Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
NOLLYWOOD DREAMS AND PRODUCT PLACEMENT
I have a dream. That one day, I will be delighted to watch a Nigerian-made movie (in 3D, mind you) at the top of the international box office. Now, I don’t mean a movie with Nigerian-born actors like Chiwetel Ejiorfor starring in a Paramount Pictures-distributed, James Cameron-directed ‘Hollywood’ movie. I’m talking of seeing a movie written by a Nigerian, produced by a Nigerian, directed by a Nigerian, shot in Nigeria, and acted by our own sons and daughters of the soil.
The most common excuse on the mouth of Nigerian film producers is that of limited funds. Well, that’s quite understandable, nothing good comes cheaply. I have long repented of complaining and criticizing without proferring solutions, so I have decided to throw more light on one method of fundraising for film producers- PRODUCT PLACEMENT.
Product placement occurs when a brand or product is prominently added and displayed in the scenes of the film, and sometimes written into the lines. It is a refeshing way of advertising because it is not so ‘in-your-face’ like direct advertising. It is a good way of generating funds and free products for the producer and it is a good and credible way of advertising for the brand owner.
Please, let’s clarify something about product placement from the onset. With product placement, you have the brand owner’s permission and you will even benefit from using the product in the film. This is different from where you do not have any permission and you may not even be aware that you are displaying the products or intellectual property of someone else (we do this a lot in Nigeria). If it is incidental inclusion or it does not feature prominently or so many times in the film, it may not be a problem. However, when you display or use a brand/product prominently, especially in a wrong or negative manner, you may be asking for trouble. In any case, we are not discussing that here and now, remind me to bring up the topic later.
Here are some things to keep in mind when contemplating or negotiating a product placement arrangement:
1) Get a lawyer. This is the first and most important caveat. Don’t even think of going through with a product placement deal without thorough and specific legal guidance. The pitfalls are wider than the potholes on Lagos-Ibadan expressway.
2) Let the brand owners know what type of film you are producing. They may need to know the storyline, especially the scene(s) in which you propose to use their product. This is a fair request. However, you need may want to keep some parts of the storyline to yourself, so long as it will not affect the brand in any way (your lawyer will guide you here). In addition, you may have the brand owners sign a Confidentiality or Non-Use and Non-Disclosure Agreement. That way, you have some level of guarantee that your story is safe.
3) Have a written contract between yourself (as the film producer) and the brand owners. Please, do not assume anything. Know and agree for sure.
4) Agree on the method of placement. Will the brand of tissues be prominently displayed when the lead actress is crying? Or will lines concerning the product form part of the dialogue? How many times? For how long?
5) Do not promise what you cannot deliver. This is very important. An instance where this can arise is where you agree with the brand owner that the product will form part of the dialogue twice in the movie, and during editing and post production, you cut off one of the scenes involving the product. You may be exchanging your credibility for a court action.
In addition, it may be wise to insert a clause into the contract that limits your liability to monetary damages and prevents the brand owners from getting an injunction to stop the release of your film for non-performance of a contractual term. Although the success of this type of clause in film-making contracts has not been tested in Nigerian courts, I daresay, it should be successful. The grouse of a few people, however justified it may be, should not stop the progress of the work of a thousand of others.
Generally, it’s just best all round to do what you promised, like you learned in kindergarten. In any case, the brand owners (the ones with sharp lawyers) will require that they see the finished product of the film before it is premiered or released. And this is a logical request; they have their interests to protect.
6) It is also logical for the brand owners to ask you to warrant that your work is an original work and that you have not infringed on the rights of another person (a third party). This is because this third party may find a way to stop the release of the film and of course, the advertisement of their product. However, try your best to ensure that this warranty does not give rise to weighty damages. You may warrant that you’ll refund only the money paid by the brand owners for the product placement and only when the court has found that you did infringe the rights of the third party.
7) It may also be prudent to make it clear to the brand owners that what you are offering them is the placement of their brand/product in the film as agreed and not to a share in the profits, royalties or other proceeds of the film. They are advertisers, not direct profit investors.
8) A word of advice, though: while you may involve a number of products in the film, you don’t want to crowd the film with a lot of products, such that the sitting room of the lead actress looks like a supermarket. The whole gist of product placement is that it does not even seem like advertising, and so it registers on the subconscious mind of the viewer without all the bias that direct advertising faces.
Please, Nollywood, make my dream come true.
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
Showing posts with label brand. Show all posts
Showing posts with label brand. Show all posts
Monday, September 27, 2010
Thursday, July 29, 2010
BRANDING AND ALL THAT JAZZ
Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
BRANDING, AND ALL THAT JAZZ
Entrepreneurship. I find that word fascinating for two reasons. One: it’s challenging to spell correctly. And two: it is a convenient cover-up for those who do not know what they are doing or what they are about, since everyone knows that an entrepreneur may not be successful immediately. Well, we are not discussing how to make a business idea or entrepreneurial venture succeed; we don’t want to put the core business advisors and shrinks out of business. However, we’ll briefly discuss something that could be a crucial element to its success.
Here’s another popular word: Branding. Every Bode, Obinna and Ali is tossing that word about these days, and with good reason too. As with almost everything in life, it could work for you or against you. When you’re starting a business, an important factor to consider is your brand. You may own the brand or you may have to apply for a licence from its rightful owner (we’ll talk about licensing and franchising another time).
In business, a brand is important because it creates an identity for you which can help you to:
• Ensure that your customers, clients, business partners and the general public can distinguish your product/service from others products/services.
• Build a relationship and reputation with the general public and have a competitive advantage (well, if your product/service is good).
• A successful brand is a form of property (intellectual) that can help you to obtain income (through franchising and royalties).
• A good and successful brand is a valuable business asset that helps your credibility and may help you gain investors and obtain financing.
Your brand is a form of your intellectual property. It is as much a property as any other thing you own, and in due time, it could even be more valuable than your real property or other tangible properties. Thus, it is important for you to protect it, so as to get the most out of it. This is especially in a country like Nigeria where everyone wants to copy a successful thing and make it their own.
The best form of protection that you can give your brand is by registering it. Registration gives you the exclusive right to prevent others from trading under the same or a confusingly similar brand.
Branding is related to many areas of law including unfair competition, advertising law and company law. However, the area of law that deals with the registration of a brand for the purposes of protection is a part of intellectual property law called trade marks’ law. In legal parlance, a ‘brand’ is usually referred to as a ‘mark’ (I agree with you that it is not as glamorous).
A mark is a sign that distinguishes goods and services of one person/enterprise/business from those of others. It could be a word, letter, numeral, drawing, picture, shape, colour, label, name, or any combination of any of these. Where it is used on a product or a service, it is generally called a ‘trade mark’ or a ‘service mark’ respectively.
The registration of a mark in Nigeria is governed by the Trade Marks Act. I will not go into the actual process of registration here and now, let it suffice to say that the current process of trade marks registration may be somewhat cumbersome. Thus, it is best to let the strong-hearted lawyers and trade mark agents handle it for you.
I have to briefly mention the doctrine of ‘PASSING-OFF’ by which protection is given to unregistered marks by common law. If some person/entity ‘passes off’ their product or service with a mark that looks like your own or with your name or mark, in a manner sufficient to cause confusion or deception, you are entitled under law to proceed against the person.
The advantage that a registered mark has over an unregistered one is that of proof in the event of infringement. A successful Passing-Off action depends on proof that the mark has accumulated public goodwill over a period of time, and that certain losses have been, is being, or is likely to be incurred by you as a result of the actions of the infringer. This ‘goodwill factor’, which may be difficult to prove, is not compulsory in an action for the infringement of a registered mark.
The remedies for an action for infringement of a registered mark and those of an action for passing off on an unregistered mark are the same viz: injunction, damages, accounts, conversion, delivery up and destruction of the infringing goods.
Well, now, you can’t say you didn’t know all these.
BRANDING, AND ALL THAT JAZZ
Entrepreneurship. I find that word fascinating for two reasons. One: it’s challenging to spell correctly. And two: it is a convenient cover-up for those who do not know what they are doing or what they are about, since everyone knows that an entrepreneur may not be successful immediately. Well, we are not discussing how to make a business idea or entrepreneurial venture succeed; we don’t want to put the core business advisors and shrinks out of business. However, we’ll briefly discuss something that could be a crucial element to its success.
Here’s another popular word: Branding. Every Bode, Obinna and Ali is tossing that word about these days, and with good reason too. As with almost everything in life, it could work for you or against you. When you’re starting a business, an important factor to consider is your brand. You may own the brand or you may have to apply for a licence from its rightful owner (we’ll talk about licensing and franchising another time).
In business, a brand is important because it creates an identity for you which can help you to:
• Ensure that your customers, clients, business partners and the general public can distinguish your product/service from others products/services.
• Build a relationship and reputation with the general public and have a competitive advantage (well, if your product/service is good).
• A successful brand is a form of property (intellectual) that can help you to obtain income (through franchising and royalties).
• A good and successful brand is a valuable business asset that helps your credibility and may help you gain investors and obtain financing.
Your brand is a form of your intellectual property. It is as much a property as any other thing you own, and in due time, it could even be more valuable than your real property or other tangible properties. Thus, it is important for you to protect it, so as to get the most out of it. This is especially in a country like Nigeria where everyone wants to copy a successful thing and make it their own.
The best form of protection that you can give your brand is by registering it. Registration gives you the exclusive right to prevent others from trading under the same or a confusingly similar brand.
Branding is related to many areas of law including unfair competition, advertising law and company law. However, the area of law that deals with the registration of a brand for the purposes of protection is a part of intellectual property law called trade marks’ law. In legal parlance, a ‘brand’ is usually referred to as a ‘mark’ (I agree with you that it is not as glamorous).
A mark is a sign that distinguishes goods and services of one person/enterprise/business from those of others. It could be a word, letter, numeral, drawing, picture, shape, colour, label, name, or any combination of any of these. Where it is used on a product or a service, it is generally called a ‘trade mark’ or a ‘service mark’ respectively.
The registration of a mark in Nigeria is governed by the Trade Marks Act. I will not go into the actual process of registration here and now, let it suffice to say that the current process of trade marks registration may be somewhat cumbersome. Thus, it is best to let the strong-hearted lawyers and trade mark agents handle it for you.
I have to briefly mention the doctrine of ‘PASSING-OFF’ by which protection is given to unregistered marks by common law. If some person/entity ‘passes off’ their product or service with a mark that looks like your own or with your name or mark, in a manner sufficient to cause confusion or deception, you are entitled under law to proceed against the person.
The advantage that a registered mark has over an unregistered one is that of proof in the event of infringement. A successful Passing-Off action depends on proof that the mark has accumulated public goodwill over a period of time, and that certain losses have been, is being, or is likely to be incurred by you as a result of the actions of the infringer. This ‘goodwill factor’, which may be difficult to prove, is not compulsory in an action for the infringement of a registered mark.
The remedies for an action for infringement of a registered mark and those of an action for passing off on an unregistered mark are the same viz: injunction, damages, accounts, conversion, delivery up and destruction of the infringing goods.
Well, now, you can’t say you didn’t know all these.
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