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Copyright Interview Photography

Back to School: How a Pulitzer-Winning Photographer Took Copyright Law into His Own Hands

For most creatives, when faced with the pervasive problem of litigating infringement of their work, the solution is to hire a lawyer. For photographer Earl Richardson, the solution was to become a lawyer himself.

A former photojournalist, Richardson experienced the decline of the newspaper industry from the inside. At the beginning of his career, when the industry was thriving, he shared a Pulitzer Prize with the photography staff at the Kansas City Star, for their coverage of the city’s tragic Hyatt Regency walkway collapse in 1981. Years later, as director of photography for The Topeka Capital-Journal, he couldn’t even get basic expenditures approved.

“I couldn’t hire stringers. I couldn’t buy supplies,” he told CreativeFuture from his home in Lawrence, Kansas. “After two years of that, I thought, ‘You know what – enough. I’m just going to go work for myself.’”

Richardson became a commercial photographer specializing in education marketing for colleges and universities. His honed documentary approach was perfect for candid shots of student life, and he thrived – but somehow it wasn’t enough. “I just was bored,” he said. “I decided I needed a challenge and I wanted to go to law school.”

Specifically, Richardson wanted to go to law school to study intellectual property law. He had recently tried to print a commemorative poster featuring imagery of his alma mater, University of Kansas, and had become embroiled in a dispute over trademarks. “I wanted to be able to protect myself should something like that become an issue again,” he said. “My wife said, ‘You know, it probably would have been cheaper to just hire an attorney.’ But it wouldn’t have been as much fun!”

That was how, in his late 40s, Richardson became a copyright lawyer specializing in photography cases involving online infringement. He has since let his license lapse, freeing up more time to shoot photos, but still has a lot of good advice for photographers trying to protect their works in an era of rampant internet piracy. Sheltering in place at his home in Lawrence, Kansas, he was happy to offer up that advice and plenty more, during a wide-ranging conversation covering digital vs. film techniques, his pursuit of a 150-year-old photography technique, and what it felt like earning journalism’s highest honor while still a student.

JUSTIN SANDERS: I imagine it must be tough for a photographer during the pandemic, Earl, because you can’t get out and shoot things. How are you holding up?

EARL RICHARDSON: This should be my busy time of year because a lot of what I do is education marketing for colleges and universities. So, every bit of work I had between now and June is gone. JS: Are you able to scratch the creative itch anyway? ER: Yeah, I shoot something every day. Usually, it’s my grandchildren, who I still see a lot. I try to document their lives. [Laughs] I would guess that my oldest grandchild, who is nine, has had more pictures made of him than any child in the royal family.

JS: Do you still do photojournalism?

ER: I moved on from journalism about 17 years ago. I’m not in that game anymore, thankfully. It became a much harder game to play.

JS: How so?

ER: Newspapers went from being more of a public trust to being super concerned about profits. The last newspaper job I had was director of photography for The Topeka Capital-Journal, which had a great reputation for photojournalism. It was family-owned but then they sold it to a company that was mandating a profit margin of 37 and a half percent. Most newspapers at that point were probably in the 10-15% profit range – so, what would happen was that all of our expenditures would be frozen every month. I couldn’t hire stringers. I couldn’t buy supplies. Finally, after two years of that, I thought, “You know what – enough. I’m just going to go work for myself.” And pretty much everyone I know who was in the business with me back then have either left it of their own volition, or they’ve been laid off. The industry is just a shell of what it was 20 years ago. It’s very sad.

JS: You’re a lifelong resident of Lawrence, Kansas. What was it like growing up there?

ER: Lawrence is one of those places you can’t wait to get out of while growing up, and then once you move away you think, “Hey, that wasn’t so bad.” It’s a great little university town that is located about 25 minutes from the office of the Capital-Journal, which, before I ended up working there myself, really influenced me as a youth. It had probably the best photo staff of any newspaper its size in the country.

JS: How did you become interested in photography?

ER: My dad was a chemist and he had a dark room at home, and one day, when I was about 12 years old, he handed me a camera, an old Argus C3, and a roll of film. He showed me how to load it and how to read a light meter and I just started shooting pictures… and then I was introduced to the dark room.

I remember the first time I saw a print from a negative I had shot come to life in this tray, just magically appearing out of nowhere. I just knew from, from that point on, that I wanted to be a photographer. I took photos for my junior high yearbook, then both my high school yearbook and newspaper, and then I started working in newspapers in college. I got a summer internship at the Capital-Journal, and they liked me, so I stayed on and worked part-time during the school year. About a year after I graduated, a job opened up there, and they offered it to me.

JS: What was your beat?

ER: I did a lot of college sports. Living in or near a college town, it’s a huge thing. College basketball in Kansas has a life of its own.

JS: Sports photography feels like an especially difficult pursuit to me because the human movements you’re trying to capture are so fast and unpredictable. It’s hard even now, with the advent of digital and all the conveniences it offers. What was it like shooting high-octane sports action with traditional film cameras?

ER: You were really limited, comparatively. The fastest black-and-white film they made at the time would still have to be pushed a couple stops, meaning you’re basically under-exposing and over-developing the film to reach a fast enough shutter speed to stop the action.

And, of course, all this was before auto-focus existed, so you had to develop your skill to be able to follow the action, keep it in focus, and shoot it. I remember going to a highway and just sitting in a field with a telephoto lens and practicing as cars came towards me and went away, learning how to follow focus and making it muscle memory.

And then you had a 36-exposure roll of film, so you always had to be mindful because if something was going to happen, you had to reserve film. Nowadays, you can go out with a 128-gig memory card and shot hundreds or thousands of frames in a burst. We used to be limited to five or six frames a second, and you could only shoot for six or seven seconds, and then your roll of film was gone.

At one point, I shot for an agency that used to be called Allsport, before it was acquired by Getty Images. I was getting ready to go to my first assignment for them, a Nebraska-Oklahoma football game, and they Fed-Exed me 20 rolls of 36-exposure film. I remember thinking that I didn’t know how in the world I was going to shoot 720 frames at a football game. Now, with the equipment available, you could go out and sneeze and shoot 720 frames.

JS: The ease of capturing high-quality images caused me to stop posting to Instagram – it just felt like any picture I uploaded had probably been taken by a million other people, and probably taken better. I imagine if I’m experiencing that kind of insecurity, what must a professional photographer be dealing with?

ER: That’s one of the reasons why, about five years ago, I got into wet-plate collodion photography. It’s a 150-year-old process that involves both taking the picture and developing it onsite. It’s very labor intensive. With wet-plate, if I’m going to make somebody’s portrait, I have to spend some time thinking about what I’m going to do, how I want to light it, and how I want to compose it. The process lets you make a picture about every 10-15 minutes – it really forces you to slow down and be more contemplative about what you’re doing, which is really, really nice.

JS: While working for the Capital-Journal, your team won a Pulitzer Prize for their coverage of the 1981 Hyatt Regency walkway collapse in Kansas City. What happened there?

ER: The Hyatt Regency had this atrium lobby where, every Friday evening, they had these tea dances with a lot of retirees and a band playing. There was a walkway that went across the atrium and there was some sort of design flaw. Too many people were on it and so this huge concrete walkway collapsed onto a crowd of people. I think around 180 were killed. It was incredible carnage.

I was an intern at the Kansas City Star at the time. It happened on a Friday night, while I was back here in Lawrence. I’d only been married a few months and I was visiting my wife, who was in school here. I didn’t get word of it until the next morning.

I didn’t ever physically make it into the Regency but I had a photo or two of the subsequent funerals that made it into the coverage that we shared the Pulitzer for.

JS: What is it like winning a Pulitzer?

ER: You feel kind of guilty in a way – that this award you received is for a tragedy that you covered. The best part was seeing at a young age what it takes to do journalism at that level. I just remember seeing how complete the coverage was, how comprehensive. These were consummate professionals doing the best work they could do.

JS: Somehow, during your busy career as a Pulitzer Prize-winning photographer, you also found time to earn your Juris Doctor from the University of Kansas Law School. How did that come about?

ER: I left newspapers in 2003 – and I was really successful and really busy, but then, after about a year, I just was bored. I decided I needed a challenge and I wanted to go to law school. One of the cool things was, after I got accepted, my oldest daughter also applied, and she got accepted. So, my oldest daughter was one of my law school classmates!

JS: You ended up studying copyright law – what sparked that interest?

ER: The year I decided to apply for law school was the same year that the KU’s storied basketball arena, the Allen Fieldhouse, celebrated its 50th anniversary. I wanted to contribute by taking some photos of it and having a commemorative poster printed.

But instead of printing the poster, the printing company requested I talk to KU and make sure I wasn’t in violation of anyone’s copyright. So, I went to do so, and ended up talking to the Kansas University Athletics Department, where a person who was in charge of trademarking threatened me. He said, “If you print this poster, we’re going to sue you.”

I thought I knew what my legal status was, but it was the tipping point toward going to law school. I wanted to be able to protect myself should something like that become an issue again for me, or someone else I knew.

[Laughs] My wife said, “You know, it probably would have been cheaper to just hire an attorney.” But it wouldn’t have been as much fun! I really enjoyed law school.

JS: Did you practice law after you graduated?

ER: When I went to law school, I had no intentions of practicing – I really didn’t. I thought I would do it for three years, pass the bar, come back out, and shoot photos again.

But there was a local civil firm that was interested, and they hired me to clerk, and then offered me a job. [Laughs] As soon as I accepted the job, I regretted it. The only law I was interested in practicing was intellectual property, and we were doing everything but that.

JS: Did you ever get to practice copyright law at the professional level?

ER: Yeah. I left the law firm in 2010 and went back into fulltime commercial photography. Later, I crossed paths with a lawyer named Carolyn Wright, who was getting into wildlife photography. She was interested in hiring me for some of her copyright-related cases but didn’t have enough of them at the time. Then, two years later, she emailed me out of the blue, saying, “We’ve started a firm called photoattorney.com. Are you interested in coming on board?”

And so, from 2012 to early 2016, I worked as a contract attorney representing photographers for Carolyn’s law firm. All of my clients were either photographers or picture agencies and everything was on contingency – if I didn’t collect for a photographer on an infringement, I didn’t get paid.

JS: What kind of cases did you handle?

ER: Typically, we would get involved after a photographer had already contacted an infringer and requested an unlicensed photo be taken down and payment for the usage. Ninety-nine times out of  hundred, that initial outreach would be sufficient, but sometimes the infringer would write back, saying, “I’ll take the photo down, but if you think I’m going to give you any money for it, you’re out of your mind.” That’s when the photographer would call us.

So, I would then send out a cease and desist letter, and make a monetary demand, and hopefully get them to settle without going to trial. Because one of the sad truths about copyright infringement is that so many of these infringements are of such low economic value that a lot of times it makes no sense to even go to trial over them.

It’s one big reason why there’s been this push to come up with a copyright small claims court via the CASE Act, which I think would be a wonderful thing.

JS: Too bad the CASE Act is being held up in Congress by Senator Ron Wyden. We’ve talked a lot about how the rise of digital has affected the art of photography – have you seen it affect infringement online as well?

ER: Oh, absolutely. When everything is digital and infinite numbers of perfect copies of your work can go around the world in a heartbeat, it seems to me that the law really needs to catch up with the technology. The DMCA’s notice-and-takedown is just a crude cudgel to wield, and it can’t compete when there is so much misconception about what’s in the public domain, and what isn’t. When I was practicing, I felt like major portions of my time were spent talking to attorneys for the infringers, who would say, “So, what you’re telling me is, if I go on vacation with my digital camera, and I shoot a picture – at the moment I press that button and that picture is recorded on a flash card – there’s a copyright?”

I would say, “I’m not making this up – read the law!”

JS: That’s so distressing that even many lawyers don’t understand how copyright works. 

ER: Society in general just doesn’t have any respect for intellectual property. I have a friend who is totally against copyright. He said, “If you put it out there, everyone should have access to it, and then that gets you exposure, and then people will come to you and pay you to do work.

I told him, “Those are the words of somebody who has never created anything that anyone else wanted.”

JS: We like to conclude these conversations by asking the interviewee for advice for someone aspiring to work in their field. But with your background as a lawyer, I’m curious if you have any legal advice for aspiring photographers?

ER: Photographers can oftentimes be their own worst enemy regarding copyright. One of the big issues is, you must always register your copyright to be able to litigate on it. The registration needs to be timely – within three months of first publication – to be able to receive attorney fees and statutory damages or actual damages. If your registration isn’t timely, you can only recover actual damages – typically lost licensing fees – and you can’t receive attorney fees from the infringing party.

So, if you’re going to put stuff on the internet, or if it’s going to be published and you think there’s any chance that it’s going to have some value and someone’s going to take it, you should register that copyright in a timely fashion!

JS: Okay, give us some creative advice, too…

ER: Shoot every day. Don’t be afraid of making mistakes. I didn’t get into this to get rich, but because I loved it. If it’s something you love to do, do it. Do it as often as you can and don’t listen to the critics.

One of the things that I think young photographers think is, “Wow, I have to travel to faraway, exotic places to make nice pictures?” Nope. There are stories to be told everywhere. I tell young photographers, tell the story of your family. Just start there. You don’t have to travel afield to be able to do that.

Everybody has a story to tell. Tell it.

This article was originally published in Creative Future.

 

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FICCI Frames 2020

FICCI Frames Day 5 : Putting Covid Behind Us: The Way Forward

E-Frames 2020 concluded on July 11 with a valedictory address by Mr. Piyush Goyal, the Union Minister for Commerce and Railways. Opening the session, Ms. Sangita Reddy, President, FICCI, gave an overview of the rapid strides India’s media and entertainment sector has made in the last few years. She said that India produces the largest number of films in the world, has improved its gaming and animation capabilities, and that many international studios now use Indian talent. Siddharth Roy Kapur, President of the Producers Guild of India, said that these were strange times for the media and entertainment sector. He added that while, film and TV production has come to a halt, people’s appetite for entertainment has only grown. High viewership numbers on TV and OTT platforms are proof of this increase in consumption.

Mr. Kapur said that these  “very tough times” required government support. “Our industry in India requires capital and while we understand that government can’t give us capital, it can help us get access to it,” he added. In the long run, Mr. Kapur said, that India’s screen density needed to increase. “At present there’s a lot of disparity. Some cities that oversaturated with movie halls and there’s a woefully inadequate number of screens in others. Government support to address this problem might herald a renaissance,” he added.

Mr. Kapur also spoke about issues of self-censorship on OTT platforms and easing the process of shooting films in India. He said that…

..OTT platforms gave content creators an opportunity to create web series and TV shows that were at par with global standards.

To ensure that such creativity flourished, he advocated for self-regulation by the industry, rather than a centralized regulator. Mr. Kapur added that to ease the process of shooting films in India, states should offer incentives to the industry and offer single window clearances. It’ll help boost tourism and popularize Indian destinations abroad, he added.

Mr. D Suresh Babu, a leading producer of Telugu films, agreed with Mr. Kapur and said it would be helpful if there was one ministry in each state and at the Centre that dealt with creative businesses.

World is now divided between before-Covid and after-Covid: Piyush Goyal

In his valedictory address, Mr. Goyal acknowledged that the media and entertainment industry was hit severely by the Covid-19 crisis. But, he added, that…

..this was also an opportunity for the sector to think out of the box, redesign frameworks of doing business and come up with new ways of filmmaking.

He gave the example of animated movies, and said that these have potential to do better than traditional films. Mr. Goyal also thanked the film industry for spreading awareness about the COVID-19 disease and the ways in which people can protect themselves. The time now, he said, is to move towards opening up and resuming business activities with all protective measures in place.

Mr. Goyal agreed that a lot more needed to be done to ease the process of shooting movies in India.

He urged FICCI to spearhead the process of creating a single form that could be sent to multiple agencies to grant film permissions and added that his ministry will facilitate the process.

Mr. Goyal also asked the industry to consider building an online platform that whistleblowers can use to highlight piracy. He added that the Ministry of Electronics and Information Technology (MeitY) can also help the industry to back such a venture. Other measures to curb piracy could include an increase in penalties and a tightening of existing rules.

On self-regulation of OTT platforms, Mr. Goyal said that he was in favour of creative freedom but it can’t be an excuse to portray India in poor light.

Mr. Goyal underlined that any self-regulation must ensure that the cultural ethos of the country is maintained.

Finally, Mr. Goyal urged the industry to consider providing a social security net to the people it employs. “There must be some effort to offer minimum wage, healthcare, pensions and insurance to the 26 lakh people who the industry works with, directly or indirectly. It would be useful to create a database of such people to ensure that everyone gets a fair wage,” he said.

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FICCI Frames 2020

FICCI Frames Day 4 : At the heart (and wallet) of the matter

“A vibrant content market benefits the national economy. The investment that goes into producing TV shows & movies helps drive jobs, wages & trades”

 -Trevor Fernandes, VP Govt Affairs – APAC, Motion Picture Association

The Protection of intellectual property (IP) is essential for the creative economy, as creators and producers depend on effective monetization for revenue. It assumes a central role as exclusivity of content is the unique selling point on any platform. In this context, the session on “Ensuring a Fair Marketplace for the Creative Economy in a Digital First Marketplace,  moderated by Vivan Sharan, Partner, Koan Advisory looked at the creative economy’s challenges and how to solve them. The session compared developments in countries like the United States and South Korea to gauge the standard of IP protection in India.

IP Priorities and Approaches:

Jehil Thakkar, Partner and Leader, Media and Entertainment, Deloitte kicked off the session by launching a new report ‘Economic impact of the film, television, and online video services industry in India’. The report recommends sustaining the Ease of Doing Business push in the country via incentives, subsidies and strong enforcement measures. Mr. Fernandes appreciated the government’s initiatives to accede to the WCT and WPPT by the World Intellectual Property Organisation and the proposed amendment to the Cinematograph Act. He added that the government should align domestic law with international principles, strengthen access to IPR protection and penalise infringement.

Deepti Kotak, Chief Legal Officer, Media Businesses, Reliance Industries Limited said that…

she is excited about new technologies such as geo-blocking, watermarking and fingerprinting, which protects IP.

Anil Lale, General Counsel, Viacom18 Media Private Limited distinguished between regulation on legacy media vis-a-vis digital media. He said that while digital platforms arrive at pricing based on market principles, overregulation in legacy broadcasting has stifled the freedom of commercial negotiation. Lale added that as a consequence, digital platforms are surging while niche content on television is dying a slow death.

Ameet Datta, Partner, Saikrishna & Associates clarified the difference between the legislature’s and the judiciary’s roles in formulating IP policy.

He said that the courts interpret laws and Parliament’s objective should be to keep them broad enough and, at the same time, provide definitional clarity.

Priyanka Joshi, IP attorney with the Indian Music Industry said that the Copyright Amendment in 2012 led to more concerns than solutions. Taejin Lee, Regional Director for the Philippines at the Korea Copyright Protection Agency said that even in South Korea collaboration between stakeholders and government is prioritised.

The Way Forward:

Mr. Fernandes’ view is that the next challenge to effective IP protection will be to find a balance between privacy on platforms with end-to-end encryption and enabling content creators to obtain fair value for content. Mr. Lale reiterated the need to align with the global regime on IP enforcement as well as the need to tackle piracy effectively. Mr. Datta said that Indian courts have been creative in finding solutions to tackle piracy, referring to the recent order by the Delhi High Court on IP infringement. The Court passed a dynamic injunction allowing content owners to approach the Registrar of the High Court to block different URLs of the same pirate. Ms. Joshi said that it is imperative to foster amicable relations between stakeholders in the sector for a free-flowing licensing and royalties regime. In South Korea, the KCPA is looking to draft a legislation similar to the Music Modernization Act in the USA, Mr. Lee said.

Key Takeaways

  1. There is good reason to evaluate the need for a central agency for copyright enforcement in India, to implement John Doe Orders, the Infringing Websites List and dynamic injunctions.
  2. Despite the creative industry lagging behind countries like the US and South Korea, global best practices need to be monitored and implemented where necessary.
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FICCI Frames 2020

FICCI Frames Day 4 : A Bumpy Ride Overseas

The success of movies like English Vinglish and Masaan across the world is proof that there is tremendous appetite for Indian cinema. The Sridevi-starrer told the story of a homemaker whose family mocked her for not knowing English. On a trip to New York City, Sridevi’s endearing character used her earnings from selling laddoos to secretly enroll for English language classes and emerges triumphant. English Vinglish received a five minute standing ovation at the 2012 Toronto International Film Festival and was one of the top 10 Bollywood grossers overseas that year. Masaan, an Indo-French co-production that shed light on caste-based violence in small town India, won praise at the Cannes Film Festival in 2015. However, the success of these unconventional movies is an exception rather than the norm. A lot needs to be done to break the perception that Indian movies are long, melodramatic marathons filled with song and dance.

Story, finance and visual design: foundation of success.

At E-Frames 2020, a panel of distributors and producers from India and the world came together to discuss Taking Indian Content to Global Markets. These included Ganesh Rajaram, EVP Sales ‑ Asia, Singapore, Fremantle International, Guneet Monga, Chief Executive Officer, Sikhya Entertainment, Alan R. Milligan, Chief Executive Officer – White Rabbit, Colin Burrows, Chief Executive Officer, Special Treats Productions, Francesca Manno, Chief Executive Officer,  Summerside International and Anna Katchko, Founder & Chief Executive Officer, Tandem Productions. Stephan Ottenbruch, Festival Director, Indo German Film Festival moderated the discussion.

At the outset, Ms. Monga said that it was important to differentiate between stories that worked in India versus those that have a universal appeal. She added that producers of movies that have the potential of attracting audiences across the world, should be mindful of the film’s visual design, finance structure and storytelling style to give them a global appeal.

Ms. Monga also said too that co-productions play a major role in a film’s worldwide success. “Take Lunchbox, for example. It was able to break a lot of barriers because it was an Indo-French co-production,” she said.

Distinct genres, scripted shows and good marketing

Ms. Manno said that her’s is a small international films sales agency which looks for very specific and distinct films. The reason Summerside International doesn’t feature Indian movies on its list, is because it hasn’t found an independent producer in India who makes the kinds of films she scouts for, she said. Ms. Manno added that Bollywood productions are very commercial, and don’t fit into the editorial line her agency has adopted. The genre of films too has to be clear.

“Dramedies or black comedies are not easy to sell,” Ms. Manno added. “Clear genres help us target the film to a specific audience.”

Ms. Katchko added that sometimes, it was difficult to know which Indian films would work in the international market. In Russia, a big consumer of Hindi cinema, she added that some distributors had shut shop because they found movies to be too long. “Another problem is that there are multiple big events in India, and it is difficult to distinguish which one will be useful for us. Instead, there should be just one or two big international events people from overseas find useful,” Ms. Katchko suggested.

Mr. Rajaram of Fremantle International, which produces shows like India’s Got Talent and Indian Idol, said that his company’s focus is now more on scripted shows because they have a longer shelf life, especially on VOD platforms.

He added that so long as a show’s story is good, it doesn’t matter which language it is in. “My Brilliant Friend, for example, was an Italian show that aired on HBO+. In China, we had a bidding war for it. So scripted stories, told by people of their own countries, are the future,” he added.

Rajaram added that the marketing of films needs to focus on stories, not stars. “The marketing of English-Vinglish focused entirely on Sridevi, which completely missed the point,” he said. “My Chinese wife saw the movie and loved it. She had no idea about the actors in the film but she loved the story.” Mr. Burrows agreed with him and added that a star-centric marketing strategy may work in India but abroad, it will not.

Key takeaways

  1. Encourage the role of creative producers who will identify appropriate projects, structure stories and improve the film’s production design to appeal to global markets
  2. A movie’s marketing strategy overseas should focus on the story, not the star.
  3. Host only a couple of big international events with clear mandates, rather than multiple ones with unclear agendas. This will attract international producers, distributors and sales agents to scout for potential partners.
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FICCI Frames 2020

FICCI Frames Day 3 : To Be or Not To Be

“The basic approach of TRAI in regulation has been a light-touch one. We believe that the market is the best determinant of products and service”

-R.S. Sharma, Chairman, TRAI

FICCI-EY’s 2020 Report on the M&E sector states that the New Tariff Order increased end-customer prices for television content, reduced the reach of certain genres of channels and resulted in a 6% reduction in the time spent watching television. This session on “Regulating Creativity: Overcoming Legacy Challenges to Shape the Future of M&E”, brought together perspectives from office-bearers who regulate various aspects of the sector. Moderated by Mr. Vivek Couto, Executive Director & Co-Founder – Media Partners Asia, the session looked at the role of each regulator, whether these roles should evolve with technological developments and how successful regulation in the sector has been.

Regulatory roles:

Ajit Pai said that his role as Chairman of the Federal Communications Commission is to ensure swift and widespread adoption of the ATSC 3.0 TV broadcasting standards, the latest WiFi 6 technology and 5G.  He anticipates competition between new avatars of content such as Virtual Reality, Augmented Reality and Gaming and traditional content in the future. R.S. Sharma, Chairman of the Telecommunications Regulatory Authority of India stressed that India’s regulatory priorities revolve around optimal use of public resources and democratised content creation in the sector. Other areas of focus include ensuring an even playing field and the best available viewing experience to the consumer.

Atul K. Tiwari, Additional Secretary, Ministry of Information and Broadcasting (MIB), said that his ministry is prepared for the discretionary expenditure that may happen post-Covid. He added that the MIB is in the middle of important decisions such as slashing license fees for wired broadband to Rs 1, releasing an AVGC Policy, and regulatory reform in TV and radio broadcasting. At the same time the I&B Ministry is collaborating with other departments/ministries on important issues such as the Champion sector scheme, infrastructure status and IP protection. Jyoti Jindgar Bhanot, Secretary (I/C) at the Competition Commission of India (CCI), distinguished the role played by her organisation. She said that the…

..regulatory approach to technology should appreciate how each technology changes market power and efficiencies in the sector and seek to sensitize the market on the rules of the game.

Light-touch or not:

The TRAI Chairman addressed criticisms levied against the NTO for being overly prescriptive. He responded that TRAI’s role is to protect consumer interest and ensure orderly growth. He added that the NTO regime repealed genre-wise price ceilings on channels and struck the right balance between consumer choice and sectoral health.

Mr. Pai said that for the FCC, light-touch means a relaxation of traditional regulatory structures and unshackling market players, allowing them to compete.

On his often criticised stance on net neutrality, Pai added that digital convergence warrants a transition from the model that pre-empted market failure and imposed controls towards a holistic view. Ms. Bhanot and Mr. Sharma  also expressed the view that preemptive regulation is unnecessary and that regulation should follow market failure.

Mr. Tiwari confirmed that discussions with VOD players on content regulation is progressing according to the mantra of light-touch regulation.

He added that industry players were given 100 days to come forward with a self-regulatory model for themselves. The I&B Ministry is looking at best practices on the issue he said.

Key Takeaways: 

  1. Regulation should be in harmony with the marketplace and facilitate integration with newer technology. Consumers should be the primary beneficiary of technological developments.
  2. The role of the I&B Ministry is to reduce disputes, create more jobs, facilitate the creation of world-class content and work in tandem with other institutions. The need for a specific regulator for the sector will be evaluated.
  3. From the perspective of competition, regulatory intervention should be proportionate and timely; seek to correct not disrupt.
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FICCI Frames 2020 Uncategorized

FICCI Frames Day 3 : Balance of Power

“An online platform takes the film where the audience is and  serves the passion to get our production before our people and not get pushed back in the pipeline.”

-Mr. Vikram Malhotra, Founder – Abundantia Entertainment Pvt Ltd

The release of Shoojit Sircar’s film Gulabo Sitabo on a streaming platform was a watershed moment for the film industry. Multiplex chains PVR and INOX heavily criticised the decision to theatrical run of the film, which starred top drawer actors  like Amitabh Bachchan and Ayushman Khurrana.

To discuss this development, stakeholders from media and entertainment sector sat together at E-Frames 2020 to discuss whether OTT platforms and movie theatres can co-exist. Participants included Shoojit Sircar, the director of Gulaabo Sitaabo, Vikram Malhotra, Founder Abundantia Entertainment Pvt Ltd, Mr. Saugata Mukherjee, Head of Original Content – SonyLIV, Mr. Carter Pilcher and Chief Executive Officer – Shorts TV, UK. Film directors Madhur Bhandarkar and Ram Madhvani were also part of the panel, moderated by journalist Taran Adarsh.

Impact of COVID19 on theatrical release

The panellists welcomed the positive response to the release of Gulabo Sitabo and hailed it as a successful experiment. Mr. Malhotra said that online platforms help take the film where the audience is.

For example, Gulabo Sitabo got access to 200 markets at once.

The move also make economic sense as films can be released on time and everyone in the value chain can be compensated without delay.

Mr. Sircar agreed with Mr. Malhotra and said that deferring the release of Gulaabo Sitabo until August would have led to uncertainties and losses. He gave the example of Angrezi Medium, which ran only for three to four days before a complete lockdown was imposed. He added that this concern got pronounced for those who make one film at a time and channel the profits from one production to the next. In contrast, directors who make multiple films simultaneously have the flexibility to delay a particular release.

Advantages of release on OTT platforms

Mr. Mukherjee added that globally big films are now launched on OTT platforms.  These have opened up a new form of distribution and for certain films, OTT will be the first window.

Mr Madhvani added that OTT was benefitting both filmmakers and audiences. The former can time their releases and the latter can watch movies they like, at their own convenience.

Unlike theatrical releases, where a single Friday can determine the fate of a film, online platforms offer a way for continuing the life of a movie. Filmmakers get more creative freedom and there are no compulsions to marketing songs to promote a movie.

Popular genres and relevance of star cast 

Mr. Mukherjee pointed out that recently thrillers have done well on OTT platforms. He warned against “over indexing” a particular genre because other genres haven’t been tried much and, therefore, the statistics might be misleading. Mr Carter explained that in the US, it is family animation that is most successful. Moreover, the popularity of films is director-led. On the contrary, Mr. Malhotra explained that in India, familiarity with a star offers reassurance to the audience and attracts fans. Mr. Carter pointed to the success of Whiplash and Mr. Mukherjee agreed with him that OTT services provide the chance to experiment with, and create, new talent.

OTT and theatres can coexist

That said, the panellists agreed that this is not a new normal but a pandemic-induced situation. The decision to use online platforms is a tactical one until movie halls reopen. Mr. Mukherjee said that the industry will continue to make films suited for both, as some films are better suited for theatrical experiences.

Mr. Carter, suggested a revenue sharing model between theatres and OTTs as a solution to keep the theatres alive.

Key takeaways

  1. OTT services and theatres can coexist. The recent decision to release the film over an online platform was driven by the lack of choice due to the pandemic.
  2. Some films are better suited for theatrical releases and others for digital platforms.
  3. There are several advantages to online releases. These include more control over the  release of film to the filmmaker, more distribution choices, access to audience in different markets, less editorial cuts and the ability to experiment with stories and new talent.
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FICCI Frames 2020

FICCI Frames Day 3 : In Conversation with Aaditya Thackeray

The entertainment industry is self-evolving and people are getting a glimpse of “humane side” of their idols, according to Aaditya Thackeray, Maharashtra’s Minister for Tourism, Protocol and Environment. He was in conversation with Anant Goenka, Executive Director of The Indian Express group, on Day 3 of E-Frames. Mr Thackeray added that previously, people would only see the glamourous side of film stars and celebrities. The rise of social media has now allowed them to see the hard work and stress that goes into the making of their alluring lifestyles. Mr Thackeray also said that the rise of VOD services has provided additional insights.

“Entertainment is self-evolving and can be consumed on the move. During election campaigns, I often watch cricket games on Hotstar.”

COVID-19 in Maharashtra + India-China tensions

The conversation moved onto the Maharashtra Government’s handling of the COVID-19 crisis, tensions between India and China and the role of the press. Mr Thackeray said that Maharashtra’s cases were high because of the focus on aggressive testing, tracing, identification and isolation. He added that social media played an important role in helping deal with the crisis. “People who I never knew would tag me in their Twitter posts [about others in distress]. That was quite helpful because we could help them,” he added. On the current India-China crisis, Mr Thackeray said that was a “need to reassess and hold back” on sponsorships and endorsements from China. He added that the Maharashtra Government had put on hold investments from China and was in constant touch with the Union Government on the matter.

“When it comes to matters of national interest, we have to
stand together as one country.”

Migrant crisis and Maharashtra’s response

Then to the government’ handling of the migrant crisis and the emphasis on jobs for locals. When asked about his party’s stand to give preference to locals, Mr Thackeray said…

“If two people have the same skill set and one of them is a local, then he should be given preference. Otherwise, we are not averse to giving jobs to those who come from outside [Maharashtra]”.

He said that the government provided accommodation, three meals a day and train tickets to the 6 lakh migrants who worked in Maharashtra and wanted to go back home. He added that the government was working on a plan to bring them back so they could resume work and contribute to the state’s economic growth.

Key takeaways:

  1. Entertainment is self-evolving and can be consumed on the go.
  2. Maharashtra is not averse to giving jobs to outsiders provided they have skill sets not supplied by locals.
  3. Stand firmly and united behind the Central Government over response to China.

 

 

 

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FICCI Frames 2020 Interview

FICCI Frames Day 2 : A Fine Balance

The government granted industry status to the Film sector in 2000. Back then, the overall revenue generated by the sector was USD 1.3 billion, and Indian films were largely a domestic affair. Since 2013, India has produced the highest film output globally and, in 2019, 350 Indian films were released abroad generating a total USD 332 million.

In such a scenario, the session ‘The Era of Smart TVs and Interconnected Home Devices Needs Smart Regulations’, moderated by Ms. Vanita Kohli-Khandekar, contributing editor Business Standard, focused on regulation of the M&E sector. The issues discussed included the necessity for regulation and who should regulate which aspect in the sector.

To regulate or not to regulate and what to regulate:

The panellists came to the consensus that technology will outpace regulation. On one issue, however, Adam Rumanek, Founder and CEO of Aux Mode, a digital rights management company, departed from his Indian co-panellists. His view was that some sort of regulation, such as strong measures to combat piracy, is necessary to guarantee a return on investment to content creators. While others agreed that piracy is a serious issue, they said that in India, the regulator’s obsession with pricing regulation is debilitating the industry. Megha Tata, Managing Director – South Asia, Discovery Networks, said that businesses are already struggling to keep pace with changing consumer needs and the new normal triggered by the Covid-19 pandemic.

To compound matters, they  are also burdened with overreaching regulation that disrupts business models even further. 

The primary objective should be to deregulate to a common minimum, according to Vynsley Fernandes, CEO, IndusInd Media and Communications Ltd. He added that the new consumer does not want to see more regulation. Further, it is “absurd” that within a household, one has to view a censored version of a show on TV, while the uncensored version is available on OTT. Avinash Pandey, CEO, ABP News Network, contextualised this in news broadcasting. He said that consumers can access content banned by regulation on WhatsApp and Twitter. Pandey suggested that regulation should accord primacy to the creative freedom of people, even as it enforces the basic minimum standards agnostic of technology.

Unsatisfactory process and outcomes:

The Indian panellists expressed their disappointment with regulatory processes and the laws policing content. The Telecommunications Regulatory Authority’s (TRAI) New Tariff Order, which ushered in content pricing and bundling, came under heavy criticism. This is over and above the maze of permission regimes that businesses have to navigate to make even the smallest change. As a result, the industry gets severely throttled, according to Ms. Tata. She emphasized that no country has prescriptive regulation on MRP of channels, broadcaster – distributor agreements and bundling. In fact, TRAI regulation runs contrary to all available evidence, she said. Ms Tata cited a survey from the Netherlands, which showed that 98 percent of TV consumers prefer channel bundles, to back her claim.

Another point of agreement among the panellists was that industry-led self-regulation should be the ‘new normal’.

Mr. Rumanek opined that other countries, too, are moving towards such a model, while Mr. Pandey cited the Broadcast Content Complaints Council and the News Broadcasting Standards Authority as exemplary models for regulation.

Key takeaways: 

  1. A light-touch regulatory approach with emphasis on industry-led self-regulatory mechanisms. To achieve this, TRAI’s role in regulating broadcasting needs review and reconsideration.
  2. Evolve a new common minimum of compliances to achieve regulator parity and a level playing field.
  3. Regulation is welcome on digital platforms, as long as the focus is on issues like investment protection, piracy and facilitating value generation.
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FICCI Frames 2020

FICCI Frames Day 1 | Light-And-Tight : Regulation Mantra For Media And Entertainment

At a time when the media and entertainment industry will be worth Rs.2.4 Trillion in 2022, the session at FICCI Frames 2020 on “Shaping the Future of M&E in Today’s Digitalised and Information Driven Economy” brought stakeholders from the sector together. Representatives from print media, cinema, VOD platforms, radio and the TV industry discussed the future of regulation in the sector with Amit Khare, Secretary, Ministry of Information and Broadcasting.

Adapting to new technologies:

Despite the differences in distribution technologies, Mr. Karan Bedi, CEO, MX Player and Punit Misra, CEO, Domestic Broadcasting, ZEE Entertainment, agreed that there is a structural shift in the manner in which people consume content. Accurate and reliable data is available today on the number of consumers because it is possible to measure the number of smart TVs and mobile phones, according to Mr Bedi. Earlier, TV viewership was a rough estimation based on the number of TV households which was multiplied by 4. Mr. Misra emphasized that consumer behaviour requires a nuanced understanding of content’s audience. According to him, audiences prefer to consume different kinds of content across contexts.

It is possible that the show they watch on an airplane or at home alone, may not be the same that they view with their families.

Content creators acknowledge this at the stage of content creation, discovery, packaging and marketing.

Mr. Shekhar Kapur, a veteran film director, said that…

..technology outpaces both regulators and content creators.

The challenge for content creators is to remain relevant as newer and more immersive technologies are used in the M&E sector, he added. Mr. Ajit Mohan, Managing Director, Facebook India, said that technology has also disrupted the dichotomy between content producers and consumers. He added that 4G and social media platforms have democratised content creation and consumption.

Level playing field:

Mr. Khare stressed that the government has sought to adopt a regulatory approach that is both light and tight.

As a result, the number of compliances will be reduced but their enforcement will be maximized. This is in line with Prime Minister Narendra Modi’s vision of ‘Minimum Governance, Maximum Government’ and the efforts over the last six years to improve ease of doing business in India.

Mr. Girish Agarwal, Promoter and Director, Dainik Bhaskar Group, highlighted that print media and news aggregator regulations differ from each other. His remarks were in the context of the 26 percent FDI cap on print media, which didn’t apply to news aggregators. Mr. Agarwal added that these discrepancies must be harmonized to create a level playing field for print media and digital news aggregators, as well as radio and podcasts. Mr. Khare responded by saying that the process to rationalise these discrepancies has already been initiated. However, he assured the panel stringent regulations will not apply on all platforms/mediums.

Key Takeaways: 

  1. The Ministry of Information and Broadcasting, Ministry of Finance and NITI Aayog are agreeable to grant infrastructure status to the broadcasting sector. For this, stakeholders should arrive at a common understanding on what infrastructure will be covered within this definition.
  2. Technological changes will outpace regulation, so it would be optimal to create a negative list of prohibited activities, just like Singapore has done. Outside this list, any platform or medium can function without other regulations.
  3. Providing a level-playing field is a priority for the government. The government will pursue regulation with a light-but-tight approach, instead of adapting the least restrictive standards to all media.

 

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FICCI Frames 2020

FICCI Frames Day 1 : Inaugural Session Overview

The 2020 edition of FICCI Frames, India’s largest convention on the media and entertainment industry, began today in digital format, E-Frames. The inaugural  panel discussion focussed on the Role of the Creative Economy to Revitalise Economic Growth. Anurag Singh Thakur, Minister of State for Finance, Sangita Reddy, President, FICCI, Sanjay Gupta, Chairman, FICCI’s Media and Entertainment Division, Uday Shankar, Senior Vice President, FICCI, and Vincenzo De Luca, Italy’s Ambassador to India, participated in the discussion. Prakash Javadekar, the Minister for Information and Broadcasting, delivered the inaugural speech.

In his inaugural address, Mr Prakash Javadekar, assured the media and entertainment sector that the government will be its “partner”. He listed a slew of measures the Modi government shall announce take to help the sector. These include a standard operating procedure to shoot films in a post-covid scenario, incentives for TV serials, films, animation and gaming. Mr Javadekar added that more than 80 foreign film producers were provided with a single window clearance to shoot their movies in India. “Given India’s cost advantage, of 40-60 percent, for producing the same quality of content as advanced countries, we can achieve stupendous results if we work together.” He said the government stood shoulder to shoulder with the industry to help it achieve its objectives.

In her opening remarks, Ms. Reddy stressed the importance of the media and entertainment sector’s soft power, and said that FICCI has helped the sector grow many folds. She said that the organization has given input to the film production policies of Odisha and Madhya Pradesh and will do the same for Chattisgarh. Ms. Reddy highlighted areas in which the government can help to ensure the sector’s growth. This includes a five-year tax holiday, a new system to measure television rating points (TRPs), and a national centre for excellence in animation and gaming. She also added that the sector will contract significantly due to the coronavirus pandemic — a view shared by other panel members.

Mr. Shankar, senior vice president of FICCI and Chairman of Star India, said that advertising revenues for print and television had declined considerably. He added that this crisis presented the industry with an opportunity to wean itself off the ad revenue model. Mr Shankar said that consumers need to pay for what they consume and content subsidisation, via advertising, needs to change. Mr. Sanjay Gupta added that advertisement revenues for newspapers would decline by 50-90 percent. He also said that 20 percent of the workforce would be rendered jobless, as a result of this pandemic.

A common consensus amongst the panelists was that the time was ripe for India’s media and entertainment industry to scale its ambitions. Mr Shankar lamented that regulators and the industry worked together to create hurdles and prevent the sector from unlocking its true potential. This, he said, needed to change because the content business has now gone global.

India should emulate the examples of Turkey and South Korea — countries that have successfully exported their content.

Mr Shankar added that India’s content “lacked ambition” — something that needed to change.

Mr Gupta echoed Mr Shankar’s view and cited the examples of the Ramayana and Mahabharata as stories that captured global imaginations much before the boom in digital media. “Limiting the media and entertainment sector to just economic value, ignores its true potential,” he said. “We need to recognise the true potential and understand that this sector can have multiplier effects.” Mr. Gupta advocated for light touch regulatory approaches, a fragmented approach to taxation and the need to resolve tax burdens on direct-to-home (DTH) services, to help the sector revive.

“We can be a creative powerhouse that can deliver globally. The opportunity is not only to Make in India but also light up the world,” he added.

Ambassador De Luca said that Italy was perfectly poised to help Indian content achieve these global ambitions and added that his country offered tax incentives for film productions.

“In 2008, the Italian government introduced a Film Production Tax Incentive scheme under which companies get a 30 percent tax credit on production expenses.”

In his concluding remarks, Anurag Singh Thakur acknowledged the phenomenal rise of OTT platforms. He added that these could help vernacular language content produced in India find a wide audience and also help bridge the gap between Bollywood and other regional language industries. “Prime Minister Modi said that we must find opportunities in times of crisis. This is the perfect opportunity to demonstrate India’s soft power,” he added.  Mr Thakur urged the media and entertainment sector to highlight stories of Aatmanirbhar Bharat and promote yoga and ayurveda. He added that the Modi government was here to help the sector and urged representatives of the sector to use FICCI as a bridge to reach out to the Finance and Information and Broadcasting Ministries.

The inaugural session of FICCI Frames 2020 can be viewed below.