PLAYDIGM Entertainment Licensing & Branding

More on the clause by clause breakdown of a general Licensing Agreement:

Usually at the end of the contract Preamble is the following line:

NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereto contained, it is hereby agreed as follows:

1. GRANT

1.1 The Licensor grants to the Licensee the right to use the (describe Property) and certain trade marks in association with the (mention your products or services you intend to use the Property on or with), shipment, marketing and distribution of the products within the Licensed territory. The rights to use the Property and trademarks are granted to the Licensee and are restricted to the (list products the Property will be on or used in conjuction with) and may not be assigned, sub-licensed or granted to any additional parties.

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The Grant of Rights clause determines what the Licensee is getting and what they can use the Property on and for. The above is a brief version of this clause and I would recommend that a more detailed explanation be given on what the Licensee products are and how the Property will be used.

Usually the Licensor will not allow the Licensee to re-license their use or rights of the Licensor’s Property to another Party and this is why the last sentence is there.

The next installment is Licensing Agreement #4 Term.

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As most of you know, I am not a lawyer or an accountant and recommend everyone seek their own legal counsel and accounting advice in such contractual matters. I also provide negotiation consulting advice which are expressed on the ‘services’ page of this website.

Hope this breakdown helps you understand the intricacies of a Licensing Agreement. Should you have any questions contact me at info@Playdigm.com – please put Licensing in the subject line of your email.

Underneath the involved Parties and their contact info is usually a preamble section similar to the following:

WHEREAS, the Licensor warrants and represents it is the sole owner of all proprietory rights to the property described and/or illustrated in the Schedule A attached hereto (the ‘Property’); and

WHEREAS, the Licensee desires to use the Property and/or the Trademarks on or in association with the manufacture, offer for sale, sale, advertising, promotion, and distribution of certain product(s) identified in Schedule A attached hereto (Licensee Product Description) in the countries identified in Schedule A attached hereto (Territory); and

WHEREAS the Licensor is willing to grant the Licensee the right to use the Property and/or the Trademarks stated in Schedlue A on the Licensed conditions recited herein this contract.

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The Preamble expresses the desires of the parties involved.

The first paragraph details that the Licensor (You) guarantee that you are the sole owner of the Property and Trademarks that the Licensee is interested in licensing for use. If there are more than two owners of the Property, then make sure this is explained here and in the Party information located in the Header Information section. Schedule A is a separate page(s) that I will go over at the end of this Agreement breakdown.

The second paragraph details that the Licensee desires and is interested in the Property that the Licensor owns and would like to license it for use (describe in detail what you intend to do with the Property). It is important to make sure you cover every type of thing you will do because if you forget one, like say, advertise, then the Licensor could stop you from advertising the products using the licensed property. There is a brief reference to the territory the agreement covers but there will be more detail in an actual clause withing the contract. I recommend to always ask for worldwide territory rights.

The third paragraph should make sure that both parties agree to the arrangement being proposed. Since in this case the Licensee’s desires are expressed well in paragraph 2 only the Licensor’s confirmation that they are okay with the licensing request is necessary here.

Should some legalese words cause confusion, seek out legal counsel for an explanation or the internet legal dictionary. I recommend the use of ordinary language be used as both parties will have a clear understanding of what they are getting involved in.

The next installment is Licensing Agreement #3 Grant Clause.

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As most of you know, I am not a lawyer or an accountant and recommend everyone seek their own legal counsel and accounting advice in such contractual matters. I also provide negotiation consulting advice which are expressed on the ‘services’ page of this website.

Hope this helps you understand the intricacies of a Licensing Agreement. Should you have any questions contact me at info@Playdigm.com – please put Licensing Agreement in the subject line of your email.

For the next few weeks I am going to break down a general Licensing Agreement clause-by-clause. This is not a definitive engraved in stone version of such a document but contains the most important information that needs to be included in a contract of this nature.

Here we go:

The first line at the top of page one usually goes something like this:

THIS AGREEMENT IS MADE this ____ day of (Month), (year) and is between

Insert Party A (the Licensor)

AND

Insert Party B (the Licensee)

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Party A is you, the Licensor. The person or company that owns the asset that the Licensee is interested in paying to use.

Party B is the Licensee. The person or company willing to pay the Licensor for the use of their asset.

Make sure that the addresses for both parties are complete and accurate.

The asset can be anything like a novel, screenplay, film, character, name and likeness of a famous person or pretty much anything.

The next installment is Licensing Agreement #2 Preamble

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As most of you know, I am not a lawyer or an accountant and recommend everyone seek their own legal, accounting and tax advice in such contractual matters. I also provide negotiation consulting advice which are expressed on the ‘services’ page of this website.

Hope this helps you understand the intricacies of a Licensing Agreement. Should you have any questions contact me at info@Playdigm.com – please put Licensing Agreement in the subject line of your email.

Okay – here’s the deal.

I am going to go through a basic licensing contract clause-by-clause over the next few weeks.  Each business day, starting Monday September 14th, 2009, I will reveal one clause that must or at the least, should be in any licensing contract. I will also give reasons why this clause is important and an easy to understand explanation of what it means for those who have never read or signed an agreement of this nature.

This information is critical for any person or company that wants to retain the right to legally use the name and likeness of any character, person, product or service and it is advisable to always sign such a contract to ensure you are allowed to use the name and likeness, trademark, images or other intellectual property you are interested in using.

Entertainment creators should know this information before a Licensing Contract is ever offered to you from a party seeking to use your intellectual property or copyright.

Please note that I am not a lawyer but have negotiated many licensing agreements and dealt with lawyers on both sides of these deals.  I always recommend everyone seek legal counsel and the advice of professionals.

Several licensing agreements I helped design and negotiate were with the BRUCE LEE estate, ROBERT LUDLUM, BANTAM DOUBLEDAY DELL and the AMERICAN AUTOMOBILE ASSOCIATION, among others.

The information I will be dealing with will be for educational purposes only and should you require a licensing agreement, seek out a licensing professional like myself and lawyers who specialize in these type of matters.

Should you have any questions regarding these posts, contact me at info@Playdigm.com

Respectfully,

Sandford Tuey

Similar post on Work For Hire Contract:

http://playdigm.com/2009/01/work-for-hire-agreements

Just a quick mention that McDonalds tried to suppress the use of the prefix ‘Mc’ by other companies. Their legal team should have known better as it cost the world’s largest burger chain a good amount of money to find out that trademark’s do not include prefix protection.

An up and coming new restaurant chain called McCurry  was taken to court because they use the ‘Mc’ in front of their company brand name.  No one owns the prefix ‘Mc’ and the court ruling agreed.

Could this lead to many new restaurants using the prefix ‘Mc’ before their name?  I doubt it.

Will we see an appeal? Would you like fries with that?

I wonder what kind of food McCurry’s has?  Hope it’s not too spicy. Guess I will have to wait until one arrives in town to find out

Cheers!

Sandford Tuey

info@Playdigm.com

PS: I will be starting the clause-by-clause breakdown of a general licensing agreement on Friday September 11, 2009.

Paris Hilton, the American socialite, is claiming that Hallmark used her face on one of their greeting cards without paying her a penny.  She is threatening a lawsuit against the card manufacturer.  A California court gave her the green light to commence an action against them.

Paris claims the card is based on a segment of her reality show – The Simple Life. The hotel heiress may have a solid case. At a hearing last Monday, three California judges of the Court of Appeals will allow the star the opportunity to pursue her case against Hallmark, after rejecting claims from the company that the card was representing a generic woman and not Hilton. Even I could see the resemblance and the use of her trademark is just blatant.  Where was Hallmark’s legal team on this one?

She claims that the Hallmark company executives used her image and trademarked catchphrase “That’s Hot!” without her permission. It was titled, ‘Paris first day as a waitress.’  What was the company management thinking?

Paris Hilton is seeking damages as well as a permanent injunction stopping Hallmark from further exploitation of her name and likeness.  Should be a no brainer decision in her favour.  I foresee a settlement in her future.

As I say repeatedly, be original and don’t use someone else’s intellectual property as it could come back and bite you in the – you know where!

Keep focused on your projects…

Sandford Tuey

Persistence is Omnipotent!

As you all know I provide entertainment and corporate management consulting for a living.  Recently, I was asked about branding a screenplay into several markets and these were my suggestions:

Once you have your 90 to 120 page screenplay and are marketing it/or your agent is packaging it, the writer could be do the following:

a) Copy and paste the script text into a word file, rewrite it as a novel by adding a few hundred more pages with more detail and sub-plots.  Instant second market to attract possible publishers.  You could also turn the screenplay into a book with a forward on why you wrote it, just like many others have done.

b) Or revise the screenplay into graphic novel/comic book format, if it has a franchise/toy and merchandise capability.  I did this with Galactic Gladiators and it added value to the whole project – got me an agent!

c) Have an artist create the poster for the movie (even if it is still just words on paper).  The large movie poster will help open doors that were shut and is a visual aid to your pitch.

d) Retain the best entertainment lawyer you can, even if you already have an agent. Read all the contracts that are put in front of you but also ensure you get guidance from your legal counsel, accountant, manager and agent if you are already represented.

By diversifying your project, you increase your chances of gaining a beach head in one or several markets, which in turn, will help you achieve your goals in the other areas you want to be in.

Persistence is Ominipotent!

To your success!

Sandford Tuey
www.Playdigm.com
A Shift in Entertainment

I was asked the other day:  Which movies do I like?

My response was, “Every film ever made, including the bad ones. You can learn more from a bad movie, then a good one.”

I continue to receive responses from my query letters sent out to American agents but since I was represented by one of the best agencies in Canada, I have a few requirements for any agent I get involved with.

1) We are both on the same page, meaning, he or she knows what I am seeking in the industry and what I am prepared to do to make these goals a reality.

2) He or she is going to be proactive in developing my screenplays into packages and market them into the industry.

3) The agent has the ability to get my scripts in front of major players and actors because they are critical to major distributors financial involvement.

4) They will keep me up to date on a once a week basis.  One email a week seems reasonable.  I will leave them alone to do their business but if they want to talk, I am available 24/7/365 (as usual).

5) Provide input on scripts I write and am thinking of writing. They have their finger on the pulse of the industry.

6) Are able to negotiate with my legal counsel any options or sales deals.

7) Love their job and enjoy movies of all kinds.

If this sounds like you, let’s talk…

Sandford Tuey

info@Playdigm.com