Ian Cooper is an associate at Stohn Hay Cafazzo Dembroski Richmond LLP, a boutique entertainment and copyright law firm based in Toronto.

They’re low budget, lighthearted and the flavor of the month, but if you think mobisodes are easy to make, you’re in for a surprise.

With shorts based on popular television series already available (24, The Simple Life and Degrassi: The Next Generation), producers and broadcasters are scrambling to figure out what to do with this new format.

So far nobody is making much money, and many would argue that these pint-sized productions serve little more than a promotional purpose – that they’re a novel form of advertisement designed to sustain the interest of a fickle audience.

Nevertheless, when deals are made with cell phone providers, Apple’s iTunes Music Store and other emerging platforms, money starts to flow. When it does, it has to go somewhere.

Whether you’re interested in ‘repurposing’ existing episodes for new media or producing mini episodes from scratch, you’ll have to balance the desire of your talent to be paid for their work with your own desire not to spend too much on a project that might not generate much money.

In either case, you will likely be talking to the creative guilds.

A public war erupted south of the border when Disney unilaterally decided to pay home-video residual rates – which are one-quarter of pay-TV rates – to members of the WGA, SAG and the DGA for its sale of previously aired TV shows on iTunes.

The Hollywood unions responded by issuing public statements and threatening legal action.

The issue is playing itself out in a quieter fashion on this side of the border.

With the expiration of the independent producers’ collective agreements with the WGC and the DGC at the end of 2005 and the pending expiration of their agreement with ACTRA at the end of this year, new media rights are receiving plenty of attention among producers and the guilds.

If you’re not bound by any collective agreements, none of this is a problem. If you can make a deal with your talent, the story ends there.

But if you’re a guild signatory, you face two challenges. First you need an agreement with your talent. Then you will probably need to get the guilds and your producers’ association (the CFTPA or the APFTQ) to sign off on it.

The reason for this is that the principal guild agreements have potential gaps and ambiguities in addressing the full range of online and wireless rights a mobisode producer might want. As a result, producers are often required to make a customized deal with the guild and the CFTPA/APFTQ as to how talent will be paid for those rights.

This places you and your creative team in the middle of some tricky labor negotiations.

While you may be thinking about a single project, the guilds and your producers’ association are concerned about setting a precedent and having to live with the outcome for the next three years.

The result is that it can often take longer to come to terms with key talent for a series of mobisodes than for a big-budget television series.

Nevertheless, if you’re looking to base a series of newly produced shorts on an existing television series, you have an inherent advantage over those making up their deal from scratch. A good starting point would be to try, to the extent possible, to shoehorn your new agreement into the structure of your existing guild agreements for the underlying series.

In doing so, everybody involved will need to take into account the different realities of producing in this new format, such as lower production budgets (even on a per-minute basis) and the large number of mobisodes that may be shot in a single day.

Even in the face of what you may see as a generous offer, there are still two problems with which the guilds need to wrestle.

You probably can’t predict all of the means by which you’ll want to exploit your mini episodes. Will they appear online, be sold on iTunes, be available for cell phone downloads, be included on series compilation DVDs, or be broadcast on conventional television?

It’s difficult to decide in advance, and quite naturally, you will want to secure all of these rights.

For guilds that are used to restricting rights to specific media and requiring payments for additional ones, this is a hard proposal to accept. They may be reluctant to grant everything you ask of them.

A second problem is the duration of the rights you’re seeking. Users of mobisodes, such as websites and cell phone providers, may be interested in long-term licences.

However, the guilds want to ensure that their members get some of the money if the project is commercially successful. One way of doing that is by giving you a short-term licence and requiring you to pay more if you want to extend the term.

All of this can make for a lengthy negotiation.

While every deal is unique, it’s fair to say that if you’re a guild signatory who wants to make mobisodes, you should plan to spend some extra time working out your agreement with the CFTPA/APFTQ and the guilds.

By doing so, you can avoid a lot of frustration, as well as the unpleasant prospect of beginning production without having a deal in place.

The good news is that as the market for these short productions develops, we can expect a resolution between the guilds and the producers’ associations to find its way into the collective agreements.

But until that happens, it’s safe to say the battle south of the border and the ongoing discussions here will be with us for some time.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)

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