Entertainment Law Outline PDF

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Full comprehensive entertainment law outline for the full semester course. Use to study for final exam. ...

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ENTERTAINMENT LAW I. REPRESENTING TALENT A. THE ARTIST’S TEAM (CB: 7) KEY PLAYERS: The personal manager, the business manager, the agent, and the attorney. COMMON ELEMENT: All members of the artist’s team represent a different skillset and are equity partners in the artist’s career in some form or another, giving incentive to help pursue success for the Artist. o Members of the artist’s team common provide or find upfront equity or other services that the Artist may need but cannot necessarily afford. o Agent – the role of the agent is to find work for their clients. They will typically receive 10% of income from bookings – in the TV/film industry, that would mean income from shows/movies/commercials booked [think Ari Gold] In the music industry, the agent generally takes the form of the booking agent, who will receive commission from concert performances and certain other appearances. o Business Managers – business managers are typically CPA’s and will generally handle the artist’s financial planning. They will keep track of investments, pay bills, keep track of financial audits (for example, of publishers), and may arrange endorsements or otherwise work with the artist’s team to maximize their revenue. Biz managers typically receive 5% of income from gross income. Has a strong fiduciary duty to the artist. o Personal Manager – these are the “quarterbacks” of the artist’s team. Although they look a lot like agents in their involvement in dealmaking activities, managers tend to focus more on career development and handle both long-term and planning as well as day-to-day-activities for the artist. o Lawyers – increasingly are taking percentages of artist’s gross revenue, usually 5%. In the music industry, alongside managers they are the artist’s dealmakers – in TV/film, it’s more about checking the details of the deals that agents hash out. May be consulted on a lot of other activities such as: marketing, advertising, deal shopping, packaging, and networking. ATTORNEY DUTIES / RETAINER LETTER ON PGS 10-33 CONTRACTUAL / STATUTORY DUTIES, REQUIREMENTS & LIMITATIONS BETWEEN ARTIST AND TEAM

(1) Obligations (CB: 34): just have to be contractually obligated to render some form of service  Contract can leave the amount of work to be done at the manager’s discretion without being unconscionable: “The fact that the contract provided that the managers could devote as much time to defendant’s affairs as they deemed necessary does not destroy mutuality” (Meyers v. Nolan) o Courts will not step in to decide whether or not an artists got a good bargain with regards to services rendered by a manager/agent (Mandel v. Liebman)  Character of Obligations: just because an artist’s agent/manager/etc. may use a certain skillset or training, IE, legal training, does not mean that they are also serving in that role for the artist – look to the terms of the contract (Mandel v. Liebman) but also the nature of the services (Buchwald v. Superior Court of San Francisco)  CAREFUL: Contracts must be careful to distinguish between the role played by the individual members of the artist’s team, as many states have certain licensing requirements and statutes regarding talent agents and managers (CA – Talent Agency Act).  Fiduciary Duties & Impropriety:  What constitutes best efforts or a violation of fiduciary duty gets tricky in a world where management and other members of an artists team represent other artists or other interests. An agent has a duty “not to use confidential knowledge acquired in his employment in competition with his principal”. (Byrne v. Barrett)  There is no hard and fast rule for impropriety, although certain actions give rise to a strong inference of it. (ABKCO Music, Inc. v. Harrisongs Music, Ltd. - former business manager negotiating with artist’s opponent in a litigation to secure the copyright in an infringement case gives rise to a strong inference of impropriety) (2) State Requirements (CB: 45)  State Regulation of Talent Agents: CA reacted to years of abuses; some other states have similar agencies  Courts have granted the state administrative bodies of these states the power/jurisdiction to look into an individual’s actions to determine whether or not they may be properly characterized of that of an agent/manager or some other individual who may be subject to licensing requirements – OVERRIDES an arbitration provision in the contract (Buchwald v. Superior Court of San Francisco, Jefferson Airplane case)  Managers of actors have been found to run afoul of modern talent agency acts when they go too far during pursuit and/or negotiation for roles for movies – but the line is blurry (Pryor v. Franklin). 1

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Recording Agreement Exception: under California’s talent agencies act, there is an exception for services rendered in the pursuit of a recording contract – this is generally seen as exempting music artist’s managers and lawyers from the requirements of the act when it comes to their dealing with record labels. In determining whether an individual is procuring employment for an artist, the test is whether that activity constitutes a primary activity of the individual (Wachs v. Curry).  Booking shows for an artist with the ultimate goal of securing a recording contract does not exempt one from the act – failure to receive a commission for such bookings is not enough to exempt oneself from being considered an agent under the CA Agency Act. (Park v. Deftones)  It is NOT a violation of the act for a manager to sign an artist to co-terminus management and recording/publishing agreements, so long as they never seek employment for the artist – seeking the sale/assignment of the recordings/compositions from such an agreement is not considered “seeking employment”. (Chinn v. Tobin)

B. TALENT CONTRACTS (CB: 79) Generally two types of contracts: (1) contracts that secure necessary rights, (2) contracts that secure talent  Contracts for Rights o Generally involve copyright law or personal rights (generally more present in international law) o Directs ownership of very specific works, typically not many statutory requirements.  Contracts for Talent o Contracts for talent are much more complex, although they typically take the form of long-term personal services contracts. o These are generally subject to more statutory restrictions and typically have more conflict or litigation associated with them due to the fast and complicated nature of the entertainment industry. LIMITATIONS ON PERSONAL SERVICES CONTRACTS There are some obvious restrictions on contracts: o Minors (pg 85): typically always have the right to disaffirm their contracts, which makes negotiation and planning for the usage of child stars rather cumbersome. In CA/NY, courts can approve/disapprove of the contracts children enter into.  Some companies may enter into concurrent contracts with parents in order to secure custody, control or guarantee that they will not interfere with the performance of the minor’s contract – in most states, these ARE enforceable.  Still on the hook to pay contractual obligations to manager/agent/etc. for work pursued during the term that still pays out – IE, manager helps kid get a TV show, he fires the manager 2 years later, keeps renewing show contract – STILL have to pay revenue related to the show. (Scott Eden Management v. Andrew Kavoit) o The 7 Year Statute (CA) (pg 92): enacted to prevent exploitation of actors on long, multi-year “studio” deals, the statute places a 7-year limit on the studio’s ability to enforce a personal service contract.  The 7 year statute is for a flat number of years, can’t extend it for the amount of time that services were rendered IE, can’t add a year because the actor was unavailable for the 2nd year (De Havland v. Warner Brothers Pictures).  Renegotiation (pg 97): it’s undecided if mid-term renegotiation re-starts California’s seven-year statute. Two schools of thought as to when it may begin to run:  “Moment of freedom” – renegotiation only occurs when the artist is free to walk out of the room without signing a new contract so that the act of re-signing is perceived to be totally voluntary.  Renegotiation involving both a) new consideration, b) entered into towards the end of the term, c) for an independent new business reason can re-start the 7-year term (Melissa Manchester v. Arista Records).  Co-terminous Agreements (pg 98): renegotiation and extension of one part of co-terminous agreements (IE, recording and publishing agreements) does NOT re-start the clock on the other (Adams v. Irving Music).

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ENFORCEABILITY OF PERSONAL SERVICES CONTRACTS / REMEDIES Seeing that entertainment contracts are enforced is difficult given the unique services rendered – typically what is sought against an artist is a negative injunction (pg 483), which enjoins them from performing their service somewhere else or in a particular manner. Standard reasonableness of injunctions replies. >Remember – parties, particularly artists, should specify in contracts that the non-breaching party may be entitled to seek injunctive relief – leaving that out may allow for a construction of the contract that suggests that the non-breaching party automatically gets an injunction. o Injunction Limitations (CA) (pg 129): California places heavy limitations on when an injunction may be enforced in the entertainment contexts.  § 3390 provides that obligations to render or employ personal services cannot be specifically enforced.  § 3423 prevents injunctions to enforce personal services contracts will not be granted and fixes the compensation that may be provided in lieu of an injunction. o Adequacy of Remedy (pg 143):  Considerations for specific performance: (1) the inadequacy of the legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable to court to know what it is to enforce; (5) a substantial similarity of the requested performance to that promised in the contract…  Credits: generally, credits are negotiated in contracts – absent a contractual provision, there is NO common law right to claim credit (Vargas v. Esquire).  Specific performance requiring attachment of a credit to all future exhibitions of a film HAS been found proper. (Tamarind Lthography Workshop v. Sanders - court granted specific performance to include plaintiff’s name in credits because jury award for damages did not contemplate damage caused by future exhibitions lacking the attached credits).  Book publishing has been held to follow similar rules – generally, for book credits/attribution to be a material part of the contract they must be negotiated as such. Work for hire language will override if it’s unclear (Cleary v. News Corp). Same applies to affixing credits to sold artwork – absent a provision in the contract, work-for-hire language means the party purchasing the artist’s work doesn’t have to do anything – including affixing a credit (Vargas v. Esquire)  Credit Positioning: the billing provision (IE, “top” billing) of a contract is “material in that it is not just a matter of status or prestige, but serves to protect and enhance the future marketability and commercial value of a star performer…” (Gold Leaf Group v. Stigwood Group, Frampton/BeeGees billing – “sole star billing” means you can’t put another artist side-by-side)  Credit Misattribution: lacking proper contractual credits or substituting another’s may actually run afoul of unfair practice prohibitions against both express and implied “passing off” contained in the Lanham Act, as an artist’s name/likeness can be considered a “trademark”. (Smith v. Montoro)  Disclaiming Credit: generally in order to disclaim credit for a work that has been sold, the type of credit afforded matters. A possessory credit for a film or book (Stephen King’s “The Lawnmower Man”) is generally held to only be appropriate when the individual was involved with the film’s production – director, producer, etc. A “based upon” credit is much more loose, with emphasis on the quantitative and qualitative manner in which the artist’s original work appears in and contributes to the final product. (King v. Innovation Books – possessory credit for King was improper because he did not write/direct/produce the film, but a based upon credit was allowable because the majority of his original short story was still included in the film, even if they also added a lot of plot around it) o Rescission: term for the cancellation of a contract, typically comes into play when there is a breach or nonpayment on the part of a label/publisher, but does occur in other situations.  Typically a request for rescission is effective from the date of the filing of the complaint for rescission: “a party to a contract can rescind it and such rescission can be accomplished by the rescinding party by giving notice of the rescission and offering to restore everything of value which the rescinding party has received” (Peterson v. Highland Music).  In the context of royalties, the 4-year statutory limitation on rescission is able to reach back – a benefit to artists. Because you’re supposed to pay royalties every single year, every new year of un/underpaid royalties represents a new “clock” for rescission. o Damages (in the form of money) are typically the remedy for breaches of entertainment contracts. Measurement of compensatory damages must be sufficiently definite, typically involves analysis of similar contracts or licenses to that of the breach or infringement – basic contracts stuff.

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Bankruptcy: just like most other forms of business, bankruptcy is an option, although artists have to be particularly careful of avoiding challenges on the grounds of bad faith, as bankruptcy will typically involve the discharge of many important contracts. (In re Watkins, TLC case)  Security interests in copyright filings are commonly used as a part of financing and become perfected by an appropriate filing with the US Copyright Office, not by a UCC-1 filing with the proper secretary of state under Article 9. (In re Peregrine Entertainment) It remains unresolved how one could perfect a security interest in an unregistered or future copyright, IE, something in production. (Footnote 1, pg 549-50 Arbitration (pg 551) has the same arguments for it in the entertainment industry as it does everywhere else: efficiency, efficiency, and efficiency.

II. PERSONAL ENTERTAINMENT RIGHTS: A. RIGHT TO PRIVACY (CB: 185)  Largely a 20th century development but rooted in some common law precedent – now largely embodied in statute. In making out a right to privacy claim, the fundamental policy we want to enforce is that a part of individual liberty is the right to display or withdraw from the public view – the usage of an individual’s image in the public without their consent robs that liberty. (Pavesich v. New England Life Insurance Co, unauthorized use of a guy’s picture in an ad)  Prosser’s four categories included in a right to privacy:  Note: 1-3 protect an individual from mental harm, while the fourth is not a protection from harm but rather from misallocation of one’s image/personality for economic gain

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o (1) Protection of one’s private affairs; o (2) Avoidance of disclosure of one’s embarrassing private facts; o (3) Protection against publicity placing one in a false light in the public eye; o (4) Remedies for appropriation, usually for commercial advantage of one’s name or likeness Most jurisdictions have woven at least some form of these protections into case law. Elements to a Privacy Claim - a privacy claim can be made out when you can identify: o (1) the usage of one’s name or image in an identifiable manner  This element is difficult in the context of fictionalized works where a character may be substantially similar to a public figure – in some jurisdictions you don’t need to outright identify the person by name (“pictorial surroundings” can be used to constitute identification), and in most jursidictions the actual name of the plaintiff doesn’t need to be used if a nickname or other name provides identifications (IE, “Britney” for Britney Spears) o (2) Without consent o (3) In situations in which invasion benefits the wrongdoer Public Figures can make some of the defenses to a right to privacy claim blurry, because the concept of newsworthiness has 1st amendment implications.

B. RIGHT OF PUBLICITY (CB: 210) A fairly recent development that is still being refined, mostly statutorily – rationale is that we want to protect a celebrity’s proprietary interested in the development of a marketable image – “closely analogous to the goals of patent and copyright law” (Zacchini v. Scripps-Howard Broadcasting Co.) o Defined as “the right of each individual to control and profit from the commercial value of his or her own identity” –  Protects the unauthorized commercial exploitation of a celebrity’s name, likeness, as well as other aspects of identity such as photograph, portrait, caricature, and biographical facts and records of performance (generally used by celebrities).  Increasingly used in the context of political campaigns – musicians will argue that a politician’s usage of their song improperly associates them with the campaign, encroaching their publicity right. o Some jurisdictions, like NYC, still subsume the right of publicity under the right of privacy and have declared that there is no common law right to publicity (Stephano v. News Corp) o In other jurisdictions, the right to publicity is wholly separate, independent, and is regarded as property right. o Heritability & Death: generally, an individual’s right to publicity survives the death of its “owner” and such a right does NOT have to have been exploited during that individual’s lifetime. (Martin Luther King, Jr. Center for Social Change v. American Heritage Products, Inc.)  Some jurisdictions require that an individual’s right to publicity must be exploited during their lifetime in order for it to be passed on to their heirs – but it is difficult to determine what counts as “exploitation”.

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News Broadcasts: there is not a “media privilege to televise a performer’s entire act without his consent” no matter how noteworthy it may be if it poses a serious economic threat to the value of the performance (Zacchini v. ScrippsHoward Broadcasting Co.)

C. OTHER COMMON LAW RIGHTS OF LIKENESS /PUBLICITY (CB: 210) Generally resorted to in litigation situations when a celebrity’s claim won’t fit under a particular statutory umbrella – for example, many state statutes apply only to name, likeness, and similar aspects of individual identity. o “Identifiability” comes into play in the context of a common law privacy/publicity claim – in order to make out a claim, the defendant doesn’t necessarily have to explicitly depict you but can show things that are distinguishable as being associated with you or your likeness. o The Lanham Act governs trademarks and unfair competition, typically relied upon in the context of lookalikes or sound-alikes because it has prohibitions against “false descriptions of products or their origins”.  “…the unauthorized use of a person’s name or photograph in a manner that creates the false impression that the party has endorsed a product or service in interstate commerce violates the Lanham Act.” Emphasis is on the likelihood of consumer confusion. (Allen v. National Video, Inc.) o Imitations: generally there must be a cognizable claim of unfair competition to proceed, IE, plaintiff’s action of imitation “saturated plaintiff’s audience, curtailing his market” (Lahr v. Adell Chemical Co.)  Imagery: unpermitted usage of similar race car paint or decals that are associated with an individual driver – even absent depictions of the actual driver – is enough to constitute a violation of the right the publicity/privacy (Motschenbacher v. R . J. Reynolds Tobacco Co.)  Sound-alikes: in California, “when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have ...