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
Painting the Town: The Legal Landscape of Commissioned Murals
Public art installations like murals can be an exciting, effective way to transform the aesthetics of a property — and oftentimes the character of an entire community. Whether it’s a business district looking to attract customers, a municipality creating a point of interest for visitors, or neighbors venerating a beloved member of their community, murals offer a unique opportunity to capture attention, communicate a message, and serve as a cultural beacon, all at the same time.
(Source: Arnall Golden Gregory, June 22, 2023)
Read More >
Industry News
EA Sports Sued by Licensing Group: What It Means for College Football Video Game as Another NIL Issue Arises
The Brandr Group, which negotiates group licensing deals for over 50 Division I schools, is suing EA Sports over name, image and likeness deals being offered to athletes for the upcoming EA Sports College Football video game, according to documents obtained by Front Office Sports. EA Sports reportedly contacted the Brandr Group several times from 2021-22 to discuss its plans to offer NIL deals to athletes with transactions being negotiated through The Brandr Group. However, in May 2023, EA Sports chose to work with OneTeam Partners to facilitate any group bargaining.
(Source: CBS News, June 21, 2023)
Read More >
Streaming Shocker: Warner Bros. Discovery in Talks to License HBO Original Series to Netflix
In a turnaround for the streaming wars, Warner Bros. Discovery is in negotiations to license a package of library HBO titles to Netflix. If a deal were to go through, it would cement the sea-change in content distribution strategy afoot at Warner Bros. Discovery under the David Zaslav regime. HBO has licensed library content in the past — a deal with Netflix would not be groundbreaking per se, but it is notable in the era of pitched competition among the largest media companies to build direct-to-consumer streaming platforms. Netflix, the upstart outsider from Los Gatos, has been the pace car for television’s transition over the past decade.
(Source: The Variety, June 20, 2023)
Read More >
Independent Films Unblocked: SAG-AFTRA Waivers Would Let Some Productions Work Through a Strike
Independent films that found it impossible to get bonded or financed this spring and summer with a potential SAG-AFTRA strike looming — as well as new projects that were looking to start after June 30 — now have a shot at moving ahead as the union proceeds with interim agreements. The agreements, which essentially are non-work waivers in the case of a strike, would make it possible to bond new indie films heading into a potential work stoppage, something that hasn’t been the case for months.
(Source: Deadline Hollywood, June 20, 2023)
Read More >
FCC Proposes ‘All-In’ Pricing Requirements for Cable and Satellite Providers
The FCC outlined a proposal to require cable and satellite providers state from the outset the “all-in” price of their services, including such things as broadcast TV fees or regional sports surcharges. The proposal comes amid a Biden administration push to tackle so-called junk fees on things such as concert and airline tickets, as well as banking fees. FCC chairwoman Jessica Rosenworcel said in a statement, “No one likes surprises on their bill. The advertised price for a service should be the price you pay when your bill arrives, rather than hide a bunch of junk fees that are separate from the top-line service price.”
(Source: Deadline Hollywood, June 20, 2023)
Read More >
Ninth Circuit Says Rap Lyrics Can Create Hostile Work Environment
In Sharpe v. S&S Activewear LLC, the plaintiff worked in a warehouse. She and seven co-workers including one male filed a lawsuit alleging that they were subjected to a hostile and offensive work environment in violation of Title VII. The plaintiffs pointed to sexually demeaning and violent lyrics in rap music played in the warehouse during working hours. The district court dismissed the claim on the basis that male and female employees were equally offended by the music.
(Source: JD Supra, June 19, 2023)
Read More >
Netflix Poised to Benefit From Change in California Tax Credit
The California Legislature this week agreed to a significant change in the state’s film and TV tax credit, and one company in particular appears poised to benefit: Netflix. The state issues $330 million in tax credits every year to keep production jobs in California. The credits can be used to offset corporate income tax and sales tax. But some companies either have no California tax liability, or not enough to make full use of the credits. Gov. Gavin Newsom agreed this year to help those companies out by making the credit “refundable,” so that those companies can get cash back. The Legislature released details of a budget deal on Monday, which indicated that it had approved Newsom’s refundability proposal.
(Source: The Variety, June 15, 2023)
Read More >
Ticketmaster, Others Agree to Reveal Full Ticket Price Up-Front as White House Slams ‘Surprise’ Fees
President Biden announced that Live Nation and its Ticketmaster subsidiary, along with other ticketing companies, have pledged to give U.S. consumers the ability to see the full price of tickets up front — eliminating the practice of last-minute service fees and other additional expenses suddenly being added to ticket prices late in the online purchase process. It is important to note that the fees themselves are not necessarily being eliminated, but rather the practice of not revealing them until the final steps of the purchase.
(Source: The Variety, June 15, 2023)
Read More >
Twitter Hit With $250M Lawsuit From Music Publishers Over “Massive Copyright Infringement” Claim
Twitter’s longstanding refusal to secure music licensing rights has come to a head with a lawsuit accusing the company of mass copyright infringement. The three major music conglomerates — Universal, Sony and Warner — joined by a host of other publishers, on Wednesday sued Twitter for at least $250 million over the alleged infringement of roughly 1,700 works for which it received hundreds of thousands of takedown notices. They allege the company “consistently and knowingly hosts and streams infringing copies of music compositions” to “fuel its business.” Twitter has rebuffed calls for it to obtain the proper licenses, according to the suit.
(Source: The Hollywood Reporter, June 14, 2023)
Read More >
Microsoft’s Bid to Buy Activision Blizzard Temporarily Halted by Judge as Merger Deadline Nears
Microsoft’s $69 billion bid to buy video game publisher Activision Blizzard has been temporarily blocked, allowing more time to review whether the deal violates antitrust laws. U.S. District Judge Jacqueline Scott Corley found on Tuesday that pausing the merger is “necessary to maintain the status quo” and preserve the FTC’s ability to permanently stop the deal. After announcing plans last year to acquire Activision, maker of Call of Duty, Candy Crush and Diablo, Microsoft has been engaged in a worldwide blitz to secure approval of the purchase poised to make the company a gaming powerhouse. It’s been greenlighted in several countries, including the European Union, Japan and China, but the U.K. blocked it due to concerns that it would allow the company to corner the cloud gaming market in a decision that was appealed by Microsoft.
(Source: The Hollywood Reporter, June 14, 2023)
Read More >
California Lawmakers Propose Legislation Targeting MLB’s Antitrust Exemption if Teams Don’t Pay Relocation Fee
In response to the Athletics' ongoing efforts to relocate from Oakland to Las Vegas, two members of the U.S. House of Representatives from California -- Barbara Lee and Mark DeSaulnier -- have introduced a framework to repeal Major League Baseball's longstanding exemption from federal antitrust laws. The "Moneyball Act" legislation would require the owners of any relocated team to compensate the state and local authorities they move away from. In this case, A's owner John Fisher would be compelled to pay recompense to the city of Oakland and the state of California. Absent such compensation, the legislation calls for MLB to once again be subject to antitrust laws.
(Source: CBS News, June 13, 2023)
Read More >
Amazon’s Freevee to Launch FAST Channels From Warner Bros. Discovery, MGM
Content from two of Hollywood’s most recognizable brands is coming to Freevee. Freevee, the Amazon-owned free ad-supported streaming service, is launching 33 new FAST channels through deals with Warner Bros. Discovery and MGM. The deal includes 12 MGM-branded channels, including dedicated channels for films and shows like The Pink Panther, Stargate, Green Acres and The Outer Limits, as well as MGM-branded channels like “MGM Presents: Action” and “MGM Presents: Sci Fi.”
(Source: The Hollywood Reporter, June 12, 2023)
Read More >
Artist Behind Duct-Taped Banana Fends Off US Copyright Lawsuit
Italian artist Maurizio Cattelan, whose banana taped to a wall at the Art Basel Miami art fair sold for $120,000 in 2019, defeated a copyright infringement lawsuit by a fellow conceptual artist who claimed Cattelan plagiarized his work. Joe Morford failed to show that Cattelan illegally copied his own 2000 art piece featuring a banana duct-taped to a wall, a Miami federal judge ruled, tossing the case before trial.
(Source: Reuters, June 12, 2023)
Read More >
Cardi B Accuser Agrees to Repay $350K She Spent on Lawyers in His Failed Lawsuit Over Tattoo Image
A man who unsuccessfully sued Cardi B after his giant back tattoo was unwittingly photoshopped into one of her album covers has agreed to repay a whopping $350,000 in legal bills that the superstar spent defeating his lawsuit. Months after a jury rejected Kevin Brophy’s case against Cardi, his lawyers told a federal judge that he would not only reimburse the money that the rapper had dropped on her attorneys but also voluntarily end his efforts to revive the case and waive any chance at a future appeal.
(Source: Billboard, June 12, 2023) [Subscription may be required]
Read More >
Matt Damon and Ben Affleck’s Production Studio ‘Did Not Consent’ to ‘Air’ Monologue in Donald Trump Campaign Ad
Matt Damon and Ben Affleck’s production banner Artists Equity states that it “did not consent” to the use of a monologue from the film “Air” in a new campaign ad for Donald Trump. Trump shared a fundraising video on his Truth Social platform. The ad features footage and images of the former president throughout his life, accompanied by audio of Damon’s climactic monologue from the film “Air.” In the spring release, Damon’s Nike exec gives the speech to a young Michael Jordan to convince him to sign a sponsorship deal with the shoe company.
(Source: The Variety, June 11, 2023)
Read More >
CNN Slapped With Copyright Infringement Suit Over Theme Song Special
CNN was hit with a copyright infringement lawsuit in the U.S. District Court for the Central District of California for allegedly using the musical composition of the theme song ”We Are the Men of Texaco” in its “Where Have All the Theme Songs Gone?” special without proper authorization. In 2021, CNN created a program entitled “A CNN Special,” “Where Have All the Theme Songs Gone,” which featured the musical composition of “We Are The Men of Texaco.” According to the June 5 complaint, from July 10, 2021 to Oct. 21, 2021, CNN and their agents attempted to obtain a license from the Klings to use their copyrighted composition in the program, “We Are The Men of Texaco,” including back and forth communication between Anthony Kling and various CNN employees and others communicating on behalf of CNN. Then, on Oct. 13, 2021, Anthony Kling received an email from someone within the CNN music department saying their legal team have reviewed the clip they wished to use and had “determined that the use of the song in the context constitute permissible fair use which does not require a license.”
(Source: Law.com, June 7, 2023)
Read More >
Gen Z Is Drinking Less and Clubs Aren’t Thrilled
David Slutes says it took him a while to notice that bar tabs had fallen at a number of the shows he oversees at the 325-capacity Club Congress in Tucson, Ariz. “Coming out of COVID-19, everything about the live-music business was turned upside down,” says Slutes, who serves as the venue’s entertainment director. “We weren’t sure why the numbers were like this. Then we did a deeper dive, and at every event aimed at a Gen Z crowd, we saw numbers that were very different” — money spent on alcohol dropped by as much as 25% relative to shows that catered to older generations. (Gen Z refers to those born between 1997 and 2012.) “Gen Zers are just simply not drinking the same amount” as their predecessors, Slutes says. Dayna Frank, president/CEO of First Avenue Productions, a concert venue and promotion business in Minneapolis, remarked on the same shift during a recent panel at the Music Biz conference in Nashville: “One of the big trends we’re seeing is that Gen Z doesn’t drink as much,” she told the audience. “They’re either eating edibles before they come or there’s more of a sober, mental health [focus]… Most of the ticket price goes on to the band, so really what [venues] subsist on is beverages. That’s not going to be a sustainable revenue stream.”
(Source: Billboard, June 6, 2023) [Subscription may be required]
Read More >
The Binge Purge TV’s Streaming Model Is Broken. It’s Also Not Going Away. For Hollywood, Figuring That Out Will Be a Horror Show.
It’s been a little more than a year since the Great Netflix Freak-out, when the streaming pioneer’s first-ever loss of subscribers and ensuing stock drop sparked overdramatic proclamations that TV as we’d come to know it was finished. In that time, it’s become clear that the business model dominating modern Hollywood is deeply broken but also that it probably isn’t going anywhere — at least not yet.
(Source: Vulture, June 6, 2023)
Read More >
Apple Unveils Hotly Anticipated Headset: The Vision Pro
Apple entered a new category of interest to Hollywood: The virtual reality/augmented reality space, and the Apple Vision Pro is the company’s first product in that sector, as well as the first entirely new product category in nearly a decade. The headset was announced by CEO Tim Cook during a keynote address at the company’s Worldwide Developers Conference. It will “start at $3,499” and launch in early 2024.
(Source: The Hollywood Reporter, June 5, 2023)
Read More >
SAG-AFTRA Members Overwhelmingly Approve Strike Authorization
SAG-AFTRA members have voted overwhelmingly to authorize a strike if upcoming contract talks fail to produce a satisfactory agreement by June 30. The vote revealed June 5 was 97.91% in favor, with nearly half of eligible members — 47.69% — casting ballots. According to the union, nearly 65% of eligible members voted. The vote comes just two days before the guild will begin bargaining for a new contract with the Alliance of Motion Picture and Television Producers; two days after the Directors Guild reached a tentative agreement with the AMPTP for its own new contract; and 35 days into the ongoing Writers Guild strike.
(Source: Deadline Hollywood, June 5, 2023)
Read More >
How Real Is Queen’s ‘Billion-Dollar Catalog Deal’?
After months of murmurs, news broke just before the long Memorial Day weekend that, according to unnamed sources, the surviving members of Queen were in the process of closing a deal for the legendary group’s catalog for a mind-boggling $1 billion. Universal Music Group, the world’s largest music company, was said to be the likely buyer. Three sources tell Variety the deal is in advanced stages — although another close to the situation says it is very preliminary — and that the billion-dollar price tag is “real.” However, exactly what is included in the package is not entirely clear. The deal “is Universal’s to lose,” two sources said — although Sony Music is said to be waiting in the wings — owing to the company’s longstanding relationship with the group, which signed with EMI in 1972 and remained with the company, which was acquired by Universal in 2011, throughout its career.
(Source: The Variety, June 1, 2023)
Read More >
After Testy Trial Wraps, Video Game Developers Await Verdict in Copyright Battle Over Record-Selling ‘PUBG: Battlegrounds’
Krafton, maker of the online "battle royale" game, sought redress for a Chinese developer's knockoff version of the game, which Krafton alleged was made in violation of a settlement agreement on copyright and trade dress infringement claims in 2019.
(Source: Law.com, May 31, 2023)
Read More >
On-Location Filming of Scripted TV Shows Grinds to Near-Complete Halt in L.A. After 4th Week of WGA Strike
For the week ending May 28, the number of permits taken out by film and TV projects was down 62.8% – to 128 this week compared to 344 for the same period a year ago. “These are the categories into which all scripted projects fall, though not all production within these categories is affected by the labor action,” Sokoloski said. “Reality TV, as one example, still appears in these counts in addition to non-union independent films,” and they are not affected by the strike. Last week, on-location filming plunged 51.5% from a year ago, with only five scripted television shows taking out permits, and three of those projects were reported in the news to have ceased production.
(Source: Deadline Hollywood, May 31, 2023)
Read More >
Holiday Bowl Seeks $3 Million From UCLA, Pac-12 in Lawsuit for 2021 No-Show, per Report
The Holiday Bowl has filed a lawsuit against UCLA and the Pac-12 seeking money owed for the canceled 2021 edition of the game, according to The Action Network. Non-profit organization San Diego Bowl Game Association is seeking more than $3 million in damages after the Bruins withdrew from the bowl hours before kickoff nearly two years ago. In court filings from San Diego County, the Holiday Bowl alleges that UCLA's decision to pull out of the 2021 Holiday Bowl due to Covid-19 concerns cost the organization millions in reimburse dtickets and sponsorships. After the league failed to reimburse the bowl game for the losses, the Holiday Bowl withheld the $3.2 million payout due to Oregon for participating in the 2022 Holiday Bowl. UCLA was not compensated for the 2021 game.
(Source: CBS News, May 31, 2023)
Read More >
Jury Finds in Favor of Toy Maker MGA Entertainment in Legal Dispute With Rapper Clifford ‘T.I.’ Harris and His Wife
A federal jury in Santa Ana ruled against a legal claim by rapper Clifford “T.I.” Harris and singer-songwriter Tameka “Tiny” Harris’ that a Chatsworth-based toy manufacturer stole the name and likeness of a girl group they managed in creating a popular line of dolls. The husband and wife musicians sought nearly $100 million from MGA Entertainment, Inc., which began selling the OMG LOL Surprise dolls in 2019. The Harris family claimed the hair, dress and name of the dolls were nearly identical to the OMG Girlz, a trio of teenage singers promoted by the couple from 2009 until 2015, and during a brief 2017 reunion.
(Source: O.C. Register, May 26, 2023)
Read More >
Commanders’ Trademark Application Is Denied
Some have wondered whether the new owner of the Washington Commanders will change the team’s name. Again. The new owner might have no choice. Via trademark attorney Josh Gerben on Twitter, the U.S. Patent and Trademark Office has denied the trademark application for the name “Commanders.”
(Source: NBC Sports, May 24, 2023)
Read More >
Songwriters’ Streaming Royalties Have Been Determined (Finally)
The Copyright Royalty Board issued a landmark determination Tuesday (May 23) for Phonorecords III, maintaining an up to 44% raise for U.S. songwriters and publishers’ headline rate for mechanicals by the end of the period of 2018 to 2022. The ruling increases those royalties each year during the five-year period — from 11.4% to 15.1% of service revenue by 2022 — but also affirmed key requests from streaming services during their lengthy appeal, limiting royalties based on total content cost (TCC) and reinstating a rate ceiling step in the formula. While the document is restricted from public viewing, an appendix to that determination containing the regulations at the heart of the restricted document was released to the public on May 24.
(Source: Billboard, May 24, 2023) [Subscription may be required]
Read More >
Talent Agencies Start Belt-Tightening Amid Writers Strike
Hollywood talent agencies are getting into a cost-cutting mode amid a second industry work stoppage in three years. Many have implemented extra scrutiny/cuts in travel and expenses and some are also contemplating/planning temporary salary reductions. The measures are being taken as the WGA strike is entering its fourth week. While writers are not working, they are not getting paid, their term deals are suspended and many series and some movies have delayed or halted pre-production or production, affecting other above and below the line talent too. As a result, agencies’ film and TV revenue stream is starting to dry up, leading to the belt-tightening.
(Source: Deadline Hollywood, May 21, 2023)
Read More >
Why Your Spotify Subscription Is About To Get More Expensive
At the end of last year, Universal Music Group Chief Executive Officer Lucian Grainge sent a memo to his staff in which the noble mogul warned the fundamental economics of the music business needed to change. Grainge offered few specifics on what the “updated model” should be, though he said it should be “artist-centric” and criticized streaming services for directing listeners to generic music instead of (his) artists.
(Source: Bloomberg, May 21, 2023)
Read More >
Prosecutors Cite Fetty Wap’s Lyrics in Seeking Harsher Sentence: 'Glamorized the Drug Trade'
Federal prosecutors want a judge to sentence Fetty Wap to as much as nine years in prison after the rapper pleaded guilty last year to drug charges, citing lyrics they say “glamorize the drug trade” and arguing that the court needs to “send a message” to kids. The filing came just a day after lawyers for “Trap Queen” star (real name Willie Junior Maxwell II) asked for just five years, arguing that he only turned to crime to support family members as his touring income dried up during the COVID-19 pandemic. In their own brief, prosecutors told a darker story: Of a successful musician who had already earned millions but chose to “supplement his income” by selling “drugs he knew would ruin lives.” In a particularly notable move, they pointed to Fetty’s music itself, arguing he had used his “fame, sizeable platform and influence to glamorize the drug trade.”
(Source: Billboard, May 19, 2023) [Subscription may be required]
Read More >
Where Actors Could Make a Deal With Studios on AI
Just as AI became a sticking point during the Writers Guild’s talks with studios, the tech’s impact on onscreen talent will likely be an issue when SAG-AFTRA heads to the negotiating table in June. “For writers, the AI construct is limited to language. Whereas for actors an entire scene can be impacted in a multitude of ways by AI — from lighting, to the age of the actor, to removing a blemish, to superimposing a rocket ship in the scene,” says talent lawyer Darren Trattner. “We are transitioning into an era of assistive computing,” notes Amy Webb, founder and CEO of Future Today Institute, which does long-range scenario planning and consultation for Fortune 500 companies and Hollywood creatives. “I can totally envision a very near future in which some new person on the set, some type of AI specialist, puts in a line of code that says ‘de-age Tom Hanks 20 years’ and it just applies it automatically throughout.”
(Source: The Hollywood Reporter, May 18, 2023)
Read More >
Supreme Court Rules Against Andy Warhol in Copyright Case
The Supreme Court ruled that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for an image of the musician that his estate licensed to a magazine, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art. The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
(Source: The New York Times, May 18, 2023)
Read More >
Justine Bateman Wants to See AI Contract Terms in Actor Agreements and Music Folk Should Be Checking, Too
If you are seeing contract language that allows the other side to use your name, image, likeness, voice, etc., take a close look at the rights granted. It may not be that obvious. Like all other configuration changes in the past, artists, producers and songwriters need to look at their existing agreements and see how old language will be interpreted to cover AI.
(Source: The Trichordist Blog, May 17, 2023)
Read More >
Common Pleas Judge Strikes Down Pittsburgh’s ‘Jock Tax’
An Allegheny County common pleas judge has struck down the so-called "Jock Tax." According to our news partners at the Pittsburgh Post-Gazette, Pittsburgh was charging a facility fee against out-of-town professional athletes. Athletes had to pay three percent of the income they earned while playing at PNC Park, PPG Paints Arena, and Acrisure Stadium. The players' associations for the NFL, NHL, and MLB all sued to end the fee.
(Source: CBS News, September 25, 2022)
Read More >
I dream my paintings and I paint my dreams.
—
Vincent van Gogh
