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Entertainment Law
University of Dayton School of Law
Greene, Dennis

Entertainment Law – Prof. Greene – Winter 2005

I. 1900-1920à Motion Picture Patent Company (controlled by Thomas Edison) they controlled patents for film, cameras, and the projectors for all films in U.S.
· Used to enforce patent property by using thugs to beat up those who did not use their patented equipment (which was patented).

II. Anti-Trust- when one company or group controls an entire industry.
A. Motion pictures –
1. Simultaneous entertainment- reached more people b/c seen in many theatres.
2. Immigration- silent films appealed to any group of people regardless of language background.
B. Exhibitors (theatre owners) fought for control over the director’s monopoly over rights to show the movies.
1. Big Studios- exhibitors were able to set up own studios and have control of their own movies:
a. Producing
b. Exhibiting
c. Distributing

III.Contracts- issues will be relegated to power and money
A. Want rights to the following:
1. Chose own producers:
a. To keep the artists “on track” while making recordings in expensive studios.
b. To maintain “control” over the artists for maximizing efficiency
2. Right to protect all aspects of the “product”

IV.Litigation –
V. Professional Responsibility- Want the “best” representation available
A. Reputation is based on Atty’s list of present clients (better clients = better representation)
1. Must be able to be “fair” to all clients if represent some whose “art” may conflict w/each other.

Article: Ethical Aspects of Entertainment Law Practice

A. Initial Meeting: Independent Representation
1. Lawyers have duty to recommend to all artists that they should have independent representation to protect them if the group breaks up and to protect each member’s individual interests.
a. Need to plan for any dissolution of group in future.
2. Need to specifically explain K to all members and explain the ramifications of all agreements within K.
3. Areas of potential Conflicts which must be covered in K.
a. Creative Differences b/t group
b. How will Money be divided among group as a whole be divided?
c. Music Publishing Rights- Publishing Rights for writing song (who owns the rights to the song)
i. Which group member will be paid and how much for writing song performed by group.
(A)This is where the most money is often made by individual in group
d. Compensation for rest of group if one member is unable to perform (drugs)

B. Non-Refundable Retainers-
1. Determining whether Att’y fees are reasonable hinges on many factors:
a. Time and labor expended
b. Likelihood, if apparent or made known to client, that the acceptance of the particular employment will preclude other employment by the lawyer.
c. The fee charged for similar service in the locality
d. Nature and length of professional relationship w/client.
e. Experience, reputation and ability of lawyer performing the services
f. Whether FEE is fixed or contingent.

2. Safeguards to retainers:
a. Bill client for some actual work (do some legal work for them when u get the non-refundable retainer.
b. Have a low limit non-refundable retainer.
c. Don’t have any non-refundable retainer.
d. List what “excuses” will enable client to full refund of retainer.

C. Business Relationships w/clients- lawyer takes a “%” of their clients’ action
1. Croce v. Kurnit- Att’y had business relationship w/publishers and managers on the K signing and although Croce knew of this relationship, he failed to adviser them to seek independent counsel (b/c lawyer represented the producers, not the Croces’).
a. Att’y needs to be forthright in such contract issues
I. Technology Advances and Conflict in Entertainment
A. Silent Film
B. Radio
C. Talking Film
E. Cable TV
F. Internet

II. Conflict between Radio and TV
A. Radio began to hire away TV stars and use on radio

III.Conflict between TV and Film
A. TV began to hire stars from Film
B. Film producers began to use own studios to produce TV (already had capitol and means to shoot TV shows)

IV.Entertainment and the 1st Amendment-
A. Mutual Film v. Industrial Commission of Ohio- All movies had to be shown to Bd of Directors for “approval” before it would be “licensed” for viewing.
1. In order to get license, the movie had to have “moral, educational or amusing and harmless character.”

B. Joseph Burstyn v. Wilson- suit over The Miracle
1. Prior restraint- Producers needed to get approval from NY Bd that their movie was not “sacrilegious” before it could be shown
2. Π argued this “sacrilegious” requirement was vague and led to movies being made that curbed the freedom of speech which producers were entitled under 1st Amendment.

3. Held: Ct recognized that Constitutional protection was necessary for film b/c movies were beginning to be large revenue stream.

I. Film Award Programs-
A. Golden Globe Awards- foreign film awards
1. Mass marketing campaign for US films
a. Provide advance publicity for Oscar Awards (make more $$$ for films).
b. Attempt to “position” a movie with critics for their “consideration.”

II. Film Release Season
A. Biggest release dates: 4th of July and Thanksgiving
1. Largest portion of film revenue is through rentals of DVDs.

A. Academy Award or Golden Globe nomination = good for increased fees for actor.
1. Recognition among viewers and competition to sign actor before other studio does.

IV.Agent- goal is to make as much money for clients per day as possible.
1. Usually work 13 hours
a. Schmooze lunches and dinners
b. 8-10 hours in office
2. Conflict b/t taking the highest paying movie for client vs. taking a movie that will be the best quality piece of work.
a. Pressure to take highest $$$ vs. “best movie” b/c client may fire you for not taking the highest $$$ film.

IV.Skywalker v. Navarro-
1. Facts: “2 Live Crew” fought against FLA statute outlawing obscenity (and the use of foul language on records).
2. Rule: Applied the Miller test to the record:
· The average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest.
· Measured by contemporary community standards, work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, AND
· the work, taken as a whole, lacks serious literary, artistic, or scientific value.

3. Holding: Court held the song was obscene b/c it lacked serious literary or artistic value, BUT: although album was obscene, Florida couldn’t prohibit 2 Live Crew from putting the message into the marketplace (it would have been prior restraint).

A. Considerations from such cases regarding your client:
1. Client asks you to take case against Florida (should contend that prior restraint is illegal)
a. Will gain more pub

s/games are “defective” productsàtort liability.

B. Arguments against media companies regarding when their “product” incited others to “act out” scenes or lyrics which ended up hurting others.
1. What claims can parents make regarding the liability of such companies?
a. Is the message targeted to children who are specifically “weak” to such influence that they carrying out such acts is “foreseeable”?
(A)Record companies target “street kids” and provide messages that may cause some to emulate the record lyrics and try to be the “badass” portrayed on the record.

III.Herceg and Andy V. v. Hustler Magazine- article how to masturbate while choking self.
A. Facts: Article told how to masturbate while choking self. 14 year old killed self while trying to duplicate the act as described in the article. Article had 10 warnings telling readers not to try it b/c it was often fatal.
Held: Ct held for Hustler b/c the warnings were throughout the article and nobody else killed self. The likelihood of people trying out the technique and killing self was remote.
a. Brandenburg- unlikely someone would actually be “incited” to act by article
b. Fact that magazine was in hand of 14 year old kid (who was not supposed to have it) hurt the position of Π (would have been different if he was adult).
Dissent: the article was about a subject so dangerous the chance that someone would try it was sufficient to hold Hustler liable b/c the article was printed with concern of making money (not to “inform or warn”) as Hustler had contended.
c. Judge claimed Hustler was a nuisance and not defendable.
i. Π defense is not to read it—“look away rather than read the magazine”
ii. It is the duty of parent to make sure their kids don’t have access to it.

I. Management Issues- (sections E, F for music negotiations)
A. Personal Manager-
1. Organizer- taking charge of all organizations and communications for Artist.
a. Personal Management Firm
i. Clients are most likely musicians or actors w/large presence and little personal organization.
2. Facilitator- helps artists convert their art into a career (takes care of the business end so artist can devote time to their craft, rather than “running and managing business.”
3. Auteur/Visionary- manager who “speaks the lingo” and has “visionary” ability to help Artist’s career.
4. Player-
5. Babysitter
6. The A & R Source – “A & R” is artist and record- dependency on finding artists so that they can match up a particular song with a particular Artist.
a. Deciding song perfect for Frank Sinatra to sing rather than someone else.

B. Personal Management Outline- many diff responsibilities for Manager and negotiations
1. Compensations
a. Commissions
b. Royalties
2. Term