This is the bracing advice of Cliff Fluet, partner at the London-based law firm Lewis Silkin, who sums up his stock in trade as “helping clients to exploit brands and content profitably and legally within a rapidly converging mediascape, and enabling those seeking to use branded content to monetise their assets to develop new revenue streams”.
In other words, Fluet is a useful man to know if you are contemplating a move into branded or advertiser-funded content — and if you are not yet thinking about it, he would strongly encourage you to start. Fluet maintains that broadcaster/brand partnerships are “absolutely the future” in a multiplatform, multi-screen world where the traditional content-funding models are collapsing like fallen soufflés. “Broadcasters can’t afford to commission as much content any more,” he adds. “But brands can — and that has the potential to be win-win for all concerned.”
But Fluet is realistic about the “clash of cultures and mindsets” that can result in badly structured or poorly understood branded-content partnerships. “There are a lot of future business models and issues at stake, a huge amount of education is still needed, and power play and egos can interfere,” he says, admitting that the various stakeholders’ relationships are likely to remain tense until the industry works out an accepted way of working.
He also pleads for pragmatism: “People can get very hung up about copyright. I know it sounds counter-intuitive for a copyright lawyer to say that copyright doesn’t matter, but sometimes the deal is more important. I can structure you a deal where you own 100% of the rights but have no revenue or creative control. To me, it seems more sensible to maximise the revenue streams. If you’ve got 95% of the revenue and 100% of the creative control, do you need to own the rights?”
Jeopardising a production by quibbling over copyright, he adds, is about as helpful as “bald men fighting over a comb”.
So what’s Fluet’s advice for a happy branded-content experience? First and foremost, don’t assume anything. “Many production companies make the mistake of thinking brands are like broadcasters or the bank,” he says. “They’re not. But you have to enter into a genuine dialogue to find out what they hope to achieve. Production companies can create a lot of value in this respect, such as behind-the-scenes exclusives and web content. So don’t have a laser focus on just the programme. Think instead about what added collateral you can bring to the relationship. Brands are very interested in formats.”
Second, be flexible. Leave the accepted practice at the door and embrace new ways of working, be it sharing revenues, sharing ownership or sharing outcomes.
And last, be understanding. “Production companies, ad agencies, brands and broadcasters all have different commercial agendas,” Fluet says. “My view is that, if you identify and engage with the hopes and fears of all the stakeholders, you are likely to end up with a deal that flies.”