The Pitch newsletter is a monthly update of legal issues and news affecting or related to the music, film and television, fine arts, media, professional athletics, eSports, and gaming industries. The Pitch features a diverse cross-section of published articles, compelling news and stories, and original content curated and/or created by Arnall Golden Gregory LLP’s Entertainment & Sports industry team.
“Art enables us to find ourselves and lose ourselves at the same time.” – Thomas Merton
AGG News
Boot That Fake Merch: Add Ex Parte Seizure Orders to Your Repertoire
Rod Wave, like many other artists, recently obtained an ex parte seizure order from a federal court permitting the seizure and impoundment of fake merchandise infringing on his intellectual property rights in and around his concerts in Charlotte and barring the bootleggers from selling unauthorized merchandise. While a plaintiff would typically have to identify and serve a complaint on an actual defendant in a lawsuit to get this kind of extraordinary relief, the well-known rapper showed the court good reason why that didn’t make sense when it came to bootleg merch.
(Source: Arnall Golden Gregory LLP, December 5, 2023)
Industry News
Netflix Takes Big Data Transparency Step, Releasing Viewing Numbers for 18,000 Titles
The company is using total hours viewed in this report as a way to measure engagement by its users rather than the “view” formula (total viewing hours divided by running time) it employs to compare titles in its weekly top 10 lists.
(Source: The Hollywood Reporter, December 12, 2023)
Exotic Dancer’s Defamation Suit Over HBO’s ‘We Own This City’ Allowed to Proceed
An exotic dancer with dwarfism is allowed to proceed with a defamation lawsuit alleging that HBO’s docudrama “We Own This City” falsely implied that she engaged in prostitution with the former leader of the Baltimore Police Department’s Gun Task Force, a federal judge ruled. The plaintiff, Shanea Daniel, filed a lawsuit against the Home Box Office’s television series, which follows the rise and fall of the task force, over a scene in which her character allegedly has sex with Sgt. Wayne Jenkins for money. While Daniel admitted to giving Jenkins a lap dance in real life at the Millstream Inn Gentlemen’s Club in 2015, she denied having sexual contact with him, according to an opinion filed Dec. 7 in the U.S. District Court for the District of Maryland.
(Source: Law.com, December 12, 2023)
Spotify Inks Podcast Deal With Warner Bros. Discovery for CNN, HBO and More Shows
The deal will see Spotify’s enterprise podcast platform, Megaphone, host and distribute select podcasts from Warner Bros. Discovery, including CNN’s All There Is with Anderson Cooper, The Assignment with Audie Cornish and HBO’s The Official Game of Thrones Podcast: House of the Dragon. Spotify will also be one of WBD’s podcast monetization partners through its Spotify Audience Network.
(Source: The Hollywood Reporter, December 12, 2023)
Copyright Office Affirms Its Fourth Refusal to Register Generative AI Work
On December 11, the Review Board of the U.S. Copyright Office (USCO) released a letter affirming the USCO’s refusal to register a work created with the use of artificial intelligence (AI) software. The decision to affirm the refusal marks the fourth time a registrant has been documented as being denied the ability to obtain a copyright registration over the output of an AI system following requests for reconsideration.
(Source: IPWatchdog, Inc., December 12, 2023)
Disney+ Hulu App Will Leapfrog Netflix on Popularity & Volume in the U.S., Says Report
The combined Disney+ Hulu app will leapfrog Netflix on both popularity and volume in the U.S., according to a report from Ampere Analysis. One-third of the 100 most popular Q3 titles in their home market were on Disney+ and Hulu, Ampere found, with 17 on the former and 16 on the latter, placing the pair at the top of the popularity pile. Netflix’s figure sits a few lower at 29, with Max in third on 18 and Amazon Prime Video lagging behind on 11. Ampere measures popularity based on key metrics such as volume of interest, web traffic and box office income from major services such as Google, Wikipedia, and IMDb.
(Source: Deadline Hollywood, December 11, 2023)
Madison Square Garden ‘Lawyer Ban’ Remains Intact as Lawsuits Dwindle
Litigation with Madison Square Garden Entertainment Corp. over its so-called “lawyer ban” has reached a denouement, with only two active lawsuits left stemming from the company’s adverse attorney policy. “I was like Moses; I carried them to the promised land even if I didn’t go in,” said Larry Hutcher, whose firm Davidoff Hutcher & Citron was the first to file suit over the ban, alleging civil rights violations. Davidoff Hutcher has now discontinued its action against the entertainment company, which made headlines last year for ejecting attorneys from performances following identification through facial recognition software.
(Source: Law.com, December 11, 2023) [Subscription may be required]
Directors Guild Reaches Tentative Agreement on New Commercial Contract
The Directors Guild of America has reached a tentative agreement with the Association of Independent Commercial Producers on a new three-year national commercial contract, the union announced on Friday. The 19,500-member union’s national board of directors unanimously approved the deal, which has been sent to members for ratification. Members have until Dec. 26 to vote on the deal. “Our Commercial Negotiations Committee secured a strong contract that benefits our members in the commercial industry and supports their careers in the long term,” DGA president Lesli Linka Glatter said in a statement. “I’m confident our significant wage gains, paired with the first-ever AI protections for the Commercial community and provisions nurturing diversity in our industry will drive continued industry growth and stability.”
(Source: The Hollywood Reporter, December 8, 2023)
Terrence Howard Sues CAA Over ‘Empire’ Salary
Terrence Howard is suing CAA for an alleged conflict of interest in the agency’s dealings over his compensation on Empire. In the lawsuit, filed in Los Angeles Superior Court , Howard alleges his agents who packaged the deal with Fox prioritized the interests of themselves and the show’s producers, which it also represented, by inducing him to take below-market salaries over his six-season run starring in the series.
(Source: The Hollywood Reporter, December 8, 2023)
Senators Introduce ‘Fans First’ Bill Intended to Reform Live-Event Ticketing System
U.S. Senators John Cornyn (R-TX), Amy Klobuchar (D-MN), Marsha Blackburn (R-TN), Ben Ray Luján (D-NM), Roger Wicker (R-MS), and Peter Welch (D-VT) have introduced the Fans First Act, which would help “address flaws in the current live event ticketing system by increasing transparency in ticket sales, protecting consumers from fake or dramatically overpriced tickets, and holding bad actors who engage in illegal ticket sale practices accountable,” according to the announcement. The act is the latest initiative by the senators, who have led Congress’ efforts to combat high and exploitative ticket pricing for concerts and other live-entertainment events. Since the ticketing system moved online over the past dozen years, it has become ripe for abuse, with scalpers and bots quickly acquiring thousands of tickets and reselling them for astronomical prices, leaving fans little choice but to pay hundreds or thousands of dollars above the list price in order to attend concerts. The situation became exceptionally heated in 2022 when Bruce Springsteen and Taylor Swift tour tickets went on sale and prices almost immediately soared to thousands of dollars. While Ticketmaster — by far the dominant ticket retailer — and other outlets have made many efforts to control the situation, their efforts have been only partially successful.
(Source: Variety, December 8, 2023)
It’s Quiet, Too Quiet, in Hollywood: Where Are the Deals?
Once the writers strike ended in late September, president of FX Entertainment Nick Grad and his colleagues began to clear their schedules. After a 148-day stoppage, the second longest in Writers Guild of America history, surely there would be a deluge of writers with fresh ideas and new spec scripts coming through, and Grad and team were ready. But here we are, nearly two and a half months later, and that deluge never came. Not for those FX executives, or, as an informal survey of the television industry suggests, their rivals across the landscape. “It’s eerie, nobody’s buying anything,” says one top producer, echoing a chorus of sources who express surprise at how quiet the marketplace has been since Hollywood’s writers went back to work.
(Source: The Hollywood Reporter, December 7, 2023)
Football Given to Fan at MetLife After Jalen Hurts Touchdown Is at Center of New Lawsuit
A New York man has filed a lawsuit alleging he was unlawfully detained for refusing to give up a football he received from a Philadelphia Eagles player during a game at MetLife Stadium last year. Paul Hamilton, of New Berlin, New York, said stadium security and New Jersey State Police officers assaulted and falsely arrested him at a game between the Eagles and New York Giants on Dec. 11, 2022. The officers also “misrepresented and lied” to Hamilton by saying a football handed to him by Eagles quarterback Jalen Hurts after a touchdown was not his property and needed to be returned, according to the suit.
(Source: northjersey.com, December 7, 2023)
The MLC Partners With 5 Data Matching Companies to Increase Royalties Match Rate
The Mechanical Licensing Collective (The MLC) has announced its new Supplemental Matching Network, which consists of five companies that specialize in data matching. This is aimed to help The MLC continue to up its match rate, which is currently at 90%. (According to The MLC, the match rate is defined as the percentage of total royalties processed that were able to match to a registered work in its database.) The first five companies included in the Supplemental Matching Network are Blokur, Jaxsta, Pex, Salt and SX Works (a SoundExchange company). The list of companies that are part of the network may grow in the future to continue to bolster The MLC’s matching process. The MLC conducted qualitative evaluations of these vendors before choosing to partner with them, including testing the products through pilot programs as well as a “Request for Information.” This is the same process that The MLC has used for other strategic vendors.
(Source: Billboard, December 7, 2023) [Subscription may be required]
Second Circuit Upholds Injunction for Vans Based on Jack Daniel’s Ruling
The U.S. Court of Appeals for the Second Circuit invoked the Supreme Court’s decision in Jack Daniel’s Properties v. VIP Products to affirm a district court’s finding that MSCHF Product Studio, Inc.’s shoe, the Wavy Baby Sneaker, likely infringed Vans, Inc.’s Old Skool shoe. The Second Circuit ultimately affirmed the district court’s grant of a preliminary injunction and temporary restraining order for Vans.
(Source: IPWatchdog, Inc., December 5, 2023)
As AI Grows, Artists & Labels Consider: Who Owns a Voice?
In April, Grimes encouraged artists to make music using her voice — as replicated by artificial intelligence-powered technology. Even as she embraced a high-tech future, however, she noted that there were some old-fashioned legal limitations. “I don’t own the rights to the vocals from my old albums,” she wrote on X. “If you make remixes, they may get taken down.” Artificial intelligence has dominated the hype cycle in 2023. But most signed artists who are enthusiastic about testing out this technology will have to move cautiously, wary of the fact that preexisting contracts may assert some level of control over how they can use their voice. “In general, in a major label deal, they’re the exclusive label for name, likeness and voice under the term,” says one veteran manager who spoke on the condition of anonymity. “Labels might be mad if artists went around them and did a deal themselves. They might go, ‘Hey, wait a minute, we have the rights to this.’”
(Source: Billboard, December 5, 2023) [Subscription may be required]
Vinyl Industry Opposes ‘Dramatic’ Shift in Music Store Sales Reporting
The Vinyl Record Manufacturing Association (VRMA) and the Vinyl Alliance have joined forces to oppose Luminate and Billboard’s upcoming changes to how music sales are calculated from independent retailers.
(Source: Hypebot, December 5, 2023)
Netflix Co-CEO Ted Sarandos on the Return of Licensing – “It’s The Natural State Of The Business”
Ted Sarandos acknowledged that Netflix may be making fewer movies than it used to — because it’s so much easier to license them now. As streaming losses mounted at traditional media companies there’s been a big shift, back to Netflix, which, in its early days used to pad studio coffers with cash until they got nervous, pulled back and more recently began aggressively repurposing content for their in-house platforms. That led to Netflix’ big push into original content.
(Source: Deadline Hollywood, December 4, 2023)
Judge Extends Pause on John Oates’ Sale of Stake in Business With Daryl Hall as Arbitration Proceeds
A judge sided with Daryl Hall on Thursday in his request to keep John Oates temporarily blocked from selling his potentially lucrative share of the Hall & Oates duo’s joint venture without his longtime partner’s permission. Chancellor Russell Perkins in Nashville extended his pause on the sale of Oates’ share of Whole Oats Enterprises LLP to Primary Wave IP Investment Management LLC while the music duo moves through the early stages of arbitration. The temporary injunction in the lawsuit filed by Hall blocks Oates from selling until an arbitrator weighs in, or until Feb. 17.
(Source: The Hollywood Reporter, November 30, 2023)
Kelly Clarkson’s Ex-Husband Ordered to Repay Her $2.6M Over ‘Unlawfully Procured’ Business Deals
Kelly Clarkson has won a legal ruling that her ex-husband Brandon Blackstock owes her more than $2.6 million in commissions she paid to him for procuring business deals while he served as her manager. In a Nov. 21 decision, California’s labor commissioner ruled that Blackstock procured a number of deals for Clarkson, including her lucrative role as a judge on The Voice, that should have been handled by her talent agents at Creative Artists Agency (CAA). By doing so, Labor Commissioner Lilia Garcia-Brower ruled that Blackstock violated California’s Talent Agencies Act (TAA), which bans anyone other than a licensed talent agent from procuring work for artists.
(Source: Billboard, November 30, 2023) [Subscription may be required]
Disney’s 20th Century Studios Fends Off ‘Ad Astra’ Copyright Lawsuit
An Atlanta judge ruled Thursday that he would allow many of Young Thug’s rap lyrics to be used as evidence against him and other alleged gang members in their upcoming criminal trial, rejecting arguments that doing so would violate the First Amendment. The ruling came a day after Fulton County Superior Court Judge Ural Glanville held a hotly-anticipated hearing about the use of lyrics as evidence – a controversial practice that has drawn backlash from the music industry and efforts by lawmakers to stop it.
(Source: Reuters, November 30, 2023)
Breaking the Billion-Dollar Barrier: Women’s Elite Sports to Generate More Than $1 Billion in Revenue in 2024
Deloitte predicts that women’s elite sports will generate global revenues of US$1.28 billion in 2024. This is the first time that annual global revenues for women’s sport will have surpassed US$1 billion. This total is at least 300 per cent higher than Deloitte’s previous valuation three years ago. Deloitte’s forecast is based on the three main categories of revenue for women’s sports; matchday, broadcast and commercial. Commercial revenue, which includes club sponsorships, partnerships, and merchandising sales, currently represents the largest share of total revenue (US$696 million, 55 per cent). This is followed by broadcast (US$340 million, 27 per cent), and matchday (US$240 million, 18 per cent) revenues. The two most valuable women’s sports are projected to be football (US$555 million, 43 per cent) and basketball (US$354 million, 28 per cent), while the largest geographical markets in 2024 are forecast to be North America (US$670 million, 52 per cent) and Europe (US$181 million, 14 per cent).
(Source: Deloitte, November 29, 2023)
Do not fear mistakes, there are none.
—
Miles Davis