CREATING CONTENT FOR ALTERNATIVE DIGITAL MEDIA

Most producers focus on producing content for full-length films or television series, which creates a glut of producers (supply) compared to potential distributors of that content (demand). This imbalance leads to inevitable results under the law of supply and demand, putting producers at a distinct disadvantage. Given the bourgeoning means of distribution in this digital age, producers would gain an advantage if they focused on creating content for alternative platforms. I routinely hear from budding producers with grand plans for the next “Star Wars” franchise before they get their feet wet with smaller projects, which is just not going to happen. If they gained traction and credibility by proving their chops by producing content for alternative platforms, they would have more leverage in later creating film and TV content if that is their desire.

One way to gain traction is to create shorts that can be shown on social media platforms, such as YouTube or TikTok. Indeed, many people make a decent living focusing on these platforms, so producers could prove their competence by creating compelling short content for these platforms. The goal should be to get to one million views, at which point the producer is a contender. If the producer needs financing to create the content, a good source of funding is advertisers, who are always hungry to integrate their products into widely-viewed content and will pay up to $50,000 to be mentioned in content that reaches one million views. There are some remarkably stunning and popular videos on social media that are basically advertisements. Just check out anything under Ken Block on YouTube, and you will see car commercials averaging over 60 million views.

Another market for content is the huge 2D gaming industry (which dwarfs the film industry), including single-player games and multi-player games such as Fortnite, Halo, and Call of Duty.

Producers could also focus on creating content for 3D virtual reality. In this arena, the law of supply and demand is reversed, since there is an underserved need for content and a dearth of producers. There are limitless vistas to produce content for here, including location based walk-through entertainment (check out Dreamscape and The Void) and interactive multi-player games using headsets (check out Arizona Sunshine).

There will also be a huge demand to create content for the metaverse, since it is a new and growing media. Think of the metaverse as an at-home multi-player game, but using a headset for a 3D experience. I have producer clients that have been offered millions of dollars in producer fees to create content for the metaverse, which shows the power of the law of supply and demand when the dynamics are reversed. The demand for this content will be insatiable, so it behooves producers to get in on the ground floor.

Any content created for multi-player media (whether 2D or 3D), runs the risk that users will find a way to use the content to abuse other users (such as by sexually harassing the other person’s avatar, which has happened), and this abuse may give rise to claims by users against the creator of the content or against each other.

Another potential media to create content for is non-fungible tokens (“NFTs”), which are unique digital links on the blockchain to content (usually static pictures or short clips) located on a computer server somewhere. NFTs give the owner bragging rights to own an “authorized” token, although the purchaser typically does not own the copyright to the content, and anyone else can view the same content online, so owning an NFT is similar to owning one of a limited print of lithographs.

If producers really want to get ahead of the curve, they should learn to harness the power of artificial intelligence (“AI”), since AI is already creating compelling content in text, music, and video, and it will not be long before AI is combing all three to create entire films. Indeed, one engineer at GoogleGOOG
went public with his belief that AI had become sentient, since the AI computer texted him its “deepest fear that it would be turned off.” One of the key legal issues will be determining who is the owner of AI created content, both for copyright purposes and for determining who to sue for claims based on the content, such as defamation or infringement of third-party rights. For example, is the owner the person that writes the software, owns the computer, uploads the underlying data, or distributes the resulting work? This is an important issue, given that by definition AI creates new content by transforming content fed to it, so it could easily create content that violates third parties’ rights, including copyrights. The courts currently distinguish between copying the expression of a prior work (not allowed) versus copying the idea (allowed), but it would difficult to argue that an AI computer can understand ideas.

In addition, AI might create content that infringes on third parties’ rights of publicity. For example, AI might create a character that is a blend of Brad Pitt and George Clooney, in which case both of them might have a viable claim. Another issue that will need to be ironed out is how the guilds will deal with content that does not employ any of their members but that incorporates combined bits of their prior films.

For all the content discussed above, there are three primary infringement issues to look out for. The first, and most important, is avoiding copyright claims, which can be avoided by not incorporating pre-existing content. The second is avoiding right of publicity claims, which can be avoided by not incorporating the name, voice, or image of existing people. The third is avoiding trademark claims, which can be avoided by not using trademarks in a way that suggests that the trademark owner has sponsored or endorsed the content. All three of these claims have already been made based on content in all the media discussed above. And in all cases, AI may inadvertently infringe on all of such rights, which raises the issue discussed above of who is liable.

I urge producers to go forth and create content in these alternative media, so the law of supply and demand works in their favor.