USA Edition Issue 1: (C)opyright Chronicles with Greg Lush

Note: This interview was conducted at the end of 2020.

The (C)opyright Chronicles is a series of interviews with creatives from different backgrounds, focusing on their practical experience of copyright law. We’re kicking off our 2021 (C)opyright Chronicles with a USA Edition!

For our first installment in this series, Dion from FAME chatted to Greg Lush from Disney.

Greg is an intellectual property and entertainment law attorney with extensive experience in copyright and marketing litigation. He completed his JD in California and his legal career has taken him from a small litigation firm to three of the major Hollywood studios. He currently works with Disney’s studio marketing division following the acquisition of 20th Century Fox and provides advise on legal issues related to marketing materials and content.

To start, why don’t you introduce yourself and briefly outline what you do at Disney.

I am an intellectual property and entertainment law attorney with experience in a number of areas such as consumer product and promotion licensing, marketing vendor agreements, sweepstakes, influencer engagement, rights management, clearances, credits, and copyright litigation.  My legal career has taken me from a small litigation firm to three of the major Hollywood studios.  I earned my bachelor’s degree at American University in Washington, DC and my Juris Doctor at the University of Southern California Gould School of Law in Los Angeles, CA.  When I’m not working, I love puzzles, trivia games, reading about history, cooking new recipes, and pushing for higher outputs on my Peloton.

At Disney, I support the studio marketing team.  I primarily handle tie-in license agreements, which are copromotions between a third-party brand and the studio to promote an upcoming release.  Marketing services can include a wide variety of tasks like negotiating product placement agreements, vendor agreements to provide advertising support and creative content production, live event agreements (like drive-in screenings which have become very popular again due to social distancing), and reviewing advertising pieces like commercials, banner ads, emails, social posts, and sweepstakes rules.

While at Fox, I was very fortunate to counsel the incredible and creative international theatrical marketing team.  The marketing team had brilliant ideas, as evidenced by the marketing campaigns for Deadpool and Bohemian Rhapsody.  It was a joy to work on such interesting and innovative projects. 

What does a regular day look like for you? What are the most common legal tasks that you have to deal with?

Most of my time is spent on contract drafting and negotiation.  I will receive a letter of intent or other type of initiation message from the business unit to begin drafting an agreement.  Like every company, we have templates to use but the deal terms of each agreement will vary.  The draft is then issued to the other side and typically comes back with redlines.  From there, it is my job to review the redlines, communicate the changes to the business unit and collect their feedback, elevate and traffic any unique questions to the appropriate group within the company (such as labor counsel, IP counsel, privacy, and risk management), and then negotiate the redlines with the other side.  I must ensure that the agreement protects our interests while still securing a deal that works for us and makes the arrangement worthwhile.

At Disney, my client is the studio marketing business unit.  That said, an interesting note about in-house lawyers, especially at large companies, is that we also have a duty to the company as a whole and must take care to keep those interests in mind when advising the business unit.  What may be good for my business unit may harm another.  I always have to be mindful of how my work may impact the rest of the company.

To address it upfront, how have you adapted to a COVID-normal?

I have adapted well although it took time.  I enjoy going into the office so I had a hard time working from home.  I used to work from my kitchen table in an unorganized manner hoping the arrangement was temporary, but I finally got a small desk and some basic office equipment and life has been much better.  I also like the increased use of video calls.  Oddly enough, I see my clients and colleagues more than before. 

I came to Disney through its acquisition of Fox and was reshuffled into the marketing group, but I still work out of the Fox lot while my clients and colleagues are at the Disney lot.  I rarely saw my new team and clients but now I see them much more because of video calls.  I’ve also found that without a commute I have a lot more time to exercise and have taken advantage of it.

Could you explain in a bit more depth how third-party tie-ins operate? What significant legal hurdles are involved in this arrangement?

Tie-ins are licensing arrangements whereby a third-party brand gets to leverage a movie in its advertising by including movie artwork and clips in advertising assets like commercials, emails, banner ads, social posts, websites, and other various marketing activations. The third party will include cobranded ads in its paid media advertising and other marketing activities around the release date for the movie, and in exchange the cobranded ads will have call-to-action messaging for the movie (i.e., “See [Movie] in Theaters [Date]”). The third-party brand will attract the film audience to its products and will see increased engagement during the promotional term, and the studio will reach the brand’s audience.

There are a number of issues that frequently come up when negotiating a tie-in promotion deal.  Each promotion has to be addressed on a case by case basis since no two promotions are alike.  To illustrate a few issues:

  1. Approval Rights – The studio will always want to approve in its sole discretion every use of movie content by the brand.  Brands will ask for a reasonable right of approval and that the approvals not be unreasonably withheld since they have deadlines to meet and risk losing out on media they have already paid for.
  2. Indemnities – Since the brand is running the promotion, the studio wants the brand to indemnify the studio in the event the studio is harmed as a result of the brand’s actions.  Many brands want to put caps on liability and exclude certain claims from liability.
  3. Termination Rights and Morals Clauses – The studio wants the right to terminate in the event that the brand does something that, while not necessarily illegal, could cause social backlash.  Brands are going to be wary about what could trigger a termination on morals grounds since they invest time and money into promotions and want to make sure that investment is protected, and morals have an element of subjectiveness.
  4. Ownership – Because tie-in promotion ads are inherently cobranded, ownership of these ads is often contested.  Who really owns a co-branded ad?  The key baseline is always that no rights to the studio’s intellectual property can be granted to the brand beyond the limited license.
  5. Insurance – we have baseline insurance requirements to make sure that if the brand does run into a problem, they have the insurance to cover it.  If a brand does not have insurance that meets our minimum requirements, we have to run a risk assessment.
  6. Release Date Changes – This is a new one since it used to be that once a movie was slated, the release date would never change.  COVID upended all of this.  Negotiating what happens if the release date changes requires creative solutions.
Tiffany’s x Death on the Nile Tie-In Source: Hollywood Reporter; Rob Youngson/20th Century Studios

What has been the most interesting/unique deal to come across your desk?

I am currently working on a software as a service agreement for a cloud database, which is a new but exciting challenge.  I am expected to be able to assist my business unit with whatever their needs are, and sometimes the deals are outside my usual practice.  I have not handled a software as a service agreement before but it is a fun challenge and will broaden my area of expertise.

Have deals ever fallen through because of legal conflicts or ramifications?

I have not experienced this.  There have certainly been close calls and last-minute negotiations, but I have found a resolution in every case so far.  I need to keep in mind that by the time I get a deal, the business units for each side have reached a preliminary understanding on the deal terms and are likely both taking steps anticipating the contract will get finalized.  While there are a few things I can stand firm on in a negotiation, my job is to find the solution and not stubbornly stick to a position that will blow up the deal.  Business units will understand if there’s a legal issue that I need to fight for, but will be very frustrated if that kills the deal.  This tension goes back to what I was saying earlier about needing to balance the interests of the business unit with the interests of the company as a whole.

Has your career trajectory been how you imagined it? Is there a defined career path in this kind of field?

I imagined being where I am now but my trajectory was not as I had imagined, mostly because I had no plan other than to keep my eyes open for opportunities and take advantage.  I bombed my on-campus interviews so the traditional path of working for a big firm for a few years then transitioning in-house was out.  I spent my summers in law school primarily in dependency court (courts that handle child custody matters) and a small litigation firm, but I was always applying for in-house opportunities.  I finally landed an internship at Universal for my last year of law school.  After law school, I did not have a job lined up and was desperate so I took the first one I was offered which was litigating copyright claims at a small firm.  I did not have a strong desire to litigate then, but I thought that the copyright angle could help position me later.  I then took a risk and left that job after a few months to take a one-year temporary position back at Universal, hoping that could be my foot in the door to a full-time job.  Long and stressful story short, that did eventually turn into a full-time job, but not until the last minute and I even gambled further by not taking the only job I was offered prior to the end of that one year.

There is no sure career path to becoming an in-house lawyer or working for a studio.  As I mentioned, the traditional path is to work for a big firm for a few years and then transition.  Sometimes it is possible to turn an internship into an out of school job.  A lot of the time the path is like mine where you keep your options open and take risks.  In any path, I would say that the keys are preparation, persistence, and luck.  You can prepare yourself by taking law school classes relevant to entertainment law and in-house roles, joining relevant clubs and bar associations, and writing articles for a school journal or blog in the practice area.  You have to be persistent with your search and networking for opportunities – I applied for every internship I could find and had applied to Universal each cycle (summer, spring, and fall) for two years before I got an interview.  The hard truth is that there will always be an element of luck involved, but this is not luck that just happens –preparation and persistence lay the foundation for luck to strike.  I was lucky to get my temp job and then lucky again for it to turn into a full-time job, but I had prepared and worked hard to maximize my odds.

What skills and attributes do you think are key that we as students should be looking to develop to crack into entertainment law?

I think law students can do three things to help prepare and position for entertainment law.  First, take advantage of offerings from the school to build a foundation and demonstrate interest, such as enrolling in relevant course work (intellectual property, contract drafting and negotiation, etc.) and joining relevant organizations and clinics.  Check if your university will let you take classes at other schools like the business or film school to get a nonlegal perspective on a topic (for example, I took a class about the talent agency business through USC’s film school).  Second, constantly watch for internship opportunities and apply where you can.  It might take a while to land something but keep trying – anything you can do to get your foot in the door.  Third, students may get special pricing or even free membership to bar associations which often have specialized practice area groups.  These groups collect and post topical news stories and host networking events.

Most people have an inflated conception of the entertainment industry. Is this also the case for entertainment law? Are there any misconceptions that you would like to dispel?

I think it all depends on who the audience is, but in my experience many people think of entertainment law in terms of movie deal-making or having something to do generally with intellectual property.  While movie deal-making and “something to do with intellectual property” are certainly areas of entertainment law, the reality is that entertainment law encompasses a wide variety of practice areas and specialties.  A sampling includes production, finance, litigation, labor and employment (who also have to manage guild rules and relationships), privacy (which gets more complicated by the day with each new regional privacy law), distribution, acquisition, and marketing. 

On top of that, you could be a lawyer for a theme park, direct-to-consumer streaming platform, or consumer product arm.  The work also varies by size of the entity.  A large studio is going to have specialized legal teams for each line of business but a smaller company is going to need someone with a wide range of expertise.  You could spend your whole career never working a movie deal or handling intellectual property matters.

Stock photos obtained from pexel.com

Episode 6: Arts Lawyer & Social Justice Advocate Delwyn Everard

INTRO

LEAH ALYSANDRATOS (FAME Careers and Sponsorship Coordinator): Hello and welcome to the FAME Law Students’ Association’s podcast: The Brief. For the uninitiated, FAME sands for the Film, Art, Media, and Entertainment. The FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture.

In this podcast series, we chat with lawyers and artists working in the creative industries, learning about their daily work, career development, and topical issues facing the industry.

In today’s episode, we chat to Delwyn Everard who works deeply within the creative industries and advocates for the protection of Indigenous culture. Delwyn shares her story of New York in 1980s, and how instrumental her experience there was in who she is now as a lawyer. She delves into the intricacies of copyright law and how intellectual property protections do not adequately help Indigenous art. She shares her opinion on the AFL Indigenous flag controversy and provides eye-widening wisdom, especially about the value behind truly appreciating art and creators. In recognition of International Women’s Day, we hope that you enjoy this episode.

SAMARA: Well, thank you very much for joining us, Delwyn! To start us off today, could you please tell us what drew you to studying and practising law, specifically in the arts?

DELWYN: I’ve always just loved words, debates, and stories. I was a voracious reader as a child, I was hopeless at sports, and I  always had my nose in a book. I was quite argumentative, a debater in school. All those things I think we’re not bad practise for law actually! I love the thrill of an argument, and I love unpacking a story, and listening to others, and following a narrative. I think all of those things led me to the law.  In terms of the arts, I actually enrolled in architecture, and then I thought about journalism. I had always been interested in the arts. My mum used to take me to a lot of theatre as a little girl. I was very lucky. Not so much the visual arts, I hadn’t had much exposure to that as a child. 

I went to the University of Western Australia and they didn’t have any IP units or anything that related to the arts. So having decided to study law, because I liked words and story, there wasn’t that much of a focus on the arts. But I did a Masters at Columbia University, in New York, when I finished school. That blew me away – hundreds of subjects to choose from. I did a Copyright Moral Rights unitThere was an amazing unit called Law In Theatre, which was half law students and half theatre students, and basically over the course of the subject, w e negotiated a hypothetical Broadway play, so that got me very interested in the arts.

My first job in New York did not have anything to do with IP but when I came back to Australia I worked at Allens in the litigation department and I was lucky enough to work with some really fabulous IP lawyers, and I did a lot of patent work. So, having done no science at school I then started to learn about biochemistry and mechanical engineering, and things like that. And again, that is about stories, talking to inventors, you find out what gave them their  ‘a-ha’ moment, so I got very interested in that. about how their mechanism came about. I did some music copyright at Allen, and then I went and joined a small boutique IP firm attached to a patent attorney firm, Sprusons. I did a lot more IP there but it was still very science-y but now a lot more trademark. And that is actually quite creative too, you learn how businesses build brands, their clever marketing, brand stories; it ends up distinguishing services and goods which are practically identical.

And then, must be just over ten years ago, I just needed a change. I had been in private practise for a long time. I took a bit of time off, I had teenage kids at the time, and I just thought I needed to be a much better mother and do tuck shop. I hated it.

But, I then rang the Arts Law Centre to volunteer, and the Director said “Oh come have a coffee Delwyn!” for coffee. Suddenly I had a job,and I stayed there for ten years, and so that is when I really got into that area of IP, so away more from the science and trademarks and patents, and into the arts. It was particularly wonderful to be working for creatives who really needed legal advice, not big business, but first time filmmakers, actors, and dancers, people writing stories and not yet sure, you know, of how they were going to go. It is so much more than IP too – it was all aspects of being an artist, and I really loved that. About two years ago I left the Arts Law Centre. I thought I was going to do something really different, I was waiting for that next, big, different career to come along. But I just had people contacting me, saying “Delwyn, can you help me?”, and suddenly I was doing what I’d always done and I realised how much I loved it. So now that is my practice! It’s a bit of a meandering story,  I didn’t start out with the intention of being an arts lawyer, it just happened. 

SAMARA: That is a wonderful story, and I think what is very interesting  is the role of story throughout all of that career journey that you’ve shared with us, in that, story is so important to the law, regardless of whether you’re working in a traditionally conceived creative space, or if you are able to see the creative side of IP, patents, and in science as well, it is really interesting. That subject you mentioned about law and theatre at Columbia sounds very interesting. Touching on your experience working in the US, what do you think you gained from that that has equipped you for your current practice, or your career since that point in time? 

DELWYN: Columbia is an amazing law school, I have to say that. The thing it did mostly was open my eyes to the enormous breadth of practise opportunities within the law having come from, as I said, back in the ‘80s when the offerings at law schools in Australia, certainly in Western Australia, were quite narrow. To go to a wonderful university like that that had so much choice and so much variety. 

I did a Human Rights subject taught by a professor that marched with Martin Luther King . They had all of these amazing community workshop subjects where you could intern at a refugee community legal centre, or tenancy advice, and  all of that counted as a subject.

My daughter has just done law and I know now that universities offer this here in Australia, but they did not have that then, so that is just incredibly exciting, and it really did make me appreciate then that I didn’t have to just think in the narrow terms of what I studied, or what the first law firm I went to might be doing.  If there was an area I could keep looking for that…for those opportunities. 

The other thing about working in New York – so my first legal job was at a Wall Street firm – Number 1 Wall Street – great address, a firm called Hughes, Hubbard & Reed, which was a litigation firm. And I think what that gave me was just that they had such high standards, and they expected everyone to deliver right from day one. I never did anything boring, it was always very exciting, and I felt a responsibility to work hard and meet those high expectations. We worked with amazing clients and directly with partners. It was very exciting, and I think the discipline of that and intellectual rigour in the demanding environment of New York at that point in a firm like that really set me up well to come back to Australia, and I think that discipline carried throughout my entire practice.

The other thing that’s really stayed with me from those days is that back then, working in a big wall street firm, you absolutely had to do pro bono. It didn’t matter how many hours you worked, or what your budget was. If you weren’t making a solid and meaningful contribution in helping those who are disadvantaged, then you just weren’t meeting the firm’s expectations.

SAMARA: Wow.

DELWYN: This was certainly not the case when I got back to Australia, and not really the case throughout my whole career, actually as a lawyer in Australia. I think it is really important in legal practice. It is a very big part of what I do now, obviously at the Arts Law Centre, it was all pro bono just about! But I think it is really important, and I think  it helps you understand the value you have as a lawyer. When you stop and think about how much you built last month or wherever you’ve met the expectations of partners, you’ve got a responsibility to the community you live in to use your skills and the amazing education you have to help others. So that is really important to me. 

SAMARA: It is very interesting to hear that it was so strong to that culture in New York. I think it is different…I hope it is different in Australia now, that pro bono culture.

DELWYN: I think it is, certainly at the Arts Law Centre. I’ve worked with a lot of different firms who contribute pro bono expertise and time and skills to projects that the Arts Law Centre was working on. They were all really quite amazing. So, I think it is a much better part now than when I just came back to Australia. 

SAMARA: Yeah! The Arts Law Centre sounds incredible. We’ve had a couple of lawyers mention that that’s where they do their pro bono work and does really positive things for artists. So I think that has inspired a few of us at FAME to want to learn more about it.

DELWYN: Good!

SAMARA: Relatedly to some of those points you mentioned about what you learnt from working at the firm in New York about having very high standards and discipline. We wondered what you considered to be the key skills and qualities required to be a lawyer? Whether that be generally or specifically in IP, trademark, and copyright law. Something that our student listeners might want to consider thinking about as they move through their course and start picking up work experience or extracurriculars. 

DELWYN: Well, thinking about, I mean I guess it is interesting to think about it being an arts lawyer as opposed to  a lawyer more generally. Because I think the most important thing is to love the arts yourself and stay engaged with it, really. You know, I know lawyers that perform in bands, make films, write books. Not everyone has those skills but certainly you’ve got to love the arts. And I think all lawyers, but particularly important in the arts, I think need communication skills. Artists don’t always think in that more linear, logical fashion, which is the way that lawyers need to approach problems. That’s not to say that they can’t find creative and lateral solutions. But some artists are very interested in copyright. Most creatives, whether they’re filmmakers, or writers, or musicians, are much more interested in their own practice. They are only interested in copyright or the law to the extent of law as much as it impacts them. True, of lots of clients, actually. So they don’t need to know about the law, they need you to know about the law. They want to know how it impacts on their practice. What should they do now? What should they do next? What’s the solution to their problem? And certainly, communicating with people in the creative sectors who think very much creatively and outside the square,   that means that it is really important to understand their creative practice before you give them a solution. I don’t know if I said that very eloquently.

SAMARA: It makes complete sense.

DELWYN. Yeah. So I think they’re really important skills, and I think more practically, becoming an entertainment lawyer, or an arts lawyer, or an IP lawyer, is quite a small specialised field. IP more generally, less so. But the areas of probably science and technology have more big business and bigger clients and more opportunities there. When you get into the arts, it is quite a small field.

SAMARA: Mmmm.

DELWYN: They tend to be more smaller firms and sole practitioners, which is why I think you should stay engaged with the arts,  because the smaller firms and sole practitioners are often falling into that category and that will appeal to them just as much as having studied those subjects and worked  in that area. Because what’s important is understanding the creatives that you’re going to be delivering advice to. 

SAMARA: It’s brilliant advice and really highlights the fact that you need to be able to empathise with those clients to give them the right service.

DELWYN: Mmmm.

SAMARA: You mentioned technology which I wanted to ask you whether, because you’ve noted on your website that it is important to meet the challenges of a dynamic digital age, what major technological disruptions have you been observing in the arts space? And how does this affect how you provide advice or advocate on behalf of the arts and cultural sector? 

DELWYN: The most obvious is the one that is keeping both of you in your rooms at the moment, the coronavirus pandemic. That has impacted the arts terribly. The arts is fundamentally a gig economy. Most creatives see their creative practice as delivery to a live audience, in a gallery, or in a theatre, or in a cinema, or in a pub for live music. So, all of a sudden that’s gone, and that has made huge differences, even behind the scenes such as making a film. I have a filmmaker client that is meant to be shooting right now in Melbourne and that can’t happen.

That has been enormously disruptive. One of the things I’m just thinking of is that the arts, however, are just so extraordinarily creative. I don’t know if you’ve watched the little Lucy Jurack and Eddie Perfect YouTube series. So they [were] in lockdown in Melbourne and they made an entire mini film series…

SAMARA: Oh, amazing!

DELWYN: …about falling in love during lockdown using zoom and from within their own houses and posted it up. It  is really very clever. I have seen so many examples of the arts being agile and flexible and adapting and creating. The Darwin Aboriginal Art Fair went entirely online this year which seems so sad because it is such a wonderful event that brings Aboriginal artists from all over the country together for this amazing fair. And yet talking to arts centres afterwards, some of them had sold more than they did in previous years because they did such an amazing job at delivering and promoting the entire thing online. 

But in terms of giving advice, it requires just a lot more flexibility and actually understanding of digital platforms and the different sorts of contractual arrangements that will be required. They are all things that…I don’t know that it’s required… different sort of legal solutions so much. To some extent, I’ve spent a lot more time looking at digital platforms and giving advice in that area rather than the more traditional types of contractual arrangements that might have had to be made. 

But, the other technological disruption that to me is the one that is more difficult in a sense is probably the fact that the Copyright Act is just not really well adapted to cope with all the changes of the digital age. So it’s got that list that it must be a musical work, or it must be a dramatic work. Whereas so many things are combinations of both those things. It is not really well adapted to deal with the creativity that the digital age has opened up for creatives. That is a challenge for lawyers, I think, so you’re constantly trying to use…the Copyright Act does not necessarily go far enough, or doesn’t deal with a particular situation, so a contract becomes really important.

I think that rather than just amendment by amendment to the Copyright Act, maybe something more needs to be done that looks at it in a different way, especially as we live in an age when everyone, to some extent, is a creator on social media. There is this enormous culture of borrowing which is at odds with the way the Copyright Act looks at things and that needs to be dealt with. 

SAMARA: Very interesting. Copyright is not something that I’ve had an opportunity to learn a lot about yet in the JD, but we have been picking up on some copyright issues just generally at FAME. Actually, we started a little blog focussed on copyright, so it would be very interesting to get some of your thoughts. 

Clearly there needs to be change about law. On the topic of copyright, we wanted to hear your perspective on the indigenous flag copyright issue.  We understand that since its creation, it’s been shrouded in copyright disputes but has recently, I think in the past year, attracted a bit of attention from when the AFL didn’t include it in the Indigenous round. Do you think that the Copyright Act, or is there any legislative reform, generally that could be applied to protect Indigneous intellectual property better than it currently does?

DELWYN: I do, I have some views on the flag, I am happy to chat about those if you like,

SAMARA: Yeah, please!

DELWYN: So, I think the Copyright Act protects visual artworks reasonably well, and that’s what the flag is. The current controversy with the Aboriginal flag; there is a number of aspects to that. First, I think it is a missed opportunity for leadership from the Federal Government, and to some extent a missed opportunity for leadership by the AFL, and the reason I say that is because I’m a copyright purist. The flag was designed by a Luritja man named Harold Thomas, an Aborignal activist, and he licensed the copyright, as I understand it, to a couple of flag manufacturers so that every single Aboriginal flag that has been manufactured since he drew that flag has earned him a little royalty. I believe that he has never really, until recently, any other sort of licensing opportunities, although as the copyright owner, he is absolutely entitled to. Our whole system of copyright is based on the principle that as the artist and creator, he is the one entitled to generate commercial returns from it in recognition of his creativity. That’s how copyright works. He hasn’t traditionally, I understand, sought to get licenses from clothing and I think that’s largely because many of the clothing that bears the Aborignal flag is clothing that is made and used by Aborignial community groups. Harold doesn’t seem to have pursued those groups, no doubt, and I’m guessing, because he’s an Aboriginal activist and an Aborginal man and he loves the fact that Aborignal People and Torres Strait Islander Peoples  of Australia want to use that flag. 

I think the AFL is a bit different. I think if the AFL makes millions and millions of dollars, and it wants to use the flag, I see absolutely no reason why it shouldn’t pay for that privilege. And I don’t think that is necessarily a Human Rights or cultural issue for the AFL. If it wants to put the flag on the jerseys they should pay for it, just as it pays, I guess, all of the artists that create the jerseys for the Indigenous rounds. But I think what’s happened is that in the last year, Harold Thomas has started, and he may need the money, I don’t know how he earns his living, to look at earning some licensing revenue from clothing. He’s done that by sublicensing that, I think, to the company that has been in the news, WAM Clothing, but I assume that’s on the basis that any royalties they collect, he gets some of those royalties.  

So there is all of that, I think that he’s entitled to be paid for the use of his artwork.  If, and I think that this should happen, the Aboriginal flag has become such an important emblem for Australia and for Aborignal and Torres Strait Islander Peoples, then it needs to be available more widely, then the Federal Government should be buying the copyright from him and making it available, and that would show leadership.

SAMARA: I wonder how many know about the origins of the flag, because personally I only learnt recently that it was Harold who created it, and I think that having that understanding completely brings to light what you mentioned of the fact that the artists, and we obviously care a lot about artists being paid for their work, and being paid appropriately and sufficiently. So yeah, thank you for sharing your thoughts on that. Hopefully the Federal Government might kick something up from that.

Aside from the Indigenous flag, do you see other ways that we should be protecting intellectual and cultural property for Indigenous Australians? Is that again something the Federal government needs to be leading more so?

DELWYN: Yes, and I think the Federal Government is starting to look at that, which I think is fantastic. So, this is probably another problem with the Copyright Act. We have that  list of types of works and subject matter that is protected by the Copyright Act. We have musical works, and films, and artistic works. They are all rights that are held by individuals and they are time limited, in the sense that the copyright protection is generally limited to the life of the creator plus a period of time, seventy years. But in terms of Indigenous Culture, that is an ineffective mechanism to protect ancient rock art, or particular styles of Indigneous painting, traditional cultural expression, like the crosshatching, ceremony, language…all of those things. It can to some extent protect those things, obviously the amazing painting being produced by Aboriginal artists throughout Australia are well protected by copyright, but there are lots of other aspects of Indigenous culture that aren’t adequately protected. It is the oldest living culture in the world, it is so precious. It is why when tourists come to Australia, that is what they want to understand and experience; that Indigenous culture. It seems crazy to me that we don’t do more to protect it. 

I think up until now there’s been a belief that copyright’s enough, but I think now it’s becoming clear that copyright isn’t enough, or patents or any of the other types of IP protection that are available under Australian law

Australia is a signatory to the Declaration of the Rights of Indigenous Peoples, and there is a growing belief that to actually implement the level of protection that that requires, which means giving Indigneous Peoples control over their cultural heritage, forms of cultural expression, it requires, what is called sui generis legislation I think, and the Federal Government is currently looking at that as I understand. They are engaging in a consultative process. The House of Representatives Standing Committee just released a report about authentic art and the Federal Government’s response to that  has been to accept some of its recommendations, but in particular one that looks at engaging in a process to look at how better to protect Indigenous culture. I am really optimistic about that, and I think that’s a wonderful step in the right direction.

SAMARA: That sounds very positive. I think if we’ve learnt something it’s that clearly the law is inadequate, in a lot of circumstances, and perhaps should look at, I suppose, seeing how it applies to not just sticking to that common law tradition, and thinking a bit more broadly about its application. It is really, really interesting. 

To finish our podcast today though, Delwyn, can you tell us your favourite legal movie or tv show we should be watching?

DELWYN: Ooh, well, it is hard to go past To Kill A Mockingbird, I know it’s an old one, but it’s a beautiful one. Another old movie I love is The Accused, with Jodie Foster and Kelly McGillis in it. I love a movie with strong women in it, and I think that was ahead of its time. I do have a weakness for Rake, I have to say. 

SAMARA: Rake is an excellent TV show. I think there is not enough Australian TV that we can really sink our teeth into, well at least that’s what I find, but Rake is just exceptional. I haven’t seen The Accused. That sounds really good!

DELWYN: Oh, you should definitely watch that! I think it’s from, maybe the ‘80s, but Jodie Foster is amazing in it.

SAMARA: Yeah excellent, and To Kill A Mockingbird is a classic! Very good film and book. Well, thank you so much for joining us, Delwyn. It has been very, very interesting and a pleasure to learn about your career.

DELWYN: Yeah, my absolute pleasure!

OUTRO

Leah: You’ve been listening to The Brief with FAME LSA. This episode was hosted by Samara Jones. The theme song and sound was produced by Leah Alysandratos. A very big thank you to Delwyn Everard for chatting with us and please check out her podcast, Running the Show, for more. Special thanks to Samara Jones and Leah Alysandratos for producing the transcript available on our website. Thanks also to all past and present FAME LSA committee members and ambassadors for their support. And thanks to you for listening! 

If you want to hear or learn more about FAME LSA, like us on Facebook and Instagram, or visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing or entertainment space and want to get involved with FAME, we’d love to hear from you. Send us an email at general.famelsa@gmail.com.

Episode 4: Fox Sports Legal Counsel Calli Tsipidis

INTRO

SAMARA JONES (FAME Careers and Sponsorship Coordinator): Hello and welcome to the FAME Law Students’ Associations’ podcast: The Brief. For the uninitiated, FAME stands for Film, Art, Media, and Entertainment. FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture. In this podcast series we chat with the lawyers and artists working in the creative industries, learning about their daily work, career development and topical issues facing the industry.

COCO GARNER DAVIS (FAME Co-President): In today’s very special collaborative episode, FAME President Coco Garner Davis, and Melbourne Sports Law Association’s Vice President, Sonja Santa Maria, talk to Calli Tsipidis, a lawyer working as Legal Counsel at Fox Sports. 

SONJA SANTA MARIA (MSLA Vice President): Calli discusses the world of sports law, shedding light upon the challenges of working as an in-house lawyer and how thinking flexibly is a necessary part of the job. 

COCO: Additionally, as the Chair of CAMLA Young Lawyers Committee, Calli shares important insight in the value of networking and putting yourself out there to meet members of the legal community. We hope you enjoy!

Alright, so, welcome Calli to today’s episode of ‘The Brief’. So, I guess to start off we’ll get struck right into it. Tell us about yourself and what drew you to the in-house position at Fox Sports?

CALLI TSIPIDIS: Thanks for having me guys. It’s really lovely to have a chat with you. Just quickly, a little bit about me. So, I finished University in 2017. So not that long ago actually. I did a combined commerce/law degree at Macquarie Uni up here in Sydney and I suppose the key thing to know about me is that I love sports and working at Fox Sports, and in-house in a sports media organisation, is something that I’m so lucky to be a part of. When I was at University, I took Sports Law as an elective and I did a six-month internship at Football Federation Australia, whilst I was doing my practical legal training. But at the same time, I was working at a mid-tier law firm in property and commercial litigation. So, I suppose when I was wrapping up my studies I was quite ready for a couple of years, if not more, working in private practice. However, very fortunate, the job at Fox Sports opened up just after I completed my PLT. I was very grateful for the opportunity and I put my best foot forward and I haven’t looked back since. So, yeah, I suppose what really drew me to the in-house position was the ability to combine my legal career with my passion in sports and I think every day I am able to do that in my job which is great.

COCO: Yeah, that’s amazing. Wow.

SONJA: And what would you consider to be the essential skills and qualities for a successful lawyer working in-house for the media?

CALLI: So, I think it is probably best to split that into two. So, I think in-house and media are a little bit different and it might be good to split the two. So, in terms of in-house, I think a really important skill is to know who your clients are. So, when you’re working in-house your clients are your different business units. For me, I work with our, mainly, our marketing, production, partnerships and content teams, but I am always there for the other business units if they need. So, I suppose an essential skill for working in-house – doesn’t matter in what kind of industry – is to ensure you’re balancing your legal advice with the commercial interests of the business. So, whether that’s working for a construction company, working for, you know, media, working in broadcasting, you keep the, you know, considerations of the business, the commercial interests, at the forefront of your mind when you’re providing advice and that will, a lot of the time, inform the kind of advice you give them. Obviously, always making sure you’re dotting the ‘i’s and crossing the ‘t’s with the legal side as well, but the commercial interest will often advise – sorry – inform your advice in what the business ends up doing. For media specifically, you’re always on the go and every day is different. I can’t remember two days that have been the same since I started at Fox. So, I suppose, the big one – as an essential skill working in media – is flexibility; being able to drop everything and work on time-sensitive matters. Flexibility in terms of working to different people’s styles. Some people are quite formal, some people are very casual, and you have the extremities and everything in between. And I suppose the other important thing for media – working in media – is, because you’re working on, you know, lots of different things and every day is different, having attention to detail. A lot of the time, it’s quick turnarounds on projects. So, to make sure you’re comfortable with what you’re providing and you’re able to provide it quickly as the business needs it by making sure that you’re doing, you know, the best work that you can and you’ve got strong attention to detail because small mistakes sometimes turn into business decisions. So, keep that communication flow open and if you’ve made a mistake – and I say this for anyone – make sure you own up to it, work on it with the business, you know, it’s not a big deal. So, be honest with the business. If you’re not sure of something, ask your colleagues for questions. Ask people for more information because sometimes they don’t know to give you all the information so you can provide them with all the advice. So, ask lots of questions I think is a good one, doesn’t matter where you work.

COCO: I feel like that’s such real advice. That’s such a fear going into – 

CALLI: Yeah.

COCO: – into working is like oh my god I’m going to screw up in some way or another. So, I guess going on your kind of that – your experience that you spoke about. I mean, it’s so varied. Especially, since you only graduated in 2017. That’s insane. Having had both experience in-house and in a firm, what would you say are the key differences between the two? 

CALLI: I think I’ve touched on a couple, but I will mention again because I think this is probably the most important one – its, you’re giving commercial not just legal advice. So, sometimes the business will ask you a question that they think is legal, but really, it’s a commercial decision. So, they might think that ‘Oh, there are legal obligations here’, but at the end of the day it’s a business decision that they need to make. So, you’re wearing two hats. When you’re working in a firm, you’re wearing the legal hat. So, whilst it’s great to ask the business questions sometimes about, you know, the commercial parts of what you’re working on, a lot of the time they just want black letter; ‘How can I do this?’, ‘Advise whether I can or cannot do this’. Whereas, in-house, you can say, ‘I understand you want to do this project, you want to, you know, do this specific thing. We don’t think you should do it this way, how about you do it this slightly different way?’. And you provide them with ideas on how they can still get the same outcome, but perhaps through a different channel or different path. So, I think that’s a big difference. I think it’s probably a good quality to take to your client, if you did work in private practice as well. But a lot of the time it’s that black letter law advice versus – you know – I’m giving commercial and legal advice at the same time. Another big difference: you work as a generalist I think a lot of the time in-house, not as a specialist. So, in one day I’ll work on so many different projects touching different areas of the law. So, I’ll advise on something small, like reviewing a marketing asset. I’ll review three or four different contracts but for different parts of the business. So, a sports broadcast contract; a production contract with graphics for example; independent contract agreement with some of our on-screen talent and then I’ll work on a competition terms and conditions. So, it’s really different all the time, which is fantastic because you get to learn a lot, but you – unless you are at a more senior level, I think you don’t really specialise in one thing unless it’s a really big team and they’ve got you looking after a specific area. And I guess the other one is what I mentioned before about your relationships with your client. Your clients are your colleagues at the same time as being people who need you for legal advice. So, it’s great because in-house, my friends are my colleagues and they’re my clients as well. So, I can go have lunch with them – some of my friends from marketing – and then, you know, earlier that day or later that day we’re chatting about a project that they’re working on and they need legal advice. So, I understand that people have, in private practice, relationships with their clients, in this situation with them all the time and the important thing, I suppose, is to balance your relationship with them to make sure that you’re giving them the advice that they need. Looking out for their commercial interests, but making sure you’re giving them the legal advice they need as well. 

COCO: Amazing. 

SONJA: That sounds absolutely amazing in terms of the diverse work you can do as as Counsel at Fox Sports. Could you briefly just talk to us about the process of sports broadcasting contracting? So, for example, who initiates these deals and what are some of the challenges?

CALLI: I do not get to work on the very big broadcast deals that everyone probably hears about in the news. If I do, it’s very little bits here and there. So, I’ll leave that for the pros, but I can talk you through the general process and, you know, some of the smaller deals that I get to work on with that team. Fox Sports are really fortunate. We’ve got so much great content and there’s lots of different deals that happen. So, generally, it depends on the relationship with the governing bodies. So, with the small deals, a lot of the time you’ve got governing bodies or content creators that reach out to us as a broadcaster and say, ‘Hey, you’ve got this great platform, we’ve got this great content, would you be willing to pay for the content to show on your channel?’. Sometimes, they just want it on our channels to broadcast and they don’t require a fee. So, a lot of the time it is our content acquisitions team who has the relationships with all of these providers. They have the conversation with the external parties and then our acquisitions team speaks with us, the legal team, about how we go about documenting it. So, a lot of the time what happens is: we’ve got our template contracts, the draft ones, ready to go and sometimes you’ve got the third parties that have their own. Depending on, I guess, the value of the deal, we’ll either use one of theirs or one of ours. If it’s a bigger deal, more likely that they will prepare the draft and we’ll review it. If it’s a smaller deal, depending on the body, we’ll probably provide them with our draft. So, I suppose our acquisitions team and the third-party content provider work through all the commercial elements of the deal. So, you know, what programs are we getting? What are the fees? What’s the payment structure like? How can we use this content? Can we clip it up? Can we pop it into our additional programs? Are we able to use it for promotional materials? How long have we got it for? Is it live/non-live? And then they work with our programming teams to see where it can slot into our scheduling times and – which is really important if its live content and non-live as well – we need to make sure its shown at a good time because people don’t want to watch events from three years ago necessarily, unless it’s a classic. And then, the other big one is working with the production teams. So, if it’s a local or overseas production, is the expectation that we will be producing it? So, will we be sending camera crew and our personnel on site to produce it? Or will they just be sending us the feed which goes to our towers? Or will they be sending us just a recording of it? So, they’re the kind of commercial considerations and then obviously there’s this big back-end legal terms and conditions that come with it. And that’s where we talk about our obligations around, you know, what happens if there’s a cancellation? Think COVID – you know, what happens in that situation? What about flexibility in terms of production? Do we have minimum obligations? Do we have flexibility if there are changes to scheduling? Those sorts of things, and then your indemnities and warranties and all of that fun, boilerplate kind of stuff as well. So, a lot of the time, I suppose the challenge is that you’re either working with a governing body or a third party that’s from overseas and their expectations are sometimes different to what ours are, in terms of some of those boilerplate areas. In terms of commercial terms, that’s quite well handled by our commercial teams, and they work through a lot of those considerations with the third party. For us, I suppose, a challenge sometimes is aligning expectations of a third party with ours in terms of those legal obligations and requirements and making sure that we’re all on the same page. And then, I suppose, as with any contract, not just sports broadcasting, it’s about risk. So, is this likely to arise? Is this likely to affect us? What are the potential outcomes and consequences? What do we want to take a risk on? And those kinds of ones where you’re more comfortable to take a risk, you might not ask for the amendment or you might not push it. Those where you are definitely not comfortable, which – it’s the same sort of things for every contract that you’re aware of because you work on them more often, you push your case a bit and work on negotiating with the third party to get to that happy middle ground. 

COCO: Yeah, awesome. Well, I guess building on that kind of – the risk aspect, and when everything was put on hold, when sport was put on hold, in the middle of the year, start of the year – the whole year – for COVID-19, how did that affect your work? I mean, I know I was punching the air when the hub got up and running and the AFL was back. How was your work in particular affected?

CALLI: Yeah, I was punching the air too. I was so excited. It was so great when sports came back, I have to say. And I believe the A-League was the last kind of sport to stop and I remember watching that game with bated breath knowing that this could be it. So, I suppose in a practical sense, I’m working from home still and there’s a couple of days during the week where I do go in. I suppose working with a broadcaster there was a real focus on making sure that people that were working on the live broadcast were kept safe. So, they’ve stayed on site the whole time.

COCO: Oh wow.

CALLI: Yeah, which is fantastic for, you know, everyone who watches our content. Risky I suppose for them because they haven’t really had to change much of their day, they just have to take those extra precautions. But for the rest of us, it was learning how to work differently and to work with all of our, you know, partner organisations differently. Everyone was facing so many different challenges, and no-one was facing the same ones. So, whilst our challenges were about: what content are we going to be able to show? Are we going to have anything to show? Are we just going to be showing old matches? Do we keep all of our live ancillary content like our news and magazine programming going? And our partner organisations were thinking: well, how are we going to get paid for the content we provide when we don’t have any content to provide? So, the real, I suppose, challenge was making sure that we were working with our partners, that we all worked together within the business and with all our partner entities together towards a united goal which is always to keep everyone safe but to try and bring sports content back because that’s what everyone really wanted. So, in terms of how it affected the actual content: as you touched on, we had quite a significant period of time where there was no live sport and it slowly came back. So, I suppose there was so much work that went on during that interim period where there was no sport to bring. You know, I suppose we had like pop-up events come up where we did showcases of great moments in history and, you know, we had to come up with new ideas. So, what can we get to keep people watching? We had some great shows like we had this NRL live show, where we had – every morning for a couple hours – we had all of our NRL commentators come in and chat about issues that were arising at that point in time, which weren’t too many because they were all off-field. But talking about classic moments, ridiculing old matches with new commentators which was really fun to see some of those classic matches gets shown again with a different commentary, which I think would have been a dream gig for some people. Even me, I thought ‘Oh, I would love to be doing that!’. So that was really fun. So, I suppose it was just being – like I said before – about being flexible. Being really flexible to try new things, keeping our audiences interested and helping our governing bodies who are our partner organisations get their sports back up and running and supporting them as best we could. Whether that’s through changing our rights deals and working through different obligations to try and support each other differently or whether it was just, you know, telling them, ‘We’re here, go work out what’s best for you.’ Moving things around so we’ve got the hubs now for AFL, the NRL had this hub as well. A-League worked through a hub. And as you would have seen perhaps with ESPN as well, even our overseas broadcast partners – all of the NBA finals have taken place in one kind of area and it is a new world. So, making sure that – if you look at that as an example – that we were able to support all the sporting bodies here to do the same thing. And thankfully, we’ve gotten through nearly all of our footy code seasons, which has been great, and we are around the corner from finals. And if I think back to March, April, it wasn’t looking likely that we were going to get anyone back out on the fields again. It’s been a really great accomplishment and a testament I think to everyone who works so hard on everything. 

COCO: Yeah, absolutely. 

SONJA: Yeah and speaking of changes and being adaptable; we’ve seen a lot of things happen in 2020. Not just with the COVID situation but we have also seen sports increasingly become a platform for advocating various causes. Especially in the US at the moment with, for example, athletes taking a knee during the national anthem. Do you have any thoughts on the role that sports media play in relation to activism on the field. So, I mean, should we keep politics out of sports and what are some of the legal challenges associated with dealing with this?

CALLI: That’s a really good question, very topical as well. I think, and this is my personal opinion, I think sport has a really unique ability to speak about issues that affect the wider community, whether they’re political issues or not. So, I think the fact that sports bring so many people together for that united purpose of watching a sporting event, getting behind your team, I think it has that ability to unite people. So, I think it’s a great platform, not just to help advocate issues, to bring people together on certain issues, rather than cause divides. And I think some people perhaps perceive sport as a tool, a political tool, to help drive home a certain issue or a certain agenda item. I don’t think that’s how it should be used. I think it’s great to raise awareness and I really – I’m loving what the NBA players are doing at the moment. The taking the knee issue is obviously something that has been a big issue in the NFL over the last few years and you’ve seen governing bodies and chairmen of clubs really go against players to do that. But I really love what the NBA is doing currently and it’s not – you know – it’s still all about the sport and using the sport to unite people, but I love that players are able to advocate issues that they’re passionate about by putting it on the back of their guernseys. Whether it’s Black Lives Matter, whether it’s ending poverty – you’ve seen various things popped on people’s guernseys and I think that’s a great way to do it. Where it’s not understated to the point it is just something done as a token kind of – it’s not tokenistic. It’s something that they’re showing that – you know what, it’s there on people’s guernseys, you’re going to see it for the entire game, but we are not going to draw too much attention to it to use it as a tool. So, I think that’s probably the best way that sport should do it. In terms of challenges, I know that there are quite a few legal challenges with, I suppose, using sports as a tool for bringing home political messages or other kinds, but I think the really important challenge is the commercial challenge. And I think this is just – I’m bringing back the exact same issue about working in-house but I think it can cause a lot of issues with broadcasters and governing bodies and teams where, if a team is really in support of an issue, but the broadcaster isn’t, for example, then the governing bodies in this really awkward position where they have to balance interests. If the broadcaster’s not happy, are they, you know, going to withhold payment, for example? If the team isn’t happy, are they going to show up to games? So, I think the real issue there is making sure that all of the parties are happy. Which is why I think what the NBA has done has been really good, because it’s not making it such a big issue that it’s something that either party would overtly be objecting to because it’s taking away from the purpose of the contract at the end of the day. And the other thing I think that’s the challenge is – for some sports, not all of them – if you’re bringing to light all these political issues, I think it brings to light the fact that that a lot of sports governance and integrity within the organisations has been up in the air and quite questionable for some, you know, sporting bodies of late. And there’s a lot of high-profile instances where you see, you know, reputation damage and the public’s trust is gone within these sporting organisations. So, its pot calling kettle black I think sometimes as well. So, take care of what’s going on inside your organisation. Be a good voice, facilitate that dialogue but don’t use it as a political tool I think, you know. People go to sport to see sport, so it’s nice to, I think, give it a nod but don’t overdo it necessarily. 

COCO: Yeah, such a good point. And kind of – I agree with what you’re saying with the NBA because they’ve made it so individual to the player. Where the individual players – the issue that they are most passionate about can be represented on their guernsey. It also makes for a great guernsey. I know Colin Kaepernick’s number seven just sold out within minutes.

CALLI: Yeah and that’s interesting too because I suppose, is that commercialising the issue a bit at all?

COCO: Oh, yeah. 

CALLI: Does that take away from it? I don’t know, it’s very interesting. 

COCO: Yeah, it’s such a huge topic at the moment. So interesting. I guess, yeah, moving on from that – on the media kind of aspect in your side hustles, how did you become involved in CAMLA? Which we all love, the students love, and we have all gone to the events and love it. How did you get involved and what’s that been like? 

CALLI: Thanks for your support guys, it’s always great. And I think as an aside, before I get too much into it, the fact that we are living in a remote world is great because it means that all of our colleagues and friends from interstate can now join in to our events, which were previously in person. So CAMLA is just, for those of you first time playing along, CAMLA is the Communication and Media Law Association. So, we’re a New South Wales based kind of entity and what we do is, it’s a bunch of lawyers and we come together, and we hold seminars on different legal events in the communication/media law space. We release a quarterly publication, and we hold networking events and the like for people working within the industry. So, it’s not just legal professionals. We’ve got people from political backgrounds, broadcasting backgrounds, journalists and the like, all coming together for these kinds of events and to, I suppose, stay in touch with what’s new in the world of communication and media law. I became involved in CAMLA when I started working at Fox Sports, which was fantastic. I went to my first ever CAMLA event, it was a speed mentoring event where I got to meet so many fantastic people either at my level or at a more senior level and got to network with them on the evening. And I haven’t really stopped going to those events since. There’s some great seminars that they hold every year and I got to go to a couple of those and I thought, ‘You know what? I really like what this organisation does, I’d like to get involved’. So, I was on the committee, the CAMLA Young Lawyers Committee, which is aimed at law students and young professionals working in the area, so, five years or less sort of experience. And earlier this year I was very fortunate to be, you know, nominated as chair of the Young Lawyers Committee. I have a fantastic team, there’s about 15 of us that all work together to bring all those events to light. Whether it’s our speed networking event, whether it’s our in-person networking event or our 101 webinars, we all work together to, I suppose, bring those kinds of events together. We contribute to the communications law bulletin and we work on our own sort of projects, which – there’s a couple in the works that will be great for our interstate listeners, so keep an eye out. It’s been a really great experience and something that I can’t, I suppose, promote enough is networking with people who work in the industry even if it’s – I think some people misconstrue networking as an ability to try and get yourself ahead in your career. I think, for me, networking is not just using, you know, connections that you have for your career purposes but to understand a bit more about what’s involved in the industry. For myself, I came out of a completely different area, straight out of Uni, working in private practice and now to working in-house. It’s great to know what other people who work in the space do for a day to day. Whether it’s private practice – I hear what some of the projects that some of my CAMLA colleagues work on and I think, ‘That’s incredible’. I couldn’t do that because theirs is more – you know – we go to them when we need expert advice on certain matters, whereas we are the ones dealing with the day to day kind of issues. So, it’s great to bounce ideas off sometimes, to understand what it’s like if you’re looking for a career change. If I wanted to move to private practice I’d chat to some of my CAMLA colleagues and say, ‘Can you tell me, what is it like? Because I love communications and media law. What’s it like working in that space in private practice’? And it’s a great way to just make – to develop friendships and not just networks and you get to learn quite a bit as well. So, last week we had a 101 on suppression and non-publication orders – not something that I work in at all on a day to day, but I learnt so much just from doing a Q & A with a couple of specialists in the area. So, it’s fantastic from that aspect as well and if there’s similar organisations or committees in Melbourne, I couldn’t be a bigger advocate for you guys to join or at least attend some events. They’re great.

SONJA: Definitely. I think it’s definitely beneficial to have insight from anyone in the industry or just in general to understand the different aspects involved. Could you share some of your challenges and highlights of your career so far, please?

CALLI: Sure. I’m very fortunate, I have quite a few highlights, but I think I’ll start with the challenges first, we can end it on a high.

SONJA: Okay.

CALLI: In terms of challenges, I think you guys touched on a couple already in terms of COVID and that was a very challenging time for, not just our business, but for the industry generally and the whole world. So, that’s been a big challenge and I think everyone learnt quite a bit through it. And coming out the other side and having this fantastic, you know, sports content that’s still going and all these great projects that we did to try and keep the momentum going and keep the interest there – that was the challenge, but it was a great learning experience. In a more practical sense, a challenge that I face in my day to day is that I work across the entire Foxtel group. So, whilst a lot of what I do is in the sporting world, I’m part of the Foxtel legal team. So, not only do I work on the Fox Sports products, but I help work with Foxtel products. Including our Foxtel for Business products and I work for Stream Motion who are our – they are our streaming service. So, they operate Kayo Sports, Binge and our Watch AFL and Watch NRL which are international streaming products. So, it’s a fantastic role, but it can be really challenging because I work for all these different business units, for all those different entities, and I want to support all of their ideas but I have to help juggle business interest, keep in line with our legal and regulatory obligations, advise around relationships with, you know, our contractual relationships and the like. And I need to make sure the businesses are talking to one another and collaborating. Sometimes, they don’t speak to one another because they are working on different projects. So, sometimes it’s important to say to the Kayo team, ‘Hey, have you spoken to the Foxtel Sports team about how you’re executing this’? Because sometimes there are clashes. Sometimes they are coming up with the same idea and I want to make sure that they know that. So, that’s a bit of a challenge but it keeps me on my toes which is great. And the fact that I get to be involved in, you know, so many different aspects of different businesses is just – it’s a fantastic opportunity. In terms of highlights, I’ll just give you guys my top three because I love what I do so I could go on for ages – but a couple of big ones for you. So, I – as part of my Fox Sports legal team from back in the day before we were a merged team – I was one of the lawyers that advised on and assisted with the build of Kayo Sports, which is Australia’s multi-sports streaming platform. That was at the end of 2017 when we started and it launched in, kind of, early 2018. So, I got thrown into that very early on in my time at Fox Sports and Kayo is a fantastic product. It was a big challenge because there was so much I needed to learn in such a short space of time and your workload kind of doubles straight away. So, I suppose, being part of that process and seeing the outcome and seeing the great product that Kayo is today is a game changer. I love it. I use it all the time. That’s a great pleasure to see the product and use the product now and say, ‘Hey, I helped build that’. Or I see bits and I’m like, ‘Oh, I advised on that’. It’s really cool. I think – oh yeah, recently as well Kayo did a pay-per-view event. That was the first one it ever did, and I got to work really close with the team on that so that was fantastic. And it was great initiative too because, as you guys would know, a lot of people were in lockdown for that fight and you’d normally go to a friend’s house or go to the pub to watch it. So, it’s great to give to people the opportunity to watch it and not need, you know, a Foxtel box at home to watch it. So that was really great. I also got to work on the build of Binge and I suppose, having the knowledge of Kayo, it was – I dare say – I don’t want to say a lot easier, but it was a lot simpler in some ways because the product base was kind of there and it was just working on customer flows and journeys and communication, like draft comms templates. I suppose, taking all of my knowledge and using it in a drama, entertainment and movies context, not a Sports context, which is a little bit different, something that I don’t normally get to do. So, that was really cool. And, I suppose, just a general highlight, which is not – don’t get to do it as much now because it’s in the office but I get to be around my favourite thing all day which is sports and people talking about sports. Not just games on the weekend but, okay, so we broadcast this match and, how can we make it better? And even though I don’t get to work on all that stuff, just hearing it, being around it and having the ability to put my two cents in for something that I love and watch every weekend is so fantastic. It’s pretty cool when you’re in the office, you go down for a coffee and there’s your favourite, you know, player or your heroes over there, getting a coffee and having a chat with someone. It’s very surreal, definitely was when I first started and I can say, it does not get any easier. I still get starstruck, I’ve just tried to reign it in a little bit. So, it’s pretty cool.

COCO: Yeah, that’s so cool. Definitely, very different, to kind of, the image of a private practice. 

CALLI: Yes. 

COCO: So, pretty exciting. And if you could give one key piece of advice to a law student hoping to follow your footsteps, and see their favourite sports players at coffee each day, what would it be?

CALLI: I think, when I was in probably your shoes I was very resigned to the fact that I had to take a certain path and I had to do things a certain way. But, if an opportunity knocks, take it. Introduce yourself to that person, don’t be afraid to ask questions. Don’t be afraid to, you know, put in an expression of interest in an organisation that you’d be keen to work at. Even if it’s just to have a coffee with someone to ask them what it’s like to work there. You’d be surprised how open people are to chatting to you, to giving you some advice, to introducing you to people or keeping you in mind, you know, next time there’s a job availability or if their friend works somewhere that might be good for you. So, take opportunities, don’t be afraid to ask questions and don’t be afraid to approach people because if I had known that I would have felt so much more comfortable leaving University and thinking about where my path could take me. Where I am now, I would not be if it was not for the fact that I, you know, tried different things. I went for an internship when I was already working for somewhere else. I took the opportunity and that was of great benefit because, you know, I wouldn’t be where I am now if I hadn’t done that. So, be brave and be bold and don’t be afraid. 

COCO: Good advice.

SONJA: Great pieces of advice, definitely relevant right now. Especially with the employment market for legal students coming out of COVID – it’s not that great at the moment. 

CALLI: Yeah, challenges. But look if there’s an entity that you’re interested in working for, just start a conversation with someone. It never hurts and, you know, I think senior people that work in those organisations are really flattered when young people do want to talk to them because you sometimes get into the flow and its everyday work and you don’t think that anyone is interested in what you do. But so many people are, which is – it’s very flattering but if you can use that knowledge – and I’m sure a lot of people would say the same thing – If I could use my knowledge to help, that’s great. I’d rather do that than just keep it all within me. So, yeah, don’t be afraid guys. 

SONJA: Definitely. And a final question: being Melbourne based we love our AFL, so which AFLW or AFL team do you back? Very important question. 

CALLI: It is a very important question. Don’t judge me, I am from Sydney, so I have to say the Swans. Although, a bit disappointing this season. It’s been interesting though because, I feel like, whatever you would have envisaged before the season started, there was such a big change. Like, look at Brisbane this season, West Coast couldn’t play when they were outside of WA and some of your Melbourne house teams have kept going well. So, you know, COVID – anything happens. But yeah, I have to say the Swannies and I’ve got my scarf in my drawer next to me. And I have been fortunate to get to go to some Swannies games but, you know, like, I’m always open to cheering for another team if it’s a great game. But yeah, Swans all the way. 

COCO: Love it. Well, thank you so much for joining us Calli, that was awesome and I’m sure our students will glean so much from what you’ve said. 

CALLI: Thank you so much for having me and yeah, good luck with everything guys. And you know, ask the questions and reach out to me if you ever want to have a chat. I’m more than happy to. 

COCO: You’ve been listening to ‘The Brief’ in collaboration with Melbourne Sports Law Association. This episode was hosted by Coco Garner Davis and Sonja Santa Maria. The theme song and sound was produced by Leah Alysandratos. A very big thank you to Call Tsipidis for chatting with us. Special thanks to Ashley Stocco for producing the transcript. Thanks also to all the FAME LSA committee members and ambassadors for their support, as well as Melbourne Sports Law Association’s for their support and the opportunity to collaborate. And thanks to YOU for listening. If you want to hear or learn more about FAME LSA, like us on Facebook and Instagram, and visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing, entertainment, or even sports space, or want to get involved with FAME, we would love to hear from you. Send us an email at general.famelsa@gmail.com

SONJA: Anyone interested in sports law and finding relevant opportunities, please ensure you follow Melbourne Sports Law Association on Facebook and visit our website.

Episode 5: Solicitor & Trademarks Attorney Sarah Ramsey-Caudle

INTRO

LEAH ALYSANDRATOS (FAME Careers and Sponsorship Coordinator): Hello and welcome to the FAME Law Students’ Association’s podcast: The Brief. For the uninitiated, FAME sands for the Film, Art, Media, and Entertainment. The FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture.

In this podcast series, we chat with lawyers and artists working in the creative industries, learning about their daily work, career development, and topical issues facing the industry.

In today’s episode, Matthew interviews Sarah Ramsey-Caudle, a solicitor and trademarks attorney at Studio Legal, which is a boutique law firm specializing in protecting the creative Industries. As a person with a deep passion for design, Sarah uses her personal experience to express the importance behind having a genuine interest in your clients work. Moreover, as a Melbourne Law School alumnus, Sarah is one of the younger guests indulging our listeners with fresh advice as to how to understand your legal future and provides a real perspective on a Covid-19 transformed world. We hope you enjoy this episode. 

MATTHEW HEALY (FAME External Engagement Officer) : Hi, Sarah. Why don’t you start by introducing yourself and where you work? 

SARAH RAMSEY – CAUDLE: Okay, I am Sarah Ramsey-Caudle and I work as a solicitor and trademarks attorney at Studio Legal, which is a fun little Boutique firm based in Windsor in Melbourne who represent clients predominantly in the creative industries. 

MATT: And what do you do at Studio Legal? What does your day to day look like?

SARAH:  It’s a really busy fast-paced little practice. So I do work across both the IP and Commercial practices, but I tend to have more of an IP focus, to be honest. So most of my work is in trademarks, copyright and designs and then I also do a little bit of commercial contracting for the more sort of IP heavy businesses.

So, the trademark side of things there’s a lot of trademark prosecution. So lots of trademark applications and sort of managing those all the way through to registration with IP Australia and dealing with anything that happens along the way like adverse reports or oppositions and that sort of thing. I also have a lot of copyright infringement matters, which I really like so that’s sort of my bread and butter. I guess a bit of ad hoc advice too, which is cool.  

We have a pretty varied client base at Studio Legal, which is amazing. So we’ve got people from all different sorts of industries and different sizes and stages of the business. So even though I’m doing a lot of the same work every day, it’s quite different. Most days are not really the same because it’s sort of involving different businesses in different industries. So it keeps me on my toes.

MATT: It’s almost a trick question. The response from everyone is that no day is the same. 

SARAH: Yeah. It really isn’t like it. Really. Yeah, I have can have the most like amazing day planned and it just will never happen. I’ve had to let go of my planning.

Matt: Something our members and other students love to hear about are the stepping stones that get you where you are today. We were just wanting to know what was your path to the law?

Sarah: So it’s a little bit random. I actually hadn’t really thought about a career in law, to begin with. I actually wanted to be a journalist.  I first started doing law/journalism as a double degree, but that degree was sort of you do a year straight journalism and then a year straight law. Journalism didn’t really grab me and the law was just to kind of an add on thing I suppose. 

It was a few years out of school that I came to the law. I had someone really close to me go through a reasonably public case which went to trial and Supreme Court of South Australia. So I grew up in Adelaide. I kind of took on a bit of a support person role for them during that process and that was really my first experience with the law. I guess for someone who’s not necessarily familiar with the law or it can be really complicated and confusing and to be honest pretty intimidating actually. 

So in that experience, I got an appreciation for and saw firsthand just how much trust and reliance people put in lawyers to help them navigate these things. So without giving too much of a cliche answer, I think that that was definitely a major drawcard. I love the idea of being able to do that for people. I guess aside from obviously how stressful and awful it was for the person involved I actually really enjoyed the process of being involved and sort of following it along and I’ve got on really well with the barrister. He said, ‘you know, you really getting this to be thought about doing law’ and I said, ‘oh, well, actually I started a law degree but I didn’t ever really get to it and it hasn’t even really thought too much about it’. And I’d actually let the law side of things go and I was sort of just going on with journalism at that point. So he said you should think about it. Then a few days later I sort of switched it over and was back doing law. 

But yeah, I guess in terms of the creative industries, I’ve always wanted to have a career that feels, you know, authentic for me. Something that I genuinely enjoy. Having a job just for the sake of it or just as a means to an end was never really something that appealed to me. So I always was pretty clear from the get-go that I wanted to be able to use my law degree in a way that aligns with this. I love fashion and art and design and beauty and all of those things so I had had some experience in those fields. So I think that was really where I developed an understanding of how important IP is in that space and how commercially valuable IP assets are and that’s what really sort of drew me to IP as a practice area. So yeah, and I sort of just did my law degree and ended up in insolvency actually straight out of uni figure. Figured out pretty quickly that wasn’t for me. And then I guess since then I sort of, you know been doing things to set me up to get a position like I’ve got now so doing more broad commercial roles as they came up, moving interstate and doing a master’s to get that specialized knowledge in the area.

Matt: I guess you’re proving the point that it’s easier to find your place if you really do have a passion for it. 

Sarah: Oh, yeah, for sure. Yeah. 

Matt: I just might bring you back to what you said about your creative experiences. Can you talk a bit more on them? 

Sarah: Yeah, so when I was straight out of school, I didn’t really 100% know what I wanted to do. I was sort of playing around with journalism and ended up doing Commerce degree somehow. I’m not sure how that happened. So in that time I was I guess a bit starved of creativity and I ended up doing makeup actually and I worked for Chanel as a makeup artist and that was sort of my little creative outlet. I’ve worked in fashion as well in styling and that sort of thing was always my creative outlet. Working with reasonably big well-known brands was really cool.

Matt: A good mix of the corporate space and the art space all in one

Sarah: Exactly right. I love art, I don’t do art but I really love it. Like I love going to galleries and seeing exhibitions and stuff like that and design. So I just love working with my like artist and design clients. 

Matt: I guess that allows you to defend and appreciate and come to it with an opinion yourself as well.

Sarah:  Yeah, definitely and it’s really cool like every time so often at Studio Legal some work come through and I’m like ‘oh my god, I love that. I love that business. Or his art’. Super exciting. That’s when you really do have that genuine passion for it an interest in your clients and what they do it makes you a better lawyer for sure. 

Matt:  Thank you for that summary Sarah. I know it’s long but it’s so important to hear those stepping stones and what brings you to those places. What do you consider to be essential skills and qualities for a successful lawyer working with clients from trademarks and copyrights perspective. 

Sarah: I think for trademarks definitely commercial acumen is really really important. You have to be able to really understand your clients business. Not sure how familiar you guys are with trademarks but obviously trademarks is a subset of IP. It’s all about protecting a brand and so you can’t just sort of have a trademark point blank, you have to have a trademark very specifically in relation to goods and services that you’re offering under that brand and so to be able to really come up with a good strategy and execute it and actively sort of defend your client’s branding you have to really have that understanding of what they’re doing with that branding. So I think that’s really important. 

And then copyright I think is more is more human. It’s more about people skills and empathy I think. At least from my experience and I’ve only had a few years under my belt,  the key thing for me that I’ve noticed in copyright cases, particularly those infringement matters where someone’s copyright has been infringed, is it’s not about money. They really don’t care about that, that’s very much a secondary consideration. So much personality and passion and soul that goes into creations and for artists, it’s an extension of themselves in a way and to have that copied, it’s almost like a violation of themselves and it’s really quite distressing for them. So having that empathy and valuing how important that is is really important because you know, I’ve had some people that are so they’ve dealt with lawyers and they sort of don’t really get it like this. For a lot of clients it’s actually about the apology and a public apology for copying their work and not attributing it and I guess that says why you’ve got moral rights in the copyright act as well as those that economic rights as well. 

So I think for a copyright lawyer if you don’t appreciate creativity and how much of someone’s soul goes into their work I think that’s really important. 

Matt: I know you said you’ve only been a lawyer for a very short period of time, but the reason your success and the reason for your current position and passion are that you have involved yourself and you have a personal interest for a long time. As a very recent MLS graduate, what do you think law students can do now while studying to realistically equip themselves for a career in the creative legal industries?

SarahOne thing that really I really wish I had done was put more emphasis on plain English drafting. I think there is such an emphasis in law school. It’s obviously a reasonably prestigious profession when it’s quite academic and there’s always sort of language that sounds really fancy and that’s amazing. But like in the creative industry like they’re just don’t care. Just say it how Especially when you’re drafting contracts, for example, we have this amazing photographer client. I love her work. She does really cool things with really big brands in Australia and we put together this contract for her and we sort of thought it was quite short. But it was too long! It such a skill to be able to transform convoluted and really unnecessary clauses into very short sharp, shiny and easily digestible language.

Matt: But also unambiguous and clear.

Sarah: Exactly. Often times you’re almost having to translate legal language which you know, you go through a law degree and you become so familiar with these sort of terms, but you forget that for someone who’s never come across the wall before, they just want to know basically, just cut to the chase. 

Matt: So clarity is so important and it’s important for clients especially. So how can we are students practice that clarity? 

Sarah: So I guess, it’s always easier said than done but try and get as much a real-world experience as you can like. I always think school doesn’t prepare you for your uni and your uni doesn’t prepare you for practice. You learn so much, but there’s so much more to practicing as a lawyer than what you sort of learn in theory a community. So even if it’s internships or you know, unpaid PLT placement, shadowing someone. Get as much as you possibly can and see how it works in real life so that you can sort of have that in your mind when you’re at Uni. So it was helpful for me when I was at Uni because I was working in these industries and I was sort of coming across, you know, skincare patents every day or, you know, I worked in a for a fashion label and there was an ongoing design infringement dispute. Being able to apply what you’re learning in a real-world example is important. So I’d encourage people to really prioritize that.

Don’t neglect or play down your creative flare. It’s just as important if not more. All of my colleagues are all DJ’s. It’s so important. It’s important to honour that side of yourself and nd prioritize it just as much as you prioritize your academic things. 

There are so many law students. There are so few jobs. Then you narrow that down so that niche part of the law being IP and the creative industries. If you’ve got a  lawyer who’s also a DJ or also Fashion Stylist or also an artist or also a designer you’re going to go with the lawyer plus Real World experience. 

Matt: It’s not about having extra things and bells and bells and whistles

Sarah: No, it’s about understanding. I think it just comes down to that genuine understanding and genuine interest and passion. I think that’s so important. There is a sort of misconception or outdated way of thinking that things like fashion and beauty and those sort of typically feminine things are, you know, superfluous or surface level and don’t necessarily go hand in hand with being a lawyer. When I was in my final year of law school my mentor put me in touch with someone very high up in the profession who specializes in IP. She’s on the bench. I was so excited because I have this meeting with her and I was just going to pick her brain about IP and how to get into the profession and all of those things and I left feeling really deflated because she said to me ‘you’re going to have to work three times as hard to get people to take you seriously because you know, you look a certain way you dress a certain way, you’re into fashion into makeup, very feminine bubbly and you sort of have that kind of persona. You’re going to have to work extra hard to get people to take you seriously.’

I remember thinking maybe not maybe I’m not cut out to be a lawyer. Maybe I shouldn’t be a lawyer. Maybe this isn’t for me. I think I mentioned earlier but I was always very clear that I wanted to practice law in a way that works for me and it felt genuine and that I genuinely enjoy. No one should have to sort of try and amend themselves or play themselves down to fit into, you know, a stereotype. The fact that I love fashion and all those things but that doesn’t make me any less good of a lawyer. I think in the area that I practice in it probably helps me be a great lawyer for my clients. I think particularly young females probably hide their femininity a little bit and most really feminine interests out of fear that it’s a little bit too fluffy and not serious and legal. 

Matt: I hope there’s a change in that conversation around embracing who you are no matter who you are. And that what makes you a good lawyer is not your gender scope or where you fit on a spectrum. It’s how hard you work and how passionate you are field of law. I wanted to thank you for telling us that story and I think it’s really important for young people to hear. 

Sarah: I think it is special and it’s the same for men. It’s not even it’s not just a female thing. It’s like if you are a guy and you’re into fashion and you’re in I don’t know film production or you’re an artist or you’re into music, like don’t lay down that side of yourself. Honour that side of yourself and prioritize it because it’s important.

Samara: No, I thank you for that because I think there’s a bit of confusion from what I hear from other women at the law school about expectations around that sort of thing. Whether we do need to present ourselves as more feminine or less feminine and what happens if we don’t wear makeup to work.

Matt: Returning back to what you do at studio legal. How have you had to adapt to covid?

Sarah: Obviously about all working from home and you know to transition to zoom and meetings instead of coffee meetings. I think most people have adapted really well to this virtual meeting way of life.

I think we always sort of still try and prioritize face-to-face as much as we can. So instead of just email or phone, we do like to jump on a Zoom call, even to put a face to the name and connect with our clients as best we can. Going to court via Microsoft Teams is really weird. That’s one thing that I’m still not sure how I feel about it.

I’m just so used to going into court and getting a bit nervous and making sure that like you bow at the right time and sit and stand at the right time and like. I just feel a bit strange on Teams, you look nice from here up and you’re wondering if the judge knows I’m in my pyjamas!

Matt: Has it had an impact on formality?

Sarah: It’s made things so much more seamless. I was having this conversation with our barrister the other day, it could take up sometimes a whole day just to have a case management hearing. And it’s really good. Now you can just have the case management hearing it’s over and done in half an hour. It’s so much more efficient and cost-effective for clients, so I think it is really actually beneficial in that way, but it’s just weird being in court in your pyjamas. I still actually still put my life after work clothes on! 

Matt: I can only imagine. I was actually listening to a judge and he was saying he’s getting so much more work done. Writing judgments the quickest that he’s ever written them because he doesn’t have the two hours of travel

Sarah: I actually think I’ve been I think we all have been way more productive at home. I love a chat with colleagues but at home, it’s so much less distraction and you can actually just sit down and make get all of your work done. It’s been actually quite good for productivity. 

Matt: What parts of covid normal do you see going forward and what of those benefits do you think will carry forward?

Sarah: Yeah, I will be interesting to see what happens with the courts and whether they will keep these sort of yeah virtual court hearings for the more administrative cases. I’d like to see that continue. I mean, for example, most IP cases as you know are in the federal courts and the IP specialist judges based in Sydney. So I think that’s something I would like to see continued. I think it’s great for lawyers and for clients. Because now there’s not that sort of barrier to connecting you can connect virtually, we’re servicing clients all around Australia. So our business has actually grown.

There’s not that pressure to have an in-person meeting anything. Now you can organize a zoom call, you can do work remotely and you don’t need to have that sort of physical presence necessarily. 

Matt: There was always that sense that the legal industry was one of those that couldn’t do it online. You just need that face-to-face and it’s so invigorating to know that we can do it. 

Sarah: Oh we can absolutely do it. Absolutely. I mean, I think there definitely be more flexible workplace arrangements for the law because now they have seen that we can work effectively from home. So I think that that’s going to be really positive particularly for you know, lawyers, men and women who have a young family, you know, I think where law firms will be hesitant to sort of allow working from home. I think for Studio legal and  I hope industry-wide as well, but I guess going to be a big shake-up for the legal industry. 

Matt: As a talented IP lawyer, where would you like to progress within the industry? Where do you see yourself going? 

Sarah: Well, thank you. That’s very flattering. To be honest. I actually just really love what I’m doing at the moment. I’m really just sort of relishing the role that I’m in at the moment. I’m still very early on in my career. I’m really just enjoying where I’m at. And you know learning from the more senior lawyers who have this really specialized knowledge and hopefully I will progress through the firm in the sort of near future, but I guess beyond the sort of immediate few years. I mean, who knows? I just feel like I’m in the right space and I feel happy and fulfilled in my work. So I guess I’ll just see what opportunities come my way and how it all progresses and make my decisions based on that.

I think like most people who are lawyers are very planned with their lives.I used to be very like that perhaps to a fault. But now I’m kind of just happy to let my career unfold as it will because I know that I’m in the right space as I said and that’s something I’m really grateful for because I think it’s reasonably rare to find your thing so early. Especially in the law. 

Matt: Thank you so much, Sarah. I just have one question for you. So what’s your favourite legal movie / TV show? 

Sarah: Oh, I could be very cliche here and say Suits because I do love Suits but my actually my favourite legal movie ever… Pelican Brief. Have you seen that movie with Julia Roberts? It’s a good one. Honestly, it’s really really good. 

Matt: Thank you so much, Sarah, for your time. 

Sarah: You’re so welcome. Thank you for having me. 

OUTRO

Leah: You’ve been listening to The Brief with FAME LSA. This episode was hosted by Matthew Healy and Samara Jones. The theme song and sound was produced by Leah Alysandratos. A very big thankyou to Sarah Ramsey-Coudle for chatting with us. A special thanks to Samara Jones for producing the transcript which is available on our website. Thanks also to all the FAME LSA committee members and ambassadors for their support. And thanks to you for listening! 

If you want to hear or learn more about FAME LSA, like us on Facebook and Instagram, or visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing or entertainment space and want to get involved with FAME, we’d love to hear from you. Send us an email at general.famelsa@gmail.com.

Behind the Curtain – with Stephen Curtis

As the Arts Industry bends in the wake of government funding cuts and covid-normal operations, Production Designers for stage and screen are facing new challenges. Additionally, designers are having to navigate a shifting culture in their contractual relationships with theatre companies. 

FAME LSA’s Laura McKenzie sat down with Stephen Curtis of the Australian Production Design Guild (APDG) to talk about shifting relationships between production designers and theatre companies, against the broader backdrop of Australia’s arts Industry.

Can you tell me about the work that production designers do and the usual terms of their employment with theatre companies?

The APDG represents both live performance and screen designers in Australia. I am Chair of the chapter of the Guild that represents live performance designers working in the fields of drama, dance, physical theatre, events and musical theatre. We conceive the world of the production on stage – how it looks, works and what it means. We work closely with the director to dream up everything you see on stage; the sets, costumes and lighting for the production. We then follow through to manage the making of the production with the theatre technicians and costume and set makers, right up to opening night. 

Live performance designers in Australia generally work freelance as sole traders and are contracted to the production company. Occasionally a designer might be on staff as an employee of the company. Some film designers also work within their own companies.   

Freelance live performance designers have traditionally had a very strong creative relationship with the company, working closely with them and their staff to make the production. It has been creatively symbiotic, where both the company and the designer are mutually dependent. Although we are technically not part of the company, we are working very closely within it. This relationship has worked very well for both the designers and the companies – we have been able to support each other to make the best possible production. 

Image: Cursed! Currently showing at Belvoir Theatre with set design by Stephen Curtis. Lynette Curran, Sacha Horler and Chenoa Deemal, image by Daniel Boud https://belvoir.com.au/productions/cursed/#CjnymqycvMw

How has this relationship shifted in recent times? 

Designers are noticing more and more that companies are trying to define us legalistically as ‘contractors’. While we do work under contract to the company, our working relationship is quite different to what we might think of as a normal contractor. For example, we work with the company’s staff to make the show, within the schedule the company sets, and are realistically working under their management. 

When the Guild has asked companies why they are wanting to define designers as contractors their response tends to be around fear of liability. I think many areas of industrial relations are being affected by this shift of liability and risk back on to the worker. By defining us as ‘contractors’ we would be expected to have our own liability and other insurance covers. Some companies are even trying to use the contractor definition to withhold paying the employer superannuation contribution. 

Do you think that the increasing strain put on the Arts Industry is contributing to theatre companies taking a stricter approach to enforcing definitions of ‘contractor’?

Yes, I do. Every arts company is under financial pressure, and even more so with reduced audience numbers due to COVID requirements to keep audiences socially distanced. But I don’t think this shifting of liability is really a financial matter. It’s more one of risk-aversion. Ironically the risk is not actually a significant one for the company, since the designer is covered by their insurances anyway when we are working in their premises, and most of the legal liability issues are specifically addressed in the contract. I think the change in culture probably comes more from the increasingly corporatized nature of the workplace and their desire to eliminate any potential legal ambiguity of obligation. But this is the same ‘happy ambiguity’ that is the key to the success of the co-creative relationship between companies and designers.

Image: The Secret River Set design, by Stephen Curtis from The Sydney Theatre Company

As a member of the Australian Production Design Guild, you often come across cases of young designers grappling with these contracts and what to do. What has been the Guild’s advice?

Yes, young designers especially are being thrown by these new clauses in contracts. We advise designers that these ‘contractor’ obligations are new obligations. We encourage them to go back to the company and ask why they are being asked to define themselves as a contractor. I have done this quite successfully – where the general manager listened to the argument of our mutual dependency and we were able to negotiate a fair and mutually beneficial outcome.  

We also advise that designers need to make their own decisions about risk-management and decide what professional insurance covers they need. For example, they might  decide to take out cover for when they are working in their own studios where they might not be covered by the company’s insurances. 

And finally, we advise that if they intend to sign the contract and accept the new liability obligations then they should add this cost to their fee. This is a new cost to the designer, and if the company is going to treat us like a contractor, then we need to add this new cost to our fees as a plumber or consultant would. 

What do you think could settle the confusion around the terms on which to engage Product Designers and set the new precedent for these relations going forward?

The Guild has informally sought legal advice and have learned that this area of law is very unclear. It would probably have to go to a test case in the Fair Work Commission to determine our legal status and contractor liabilities. These cases are notoriously very dependent on the fine detail of the employer/employee relationship. 

It is also possible that the legal environment is shifting a little under pressure from Gig-economy workers, and we may see some reversal to the hard-nosed pattern of employers shifting responsibility to their workers. I am hopeful! 

ImageL Georgia Adamson, Madeleine Madden, Frances Djulibing and Ningali Lawford-Wolf in Sydney Theatre Company’s The Secret River. Photograph by Heidrun Löhr/Sydney Theatre Company from The Guardian. Set design by Stephen Curtis.

The APDG manages to do a lot of advocacy and advising for production designers largely without engaging a lawyer. In what scenarios have you engaged a lawyer’s help? Do you feel there is more room for legal assistance and if so, what factors prevent the guild from accessing that support? 

The Guild is not a union and most live performance designers do not feel the MEAA Award really covers them. Most of the APDG’s advocacy work is in the form of advising designers on potential options of negotiation, and occasionally acting as an intermediary for them with the company. Theatre is a bit like a big family, and I have found most companies relatively amenable to negotiating a fair position when faced with a fair argument. When companies don’t do the right thing, word gets out pretty quickly. 

We have sought legal advice on the two key resource documents the Guild has put together for designers: the Standard Live Performance Design Agreement, and the Live Performance Guidelines. On both occasions this advice was provided pro bono. We also have an account with the Arts Law Centre.

We are a volunteer organisation and try to keep our costs down so that membership subscriptions can be contained. So, employing a legal team to fight the contractor definition in the Fair Work Commission has not really been an option for us. Should an opportunity for legal help arise in an affordable mechanism , we’d be excited to pursue that.

Finally, despite Melbourne’s lockdown,you’re currently working in Sydney on the set design for a show planned to begin in October! Can you tell me about this show and how it has adapted to the restrictions of the pandemic? 

I really feel for our Victorian members. We speak to a group of them every week to check in, and they are remaining stoic. Some have found ways to use the lockdown to plan future projects, but some have been really knocked by the collapse of the theatre industry. We were one of the first industries to lock down and will probably be one of the last to open back up. But there are some signs of theatres opening again. The first was in South Australia – STCSA opened Gaslight a couple of weeks ago, and I’ve started rehearsals for a new First Nations comedy at Belvoir in Sydney. Some of the creative team will be zooming in remotely, which will be a challenge. The audience will need to socially distance and wear masks, so the house will be at a fraction of the normal capacity. It will be very strange, but there is a tremendous will from us all to make it work.

Student Spotlight: ‘Bean Recordings’ Leah Alysandratos

Leah is a first year JD student at Melbourne Law School and an ambassador with FAME LSA. Matt and Caiti from FAME LSA sat down with her, to discuss her small (but growing) business Bean Recordings, an independent Melbourne-based record label. From her passion for music and the arts, to pursuing a law degree, find out more about Leah below.

Tell us about yourself and your new business Bean Recordings!

I’m a Melbourne girl, born and raised, who has always been keen on music. My mum got me into playing music when I was young in an attempt to get me out of my shell. Music is a safe place for me to escape the world a little. 

I wanted to take my passion and love for music and make it a more serious part of my life. My first ever job was as a street busker. If music got me out of my shell, busking made sure that I still had thick skin! I busked for two years on a wide range of instruments. 

My passion for music took me to the VCA to study Interactive Composition. Whilst studying I was producing and creating music for film, TV, animation, EDM and many other projects. 

As I worked my way through my course I had people ask me to work on music production for their projects; the vast majority of that work were ‘favours’. By the middle of my third year I had built up some skills and decided that I deserved to be paid for the work I was doing.

At the same time, a friend of mine, Daniel James Johnson,  was recording for musicians and had become quite a successful popular music producer. We thought it would be awesome to start a recording/production business together, combining our skills and resources to provide an important next step for our colleagues who make money through gigging. 

Daniel playing guitar

From there, and with the help of a random name generator, came Bean Recordings! We like to think of us as embracers of all kinds of beans; representative of all different music styles and people. 

How do you describe Bean Recordings?

We are a niche Melbourne record label and production company focused on up-and-coming musicians looking to get their sounds out there and into the big, bad world of music. 

Our purpose is to be flexible, mobile and affordable. Where it is best, we love to come to you to cater to each person’s specific needs. We want nothing more than to record your most natural and comfortable sound. 

Lots of young musicians are concerned that they don’t have a lot of liberty when it comes to music production. Something that’s really important to us is bringing the tools you need so that we can record your sound the way you want it. We lay down tracks, edit and eventually distribute the tune onto multiple platforms for consumption. 

In addition to recording and producing, we provide music industry advice. Many of the people that have come to us are people who are just starting their journey into the industry, so we like to provide as much support as we can. 

Artist Fliss Dart’s EP launch

What were your biggest hurdles in setting up your business?

The legal and financial logistics of registering as a new business were the biggest hurdles for us. As we passed the first year mark, we have been doing our best to ensure we continue to grow and reach more people. Along with this hurdle is the management of a plethora of social media accounts. As of yet, we haven’t outsourced any of the work so it’s still a lot of work for both of us. 

When you personally invest in something, those first few months are crucial to staying afloat and keeping momentum. I think we are already through the biggest hurdle in that sense, as we’ve made some really significant progress. Due to the effects of COVID, we can’t record with people, can’t have gigs or any other events. This means that a lot of our projects, especially fundraisers, have been put on pause or cancelled completely.

To compensate we’ve taken current tracks and slowly produced them, releasing them when we can. We’ve started Instagram live sessions because gigs aren’t really a thing anymore – the next one is Saturday 10th October! We have also released merchandise on RedBubble which has helped a little.

How has your law school experience shaped Bean Recordings? 

It’s been a difficult ride. Law school can be tough. Even though we only had three subjects in the first semester, it was still hard to manage time. To keep on top of things, my business partner, Dan, and I have weekly meetings. Most importantly, we make sure that we have time to study, have mental rest, work, and play! 

Law school has helped me think about the business from a professional and employment services perspective. It made me think more about how we create agreements with artists as well as how we present the consulting services we provide. 

So far it’s has been nothing but an asset to the business, helping me add something of substance to our existing business that really helps people cultivate their passion. 

What is the most important part of music for you?

That therapeutic feeling that music can deliver is probably the most important thing to me. As I said before, music got me out of my shell and taught me to be strong. If I am stressed or anxious in any way I sit and play, or listen to music. 

Performing also gives you an opportunity to give back to the people around you. 

Who is your biggest music inspiration?

My parents don’t play music but they both love listening and being around it. Dad and I share a love for live concerts. There is a big deep appreciation for music in my family, my siblings have taken lessons too, and it’s something we all share.

Do you have a favourite album?

The ‘Bean Recordings’ Compilation album!! – we have just released our top tracks from the first year of business. Definitely grab yourself a copy! On sale now!

What are you most looking forward to in the next 12 months at Bean Recordings?

We would love nothing more than to see live music flow back into Melbourne. We are looking forward to holding a fundraising concert and raising funds for charity in areas we are interested in. 

We are currently recruiting volunteer writers to start a new segment of our business. We want to start publishing content to inform people more generally about the industry, what is happening and who is doing it! If you are at all interested please let us know!

What is your dream for the future of Bean Recordings?

Best case scenario is an enormous building, possibly in the shape of a bean, with dedicated sections to all aspects of music production. That’s a big dream though. In the end, I hope to keep a flow of artists in a way that’s manageable and growing our team to better serve the artist. We love what we’ve started but are so excited to see how it grows. 

Find out more about Bean Recordings here.

Photos supplied by Leah Aly.

Episode 2: Film, TV and Media Lawyer Caroline Verge

CAROLINE VERGE

THE BRIEF

SAMARA JONES (FAME Careers and Sponsorship Coordinator): Hello and welcome to the FAME Law Students’ Associations’ podcast: The Brief. For the uninitiated, FAME stands for Film, Art, Media, and Entertainment. FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture. In this podcast series we chat with the lawyers and artists working in the creative industries, learning about their daily work, career development and topical issues facing the industry. 

In today’s episode, FAME ambassador Leah Alysandratos interviewed the highly influential and experienced film and TV lawyer, Caroline Verge, principal of Verge, Whitford & Co. Caroline shared with us what led her to the law, her experience with Women in Film and Television Australia, and her thoughts on how the film and TV landscape may look moving on from 2020, plus many excellent career tips for budding film, television, and multimedia lawyers. We hope you enjoy it. 

LEAH ALYSANDRATOS(FAME Ambassador): Thank you so much for joining us today, Caroline, it’s really lovely to have you here with us. 

CAROLINE VERGE: It’s my pleasure. 

LEAH: I guess we’ll get straight into it. So, the first thing I just wanted to ask you was what drew you to practicing law and specifically practicing in film, television and multimedia law?

CAROLINE: Well, when I was at school, the choices just really weren’t available. So, if you were good at reading and writing, you basically did law. And you know, if you’re good at maths and science, you did medicine. So I didn’t have much of an option – and I made my decision probably in late primary school and just never changed it because there was never anything that appealed to me.

And I had lawyers in my family, so I just took it from there. And as for film and television, that was complete chance – I was working at the Australian Government Solicitor doing proceeds of crime and insolvency and some tax work, and I helped my boss hang some paintings one day – so when an arts organization asked for someone to be posted there, he went “oh, I’ve got just the person: Caroline.”

And he sent me down and I was actually shocked in the beginning because I thought there was no world outside the Supreme and Federal Court, but I ended up enjoying it. I liked the people and I picked up related clients like SBS and the Australian Tourist Commission. So I spent a couple of years doing that and then I got a job as manager of copyright at ABC Television. That really, I guess, cemented me on that trajectory because after that I went to the Australian Film Commission – and I don’t know if you know, but in your career you’ll have one or two jobs that are just dream jobs – 

LEAH: Yeah. 

CAROLINE: and the Australian Film Commission job was one of my dream jobs.

LEAH: Wow. Yeah. And it really just fell in your lap in that way? You just sort of thought – this is the way my destiny’s been carved out since I was in primary school. This is what’s been handed to me and wow, that’s a dream. I didn’t even know that was there. That’s a really lovely story. 

CAROLINE: Yeah. Well, let me say one other thing, which is that, in my opinion, it doesn’t matter what you specialize in, when you become good at something, you just enjoy it and you stay on that path. So when I was doing insolvency, you know, I really liked insolvency and I was very comfortable with my court work and I knew the Act and the regulations – and so it doesn’t have to be something that you think you’re going to love.

I would suggest just if you’re offered some specialty, sometimes just give it a go. Yeah. And see what you feel about it – 

LEAH: It’s like that old adage where they say work isn’t work if you love it or something like that, something like that. And that really ties in here. 

CAROLINE: True. 

LEAH: That’s really, really interesting.

So, given that you have such experience in in-house organizations like ABC and the Australian Film Commission, would you have any suggestions for the students listening hoping to work as in house lawyers in the film industry?

CAROLINE: I strongly suggest that you get general experience first. When you go in-house, you think that you’re going in as… well, for example, when I went to the Australian Film Commission, I was the film development lawyer. So I was purely employed to do grants and investments in film development and production. However, when people see a lawyer there, they will ask you a wide range of questions and you need to have the confidence to take charge of answering those questions, or, I mean, you can always brief out, but you need to be on top of a lot of things.

So I suggest have some general experience before you go in-house, then you’ll find that you need to be a bit cautious about too strongly identifying with you or the company that’s engaging you or the organization that’s employed you. You need to always remember that you are a lawyer and you have a duty to the courts.

LEAH: Yes…

CAROLINE: So you can’t just basically become more of a business affairs person, you have to maintain that legal distance. Having said that – being in-house is a wonderful, wonderful career opportunity. It’s so fabulous not having to do timesheets and it is wonderful, it’s fantastic to really become so familiar with the client’s business and structure and goals. 

LEAH: Yeah. So I guess there’s a really good insight there in the sense that people will see you as a lawyer before they see you as a specialized lawyer. 

CAROLINE: In a way – they expect you to know your specialty, but they will also just ask you incidental questions. For example, when at the Australian Film Commission, I ended up taking on the role of FOI officer (you know, Freedom of Information) because, well, nobody else wanted to do it, but they just assumed that I would be able to do it.

LEAH: Because you’re a lawyer.

CAROLINE: Yeah, that’s it. And people would ask you about their wills, which was not part of the job at all, but you need to be able to give a reasonable answer to a lot of questions so that people maintain the confidence in you. A lot of what we do is appearing on top of things, funnily enough. 

LEAH: Yeah. That’s a… that’d be a really hard balance to find, especially where they’re asking you questions not within your allocated job – but in order to maintain that relationship, you sort of have to find a way to, like you said, to maintain their confidence, that’s really… I’d never thought of it like that before, actually.

CAROLINE: And you also need to be careful because if you give legal advice, you need to be insured for it. There’s lots of things to think about. 

LEAH: Yeah. Well, well I guess that ties into the next question – to be a successful lawyer working in the film and television industry, not only would you be able to have to answer those difficult questions and maintain those relationships, but there are probably many other essential skills and qualities you need. What would you consider those to be? 

CAROLINE: One of the key changes in my personality that I had to work on when I left litigation and went into commercial work (film and TV) was that in litigation you win or lose. And I had a very strong mentality of needing to win – and I actually went to Harvard and did Roger Fisher’s negotiation course – 

LEAH: Wow. 

CAROLINE: and it took a while to sink in, but it really changed my personality a lot because in film, the deal is important, but you have to keep an eye on the ultimate goal which is to make a project. 

LEAH: Yeah. 

CAROLINE: And I have seen projects fall apart because the lawyers started jiggling it 10 paces. And you, and you say stop, you know, is that really critical to get this film made?

The other thing that’s important is that the Australian film industry is pretty small and you have to be careful not to burn your bridges, and sometimes a strategic retreat is more important than a victory on every point. 

LEAH: Yeah. Keeping that wide, wide lens perspective of everything going on. 

CAROLINE: Yeah, exactly, that’s a great way of putting it. 

And I guess another essential quality rather than a skill is to maintain your integrity. I’m not saying that lawyers don’t have integrity – but in the film industry in particular, a lot of our money comes from taxpayers. So you have to be completely transparent. And sometimes people say: ‘Oh, let’s just do a side letter about this aspect of a transaction.’

And you have to say, yes, we can do a side letter, but we’d have to disclose it to all the other parties or in particular, the agencies that are investing taxpayer money. So complete transparency.

LEAH: Integrity, particularly professionally as well as personally, because he can’t have it either way. You’ve got to be the person, the right person for the job, both in yourself as well as as a lawyer. So that’s a really great piece of advice I think for a lot of people listening: not to forget who you are as a lawyer and on your own.

And I guess continuing on the talk about the industry, the film and television industry, as we know it has been disrupted by this current pandemic, we knew this question was coming, and we are seeing signs within the industry of working within a COVID normal, we’re seeing a lot of movies being made with social distancing and things like that.

How do you see this landscape adapting as we keep moving forward? 

CAROLINE: I think a lot of scripted projects are going to be forced out – smaller budget scripted projects. The reason is that the bigger production companies, you know, your Matchboxes, can self-insure – they can continue production even without COVID insurance, but with the smaller production companies that can’t afford to self-insure they’re going to be reliant on the Screen Australia TIF fund.

And that is a wonderful initiative of Screen Australia’s and I think everybody’s really happy with it. However, it is selective. So it’s another hurdle to get through. And, you know, we know that Screen Australia doesn’t really like horror movies and they’re quite often the ones that break out. So I think a lot of, as I say, drama projects might be forced to at least defer the start of production. 

LEAH: Yeah. 

CAROLINE: I think that there’ll be more feature docs and archival projects because they’re easy to pull together, even, you know, with social distancing. I have some clients who are doing an interesting thing where one of them lives in New South Wales and one lives in Western Australia – and they’ve had a script written and they’re going to do it online. 

LEAH: Wow

CAROLINE: So it should be great. 

LEAH: That’s really different.

CAROLINE: And so clever over them to just create work for themselves. 

LEAH: That’s definitely what you would call adapting. 

CAROLINE: Yeah. Yeah, absolutely. Absolutely. 

LEAH: That would encourage different genres to come out more than others that didn’t come to mind at all.

CAROLINE: Well you’ve got to be clever. You’ve got to always be thinking… these two are actually very, really smart operators. And the other thing that I see as a big issue with COVID, although it’s slightly more of an umbrella issue, is that I think the Australian Content Standard is at risk. We were hoping that the Pay TV channels would start to be, you know, required to maintain a minimum level of Australian first run drama and documentary but now I think even the free to air broadcast is probably going to start lobbying really hard to get the Content Standard pulled back, which is terrible for Australian content. 

LEAH: So the integrity of the standard is really at risk here. 

CAROLINE: Yeah, I think so, because it’s much more expensive obviously to invest in first run Australian programming than to pick up programming from overseas or, you know, second cycle programs, they’re so much cheaper – why wouldn’t you, if you have to report to the shareholders. And particularly now that some of them – the media organizations – are owned by hedge funds. Well, they have no sort of deep support of the Australian film and television industry. So why wouldn’t they just be looking at the profit margin? 

LEAH: Of course. That makes a lot of sense. And I guess that ties into the next question where I was just going to ask you what other legal concerns do we need to be aware of or, you know, for the industry right now, or even lessons that lawyers such as yourself have learned about this experience. So just continuing on, what other concerns did you have? 

CAROLINE: Well, I think my key comment rather than a concern is that features are still treated as the premier format, and yet theatrical features just aren’t cutting it. 

Until recently you had quite a long period: a theatrical window – so you’d release a film theatrically, and then you might have 180 days before the next window opened, which might be TV, and then you’d have a window, and then you’d have home video open. And that could somehow, even though the feature never made its money with theatrical exhibition, it could create a word of mouth, but that’s really largely gone, I think, or going and going quite quickly and the windows have collapsed. So you can quite often now have something released in the cinema and also released online.

LEAH: Yeah. It’s almost less about that release experience and just more about having that straightaway access to the artwork or the project/the ease of it, I think, especially with new streaming platforms, which is not even new anymore, but Netflix and Stan, there are more coming out and we’re seeing advertisements on television. People want easy and quick and cheap and it does compromise the integrity of that whole theatrical release. 

CAROLINE: It does people, and have such big TVs now, it’s enormous, and you can get big, you can go to 80 inches, but, I haven’t been brought up in it. I don’t like anything better than sitting in a dark cinema. And you know when the curtains just go a little wider, the ads have finished and the movie starting – I get that excitement every time, I just love it real when the lights dim and the curtains open a little bit.

But now, uh, people don’t seem to have that. And in fact, I’ve noticed that people talk through a movie now. Whereas you never used to have that. You’d always be completely quiet as soon as the film started, but people don’t actually realize that they’re not in their living rooms. So I think that’s the big change and I can’t tell you how it’s going to play out.

But I do know that I’m working on some fantastic television – and I think funding should really perhaps change more towards TV. And I guess online, well.

LEAH: I guess, I guess we don’t know yet. We’ll have to see, but I do agree with you that, that whole… there’s been a dissolve in the interest of that theatrical experience in the mainstream consumer market for film and it’s gone towards the whole aspect of – I can have a theater experience at home on my couch, in my own comfort with my bathroom right there, why wouldn’t I just do that? So there’s definitely a big shift there and it was almost like COVID-19 has encouraged it because we don’t have any option to otherwise.

CAROLINE: And the other thing that I think needs further attention – and anyone that knows me will tell you this is my complete hobby horse and I’ve been on about this for years – and that is that we need racially blind casting. Instead of having, you know, the doctor played by a white woman, what would it matter if it was played by a Chinese man, or if your race is irrelevant to the script, then it shouldn’t be a part of the casting.

LEAH: I agree with you 110% here. Yup. There is absolutely no need for it anywhere – racial stereotyping in casting at the moment. I don’t understand why it’s there. 

CAROLINE: It’s subconscious bias still, and you look at people complain about SBS because they’re having you know, white, Anglo-Saxon programming during peak viewing times now, and you go hang on, what was your remit again?

LEAH: Exactly. Exactly right. I guess that does tie into my next question ‘cause I wanted to ask you about gender equality in the Australian screen industry, because you actually were the Vice President of Women in Film and Television Australia. What stood out to you as the key barriers to gender equality? 

CAROLINE: I think I might need to update my bio, because I’m also now on the board of Dame Changers which is an organization for entry level filmmakers and enthusiasts. And they do a great job by creating a space for women in film, running the WOW festival each year, and in fact, the current WIFT in New South Wales is really impressive, and the things they do – putting out newsletters and bringing people together to find out what’s on – Dame Changers is a networking and mentoring organization for mid-career filmmakers, and mid-career is when there’s a real dropout zone for women. And I think what has… the barriers that have stood out for me are the same in all professions, to be honest, which is that, you know, women pull out to have children.

Film is high risk. There are long hours. You have to travel to go on set – it’s freelance. And it’s very hard for women to juggle all of that with kids, unless they have someone at home as so many men do. Well, one other point I would like to make there – and I don’t think it’s perhaps recognized enough – is that there’s a lot of work being done at the moment to promote gender equality above the line. Screen Australia has its gender equality goal of 50% female lead writer, director, producer in its projects – but there’s also a big issue below the line in the crew area. And there it’s really similar to just the ordinary trades where it can, they can be a bit of a boys club, you know, if a woman wants to be a grip, how does she access that as a possibility because she hasn’t gone to TAFE with a group of guys, and then they’ve all gone into the film industry, but maybe she has, and maybe that will happen more, but women traditionally don’t participate in trades. And that’s a big problem. And I think once you see more women below the line, do you know what I mean by that? 

LEAH: Yeah. And I totally agree. I totally understand what you’re saying. 

CAROLINE: Once you see more women below the line, they’ll create their own networks and there’ll be less unconscious bias.

LEAH: And just allowing women to work beyond the line, opening that opportunity then, and not letting them feel like it’s not an option. 

CAROLINE: I guess maybe there needs to be some attachment schemes that are geared towards women in those Crew positions. I know Screen West, well, the agencies all have crew attachments, but they don’t say, they don’t specify whether they have to be men or women.

One other thing, you know, you’ll know this as well as I do – I’ve mentored some young lawyers and women tend… no, it’s not that they don’t push themselves, but I think women see both sides of every story. So if, if a man sees a job and he thinks that looks interesting, I’ll go for it. And a woman, a woman will see a job advertised and we think that looks interesting, I don’t know if I’ve got all the qualifications for it. And it seems to be a real mental difference somehow in, I won’t say brain wiring because I’m sure it’s possible to train people out of it, but it is something I noticed very often in, well, in myself and then younger professional women. 

LEAH: Yeah. I understand what you’re talking about, because it’s an, it’s an easy feeling. Even someone like me coming out, going into a music degree or to a law degree, am I really cut out for this? Do I just take the chance? And you know, you got to try your best, not to scare yourself or intimidate yourself, but I can understand how that can still be a major playing issue here.

CAROLINE: Yeah. Yes. And then you get your dream job and you have imposter syndrome. 

LEAH: Yes, exactly. I always feel like I’m an imposter here. What am I doing in law school? What?  

I guess we should, we should just move on to some more lighthearted questions – I wanted to know what’s the film or project you’ve worked on that was especially memorable for you?

CAROLINE: Well, you know, I’ve been doing this since 1990. Yeah, so that there’s been a lot of programming under my belt. I’ve had some really terrible projects, so awful – let me say that if you’re in development and the co-producers are already arguing, or the producer and director are already arguing, walk away, it’s not gonna get any better.

LEAH: That’s, that’s probably the best piece of advice you can give to an up and coming production. That’s hilarious! 

CAROLINE: Yeah. Yeah. And then they come to you and they want you to be the mediator and I’ve actually – I am a mediator and I’ve done some film mediations, and everybody’s always so agreeable in the film industry that you have this wonderful honeymoon event where you spend a day nutting out the issues and then everyone goes, yeah, thank you. That’s great. Okay. It’s all fine now. 

It’s not, it never is – another one I wrote down was a film I worked on called Paper Planes. And it was such a pleasure because they’re a great team. It was a lovely project. It was a children’s film, which you don’t get nearly enough, and yet still a really interesting story. 

And it also had the contracting – this sounds a bit sad, but the contracting was really good and exciting because there was private finance, there were agencies, there were distribution and sub-distribution agreements. It was really diverse. And the producer was just so on top of everything, it was a real pleasure.

And then the third project I wrote down here is a TV series – it’s a three part series called Filthy Rich and Homeless which ran on SBS, just a few of those episodes. 

LEAH: Yes! I’ve watched a few of those episodes. That’s such a fascinating show. 

CAROLINE: It was fascinating. Well, I had to watch them all because I was assessing them for errors and omissions insurance.

LEAH: Of course.

CAROLINE: Not only did I find it eye-opening, I found it quite life changing because homelessness is so obvious in Sydney and you know, I’d always look the other way and walk past people. And now you think they could be anyone. There could be any reason for them to be on the street. And so I’m much more open to being a bit supportive.

And I thought it was incredible, and worth mentioning, that a TV show could have such an effect on me. At my age. 

LEAH: Oh, even at my age, I think we understand these issues a bit more, but you watch a show like that and you really are forced to understand something that you thought you had full knowledge of – when you just think oh, I really could be anyone that could have been any range of scenarios that put them there. Yeah. Really, really great series. And that’s really interesting that you worked on it. 

And I guess last one, do you have a favorite legal film or television show? 

CAROLINE: Yeah, I like that question. I like Suits, but really Suits is just a remake of the best legal show ever – which was Boston legal.

LEAH: Shaun Miller from our previous episode also loved Boston legal as well. I’ve got to get on it. 

CAROLINE: Yes, Shauny and I are very close!

LEAH: There you go. Thank you very much for talking to us today. I’ve really, you’ve actually given me so much to think about, and opened up my eyes to quite a lot of intricacies in the screen industry that I never would have thought about before. So thank you so much. 

CAROLINE: My pleasure. And thank you. 

SAMARA: You’ve been listening to the brief with FAME LSA. This episode was hosted by Leah Alysandratos, the theme song and sound was produced by Leah Alysandratos. A very big thank you to Caroline Verge for chatting with us and a special thanks to Coco Garner Davis for producing the transcript.

Thanks also to all the FAME LSA committee members and ambassadors for their support, and thanks to you for listening. If you want to hear all learn more about FAME LSA like us on Facebook and Instagram and visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing, or entertainment space and want to get involved with FAME, we would love to hear from you. Send us an email at general.famelsa@gmail.com.

Episode 1: Entertainment Lawyer Shaun Miller

INTRO

Samara: Hello and welcome to the FAME Law Students’ Association’s podcast: The Brief. For the uninitiated, FAME sands for the Film, Art, Media, and Entertainment. The FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture.

In this podcast series, we chat with lawyers and artists working in the creative industries, learning about their daily work, career development, and topical issues facing the industry. 

In today’s episode, we interview award-winning entertainment lawyer Shaun Miller. As you will hear, cinema is in Shaun’s DNA, and with his 20 years of experience as a film and entertainment lawyer he is a treasure trove of insight into the industry. 

Shaun shared with us what lead him to establish a sole-entertainment law practice, how the Covid-19 pandemic impacted the industry, and many inspiring words for budding entertainment lawyers. We hope you enjoy it.

Samara: So, thank you very much Shaun Miller for joining us for this interview about ‘A Day In the Life’ of an entertainment lawyer. For our conversation today, Sean, I wonder if you could provide a bit of detail whatever you said an entertainment lawyer actually does. So who are your clients, and what sort of work do you do for them?

Shaun: Yeah, well when we talk about ‘an entertainment lawyer’ there’s actually subspecialties within entertainment law. So some entertainment lawyers – and I’m one of them – does legal work for film and television productions. Other entertainment lawyers focus almost exclusively on music law – which I don’t do at all. 

Samara: Okay. 

Shaun: So I do Film and TV and then others do music laws in entertainment law. There’s a lot of subspecialties. But I do, even though as I’ve said I’m in film and television, I do a smattering of other areas. 

When describing what an entertainment lawyer, what a film lawyer, does I describe it very simply – I say when you see the credits at the end of the film, I say: well, every one of those credits has a contract attached to it. Not many people sit and watch the credits at the end of the film. I do because I like to see who did what and often recognise names, but if one was just sit and watch the credits go on for several minutes, one would realise that the work of an entertainment lawyer in film is quite extensive… because all of those contracts exist in relation to making the film.

Samara: Fantastic.

Shaun: That’s the simple explanation. 

Samara: Clearly entertainment law has so many sub-issues within it. Which is really exciting.

Shaun: Correct, correct, and you know sometimes entertainment law also bleeds into media law so you’ve got issues like defamation, particularly if a film or TV program… like one case in point at the moment in the last few weeks on Channel 9: Informer 3838 about Nicola Gobbo – one of the esteemed graduates of Melbourne Law School haha – so there would have been a lot of close attention paid to defamation issues. 

Samara: So we should put the ‘M’ and the ‘E’ together in FAME.

Shaun: But also the role of the film lawyer often crosses over into giving commercial advice, so advice about everything from raising finance for a film – whether it’s to government funding bodies or for private investors or sometimes even people providing crowdfunding – so financing the film, and then marketing and distribution of the film. And that sort of commercial advice isn’t strictly legal advice that you would have learnt at law school or read about in law textbooks it’s really yeah, just commercial – just sort of business SOMETHING that you pick up over the years in the film industry. 

There’s an expression in the film industry: ‘If you want to be a filmmaker in the afternoon, you’ve got to be a business person in the morning’, so often even if I’m advising on the making of the film from a legal point of view, it’s also a commercial point of view.  

Samara: Excellent, thank you. My next question for you Shaun is – at what stage in your career did the law and the entertainment industry start to overlap? And I wonder if – I mean you have elaborated on the fact that you obviously need to have a commercial awareness – but I wondered if you had done any practicing in any other areas?

Shaun: I grew up with a background in the film industry because my mother, Natalie Miller, runs the Nova Cinema with her business partner. And when I was younger, she would go to the Cannes Film Festival every year – and she’s been going like 40 years in a row – and she goes to the Toronto Film Festival as well so I would always hear about the film industry, and it was spoken about at our dinner table. And then back in the early nineties, when I was doing what was then called ‘Articles’ at Mallesons and I needed an escape I went with my mum Natalie Miller to the Cannes Film Festival and I thought this is so much more fun than sitting in a deposit box in a glass building, sort of doing very low level legal work. So, I was very enamoured with the film industry. I always had been, but going to somewhere like the Cannes Film Festival which is the epicenter of the world film industry was just so exciting, and I finished up at Mallesons, and then I worked at the ACCC for a couple of years. To cut a long story short had this Geronimo moment: I thought, look I’ve got the law degree, I did fairly well in my law degree at Melbourne Uni. I’ve got a commerce degree as well, which is the business background, and I have a really good understanding of the film industry going to Cannes Film Festivals, going to the Sundance Film Festival, working in the industry… and I thought I could just combine all of that into working as a film lawyer, because I’ve got the commercial background in film, the legal background, the practical background. 

I got a job with someone called Bryce Menzies – who’s like a guru in the film industry –  and I ended up working for Bryce for ten and a half years and really just learned, you know I mean I ended up being a partner at Marhsalls and Dent Lawyers and then nearly 10 years ago – it’ll be 10 years in September – set up my own law firm, a sole practice law firm called Shaun Miller Lawyers and that’s what I want to keep doing – just running a sole practice law firm. 

But, you know that when I really decided to be a film lawyer was probably not until… my late 20s, so it’s kind of funny how life turns out. I say a compass always finds its true north, and if you’re feeling lost in your startings of a career, I like to say even if you feeling lost and don’t know where you go and you’re on your way there – so just sort of, you know, things have a way of working out.

Samara: That’s wonderful advice, that does sort of lead into my next question of how your previous study and experience has informed your current practice of running your own entertainment law firm? 

Shaun: Well, obviously to be a lawyer – whether you are running your own firm or in a private practice or in-house or working in the public service sector – to be a lawyer you obviously need a law degree, you need to be admitted as a lawyer. There’s a Mark Twain expression which is: you don’t want to let your schooling interfere with your education. So, even though it’s very important to be schooled as a lawyer, you really learn how to be a lawyer when you’re actually practicing law and it’s very hard initially when you’re straight out of law school – and even the JD students would have probably been students all their lives, might’ve had some gap years here and there. And then suddenly thrust into the Big Wide World, and it can be a bit overwhelming. But, you’ve just gotta persevere at it, and, you do learn as you’re working on the jonb, there’s no doubt about that. Also, having combined my degree with a commerce degree I had a business background in the sense that, you know, I did subjects like accounting and economics, and marketing and statistics, and economic history which all sort of count for something looking back. But also, I grew up in a family that ran film business so it was in my DNA, I ate it for breakfast. 

So, setting up my own law firm – you can’t setup your own law firm a year out of Law School, I just don’t think you have the experience. Some people go to the bar a few years out of finishing Law School, having worked as a solicitor or a judge’s associate or whatever, but to set up your own sole practice law firm – I just don’t think you would have the network of contacts to even get a client base, to be honest.

I really enjoy the long-term game – this life is long, life is long, and you’ve just gotta stick at it.

Samara: It sounds like a great goal. And are there any advantages, and to counter that challenges, that stand out for you in having your sole practice?

Shaun: Look, I joke with people – but I’m actually serious – I say I work well in a team as long as I’m the only person in the team. Because, I don’t have any support staff, I’ve got no business partners, I’ve got no junior lawyers working for me, so I just get on with it. And it’s not that I’m a control freak, but I feel if I had to start delegating work and explaining it, and then correcting it, with junior lawyers – I may as well do it myself. So – I like the freedom and flexibility of working, practicing, in a sole practice law firm. If want to get into work late no one’s there to say where or why are you in late; or if I want to… you know, it just just gives me the flexibility in the end and I don’t have to confer with anyone on negotiate with anyone I just get on  it, which which is really… which means I’m not like a lot of other law firms who employ junior lawyers and leverage off them to make money off them, because really anything I invoice goes to me, but I’ve got to cover all the expenses as well. 

But I’m not making money by leveraging of other lawyers – but, I don’t care because it’s not all about the money: it’s about the freedom, and the flexibility and doing it may own way, which is what I like. 

Samara: Thank you. We were talking about – before the interview started – the arts and entertainment community is obviously experiencing very unique challenges at the moment resulting from the Covid-19 pandemic. Can you talk to some of the legal challenges that are currently being faced by artists and creative in the industry?

Shaun: Yeah, well, in the case of films and TV productions, but let’s focus on narrative drama films. All productions have stopped at the moment – I understand Neighbours are doing a bit of shooting in a very sort of novel way – but generally all film and television productions have been stopped in their tracks. Now, my job as a film lawyer in getting all the contracts ready for the production, are done in what’s called the pre-production stage of the film which is generally the 10 weeks leading up to the actual photography production of the film. Now, because all of these productions have been stopped dead in their tracks, and have shooting that’s been delayed until much later in the year at the earliest – there’s not the work to do in the pre-production stage. So there’s that aspect.  Now, that just trickles down into the whole industry: actors who were lined up to do work aren’t getting employed; all the crew don’t have jobs and they’re often freelancers who work from job to job; people who were potentially going to invest in films because they themselves have been smashed, they might even be relatively well-heeled potential investors that… I had one who – obviously I won’t say the name – but they own a shopping centre in Queensland and that’s been completely smashed. So they were potentially going to invest in a film with a six-figure sum, and then they had to withdraw the investment that hadn’t been paid yet, just because they’ve suffered financially. 

So, no-one’s immune, or hardly anyone’s immune from, from the financial impact of the Coronavirus. And it’s also affected film distributors, because film distributors distribute films to cinemas and of course all cinemas have been closed, and then that affects all of the casual staff at the cinemas. It just ripples out everywhere, it’s just been an absolute disaster – and that’s just the film industry. If we talk about other areas of the entertainment industry like… the head of productions: closed; the Comedy Festival: closed; the St Kilda Film Festival: that’s going to go online in June; the Melbourne Film Festival’s been cancelled. All the international film festivals like the Cannes Film Festival which is usually held in the middle two weeks of May, obviously that’s not going ahead – and on it goes. 

So it’s just had an amazing, terrible, ripple effect on the industry – even think of the comedy festival being shut down, you know that affected all the performers, it affected the producers of the shows, the support staff, the venues, and then that leads into the whole hospitality industry because a lot of the entertainment industry – such as when the Comedy Festival is on, or the Melbourne Film Festival is on – that draws people to the city, they all go to restaurants and cafes and bars, so it’s all… all just one big disaster to put it mildly.

Samara: Yeah, it’s definitely been quite… it’s been very devastating.

Shaun: I’d imagine for students at Melbourne University, including the Law School, a lot of the casual employment in hospitality and entertainment in the arts have been affected.

Samara: Yeah, absolutely. It’s definitely highlighted the far-reaching impact to just one industry, and also showing how important it is.

Shaun: Yeah! But, the other thing I should quickly mention – well, I don’t want to go into the details of the JobKeeper program – but you’ve got to be employed as a casual at least 12 months. People like actors and freelance crew whether they’re cinematographers or editors or you know. They were employed job-to-job, they haven’t been employed for 12 unless it’s something like a TV series like Neighbours or Home and Away but generally on film and TV Productions no one’s working for 12-months, you’re working maybe for like 3-months so that means one of the criteria of JobKeeper – that you’ve got to have been a casual employee for at least 12 months – so people who work in the Arts industry are disadvantaged by that. Just to add salt for the wound, you know, as if it wasn’t bad enough.

Samara: Oh, yeah, absolutely – and it’s important to be aware of, exactly as you say, how people in this industry don’t fit this mould that has been a lot of other industries.

Shaun: Correct, correct. 

But look as a film lawyer, I should just add what government funding bodies like Screen Australia are planning on doing while there’s not a lot of production happening is putting more money into the development of film and television programs going to the development of, you know, writers writing scripts and you know allowing people to maybe option the film rights in various books. 

So  I have, and I will continue to have, work coming from the development stage of the production – that’s not the pre-production, that’s just when the scripts are being written and the project’s being developed. That’s kind of on a much smaller scale work I have when the film or television production’s actually being produced. 

But development work still has to happen, and we might get some very good scripts out of this – because people have time to just sit and write their scripts, develop their projects, and let’s see what comes out of that,

Samara: Yeah I definitely hope that people have been able to get the creative juices flowing, even though it’s hard when there’s little stimulation ‘cause you’re not doing very many things.

Shaun: I know, I know. I saw the film, the Sam Mendes film 1917, a few months ago when cinemas were still open and I thought – god, this happened over 100 years ago, and I’m thinking with the coronavirus in 100 years’ time I think they will still be talking about this, and reflecting on it, and writing about it in books and making films and TV shows. It sort of, you know, it’s of the time and I don’t think it is going to be forgotten very quickly at all. I think it’ll just feed into the culture for a very, very long time.

Samara: I agree for sure. On a different note – technology has developed at a much faster rate than the laws that govern technology…

Shaun: That’s true.

Samara: … And I wondered how this, if it does, impact the way in which an entertainment lawyer is or a film lawyer is providing advice?

Shaun: Well, I think one of the main points about technology developing faster than the law is previously before the digital age, it was very difficult to pirate. If you wanted to see if film it was either on at the cinema or you watched it on TV, basically, or you might have got it out on the old VHS and then DVD system. But now, it’s so easy to pirate films with the technology that’s out there that that is something that is very hard, you know, for the law to control. Even though copyright law says very clearly, you know, ‘if you pirate you are breaching copyright’. That’s the law, but then there’s the actual what’s going on out there in the suburbs or in the city, you know, about people pirating films.

I think piracy has been curtailed a bit lately because people realise they can consume films very inexpensively and at a time they want, so it’s almost not worth their while to pirate films. But, it’s still, it was, and it has been an issue at least for the last 20 years. And another issue is having films geo-blocked so you can be – as I understand it, I’m not a techy –  but you can Geo block the internet so film that say are only shown in Australia, and not beyond the borders of Australia but then, or films might only be shown in the United States and theoretically people in other territories can’t access that until the films are shown in other countries, in other Territories. The people have this thing – you’ll probably know this because you look like you’re a millennial – people have this thing called a VPN. Have you heard of that? 

Samara: Yes.

Shaun: It’s a way – it’s the way you can circumvent geo-blocking. Every time the technology is there to sort of help enforce copyright law by having, by making sure people don’t breach copyright and make unauthorised access – the technology then jumps ahead another step. It’s like a game of cat and mouse, the technology jumps another step and you know copyright can be breached easily so… Yeah, I just think it’s partly cultural as well, I mean people feel – you know if they steal sort of loaf of bread from the bakery that’s theft, but if they download a film for free people generally don’t feel they’re stealing anything because they’re not depriving anyone else of that. There’s one loaf of bread that you steal, but if you download a film you’re not depriving anyone else from downloading that film whether they pay for it or not. I think, you know, there’s been campaigns by industry bodies just try to change that culture but maybe, I don’t know, I watch millennials watch those ads and they just laugh at them – so, you know, what can I say – 

Samara: I definitely remember those ads from DVDs back when I was a kid, and they terrified me – I never wanted to pirate hahaha. But yeah, it’s really interesting what you say about culture and the fact but somehow we’ve developed this idea that it’s permissible, or it’s a bit cheeky but as you say it’s not comparable to stealing food or something like that.

Shaun: Yeah, or maybe the electronic products in JB Hi-Fi or something… But also with the law what’s interesting is in, back in sort of maybe 15 or 20 years ago and before then, people would, you know, actors would give their consent to be in a film so the film could be shown in certain media – let’s say theatrically and on television, maybe DVD, and maybe Airlines. But then with developing technologies and new media platforms coming around all the time, the wording was changed in film contract – so rather than referring specific media it just says, ideally it says, ‘all media, whether known or later devised’. In other words, every sort of few years, or yeah, every few years or every five years there’s another media platform that seems to come along. 

Recently we’ve had VOD video-on-demand, all the streaming services and all of that. So rather than being caught –  like what what they have now in film and television contracts is whenever referring to maybe it doesn’t specifically stay certain media such as cinemas, televisions, DVD, and Airlines – it just refers to all media whether now known or later devised.

Samara: Mmm, you’ve got a one-size-fits-all there. You’ve had, already, an extensive career in this industry – do you have any advice that you’d like to give to law students who hope to pursue a career in this industry?

Shaun: Well, when you’re a student at law school I would recommend doing subjects copyright law and media law, but also it’s just good to have some – a good foundation in basic things like contract law and employment law. By the way I should state – I do employment contracts all the time, and I never did employment law while at university. Nothing’s – nothing’s essential but really – even though I said I’m like a glorified contract lawyer, a lot of those contracts are employing people whether they’re actors or crew or a music composer. But certainly, it’s important to know about the fundamentals of contract law and to do subjects like copyright law and media law. But, you know careers go in all sorts of directions and sometimes you’re ahead and sometimes you’re behind and I just say – the race is long and in the end it’s only with yourself because, you know, serendipity takes a big part in developing your career – you’re working somewhere, and suddenly by chance you meet someone else who says they’re looking for a, you know, to employ someone in their media department and… you know, you’ve just gotta keep yourself open to the possibilities and opportunities that are out there and, as I said earlier, a compass will always find it’s true north.

You’ve also realise that if you want to work in entertainment law as a lawyer there’s a lot of different aspect you can work in: you can work in private practice, a smaller law firm that has a media department, you can work in one of the big mega firms like Allens and Mallesons, and then you can work in the government – for example you could be a lawyer at Film Victoria which is the Victorian state government film funding body; or you could work at Screen Australia which is the federal screen funding body, or you could work in house of a network, be it the ABC have a whole bunch of lawyers who work there, SBS has a whole bunch of lawyers – and so do networks: Foxtel has in-house lawyer, 7, 10 and 9 have in-house lawyers. So there’s all of that as well – an alternate law job can actually be a legal and business affairs jobs, so you know, there’s so much – you could work in private practice, you could work in a government position, you could work in house somewhere… also a lot of larger production companies engage an in-house lawyer. Companies like Matchbox pictures and Princess and Madman Entertainment – they all have in-house lawyers as well. 

So, don’t just think that being an entertainment lawyer, you’ve got to work in the law firm – there’s other avenues you can go down to be an entertainment lawyer that don’t involve just working in private practice. 

Samara: Excellent, thank you.

Shaun: You could also go to the bar, I forgot to mention that. Because barristers specialising in intellectual property… there’s a whole entertainment and media law aspect that often filters into that as well. So, a career at the bar is something else that would be an option. 

Samara: Yeah, all those options are very inspiring and hopefully people who listen to this can think a bit more broadly or outside the box about what they do.

Shaun: Yeah! But it’s kind of like… often, you know, careers are really like a game of snakes and ladders because sometimes you’re in a good position and you’re enjoying your work but for whatever reason politics in a firm can change, or whatever, or sometimes you’re working in private practice filling out timesheets and – and you’re enjoying it, but then after 5 years you just get sick of it! And you just think: you know what, it would be better at working in house within an organisation like a private production company or within a TV network. When I was at Marshalls and Dent, I was very happy there and I left on really good terms, but it came to the point where the adolescent grows up and wants to set up their own law firm. And the same thing can happen – if you’re working in a private practice filling out timesheets you might be very happy in that environment, but then maybe after 5 years you think you know what I want to change I want to work in house at a production company or a TV network where, you know, the culture’s different and you move onto that. So, nothing’s forever – you’re not sort of, you know work shouldn’t be a prison sentence, it’s not a prison sentence, you can leave whenever you want to and, you know, as you go along sometimes careers only make sense after many years out of Law School and you look back and you draw the different elements together – which is what I did because I had been at Mallesons, I’d been at the ACCC, I’d worked in the film industry itself, and then I drew all those elements together with my law degree and my commerce degree to be a film lawyer. 

So, you know, it’s very hard to plan ahead because you don’t know how life is going to unfold.  

Samara: Advice for us all! 

Shaun: Advice, that’s right. 

Samara: Shaun, it’s been such a pleasure talking with you about your career. I’ve got one last question for you, which is: do you have an all-time favourite legal TV show or film that you want to share with us?

Shaun: Well, LA Law from the late eighties, I’ll have to say that one. 

Samara: Excellent.

Shaun: I’ll throw in Boston Legal, have you heard of that show?

Samara: I’ve heard of it! Haven’t seen it. I’ll have to do that while we’re at home.

Shaun: Yeah, yeah, it’s like – it was, you know, back before you could x50 viewing, doing it on TV was like an appointment viewing. You either watched it or taped it. 

Samara: Alright, well thanks once again Shaun for joining us!

OUTRO

Samara: You’ve been listening to The Brief with FAME LSA. This episode was hosted by Samara Jones, the theme song and sound was produced by Leah Alysandratos. A very big thank you to Shaun Miller for chatting with us. Special thanks to Leah Alysandratos and Coco Garner Davis for producing both the podcast and transcript. Thanks also to all the FAME LSA committee members and ambassadors for their support. And thanks to you for listening! If you want to hear or learn more about FAME LSA, like us on Facebook and Instagram, or visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing or entertainment space and want to get involved with FAME, we’d love to hear from you. Send us an email at general.famelsa@gmail.com.

(C)opyright Chronicles with Kris Kotwicki

The Copyright Chronicles is a series of interviews with creatives from different backgrounds, focusing on their practical experience of copyright law. For our second installment, Caiti from FAME chatted to Kris Kotwicki from Creative Artists Law.

Before becoming a lawyer, Kris worked as a Senior Artist in the computer games industry for a major publisher. Kris specialises in information technology law, intellectual property law and telecommunications law, negotiating for and against the largest multi-nationals, banks and law firms in the world on deals whose values ran into hundreds of millions of dollars. Kris also advises on film law for productions both large and small. Kris has a Juris Doctor of Law from the University of Queensland as well as a Bachelor of International Business. He was admitted as a Solicitor in January 2007 and enjoys 2D and 3D illustration as well as photography.

What are the most common copyright issues you encounter in the video game industry?

Perhaps unsurprisingly issues around ownership of copyright are the most common issue that we encounter. Copyright is a form of intellectual property, which itself is a form of property, and that can, of course, be a highly valuable asset.

Developing a game is an increasingly expensive proposition and therefore the exploitation of a game’s intellectual property is of central importance to a game being successful.

Integral to this, is owning the rights in the game and having the proper legal arrangements in place. This is especially important because the development of a game is often a collaborative effort, so invariably multiple people are involved as well as multiple works. Where you have many moving parts, and sometimes, especially when starting out, an absence of the proper paperwork, it’s not hard to end up muddying the waters around copyright ownership. An ensuing copyright dispute can really grind a project to a halt, resulting in significant litigation costs and put at risk substantial investment.

In a similar vein, a developer may also feel that third parties are infringing on their copyright, or conversely, some third party may claim their copyright is being infringed by a developer. A lot of these issues stem for the generally poor understanding of copyright that exists in the broader
community.

How does intellectual property work in game development?

From a legal perspective, intellectual property plays a central role in game development and is one of the key areas of negotiation in many contracts that relate to game development. It really goes to the core of game development because a game itself is always composed of intellectual property, both in its contents and the tools used to develop it. Intellectual property is also relevant at all stages of the game development cycle, from pre-production right through to use by the end-user, it really is the life-blood of computer games development.

How do indie game developers and bigger software developers differ in trademark law?

The approaches taken by developers will tend to depend on their resources and how much they are willing to allocate to proactively safeguarding their intellectual property.

Registering trademarks is a time-consuming process and there is a cost associated with it that can quickly rise depending on how many trademarks, classes and territories a developer is looking to register trademarks in. A larger developer is likely to have more in-house resources to devote to addressing trademark protection at an earlier date as well as to enforcing their rights once registered.

The issue for small developers is that, where they do not take proactive steps, they can end up investing quite a lot of time and resources in branding their game without having checked if there are potential trademark conflicts. Depending on how far down the road they are, that can then be a costly and time-consuming process to rectify and they may find themselves embroiled in a lawsuit as a result.

So the key is really to plan ahead, which, even for small developers, can avoid many issues.

Why should developers sign a contract before starting work on a game?

It’s always best to get the paperwork in place before you start on a project because it will help everyone who is signing to crystallize their thoughts and intentions. Absent a written contract, there’s a higher risk that misunderstandings may exist between the parties and you may be forced to rely on, for instance, an oral contract that can be difficult to prove.

Many misunderstandings may not be readily evident when starting out because of many of the ‘what if’ scenarios that a written contract pushes the parties to contemplate will not otherwise be front and centre in people’s minds on day one.

Of course, some people will put off getting the paperwork in place either due to cost or not wanting to focus on it initially. One reason is that few people want to be thinking about legal issues such as termination rights when they are just starting out—after all, who wants to sit around thinking about divorce scenarios at the start of their marriage? What band wants to be thinking about splitting up when they are just forming?

You’ll be glad, however, that you did get the paperwork in place if you do end up having a dispute down the line. The cost of putting in place a contract will also pale into insignificance compared to the costs of potential litigation down the road.

Hopefully, of course, you go on to great success, and many of the provisions of the contract remain theoretical scenarios, however, just like taking out an insurance policy, it’s great to have something that can be turned to if the worst does happen.

How many problems can be solved by writing a basic contract between developers before starting development on a game?

A basic written contract will substantially lower your risk profile with respect to intellectual property issues. A contract is at its base level allocation of risk between the parties and if the parties have taken the time to negotiate that and sign off on it then you have a document that
can be turned to in the event of any dispute. This is invariably a better position than relying on, for instance, an oral contract that is harder to evidence.

It will, of course, depend on the specifics of the contract and how well it is drafted. A basic contract for a complex scenario isn’t necessarily going to address all the finer points between the parties, and such over-simplification can create its own problems. A common issue we see is that people write their own contract, perhaps by pulling something off the internet, they then think it means one thing when in fact it means another. It’s also of critical importance not just what is in the contract, but what is not. To that end, a little bit of knowledge can be a dangerous thing. The devil can be in the details with respect to intellectual property. Therefore it’s important then that the contract is tailored to the circumstances.

How do non-competition clauses affect employees who start an indie studio?

Non-competition clauses can be restrictive to employees who want to start their own studio. It’s important to note though that such clauses can be drafted in such a way that their scope is too wide and they are too-restrictive (effectively stopping someone from earning a living) and in those sorts of situations they may not be enforceable. It will depend on the drafting of the clause so if in doubt, have a lawyer review your employment contract so you can see where you stand.

How accessible is copyright law as it applies to video game developers?

It’s not particularly accessible. There are a variety of resources on the internet that go over the basics of copyright law, and they can be of some use in helping to acquire some understanding of the law. Despite this, however, in our experience, we find a lot of people carry a lot of
misconceptions about the actual law. Ultimately this comes down to the fact that copyright law is complex and you have to be careful not to apply the wrong law to your situation, for instance, it’s pretty common to see people mistakenly assume that elements of US copyright law, such as fair use, apply the same in Australia.

The nature of the games industry and IT industry is also that technology is constantly pushing forward and invariably the law is trailing a few years behind, so it can it be a challenge sometimes for games developers to ascertain how the law applies to their particular circumstances. New technologies, such as for instance, VR, AR or AI open up new issues.

In the end, the complexity of the law and the nature of the industry means it’s best to use a legal professional, not least because it will free up your time to focus on the actual game.

What is the difference in IP requirements between game developers vs publishers?

A publisher is going to be concerned with making sure they can distribute a developer’s game with the least amount of issues possible. They will not want to be sued by third parties for any failures of the game developers (such as the developer breaching some third party’s intellectual property), therefore their contracts will be centred around lowering their risk in relation to this. This, in turn, ties in the intellectual property clear title requirements of developers because they need to ensure they own or have proper licensing arrangements in place for any intellectual property that features in their game and that this is the case with any subcontractors who work on the game. In this way, the developer should seek to flow-on the risk to the relevant parties. Publishers, when distributing games also have to contract with consumers so will have legal considerations and contracts to put in place to govern those relationships as well.

Are there any ways you think copyright law can be improved to suit your practical experience?

I think copyright legislation can certainly be simplified to make it more accessible to the layperson. It’s worth noting though that copyright law is regularly being reviewed to see how it can be improved. Sometimes that can be challenging because copyright law also has to balance the interests of a variety of parties which may not always be aligned, so, for instance,
what is an improvement in the law for an author of a work may not be the case for an online platform if it, for instance, makes their business unworkable. In the end, these competing interests need to find a happy medium and the law is always striving to strike that balance.

How does Australian Consumer Law influence the video game industry?

Australian consumer law grants consumers a number of rights which are applicable to the video game industry given that they sell games to consumers, this also applies to online platforms to sell games to consumers. These rights are in excess to what you will find in some other countries, such as in areas such as refunds. So it’s imperative that businesses comply with those obligations and the ACCC has taken businesses to task in the past to ensure compliance.

How has the change of technology (the way we consume video games on mobiles etc.) affected the law around it?

As games become more technologically advanced and as society becomes more interconnected online there are inevitable legal ramifications and the ensuing need to update the law to keep abreast of those changes.

Games have come a long way since the days of playing PAC-MAN on an Atari console in the 1980s. Take, for instance, an AR game today that scans your room and your face, there are interactions with a privacy law that come into play. If you play a mobile game where you capture virtual creatures in the real world, you may find yourself interacting with property law issues such as trespass. As VR worlds grow in complexity, we have to also consider the ability for crimes to be committed in those worlds, and so criminal law can come into play.

These are all considerations that will have to be taken into account by those who draft the law. As it stands, the law trails technology by a number of years given that laws have to be drafted and enacted. Those doing the drafting have to have a solid understanding of new technologies in order for the laws to have a proper effect and avoid having unintended consequences. It is also a costly and time-consuming process for many companies to adapt their systems and ways of working to new legal frameworks, so care must be taken in drafting.

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