AccelPro | Intellectual Property Law
AccelPro | Intellectual Property Law
On Entertainment And IP Law - Industry Developments Around Franchise Media
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On Entertainment And IP Law - Industry Developments Around Franchise Media

With Simon Pulman, Partner at Pryor Cashman LLP | Interviewed by Neal Ungerleider

Listen on Apple Podcasts and Spotify.

Welcome to AccelPro IP Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re talking with Simon Pulman, a Partner at Pryor Cashman and Co-Chair of the firm’s Media + Entertainment group. 

Video games, comic books and book franchises remain fundamentally important in the media landscape. Intellectual property lawyers and their clients have been keeping up with a staggering array of changes and developments in the way rights to these properties are handled and negotiated.

In this conversation, we discuss entertainment deals for IP rights holders, IP issues in building properties around gaming and comic books, copyright issues related to user generated content and the importance of relationships in an entertainment law career.The supplemental materials and episode transcript are available below.

Listen on Apple Podcasts and Spotify.


Interview References:

Supplemental Materials:


TRANSCRIPT

I. THE CHANGING MEDIA LANDSCAPE

Neal Ungerleider, Host: Simon, could you tell us a little bit about your background?

Simon Pulman: I'm a Partner here at Pryor Cashman. We are a mid-sized law firm with offices in New York, Miami, and Los Angeles. I am based in New York, although, as you might imagine, I do a fair amount with Los Angeles given the nature of my work. Essentially, I'm a company side entertainment attorney.

I'm involved in all steps of the process of helping to make film and television and podcasts and interactive productions. I’m involved with the acquisition of rights—which today could be a book or series of books, it could be a podcast or somebody's real life story, it could be a video game or a graphic novel—through hiring writers and directors and other attachments, through doing deals with the buyers.

In the present ecosystem, and this has been the case for the past five years or so, at least, this can range from traditional distributors, be those broadcast networks or traditional film theatrical distributors, through to digital streamers who have obviously had quite an effect on the overall media ecosystem over the last few years.

NU: Part of your practice is around entertainment deals for IP rights holders. I know you recently wrote about this. What considerations should they keep in mind?

SP: I think it's helpful to contextualize first that there's been huge demand for film content of all kinds over the last few years. It is driven in large part by the streamers, but not exclusively. These range from live action series (whether they're ongoing or limited series), to motion pictures, to animation (the anime world has just exploded), and that has flowed down all parts of the ecosystem. 

You have to start with something. You start with material very often, and sometimes that can be a spec script. It can be an original idea that a writer has put together, formulated, and written a script about, but very often it's based on something. That can be a book, a work of literary fiction; it can be a series of books, but increasingly it's atypical forms of IP. 

When I wrote that article, I was thinking about a few things: toys and consumer products, tabletop games, but particularly video games. I think anybody listening to this will have an awareness that there’s been a big explosion in the IP market for video game rights over the last few years.

This has been happening for a while. The Sonic the Hedgehog movies were very successful, but it's really exploded in the last six months or so with The Last of Us on HBO, which has been very critically acclaimed and was a great success for them. There is also, in the last three weeks or so, the Super Mario Brothers movie, which is at the time we are recording this well on track for a billion dollars and will likely sail past that as it is yet to be released in Japan.

There are all sorts of considerations that one has to think about when doing a rights deal, and I do them on both sides. I acquire a lot of material for studios, networks, and producers, but I also represent rightsholders, ranging from novelists, to video game companies, to podcast companies. They are on the rights side of things and have a studio or a streamer looking to acquire their material.

Generally speaking, we're thinking about what rights are to be granted. The traditional model, historically, was that of a book author: we'll take all the screen rights and everything else. You can continue to publish your book and maybe you can do radio and live readings of the book, but everything else lives with the studio.

That's still fairly typical and commonplace, but it won't really work for a high-end multi-level rightsholder, which is what I was thinking about in that article. If you're a video game publisher and you've sold millions of copies of your game and you have plans to build out the franchise of your game through new iterations and downloadable content and merchandising or perhaps tie-in publications, you simply can't give those rights.

That's one of the pieces that we increasingly negotiate, approvals and controls. Again, historically, very little deference has been given to the author or the underlying creator. If you have a big book series, however, that's starting to change. Also, if you have something that's preexisting and it's a brand that’s sold a lot of copies—you’ve got something to protect—you’re not going to jeopardize that by potentially having a production that is either not commensurate, not on brand for that particular IP, or that is poor quality. 

And so, we're seeing an increasing amount of involvement from rightsholders there, and a lot of complexity navigating those issues. Who has control on what pieces? How does it work politically? And so on and so forth. Of course, you've got the economics, which are huge, and we are involved in a lot of competitive rights situations. It's not exclusively limited to big consumer brands or things that are out in the marketplace. Very often in Hollywood it's a competitive rights situation around an article. 

For example, let’s say there's a New York Magazine article about some scammer or true crime story, or some stranger than fiction thing; it circulates over the weekend, and by the following week you've got a bidding war. Look at the situation around, for example, the Anna Sorokin story that Shonda Rhimes did in Inventing Anna, which was a limited series. I have no firsthand knowledge and I wasn't involved in that deal, but I have to imagine that was a situation where it escalated pretty quickly and there was a lot of bidding. When something has a competitive nature, clearly the economics tend to be greater for the rightsholder.

II. RIGHTS AND RELATIONSHIPS

NU: A lot of our listeners are IP, copyright, and patent lawyers who work in different fields. I know you just touched on this, but could you explain a little bit about what makes working in IP and entertainment unique?

SP: It's interesting because the first thing that comes immediately to mind really has absolutely nothing to do with the law, and not even necessarily to do with the substance of the deals.

It's really more about the course of dealing. In terms of operating within Hollywood, how the process works between agents and managers and attorneys on both sides of things can be quite intimidating. It can be quite difficult to come in from outside of the industry because of the idiosyncrasies of how things operate. It’s a heavily relationship driven business, truly. 

In my business, I'm dealing a lot with the same parties over and over again, particularly when I'm acquiring material or hiring writers. We deal with generally a handful of entertainment and talent boutiques and agencies. Of course, the big three agencies being CAA, WME and UTA, all of whom have very strong literary agency groups. 

In terms of substance, I would say there are pretty well-established structures for these kinds of deals, and the typical structure is called an option purchase. The producer pays a down payment of guaranteed monies for an exclusive right to effectively develop and pitch the project. Then they pay a purchase price, typically when they're closer to production. There are all sorts of other elements to those, but they're pretty formulaic in that respect. I think if you come from outside and you don't really know anything about that, it could be quite difficult. Although, as alluded to, the structures are changing. 

Humorously, because I've talked to a lot of people over the years who come from media or tech, things are fairly adjacent; we have a lot of things in common in our business, such as credit. Credit, in my business, is one of the most important things, and I've had conversations with people who are absolutely crazy about it. I don't understand why people care so much, but there are a variety of reasons for that. One, I think, is that when they’re driving down Sunset Boulevard in Los Angeles, where most of the talent lives, they might see a billboard with their name on it. They want us to make sure that, if they're an actor, their names are commensurate and everything else. The talent lawyers spend a lot of time protecting for that.

I honestly couldn't really recommend that anybody venture into this world without having some kind of specialist guidance or support from the people who navigate it. The thing about these deals is, generally speaking, the client often wants the deal to make, and the deal won't make if you're not familiar with the terms. On the other side of things, there are long lasting repercussions to these deals. If you grant rights to a studio, you could easily find yourself in a position where your rights are living with that studio, with its successors and assignees and everything, for a very long period of time—effectively for perpetuity.

NU: What sort of IP issues accompanied the rise of franchises for video games, science fiction, fantasy, and comic characters in particular? How did that change your work?

SP: The first thing I should preface for you and the audience is I'm a huge nerd. I have an Arcade1Up machine here, and anybody who's in my home office will attest to that. This is an area that I've always been passionate about and I'm very fortunate to work in it. I do think that my background knowledge of this media is very helpful in making deals. 

There are a myriad of issues that relate to science fiction, genre, YA series, and video games. Obviously, one is that there's franchise potential. I think you have to address a deal that's for a one-off close-ended drama, especially if it's an indie drama, slightly differently than something that, in theory and with success, could drive multiple iterations and sequels. It seldom happens, but we always have to plan for success because that's when the attorney's work gets scrutinized. 

Just look at the announcements of the last few weeks. We have Harry Potter reimagined as a television series; we have a Twilight series that's just been announced; we have a Hunger Games spinoff that I think is a prequel, not based on one of the trilogy of books, but that continues to live on. So, you have to think through, what if it is a success? particularly when you have property that is creating a world. 

With that comes some really interesting rights deals. If we look at comic books, for example, one of the hallmarks of comic books—and this is true with Marvel and DC, but also Valiant comics (which was big in the nineties)—are the crossovers between properties. One of the things about Marvel was that Spider-Man crossed over and now he's interacting with Wolverine from the X-Men, and then maybe the next issue he’s with the Hulk. He's also joined the Avengers, and now we have Secret Wars

You have to work out, even for a new comic book, how those things are treated, and which characters go to a particular rightsholder. Obviously, if you are an owner you want to think about what the creative potential is, what your plans may be, and what rights you might inadvertently grant. Likewise, on the buyer side, you have to make an analysis as to what rights you might need. 

By the way, this is not limited to comic book properties. If you look at recent series from the past few years, there's one called Bosch on Amazon, which is a procedural crime show. I love it. Then Netflix premiered a show called The Lincoln Lawyer, which is also really strong. Both of those are procedurals that are based on crime books by Michael Connelly. A character from The Lincoln Lawyer appears in a bunch of Bosch books, but The Lincoln Lawyer is clearly controlled by Netflix, while Bosch is controlled by Amazon.

On the video game side, things are even more complex because of the fluidity of how they develop. What you often want as a video game company is the ability to fold back characters and concepts into expansions of the game and those kinds of things. That leads to something that I talk about a lot; I call it the Daryl Issue or the Daryl Problem. There was a very successful show called The Walking Dead. If you are interested in the law and litigation around entertainment, then I strongly recommend that you look into it. 

There was a character called Daryl who was created for the series by AMC. By default and by tradition, any character that's originally created by the studio is owned by the studio, and cannot be used by the underlying rightsholder. Effectively, that's a new character owned by AMC. Co-creator Robert Kirkman, who is a producer on the show, and his publisher could not fold that character back into the books, absent some kind of special agreement.  

That tends to be an issue for video game developers and publishers because they want synergy. They want organic storytelling. Look at the Cyberpunk anime show that was licensed by Netflix and got fabulous reviews. The Cyberpunk game has, I believe, built-in crossovers between the game and the series which you simply cannot do if you've got a schism in the rights.

NU: What are some of the biggest copyright and IP issues in the gaming world these days?

SP: A modern video game, especially an AAA title, is very expensive and very complex. Typically speaking, there are a lot of issues that come with the various assets and clearances there. I would say that one of the issues that’s really interesting within the gaming rights space relates to user generated content—these platforms that are as much experiences and social playgrounds as they are games. 

That's certainly true for Roblox and Minecraft. In certain ways, it is Fortnite as well. It’s really interesting because there’s a lot of room for a huge amount of creativity. A lot of people are excited about the concept of co-creation. You have to pay some scrutiny to what the terms and conditions of the site say in terms of what’s permissible, what you can and cannot do, and who owns what. There are question marks, obviously, if multiple people are contributing to a project. 

From my perspective as a deal maker, it's really interesting. We have done some deals, for example, for Roblox games that would allow it to effectively move into television. There are going to be licensing and merchandising possibilities for those properties, as well. I wouldn't be surprised in the future to see some fairly major IPs grow out of one of these virtual experiences.

What that means is that you have to really think about ownership and chain of title. If you are licensing or granting rights, you may have to disclaim what you don't own. I posted this morning about the crossover of different brands and so forth. I've acquired video games in the past where they've had third party characters from movies in the game, and clearly that has to be carved out from what they're able to grant to a potential buyer.

There's consideration and scrutiny to the details, but increasingly, I think game publishers and developers need to think about the future. I was at the Game Developers Conference (GDC) for the first time this year, and I was honestly quite staggered by the level of interest that people in the gaming space have in traditional entertainment. 

It's something I've been excited about for some time, but I didn't realize it was quite that level of excitement. You have to be careful because if you are a developer and you have those kinds of aspirations, you may inadvertently end up giving rights to your initial publisher or financier that you didn't know that you were granting. That can create a schism, and that's something else that we've encountered on the buyer side.

NU: For our listeners who might not be familiar, some games can have a large volume of user-generated content (UGC), right?

SP: Almost infinite levels, and the game publishers and developers have a sort of spectrum of permissibility. There are certain companies that allow modifications and additions as long as you adhere to certain rules and terms of service that they make fairly clear. Something like Roblox, and I think possibly Fortnite, are based on interactivity, social aspects, and the sharing of things.

Roblox is a platform where you can create, and we’ve seen established brand holders create things there. I think there’s an official Sonic the Hedgehog game within Roblox, but also there are just geniuses–people who are under the age of 25, in some instances under the age of 21– who are creating these games or concepts within Roblox. That’s really interesting.

On the other end of the spectrum, you have companies that are not prepared to tolerate any kind of modification or derivative content. As fabulous as they are at Nintendo, they’re just not really interested, and haven't been historically, in that kind of activity because they really like to tightly control their IP and the quality of the product. 

But it’s something that I think that the younger generations are really interested in: this notion of creation, this notion of having a tool set, and of being able to share something with their friends, but also with the big old world. There’s a myriad of issues, especially with younger people, around copyright and everything else. I know there have been some question marks around the economics of it as well, because obviously a lot of value flows back into these platforms. But it is a massively popular activity.

In general, the gaming, digital, and virtual world all color how the younger generations interact with the world around them, and how they interact with media and entertainment. I think that most major entertainment brands moving forward are going to need some kind of interactive component to them in order to be relevant to the younger generation. 

III. CAREER PATH

NU: Were you always planning on IP law?

SP: The answer is yes. As long as I can remember, I was the person who was watching the credits of every TV show and movie to see the order, and who got the “and” and who got the “with” at the end. I’d look at a poster and ask, “Why is this character not in this particular production?”

In that respect, I’m very fortunate to be able to carry some of my personal interests into my professional work. I am, and I have been, a huge consumer of media. I’ve watched a lot of movies and television, read a lot of books and graphic novels, and played a lot of games. It infuses everything I do and how I think about the world; it's very much the prism through which I see things. 

I would say to anybody who's listening and aspiring, the hardest thing about getting into entertainment law is getting your foot in the door. It's quite difficult unless you have some kind of direct connection. I was introduced to my former firm by Jeff Gomez, who is somebody I'd worked for and with, and has really been at the vanguard of the transmedia movement. I got the opportunity and when they said “Jump” I said “How high?” and I was there first thing in the morning. I sat on the couch until the partner told me I could go home at the end of the day; I worked weekends. I did everything because I had no Plan B and because this is really what I wanted to do. 

I did a lot of independent films in the beginning and worked on documentaries. I was fortunate to get exposure to things like finance and distribution. Then, at one point in time, I was given the opportunity to work as the outside/inside business affairs, general counsel, and that type thing for Macmillan in its entertainment activities. These are the kinds of books where either the deal is a cataloged and historical thing they brought out that they happened to get the film and television rights for, or it was negotiated, or it was something that the publisher had conceived of.

That’s where I really got to cut my teeth doing  rights deals. From the buyer's perspective, we did children's books and graphic novels, and I had situations where the contracts were pulled out within wax paper from the 1930s with handwritten notes all over them. We had to interpret them to see what we could grant and everything else. But it was a real sort of moment of inception, and now we're full circle. 

This whole concept of cross-platform and transmedia was something that everyone was extremely excited about 11 and 12 years ago. The concept—or at least the word—faded, although certainly the techniques have been seen in things like Marvel. Now here we are, back again. 

Particularly at the intersection of film, television, and video gaming, I think there’s a lot to do. I don’t think every single one of these experiments is going to be a massive success, but I think a lot of them will be because they bring brand awareness. They bring existing audiences who are really passionate about those particular worlds, and that’s key to everything.

There’s a lot of luck in any career; I was fortunate to get the opportunity I did. I just worked very hard and read and consumed as much as I possibly could about the industry and dedicated myself to client service. That's the thing about being a lawyer—the only thing that matters is the client. The clients and the work are everything. Client service is your north star. You just have to do your best with the client in all situations and give them the best possible service.

Listen on Apple Podcasts and Spotify.

This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on April 28, 2023.

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AccelPro | Intellectual Property Law
AccelPro | Intellectual Property Law
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