IP Ownership in the M&E Industry

Introduction

The media and entertainment (M&E) industry, comprises of a diversified range of businesses, which are frequently engaged in dissemination of creative expression and information. As a result, the sector works closely with various performers, artists, authors, publishers, production companies, record labels, online content providers, broadcasters, advertising, distributors, etc. Intellectual Property rights influence almost every aspect ofthis industry and its creative process. It supports the numerous stakeholders who are engaged behind and in front of the scenes, it enables producers to get the funding required to launch production or marketing campaigns, and encourages technology advancements that push the bounds of creativity and make them possible.[1]

[Image Source:iStock]

Intellectual Property Ownership

The point of debate is if the agencies, whether entertainment or media that develop or create any marketing idea for their client be the rightful owner of such an idea? Or whether the agencies should be provided royalties for the same if the idea is used for marketing purposes after their contract has ended?

The creations of the mind are protected by Intellectual Property; however, ideas don’t fall under the protection of copyright. Only the material form into which the ideas are transferred i.e. the expression of an idea is where copyright protection exists.The rationale behind this is that protecting ideas under copyright law would ultimately stifle innovation and creativity by curbing the free flow of the same.

In the Media and Entertainment (M&E) Industry, whenever an agency conceptualises an idea for a campaign, project, advertisement or marketing, the agency generally has no right over it since it is a work for hire. In instances where the idea is used after the contract with the agency has ended, the agency is often not compensated separately. In comparison, individuals involved in the said campaign, project or for marketing are, which has been vocalised as being unfair by several stakeholders of the industry^.[2]The idea-expression dichotomy offers no solution, making it quite inadequatein this regard. Generally, the author is the original owner of the copyrighted work, howeverif there is no agreement stating otherwise, the employer is regarded as the first owner for any work created by an employee in the course of their employment by the virtue of Section 17 of the Copyright Act.

Furthermore, the contracts between Media & Entertainment agencies and their clients render the clients as the first owner of any idea developed for their projects, marketing or advertisements as the same is normally a work for hire.[3] However, sometimes, the agency may consider the intellectual property as an instrument of business and believe that the agency’s ownership of the intellectual property must be preserved, in contrast to the client who may believe that one owns what one pays for.[4]

Challenges

One of the major challenges in this area is firstly, such ideas being leaked and secondly, clients using the ideas developed by these agencies post termination of contract. While agencies in India do not have an upper hand in respect to this, the American Association of Advertising Agencies (4A’s) took steps in 2010 to protect the agencies from being exploited, specifically in the period before the client-agency relationship is formed.[5] The 4A suggested that during the pitching procedure, the agency should make sure to specify in the contract that any and all intellectual property rights that are developed and utilised by the agency in a pitch to a client will belong to the agency and not the potential client. Moreover, creative concepts provided to a client which are not utilised might become tricky in the long run, similar to ideas presented in a pitch.[6]

Role of Contracts

Contracts may aid in the protection of ideas. The agency can add an intellectual property clause to protect its ideas and concepts from being used at a later stage or include a confidentiality clause. Mentioning “tools of the trade” or “creative processes” in the intellectual property clause would not be of any help per se as they are quite broad terms and can be interpreted as “ideas”, which needs to be avoided. In turn, it would be rather beneficial to specify the intellectual property right which are related to the particular project, advertisement, marketing, etc. Moreover, a term clause can also restrict the client from using any ideas or concepts shared during a pitch or otherwise as confidential information even after the expiry of the contract. Mentioning such ideas and creative concepts as confidential information provides reasonable protection to entertainment and media agencies while avoiding problems in the present framework.

Conclusion

It is undeniably hard to determine the relationship of M&E agencies with their clients in context of ideas. Nevertheless, by carefully laying out specific clauses in the contract that work around the current framework, this can be averted to some extent.

Author: Seisha, intern Khurana & Khurana Advocates and IP Attorneys, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

[1]Cathy Jewell,From Script to Screen: What Role for Intellectual Property?, WIPO,

[2]Shreya Negi , In-depth: Brands are winning the war for ownership of ideas, but ad agencies want a change, 

[3] Harita Rao and Gurram Ramachandra Rao, Advertisement and Copyright Protection, 

[4]Holding Redlich, Advertising agencies and the law: Who owns the intellectual property developed by an advertising agency?,

[5]Prabhakar Mundkur, Are Advertising Ideas not Intellectual Property?,

[6]Supra