THE LAWYERS WEEKLY April 29, 2005 15 FOCUS ON ENTERTAINMENT LAW rant that they do not have a crim- label would offer to a Juno award- “Canadian Idol” panel describes myriad inal record or pending criminal winning artist. Nevertheless, charges and that they are not sub- because the agreements had been ject to any management, model- negotiated and executed within a of legal issues for industry lawyers ling or other contracts. According short time frame and, in some to Pritchard and Pearce, these cases, within as little as 48 hours, it requirements were necessary to was important to CTV that the By Tara Parker Stohn Hay Caffazzo Dembroski with the series. ensure that the winner was able to lawyer chosen to educate and rep- “Canadian Idol”, the number Richmond LLP and David Pritchard was charged with the travel freely around the world and resent the competitors had a repu- one rated series on Canadian tele- Zitzerman, the co-chair of the task of preparing the rules which to enter into recording, manage- tation that was “unimpeachable”. vision, was the subject of a stimu- Entertainment Group at Good- were posted on the online website ment and merchandising deals for This way, explained Pearce, if any lating panel discussion at a recent mans LLP. The panellists provided and dealing with the multiplicity the worldwide exploitation of the competitor subsequently attempted event sponsored by the Law their insights into the develop- of releases required from competi- winner’s auditions and perfor- to disaffirm a contract on the basis Society of Upper Canada. The ment, production, financing and tors. Pritchard and Pearce went on mances. that an agreement was unfair or Entertainment and Advertising exploitation of the Idol series. to describe some of the issues they In each of the first two seasons misunderstood, CTV would be in a and Media Law symposium was Tracey Pearce led off the ses- had to keep in mind in preparing of the series, Stohn was chosen by position to say: “it wasn’t us – it held at the Toronto Board of Trade sion by describing how she assem- the rules. For example, competi- the top 30 competitors to represent was Stephen Stohn!” on April 8-9 and was attended by bled her “dream team” of lawyers tors are advised to refrain from the top 10 competitors in negoti- Zitzerman concluded the ses- lawyers from the film, television, with expertise in advertising sion with a brief description of the music recording, advertising and (Pritchard), music (Stohn) and production contracts required to broadcast industries. film and television (Zitzerman) to put the series together, including A blue chip panel of industry tackle the complex legal issues the Canadian broadcast licence experts including Tracey Pearce, raised by Idol. Pearce described agreement between Insight Pro- vice-president and general counsel acquiring the format rights from duction Company Ltd. and CTV of Bell Globemedia Inc., Brenda FreemantleMedia and structuring and the regional co-production Pritchard, a partner at Gowling the production with Insight Pro- agreements between Insight and Lafleur Henderson LLP, Stephen duction Company as the producer its co-producers, Rink Rat Produc- Stohn, the founding partner of and CTV as the broadcaster. tions Co. (in eastern Canada) and In response to the hypothet- Aquila Productions Inc. (in ical query: “who needs a format western Canada), as well as the if it’s just a talent show?”, talent agreements between Insight Pearce elaborated on the bun- and Ben Mulroney, as host of the dles of rights to be considered series, and each of the four judges: when acquiring a format, Sass Jordan, Farley Flex, Zack including, for example, the Werner and Jake Gold. right to use names, logos, trade- David Zitzerman, Tracey Pearce, Stephen Stohn and Brenda marks and other intellectual Pritchard, photo by Tara Parker Tara Parker is an associate in property, the “look and feel” of the Entertainment Group of Good- a series, the music, the structure wearing any clothing bearing ating and concluding recording mans LLP. Her practice focuses on of a series, episode themes, the logos or the name or likeness of a contracts with a major recording representing major U.S. and right to merchandise, telecast celebrity to avoid any claims of company (which only become Canadian studios, broadcasters, and to distribute the series in all infringement of copyright, trade- effective for the Canadian Idol producers, literary, artistic and media (such as the Internet, mark or publicity rights. Also, in winner). According to Stohn, who business clients. Tara drafted and DVDs and CDs) and the right to the competitor release forms has represented music stars such negotiated the talent agreements own copyright in the series. In (which must be fully signed by the as k.d. lang, Tom Cochrane and the for the host and judges on Cana- return, the licensor of format competitor or, if a minor, the com- Cowboy Junkies, the music agree- dian Idol and provided production rights may negotiate for fees, petitor’s parent or legal guardian ments were “state of the art”. In legal advice regarding errors and royalties, credits and/or before auditioning), competitors other words, the terms were gener- omissions insurance, music and Tara Parker approval rights in connection are required to represent and war- ally equivalent to those a major clearance issues. include audiences which select Entertainment lawyers must anticipate the finalists for “Canadian Idol” (see article above). During this period of evolu- potential sources of revenues for clients tion, the challenge for enter- tainment lawyers is to identify “After all, who remembers the lawyer who represented the studio which and examine the changing gave up merchandising and licensing rights to the ‘Star Wars’ franchise to nature of the marketplace and George Lucas because they felt there was no revenue potential?!” understand how business issues will impact producers. The most important elements of By Arthur Evrensel on television, was to resort to six months. In addition, there has legal representation and negoti- The last five years have been embedded advertising and spon- been a consolidation globally of ation on behalf of film and tele- characterized by enormous and far sorship opportunities to reach a the ownership of both film distrib- vision producers is under- reaching changes in the global public, routinely surfing during ution companies and broadcasters. standing the potential sources media marketplace which impact commercials or digitally recording The undelivered promise of “syn- of revenue for the client and the producers. Technological advances their favourite programs for ergy” of the AOL-Time Warner constant changes in the market- have permitted the creation of viewing later, commercial free. merger will be a reality in the next place in which they operate. additional television outlets, which Meanwhile, in the world of the five years, as bandwidth capacity After all, who remembers the fragmented viewership, and ulti- theatrical box office, improve- to download films at home lawyer who represented the mately resulted in advertisers ments in technology have also increases dramatically. While studio which gave up merchan- Arthur Evrensel paying the broadcasters less for impacted the marketplace. Due DVD sales revenues are currently dising and licensing rights to commercial time slots due to partially to the emergence of the at historic highs and continue to the “Star Wars” franchise to sion property may be a major reduced audiences. In turn, the importance of DVD revenues and shatter records, it will eventually George Lucas because they felt source of income for a producer or broadcasters paid lower licence the power of the Internet to permit give way to the next platform. The there was no revenue potential?! creator, depending on the type of fees to producers, which was one downloading (legally or other- near future will also see reality Some of the more important programming. It is advisable to of the key reasons for the emer- wise) of a film, the gap between television series further develop issues to deal with include: negotiate a separate pool of rev- gence of low cost reality television theatrical and DVD release dates interactive elements by which Ancillary & Subsidiary Rights enues for ancillary and subsidiary programming. In addition, adver- has been reduced to three months, viewers will be an active part of Control over ancillary and sub- tisers reply to declining audiences whereas in 1994, the gap was over the program; current examples sidiary revenues of a film or televi- see TECHNOLOGY p. 16.