Webisodes or Episodes: Web or Television-Which Platform is Right for Your Project?

For you independent writers and producers looking to shop your series, having the end goal in mind is critical to determining how you shop and distribute your project. With the explosion of streaming platforms (i.e. Netflix, Amazon, Hulu, Youtube, and Vimeo) disrupting the traditional television industry, more opportunities are available for original content to be distributed outside of traditional television networks. In choosing the best platform for your series, however, it is important to take the time and ask yourself the following questions:

1)     What is the end goal I have in mind with my content? Am I looking to gain recognition in the industry as a writer or are merely looking to build a fanbase/community?

2)    Who is my target audience?

It is important to take the time to ask yourself these important questions, as you are building your brand as a writer from day one. Television networks and streaming platforms like Netflix, Amazon and Hulu have certain programming demands that need to be considered when pitching your project to pique their interests that are institutionally different from internet streaming services like Youtube or Vimeo. So which platforms should you consider for your project?

INTERNET STREAMING SERVICES

If you are looking to gain recognition as a writer and/or producer, then internet streaming platforms are an option for initial distribution. Internet streaming platforms are a great way to build a following and help define your market. Particularly, if you are creating content that is more experimental in nature or very niche (i.e. LGBTQ content), internet streaming platforms may be a better option than a television network. Although the more recognized internet streaming services are Youtube and Vimeo, there are other internet streaming platforms that may cater more specifically to your targeted demographic. The ability to gauge viewership with these platforms can be beneficial in targeting your fanbase and building your brand as a writer.

If you are looking to build revenue as you build your brand, however, then internet streaming services may not be your best option for initial distribution. To generate revenue on even ad-supported internet streaming services like Youtube, significant viewership is necessary. For instance, the CPM (cost per mille) for Youtube content creators can be anywhere on the higher end of $2.00 to $3.00 per thousand views. That is assuming that your project is ad-supported and that consumers do not block the ads while watching your series (which we all know we hate watching as consumers). If your series does not generate a large number of views, and you later want to pitch it to television networks, television networks may not be interested in any series that has already been made available through an internet streaming service.  If your viewership of the series is low, you have now made the case that your project does have a significant following to pique enough interest for audiences to make your project a viable fit for the television network.

Although there are certainly outlier examples for the case of a webseries picked up by a network (i.e. James Bland’s Giants webseries), it is generally a more difficult route to take and should be cautioned against if your project is better suited for the current trends and needs of television networks and studios.

TELEVISION PLATFORMS

If you are looking for more revenue generating opportunities for your content, while building a track record in the television industry, then television networks, studios, and SVOD streaming services like Netflix are your better options. The benefits of engaging networks, studios, and production companies that are looking to develop content is that they will pick up the financial tab to produce in exchange for rights in the project, subject to negotiation of rights, credit, and compensation of course, and the show will have wider viewership potential. However, to obtain the interest of development executives, it is critical to pay particular attention to whether your content fits within their programming and having a pulse on where the networks are looking to expand their current program offerings.

Crespo Law Office, P.C. can help writers and producers develop a strategy on the most viable distribution platforms, and in shopping their projects. Contact Crespo Law Office, P.C. today for an initial consultation.

BLACK-ISH CASE: A LESSON IN PROTECTING YOUR RIGHTS UNDER A WRITER COLLABORATION AGREEMENT

The Hollywood Reporter just released last week that a settlement between Black-ish writer Kenya Barris and former writing partner Bryan Barber was made in connection with the lawsuit Barber filed against Barris that was scheduled to proceed to trial this month. In 2016, Barber filed a lawsuit against Barris, alleging that the ABC comedy was based on a pilot he and Barris co-wrote back in 2006 during a previous development deal with VH-1. Barber’s actionable claims against Barris included  breach of implied contract, and breach of implied confidentiality among other claims. In April of this year, Barris filed a motion for summary judgment, which was subsequently denied.

Interestingly, copyright infringement was not a cause of action against Barris (which would be a federal jurisdictional issue regarding authorship under the U.S. Copyright Act that would place the case in federal court rather than state court),  the claims alleged all center around an implied contract and an implied confidentiality agreement, not breach of any express contracts. Barber’s complaint does not reference on the pleadings any writer collaboration agreement or any mention of a confidentiality agreement that were executed between the parties, establishing his right of authorship and/or ownership in the original pilot noted in his complaint. Although Barber’s case has settled, the two-year litigation is a great example for writers to take note of the importance of having a writer collaboration agreement when there are multiple authors writing a script for film or television.

What is a Writer Collaboration Agreement and Why is it Important?

A Writer Collaboration Agreement is an an agreement between two or more writers that sets forth the terms and conditions of their work together, the division of responsibilities, copyright ownership and authorship rights, and the sharing of revenues derived from the commercial exploitation of the work.  It is also a critical document to negotiate and prepare on the onset of a relationship that helps to manage the parties’ separation in the event of a dispute and separation-a prenuptial agreement in the writing world figuratively speaking.

Absent an agreement to the contrary, under U.S. copyright law, a collaborative work will be considered a “joint work,” which means that the collaborators will share an equal split of ownership. Without a writer collaboration agreement setting forth the expectations of the co-authors, questions arise as to 1) who will own and control the copyright; 2) whether a revenue split different from an equal pro-rata share should be allocated to co-authors; 3) credit of the work; and 4) whether the work will be abandoned or owned by an author in the event of a dispute among the writers. The agreement is not only critical to memorialize the arrangement between the parties, but also helps to establish copyright chain-of-title of the work for third-parties like production companies, studios and networks who want to know who they have to secure consent for commercial exploitation of the work. It is also a needed document to base copyright registration of your work with the U.S. Copyright Office.

To protect your intellectual property rights in your collaborative work, it is highly recommended that you engage an experienced entertainment attorney. Contact Crespo Law Office to assist in the negotiation and drafting of a writer collaboration agreement for your next project. We also assist in registration of your copyrights through the U.S. Copyright Office to put all third-parties on notice of your ownership in your work.

PROTECTING YOUR BRAND: THE IMPORTANCE OF TRADEMARKING IN LIGHT OF AMAZON’S BRAND REGISTRY REQUIREMENTS

In 2017, Amazon updated its Amazon Brand Registry eligibility requirements to include the requirement that all sellers upload a federal trademark registration certificate from the United States Patent and Trademark Office (“USPTO”)  to increase enforcement protection measures for brand owners against counterfeit sellers. Under the Amazon Brand Registry 2.0, there are two types of sellers qualified to apply: (1) actual brand owners and manufacturers; and (2) resellers, distributors, and/or companies that can present legal written authorization that they are authorized to sell such brand on Amazon (i.e. Distribution License Agreement).

In addition to a valid trademark registration certificate or written authorization to sell branded product, sellers must have the following information  to successfully register through the Amazon Brand Registry, :

• Clear image upload of product packaging with clear branding on it
• Clear image upload of product with trademark logo on it
• Link to website where products and brand can be viewed
• Registered email address with the trademark included in the domain name (i.e. your name@brandname.com), as third party email addresses from Gmail, Yahoo, etc. are prohibited).

For brand owners, manufacturers, vendors, and trademark licensees, successful registration through the Amazon Brand Registry creates an enforcement platform to reduce or eliminate consumer confusion and dilution of a brand’s commercial reputation with counterfeit goods.

Although Amazon’s requirement is a great trademark enforcement mechanism, the requirement of a federally registered trademark can be costly for brand owners. Registering a trademark requires a careful analysis of the classification of goods a trademark owner intends to use or actually uses in commerce. The written descriptions of the trademark also need to match the trademark the seller intends to use on Amazon to sell particular products on Amazon’s website.

If you are brand owner and need to file a federal trademark, contact Crespo Law Office to help you navigate through the trademark registration process. If you are a reseller or potential licensee of a brand looking to resell through Amazon, contact my office for us to prepare a license agreement on your behalf.