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Protection of Intellectual Property in Technology Startup
Aside from competence of management team, control of intellectual property is a major focus of investor scrutiny. The ability to identify and protect intellectual property directly reflects on investor confidence and the resulting access to capital available to technology start-up. Protection of intellectual property assets is available through the law of copyright, trade secrets, patents and trademarks.
Financing Technology Startup
Many startup companies, particularly in technology sector, require capital beyond the means of their founders in order to finance continued growth. Expenses quickly add up, and a business that cannot manage its cash flow will not survive. Because startup companies typically have a limited operating history and are considered to be risky ventures, obtaining even simple financing arrangements can be a difficult task.
Internet and Interactive Media Contracts
Whether the Internet is used as the primary method for the delivery of programming (i.e., a "webcast"), to supplement an existing telecast (i.e., a "web simulcast") or simply as a promotional vehicle for a station or network, the agreements used to secure the rights necessary in connection with the exhibition and promotion of programming should be examined and, if necessary, redrafted to address the realities of the Internet. Although it's difficult to predict when the Internet will become commercially viable as an alternative to standard television, broadcasters with the foresight to obtain rights in programming necessary to deliver it over the Internet will be substantially ahead of the game when that time comes.
One of the most complex and important documents to scrutinize is the talent agreement. From the programmer's perspective, the primary function of the talent agreement is to acquire the right to include a performer's name, image, likeness and performance (the so-called "publicity rights") for use in the program over the necessary range of media and distribution channels, throughout the expected distribution territory in perpetuity. A programmer engaging in new production can include the enhancements suggested below in its talent agreements. On the other hand, a programmer repurposing or extending existing programs may need to obtain additional rights if, as in many cases, Internet distribution could not have been envisioned at the time the program was created.
The very nature of the Internet requires that those who transmit performances on it obtain broad rights from performers. Rather than simply an alternative channel of distribution, the Internet is widely perceived as a new medium with worldwide distribution. Programming that is "distributed" over the Internet is available to a worldwide audience. The technology involved allows webcasters to fully manipulate program content, thus enabling advertising to be integrated into the webcast. Webcast viewers can also participate directly in the program. Allowances should be made for these unique webcast qualities in the talent agreement.
Ideally, the talent agreement will provide that the programming may be distributed over the broadest possible range of media. There are two schools of thought as to whether the language "in all media" applies to media not foreseeable at the time the agreement was executed. Because one of these constructs would limit a programmer's rights only to media foreseeable at the time of execution of the agreement--and given the rapidly evolving nature of the Internet--any description of media that does not include technologies "now known or hereafter created" runs the risk of being inadequate within a relatively short period of time.
However, in many traditional talent agreements, the territory and media over which the programming may be exhibited is divided for purposes of determining the fees to be paid to the performer. For example, an initial payment might entitle a programmer to distribute the program over a particular territory (e.g., the United States, its territories and possessions) within specified media (e.g., basic cable television). The performer would then be entitled to receive additional amounts if the program is distributed in other territories or additional media. These arrangements are common among talent subject to a collective bargaining agreement. However, even here, the right to use the content for promotional purposes is generally not so limited.