By Alan Gahtan - November 13, 1995
The CBAO Young Lawyers Division recently sponsored "An introduction to Multimedia Law and Technology" seminar. The purpose was to explore some of the legal issues related to these emerging technologies. There appeared to be a high level of interest in this topic with 76 participants in attendance.
The term multimedia refers to products which integrate text, graphics, pictures, sounds, music, animation and/or video with which a person can interact and control using a data input device such as a mouse, trackball, touch screen or keyboard. Another definition of multimedia is that of a convergence between the publishing, entertainment and software industry. Silicon Valley meets Hollywood.
A number of distribution methods, including diskette-based software, on-line services and the Internet, can now support multimedia. However, its most prevalent implementation has been in CDROM-based products such as electronic encyclopaedias and educational games.
The seminar opened with a demonstration of several leading-edge multimedia applications. This was followed by segments highlighting the key legal issues involved in the exploitation, production and distribution of multimedia applications including financing issues.
Unlike traditional forms of software publishing, multimedia-based products typically include a large proportion of content produced by multiple third parties. It becomes very important to create a checklist of all possible proprietary elements in a work and then follow up with a due- diligence check to ensure that clearance is obtained for each item.
One example is photographs. A right to utilize a photograph in a multimedia work would need to be obtained from the copyright owner. This might be the photographer or a stock agency. However, an additional release may need to be obtained from individuals depicted in a photograph. If a multimedia product is to be distributed internationally or throughout North America then one would need to consider the laws of each jurisdiction to ensure compliance with privacy/misappropriation of personality rights. Some jurisdictions in Canada and the US have even recognized the descendability of some of these rights.
The inclusion of a musical composition in a multimedia product is another example of an element which warrants careful consideration. If a multimedia developer wants to use a recorded version of a particular song, the developer will need to obtain certain rights from the owner of the copyright in the sound recording. These can include mechanical rights, synchronization rights, public performance rights, reproduction rights, adaption rights and distribution rights. However, the developer will also need to obtain certain rights from the owner of the copyright in the underlying musical composition.
The task of tracking down and negotiating with the owners of the potentially hundreds of elements contained in a complex CDROM product constitutes a significant component of the cost of producing such a product. The process is very frustrating as there is no central source for obtaining clearance and few industry guidelines with respect to the rates applicable for such licensing.
Aspects of the developer-distributor relationship were also discussed. This included pre-sale financing and the bundle of rights to be transferred. A number of new distribution technologies such as the Internet and interactive cable may mean a shift in the future from the current extensive use of CDROMs. Distributors therefore typically want an assignment of rights to all future media and technologies while developers want to retain such rights.
Another right which should be considered is the copyright to characters contained in a multimedia work. If the product is a success then the licensing of merchandise depicting such characters can be a valuable source of additional revenue.
This area of the law promises to be an exciting place to practice in the foreseeable future as new technologies open up new possibilities.
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