Safe Harbor Defense, Copyright Infringement, and Other Liabilities of the Entertainment Industry

As I mentioned in my last blog, the Entertainment Industry is run and burnt down by contracts and lawsuits.  However, this doesn't just apply to the Entertainment Industry.  Anyone starting up their own business, whether they realize or not, will have a ton of liability concerns to deal with.  Whether it be just getting your business set up or actually running it, one of the biggest mistakes a business owner can make is overlooking or ignoring liabilities.  That being said, those potentially starting a business in our world of music, film, and sports should look for liability advice specifically from your attorney.  Utilizing a great attorney will not only protect you and your business from possibly unforeseen liability issues, but will overall create a better experience for you, your employees, and your customers.  But what if you haven't gotten that far yet?  What if you are at a point where you are looking to start a business, but you'd like to gain more knowledge about the most common liability issues currently facing our industry?  Well, you're in luck.  There are a ton of resources out there that give you vast amounts of knowledge and lessons learned by others that have treaded before you, and the best part about it all is that it is almost always free.  One of the best free resources out right now in regards to the legal and liability side of the Entertainment industry is Gordon Firemark's Entertainment Law Update.  Here you can listen to multiple podcasts on various industry topics, including but not limited to current court cases, 360 deals, taxes, and more.  I took the website for a test drive to see what's what.

California Talent Agencies Act and the Safe Harbor Defense

California Talent Agencies Act and the Safe Harbor Defense

The first podcast I listened to is entitled "Episode 29- 360 deals, rights of publicity, and more".  As is the format for all of Firemark's podcasts, many topics were discussed, including music sales vs. license litigation, copyright termination, and transmission fees.  The topic that caught me immediately though was regarding 360 deals and there place in the Entertainment industry, specifically in regards to whether or not it is in violation of the California Talent Agencies Act.  For those who don't know, a 360 deal is virtually a contract that is signed by an artist with a record label that allows the record label to make money on every aspect of the artist's career.  The profits shared with the label can come not just from record sales, but from live performances, merchandising, sponsorships, acting, and more.  There are two types of 360 deals; one where the record label not only collects a profit share but owns the rights to all work, and one where the record label collects a profit share but the artist owns the rights.  The issue is with the California Talent Agencies Act.  The CTAA is a section of the California labor code that states that only a licensed agency can search for and book employment for the talent.  The act is specifically meant to protect the artist from being offered an employment opportunity that turns out to be completely different than promised.  Knowing this information, you would think that 360 deals wouldn't be possible with record labels.  Well, there's a loophole.  It's called the Safe Harbor defense.  In this circumstance, someone such as a manager or a record label executive can book employment for an artist as long as they are working in conjunction with an actual licensed representative and it is at the request of the artist.  If the Safe Harbor defense isn't applicable to whatever the circumstance may be, then there are consequences to the entity that booked the employment for the artist.  This includes repayment of all commission, along with voiding parts of, if not the entire contract that was signed.  A good example of this is the Marathon Entertainment Inc v. Blasi Supreme Court case.  The lesson learned?  Make sure you have proper representation.  Regardless of whether it's paying a lawyer to draft a contract or attempting to book a gig for a client, one missed step and you could go from making millions to owing millions.

Going "Gaga" over GaGa

Gaga Pure Platinum vs Lady Gaga Trademark Dispute

The second podcast I listened to is entitled "Episode 32- Lawyers, Libel, Logos and Lollipops".  In this podcast, one of the topics Firemark talks about is a trademark dispute that Lady GaGa is currently dealing with.  GaGa's company, At My Heart Inc, is attempting to trademark both "Lady GaGa" and "House of GaGa".  The issue is that there is a cosmetic company named Gaga Pure Platinum that has owned the trademark to Gaga since 2000, long before Lady GaGa's persona ever existed.  GaGa is attempting to register those names under the Class 3: Cosmetics & Cleaning Products trademark registration, but the USPTO has kicked back the application twice.  Because of this, Lady GaGa and her legal team have filed a federal lawsuit to attempt to gain ownership of the mark.  Now it has turned into a PR battle.  GaGa's people are claiming that they would never attack anyone's rights, but the mark they are requesting has not been used in years and every attempt they have made to contact GPP has been ignored and so they have no choice but to take the matter to court.  Gaga Pure Platinum is stating that GaGa's team is not only lying about ever attempting to contact the company, but they are attempting to bully the company into giving up a mark that GPP says is still very much in use.  I did a little of my own research and found that Gaga Pure Platinum has a functional website where you can purchase cosmetics.  With a website that's up and running and products available for sale, I don't see how GaGa and her team can make the claim that it isn't being used.  We will have to keep an eye on the news to find out what happens next.  I think the biggest lesson to learn from all this is to try and be as approachable, supportive, and open as possible when you want something from someone.  It seems to me that this whole debacle may have been easily solved without a lawsuit if GaGa's team would have followed the basic steps of communication.  Furthermore, an equally important lesson learned is to do your research on any trademarks you may want to dive into early in your career (or before you even officially start).  I'm sure GaGa will get way more of a battle now that she's as big as she is, as opposed to attempting to acquire the trademark before anyone really knew who she was.

Copyright Infringement Against Mike Tyson's Face

Hangover 2 Copyright Infringement Lawsuit

The third and final podcast I listened to is entitled "Episode 25- What's with all the Zombies?".  Of all of the crazy topics that are covered in this podcast, the section that caught my attention the most was the lawsuit brought against Warner Bros., the company who made "The Hangover 2".  Now, this film has already seen its share of lawsuits.  The first case, which was eventually settled out of court, involved a copyright infringement lawsuit pertaining to the tattoo on Mike Tyson's face.  The tattoo artist that worked on Mike Tyson's wearable art sued based on the claim that the tattoo was copyrighted material, and recreating it and putting it on Ed Helm's character in the movie was infringement.  Not long after, another lawsuit was brought up against Warner Bros. (this one is actually still pending) from a stunt man named Scott McLean that suffered extensive cranial damage, specifically brain injuries, while filming the movie.  He was in the middle of an automobile stunt where he was doubling for Ed Helms, and right before the shoot the stunt coordinator (and co-defendant) Russell Solberg suddenly decided to change the timing sequence and speed up the vehicle's MPH in order to increase the suspense.  When this happened, an accident occurred and McLean's head was extensively damaged.  Now Warner Bros. is being sued again on the basis that the entire premise of the film was stolen and used without consent.  Plaintiff Michael Alan Rubin claims that the script is actually a defaming rendition of a script he wrote a couple years ago, entitled "Mickey and Kirin", about his experiences in Asia during a honeymoon that went array.  The script was registered by him with the Writers Guild of America, and that is where he believes his idea was taken.  He goes on to state that that not only is he suing for copyright infringement and misappropriation of his publicity rights, but also for defamation as he claims the filmmakers "suggested the inference that he was under the influence of drugs when he ditched his girlfriend and proposed to a male-to-female transexual prostitute".  Although most of the industry believes this lawsuit provides nothing but a good laugh, Rubin believes in his accusation so much that he has decided to represent himself instead of "lawyering up".  Good luck with that, buddy.  As humorous as this may be, the biggest thing to take away from this is to have a great attorney on your side.  It definitely can't hurt.  As the evidence shows, you never know where a lawsuit may come from.  Having an experienced, meticulous attorney on your side will help prevent most, if not all liabilities from occurring.  The brick wall defense that your attorney can build will offer much greater protection than the house of cards most of us would create by attempting to prepare, prevent, and defend business liabilities on our own.

Lessons Learned (Or Not) in the Entertainment Industry

The legal system is seemingly forever entwined with the Entertainment Industry.  In a world that is ran and burnt down by contracts and lawsuits, the Film, Music, and Sports industries will always have a great need for legal professionals and their services.  With so many different aspects of the law, legal precedence is a vital tool that every business needs to use in order to protect them from liability.  Many artists and businesses could actually save a little money on lawyer fees if they would just do a little research about past judicial cases on their own time.  That being said, lets take a look a couple recent cases involving my particular area of focus, Artist Management.

The first case is the most recent, and involves one of the most high profile hip-hop stars out right now.  The story allegedly goes that sometime in ‘07 or ‘08 Jas Prince, son of J Prince, discovered Drake and introduced him to Cortez Bryant and Lil Wayne. Prince and Bryant came to an oral agreement at that time that Prince and his father would get paid to develop and sell Drake’s entertainment services, as well has handle the business side of Lil Wayne’s records.  In 2009 Prince decided that he wanted out, and came to a settlement with Bryant that he would receive a portion of Aspire’s profits, a majority share of interest in Drake’s masters, and a percentage of Drake’s gross income coming from the management deal.  Prince is suing because he hasn’t yet received any payments, and every time he attempts to get paid Bryant and the management team redirects him to their lawyer who won’t return his phone calls.  He states there has been a breach of the oral agreement, the settlement, good faith and fair dealing agreement…virtually every agreement they ever came to.  As if this weren’t enough, Drake is also suing because he wants to renegotiate his record contract.  And, of course, both of them want their money owed.  In my opinion, this seems like just another situation where an up-and-coming artist and their friend/manager are approached with a deal that puts sparkles in their eyes and they quickly sign, only later to realize that the deal wasn’t all that great.  Personally, I don’t understand why those just trying to break into the entertainment world don’t look at this more closely.  It’s obvious to me; don’t agree to any contract on the spot without some time to analyze, reflect, and research.  There's nothing wrong with asking for time to review a contract.  If the people you are dealing with don't want to give you the time then you probably don't want to be in business with them anyway.  Now, if the contract doesn’t have specific instructions on when, where, and how much Prince and Drake should receive compensation, then this falls on Prince and Drake.  It’s unbelievable how fiscally irresponsible some people are with their careers, and it looks like this could be another case.  Even if the stipulations are in the contract and Bryant and the company still aren’t paying, it’s again on Prince that he waited so long to confront the issue the way that he has.   The moral of the story here is to attack a problem as soon as it arises, and be as absolutely detailed as possible in your contracts.

Another interesting case that’s been in the news currently is the disagreement between Ed Kowalczyk and Action Front Unlimited, the company started by Ed’s old band Live.  The band has split, but they all still own equal share in the company.  The problem lies in the fact that the company owns the trademark rights to “Live”, and Kowalczyk has been operating his artistic business using the Live name without consent from the other members of the band.  The band’s company wants compensated for trademark infringement and dilution and false designation of origin, totaling $2 million in damages.  Kowalczyk stance is that he owns part of the company that owns the trademark so he should be able to use it accordingly.  It seems like Kowalczyk may not have the upper hand in this situation.  The other three members of the company are stating that Ed virtually refuses to recognize that he is no longer associated with the band “Live” and continues to use the trademark anyway.  It sounds like Ed might be trying to hold onto the glory days in an attempt to boost his commercial appeal.  At the same time, he is and will forever be the face of that amazing 90’s alternative band, which could potentially hold significant weight in court.  Considering this could cost Kowalczyk a good amount of money, the lesson learned here is to make sure what you’re using is in fact OK to use.  This is a responsibility that an Artist Manager needs to make sure his client is holding to.

The last case that has been in the news lately that I would like to discuss is; well, it’s believable but leaves me even more skeptical for the future of this Earth.  Here’s the situation.  Legendary front man Ozzy Osbourne is performing at his annual Ozzfest show in Phoenix, Arizona…in the middle of the day…in August.  Lets keep in mind that the average high temperature in August in Phoenix is 104 degrees.  OK, now that you have a good understanding of the environment, back to the action.  Ozzy is up on stage rocking away as only Ozzy can, when he notices a woman in the crowd with a one-year-old kid.  Yes, you read that correctly.  This brilliant woman didn’t just bring her infant to a concert; she brought the baby to a heavy metal festival in the dead heat of summer in the hottest city in the United States of America and stood close to a stage that’s pumping insanely loud and violent sound waves through speakers that are bigger than the car she probably drove in with the baby in the front seat facing the window.  I digress.  Ozzy sees this woman holding her baby, and understanding the intense heat and the stress it must be to the child, grabs a water bottle and tosses it in the lady’s direction.  Somehow the water bottle miscues and hits the baby.  Several years later, this lady now is suing Ozzy for $80,000 in damages.  Are you kidding me, lady?!?  A guy whom you obviously have great appreciation for shows compassion towards you and your family, an accident occurs, and your sorry self has to sue?  Between this story and the recent Justin Bieber lawsuit with the girl suing him for putting his arm around her during a photo, I can understand a little more why some stars are rude or introverted in public.  Both guys were being generous and compassionate to their fans, and it ends up costing them time and money.  I will never fully understand why people do and say the things they do, but I honestly do find it truly disappointing that so many people throw away their morals just to make a buck.  As far as what to take away, this case shows that anyone high profile should be analytical and cautious when interacting with fans.  An Artist Manager would need to discuss this with his clients as they gain popularity and are forced into more social interactions.

At the end of the day, we can't all act like Peter Grant.  The grand point to take away is that just by paying attention to what’s going on within your specific niche in the industry, you can be better prepared to handle any liability that could come your way.  It all comes down to analysis, detail, and preparation.  If an Artist Manager can master those three skills, they will be better prepared to take on the Entertainment World, particularly the area of Law.