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Fi20. A production company owns the rights necessary to produce a video game, but plans to license use rights to a well-known cartoon character so that the character can appear in the game. Would the fees or costs associated with licensing this...

No.  Pursuant to the MBT Film Production Credit, a qualifying "direct production expenditure" must be i) made in this state, ii) not a qualified personnel expenditure, iii) directly attributable to the production or distribution of a "qualified production," and iv) subject to taxation in this state.  MCL 208.1455(12)(c).  With respect to intellectual property such as a cartoon character, the Film Production Credit provides that the following expenditures, if made to a vendor doing business in this state, are "direct production expenditures":

 

Expenditures for optioning or purchasing intellectual property including, but not limited to, books, scripts, music or trademarks relating to the development or purchase of a script, story, scenario, screenplay, or format, including all expenditures generally associated with the optioning or purchase of intellectual property, including option money, agent fees, and attorney fees relating to the transaction, but not including deferrals, deferments, royalties, profit participation, or recourse or nonrecourse loans negotiated by the eligible production company to obtain the rights to the intellectual property.

 

MCL 208.1455(12)(c)(i)(A).  While the term "intellectual property" is sufficiently broad to include cartoon characters, the language of the statute is clear that only expenditures related to "optioning or purchasing" the intellectual property at issue will qualify as "direct production expenditures."  "Purchasing" means acquiring full rights to the intellectual property outright, while "optioning" means purchasing the right to acquire full rights to the intellectual property at a later date, usually after financing for a production has been obtained.  Licensing the use of a cartoon character to appear in a video game is not equivalent to "purchasing or optioning" the underlying intellectual property.

 

Moreover, the section expressly provides that "royalties" do not qualify as "direct production expenditures."  "Royalties" are commonly defined as usage-based payments made by a licensee to a licensor for ongoing use of an intellectual property right or other intangible asset.  The payments made by the production company to the licensor for the use of the licensed cartoon character in the video game would be characterized as royalties.  Accordingly, these payments would not qualify as "direct production expenditures" eligible for the Film Production Credit.

If the production company determined to purchase or option the acquisition of full rights to the cartoon character, however, such expenditures might qualify as "direct production expenditures."  In that case, however, the expenditures for such rights would also have to be "made in this state," meaning, procured from a source within this state.


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