Homegrown creation of content raises creative rights questions: films and commercials could give rise to authorship battleground.

THE surge of user-generated and homegrown content brings new wrinkles to the issue of creative rights--especially when such content is produced for commercial purposes.

On Jan. 25, a local 10-year-old director sued the producer for final cut rights on a yet-to-be-finished short film. Although not user-generated in the Internet sense, the project was born from discussions among soccer moms on a field in Malibu.

Meanwhile, two commercials during the Super Bowl on Feb. 4 came from user-generated content. Both advertisers--Pepsico Inc.'s Doritos and General Motors Corp.--ran online contests for ad submissions and then aired the winners during the big game.

These amateur efforts cross the legal line into commercial production, leading to a gray zone of creative rights.

"Generally in advertising the idea is owned by the client and they have the right to flesh it out or develop other campaigns," said Gary Paticoff, executive producer at ad agency RPA in Santa Monica. "But it's such a different area when you have these contests."

Richard Charnley, entertainment attorney and partner at Ropers Majeski Kohn & Bentley LLP, cites the legal concept of misappropriation of ideas. When someone pitches an idea to a person in the business of exploiting ideas, there is an implied contract. In a contest, the advertiser solicits ideas or film submissions, so "at that point, the misappropriation law takes effect," Charnlcy said.

James Holmes, an attorney at Sedgwick Detert Moran & Arnold in Los Angeles, said that of course, when advertisers organize these contests, they should make sure participants sign over all rights--creative included. In addition, the advertiser's legal department always vets the winners. But legal problems--such as actors' waivers or FCC regulations on TV ads--can still occur, he said.

Technology can speed up the creative process, but that's not necessarily an advantage. Conroy Kantor, the producer of the Malibu kiddie film, described the original agreement with child actor-director Dominic Kay as a "kind of verbal contract and a lot of e-mails."

Kantor's lawyer, Glen Kulik said "it's a common theme in the entertainment business--they had to move quickly, and when everyone is friends, they don't think about documenting everything."

Even with the risks, Holmes sees user-generated ads as a brilliant marketing gambit. The advertiser gets three exposures for its products: First, when people spend time to make the ads, then when they view and vote online, and finally when ad airs during the Super Bowl. In addition, the losers often end up on YouTube, giving the brand even more exposure.

But amateur ads remain the exception. perhaps just a passing fad.

"I thinks it's more experimental," said RPA's Paticoff. "A small percentage of people know about these contests, so I'm not sure how it expands the brand. For a one-time idea it's interesting, but I don't think any manager would rely on it for their whole marketing campaign."

However, "just because it's an experiment doesn't mean people won't repeat it again and again," said Holmes. "On YouTube, people are still clicking to see a newsworthy item--a commercial. It's the opposite of what usually happens in our TiVo society, where we click past the commercials."