Dividing the new media pie

It's no secret that there has been an explosion of new forms of content distribution in the media marketplace. Emerging digital and broadband technologies are creating a multitude of distribution outlets in the film and television industries that challenge existing modes of rights exploitation and revenue sharing. Granting rights in your content to a broadcaster to exploit in "all media now known or hereafter developed" means more than it used to. Now, that media includes digital cell phones, on-demand replays, aftermarket DVDs, video games, video search engines, video iPods and DVRs, in-car mobile television services and more. With all of these alternative options for accessing and distributing content, and the potential for countless new outlets for consumer consumption and advertiser spending, the rights to exploit and distribute content increase exponentially in value. The big question for producers is, how do you get a piece of that pie?

The big media players are still figuring out which methods of distribution will be most appealing to consumers and advertisers but, based on recent deals between broadcasters and wireless carriers like Sprint and Verizon, it's clear that distribution of content via cell phone is high on everyone's list. The economic model is a work-in-progress and there is no consensus as to what it will look like. It is likely to involve some mix of advertising (and product placement), subscription and on-demand services.

The question of how to share revenue derived from content distributed via these new portals is a hot one. What happens when content originally commissioned for television is broadcast via cell phone or downloaded from the Internet? In order to fully exploit content across all the new media platforms, broadcasters may need to extend their broadcast rights and that's where producers may be able to benefit.

An interesting analogy to the current situation is the one freelance writers faced when newspaper publishers began reprinting their works online. In Tasini vs. The New York Times, the US Supreme Court ruled in favor of writers who claimed The Times and other papers were reprinting their works electronically without their permission. The Supreme Court held that because the contracts signed by the writers granted the right only to publish their stories in print, publishers could not electronically reprint those stories online without obtaining the necessary rights from the writers. Of course, the newspaper industry quickly adapted so that its contracts now require writers to also grant electronic publication rights. The television industry will adjust as well.

How producers will share in the multitude of new revenue streams is not yet established. That said, when negotiating a contract for broadcast distribution, be aware of what you might be giving away and, if possible, either find a way to hold on to some of these rights or make sure you are being compensated accordingly. Easier said than done? Yes - if you are not putting up any money and the broadcaster is commissioning a program outright. In that case, your chances of retaining a piece of the new rights pie are slim. But at least educate yourself on the myriad new distribution outlets and be savvy about your product. There are probably many existing agreements that do not specifically address today's mobile and digital media, and that may require broadcasters who want to exploit that content in new ways to negotiate with producers. So look at your contracts, and be cognizant of what rights are included in any new deal you sign. You just may be able to keep a slice of the new media pie for yourself.