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.