iTunes Movie Distribution Agreement

59 Pages·2012·0.64 MB·English

CONFIDENTIAL
COVER SHEET
FOR
DIGITAL VIDEO DOWNLOAD DISTRIBUTION AGREEMENT
[UNITED STATES]
Between Apple Inc.
and
Sony Pictures Television Inc.
Apple Contract No. VS
_______________
Please include Name, email address, phone number and fax number for
each contact
Senior Management: Sean Carey, Senior EVP
[email protected]
Operations: Michael Arrieta, EVP
[email protected]
Technical: Joe Arancio, VP
[email protected]
Phone: [phone]
Fax: [phone]
Royalties: Drew Shearer, SVP, Finance
[email protected]
Legal /
Business Affairs: Sony Pictures Television Inc.
c/o Sony Pictures Entertainment Inc.
10202 W. Washington Bl.
Culver City, CA 90232
Attn: General Counsel
Fax: [phone]
Sony Pictures Television Inc.
c/o Sony Pictures Entertainment Inc.
10202 W. Washington Bl.
Culver City, CA 90232
7
Sony Pictures Television Inc.
Apple Inc. (Movie DHE)
(4.28.08)
Attn: EVP, Legal Affairs
Fax: [phone]
iTunes Store
c/o Apple Inc.
1 Infinite Loop, M/S: 3-ITMS
Cupertino, CA 95014
Senior Management: Royalties:
Eddy Cue, VP, iTunes [email protected]
[email protected] [phone]
[phone]
Legal/Business Affairs:
Marketing & Promotions: Kevin Saul, Associate General
Ben Dillon, iTunes Movies Marketing Counsel
[email protected] [email protected]
[phone] [phone] direct dial
[phone] fax
Content Operations, Production &
Design: Matt Railo, Senior Counsel
Robert Kondrk, Director Design [email protected]
and Production [phone] direct dial
[email protected] [phone] fax
[phone]
Matt Burrows, Senior Counsel
[email protected]
Technical:
[phone] direct dial
Brian Larson,
[phone] fax
[email protected],
[phone]
Contract Administration:
Lorrie Bossie, Contract Administrator
[email protected]
[phone] direct dial
[phone] fax
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CONFIDENTIAL
DIGITAL MOVIE DOWNLOAD DISTRIBUTION AGREEMENT
This Agreement (as hereinafter defined) is by and between Apple Inc. ("APPLE"), having its
principal place of business at 1 Infinite Loop, Cupertino, California 95014, and Sony Pictures
Television Inc. (“SPT”), having its principal place of business 10202 W. Washington Bl., Culver
City, California 90232, and is entered into as of the date this Agreement set forth below and is
effective once signed by both APPLE and SPT (the "Effective Date").
WHEREAS, APPLE desires to distribute downloads of certain Movies (as hereinafter
defined) and related materials made available by SPT hereunder; and
WHEREAS, SPT is willing to allow the distribution of Movies on a Digital Home
Entertainment basis, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, APPLE and SPT (collectively the "Parties")
hereby agree as follows:
1. Definitions .
All capitalized terms used herein and not otherwise defined in this Agreement shall have
the following meanings:
(a) “Agreement” means this Agreement (d) “Availability Period” means the time
and the exhibits expressly attached hereto period set by and provided in writing or in
and made a part hereof. In the event of any the Content File (including, without
conflict between the provisions set forth in limitation, in any metadata) by SPT during
the main body of this Agreement and any which Movies provided by SPT are
exhibit, the conflicting provisions set forth available to APPLE for distribution through
in the applicable exhibit shall control. the Online Store, commencing on an initial
availability date specified therein by SPT
(b) "Artwork" means any artwork and ending on the date set therein by SPT,
relating to SPT Content that SPT owns, unless earlier suspended and/or withdrawn
controls or is authorized to distribute for use by SPT pursuant to Section 6(d) of this
or exploitation and makes available to Apple Agreement.
in accordance with this Agreement.
(e) "Content File" means a
(c) “Authorized Version” of a Movie digital file containing SPT Content,
shall mean the version made available by Artwork (if any), parental advisory
SPT to APPLE in SPT’s sole discretion, notices (if any), copyright notices (if
subject to the terms and conditions hereof. any), and associated metadata that
the Parties mutually agree upon in
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writing, or which SPT or its for playback, unless such device is
designees delivers to APPLE acting as a Transfer Device.
hereunder.
(j) “Digital Delivery Home
(f) "Content Usage Rules" Entertainment” or “DHE” shall mean that
means the usage rules applicable to mode of home video distribution in which
audio-visual works in the form of an electronic digital file embodying a
Movies available on a DHE basis via program is delivered to a customer pursuant
the Online Store that specify the to an authorized transaction whereby such
terms under which a Movie may be customer is authorized to retain such
used, as set forth in Exhibit A program for playback an unlimited number
attached hereto and made a part of times.
hereof by this reference, and which
may be modified by APPLE, from (k) “DHE Provider” means any DHE
time to time, subject to prior written provider in the Territory that distributes
approval by SPT (which approval DHE content by way of the Internet.
may be given, withheld or delayed in
(l) “Download” means the delivery of
SPT’s sole discretion).
an encrypted download to a Customer’s
(g) “Customer” shall mean a registered Transfer Device over the Internet using
user of the Online Store authorized by technology currently known as Internet
APPLE to receive, decrypt and play a Movie Protocol in exchange for the Customer Price
from the Online Store in accordance with and the grant of right to use Movies set forth
the terms and conditions hereof. herein. “Download” shall not include,
without SPT’s prior written approval, any
(h) “Customer Transaction” shall means of viral distribution or the delivery of
mean each instance in which a SPT Content by means of “push download”
Customer is authorized by APPLE to (download first initiated by APPLE rather
receive, decrypt and play a copy of a than Customer). “Download” may include
Movie from the Online Store. “pre-ordering” (download requested by the
Customer prior to the start of the
(i) "Device" means any digital Availability Period of a Movie) of an
player device or cellular phone encrypted file by a Customer in anticipation
(excluding use of the over-the-air of a Customer Transaction, provided that
cellular network) employing the such file cannot be delivered, decrypted
Security Solution that is capable of and/or otherwise viewed prior to (i) the start
receiving audio-visual files from a of the Availability Period for such Movie
Transfer Device through a direct and (ii) the completion of a Customer
physical connection or nearby Transaction in respect thereof.
wireless connection (e.g., solely
within the user’s home or over a (m) "Format" means the digital
single local-area network in format for audio and video content
accordance with the requirements set set forth in Exhibit C attached hereto
forth in Exhibit A), for playback of and made a part hereof by this
such audio-visual files, but that does reference.
not allow the transfer of such audio-
visual files with the keys necessary (n) "Fulfillment Activities"
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means APPLE’s activities relating to (s) "Online Store" means the
its distribution and delivery of electronic store which is currently
Movies, Artwork, Clips, trailers or marketed as the “iTunes Store,” or as
other items provided by SPT to may otherwise be uniformly and
Customers pursuant to the terms and consistently branded by APPLE from
conditions of this Agreement. time to time as the case may be, and
wholly-owned, operated and
(o) “Internet” shall mean the public, free controlled by APPLE. The Online
to the consumer (other than a common Store shall not be supported by
carrier/ISP access charge) network of advertising revenue if such revenue
interconnected networks (including, without is directly attributable to SPT
limitation, the so-called Internet, Internet2 Content without written consent
and World Wide Web), each using from SPT.
technology which is currently known as
Internet Protocol (“IP”). Subject to the (t) “Permitted Devices” means Transfer
foregoing, Internet shall not include any Devices and Devices.
cellular network (except as a means to
access the Internet) or private, closed, (t) “Personal Use” means the personal,
intranet or private, closed distribution noncommercial, viewing of a Movie and
network. shall not include non-theatrical exhibition or
any other viewing or exhibition for which
(p) “Licensed Language” for a Movie (or in a venue in which) an admission,
shall mean its original language or, if its access or viewing fee is charged, or any
original language is not English, the original public exhibition.
language dubbed or subtitled in English.
(u) "Security Solution" means
(q) “Megahit Movie” shall mean any the APPLE proprietary content
Movie that (i) prior to the start of its protection system, marketed as
Availability Period has North American Box Fairplay, in effect as of the Effective
Office Gross Receipts of at least U.S. Date, as modified and updated, from
$50,000,000.00 adjusted downward for time to time, during the Term,
inflation in the MPAA average ticket price intended to reasonably protect
in the United States from the year of Movies distributed via the Online
theatrical release; or (ii) has been nominated Store pursuant to this Agreement,
for an Academy Award in a major category which content protection system
(e.g., best actor, best actress, best supporting performs, at a minimum, the
actor, best supporting actress, best director, operations and functions described in
best picture, best original screenplay or best Exhibit H attached hereto and made
adapted screenplay), or (iii) is otherwise a part hereof by this reference and
designated as a Megahit by SPT. shall, at all times during the Term (i)
be no less protective than, and the
(r) “Movie” shall mean a full-length same as, the protection system used
feature film or short film, regardless of what to protect any similar third party
medium such film was first released, made audio-visual content from similar
available by SPT to Apple for distribution third parties, on the Online Store,
on a DHE basis in the Territory. and (ii) offer a level of protection not
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less than the level of protection Movies are first available via the
afforded by Fairplay applicable to Online Store (which shall occur not
Movies available on a Digital Home later than May 1, 2008) (“Initial
Entertainment (a/k/a digital “sell- Term”) and any extension or renewal
through”) basis as of the Effective periods as are mutually agreed to in
Date. APPLE may modify the writing by the Parties or as otherwise
Security Solution, from time to time, permitted by this Agreement, unless
subject to prior written approval by the Agreement is terminated earlier
SPT (which SPT approval may be pursuant to the express terms hereof.
given, unreasonably withheld,
delayed or conditioned in SPT’s sole
discretion before a modification to
the Security Solution may be applied
to SPT Content), except that
(x) "Territory" means the fifty
approval may be given subsequently
(50) states of the United States of
to implementation by SPT in the case
America (U.S.) and the District of
of modifications intended to cure a
Columbia, and all U.S territories,
compromise to the Security Solution
U.S. possessions, U.S. protectorates
(which approval shall not be
and Puerto Rico.
unreasonably withheld, if such cure
meets the level of protection required
(y) “Transfer Device” means an
hereunder), and except that no
individually addressed and addressable IP-
approval shall be required in the
enabled hardware device of a Customer,
event that such modifications cause
which implements the Content Usage Rules,
Fairplay to be more restrictive than
administered by the Security Solution, that
the immediately prior version of
is able to: (i) play Movies (via either analog
Fairplay if such modifications do not
or digital outputs); (ii) store Movies; (iii)
alter the Content Usage Rules or the
Transfer (as hereafter defined) Movies with
level of content protection required
their content rights keys to any Permitted
in this Agreement.
Device (as that term is defined in Exhibit
A); and (iv) is subject to the Content Usage
(v) "SPT Content" means the audio-visual
Rules.
files of Movies made available by SPT to
APPLE for distribution pursuant to this
(z) "Video" or "Movie" means a
Agreement, as more particularly described
copy of SPT Content in digital
in Section 3(c) below, and any Artwork,
format suitable for exploitation on
Clips and other material furnished by SPT or
the Online Store, in the Format and
its designees hereunder.
protected by the Security Solution,
which APPLE has the right to
(w) "Term" means the period
distribute via the Online Store
commencing on the Effective Date
pursuant to the terms and conditions
and continuing for a period of one
of this Agreement.
(1) year from the date on which
2. Authorization; License .
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(c) Platform . Pursuant to the licenses granted in this Section 2, APPLE shall have the non-
exclusive right to offer the Movies on a Downloading basis over the Online Store via
Internet delivery directly to Online Store Customers (up to the resolution specified in
Exhibit C), for the Term and throughout the Territory. APPLE shall not distribute the
Movies on any basis other than directly to Customers of the Online Store. APPLE shall
not syndicate the Online Store or any rights granted under this Section 2 hereof. SPT
acknowledges that APPLE may use non-branded independent contractors, such as, by
way of example, Akamai, to deliver its services, subject to APPLE’S compliance with the
terms of Section 18(b), and such use shall not be deemed a breach hereof. Accordingly,
subject to APPLE’S compliance with the terms and conditions of this Agreement, SPT
hereby grants to APPLE, and APPLE hereby accepts a non-exclusive non-transferable,
non-sublicensable license to:
i. reproduce, store, and Format (as defined in Exhibit C) and encrypt SPT
Content Delivered (as hereinafter defined) by SPT or its designees into
Movies for use and exploitation solely as contemplated under and in
accordance with this Agreement;
ii. subject to Exhibit E attached hereto and made a part hereof by this
reference, perform, display, exhibit and make available, on an Internet
streaming basis, clips of SPT Content approved by SPT ("Clips") without
charge to registered users of the Online Store in order to promote the
availability of Movies on the Online Store, which Clips shall be provided
by SPT;
iii. promote, distribute, display, perform, and electronically fulfill and deliver
the Authorized Version of Movies in the Licensed Language, and
associated metadata, to Customers located in the Territory solely in the
medium of Digital Delivery Home Entertainment via the Online Store for
Personal Use on Transfer Devices and Devices, only during the
Availability Periods for such Movies, pursuant in each instance to a
Customer Transaction and, subject at all times to the Content Usage Rules,
Content Protection requirements and Terms of Service;
iv. display and electronically fulfill and deliver Artwork, provided or
approved by SPT or its designees hereunder, for Personal Use solely in
conjunction with the applicable Downloaded Movie.
APPLE is not authorized to use SPT Content in any manner or form not expressly
authorized herein; provided that APPLE may modify metadata as APPLE deems reasonably
necessary in order to correct errors or to append sub-genres or like information, upon written
notice to SPT, which may be by email; provided, further, that any inadvertent failure to provide
such notice shall not be deemed a breach hereof. Unless expressly agreed upon by SPT in
writing, the rights granted herein do not include the right to distribute Movies in high-definition,
up-converted or analogous format. Nothing in this Agreement shall be construed to prevent SPT
from marketing, selling or distributing SPT Content by any means. SPT expressly reserves all
rights in and to the SPT Content, subject to the terms and conditions hereof. No right, title or
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interest in any Downloaded Movie shall be deemed transferred to Customers of the Online Store
as a result of any downloading or copying, or otherwise, other than the grant of rights to use the
Movies for Personal Use in accordance with the terms of this Agreement and the Terms of
Service. APPLE shall not pledge, mortgage or otherwise encumber any part of the SPT Content.
(d) Availability; Distribution Commitment . SPT shall make available, and APPLE shall
license from SPT hereunder the right to distribute (and all rights appurtenant thereto, as
expressly granted herein), all Movies that are available for distribution on a DHE basis in
the Territory; provided that SPT agrees to make available to APPLE for distribution
hereunder each Movie first released on DVD during the Term as such titles may be
cleared for delivery via the distribution means authorized pursuant to this Agreement.
The Availability Period for each Movie shall start no later than the date on which SPT
makes such Movie generally available for DHE distribution in the Territory; provided,
however, that the start of the Availability Period for each Movie first released on DVD
during the Term that meets the criteria specified above shall be no later than the date on
which SPT or its affiliate makes such Movie available on a non-exclusive basis for sale to
consumers on DVD (or other optical disc format) in the Territory. SPT may elect, in its
sole discretion, to make any Movie, on a one-off basis, available for exclusive
distribution through a single distributor in the Territory; provided that the foregoing shall
not be used to frustrate the purposes of this Agreement.
(e) APPLE shall not edit or modify, the SPT Content without SPT's prior approval, except as
expressly set forth herein to the contrary. All uses by APPLE of SPT’s names, logos,
trademarks and Artwork shall be in accordance and conformity with SPT’s written
specifications and guidelines for the use of such materials, as provided to APPLE in
writing concurrent with the execution hereof and/or from time-to-time during the Term,
when provided or made available to APPLE either concurrently with the delivery of
subsequent SPT Content or prospectively (but which shall only be binding prospectively
upon APPLE, a commercially reasonable time thereafter).
(f) APPLE shall not assign, transfer, syndicate or sublicense any of its rights under this
Section 2 hereof or appoint or engage agents, subagents or other third parties to exercise
any of such rights, except for the limited right to employ or hire contractors to perform
certain of its duties hereunder in accordance with Section 18(b) hereof.
(g) APPLE and SPT shall brand and market the availability of the Movies on the Online
Store distributed hereunder as provided in Exhibit F, attached hereto and made a part
hereof by this reference.
(h) Non-Exclusivity . APPLE’s rights hereunder are non-exclusive. Nothing in this
Agreement shall restrict SPT’s ability to offer the Movies on any platform or in any
media or market during the Term.
(i) Functionality . The Online Store shall have the functionality described on Exhibit E.
(j) Advertising and Promotion . The Parties agree to the advertising and promotion
provisions described in Exhibit G, attached hereto and made a part hereof by this
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reference.
(k) APPLE shall comply with the content protection obligations set forth in Section 12.
(l) APPLE shall be responsible for the final encoding of Content Files pursuant to the
specifications set forth in Exhibit C at its cost (i.e., after APPLE’s receipt of encodes
from SPT). SPT reserves the right to review a sampling of the encodes of the Content
Files and/or Movies to determine APPLE’s compliance with this Agreement.
(m) APPLE shall make each Movie supplied by SPT hereunder, in accordance with the terms
and conditions hereof, continuously available on the Online Store at all times during its
Availability Period, subject to the terms and conditions of Section 2(n), 12, 14, 18(l) , or
as otherwise expressly provided herein.
(l) APPLE agrees that (i) no Adult Movie shall be distributed, exhibited, promoted or listed
on the same or previous screen (within the Movie Store portion of the Online Store) as a
screen on the Online Store on which a Movie is promoted or listed, and (ii) no Adult
Movie will be classified within the same genre/category as any Movie. As used herein,
“Adult Movie” shall mean any motion picture or related promotional content that has
either been rated NC-17 (or successor rating, or if unrated would likely have received an
NC-17 rating, other than a title released by Sony Pictures, Universal Studios, Twentieth
Century Fox, The Walt Disney Company, , Paramount Pictures, Lions Gate or Warner
Bros., or their subsidiaries (each, a “Major Studio”), or a title otherwise deemed not to be
an Adult Movie by SPT in its sole discretion) or X or is unrated and would have likely
received an X if it had been submitted to the MPAA for rating.
(m) Notwithstanding anything contained herein to the contrary, APPLE shall have the right to
remove, on temporary or permanent basis, certain Movies from the Online Store (i) if
such removal is made pursuant to the Digital Millennium Copyright Act, as amended
from time to time (“DMCA”), pursuant to a notification in accordance with 17 U.S.C. §
512 or other applicable sections of the DMCA; provided that SPT shall have the right to
submit a counter-notification in accordance with 17 U.S.C. §512(g) or other applicable
provisions and Apple may, without limiting SPT’s rights hereunder or in law, continue
distributing such Movie(s) promptly after receiving such counter-notification; or (ii) if a
claim, demand or suit is made or brought against Apple concerning such Movie(s). In
addition, Apple shall have the right to remove individual Movies from the Online Store if
Apple reasonably determines that such Movie(s) do not meet Apple’s technical quality
requirements, provided that SPT shall have the opportunity to submit a replacement
Movie and Apple shall promptly make such replacement Movie available via the Online
Store. In the event a particular Movie, in Apple’s reasonable discretion, causes, or is
likely to cause, material harm to Apple’s reputation or sales on the Online Store, then
APPLE shall advise SPT of same in writing. In such event, SPT shall provide APPLE
with a meaningful opportunity to request that such Movie be removed or replaced.
(n) SPT shall deliver all SPT Content to APPLE in accordance with the delivery process
specified in Exhibit C.
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3. Certain SPT Obligations .
(n) SPT shall, from its location in Culver City, California electronically deliver to APPLE at
its location in Cupertino, California, in a timely manner, as set forth herein, during the
Term, at SPT's sole expense, Content Files in the Delivery Format and via the Delivery
Method set forth in Exhibit C. Provided that the Content Files are delivered to APPLE
in accordance with the terms of Exhibit C and all other terms of this Agreement, then the
Content Files shall be deemed delivered hereunder (“Delivered”).
(o) Subject to the terms of Exhibit D, SPT, or a third party designated by SPT in writing and
approved by APPLE, shall commence Delivery of Content Files as soon as reasonably
possible after the Effective Date. Thereafter, SPT shall notify APPLE in writing (each,
an “Availability Notice”) of additional Movies to be made available by SPT to APPLE
for distribution hereunder. APPLE shall have the obligation to distribute each such
additional Movie at all times during the Term, subject to APPLE’s limited right to
remove Movies in accordance with the express terms and conditions hereof and provided
such Movie has not been withdrawn by SPT pursuant to the terms of Section 6(d).
(p) The initial list of SPT Content that SPT shall make available to APPLE, for use
hereunder, is set forth in Exhibit D.
4. Rights Clearances and Royalties .
As between SPT and Apple, SPT shall be solely responsible for paying: (i) all applicable
royalties or other payments to artists, talent, producers, directors and other third parties
related to the use or other exploitation of SPT Content hereunder; (ii) all applicable
mechanical (i.e., reproduction and distribution) and synchronization royalties or
payments payable to composers, lyricists, authors and publishers of compositions
embodied in SPT Content related to the use or other exploitation of SPT Content
hereunder; (iii) all applicable payments that may be required under any collective
bargaining agreements and guilds applicable to SPT or third parties; and (iv) any other
royalties, fees and/or sums payable with respect to SPT Content, Artwork, metadata and
other materials provided by SPT or its designees and/or APPLE's use or exploitation
thereof hereunder including, but not limited to, participation and residual fees and
synchronization fees. As between SPT and APPLE, APPLE shall be, responsible for any
third party public performance rights payments payable to ASCAP, BMI, SESAC or
similar organization having jurisdiction in the Territory (to the extent such rights may be
implicated, if at all, hereunder) for musical compositions and sound recordings exploited
hereunder.
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