Entertainment Law Slides.pdf

Introduction to Television Professor Nader Khorassani USC LAW 311 What is Television? Television as a technological and creative medium Evolution of television What is Television? “The distribution of audiovisual content to individual consumers, at times and locations and on dev...

Introduction to Television Professor Nader Khorassani USC LAW 311 What is Television? Television as a technological and creative medium Evolution of television What is Television? “The distribution of audiovisual content to individual consumers, at times and locations and on devices of their own choosing” What is Television? Key Characteristics: Importance of writers Unscripted Content Serialized shows Dual Revenue Model  Talent Studios Networks/Streamers Broadcast Stations MVPDs (Multichannel Video Programming Distributors) Who are the Advertisers Players? Talent Representative Online Video Distribution Types of Online Video Distribution: 1 SVOD (Subscription Video On Demand): Paid access to content libraries (e.g., Netflix). AVOD (Advertising-Supported Video On Demand): Free content with ads (e.g., YouTube). TVOD (Transactional Video On Demand): Paid access on a per-episode basis (e.g., iTunes). FVOD (Free Video On Demand): Free access without ads. VOD: A broad term covering various forms of on-demand content delivery. Television Industry Challenges 1 Disruptions caused by streaming Downstream effects? Leverage Budgets Profitability Contraction Traditional Media Streamers For Next Class: Readings:  Introduction to Film Professor Nader Khorassani USC LAW 311 What is Film? Where do we watch films? Does that matter What is Film? “An audiovisual program that people watch at a theater or at a place and time of their choosing” Making a movie 3 Stages: Pre-production Production Post-production Types of movies Fiction vs. Non-fiction Action Comedy Drama Horror Animated  Producers Writers Directors Actors Technical Staff Who are the Studios Distributors Players? Film Distribution Agreements Key 1 terms: Term Fees Territory Rights granted Exclusivity Languages Music and Guilds Professor Khorassani USC LAW 311 Music Major industry shifts Business Streaming era Basics  What is a song? Dual copyright  Primary Revenue Sources for Musicians Publishing Performing Touring  Breaking into the industry Artist discovery A&R Execs  The Players Composers, Performers, Producers Music Publishers Performance Rights Societies Record Companies Tour Promoters  Common pitfalls of the music industry Bankruptcy and tax evasion One-sided contracts Lawyer’s role is critical  Guilds What are guilds? Who are the contracts with? What do the contracts say?  2023 Strikes SAG-AFTRA WGA  Importance of Guilds Always exist in the background Very complicated! First Amendment and Free Speech Professor Nader Khorassani USC LAW 311 First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment Constitutional guarantee Applicability Does the First Amendment Apply? On campus protests at USC On campus protests at UCLA Protests outside the US Capitol My family’s Thanksgiving dinner table Netflix Donald Trump’s Tweets Types of Government Action Laws Rules Public Schools Police enforcement First Amendment Protections Words Actions Freedom not to speak Unpopular and controversial speech Government Regulations Content based regulations Police Dep’t of Chi. v. Mosley (1972) Standard of review: Strict scrutiny Narrowly tailored Compelling governmental interest Texas v. Johnson (1989) Permissible Government Regulations Public Forum Non-Public Form Time Place and Manner Restrictions Public Forum: Content Neutral Narrowly tailored to a significant government interest Leave open alternate channels of communication Non-Public Forum Viewpoint neutral Rationally related to a legitimate interest Types of Unprotected Speech But first - government action? Fighting Words Likely to incite Immediate breach of the peace Examples: Chaplinsky v. New Hampshire (1942) Cohen v. California (1971) Incitement Brandenburg v. Ohio (1969) Intended to produce imminent lawless action Likely to result Obscenity Prurient interests Patently offensive Lacks artistic value  Professor Nader Censorship Khorassani USC LAW 311 What is censorship? The suppression of ideas and information that certain persons - - individuals, groups or government officials -- find objectionable or dangerous. Obscenity in the US Roth v. United States (1957) Miller v. California (1973) 3 prong test: Average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest The work depicts or describes, in a patently offensive way, sexual conduct The work lacks serious literary, artistic, political, or scientific value Average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest Community: National or local standard? Why is this important? Prurient interests “A shameful or morbid interest in nudity, sex, or excretion” Examples: Sex manual Protected Straight up pornography Obscene Patently offensive sexual conduct Representation of sex acts Work lacks serious literary, artistic, political, or scientific value Reasonable person standard Pandering Example: Magazines with articles Romance novels Obscenity Summary Average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest National or local standard? Shameful or morbid interest The work depicts or describes, in a patently offensive way, sexual conduct The work lacks serious literary, artistic, political, or scientific value Nationwide standard Pandering Obscenity Regulations Reno v. ACLU (1997) Struck down Ashcroft v. ACLU (2004) Struck down Telecommunications Act of 1996 Struck down Question: what about porn? Texas Pornhub Case Self-Regulation Why self regulate? Film and TV MPAA Ratings system Contractual Requirements Liability Yakubowicz v. Paramount Pictures (1989) Incitement: Intended to produce lawless action Likely to result Tendency to lead to violence =/= incitement Television violence Graves v. Warner Bros. (Jenny Jones) (2002) Television Self-regulation FCC regulations: bar Obscenity Indecency “Must describe or depict sexual or excretory organs or activities” Profanity Grossly offensive language Prohibited between 6AM and 10PM Why is this allowed? Music Incitement Davidson v. Time Warner (1997) Artistic Value Self-regulation Intellectual Property: Copyright Professor Nader Khorassani USC LAW 311 Intellectual Property What is intellectual property? “Creations of the mind” What is protected by law? Copyright Trademark Patent Trade Secrets Ideas Are simple ideas protected? By whom? When are they protected? Express contract Implied contract Quasi Contract Express Contracts Offer, acceptance, consideration Idea theft: quasi contract Plaintiff confers a benefit Plaintiff reasonably expects to be paid Defendant would be unjustly enriched if allowed to retain the benefit without paying Blaustein v. Burton (1970) Jordan-Benel v. Universal City Studios, Inc. Release Agreements Non-disclosure agreements How do these work? Disclaimer of confidentiality The parties agree that Confidential Information does not include any ideas for audio-visual productions submitted by Producer to Company Contracts of adhesion Spinello v. Amblin Entertainment (1994) Studios: Development Agreements Producer acknowledges that Network is the owner of all rights in and to the Program and all elements thereof, and agrees that the Materials to be prepared hereunder are being prepared as a “work-made-for-hire” (as such term is defined in the Copyright Law of the United States) for Network, and Network shall be deemed the author thereof and shall own all rights therein, including, without limitation, the copyright. In the event that the Materials are, for any reason, deemed not to be a work-made-for-hire, Producer hereby assigns all rights in and to the Materials (together with all goodwill) to Network. Copyright - 17 U.S. Code § 102 (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1)literary works; (2)musical works, including any accompanying words; (3)dramatic works, including any accompanying music; (4)pantomimes and choreographic works; (5)pictorial, graphic, and sculptural works; (6)motion pictures and other audiovisual works; (7)sound recordings; and (8)architectural works. (b)In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Copyright Requirements Copyrightable subject matter Fixation in a tangible medium of expression Originated with or created by the author Derivative works: Gracen v. Bradford Exchange (1983) Substantial differences between the original and the derivative required Copyright Formalities Automatic protections Registration benefits Pre-requisite to a copyright claim Evidence of ownership Ownership Sole ownership Joint Work Prepared by two or more authors Objective manifestation to merge contributions into a whole Importance Examples McMunigal v. Block (2010) Aalmuhammed v. Lee (2000) Work for Hire Made within the scope of employment Specially ordered or commissioned Instance and expense Marvel Characters v. Kirby (2013) Work for Hire – Sample Language Ownership. The Show and all results and proceeds of Producer’s services while producing the Show (“Results and Proceeds”) will be prepared as a work specifically commissioned as a work-made-for- hire for Network’s ownership and use throughout the universe in any and all media now known or hereafter devised. Producer agrees and acknowledges that Network will be the author and exclusive copyright owner of the Results and Proceeds, and any elements thereof, for all purposes throughout the universe, which will include, without limitation, the right for Network, and any Network sub- licensee, to edit, clip, crop, resize, retouch, alter, adapt, modify, distribute, and create derivatives based on the Results and Proceeds. If the foregoing is insufficient to place authorship and ownership of the Results and Proceeds with Network, Producer hereby irrevocably assigns, transfers, and conveys to Network all right, title, and interest in and to the Results and Proceeds. Except as expressly set forth in this Agreement, no rights of any kind in the Results and Proceeds will be retained by Producer nor will there be any reversion of rights to Producer in the future. Producer hereby waives any moral rights or “droit moral” (including, but not limited to any rights of attribution or integrity). For the avoidance of doubt, the Results and Proceeds include all elements (digital or otherwise) and physical materials made or created in connection with the Services. Copyright Rights Copy or reproduce Adapt/prepare derivative works Distribute/sell Publicly perform the work Exception: Non-profit performances Non-dramatic literary works and music No admission fee No commercial advantage Digitally transmit audio works Copyright issues Transfer Importance of terms Stewart v. Abend (1990) Termination Automatic termination Who can terminate Performance rights PROs TV American Broadcast Companies Inc., v. Aereo (2014) Moral rights Intellectual Property: Copyright II Professor Nader Khorassani USC LAW 311 Exclusive Copyright Rights Copy or reproduce Adapt/prepare derivative works Distribute/sell Publicly perform the work Digitally transmit audio works Copyright Infringement Elements: Ownership of the copyrighted work Defendant copied the work or took another exclusive right of the owner Plagiarism Access to the work + substantial similarities of ideas and expression No defenses exist Film Infringement Similar ideas and expression Sheldon v. MGM Pictures (1936) MGM v. American Honda Motor Company (1995) Steinberg v. Columbia Pictures (1987) Television Infringement Ringgold v. Black Entertainment Television, Inc. (1997) Music Infringement Sampling “Thou shalt not steal” Grand Upright Music Ltd. v. Warner Bros. Records (1991) Key fact here? Bridgeport Music v. Dimension Films (2005) Question of fact Lay audience test: Defendant took from plaintiff’s work so much of what is pleasing to the ears of lay listeners, such that they stole something which belongs to the plaintiff Baxter v. MCA (1987) (E.T.) “Blurred Lines” case “Thinking Out Loud” case Strategies to defend? Contributory Infringement: Providing equipment to infringe Know or have reason to know of infringement A&M Records v. Napster (2001) MGM v. Grokster (2005) Defenses Parody Fair use Innocent infringer Strict liability Not a defense No notice Fair Use Purpose and character of the use Commercial or educational? Transformative use? Nature of the copyright work Creative or technical? Published? Amount and substantiality of the portion used in relation to the whole How much of the original work is used Which part? Effect of the use upon the potential market value for or the value of the copyrighted work Hurting market for the original work? Fair Use – Examples Harper & Row v. Nation Enterprises (1985) Sheree Whitfield The Real Housewives of Beverly Hills ASMR Fair Use - Issues Defense Why is this not ideal? Unpredictable Jury or judge decides? Asking for forgiveness vs. permission Parody Requirements: New work based on an old work Old work is clearly recognizable Criticizes or comments on the old work Does not take more than reasonably necessary Does not impact the market for the old work Remedies Injunctions Money damages Calculation Apportionment Statutory damages Up to $150,000 Marcus v. Rowley (1983) Criminal liability Willfulness Financial gain Attorneys fees Intellectual Property: Trademark Professor Nader Khorassani USC LAW 311 Trademark What is a trademark? A word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors. Difference from copyright? Purposes Consumers Goodwill Trademark rights Exclusive use Duration Continued use Trademark Requirements Use First in time, first in right Distinctiveness Fanciful and arbitrary Suggestive Descriptive Multiple words Secondary meaning Generic Scope Registration Procedure 30 day period Opposition Period Grounds to oppose Benefits Listed Ownership Customs Social Media Trademark Infringement Legally protectable trademark Benefits of registration Ownership of the mark Seniority A likelihood of confusion Initial interest, non-purchaser Likelihood of Confusion Factors to consider: Strength of the plaintiff's mark The similarity between the two marks The similarities of plaintiff's and defendant's products or services The likelihood that the plaintiff will expand its business into defendant's field Evidence of actual confusion The quality of defendant's products The sophistication of buyers Defendant’s intent Trademark Infringement - Examples Strength of the plaintiff's mark Beverly Hills Driving School The similarity between the two marks The similarities of plaintiff's and defendant's products or services The likelihood that the plaintiff will expand its business into defendant's field Evidence of actual confusion The quality of defendant's products The sophistication of buyers Trademark Dilution - Blurring Distinctiveness Famous Household name Dilution by blurring Distinctiveness is impaired by association with another mark Factors: Similarity of marks Any association between them How exclusively the owner is using the mark Intent to associate Trademark Dilution - Tarnishment Distinctiveness Famous Tarnishment: Mark is harmed through association with another similar mark Similar, lower quality mark Portraying the mark in an unflattering way Dallas Cowboys/Adult Film George of the Jungle 2 Defenses Fair Use Classic: using a mark to describe your own services Descriptive Nominative: refer to the owner of the mark’s product Is using the trademark necessary? Is the mark used more prominently than necessary Any false suggestion of sponsorship or endorsement? Parody Artistic relevance Likelihood of confusion? Dilution? News Exception Remedies Injunctive relief Monetary Damages Actual damages Disgorgement Attorneys Fees Personality Rights Professor Nader Khorassani USC LAW 311 Privacy Rights Intrusion upon seclusion Public disclosure of private facts False light Appropriation State law rights Intrusion Upon Seclusion Elements: Intentional intrusion on private concerns Private Highly offensive to the reasonable person Information disclosed would have caused mental suffering, shame, or humiliation to the person of ordinary sensibilities Boring v. Google (2010) Nader v. General Motors Corp. (1970) Public disclosure of private facts Elements: Public disclosure Private fact Highly offensive to a reasonable person Is not of legitimate concern to the public Social value of the facts Extent of violation of private affairs Plaintiff a public figure? Examples 1st Amendment? False Light Elements: Published information about the Plaintiff Portray the plaintiff in a false or misleading light Highly offensive or embarrassing to the reasonable person Defendant published with reckless disregard for its offensiveness and truth Examples Appropriation Generally Elements Knowingly Uses another’s name, voice, or likeness Recognizable For commercial purposes Expressive speech Transformative? Examples White v. Samsung (1992) ETW Corporation v. Jireh Publishing (2003) Defenses to Privacy Claims Death Right of publicity Consent Newsworthy Social value of the facts Extent of violation of private affairs Plaintiff a public figure? 1st Amendment Transformative Damages Monetary damages The plaintiff’s level of fame How much money the plaintiff has earned from their likeness in the past Previous contracts and licenses that include royalties Whether the plaintiff’s publicity rights have already been licensed How much money the defendant made from their use of the plaintiff’s likeness Injunction Attorneys Fees  Is it allowed? The Purge Knowingly Uses another’s name, voice, or likeness For commercial purposes Defamation Professor Nader Khorassani USC LAW 311 What is Defamation? False statement that causes injury to the Plaintiff’s reputation Factual statement Dramatizations: would a reasonable viewer think the content was a statement of fact? Defamation Elements Defamatory statement Of and concerning the plaintiff Published to a third party Falsity Malice Defamatory Statement Defamatory statements: Subject one to hatred, ridicule, or contempt Reflect negatively on one's reputation for morality, integrity, or honesty Tend to to negatively affect one's financial status or standing in the community Slander per se Loathsome disease Unchaste behavior Serious crime/immoral conduct Harmful to business/profession Opinions? Of and Concerning the Plaintiff Naming the Plaintiff Describing the Plaintiff Those who know or know of plaintiff reasonably connect the plaintiff to the defendant based on circumstances or facts they know Recipient reasonably understands the statement is directed at the Plaintiff Groups Examples Published to a Third Party Any publication counts Fault: at minimum, negligence Unforeseeable publication Republication rule Third party content/Internet service providers: Section 230 First Amendment Concerns - Public Figures Private figures General public figures Prominence in society Limited purpose public figures Thrust themselves into the spotlight Bootstrapping Falsity Plaintiff must prove falsity if they are public figure Malice Actual knowledge of the falsity of the statement Reckless disregard as to the truth of the statement Private individuals: negligence Clear and convincing evidence required How to prove? Failure to investigate Knowledge of contradictory facts Exaggerations Assuming the worst as true Sources Timing Defenses Death Privilege Absolute Qualified Fair report Consent Truth If not a public figure Retraction Defamation Flow Chart 1. Statement of fact? If yes, then 2. Is the plaintiff a public figure? If yes, then keep going. If no, skip to step 5. 3. Is the statement false? If yes, then 4. Did the defendant act with malice? If yes, then 5. Is the statement defamatory? If yes, then 6. Is the statement of and concerning the plaintiff? If yes, then 7. Was the statement published to a third party? If yes, then 8. Defamation claim successful, subject to defenses. Mention it all Baby Reindeer The Real Housewives of New York City Defamatory Statement Of and concerning the Plaintiff Published to a third party Falsity Malice