Music Licensing 101

Rockstars,

I did not get to mechanical licensing in class, but will cover it in full on Tuesday at the beginning in class. That said, the PowerPoint that I am attaching here, should give you the background you need for us to get through it quickly and answer all of your questions.

We will begin class by discussing the David Letterman issue, and answering the Test Your Might! questions at the end of the PowerPoint.

I have enabled comments on this post, so feel free to ask any questions in the meantime.

Also, please skim the “Assembling the Billing Block” article for Tuesday’s class (2/26).

Justen.

Cigar Night With the Profs

Rockstars, 

As discussed for the last two weeks, your final opportunity to chill with the Professors this semester is finally here. On Monday, April 23 after class (approximately 9:00pm we will be hosting you for a few hours of cigars, drinks, and camaraderie. We can discuss class, the law, the entertainment industry, comic books, the next season of Westworld, or whatever else you're interested in right now. 

We will be settling down at:  

The Flat

1701 Commonwealth St. 

Houston 77006

Also, please know that cigar smokers and non-smokers are alike are invited! We look forward to seeing you on Wednesday for our final class and some extracurricular conversation.

Justen.

International Book Publishing Agreement & Deal Memo

Rockstars,

As we have now discussed the economics of the film and music industries, I am sharing an international book deal with Nicholas Brealey, an imprint of Hachette UK, that was negotiated in the spring of 2017. 

As we have read in class, many of the deals in the various entertainment industries begin with a proposal in the form of a deal memo. Often, the deal memo is prepared by someone who is not in the legal affairs or licensing side of a major company. Thus, it merely sets out the basic terms, and the legal affairs department will hash out the remainder of the full agreement. Remember, the deal memo is an agreement to agree, and is generally not a competent contract to protect your client's rights. However, if you are working with time and some leverage, you can negotiate the basic aspects of the deal through the memo with the person who will be working with your client, and refer the negotiating attorneys back to the deal memo if there are conflicts in negotiating the final agreement.

With the exception of redactions to protect the confidentiality of my client, these documents are shared with you in the form that I received them. This means, they do not include any of the points my client was seeking or any of the negotiated points that made it into the final agreement. I am presenting the documents in this way for two reasons. First, I want you to see what a very publisher-friendly agreement looks like. As an example, even though it is for the international rights to the book, it nevertheless includes provisions that would conflict with my client's interest in pursuing a different agreement in North America. Second, I want you to be able to see the language as I received it, and think about what you would include in the document. Consider how you would protect the author in the event of litigation, how you would prevent privishing, and how you would make the terms more even-handed throughout. 

Let me know if you have any questions, and have fun looking through the documents!

Deal Memo

Publishing Agreement

Justen.

Desny Hypothetical

Rockstars,

This question has been modified from its original version. It has been formatted for class on March 26, 2018.

What follows is a revised version of one of the essay questions from a previous Entertainment Law final. We will provide you with the actual question from an "A" student answer at a later time. For now, please review the question carefully and be prepared to discuss the issues with our guest speaker on March 26th. Enjoy!


Unknown to most people, Lakewood Church Preacher Girl Victoria Osteen is an accomplished hog hunter. Vicky created a concept for a reality television series called Hogs & Hotties, using three physical, feminine and attractive women as lead talent. Vicky interviewed and selected Hillary and Huma, neither of whom had any hog‑hunting experience to be the co-stars. Vicky, Hillary and Huma (the “Three Amigas”) then created a production company called ROUSSEY, LLC, with Vicky as the majority/controlling owner. Vicky grants a limited license of her concept to ROUSSEY to further develop and produce the series and the Three Amigas sign a non-compete agreement with ROUSSEY. The Three Amigas begin filming hunts in Texas, which are paid for and produced by ROUSSEY. Video footage of Hogs & Hotties was then copied onto DVDs and a short commercial preview was used as a promotional tool and exhibited on the ROUSSEY website.  ROUSSEY then enters into a production agreement with a big-time producer, Fred Durst Enterprises (“DURST”), which has a business relationship with the COYOTE TV Network (“COYOTE TV”). Pursuant to this agreement with ROUSSEY, DURST pitches the Hogs & Hotties concept to networks, including COYOTE TV. Vicky lets DURST handle the pitch meetings and does not participate. By and by, COYOTE TV proposes a production agreement to DURST which includes compensation for the use of the Hogs & Hotties concept, and then requests Vicky to (a) assign all claims to the concept, (b) forgo all creative and executive producer credits and license fees, and (c) appear on Hogs & Hotties as lead talent only. Vicky has follow-up discussions with DURST and COYOTE TV wherein she claims that she told them that she expected compensation for the use of her concept in the form of a co‑production deal for ROUSSEY and a license agreement for profit sharing between COYOTE TV and Vicky. Subsequently, COYOTE TV responds to Vicky as follows:

“I have now been authorized to represent the interests of both DURST and COYOTE TV. Neither one will deal with you on the terms you propose. We might be interested in a payment to you in exchange for a complete release and acknowledgment that the show will proceed without Vicky. If this is of interest, let me know and I will recommend a ‘buy out’ payment in the amount of $5k. Otherwise, DURST and COYOTE TV will proceed to other things.” Vicky rejects the “buy out” and the parties part ways.

After the deal blows up, Huma and Hillary resign from ROUSSEY. DURST also terminates his production agreement with ROUSSEY. COYOTE TV then enters into a production agreement with an experienced production company, STALKER, Inc. Later, DURST signs an agreement with COYOTE TV to provide development services to COYOTE TV and STALKER for the production of a new series called Pigs & Cuties. Hillary and Huma sign talent agreements with STALKER to appear as lead talent on Pigs & CutiesPigs & Cuties would feature Huma and Hillary and a male actor, Carlos Danger, engaged in the sport of hog hunting in Florida, while maintaining feminine attributes. Six months later, COYOTE TV begins to broadcast the series Pigs & Cuties which becomes the number one series on cable television. Vicky files a lawsuit in Star County, Texas against COYOTE TV, DURST, Huma, and Hillary alleging breach of implied contract. The Defendants follow the playbook when any lawsuit is filed in South Texas and remove the case to federal court. The basis for removal is that Vicky’s lawsuit is actually a case under the federal copyright law over which the federal courts have exclusive jurisdiction. As to the substance of Vicky’s lawsuit the Defendants respond that Pigs & Cuties is an independent creation of STALKER and that the two series are different. COYOTE TV also denies any knowledge that Vicky was the creator of the concept or that she expected compensation for its use. The Defendants also say that there is no question that there are several reality series on TV based on the concept of people hunting wild animals and this is not a protectable concept. Vicky moves to remand the case back to the state court in Star County because the analytics show that she has a big following in South Texas and will probably get a favorable jury. The Defendants should be able to keep the case in federal court and win this lawsuit.

True or False?  Explain.

 

Waiving Defamation Through Contract

Rockstars,

As we discussed in class on Monday, January 29, contracts are "mas macho" when it comes to the tort of defamation. NDA's may create an actionable contract claim for a party who could potentially be defamed, as we saw in the Weigand case. Prof. Alonso also began the class talking about the two drunk frat boys in the motor home in the film Borat, and their waiver issues.

Waivers of the right to recover in tort for defamation are common-place in the age of reality television. Below are a few examples of what these contracts look like. 

This Real World Productions, Inc. contract is the one signed by any applicant who wanted to appear as a housemate in MTV's The Real World. The thirty-page document sets forth significant rights of the producers of the television show, and significantly curtails the rights of the persons appearing on it. Pay particular attention to Paragraphs 11 and 12 which state, in part,

I acknowledge and understand that the film, tape, audio and other recordings that will be made of me in connection with the Program could, in other circumstances, be considered a serious invasion of my privacy.

and

I further understand that my appearance, depiction, and/or portrayal in and in connection with the Program (including without limitation, the title of the Program), and my actions and the actions of others displayed in and in connection with the Program, may be disparaging, defamatory, embarrassing or of an otherwise unfavorable nature, may expose me to public ridicule, humiliation or condemnation, and may portray me in a false light.

The RWP full contract is full of other nasty gems, including a waiver of liability for contracting AIDS and other STIs; of course RWP did not warrant the other members of the house were STI-free!

You may wonder whether these terms were actually enforceable, giving the one-sided nature of the contracts. RWP used these terms for years, without incurring any significant liability. However, there were holes, as Prof. Alonso alluded to at the beginning of class. This short-form Real World Productions, Inc. guest release was used by RWP to release liability for persons who were not proper housemates, but who may have become guests in the house. Notice the language in Paragraph 4:

I may reveal and/or relate, other parties (including without limitation, other Program participants an/or Producer) may reveal and/or relate, or the Producer may thus edit, information about me of a personal, surprising, defamatory, disparaging, embarrassing or unfavorable nature.

Of course, this is the backbone of reality television--the producers edit the content to create drama. They did so in the Real World: DC season with a woman named Golzar Amirmotazedi, who appeared on multiple episodes of the show. Ms. Amirmotazedi was not presented favorably on the show and was ultimately kicked out of the house by the housemates. She claims she was subjected to public ridicule--something that she purportedly agreed could be an aspect of her appearance on the show. Nevertheless, Ms. Amirmotazedi sued RWP for invasion of  her right of privacy, portraying her in a false light, disclosure of private facts, and intentional and negligent infliction of emotional distress.

Based on the cases we read, this should have been an open and shut case. However, Ms. Amirmotazedi argued that she was brought into the RWP fold on a night that the housemates had "fed her" eight to ten drinks. It was only after she was sufficiently intoxicated that RWP's producers asked her to sign the short-form contract. In her complaint, Ms. Amirmotazedi pointed to the fact that she is "small-framed" to support her claim that she could not form the requisite intent to contract with RWP. RWP filed a motion to dismiss the case, and the California Superior Court denied it. The case settled. 

In 2015 we obtained a copy of the following contract from an individual who appeared briefly in entertainment work-out guru Jillian Michaels' life while she was shooting her reality television program "Just Jillian." The show's producers sought a signature on the contract after the show had taped and while it was in the editing process. The waiver language closely tracks that of the RWP full and short-form contracts. 

Consider, would you be more inclined to sign these waivers before, or after the show's producers already had footage of you? That was the dilemma in the Jillian Michaels matter.

ELI Writing Contest & Your Future As a Rockstar

Rockstars, 

By now you have finished the exam. Professor Alonso and I hope you were able to enjoy it to the greatest extent any final can truly be "enjoyed."

As promised, I am providing you with the details of the ELI Grammy Writing Contest. Please follow the link HERE to get them. 

You can read more about the competition HERE.

As has been promised throughout the semester, I will prepare a blog post or two giving you my thoughts on how to pursue a career in entertainment law. Now that you have completed the class, you have the ability to look back to the first day when we discussed all the different bodies of law that are comprised in "entertainment law." Everyone's path to becoming a world-class entertainment lawyer is different, but you all have the tools and knowledge to go out and begin practicing in any number of areas. If you have any questions in the future or want to chat with us one-on-one, please feel free to send us an email and we will do our best to find a time that works!

Finally, we like to keep in touch with our Rockstars. On our last cigar night of the year, we had 3 generations of Rockstars come together for some really wonderful conversation. If you enjoyed the class, and want to meet other Rockstars, please let us know! You can send us an email or fill out the form below:

Name *
Name

Whether you want to hang or not, you will always be Rockstars in our book. For that reason, we intend for this website and blog to continue to be a resource for you as you move into your own practices. Feel free to continue to access the website and use its resources. Let us know if you see anything you would like to add for past or future Rockstar generations. 

Congratulations, and good luck!

Justen.

Cigar Night with the Profs

Rockstars, 

As discussed for the last two weeks, your final opportunity to chill with the Professors this semester is finally here. Tomorrow night (Wednesday, November 16) after class (approximately 8:00pm) we will be hosting you for a few hours of cigars, drinks, and camaraderie. We can discuss class, the law, the entertainment industry, comic books, Westworld, or whatever else you're interested in right now. 

Rodney has provided us with an adventurous new location:  

Oakwood Social Club (formerly "Corner Table")

2736 Virgina St. 

Houston 77098 

Also, please know that cigar smokers and non-smokers are alike are invited! We look forward to seeing you on Wednesday for our final class and some extracurricular conversation.

Justen.

Welcome, 2016 Rockstars

So it begins.

We have met you, the Rockstars of the Entertainment Law Class of 2016, and you have met us. This website is a resource for you. Along with this blog we have included helpful links to websites of entertainment industry interest and download links to documents that you will hopefully find helpful. We will make sure to let you know when there is something you are required to download for class, otherwise the links are available for your benefit.

As mentioned at the end of class on 8/24, the first such download is the most recent FCC v. Fox decision. This is skim material that we will be discussing in class next week.

If you didn't get our contact information in class yesterday, here you go:

Yocelaw@aol.com; office telephone: 281-240-1492

Law@jstnbrks.com; mobile: 713-714-7431

We will be using this blog to share various things, including additional exercises intended to expand upon those ideas raised in class and through the case book (Weiler 5 ed.), and explanations of questions you may raise from time to time in class, over the phone, or through email. Of course, as with all proper privacy policies online, your personally identifiable information will be stripped from the question and discussion to the extent possible. However, we may collect data to provide services in the aggregate! 

Our goal for this entertainment law class is to make it one of the best in the country. As Yocel mentioned in class, we are constantly working to make this class better for you. We want you to be able to graduate and use the knowledge and skills from this class to enter the entertainment industry aware of its complexities, new developments, and obstacles. We are excited to share this semester with you and look forward to getting to know each of you better. Keep up with the reading, get involved in our discussions, and most of all have fun! 

Justen.