Entertainment And Media Law For The Twenty-First Century

Wednesday, February 1, 2006 - 01:00

Global Entertainment And Media Law Is Big Business

Entertainment is a fast-moving global business built on the exciting fusion of creativity, intellectual property law and high technology. Thanks to new technologies, entertainment's reach is increasingly broad, both in terms of its worldwide distribution and impact, and its ability to be accessed by individuals in so many ways as part of their daily lives, from the Internet to the video iPod. As a result the entertainment and media industries are more complex and multi-faceted than ever before, and thus demanding in their legal needs. For all the fun that the word "entertainment" implies, this is a serious business that needs a broad range of legal services, provided by lawyers who operate from a solid legal base, yet who understand that creativity lies at the heart of the business models.

According to Pricewaterhouse Coopers' Global Entertainment and Media Outlook, between the years 2004 and 2008, the revenues of the global entertainment/media industry - filmed entertainment; broadcast and cable television networks and distribution; recorded music; radio; video games; publishing; theme and amusement parks; casino gaming; and Internet advertising - will increase by five hundred billion dollars from $1.3 trillion to $1.8 trillion dollars ($1,800,000,000,000). These numbers are even higher if you include the closely related sports industry.

By way of comparison, 2004's $1.3 trillion figure is approximately the combined total annual revenue for the world's five largest companies from last year's Fortune "Global 500" - Wal-Mart Stores; BP; ExxonMobil; Royal Dutch/Shell; and General Motors.

The Broad Demands Of Entertainment Law

With this broad base of business, it's no wonder that the demands of practicing entertainment law are intense. The classic definition of an "entertainment lawyer" includes attorneys who are knowledgeable about the entertainment industries; understand intellectual property law; and often have networking and business relationships that help clients achieve their goals. Consider as typical examples the following sample of recent entertainment law matters handled by our firm:


  • Securing music ownership rights for commissioned soundtracks for cable television production companies and sports networks.

  • Negotiating worldwide television and DVD rights for a live concert broadcast from Germany on behalf of a classical music-presenting organization.

  • Negotiating music distribution rights for an Internet-based computer game service in the Far East.

  • Negotiating video-on-demand online home viewing agreements for a cutting-edge online film festival.

  • Litigating sound recording ownership rights on behalf of a leading independent record label.

  • Advising music publishing companies on the purchase and sale of publishing catalogs.

  • Negotiating life story rights for cable television and motion picture films on behalf of celebrity athletes and other public figures.

  • Negotiating music publishing and commission agreements for performing organizations and individuals in the classical music world, including two Pulitzer-Prize-winning composers.

  • Obtaining court approval of contracts with a minor for a major record label and its publishing affiliate.

  • Negotiating film options for novels; and terminating extended renewal term rights under copyright law held by a major film studio on behalf of a novelist's estate.

  • Securing critical trademark registrations for concert presenters and musical performing organizations.
  • Although the above list is only a small sample, it follows a traditional "entertainment law" profile in that many of the matters might be handled by individual attorneys with the proper expertise and experience. But in important respects, the needs of entertainment and media clients have evolved beyond this profile.

    The Multi-Practice Demands Of The Modern Entertainment Industry

    The needs of multi-national, digitized, and quickly evolving business models represented by the modern entertainment and media industries extend beyond the "rights and licensing" scenarios, to encompass a myriad of legal practice areas. Typical legal tasks include advice on virtually every issue that a wide-ranging business might face: real estate; tax; insurance; labor and employment; international law; asset purchases and sales; immigration; intellectual property; bankruptcy; and litigation. For individual clients, areas such as trusts and estates and even white collar defense can be a necessary part of the services required.

    If this sounds like a list of the practice groups in a large law firm, you're correct. The global scope and increased complexity of the entertainment industry has necessarily expanded the definition of "entertainment law" from deal-making to a broader range of activities. Large law firms with multiple practice groups, including large-firm litigation groups, are well suited and well positioned to handle these varied demands. The advantages of such a multi-dimensional practice can be viewed in two broad categories that complement and meld with a traditional entertainment law practice: a foundation based on intellectual property law and the broad resources of access to other practice groups.

    Intellectual Property Law Is The Foundation Of Entertainment Law

    The foundation of the entertainment and media industries is intellectual property law, in particular copyright law. At our firm, for example, entertainment law is practiced within the context of the Intellectual Property Group. The lawyers in the IP Group have national and international practices in almost all areas of IP law, including transactional and litigation work in trademarks; copyright; trade secrets; right of publicity; advertising; Internet and technology; and patent litigation. We also have lawyers with specific experience in the entertainment industry, in particular, the music, publishing, film, and television industries, who attract entertainment and media clients from around the world.

    In some cases, expertise in areas such as copyright law creates a distinct advantage in negotiations. Remember that the Copyright Act contains the legal requirements for some of the most complex licensing and ownership issues in the music business, including digital exploitation, sound recording licensing, uses of music in public television, cable television licensing, use of ephemeral copies for broadcasting, and important ownership issues such as what constitutes a "work made for hire." From the perspective of an IP Group with breadth and depth in the law itself on both the transactional and litigation fronts, the strongest negotiation stance often flows naturally from that secure legal foundation.

    For example, in a recent negotiation over music licensing rights, it quickly became clear that the "work made for hire" concessions sought by the other side were simply contrary to the relevant provisions of the Copyright Act. There was no need for protracted negotiation or argument when the irrefutable answer was that the other side's position was contrary to the law.

    Another example where the expertise of lawyers in an IP Group well serve entertainment and media clients involves the technicalities of copyright registration, and recordation of assignments. Copyright registration establishes ownership of creative works and provides important legal protections. However, a number of complex issues can arise in the course of navigating the registration process - for example, where software exists in multiple prior versions. Often, issues surrounding ownership are a key part of the "dealmaking" process, and understanding copyright ownership is an important advantage in many areas, including negotiation, securitization, bankruptcy, and others.

    Finally, an IP Group such as ours offers trademark counseling and registration for entertainment and media clients. In today's global business climate, it is important to remember that trademarks are territorial, and the importance of seeking international protection for valuable brands cannot be overemphasized. Our firm, for example, includes a very active international trademark practice.

    Large Firms Offer A Breadth Of Practice Areas To Entertainment And Media Clients

    In addition to the advantages of a firm with depth in intellectual property law, entertainment and media clients are well served when they can mine the rich cross-practice resources of a large law firm. Recent examples at our firm include a music publisher with business issues including labor and employment and landlord/tenant relations; an arts-presenting non-profit in need of tax advice; a performing organization whose sound recordings had become entangled in a bankruptcy filing; a novelist's estate in need of international tax advice; a music publisher in need of immigration advice; a musician's estate in need of trusts and estates advice; and many others. In every case, the object of the cross-practice legal team was to provide efficient and cost-effective legal services starting from and rooted in a holistic understanding of the client's business and creative goals.

    In other examples, entertainment and media companies have long sought out our multi-practice firm specifically for its nationally recognized practice groups. For example, our prominent Real Estate Department provides services for entertainment, media, and sports clients such as a national theatre chain, a major league baseball franchise, and a leading symphony orchestra. Finally, the interest in entertainment and media clients carries through to the pro bono commitments of the firm and its lawyers, with a very long list of non-profits and individuals in the arts represented by our attorneys, who in turn gain insight into the needs of the creative world.

    Conclusion

    A traditional large law firm that offers entertainment law expertise along with diverse practice groups can be a valuable resource for entertainment and media clients who seek comprehensive legal services under one roof. With diverse practice areas as part of the firm's normal structure, and attorneys who are able to understand the special needs of the entertainment and media client, service to our clients never misses a beat.

    Corey Field advises clients worldwide on copyright, trademark, advertising, and entertainment law transactional and litigation matters. He is an associate in the Intellectual Property Group at Ballard Spahr Andrews & Ingersoll, LLP at the firm's Philadelphia office. He is an Officer and former Trustee of the Copyright Society of the U.S.A.; a Director of the American Music Center in New York; and serves as a Governor and Officer of the Philadelphia Chapter of The Recording Academy, the organization that presents the Grammy Awards. He also serves as a member of the Grammy Foundation's Entertainment Law Initiative Advisory Committee, and on the Electronic Retailing Association's Legal Series Taskforce. His writings on copyright and entertainment law are published in leading scholarly journals and industry periodicals. Before becoming an attorney, Corey was an executive with an international music publishing company, and served as a Director of the Music Publishers' Association of the United States.

    Please email the author at fieldc@ballardspahr.com with questions about this article.