Entertainment Law Lessons

I reviewed three stories from podcasts on EntertainmentLawUpdate.com, and I found each one very interesting and applicable to my own business endeavors.

First was the case of Viacom suing YouTube because of some videos uploaded by viewers may have been infringements of Viacom’s copyrighted material.  In 2010, the district court ordered YouTube to remove the material.  However, it is interesting to note something called Red Flag Provisions, which state that an Internet Service Provider should know about any illegal actions on its web site and take action.  YouTube believes there is greater room for interpretation of these provisions, insisting that Viacom inform them which videos are the problem.  Viacom insists the responsibility belongs to the ISP to search their content to remove any questionable material.

This situation speaks to the need to know what is being done in the name of a company; as with YouTube, even though they are not creating the content, they are being held accountable for action on their web site.  This will be important to keep in mind when others are representing my business or when my business is representing others – the highest form of integrity is essential, just as is the need to be aware of what is done with the name of my company.

This podcast can be found @ http://traffic.libsyn.com/entertainmentlawupdate/EntertainmentLawUpdateEpisode026.mp3

The second case involves a screenwriter posting a treatment of a script online at Reddit.com, entitled Rome Sweet Rome, the story of what would happen if US Marines went back in time to fight the Roman soldiers.  Warner Bros. saw it and bought it.  Apparently, Reddit.com, not the writer, holds exclusive rights to the material. Conde Nast owns Reddit.com.  The web site is designed as a discussion post for works in progress, but perhaps not as a marketing tool.  But the problem is with the terms of service and the control that Reddit has. 

The cautionary tale here is that if you’re going to share your work for comments from the public, be sure to read the terms of service for exclusive rights – be sure you own these rights before you post.

This one can be found @ http://traffic.libsyn.com/entertainmentlawupdate/EntertainmentLawUpdateEpsiode025mp3.mp3

The last case involves LimeWire (a peer-to-peer file sharing program), which is allegedly involved in piracy of music files.  A settlement was reached between LimeWire and major record labels.  However, when Merlin, a managing company for smaller independent labels, approached LimeWire, they said they did not know these smaller labels or the Merlin company, thus no settlement was offered.  The question that arose is whether this third party, Merlin, has rights to represent independent labels in pursuing legal action against LimeWire. 

This situation illustrates the need to be sure agreements are completely understood, especially when it comes to representation in legal matters.  This will be important to my business as it will be involved with various outside vendors and third parties, so knowing exactly where my company stands with regards to all rights will be vital.

This podcast can be found @

http://traffic.libsyn.com/entertainmentlawupdate/EntertainmentLawUpdateEpisode024.mp3

Netflix, Monkeys and Piracy - a commentary

Netflix lawsuit dismissed

The class action lawsuit against Netflix was recently dismissed in a California court.  According to a Hollywood Reporter article, the lawsuit claims Netflix had an illegal arrangement with Wal-Mart regarding DVD rentals, and that the agreement lead to antitrust actions by Netflix, resulting in higher prices for its DVD rental members.  The suit alleges that when Netflix and Wal-Mart signed this agreement, and when Amazon did not enter the DVD rental business and Blockbuster went bust, the moving of Wal-Mart DVD customers to Netflix was an illegal move to raise Netflix prices and was intentional from the beginning.

In the decision by the judge, it was stated that Wal-Mart was an independent party and its decision to pull out of the DVD rental business was an independent move, not a collusive effort by Wal-Mart and Netflix in order to gouge customers.

This is most interesting, as it seems to be more of a frivolous lawsuit than a real issue.  Nevertheless, it is interesting to note that the plaintiffs were sure that this agreement was illegal and a concerted effort by these two companies to turn DVD rentals into a monopoly for Netflix.  The fact that the other DVD rental companies have gone under or gotten out of the business seems to be a coincidence.  The DVD rental industry has been in flux for some time now, and it is impacting many media companies and retailers, not just the DVD rental companies.  For some consumers to think this was collusion seems rather ludicrous.  This decision supports the notion that the industry has been, and is in, a real state of change and adapting – this is mandatory for any business wanting to stay alive.

http://www.hollywoodreporter.com/thr-esq/netflix-antitrust-lawsuit-tossed-265363

Monkey owns copyright

If a monkey takes a picture with a camera, who owns the rights?  That is a very good question, and one that was recently addressed by the US and British Copyright laws.  According to the law, any image created by a non-human is immediately in the public domain, which causes some problems for Cater’s News Agency, whose photographer apparently lost control of his camera temporarily only to find images on the camera that he had not taken.  The agency claims the right to control the images, but the law says otherwise.

This is hilarious!  A monkey grabs an abandoned camera and snaps a self-portrait or two.  It would seem the photo, taken with the photographer’s camera, would belong to the photographer.  But according to both British and US law, this is not so – and the funny business ensues.  So, the monkey actually owns the rights, so the photographer – technically – cannot sell or license the images to anyone, not even himself.  This had been addressed in theoretical discussions about a stranger taken a photo of you with your own camera, but no one really gave it much thought since it was unlikely the stranger would pursue the rights.  But this is very unique, especially since the photo is so darn funny!  And in perfect focus, too! 

This brings up some other points: what about the photos taken by robots? Or those activated by motion sensors or other devices?  I’ve not read the law, but based on this story, one might think there could be other, similar issues.

http://ipandentertainmentlaw.wordpress.com/2011/08/18/bananas-for-copyright-law-who-owns-pictures-snapped-by-monkeys/

The Stop Online Piracy Act threatens Internet

Bill H.R. 3261 first emerged October 26^th, and has caused some controversy.  It’s goal is to counter the actions of web sites located outside the United States which are involved in several things, such as the sale of fake prescription drugs and the piracy of entertainment content.  HR 3261 has a companion bill that was introduced earlier in the year, the PROTECT bill (Preventing Real Online Threats of Economic Creativity and Theft of Intellectual Property Act), and it, too, has stirred up quite the storm, as more than a hundred law professors from around the country have sent letters to the Senate arguing against the issues raised by these bills.

Concerns include the over-breadth of the bills, as imposing penalties, which can include taking a site down, if there is any content that is an infringement of copyright law – regardless of source or who posted it.  Another concern is the vagueness of the bills regarding this infringing material: the term used that is in question is “facilitates” in conjunction with this infringing material.  So, if the site facilitates the infringement of illegal copyrighted material, the site can be in violation of the law.  But nowhere in the bill is a definition of “facilitates” provided.  This generates tons of questions regarding this vagueness, and the potential for a lot of problems for many websites.

This is a very interesting situation, as the distributors of creativity and the creators of creativity are pitted against each other at a time when they can only truly survive with the existence of the other in a kind of symbiotic way.  One would think there would be a way for these two to work together on a solution without the intervention of the legislature, but apparently that isn’t the case – yet.  There must be something done about piracy, yet having such stringent and vague laws that open up the potential for even more litigation against legitimate businesses doesn’t sound like a viable option.  Hopefully common sense will reign supreme, but as Will Rogers said, “The problem with common sense is, it ain’t common!”

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202533827542&Stop_Online_Piracy_Act_Puts_Future_of_Internet_at_Stake&slreturn=1

YouTube announcement - It's going to become more television-like!

In an article by Todd Spangler in the hard-copy edition of Multichannel News, I read that YouTube is "going professional" with an agreement with various entities to produce professional looking content for its 96 new video channels. 

This is very interesting, for a pioneering site to be developing itself like this, to finance and provide professionally produced content for its growing audience; it sounds kind of familiar, doesn't it?  Among the partners YouTube has teamed up with are Madonna, Shaquille O'Neal, Ashton Kutcher, Deepak Chopra, The Onion, Jay-Z, Hearst Magazines, Varsity Pictures and The Wall Street Journal. This is quite the eclectic collection, in my opinion.  But, if you're trying to fill up 96 "channels" you need content providers, so maybe this is a great opportunity to see what these providers can deliver.

Spangler explains in his article that one reason to launch on the Internet is the cost.  "It's extremely expensive to create and launch a linear TV network....” And the position Google (parent of YouTube) is taking with this endeavor is that of "growing the universe of video entertainment and news options available to consumers."  And, according to Barclays Capital analyst, Anthony DiClemente, “This is Google’s first step toward providing a more robust platform for professionally produced independent content, and… positions Google to act as a distributor in a bid toward capturing incremental ad dollars that are traditionally directed toward TV.” (Spangler, 2011)

This is all very interesting, as it sounds very much like Google is trying to turn YouTube into a traditional distributor, with content produced with that professional look so many enjoy on traditional TV, and with the advertising so many almost loathe on traditional TV, and it sounds a lot like YouTube is trying to become more like traditional TV with it’s many production companies creating content for the masses and the big ad dollars.  So, YouTube is becoming the newest provider for television service.  Very interesting – it all seems so “traditional” – but with a twist, of course.  Funny, that old adage of “what’s old is new again” seems to ring true here, even with the twist that these will be independent production and not the traditional content producers we’re accustomed to.  And it sounds like this is all being orchestrated in this way to garner those all important ad dollars.  It will definitely be interesting to see how this new venture bodes for Google’s YouTube.  It seems like YouTube is working on growing to become so very much like the traditional TV that web enterprises like YouTube were originally trying to break.  And the traditional TV networks are becoming more and more like the TV of the future I’ve read about in other courses through the years, with the end of linear networks as we now know them, evolving into the video-on-demand networks, where each viewer becomes the program scheduling department.  It appears as if these two approaches by these different “camps”, if you will, are evolving into each other almost.  Truly fascinating developments in this realm of the glowing box, or screen.  I will be very interested in following the success of these changes coming to YouTube; who knows, maybe one day soon I’ll be able to sit down and turn on my TV to channel 1006 and watch the YouTube network’s new Fall lineup featuring the new game show “What’s My Line?” – you never know.

Spielberg and Jackson: Off on another adventure (?)

In a film review of The Adventures of Tintin: The Secret of the Unicorn, Jordan Mintzer writes of Steven Spielberg’s next endeavor to be available to the public.  It is very interesting that Peter Jackson has teamed up with Spielberg on this trilogy, as he is not even directing this film, but is waiting for the second installment before helming the production.  Another familiar name, and even more familiar soundtrack wizard, John Williams is also on-board for this adventure.  But among the most interesting things about this next film series is that most Americans have almost no knowledge about the leading character, even though he’s been world-famous for decades.  Another interesting point is the style being used to tell this story: motion-capture animation.

First off, Tintin is a Belge comic book character that was published in Europe from the 1930s through 1976.  Having lived in Europe for a few years, I am familiar with Tintin.  But mention that name in the States, and most people think of another star, namely a four-legged hairy one, Rin Tin Tin.  So even though Tintin is like the Superman of Europe, he is not well known here – and perhaps that is why: he’s native language is French and he does not herald from America.  That fact that Spielberg had taken enough of an interest in this character says a lot: many things Spielberg touches have an instant “value” added to them; even though not all of his works are blockbusters, there is a great amount of worth added to anything that has that name associated with it.  The reviewer of this motion picture states that this comic book character is actually a throw-back to Spielberg’s best known work: Indiana Jones.  And Mintzer writes that this story is no exception: it is full of adventure and humor; the types of things movie goers love to consume together.

To the other interesting point of this being told using motion capture, I have my concerns about this method.  Not that it can’t be a great storytelling medium – it can be.  Even though some of it is a little odd, The Polar Express has become somewhat of a favorite in my household.  But then there is Disney’s Mars Needs Moms and A Christmas Carol, both motion capture films.  While A Christmas Carol reaped approximately $325.5 million worldwide (McClintock), which is considered a “so-so” earnings, Mars Needs Moms only garnered $6.9 million on opening weekend – but it cost probably more than $200 million to produce and market.  Disney was so concerned with the viability of “mo-cap” as it is known, that they closed down the production arm that makes these types of movies.  This medium has truly been embraced with open arms, and as McClintock mentions, the public tends to enjoy mo-cap better when it doesn’t feature humans.  Thus, I’m puzzled with Spielberg’s decision in its use for this new movie.  But, maybe it will be the one that wins over the public and we will then start to see an upswing in mo-cap movies, just like the huge influx of CGI movies that were green lit by everybody after Toy Story was such a success.

I believe the name Spielberg is the clincher here, though.  That alone will get audiences to take a look.  So it will be interesting to see what happens after this release – which is apparently in this December; I’ve not heard a thing about this movie’s release until researching for this blog posting.  I hope it does well, but I do have my reservations.  As I said, maybe Spielberg will be the magic that is needed to make this character a truly world-wide name and will renew interest in motion capture animation.  Now we must simply wait and see.

Interview with a Deal Maker

I recently spoke with a colleague, Josh, who is in the advertising sales business, selling available commercial time on a cable television network.  I asked a few questions about his negotiating practices, and his answers are featured below:  

I first asked Josh about the challenge of separating people from the problems in negotiating, and he responded, “When in negotiations with clients, who in a majority of the time are friends, I have to separate the friendship from the business relationship.  A lot of buyers like to use the friendship as leverage to get a better deal; however, I just always put the business objectives of the network ahead of any friendship.”

Then I followed up with a question of dealing with the negative emotions that often arise in negotiating.  To this, Josh said, “In direct response [advertising], we deal with a lot of negative emotion, especially when a client is bumped or just not clearing.  We deal with this by offering the client an alternate option or options, and they’re usually satisfied.”

When I asked about using leverage and power, he answered that during “the past two years, the sales teams certainly had the leverage with all the money coming in; we were picking and choosing what business to take.  However, everything is cyclical, and I never abuse any power I may have at the time.”

I then questioned Josh about how he deals with shady tactics or tricky deals, to which he simply answered, “I personally only experienced one shady tactic, and my way of dealing with it was to go to management, make them aware of the situation, and then just handle it the way our company policy tells us to.”

Josh continued, explaining about his take on mutual benefit negotiations.  “I don’t really like to do any mutually beneficial deals.  In my negotiations, I have seen it backfire badly.  I sell what we have at the rates needed to achieve [our] goal.  I will, however, always try to help clients in any way possible to make their deals work.  I never make any promises or guarantees, but I usually am able to get them some sort of deal, if need be.”

Facebook Not Getting Into Content Creation

In an article on streamingmedia.com, author Adrian Pennington writes about a keynote speech at the broadcast trade show, IBC, by Joanna Shields, European vice president and managing director for Facebook.  Shields states that all the talk of Facebook entering into content creation is just that, talk; there is no truth to the rumors.

Shields did state that there is a strong tie of television to social media, and that “all TV will be social in the future.” (Pennington)  Her opinion is that TV was the first of the so-called social networks, and she believes television is actually a better medium when it is indeed social, involving the viewer in entirely new ways. 

This is very interesting, as Shields further explains that she believes the use of Facebook by its 750 million users will provide new viewing experiences, making the whole process better, and even creating new sources of revenue.  Her main point was that media companies who partner with Facebook could tap into the same power to share its users possess, of sharing with others the things they care most about.

This is a most interesting concept, as Facebook has turned into a hub of connections: people, print media, TV, radio, etc., all have an outlet offering with Facebook.  Shields sees this as a natural resource that can be monetized, in a “word-of-mouth” sort of way, but on a much grander scale – especially when one considers the Facebook facts: on average, Facebook users have 130 friends, and if an item is shared with each of those friends, and with the friends of those friends, and so on, the potential is 2.1 million friends of friends of friends – and these are people talking about products and programs that they care about, not just random eyeballs or ears.  (Pennington)

Examples of monetization, as provided by Shields, include: sponsored stories, movie rentals, voting on a television program, and playing games.  Her biggest concern, as it should be, is that of possibly missing something in this ever-changing world of interconnectivity.  It will be interesting to see how much of this speech comes to fruition in the coming months and years.