PLAYDIGM Entertainment Licensing & Branding

I was asked what the difference between Branding and Licensing is.

Here is the simple answer:

BRANDING is the method and strategies that help the public become aware of your product or service and to keep them interested, loyal and involved with your brand.

LICENSING is the system and work required to legally allow a person or company the right to use or produce your product or service.  Usually this is via a Licensing contract.

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Orders for the FROM THE MIND TO THE MARKET – ebook will be available in late 2009. Pre-order now by contacting  Info@Playdigm.com  and for further information. (c) Tuey All Rights Reserved.

Trying to become successful?

The best advice for executives, entrepreneurs and professionals to achieve success is to learn how to network, become a leader, deal with conflict resolution, become an expert at negotiations, limit embarrassing yourself when addressing a crowd, and how to give and take advice.

For those who have brands already in the marketplace, please have Patience.

The previous Entertainment Licensing and Branding posts have been for the benefit of readers new to developing and marketing brands. They were intended to be educational and to get them up-to-speed. Those readers who are just recently thinking about creating a brand read on.  In future posts I will be getting into tactics and techniques on Licensing and Branding, but first we still have a few more basics for the new creators of brands.

Coming up with the idea for a new brand is the easy part.   It is the protection, development, pre-production, production and marketing stages that are costly and time consuming.  In fact, I have learned that all the work up to the completion of the production stage,  consists of only twenty-five percent of the total effort to launch and brand a project or product.

Think of it this way.  An author researches his story, writes a book, shops the novel to the publishing industry and with any luck signs a deal. From the time the light bulb of creation goes on, until their book is printed, months or years may have passed.  Once the book is hot off the presses, the hard part begins.

Or, a person comes up with the idea for a new product or logo and designs a series of mock-ups and prototypes, then revises the product and logo after receiving input from friends and professional advisers to then go on to create as close to the final ‘proof of concept’ version.

More importantly, a new Brand concept has to be original and interest the  the user, reader, investor, business partner and everyone else who can make your dream come true.  The key is how to come up with the initial idea.

Well, here’s how:

Come up with a unique idea, or a new variation on an old idea or a product and improve on it.  How does someone come up with ideas for brands? Here are a few things you can try.

1.  Of course there are the lucky people who just come up with a concept or product off the top of their head or have a vision.  I actually dreamt the Original Bruce Lee boardgame, woke up the next day and created a prototype to play test with my friends.  The dream became a reality within a year.

2. Take a previous product or brand and alter it enough to make it your own.  The key here is to ensure that you’ve changed it enough so that it does not cause confusion with the consumers of the older/previous product.  A Supreme Court decision in Canada came to the conclusion that a minimum of 30 percent difference was necessary to make the similar (yet different enough) product be legal.  Of course, every judge may view this in another way so I don’t recommend copying and altering someone elses idea.  I mean, be unique on your own.  Be a leader – not a follower.

3.  Mind Map.  That is where you take a word or idea and place it in the middle of a piece of paper. Write around this word the free form thoughts related to the word/idea and come up with all sorts of connected and non-connected things that later when you review the paper, you may find a key to something you may want to develop further.  Some times nothing comes from this but every so often one new thought or word will lead to another and another until a great idea bursts forth.  This technique works really well with a group tossing thoughts and ideas about freely.  You never know what will come up from these type of sessions.

4. Pay someone else or a company to take the seed of an idea you may have further down the road.  Engineers are great at this.  Give them a drawing of your concept and they will tell you how much it will cost to engineer it to the prototype stage (an actual working copy). This is not cheap but it is very effective for making things that you do not have the ability to make.

5. Friends sometimes come up with ideas but they never do anything with them.  Pick up on the idea and make it your own or even cut them in for a percentage or royalty.

What ever you can do to come up with new brands and ideas – do it!

Some things work for one person but may not for another.  Do what you have to do to come up with the Billion dollar idea.  Good luck with your dream.

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Orders for the FROM THE MIND TO THE MARKET – ebook will be available in late 2009. Pre-order now by contacting Info@Playdigm.com and for further information. (c) Tuey All Rights Reserved.

So you have that great idea rolling around in your head but you are not a writer, painter, computer code programmer, artist, singer/songwriter or musician.  You decide to pay someone to help develop your concept into a real physical product.

Accordingly to Copyright law, each creator owns what they produce upon creation.  Which means, even if you pay someone to create something for you, they own the copyright, especialy if you have not done anything to copyright your version prior to retaining the other person to create their version, for you.  Having both parties sign a Confidentiality Agreement would provide you with more protection than you have without one, but there is one other thing you can do to retain your ownership.

Have the person or company helping makr your dream into fact, sign a ‘Work For Hire’ contract that explains precisely that you retain ownership of whatever it is that is being produced, in return for you giving them money or whatever other bartering deal you may manage to put together.

One thing I have learned over the years is that everything is negotiable. I have offered my consulting services in exchange for services to be rendered by artists to help develop my projects to the next step.

What needs to be in a Work For Hire agreement?

Briefly these are the most important clauses that should be included.

The date of the agreement.

Both full names and addresses of each party involved.  One should be identified as the ‘Owner’  of the property ‘the Work’ and the other is the ‘Contractee’ (the person who will draw the artwork, or write the screenplay or create the music or do what you need done).

The Preamble expresses what each party desires to achieve from such a contract. For example: The Contractor/Owner expects to receive work (a painting of such-and-such, a screenplay based on the owner’s short story, etc.) while the Contractee expects to be paid in cash or services or some other agreed upon payment.

Contract Clauses are the meat of a binding agreement and lay out the terms for such a deal between the parties.  They should detail the following:

1. Work for Hire Terms of the agreement and Delivery dates when the work will be completed.

2. Type and time of payment for services.

3. Copyright Ownership in the Work remains with the Owner not the Contractee.  The Contractee transfer their copyright to the Owner for all services rendered under this contract.

4. Waiver of Moral Rights by the Contractee.

5. That the agreement does not create a partnership or employee relationship between the parties.

6. Titles and sections of the agreement if deemed illegal do not terminate the contract.

7. Liability and Indemnification understanding.

8. Jurisdiction territory

9. Signatures of both parties and any witnesses signatures if necessary.

The above is a basic outline and not a complete contract.  Should you be interested in obtaining a detailed ‘Work For Hire’ contract or further  information, contact me at info@Playdigm.com or contact your legal counsel.  I am not a lawyer but I have created, negotiated and signed many  contracts during my professional career.

Once you have an agreement between all the parties, prior to signing it,  you should seek your own legal counsel to ensure the contract says exactly what it is supposed to.

Work For Hire agreements are a great way to maintain complete ownership of your project when work you are unable to do is required to be done.

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Orders for the FROM THE MIND TO THE MARKET – ebook will be available in late 2009. Preorder now by contacting Info@Playdigm.com and for further information. (c) Tuey All Rights Reserved.

Confidentiality Agreements (also known as a Non-Disclosure Agreement) can be signed prior to telling someone about your product, project, invention or other sensitive information is revealed to any one else. Confidentiality Agreements can not stop someone from taking your information or passing it onto others, but it will help in a court of law, should you need to use the legal system to stop the breach of such an agreement and be compensated for that breach. Without such a contract in place there is no protection.

So before telling someone about your great idea for a screenplay, novel, album, invention, product, or entertainment brand, ask yourself, “Will this person reveal my concept to someone else?” If the answer is a possible yes, then prior to disclosing anything, get them to sign a Confidentiality Agreement.

All this type of contract does is to ensure that the party you are revealing information to is obligated to keep it confidential. If they do not, then you have a legal position to be compensated.

However, basic contract structure needs to be understood before creating any agreement so I will attempt to do that and breakdown in layman’s terms, a Confidentiality Agreement’s basic clauses at the same time.

Confidentiality Agreement and Basic Contract Structure

Usually a contract opens with the standard confirmation date line.

Identify the legal name and address of the Discloser of the information and the Recepient of the information – Party A and Party B.

Then preamble like the following:

It is understood and agreed that the Discloser and the Recipient would like to exchange certain information that may be considered confidential. To ensure the protection of such information and in consideration of the agreement to exchange said information, the parties agree as follows:

1. The confidential information to be disclosed by Discloser under this Agreement (”Confidential Information”) can be described as and includes:

Technical and business information relating to Discloser’s proprietary ideas, patentable ideas, copyrights and/or trade secrets, existing and/or contemplated products and services, software, schematics, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure.

In addition to the above, Confidential Information shall also include, and the Recipient shall have a duty to protect, other confidential and/or sensitive information which is (a) disclosed by Discloser in writing and marked as confidential (or with other similar designation) at the time of disclosure; and/or (b) disclosed by Discloser in any other manner and identified as confidential at the time of disclosure and is also summarized and designated as confidential in a written memorandum delivered to Recipient within thirty (30) days of the disclosure.

Recepient Party B is receiving the confidential information and must keep the revealed information secret and confidential and will not reveal it to anyone directly or indirectly, or to a any third party unless given permission by Discloser Party A in writing.

2. Recipient shall use the Confidential Information only for the purpose of evaluating potential business and investment relationships with Discloser. Or for purposes described in writing by the Owner of the Confidential Information.

3. Recipient shall limit disclosure of Confidential Information within its own organization to its directors, officers, partners, members and/or employees having a need to know and shall not disclose Confidential Information to any third party (whether an individual, corporation, or other entity) without the prior written consent of Discloser. Recipient shall have satisfied its obligations under this paragraph if it takes affirmative measures to ensure compliance with these confidentiality obligations by its employees, agents, consultants and others who are permitted access to or use of the Confidential Information who are also, held to this Agreement.

4. This Agreement imposes no obligation upon Recipient with respect to any Confidential Information (a) that was in Recipient’s possession before receipt from Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party not owing a duty of confidentiality to the Discloser; (d) is disclosed without a duty of confidentiality to a third party by, or with the authorization of, Discloser; or (e) is independently developed by Recipient.

5. Discloser warrants that he/she has the right to make the disclosures under this Agreement.

6. This Agreement shall not be construed as creating, conveying, transferring, granting or conferring upon the Recipient any rights, license or authority in or to the information exchanged, except the limited right to use Confidential Information specified in paragraph 2. Furthermore and specifically, no license or conveyance of any intellectual property rights is granted or implied by this Agreement.

7. Neither party has an obligation under this Agreement to purchase any service, goods, or intangibles from the other party. Discloser may, at its sole discretion, using its own information, offer such products and/or services for sale and modify them or discontinue sale at any time. Furthermore, both parties acknowledge and agree that the exchange of information under this Agreement shall not commit or bind either party to any present or future contractual relationship (except as specifically stated herein), nor shall the exchange of information be construed as an inducement to act or not to act in any given manner.

8. Neither party shall be liable to the other in any manner whatsoever for any decisions, obligations, costs or expenses incurred, changes in business practices, plans, organization, products, services, or otherwise, based on either party’s decision to use or rely on any information exchanged under this Agreement.

9. If there is a breach or threatened breach of any provision of this Agreement, it is agreed and understood that Discloser shall have adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief; and Recepient agrees that such breach would cause Discloser considerable harm and financial loss, No specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement.

10. This Agreement states the entire agreement between the parties concerning the disclosure of Confidential Information and supersedes any prior agreements, understandings, or representations with respect thereto. Any addition or modification to this Agreement must be made in writing and signed by authorized representatives of both parties. This Agreement is made under and shall be construed according to the laws of the State of __________, U.S.A. In the event that this agreement is breached, any and all disputes must be settled in a court of competent jurisdiction in the State of __________, U.S.A.

11. If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Agreement as a whole.

WHEREFORE, the parties acknowledge that they have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein.

Recipient of Confidential Information:

Name (Print or Type):

Company:

Title:

Address:

City, State & Zip:

Signature:

Date:

Discloser of Confidential Information:

Name (Print of Type):

Company:

Title:

Address:

City, State & Zip:

Signature:

Date:

* The most important clauses are the ones referring to the Keeping confidential  the released information and that if the Recepient does not do so, then compensation and damages will be awarded to the Discloser. This is where the legal system will acknowledge that compensation should be allocated to Party A if a court case arises from the illegal transfer of the confidential information.

SIGNATURES of all the Parties to be involved in this Agreement are required to sign.  In some jurisdictions Witnesses are needed to confirm that those signing are truly the ones designated on the document. Check the territory you are signing the contract in to ensure that this is required or not.

Keep it as short as possible. No more than two pages. I have had people refuse to sign a Confidentiality Agreement longer than two pages because it tends to put a red flag up in their mind and some think it is not worth the hassle to hear an idea if they may accidentally talk about it.

I am not a lawyer but I have common sense. Some say, “If it is not in writing it don’t exist.” Even though oral agreements are binding contracts in most jurisdictions they can become a scenario of ‘she said – he said – no I did not’. So the clearer any deal is expressed in writing, the better for everyone. Especially you!

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Orders for the FROM THE MIND TO THE MARKET – ebook will be available in late 2009. Preorder now by contacting Info@Playdigm.com and for further information. (c) Tuey All Rights Reserved.