The Legal Aspect of the Entertainment Industry

Having a good grasp of the legal boundaries pertaining to the entertainment industry is the most important aspect of the business.  To cover you is the name of the game.  Thus, knowing about Intellectual Property protection (trademark, copyright, trade secrets, and patents) avoids another from stealing ideas and material that originated from you and your company.  On the flip side understanding the legal parameters of IP affords you the comfort of not being blind-sided or being on the brunt of a costly lawsuit.  The following cases: Rights of Publicity, Trademark and Copyright Infringement, Trade Secrets, misrepresentation, and a lawsuit against Justin Bieber, give examples of IP violations and lawsuits summarized by Gordon P. Firemark, Esq. and Tamara Bennet, Esq. of entertainlawupdate.com from episodes 33 and 47.

Rights of Publicity – The right to control the commercial use of one’s identity.   Facebook faced a class action suit with three individuals, one being a minor.  Whenever someone likes (selects the thumbs up sign) his or her picture appears next to it as an endorsement of the brand.  Facebook did not have mechanisms in place to ask for permission prior to publishing the photos.  Facebook settled for millions most of which went to the attorneys. 

Denver Post reported that a conservative political party claimed fair use, when the group used a copy of a gay couple kissing at their wedding.  The political party made a copy of the picture changed the background printed it on flyers and mailed out to recipients in Colorado to make a political statement.  The fair use presents a defense against violations for the use of others’ copyrighted material without asking permission because of their belief of fair use.  There has not been a lawsuit filed.

Trademark – An artist filed an infringement suit against the Baltimore Ravens football team for their use of a design of a bee logo.  The artist designed a very similar logo for the Maryland Stadium Authority.  The 4^th Circuit Court concluded the Ravens use the logo for factual content and not expressive content.  According to entertainmentlaw.com, had the artist used the logo as a trademark perhaps he would have the right to claim copyright infringement.  The court ruled in favor of the Baltimore Ravens.

Copyright – Jack Daniels the liquor company sent a Cease and Desist letter to an author for copyright infringement of their label.  The author’s book cover closely resembled the Jack Daniels label.  The company offered partial cost to replace the book cover.  The civility of the Cease and Desist letter of Jack Daniels company is unprecedented, a normal Cease and Desist letter is scary and nasty.

Trade Secrets – A very important lesson learned for the creator of the famous Tommy Lee, of the Motley Crew band, drum loop coaster.  The creator of this design wanted compensation, however, there were no documents in place stating that he was to receive compensation for the design, therefore, he could not claim that the idea was a trade secret that had been violated.  No compensation was awarded to designer.

Misrepresentation – In Blancarte vs. Solis, according to the Talent Agency Act of California only a licensed talent agent can negotiate talent contracts.  An entertainment lawyer, Blancarte negotiated a contract of a sportscaster, Solis claimed that the lawyer misrepresented himself and, therefore, not entitled to the fee.  The Labor Commission concurred based on the Talent Agency Act policy.  Blancarte continues to pursue the lawsuit in a higher court.  This poses the question, if lawyers are able to negotiate contracts of talent without being a licensed talent agent where does that leave the talent agents in the negotiation process?  Or what about the states that do not require that a talent agent be licensed, would the Talent Agency Act policy apply in those states?

Justin Bieber – A woman filed a lawsuit against Justin Bieber for hearing impairments caused by the elevation of decibels exacerbated by loud music and crowd yelling cued by Bieber throughout the concert.  The woman is seeking $9 million in damages.  It is common practice for the venue to take assumption of risks in consideration; for instance, having earplugs on site or sound checks to ensure the sound does not exceed unhealthy limits.

In talent management, the above cases have the potential to be commonplace against a company with the talent that they represent if proper and thorough contracts are not in place.  This includes all contracts with talent, venders, independent contractors, employees, etc.  It is imperative that one should not leave anything for assumptions; a well-structured contract has no room for ambiguity.

Liabilities in The Entertainment Business

There are many liabilities that can occur in the entertainment business.  I will discuss three:  infringement, not obtaining permission, and not honoring the terms of a contract.

In the Arnold M. Preston, petitioner v. Alex E. Ferrer case.  Preston petitioned lawsuit to obtain fees owed to him by Ferrer.  Ferrer stated that Preston should have performed the duties of a Personal Manager (PM), instead of a Talent Agent.  Ferrer, television character “Judge Alex”, brought the case to the California Labor Commissioner for judgment of the contract being unenforceable and void due to Preston being an unlicensed talent agent, therefore, should not be owed fees.  The case was remanded to Arbitration.

No. 06-1463

SUPREME COURT OF THE UNITED STATES

552 U.S. 346; 128 S. Ct. 978; 169 L. Ed. 2d 917; 2008 U.S. LEXIS 2011; 76 U.S.L.W. 4097; 28 A.L.R. Fed. 2d 681; 27 I.E.R. Cas. (BNA) 257; 21 Fla. L. Weekly Fed. S 77

Already, LLC, dba YUMS v. Nike, Inc

Nike sued YUMS in federal district court alleging trademark infringement based on a “colorable imitation" of its product.  YUMS filed a covenant and made changes that no longer infringed the Nike trademark.  Decision:  Covenant not to enforce trademark against competitor’s existing products and any future “colorable imitation” held to moot competitor’s action to have trademark declared invalid.

No. 11-982

SUPREME COURT OF THE UNITED STATES

133 S. Ct. 721; 184 L. Ed. 2d 553; 2013 U.S. LEXIS 602; 105 U.S.P.Q.2D (BNA) 1169; 23 Fla. L. Weekly Fed. S 549

The French appears to be very serious in upholding the antipiracy law.  Disney, Warner Bros., 20^th Century Fox, Columbia Pictures, the Civil Society of Phonographic Producers, and the Society of Authors, Composers and Music Editors (SACEM) were awarded $1.6 million in an illegal downloading case in France.  The 21- year old programmer and creator of the illegal sharing site Forum DDL, do not have the funds to pay the millions of dollars in damages.  The programmer was convicted under 2004’s Code of Intellectual Property and will spend three years in jail.  The French government goes after the consumers in the form of warnings to those who participate on the illegal downloading site, enforcing the Hadopi law (three-strikes law).

Chipotle Sues Frank Ocean For Backing Out of Ad Campaign

Chipotle alleges that they paid Frank Ocean $212,500 to produce a song in an ad campaign and promised to pay another $212,500 after the song was delivered.  Chipotle says Mr. Ocean agreed and backed out of the deal.

It is apparent that contracts need to be explicit and detailed, not leaving anything to chance.  A business plan should be structured in the same fashion.  To "cover yourself" is the name of the game in the entertainment business.