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12 Aug 2013

Contributed by David McLaughlin

Legal Issues in Transmedia Projects – Part 2

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Following on from last week’s post where we discussed some of the issues around using intellectual property and other associated rights in Transmedia projects, this week we’ll be looking at some of the issues that arise in Transmedia projects when it comes to collaborating with others and licensing talent.

Collaborating with others is often a key part of pulling together a Transmedia project. However, collaboration also raises some important legal questions which need to be addressed. For example from a copyright perspective, when people collaborate together unless the individual contributions are truly distinct and clearly identifiable the resulting copyright work will likely be regarded as a ‘joint copyright work’, which means all owners must approve any use of that copyright work. Luckily however the law does allow for copyright ownership to be split and the rights of use to be clarified by contract. Despite this, when projects develop informally, often issues arise when everyone finally tries to decide what they had previously been promised and envisaged and record this in contracts. Therefore it is important that contracts are in place at the outset of any project and as well as dealing with core issues of ownership, any contracts also need to cover key issues such as deliverables, timeframes and remuneration for those involved.

Transmedia projects also often feature contributions from third parties, such as users, customers or even fans. Here you need to be aware of how any such contributions and any associated rights are to be utilised. If something stays in a ‘supportive’ role of the project, such as when fans post their comments on social media sites, there are less potential legal issues to consider, as opposed to when such input becomes incorporated into the project itself.

If you allow people to manipulate and utilise parts of your intellectual property in order to boost interaction with the project, then you also need to be prepared to have some leniency on rights use and a clear understanding of what you will and won’t enforce. You also need some way of trying to communicate this to your users. However, whilst you can be lenient on the use of your intellectual property, it is important that users are somehow restricted in using other people’s intellectual property in what they submit and create for your project. If you’re not careful in this regard you can very easily open yourself up to potential liability from infringement of third party rights.

Although fan participation is to be encouraged, fan creativity brings with it more issues. This is illustrated when fan creations start to encroach on your own plans for the project. For example, if a piece of fan fiction or similar creation bears similarity to a new addition to your project which you haven’t released, this potentially opens you up to claims of rights infringement by the fan.

Making sure you have clear contracts in place with those involved in your project should also extend to licensing talent (actors and models) for your project. To help in this process, it is firstly essential for you to understand what you are wanting from such individuals and then for your contracts to explain the full extent of your project. For example, specifying how an actor’s or model’s image and contribution will be used, and how widely it will be used. Ideally the contract should allow for the on-going adaptation and repurposing by you of any talent’s contributions to the project and also potentially allow the same to be done by users, customers or even fans.

Given the complications that can arise within Transmedia projects in some of the areas discussed above, as you can see it’s always important for you to have a clear idea of what the end goal is for your project, to set the ground rules for user collaboration, and to have clear contracts in place at the outset.

David McLaughlin

David McLaughlin is the Principal of McLaughlin Law.  He is widely acknowledged as one of the leading entertainment lawyers in Australasia. 

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