Commentary

Shifting Paradigm In Media Contracts

Who owns the rights to media being produced?

Most of the time, the copyright in media created for a client is owned by the client in its entirety. There is a new set of contract terms that changes this and a small but growing number of ad agencies and boutique production companies are using new clauses to request certain rights to the content they create for a client. 

“We have terabytes of media from past projects that is sitting around collecting dust. It’s not being used, it’s not being monetized and it’s not environmentally green,” said producer Elliot Lindsey.  “We decided to start asking for a limited license back on work we create for clients, so that not all the footage is wasted. Now we can re-use 4k aerial shots for a new project without having to rebook plane tickets and heli pilots.”

The new contract terms are being added in one of two ways

The ad agency asks the client if they’d like additional product placement after the ad buy ends by utilizing VAL (video asset licensing).  They explain that after the project is over, video assets from the production shoot can be used for product placement in other projects to gain further exposure for the client.   

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A good example is DC Shoes’ branded video of Danny Way jumping the Great Wall of China. Several years after the video was shot, HBO licensed some of the b-roll footage from the production for a documentary film -- view footage here.

The other way the new contract terms are added is the ad agency asks the client for a license back to footage not used in the final produced project. Hours of footage that normally ends up on the cutting room floor can now be recycled. This can save an agency time and money because now they can reuse the footage they shot in Montana for another project without having to fly back.

The agency ends up saving time and money, but they are also helping the environment by reducing greenhouse gas emissions by not having to take another plane ride.

There are a number of clauses an agency can use depending on the level of rights they want granted back. 

  • Company grants Contractor an exclusive, worldwide, sublicenseable, transferable, license to all media produced during the course of the contracted work.
  • Company grants Contractor a non-exclusive, worldwide, sublicenseable, transferable, license to all media produced during the course of the contracted work.
  • Company grants Contractor an exclusive, worldwide, sublicenseable, transferable, license to media that is not used in the final completed work.
  • Company grants Contractor a non-exclusive, worldwide, sublicenseable, non-transferable, license to media that is not used in the final completed work.
In short, a license back clause allows the client to maintain the copyright ownership but grants the ad agency/production company a right to use content that would otherwise never be used.  Ad agencies and media production companies should talk to clients about using VAL or the license back clause because there is a revenue opportunity for all that content collecting dust on the back shelves of offices.
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