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Entertainment Law
University of Dayton School of Law
Greene, Dennis

Entertainment Law
Monday, August 24, 2009
6:31 PM

FINAL – How will certain company impact certain industries? Types of questions like this
Will come out of classroom discussions and reading

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August 26, 2009 – First Day Readings

Media Rights Capital
Try to create a company that will give capital to the artists themselves instead of money to studios only
Endeavor is the agency involved
MCA – big music company, they own Motown – “Music Corporation of America”
First they were a talent agency
Was determined that the could not be both the talent agency AND the producer
An example of what has happened before

The State of California says you can’t be an agency and a producer
Once it starts getting larger it’s going to be a big problem

Runaway Productions
California is concerned because film production is a large part of their economy and they are being negatively affected by people moving their productions from CA
NEGATIVE PICK-UP DEALS
80s
Studios would create to make movies a little cheaper
Find ways to shoot movies that you don’t have to be in Hollywood
Instead of charging producers a lot of money to use lots in Hollywood
Financing the film under the table
Would give producers $$$ and then help them shoot somewhere cheaper
Don’t have to pay the “lot fee” and don’t have to be tied into unions
RIGHT TO WORK STATES
Don’t have unions – union people are not supposed to work there
More prone to do independent projects
COMPLETION BOND
Insurance policy
Every film made has one
Says that a certain production company has a film shooting called “_____”. Then goes into specifics about how long the project should take then the studio pays premiums on the policy
The studio is in fact insuring that there actually becomes a movie
Insurance company will be on the producer’s case – will have a representative there checking on the shooting everyday
Will then project the numbers (to see how behind schedule the film will be)
If they feel it’ll be too far behind they can demand the director be replaced, if that doesn’t happen we want to get paid on our insurance policy

Book Industry
Companies like Scribd are allowing book writers to upload books online and download them – getting rid of actual books
Digital impact on IP industry
In these industries you will not longer need big companies because you can get your stuff published easily online

Music
Spotify
Users can download onto their computer to search any music they wanted to
Consumers don’t have to pay for this service
Efficient as a business model because it is supported by ads
Takes away from illegal downloading of music
Probably not going to be as big as revenue from selling CDs
Payoff for the artist is more at the live events – and now they can advertise on these types of sites
This makes people more interested in going to concerts
Small artists or big artists are going to be making money at LIVE engagements
Historically the marketing tool for this was the record, but now it’s online
The vastness of the internet allows for the information to be much more widespread

Box Office Comparison
GI JOE – shot in 4,007 theaters
PAPER HEART – only in 38 screens

But the per screen average was high – $5,766

August 27, 2009 – Second Day of Readings

Entertainment law is transaction based…there are major ones that are involved in entertainment law such as :

IP – Intellectual Property
Representing Angelina Jolie, what type of IP issues would arise in now using Angelina’s image in a Tomb Raider?
Imaging – making sure Angelina is comfortable with all of the situations her image will be participating in in the game
Called creative control or final cut – client wants control of how she is portrayed
What’s the problem w/ this?
Company might have a problem with having the adjust the game b/c of the client’s needs
Could possibly be a deal breaker
Fundamental money/power issue that undermines every deal like this
This issue will underline every deal you do in entertainment law
Contracts
Trying to work out contracts b/w lawyer and client
Business Law
Setting up non-profits – because she “wants to save the world”
Get an idea of where she wants to set things up
Might allow her to have some tax benefits
Might make her less liable for losses in the company
Negotiation
Like working out deal with Tomb Raider
Litigation/Dispute Resolution
Suing others over disputes

Primary v. Secondary Markets
Primary – NY, LA, and Nashville
Secondary – examples include Santa Fe, DC, etc.

Internet is helping grow secondary markets b/c you can really be anywhere

Music would be easier to do in a secondary market b/c you can do stuff online, but for things like film, etc you will probably still have to go to the primary markets to make it work

Class Notes – September 1, 2009
Article – Development of an Entertainment Law Practice
Attorney’s Retainer Agreement
What does the client want?
Representation
Work into their best interest
Wants to be made a STAR

Reading Notes – September 3, 2009
SPEECH FOR FUN AND PROFIT
Speech
Book focuses on motion pictures, broadcasting (including cable), music publishing and recording, performing arts, trade book publishing, and video games played on the computer
Each consist of some form of speech
Offers its audience a form of expression
The First Amendment – government “shall make no law…abridging the freedom of speech”
Constitution does not bar every use of the law to shape and control entertaining speech
Supreme Court has ruled that movies and other forms of entertainment DID fit within the First Amendment
Acknowledged that each method of expression presents its own “peculiar” constitutional problems
Technology
Not absolutely essential for entertaining fans, but has a crucial connection to speech
Has two contrasting consequences for authors of entertainment works
POSITIVE
Vast increase in the potential audience for their work
NEGATIVE
Makes it nearly as easy for copiers as for creators to deliver versions of the original work to potential consumers (piracy is easier)
Collaboration
Byproduct of technology is a far greater need for collaborative relationships in the entertainment world
Different levels of collaboration are required for movies and television programs, even major record albums
Resoling disputes that arise between the parties often requires that a judge decide whether there is a binding contract, and if so, how it should be interpreted or enforced
Economics
*****Need to understand this section carefully. There is a LOT of money invested in the entertainment industry*****
The costs and returns of individual projects are vital to producers and performers
Key factor in determining both the investment in and return from a movie (or other form of entertainment) is the reputation and appeal of the star performer(s)
Entertainers need two kinds of representation
The brand of agent representation in the negotiation of individual contracts
Representation by performer labor unions that do the collective bargaining with movie studios, television networks, Broadway theaters and the like.
International Dimension
Industry extends around the globe
Several of the top entertainment conglomerates are foreign based
Lawyering
Lawyers play a prominent role in th

ortrayed adultery as “desirable, acceptable, or a proper pattern of behavior”
Court made it clear that Americans had as much of a First Amendment right to advocate adultery as they did atheism or socialism

Abrams v. United States
Federal prosecution of Russian-Jewish immigrants who had criticized the American government for providing military support to those who were trying to fend off the revolution in Russia
Justice Holmes presented the “marketplace rationale”
The ultimate good is reached by free trade of ideas, the best test of truth is the power of the thought to get itself accepted in the competition of the market
Whitney v. California
A communist labor leader was prosecuted
Justice Brandeis presented his opinion on the role of the First Amendment
“Public discussion is a public duty”
Referred to by the book as “civic republicanism”

Common feature between the opinions of the 2 Justices is that they were both given in a case where the Court was upholding convictions for the speech of both Abrams and Whitney
Both share the constitutional opinion that the government’s regulation of the business market is legitimate

New York Times v. Sullivan
Based on a full page ad in the NY Times in which a number of civil rights organizations and supporters protested the “wave of terror” that had been instituted by southerners and their police to try to quell the peaceful protest movement of MLK
Sullivan instituted a defamation lawsuit against the Times
Jury found that Sullivan had been libeled by several inaccurate statements in the ad and awarded him $500,000 in damages
Award was OVERTURNED by the Supreme Court
Many scholars believed this to be the most important step in the evolution of judicial understanding of the “central meaning of the First Amendment”
It is as much the duty of citizens to criticize the government as it was the officials’ duty to administer it
Absent “actual malice” in the sense of knowledge or reckless disregard of the falsity of a harmful statement, could not be liable —- a new modified libel tort standard
Brandenburg v. Ohio
Afforded constitutional protection to speech by a leader of an Ohio branch of the KKK
Speech was filmed and telecast
Leader was prosecuted and convicted under Ohio law
Supreme Court OVERTURNED
Ruled that it would violate the First Amendment to punish pure advocacy of illegal force
Only “advocacy directed to inciting or producing imminent lawless action and [that] is likely to incite or produce such action” could constitutionally be made illegal
Hess v. Indiana
There was no “clear and present danger” that could justify conviction of the leader of an anti-Vietnam War group who, when the police were breaking up his demonstration, told the sheriff that “we’ll take the fucking street later”

Common theme in these cases —> All involved political speech by people who were dissenting from actions taken by government over some question of public policy