parks, parties and other experiential events.
- In addition there’s money from licensing rights to a library of feature movies, animated shorts and TV series.
- These days profits mostly come , not from theatres but from television.
• Old Era- NTA- Theatre Cinema’s
• New Era- 1992, Living in Bondage- Revival of the dying home Video industry- Market potential has been estimated at $3.2bn a year.- 50 Films a week, Budget between $20,000-$40,000- Average film sells about 50,000 DVD copies- Nigeria Movies increasingly being screened in cinemas- The international dimension- i. Nigerian films screening side by side with international films, which
previously owned the cinemas;ii. Nigerian actors in foreign films/foreign actors in Nigerian films or in
films with African themes; iii. The international growth of Nigerian music, which is driven by film.
Nigeria Film IndustryNigeria Film Industry
So What Is Intellectual So What Is Intellectual PropertyProperty
?
The Etymology of The Etymology of PropertyProperty
Intellectual Property refers to intangible property owned by a person in the product of his or her intellectual effort
IP Asset and ProtectionIP Asset and Protection
• Invention• Logo, Mark• Physical expression
of ideas• Marketplace and Existing Technology Knowledge
• Patents• Trademarks• Copyrights
• Trade Secrets• Contracts• Publication
Type of Asset Mode of Protection
PatentPatent• What is the standard for getting a patent?
– New– Useful– Non-obvious
• What do you get if you meet the standard?– Right to exclude others from the invention for a limited time– Not a right to use the invention
• What do you give up by getting a patent?– You have to teach others how to make and use the invention
• What do you risk by not patenting your invention?– i.e., trying to keep it a trade secret– Someone else can patent it and exclude you from using it.
Copyright 2009 Schwegman, Lundberg & Woessner. P.A. All Rights Reserved.
• Information that is not known outside of an organization that provides a competitive advantage
• Relatively low cost to gain protection, Protection lasts as long as the secret remains a secret, Can provide critical barriers to entry, Enforcement can be complicated.
• Examples:– Formula for Coca-Cola (Coke™)
• Decided not to patent to keep secret FOREVER…– KFC’s secret recipe
• Only 3 executives have access to the recipe– WD 40
Trade SecretsTrade Secrets
Copyright 2009 Schwegman, Lundberg & Woessner. P.A. All Rights Reserved.
Trademarks…
• Identification of Source– Any word, name, symbol, or
device or any combination thereof used by a person or which a person has a bona fide intention to use in commerce
• Symbols– ® - used to indicate a Registered
Trademark– ™ - used to brand a product– ℠ - used to brand a service
TrademarksTrademarks
Copyright 2009 Schwegman, Lundberg & Woessner. P.A. All Rights Reserved.
Copyrights…
• “Expression”– Art, Writing,
Music, Movies, etc…
• Any “work” reduced to a tangible medium of expression
• Policy– Moral rights of the
Author• Europe
– Incentive to produce
• U.S.
• Free and Automatic– Protection is
automatic as soon as the work is reduced to a tangible medium…
• Aspects of Protection– Scope - Narrow– Term
• Life + 70 years• Commercial
(Work for Hire) - 120 years
• Commercial Benefits– Supports entire
industries• Music• Movies• etc…
CopyrightsCopyrights
Copyright 2009 Schwegman, Lundberg & Woessner. P.A. All Rights Reserved.
Trademarks…
• In the end, its comes down to the contracts
ContractsContracts
Key AgreementsKey Agreements
• Name and Likeness Release
• Executive Producer Agreement
• Director Agreement• Writer Agreement• Artist Services Agreement• Director of Photographer
Agreement
• Production Financing and Distribution Agreement
• Loan Facility Letter• Completion Guarantee• Completion Agreement• Assignment and Direction• Laboratory Pledge-holder
Agreement• Costume Designer
Agreement
Key AgreementsKey Agreements
• Production Services Agreement
• Co-production Agreement
• Location Agreement• Artwork License• Product
/Name/Logo/Trademark License
• Film/Video License
• Production Financing and Distribution Agreement
• Loan Facility Letter• Completion Guarantee• Completion Agreement• Assignment and
Direction• Laboratory Pledge-
holder Agreement
Laws Governing Laws Governing CopyrightsCopyrights
Statutory Laws• Copyright Act, Cap C28 Laws of the Federation of
Nigeria, 2004• Trademarks Act, Cap T13, LFN, 2004• Patent & Design Act, Cap P2, LFN, 2004
Case Law:Case Law: Contract – Confidential Information Tort – Malicious/Injurious Falsehood, Passing Off Equity – Breach of Confidence
Analyzing Protection Analyzing Protection MechanismsMechanisms
Type Cost Protection Enforceable
Content
Patent high strong yes idea
Copyright ©
low low yes expression of idea
Tradesecret
low -strong ~no/ ~yes any
Trademark ®
moderate moderate yes name, logo
Design moderate moderate yes drawing
IP Value Extraction in IP Value Extraction in ActionAction
Intellectual Capital
Value Extractio
n
IPCreation
Exclusivity/Monopoly
Marketing/Chilling Effect
Industry Standard/ATT
Asset/Financing
Prestige/Brand
Bargaining Power
The Main Man The Main Man
• A producer must reconcile the different and sometimes conflicting rights including copyrights, moral rights, trade-marks, and other personal rights) of the actors, actresses, directors, scriptwriters, and others who are involved in the production.
• Also look out to not violate relevant rights of third party’s.
The PlotThe Plot
DistributionDistribution
• Production companies usually contract out the distribution rights and obligations of the film.
• In a distribution arrangement between a production company and a distributor, the production company’s objectives are: (i) to obtain the fullest release; (ii) to have editorial autonomy; and (iii) to ensure the proper remittance of overages.
• On the other hand, the distributor’s objectives are: (i) to recoup any advance, minimum guarantee and prints and advertising expenditure; (ii) to have all physical materials necessary to exploit film; and (iii) to have widest acquisition of rights.
• Production companies enter into distribution agreements both before and after the film is finished
SoundtracksSoundtracks
• Producers who decide to use existing music must be careful to determine who owns the music in order to secure the right to use the music from the owner.
• Commissioned composition.
• Existing musical composition? license synchronization and related rights from the music publisher or copyright owner, in addition license master use and related rights from the music recording’s copyright owner.
MerchandisingMerchandising• Can generate substantial revenues for production
companies.
• Two types- (1) product placement agreements- manufacturer
supplies product samples; sometimes money and promotion to a producer in return for product shown in film
- 2) merchandising agreement- producer licenses to a manufacturer the right to manufacture ; sells spin-off products such as toys, clothing, posters and soundtrack albums using names, characters and artwork in a film.
Assignments, Licenses & Assignments, Licenses & Work For HireWork For Hire
• Assignment- Owner sells rights to another, Under U.S. copyright laws, after 35 years…
• License- Licensor or Licensee think in Terms of The Term, Territories and Traction.
• Work for Hire- e.g. Copywriter under employment..
Navigating the Digital Navigating the Digital LandscapeLandscape
• Youtube• Iroko TV• Batterbox• DoBox• Digital Migration• Cinema• Devices
Other Online IssuesOther Online Issues• Ownership: This is the key issue in IP, its also the key
issue in the digital space.• Streaming: separate elements to investigate, including
text, art, music, video, photographs, trade and service marks, rights of publicity, and more.
• Piracy: In a world where peer to peer sharing is second nature, it is easier to infringe or to have your rights infringed upon.
• Terms of Use: YouTube terms of use, some kind of perpetual nonexclusive royalty-free license. In some of these agreements you agree to indemnify them.
• Safe Harbor: In America OSP’s that filed for safe harbor are protected when they take infringing material off thier site, upon notification you’re protected.
• Evolution of IP Laws“OSP” could include telephone company, cable company, the hosting company, and/or the website owner has yet to be define. Law still evolving
The business model canvas
OFFER
CHANNELS
RELATIONSHIPS CLIENTS
REVENUE STREAMS
COST CENTRES
KEYPARTNER
KEYRESOURCES
KEYACTIVITIES
Source: Canvas by businessmodelgeneration.com
Describing Your Business Describing Your Business ModelModel
The business model canvas
OFFER
CHANNELS
RELATIONSHIPS CLIENTS
REVENUE STREAMS
COST CENTRES
KEYPARTNER
KEYRESOURCES
KEYACTIVITIES
Source: Canvas by businessmodelgeneration.com
Who‘s yourcustomer?
Which customer
segments do you serve?
What‘s your offer?
Which „jobs to be done“
do you satisfy?
What‘s your relationship
to the customer?
What‘s your image?
How do you reach your customers?
How do you make
money?
What is driving cost?
What are your core
activities and processes?You are
your main suppliers, partners
and alliances? What are your
main assets and
competencies?
Describing Your Business Describing Your Business ModelModel
Business Model Canvas-Business Model Canvas-DisneyDisney
The 360 ModelThe 360 Model• Buzz vs. Bucks
• Marc Schiller on “the model every film maker needs to know.”
• Community + Data + Content Bundling + Dynamic Pricing = $$$
About Ese OrakaAbout Ese Oraka• Ese Oraka is an Entrepreneur and lawyer with over eleven years post call-
to-bar experience. His core competencies are in the areas of Intellectual Property Management and Business Model Design. His edge is in His ability to bring diverse knowledge, skill and experience to bear on his clients strategic business goals.
• Commencing with an LLB from ABU and a BL from the Nigerian Law School, Ese has enjoyed a rich and diverse career. He has worked as a Program Manager (JDPC), Brand Strategist (Headstart Consulting) and Account Manager at DDB Lagos, where He worked on the MTN and Diamond Bank Advertising portfolios, amongst others. He was a fellow at the Institute for Venture Design, a venture incubation partnership between FATE Foundation and Stanford University’s Center for Design Research.
• Ese is founding partner at Adelphi Consulting, an Intellectual Property & Business Design Consultancy. He has consulted on various Media an Entertainment industry issues for startups, SMEs and Large organizations.
Understanding Film & Understanding Film & Intellectual PropertyIntellectual Property
A Presentation at The Film Production Fund/Project Nollywood Act/LBS Entrepreneurial
Development Service Capacity Building Workshop
Presented ByEse Oraka
Founding Partner, Adelphi ConsultingTwitter.com/@eseoraka
Facebook.com/AdelphiAfricaInsightsbyadelphi.blogspot.com