TBI Weekly: Devil’s in the detail – IP sharing in today’s grabby world, Part 2

Siobhan Crawford

Following on from last month’s column, TBI’s format guru Siobhan Crawford talks IP preservation and how to avoid losing your rights.

OK, where were we? You know how love makes you do crazy things? So does IP.

A good idea is a good idea. And let me make this perfectly clear: this gives you power. You decide how and who interacts with your good idea. You don’t always have to say yes to sharing, you can have the uncomfortable conversation and say no (that happens in dating too). The fear is that your idea could be stolen when someone is offended by rejection or sometimes you feel that saying yes is the only way to get your project over the line.

Unfortunately, this is just the unpleasantness in our industry – IP access and control makes people behave in a way that they would not hope to be treated if roles were reversed. But IP is not a quick thank you in exchange for commitment, assistance or cooperation, it is a perpetual thank you each financial quarter. Remember that.

No means no

• You don’t have to. I have a friend, he is a format creator and he has never shared his IP. He just says no, and he repeats his ‘no’ until it is accepted. And you know what… it works. He had a UK commission and everything. That is the power of the good idea coupled with FOMO.
• Localisation versus development. This is fundamental. When your format is commissioned in Germany or Spain or France etc and it goes from a 8 x 60-minutes to a 3 x 120-minutes or 1 x 150-minutes. THIS IS CALLED LOCALISATION and you do not get IP for this! No country is the same in scheduling, so formats have to be localised when they are sold – this means to change the duration, celeb to normal contestants, elongating segments, adding in commentary, adapting segments so they resonate and the list goes on. Localisations are not legally protected elements of a format, they are just the adaptions needed to make a format fit a country. You do not share for this. If you do not understand the boundary here, call me when negotiating.
• IP is not the only thing. Access is all people care about. If they get distribution, first right of refusals for internal companies, last matching rights etc, then perhaps IP is not needed – it is just because IP feels like the norm, but historically we are paid an option fee/first look/advance for access… not IP.
• Paid development not IP share. If someone develops a format with you, you can choose to pay them a development day rate rather than payment in IP. This is something you agree off the top. Yes it means costs upfront but if the format is a success it is a drop in the ocean.
• Recoupment instead of IP share. If someone invests in your format (and materials) at any level you can ask for first out recoupment instead of IP splits, that means they want all their money back (maybe a few extras in contractual language too). It is possible to move projects between partners and buy them out and at least your IP is whole.

The devil is in the details
You need to believe that skill is in repetition. And that is contractual language. No deal needs to look the same, so writing ‘non-precedential, non-citeable’ on your contracts is where you start. You don’t want to be making standard terms. Here below is writing from the position of an IP owner, agreeing with a collaborator in the IP.

• Reversion of rights – A failure to exploit the format during the term means you could ask for a) termination b) full IP to revert to owner. The IP partner may put a freeze on the format changes though and may ask for a refund of investment.
• Term – Perpetuity should not be the default position here. But this is very nuanced to the deal that you agree. Post commission IP share US style to boost sales – make sure this only commences after a full series has aired in the intended broadcast slot and IP share does not impact pre-existing contracts.
• Assignment – When IP is shared, and contracts with third parties ask for assignment of format elements created by them, you have to name who these revert to. This should be you. You can also ask for different credits ‘Format created by xxx based on the concept of ‘insert your name”.
• Creative control & approvals – Creative control should not be diluted, majority owner/format creator should have this and provide consultancy ((where appropriate) & retain consultancy revenue entirely). Majority owner also has approval right on deals, on distributors etc.
• Expenses – if you share IP ownership, you share costs. So don’t be absorbing costs – you can invoice your IP partner. Likely costs will be recouped from sales after distribution, but make sure you do it. Remember as format owner you will also become responsible for financial reporting to the new IP partner for future deals.

The crux
Too many people are asking for IP as a standard and it has become a standard because too many people agree. Giving IP is the new advance. It is something extra that is the cherry on a commercial offer.  Find a new cherry.

Siobhan Crawford is co-founder at Glow Media and has worked in the format business for almost two decades at firms including DRG, Zodiak, Banijay and Primitives