Peace Is Conflict Management
June 11, 2009
by David Krell
david@davidkrell.com
When I was a senior in college deciding where to attend law school, I visited Pepperdine University School of Law in Malibu, California. An invitation from Pepperdine for an orientation triggered the visit. My knowledge of the area consisted of Baywatch frequently showing scenes from Malibu and Pepperdine hosting the classic sports event Battle of the Network Stars.
My first solo trip -- no family or friends. I only vaguely remember the cross-country plane ride, the hotel, and the Pepperdine faculty whom I met.
Although I did not ultimately attend Pepperdine, I did learn a valuable lesson during the orientation. A faculty member closed his presentation on lawyers and negotiation by saying, Peace is not the absence of conflict. Peace is the management of conflict.
When I was an in-house counsel at an entertainment company, a gentleman approached the company with artwork of a famous character owned by the company. His father created the artwork for character merchandise in the 1940's. Although the artwork was in pristine condition, we clarified, emphasized, and repeated our intellectual property rights to the character. Translation: You can't merchandise this artwork without our permission. Corollary: Let's make a deal.
Managing the conflict led to a deal. The client did not have intellectual property rights. The company did not have the artwork. Neither side could exploit the artwork without the consent, compromise, and acknowledgement of each other.
Consider this fictional scenario with real-life implications, counterparts, and challenges. A fictional character is the subject of a short story written as a promotional giveaway for a department store in 1945. A song written about the character debuts in 1950. A 1965 cartoon featuring the character and the song becomes the best-known incarnation of the character. The beginning credits indicate the cartoon is based on the song.
If the company owns the copyright to the cartoon but the songwriter's heirs own the rights to the song upon which the cartoon bases, then who has the merchandising rights to the cartoon version of the character? Logically, one would think the company that owns the cartoon will control the merchandising rights associated with it.
Each side will stake its claim to rights through torturous, sometimes byzantine avenues of legal argument, theory, and chains-of-title. In some cases, original contracts may not exist. So, the challenge intensifies because the starting point for rights clarification begins not at the beginning but at the date of the first existing document -- contracts, letters, memoranda, affidavits, court filings.
Let's say a licensee approaches the company with a deal for a snow globe featuring the character. A week later, the licensee revises the deal proposal to include a turnkey that plays the aforementioned song. What was once a standard licensing deal now becomes more complex. If you are the attorney for the company, do you notify the owners of the song? If so, who will be responsible for quality control of the product? What will the royalty breakdown be between the company and the song owners? Who will be the point person responsible for negotiating with the licensee? These vital questions have the undercurrent of conflict that must be addressed, clarified, and managed if each side wants to realize a deal.
Again, peace is not the absence of conflict. Peace is the management of conflict. For either side, management of a business relationship requires traits beyond legal and business acumen -- stamina, people skills, quest for compromise where each side will benefit. These are the traits they don't tell you about in law school. Some lawyers are born with them. Some lawyers acquire them. Some lawyers ignore them, ultimately to the detriment of their relationships with other members of the bar.
Consider the case of Leonard Goldenson as an example of excellence in conflict management. In 1953, Leonard Goldenson was an entertainment lawyer who bought a ragtag group of stations from Life Savers king Edward Noble and built it into the powerhouse television network ABC.
Because the entertainment industry's engine relies on the fuel of content, Mr. Goldenson had to be nimble, creative, and courageous in taking risks.
In the early 1950's, Walt Disney needed seed money for his dream project -- Disneyland. No studio or bank would invest in Disney's idea.
Leonard Goldenson needed product for ABC. The two moguls struck a deal. ABC invested in Disneyland and Walt Disney provided the shows Disneyland and The Mickey Mouse Club.
The conflict for Disneyland was lack of money vs. innovative entertainment. The conflict for ABC was lack of product vs. already established networks NBC and CBS. By acknowledging their respective conflicts, each side managed them effectively. Each side needed something from the other. And each side agreed to fulfill those needs.
Leonard Goldenson and ABC also struck a deal with Warner Brothers to produce television shows for ABC. Before the deal, no movie studio wanted to touch television. At the time, they viewed television as a threat, not an opportunity. Leonard Goldenson knew different.
Warner Brothers created shows revolving around young, hip private detectives with character crossovers a common occurrence. They became signature shows for ABC in the late 1950's and early 1960's -- 77 Sunset Strip, Hawaiian Eye, Bourbon Street Beat, Surfside Six.
The conflict for Warner Brothers was embracing the new medium of television vs. letting a competitor get a potential jump start. The conflict for ABC was mirroring the already established programming paradigm of NBC and CBS vs. trying something new for a younger demographic.
david@davidkrell.com
When I was a senior in college deciding where to attend law school, I visited Pepperdine University School of Law in Malibu, California. An invitation from Pepperdine for an orientation triggered the visit. My knowledge of the area consisted of Baywatch frequently showing scenes from Malibu and Pepperdine hosting the classic sports event Battle of the Network Stars.
My first solo trip -- no family or friends. I only vaguely remember the cross-country plane ride, the hotel, and the Pepperdine faculty whom I met.
Although I did not ultimately attend Pepperdine, I did learn a valuable lesson during the orientation. A faculty member closed his presentation on lawyers and negotiation by saying, Peace is not the absence of conflict. Peace is the management of conflict.
When I was an in-house counsel at an entertainment company, a gentleman approached the company with artwork of a famous character owned by the company. His father created the artwork for character merchandise in the 1940's. Although the artwork was in pristine condition, we clarified, emphasized, and repeated our intellectual property rights to the character. Translation: You can't merchandise this artwork without our permission. Corollary: Let's make a deal.
Managing the conflict led to a deal. The client did not have intellectual property rights. The company did not have the artwork. Neither side could exploit the artwork without the consent, compromise, and acknowledgement of each other.
Consider this fictional scenario with real-life implications, counterparts, and challenges. A fictional character is the subject of a short story written as a promotional giveaway for a department store in 1945. A song written about the character debuts in 1950. A 1965 cartoon featuring the character and the song becomes the best-known incarnation of the character. The beginning credits indicate the cartoon is based on the song.
If the company owns the copyright to the cartoon but the songwriter's heirs own the rights to the song upon which the cartoon bases, then who has the merchandising rights to the cartoon version of the character? Logically, one would think the company that owns the cartoon will control the merchandising rights associated with it.
Each side will stake its claim to rights through torturous, sometimes byzantine avenues of legal argument, theory, and chains-of-title. In some cases, original contracts may not exist. So, the challenge intensifies because the starting point for rights clarification begins not at the beginning but at the date of the first existing document -- contracts, letters, memoranda, affidavits, court filings.
Let's say a licensee approaches the company with a deal for a snow globe featuring the character. A week later, the licensee revises the deal proposal to include a turnkey that plays the aforementioned song. What was once a standard licensing deal now becomes more complex. If you are the attorney for the company, do you notify the owners of the song? If so, who will be responsible for quality control of the product? What will the royalty breakdown be between the company and the song owners? Who will be the point person responsible for negotiating with the licensee? These vital questions have the undercurrent of conflict that must be addressed, clarified, and managed if each side wants to realize a deal.
Again, peace is not the absence of conflict. Peace is the management of conflict. For either side, management of a business relationship requires traits beyond legal and business acumen -- stamina, people skills, quest for compromise where each side will benefit. These are the traits they don't tell you about in law school. Some lawyers are born with them. Some lawyers acquire them. Some lawyers ignore them, ultimately to the detriment of their relationships with other members of the bar.
Consider the case of Leonard Goldenson as an example of excellence in conflict management. In 1953, Leonard Goldenson was an entertainment lawyer who bought a ragtag group of stations from Life Savers king Edward Noble and built it into the powerhouse television network ABC.
Because the entertainment industry's engine relies on the fuel of content, Mr. Goldenson had to be nimble, creative, and courageous in taking risks.
In the early 1950's, Walt Disney needed seed money for his dream project -- Disneyland. No studio or bank would invest in Disney's idea.
Leonard Goldenson needed product for ABC. The two moguls struck a deal. ABC invested in Disneyland and Walt Disney provided the shows Disneyland and The Mickey Mouse Club.
The conflict for Disneyland was lack of money vs. innovative entertainment. The conflict for ABC was lack of product vs. already established networks NBC and CBS. By acknowledging their respective conflicts, each side managed them effectively. Each side needed something from the other. And each side agreed to fulfill those needs.
Leonard Goldenson and ABC also struck a deal with Warner Brothers to produce television shows for ABC. Before the deal, no movie studio wanted to touch television. At the time, they viewed television as a threat, not an opportunity. Leonard Goldenson knew different.
Warner Brothers created shows revolving around young, hip private detectives with character crossovers a common occurrence. They became signature shows for ABC in the late 1950's and early 1960's -- 77 Sunset Strip, Hawaiian Eye, Bourbon Street Beat, Surfside Six.
The conflict for Warner Brothers was embracing the new medium of television vs. letting a competitor get a potential jump start. The conflict for ABC was mirroring the already established programming paradigm of NBC and CBS vs. trying something new for a younger demographic.