By Jonathan Segal
Funny Or Die was founded in 2007 by Will Ferrell and Adam McKay as a production company to create comedy shorts on the Internet. Its first video, “The Landlord,” netted 82 million views. In the past few years, Funny Or Die has expanded beyond its digital roots, producing television programs, including “@midnight” with Chris Hardwick, as well as native advertisements, and even political ads. In 2014, Funny Or Die won an Emmy for a special episode of “Between Two Ferns,” pairing Zach Galifianakis with President Barack Obama.
For its inaugural In-House Insider feature, Media Law Monitor sat down with Peter Morris, the Vice President of Business Affairs and Development at Funny Or Die, to discuss the challenges and triumphs of the Funny Or Die legal team.
MLM: So what does your typical day look like as the main lawyer at Funny Or Die?
Peter: Every day is different. One of the things that’s truly wonderful and unique about Funny Or Die is we are always doing exciting and different things. We never stop doing anything, and we continually add new content, platforms, and products. We’re pushing the boundaries in so many different areas of law, from First Amendment issues that we work with your firm on across multiple platforms, as well as legal issues connected to where and how we’re distributing our content, who we’re doing deals with, social media issues including sponsorship and branding in that [social media] world, developing the new self-regulatory rules around that, as well as some of the governmental regulations [surrounding these sponsored/branded social media posts]. It is just a fun experience of always having a list of 30 things to do on your to-do list, and then having 20 that you never expected to hit you dumped in your lap. You’ve got to thrive in an environment where in many cases you have to figure it out on the fly. So I would love to tell you that there is some sort of order or process around my day. But there really isn’t—and that, in so many ways, is what makes it fun and fulfilling.
MLM: What legal issues do you deal with the most in your position?
Peter: There is a lot of attention required to production-related issues, including First Amendment and clearance issues, of course. A lot of business affairs. We’re dealing with negotiations and drafting agreements with all the networks, studios, and the financiers for the projects we’re doing. There are a lot of distribution agreements, along with sales and custom content-creation agreements—whether that’s for our interior sales team on branded entertainment deals with advertisers, our white-label commercial production company, Gifted Youth, or our newest political initiative, FODC. We handle all forms of strategic partnership agreements for Funny Or Die, whether that’s our participation in the Oddball Comedy and Curiosity Festival or our early participation with Facebook in their Facebook Anthology and Facebook Suggested Ads Alpha programs. Because we’re a counsel’s office, we also handle everything from the employment contracts for internal people, issues that come up requiring immediate attention, to any HR issue that arises, to the real estate leases for all of our properties, to business affairs, to legal affairs, to corporate management, to clearances, to licensing, to distribution, to sales, strategic partnerships, acquisitions, to speeding tickets … everything. It just runs the full gamut.
MLM: So what’s surprised you the most since you started in your position here?
Peter: I think one of the things that attracted me to Funny Or Die originally is not what they were doing, but what I thought they could do, which was limitless. And I still believe that. The growth of this company in the four-and-a-half years that I’ve been here I think is the most shocking, staggering thing. When I got here, we were making 15 web videos a month, we had a television pilot deal, and that was it. We now make 20 videos or more a month. We make several big-budget branded entertainment videos every month that are not integrations, but entertaining custom comedic videos around a product or service, distributed and marketed across Funny Or Die’s platforms. We have a portfolio of apps, with more launching every quarter. We have an entire editorial news team that makes an incredible amount of non-video content for all of our different platforms.
We now have roughly 23 television shows or television specials on-air or in some stage of development, versus that one pilot. We also make content—not just repurpose it—but make original content for 17 social media platforms. We have over 30 million social media followers across all those platforms, which makes us the #1 comedy brand in the world across social media. So we make content for all of those areas. And again none of this stuff was being done when I first got here. All of those things are new. And that’s just been incredible to witness.
MLM: So what’s really difficult for you and your team? When do you have OMG moments?
Peter: Every single week, we, the three of us, are doing something that we’ve never done before. And in many cases we’re doing things that no one has ever done before, like the new operation we’ve opened up in D.C.
Traditionally, candidates, super PACs, and independent expenditure groups hire media agencies and creative agencies to create their advertising campaigns, buy their television spots, and create some of the attack ads and things of that nature. But the idea of producing entertaining spots that either promote an issue, a candidate, a specific campaign in some way—done from an actual standpoint of entertainment rather than just pure messaging—it’s really never been done on this scale. So how that fits into federal election laws is new. It’s unique. It’s uncharted territory. So it’s exhilarating and frightening, because it’s something I have had to become well-versed in, and it’s something that, in many cases, no one has ever done before.
MLM: Would you say you guys are the ideal people to start something like that because you make content that people share and spread around?
Peter: The value that you can get here if something pops is really high. But again you’re convincing a very regimented system that in essence has always done something one way from the beginning of television. Really, from John F. Kennedy who was the first president to really utilize television to reach the American public, from that moment until now everyone’s virtually done everything the same way to some degree. I think we were able to prove how valuable this can be with the success of “Between Two Ferns,” featuring President Obama, and we are already seeing organizations come to Funny Or Die to hire us to create original content in connection with their issues.
MLM: Obviously Will [Ferrell] and Adam [McKay] are renowned, but you also have a whole staff of people who are writers and shooters. How do you advise such a wide range of folks, especially non-lawyers?
Peter: It’s about education and just being able to tailor your message in different ways. It’s a little bit broader here, but one of the things we look for in hiring people is someone who can tailor a message to our CEO and President, to our CFO, to our COO, but then also to an editor, a programmer, a sales account executive, a writer, or director who doesn’t look at the world in the same fashion. Being able to get them to understand and learn.
It’s difficult, and it’s a wonderful thing, and it’s what makes this really rewarding and fun. Our goal is to empower our creative staff to make as many decisions as they can and in essence to train them to sort of spot these issues and to know to bring them to us early, and we’ll help them solve it in a way that they want, that’s works for them, but still gives
MLM: So what advice do you have for other media lawyers?
Peter: I think the first thing you need to understand is what the priorities of the company are and how your role is viewed from the standpoint of providing value to your company. You have to make sure that you have a good grasp on what the different departments need from you, so that you can prioritize what you’re doing and respond in an effective manner. Are they looking to you simply for risk assessment, to paper deals, or are you involved in the strategy/direction of the company, and are you empowered to be a decision-maker? There are very different roles you might play depending on what those answers are. For example, this is extremely important if you’re at a smaller media company, and your staff is lean and mean, as it should be, everybody comes to you with a bullet wound, and you’re in triage mode at all times. It’s your job to understand based on the landscape of your company how and where to provide the highest level of value to the company, and, in using my analogy, in some ways that can translate to determining who really is bleeding out on that table at that exact moment and how to handle that and who is fine sitting in the waiting room with a bullet room in their shoulder. If you work at a smaller company, as opposed to a large traditional media company, I think it’s really important that you feel empowered and comfortable making decisions. Generally, although not all the time, lawyers at more traditional studios and networks are often not the final decision-makers. If your goal is to be a high-level general counsel with a company that’s dynamic and is going to try things that in many cases have never been done before, you can’t be afraid to make decisions. You need to have the backing of your boss and trust yourself to make the calls and move on. You’re absolutely going to make some mistakes! You do your best to manage those, but if you’re running at 110 miles an hour, you’re going to miss some things that whiz by in your periphery, and that’s okay. You need to learn to constantly assess how much you need to do, what the risks are, and trust yourself to know that you can make the call and keep moving. And I think that a lot of in-house counsel get bogged down in the process of approvals and the fact that they’re not comfortable making that call. All our attorneys are empowered to make decisions at Funny Or Die, in part because the volume of work is so staggering and never wavering, there is not another option. Frankly, our internal motto on the legal side is “Ugly but Effective.” Don’t worry about what it looks like, just find a way to make it work, get it done, and keep moving. Bottom line: in dynamic places like Funny Or Die, lawyers have to be willing to make quick decisions as they arise, or you’ll suddenly turn around and realize your company has become “the old guys” who aren’t willing to take risks and try things.
MLM: So, this is obviously a new media Internet-focused company with its origins in the Internet, but you guys produce content that goes into traditional channels and also partner with traditional media providers, like television. What are the cultural and legal differences in the two sides of the business?
Peter: In some ways they are very different cultures. People assume that the Internet is the Wild West, and therefore their practices and actions can be looser, and they take that attitude because you theoretically (and, in many cases, actually) can take a piece of content down with no repercussions. That is not true in many cases for many different digital companies.
Our legal philosophy is to try to approach things from the standpoint of allowing content creators to do innovative things that result in compelling content on any platform that keeps people talking about Funny Or Die, while evaluating things from a broader business perspective, where the actual likelihood of material harm may come into play, not just the goal of eradicating all risk. We do this with a combination of real business evaluation and risk assessment, coupled with creative legal problem-solving/troubleshooting to limit risk if/where we can and being prepared for what may come our way later on. When we are making content just for ourselves on a specific digital platform, I feel more comfortable with us being aggressive and taking that risk because of who we are and where we come from and our attitude and flexibility of working things out with people who may be upset. In general, I feel more comfortable taking risks when we don’t have to indemnify someone else.
In speaking with many of my friends who work at traditional media companies, the culture there is very risk averse, I think to the point of excess, which has slowed their ability to innovate. Traditional media companies: (1) buy a television show from a producer; (2) the network owns all rights to the show; (3) the network requires that production company to fully indemnify them from all third party claims; and (4) the network sets a very regimented policy regarding what the production company can actually do in and in connection with their show. That last one is incredibly burdensome when you are talking about a production company with its own digital platform, brand awareness, and audience (that in some cases is bigger than the network’s) like a Funny Or Die, The Onion, or Fullscreen. They don’t view content production as a partnership or collaborative effort in many ways but as “that’s the toy that I bought … and don’t touch it.” The good news is that is starting to change, and traditional media companies are beginning to both see the value and allow the individual or producer to utilize show elements in new ways on new platforms to build value and market the show. Whether due to want or necessity, this culture is moving more towards what I see in the digital landscape.
MLM: Is there anything else you want to tell me about the company or your job?
Peter: I believe I am the luckiest guy on the planet! These are the most intelligent, cutting-edge people I have ever worked with, and it’s the most fun I’ve ever had at work. It is challenging. It’s exciting. It is never mundane or stale. The essence of Funny Or Die to me came from our CEO when he was interviewing me. When I asked him why he came to work as the CEO at Funny Or Die, he said his goal was to create a company where people could try things without fear of failure. It was simple, eloquent, and I thought it was a complete bullshit line at the time, but after being here for four-and-a-half years, I will tell you that it’s the truth and it’s magical to wake up and come to work in an environment like this every day.
MLM: Cool. So without fear of failure but not without fear of liability.
Peter: Fair enough… and that’s why you’re my lawyer.