ENTERTAINMENT LAW CIRCULAR
December 2020
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Music Modernization Act May Maximize Money For Musicians |
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Pierce Law Group LLP's Litigation Department Head, John R. Baldivia, will be moderating the a BHBA Entertainment Law Section webinar entitled "Music Modernization Act and The MLC" on December 11, 2020 from Noon until 1 pm (with video replays starting December 18th).
This is an incredibly hot cutting edge topic! The webinar will discuss the newly created Music Modernization Act and how a newly created organization known as the Mechanical Licensing Collective ("MLC") can help attorneys and clients benefit from the amendments to the federal Copyright Laws and the new blanket license program for interactive streaming services, as well as how the the MLC can make both obtaining licenses and collecting royalties easier and more efficient. The MLC's mission is to make sure all artists receive their share of the digital audio mechanical license revenue from digital services and their system commences in January 2021.
The prestigious panel will also include: Kris Ahrend, CEO of The MLC, and Kay Hanley, Co-Executive Director of Songwriters of North America. This webinar panel will also feature an actual demonstration and step-by-step tutorial on how the MLC will function, as well as provide information about what the current and future outlook of The MLC's operations will be over the next year, the launch of the new web portal and how The MLC's operations will translate into actual dollars for songwriters.
The event is free for Beverly Hills Bar Association members and only $25 for Non-Members. If you are a musician, songwriter, or music administrator sheltering at home on Dec. 11th why not tune in via web and learn about this new revenue collection source.
John Baldivia worked for Universal Music Group prior to law school and joining Pierce Law Group LLP. He is incredibly well versed in all things copyright and was instrumental in securing Pierce Law Group LLP's summary judgment this Summer which established the "Fair Use" right of actors to use footage from films in their own acting reels. Bain v. Film Independent, Inc. (decided 08-06-2020) U.S.Central District of California, CV-18-4126 PAn (JEMx).
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OUR CONTINUED TRADITION OF EDUCATING THE ENTERTAINMENT INDUSTRY... |
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RUNNING START-UP ENTERTAINMENT PRODUCTION COMPANIES COMPLETES ANOTHER SEMESTER
David Albert Pierce and his teaching partner and pal Patrick J. Gorman have completed yet another successful semester of their 11-week UCLA Extension Course titled "Starting Your Own Entertainment Production Company."
Pierce has been teaching at UCLA-Extension for 22 years. And once again the course featured presentations by Pierce Law Group LLP attorneys, including Anthony J. Hanna who shared his expertise with the class on Entertainment Union Matters. New Associate Joshua Lastine also assisted David in speaking on Issues concerning Television Production. This year's class taught online had 35 students that were tuning in from around the world from as far away places as Greece, Saudi Arabia, and China, among other foreign destinations.
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Pierce Law Group LLP's Associate Attorney Joshua Lastine completed teaching his class titled, "Entertainment Business Law 101" at the Los Angeles Film School.
Joshua's class addresses the basics of the legal system, and how the legal world interacts with the entertainment industry.
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The Hottest Legal Issue in 2020: Data Privacy Law |
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By, Danielle Robinson
Client Director, Pierce Law Group LLP
Everyone knows that data privacy law has become a huge issue with the rise of the tech industry - Google, Facebook, Twitter, Amazon, and TikTok have made our personal information a commodity to trade and for profit. Our phones are listening to us, Alexa and Siri are "spying" on us, and Google is monitoring every webpage, search, and the time we spend on each item in order to better predict our movements, purchases, likes and interests. With this in mind, 2020 has led to three significant developments in data privacy law.
In July, California Attorney General Xavier Becerra announced the enforcement of the California Consumer Privacy Act of 2018, which is "the most comprehensive consumer data privacy law in history."
Also in July, the European Court of Justice overturned the transatlantic "privacy shield" in Schrems II which governs data transfers from Europe to the United States.
On November 3rd, Proposition 24 was approved in California which creates the California Consumer Privacy Rights and Enforcement Act (CPRA); a move that will amend the California Consumer Privacy Act (CCPA) and help further protect personal information by closing up some loopholes.
What does this mean to you?
Well - the CCPA and Prop 24's new creation of the CPRA can & will significantly impact digital entertainment companies. The CPRA applies to any company that buys or sells personal information from 100,000 or more consumers per year, has $25 million or more of annual revenue, or derives at least 50% of its revenue from selling or sharing consumers' private information. Although technically the CPRA covers fewer business than the CCPA (which had a 50,000 consumer threshold), one of the new topics that the CPRA is required to take into account concerns the use of automated decision-making technology. This can apply to services that use entertainment recommendations powered by AI.
Whether you own a digital entertainment company or whether you simply enjoy surfing the net, these new developments in 2020 effect you and how data mined from the internet is handled.
As the industry begins to see the effects of the enforcement of the CCPA, it can be aware of what's to come with the CPRA. Pierce Law Group LLP has monitored and counselled clients on cyberlaw and privacy rights for years and has watched this area of law take shape and develop. If you have a cyber question or right of privacy concern, contact the Pierce Law Group LLP Client Director at: PLG-LLP Client Liaison
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Industry Wisdom:
A look at some recent lawsuits and news affecting the entertainment industry
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Is a Stand-Offish Sherlock Holmes Fair Use While A Charming Sherlock Holmes Is Not? Sir Arthur Conan Doyle's Estate Thinks So. |
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Conan Doyle Estate LTD. v. Nancy Springer, et al. (U.S. Dist. Ct. New Mexico)
Netflix, Legendary Pictures, The Enola Holmes Mysteries author Nancy Springer, and others have been sued for copyright infringement by the late Sir Arthur Conan Doyle's estate this past June. Sir Arthur Conan Doyle was the author who created Sherlock Holmes and wrote over 50 novels and short stories with his character.
The defendants in the case state that Sherlock Holmes is "undeniably in the public domain" whereas the estate argues that the detective character still has certain attributes and traits that are protected and not yet in the public domain, and that this film (and others) are in violation of its copyrights. In specific, the case turns on the fact that certain attributes of Holmes, such as him having a sense of humor and being more apathetic towards people are traits of the character that did not emerge until later books that are still protected by copyright, whereas the "public domain" Holmes is a stoic man who has disdain for people which is how he was portrayed in the earliest published stories which do fall under fair use as public domain works whose copyrights have expired.
Further, the estate is also suing for trademark infringement since the name "Holmes" is in the title of the movie Enola Holmes. This is a somewhat dubious claim in that the estate seeks to use Trademark protection to achieve what it could not otherwise achieve via copyright law.
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Stripper was neither defamed nor had her Right of Publicity Violated by J-Lo's motion picture "Hustlers" |
Samantha Barbash v. STC Financing, LLC, et. al SDNY (2020).
U.S. District Court Judge threw out a libel claim in the lawsuit brought by the real-life "Ramona" who inspired Jennifer Lawrence's character in Hustlers. Samantha Barbash, who was a host at Score's Gentleman's Club and Hustlers Club pled guilty to conspiracy, assault, and grand larceny in 2015 - the inspiration behind the star-studded movie Hustlers.
Barbash's complaint brought allegations that Hustlers exploited her likeness without her permission and defamed her. In her opinion, Judge Denise Cote concluded that Barbash was deemed a "public figure" because after she was convicted of conspiracy concerning drugging and stealing patrons credit cards, she gave public interviews about it. Thus, while the film may have gotten some information about Barbash wrong and which would have otherwise arguably constituted defamation, she did not show actual malice on the part of the defendants, which was an added element that needed to be proven for her libel/defamation claim since she was a public figure. Further, the Judge opined that her privacy cause of action should be dismissed as well considering that her "name, portrait, picture, [and] voice" was not included in the marketing of the movie. See more here.
This is yet another in a long list of pro-producer decisions in favor of the First Amendment Right to tell fictional stories based on true people and events. Our firm's attorneys can help you best understand your rights on this sometime complex issue concerning film clearances. The case is also interesting because it illustrates that different legal analysis are performed when you are dealing with someone's name and image in a First Amendment protected body of work as opposed to using the name and image in the marketing and advertising of that work!
This case involves common clearance issues that producers regularly confront. Clearance is often deceivingly complex area because a wide array of factors are considered when determining whether a clearance issue may require a change to your script and often the answer is very specific to the facts of the specific given situation and the answers can change depending on the use (for example, is the name being used in a body of work or in the advertising and sale of that work?). For more information, contact Pierce Law Group LLP attorneys: John R. Baldivia or Cassandra R. Johnson
Read David Albert Pierce's MovieMaker article on understanding the right of privacy for filmmaker by clicking: Some Privacy Here!
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Arbitration Agreement was not Ratified After Employee Turned 18 |
Coughenour v. Del Taco, 2020 S.O.S. 5591.
California Court of Appeals held that Defendant (Del Taco)'s motion to compel arbitration was properly denied because Plaintiff (Sara Coughenour) did not ratify the arbitration agreement by working for four additional months after reaching the age of 18.
The issue here stems from Family Code Section 6710 which allows a person upon reaching majority age to disaffirm a contract entered into as a minor. Coughenour worked at Del Taco from the age of 16 to four months after her 18th birthday. She then filed a lawsuit against Del Taco for sexual harassment committed by her manager. In this case, Del Taco argued that Coughenour's performance of continuing to work for Del Taco after her 18th birthday implied ratification. However, Judge Douglas P. Miller opined that holding Coughenour's actions for four months as sufficient for implied ratification would go against the "policy of the law to protect a minor against himself and his indiscretions and immaturity."
Why is a Del Taco opinion relevant to an Entertainment Industry? This case simply re-emphasizes that children cannot legally enter into a binding enforceable contract and can disavow those contracts while still a minor and for a reasonable period of time after they reach the age of majority. In the entertainment industry, the way to ensure that a child actor does not attempt to disavow their contract and thereby come back for better terms later is to utilize the Minor Actor Ratification Process established by the California courts. Pierce Law Group LLP has established a reputation as an industry leader in counseling studios and production companies in issues concerning Child Labor in the Entertainment Industry and ratifies numerous contracts with the court each year. For more information about Court Ratifications and Child Labor Issues, contact Tony Hanna or David Albert Pierce.
Want a great primer on understanding Child Actor Ramifications? Read David's MovieMaker Magazine article titled, "Minor Contract, Major Headaches" by clicking here.
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COVID-19 & THE ENTERTAINMENT INDUSTRY
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Entertainment Industry Exempt from Governor Newsom's Stay-At-Home Order If Remote Work Not Possible
With the increase in COVID-19 in California, Governor Gavin Newsom enacted a limited stay-at-home order through December 21, 2020 which requires non-essential work, movement, and gatherings to stop between the hours of 10pm and 5am.
However, the new updated essential worker list now includes "workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 health guidance around physical distancing" so long as remote work is not possible.
This is promising news for film and TV production which has been hard hit by the pandemic, as remote work is not always possible. This is a new addition as of September 22, 2020, as entertainment workers were not included on the list of exemptions for the first shutdown in March 2020. For more information, see here.
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Warner Bros. Will Release All of its new 2021 Movies on HBO Max
WarnerMedia recently announced that they plan on releasing every single one of their 2021 movies simultaneously in theaters and on HBO Max.
"We're living in unprecedented times which call for creative solutions, including this new initiative for the Warner Bros. Pictures Group," said Warner Bros. CEO Ann Sarnoff. "No one wants films back on the big screen more than we do. We know new content is the lifeblood of theatrical exhibition, but we have to balance this with the reality that most theaters in the U.S. will likely operate at reduced capacity through 2021."
Although this is the largest announcement of its kind, WarnerMedia isn't the only company that has experimented with new ways to release content during the COVID-19 era. Universal Pictures released Trolls World Tour as the first tentpole to skip conventional distribution in April, grossing about $44 million in on-demand purchases and rentals. Disney expedited Hamilton, Artemis Fowl, and Soul to streaming only exclusives and released Mulan exclusively on Disney Plus for $30 in September.
This plan from Warner Bros. will allow the movies to stream on HBO Max for one month before leaving the platform for a period of time that is to be determined. At this point, the plan is to have this model for exclusively the year of 2021. For more info, see here.
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THE COMEDY STORE
Comedian's Assistance Fund
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The Comedy Store is also committed to helping out artists and comedians during this pandemic.
Help us help them during these unprecedented times. Following the passing of Mitzi Shore, our firm assisted The Comedy Store in establishing a Comedian's Assistance Fund in conjunction with the Motion Picture Television Fund (MPTF). That fund has never been more needed during the COVID-19 pandemic.
Donations can be made to the fund with proceeds benefiting comedians who have been hindered from performing on stages during the time of COVID. To donate click below:
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PLG-LLP OFFERS
PRODUCER'S PANDEMIC PROTECTION
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Restarting production during COVID-19 means extra obligations and new liabilities for producers and production companies. Avoid getting stuck with thousands of dollars in unexpected costs while shooting during COVID-19. Our firm has the resources and expertise to streamline your production.
Contact our Client Director for more information by clicking here.
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PLG-LLP CLIENTS MAKING NEWS |
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Solstice Studios Acquires Rights to "The Plane" |
Solstice Studios acquired rights to this action thriller starring Gerard Butler after Lionsgate had to exit the film amid a struggle to get COVID insurance. Lionsgate was unable to assume the risk with the $50M budget film.
Solstice Studios plans to self-insure the production which will be produced by Di Bonaventura Pictures' Lorenzo di Bonaventura and Mark Vahradian, MadRiver Pictures' Marc Butan, and Gerard Butler and Alan Siegal. See more here.
Pierce Law Group LLP has proudly served for a number of years as entertainment labor law counsel to Solstice Studios.
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Director Penelope Spheeris Joins Her Wayne's World Actors For A Reunited Apart Which Is Now Playing Online |
To kick off Season 2 of Reunited Apart, Josh Gad gathers the cast of Wayne's World along with some very special guests including legendary director (and Pierce Law Group LLP client) Penelope Spheeris to rock out together once again.
For more info on the program, click here. To watch, click on the button below!
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Pierce Law Group LLP Achievements |
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Congratulations to Cassandra Johnson on her achievement as a Lawyer of Distinction in Corporate and Transactional Law - 2020. Cassandra's practice focuses on film finance, corporate entities and corporate governance. Cassandra also leads our firm's production counsel department as well as negotiates deals on behalf of both producers and talent. You can read more about Cassandra here!
Cassandra joins both David Albert Pierce and John R. Baldivia who have both been recognized by Lawyers of Distinction for their work in the field of Intellectual Property Law.
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Congratulations to David Albert Pierce for being nominated for consideration for the L.A. Business Journal's 2020 Leaders In the Law in the area of Employment Law for his successful lobbying efforts to obtain a Live Performers Exemption to the California AB-5 law which otherwise would have had such performers recognized as employees instead of independent contractors, as they historically always have been.
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Looking for Home Entertainment? Check Out Podcasts from Pierce Law Group Clients |
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Catch Dennis Feitosa's podcast "Def Noodles", a satirical take on internet news commentary.
A mix between "The Soup" and "The Colbert Report", a satirical take on Internet news. Find out why he has 350,000 subscribers and over 50 millions views: click here!
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Don't miss a show where you'll never know who you will see! Stephen Glickman hosts "The Night Time Show", a top rated podcast where comedians interview a wide range of influential people, comedy gurus, and award winning artists. Click here to listen!
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Live from the World Famous Comedy Store, the most dominant faction of pro wrestling fans (Producer Chris Burns, Comedians Tony Hinchcliffe, Johnny Skourtis, Mat Edgar and Josh Martin) weigh in on the state of the industry past and present.
Its a real barnburner of comedy and insight into all our WWE favorites from today and yesterday Wooo! To listen:
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Learn about moviemaking with enjoyable analysis & real-life tips about the business of producing feature films by listening to our client StudioFest's "Demystified" Podcast. Click here!
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Don't Miss This Great Documentary
THE COMEDY STORE
Documentary Series Streaming on SHOWTIME
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This 5-part documentary series brings to life the legends, heartbreak and history created at The Comedy Store, which over the past 47 years has launched the careers of a breathtaking array of stars. The director is Comedy Store alum, former stand-up comic Mike Binder who spotlights one of pop culture's great laboratories with never-before-seen footage and incisive, emotional interviews with some of the biggest names in comedy.
Pierce Law Group LLP has served as general counsel for the world famous Comedy Store since 2003. We also represent many of the comedians that grace its stages. We are proud to have contributed to the making of this documentary and encourage you to watch it on SHOWTIME!
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Remembering our "best friend"
Shecky passed away one year ago on November 13th, the beloved corgi-mix was 17. He was originally rescued by Dave Pierce in December of 2005 after he was featured by TV anchor Jillian Barberie on a Good Day LA segment detailing Shecky's rescue from the streets of Beijing, China by the non-profit group Dogs Without Borders. Shecky was a true comedian by nature. He was a sweet lovable dog that often seemed to have a little smile on his face showing his disposition toward good humor and affection. All dogs go to heaven. He will be missed. In addition to David and his other pals at Pierce Law Group LLP, Shecky is survived by his fellow rescue dog pal, Scrappy.
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Although the holiday season looks a little different this year, the PLG-LLP family hopes you can still enjoy your time off, connect with family (even if it is virtually) and enjoy some good food and festivities!
Hanukkah begins tonight, December 10th!
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Pierce Law Group LLP
Recognized For Excellence
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MDAF Membership limited to attorneys who've won million dollar verdicts & settlements |
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Don't forget to connect with us on social media! |
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DISCLAIMER
The information you obtain in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters, and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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