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.