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
Misinformation Regarding Mechanicals and the MLC: What’s the Deal With Downloads?
The Mechanical Licensing Collective (“MLC”) was created to make paying songwriters and publishers easier. Just as performance rights organizations issue blanket licenses to music users (radio stations, television, venues, etc.) and then collect and distribute performance royalties to their members, the MLC issues blanket licenses to streaming and download services (collectively, digital service providers or “DSPs”) and then collects and distributes mechanical royalties to its members. Even though the music industry has been dealing with blanket licenses and mechanicals royalties for over a century now, applying the blanket license model to mechanicals has not been a seamless transition. In particular, there is lingering confusion about the MLC’s disparate treatment of downloads and streams, and songwriters (and their attorneys) are receiving conflicting guidance on the matter. So, let’s clear this up once at for all.
(Source: Arnall Golden Gregory LLP, February 21, 2024)
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Industry News
FuboTV Files Antitrust Lawsuit to Block Disney, Fox, Warner Sports Streaming Deal
Sports-focused streaming service FuboTV said it has filed an antitrust lawsuit against Walt Disney, Fox and Warner Bros Discovery over a planned sports streaming platform by the companies. Fubo alleges in a statement that the media companies have engaged in a "years-long campaign" to block the sports streaming service's growth by engaging in anti-competitive practices. The recently sports streaming joint-venture "steals Fubo's playbook" it said, and is "the latest example of this campaign."
(Source: Yahoo! February 20, 2024)
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Kanye West’s ‘Vultures 1’ Still Uses Part of an Uncleared Black Sabbath Song — Plus Many More
Even after Ozzy Osbourne denied Kanye West‘s sampling request on his new album with Ty Dolla $ign, Vultures 1, elements of the Black Sabbath hit “Iron Man” still appear on the album. The version of Vultures 1 that West released does not use that sample of Ozzy Osbourne’s solo band performing “Iron Man” at the 1983 Us Festival. Instead, it uses a sample of West’s own track, “Hell of a Life,” released in 2010 with Universal Music Group (UMG), which also includes an interpolation of Black Sabbath’s “Iron Man” guitar riff. This use would likely also require approval from the members of that band — Osbourne, Tony Iommi, Geezer Butler and Bill Ward — all of whom have writing and publishing credits on “Hell of a Life.”
(Source: Billboard, February 17, 2024) [Subscription may be required]
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Judge Orders Cam'ron to Pay $50K for Using Copyrighted Image of Himself on Dipset Merch
A federal judge has ordered Cam’ron to pay more than $50,000 to a photographer for using her photo – a shot of the Dipset rapper wearing a fuzzy pink coat and hat while holding a matching flip phone – on a slew of merchandise without permission. A year after Djamilla Cochran sued the rapper (real name Cameron Giles) and his company Dipset Couture for slapping her image on merch, Judge William Martini ruled Thursday that he had indeed committed copyright infringement. It was an easy win for Cochran, since Cam never responded to the lawsuit or offered any defenses.
(Source: Billboard, February 16, 2024) [Subscription may be required]
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Whitney Houston Movie Producers Never Paid for Songs, Sony Music Claims in New Lawsuit
Sony Music Entertainment is suing the producers of the 2022 biopic Whitney Houston: I Wanna Dance With Somebody, accusing them of failing to pay for the more than 20 Whitney tracks that appeared in the movie. In a lawsuit filed Thursday in New York federal court, Sony claims that Anthem Films, Black Label Media and others behind the movie signed deals for sync licenses to feature songs like “I Will Always Love You” in the movie – but that more than a year after the film was released, the label hasn’t been paid a dime.
(Source: Billboard, February 16, 2024) [Subscription may be required]
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Priscilla Presley Fights Lawsuit From Ex-Business Partner Who Claims She Brokered A24 Movie
Priscilla Presley is mired in a legal battle with a company that claims it has the exclusive right to exploit her name, image and likeness. Priscilla Presley Partners (PPP), a firm started by Brigitte Kruse and Kevin Fialko, claimed that it helped broker a deal for the A24 movie adaptation of Presley’s memoir — as well as a settlement of an estate dispute challenging the will of her late daughter, Lisa Marie — and has sued to enforce its rights. The company alleges breach of contract against Presley — who allegedly was months away from bankruptcy before it started managing her business affairs — for reneging on their agreement to partner with Keya Morgan, Stan Lee’s former business manager charged with multiple counts related to elder abuse against the comic book legend.
(Source: The Hollywood Reporter, February 14, 2024)
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Disneyland Character Workers Look to Unionize With Actors’ Equity
A group of 1,700 performers who play characters and cheer and dance in parades at Disneyland in California announced their intent to unionize with Actors’ Equity. The group, which includes performers who conduct meet and greets in the park and appear in character dining experiences, as well as the hosts and trainers that support them, are asking for increased wages, greater transparency on scheduling and rehiring decisions and addressing concerns about safe and sanitary workplace conditions.
(Source: The Hollywood Reporter, February 13, 2024)
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Amazon Prime Video Ad Tier Sparks Class Action Lawsuit From Subscribers
Amazon is facing a lawsuit accusing it of misleading Prime subscribers by charging them an additional fee to stream movies and TV shows without ads. A proposed class action lawsuit, filed Friday in California federal court, claims breach of contract and violations of state consumer protection laws on behalf of users who saw the terms of their subscriptions with Amazon change when it pivoted to making its ad tier the default for its over 100 million subscribers.
(Source: The Hollywood Reporter, February 12, 2024)
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Dartmouth Wins Two-Week Extension of NLRB Union Vote
Dartmouth College now has more breathing room to file a request for review (i.e., appeal) of NLRB regional director Laura Sacks’ Feb. 5 decision to order a union election of the men’s basketball team. In a brief order Monday, NLRB counsel Diane Bridge extended the deadline from Feb. 20 to March 5—the same day the 15 players will vote on whether Service Employees International Union Local 560 represents them as a union. As Sportico explained , an extension was expected and will give Dartmouth more time to develop arguments in a controversy that impacts all of college sports.
(Source: Yahoo! February 12, 2024)
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Mechanical Licensing Collective Files Suit Against Pandora Over Unpaid Mechanical Royalties
As an interactive service, Pandora must pay mechanical royalties for all streaming activity on the service; in the lawsuit filed in Nashville federal court on Monday, (February 12) the MLC states that the company has failed to report and pay all that it owes under its ad-supported offering, Pandora Free. “The MLC has repeatedly raised this license compliance issue with Pandora and asked it to correct its reporting, but it has refused to do so,” writes the MLC. “We are taking legal action to ensure that our Members receive all the mechanical royalties they are due in connection with the use of their songs by Pandora.” In particular, the MLC takes issue with “unusually low royalties per stream” reported and paid out by Pandora, beginning in 2021. The MLC says this is due to the exclusion of substantial service revenue and total content cost (TCC) for Pandora Free — TCC refers to the amount paid by streaming services to record labels for the right to stream a recording. Both the TCC and service provider revenue are “essential to calculating the royalties due for this blanket license.”
(Source: Digital Music News, February 12, 2024)
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IATSE Puts Strike Authorization Vote On the Table as Negotiations Near
The major Hollywood crew union IATSE is planning on a potential strike authorization vote if deals on two major labor contracts are not reached around the time they expire on July 31. The union indicated that it is factoring the possible vote into its negotiations strategy in new contract campaign websites for its upcoming Basic Agreement and Area Standards Agreement talks. Both websites present a timeline of events before and after negotiations begin on March 4 for the Basic Agreement (covering West Coast workers) and, after, for the Area Standards Agreement (applying to workers outside of New York and L.A. and projected to begin in late April). Around the July 31 expiration date for the two deals, which collectively apply to more than 60,000 industry workers, IATSE says it expects either a ratification vote for a tentative deal or a vote that will gauge members’ interest in a walkout, “depending on the status of negotiations.”
(Source: The Hollywood Reporter, February 8, 2024)
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Amid Tense Negotiations, SAG-AFTRA Expands Indie Video Games Coverage With New Contract
As SAG-AFTRA remains locked in tense negotiations with video game giants, the actors union has released a new contract designed to cover a larger number of indie and lower-budget gaming projects and create “pressure” in the bargaining room with major companies. The union’s new Tiered-Budget Independent Interactive Media Agreement contains provisions — especially on AI — that major companies involved in SAG-AFTRA’s ongoing Interactive Media Agreement talks have resisted, according to SAG-AFTRA national executive director Duncan Crabtree-Ireland. He compared the new deal to SAG-AFTRA’s interim agreements, which allowed members to work on independent projects during the union’s 2023 film and television strike. “I think it’s really going to highlight, like the interim agreements did last year, the unreasonableness that some of these video game companies are bringing to our attempts to negotiate a deal that provides just basic fair protection to our members who are working in video games, as it relates in particular to AI,” he said.
(Source: The Hollywood Reporter, February 7, 2024)
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Mogul Wants to Help Musicians Track Unclaimed Royalties
The complex world of royalties and rights management is a huge pain point for artists. With the rise in the number of record labels and streaming platforms around, it could be tricky for artists to track where their work is being used and how they are earning from different platforms. Mogul wants to make it easy for artists to track their income and even know about missed revenue opportunities. Mogul provides an overview of an artist’s income sources — both publishing and sound recordings — such as mechanical royalties (streaming and reproduction of music), public performance rights, and neighboring rights (use of a track in places like broadcasting).
(Source: Tech Crunch, February 6, 2024)
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Warner Chappell Urges Supreme Court to Reject Copyright Office Position in Flo Rida Sample Dispute
Warner Chappell has urged the American Supreme Court to reject a position stated by the US Copyright Office regarding how far back damages can be claimed in a copyright infringement lawsuit, as part of a legal dispute over a sample in 2008 Flo Rida track ‘In The Ayer’. The Copyright Office says that damages can be backdated to when an infringement took place, providing a lawsuit is filed within three years of the plaintiff becoming aware of the infringement. Warner Chappell says that is wrong. In the past different US courts have been inconsistent on this matter, so the music publisher now wants clarification in its favour. At the heart of this is what is known as the 'discovery rule'. There is a three year statute of limitations for copyright infringement litigation, but under the discovery rule that means a copyright owner must sue an alleged infringer within three years of them becoming aware of any infringement, rather than three years from the date the infringement actually took place.
(Source: Complete Music Update, February 6, 2024)
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In Major Team-Up, Disney, Warners and Fox Plan Sports Streaming Platform Combining Coverage
In a blockbuster agreement that Disney CEO Bob Iger says is “an important step forward for the media business,” The Walt Disney Co., Fox Corp. and Warner Bros. Discovery will team up on a new company that combines streaming sports rights. The untitled streaming platform will offer live linear channels like ESPN, ABC, Fox, TNT and TBS, and games and other sports rights from all three media giants on a nonexclusive basis (meaning they will still be able to launch their own offerings). The service will be available directly to consumers, but will also be available as a bundle with WBD’s Max, Disney’s ESPN+ and Hulu. Pricing is still TBD, but it is expected to launch in the fall, in time for the NFL season.
(Source: The Hollywood Reporter, February 6, 2024)
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Who Really Created Nirvana’s Smiley Face Logo? An Appeals Court Might Weigh in Soon
A years-long legal fight over Nirvana‘s iconic smiley face logo could be headed for a major showdown, sparked by a former record label art designer who says he, not Kurt Cobain, created the famed drawing. Lawyers for the 1990s legends are locked in a sprawling, three-way dispute over the image, which has appeared on countless t-shirts and other merch in the years since Cobain’s death. Nirvana is suing fashion designer Marc Jacobs for using it without permission on grunge-themed apparel, while Robert Fisher — a former designer at Geffen Records — is fighting the band over who created it in the first place.
(Source: Billboard, February 1, 2024) [Subscription may be required]
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Taking It to Court: State of Tennessee and Virginia File Lawsuit Against the NCAA for Nil-Related Actions
The NCAA has found itself in the crosshairs of the State of Tennessee and Virginia, with the two states filing a lawsuit against the governing body. Following a scolding statement from chancellor Donde Plowman on Monday, the University of Tennessee is now taking its fight regarding NIL straight to court. The antitrust case was filed on Jan 30 and makes it clear that they want the NCAA to stay out of the athletes’ way when it comes to making money though NIL. The complaint also notes that the NCAA is not allowing the athletes to profit in a market that includes the transfer portal.
(Source: OutKick, January 31, 2024)
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Showtime Sued Over ‘George & Tammy’ TV Series by Real-Life Heirs of ‘Villain’ Character
The plaintiffs claim that the defendants “engaged in an pattern of self-dealing that was rife with potential and actual conflicts of interest,” breaching “its duties of reasonable care, skill, diligence, and fidelity, as well as their fiduciary duty, including, but not limited to, its duty of loyalty towards SUBLIME with conflicts galore.” Sublime claims that the defendants simultaneously represented the group and former manager Dave Kaplan in the same transactions, without disclosing this conflict of interest to Sublime. The band alleges that it and Kaplan were known to have adverse interests, and that King Holmes clearly favored Kaplan over the band in the transaction negotiations, the complaint said.
(Source: Billboard, January 31, 2024) [Subscription may be required]
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Members of Band Sublime Filed Suit Against Their Former Firm King, Holmes, Paterno & Soriano
The plaintiffs claim that the defendants “engaged in an pattern of self-dealing that was rife with potential and actual conflicts of interest,” breaching “its duties of reasonable care, skill, diligence, and fidelity, as well as their fiduciary duty, including, but not limited to, its duty of loyalty towards SUBLIME with conflicts galore.” Sublime claims that the defendants simultaneously represented the group and former manager Dave Kaplan in the same transactions, without disclosing this conflict of interest to Sublime. The band alleges that it and Kaplan were known to have adverse interests, and that King Holmes clearly favored Kaplan over the band in the transaction negotiations, the complaint said.
(Source: Law.com, January 31, 2024)
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Byron Allen Makes $14B Offer to Buy Paramount Global
Byron Allen is making a play for Paramount. The comic-turned media mogul has made a $14.3 billion offer to buy all outstanding shares Paramount Global, according to a statement from Allen’s company. The deal would also see Allen Media Group assume Paramount’s roughly $15 billion debt load, valuing the shares at about a 50% premium to their recent trading prices. “Mr. Byron Allen did submit a bid on behalf of Allen Media Group and its strategic partners to purchase all of Paramount Global’s outstanding shares,” the statement said. “We believe this $30 billion offer, which includes debt and equity, is the best solution for all of the Paramount Global shareholders, and the bid should be taken seriously and pursued.”
(Source: The Hollywood Reporter, January 31, 2024)
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Universal Music Group to Pull Songs From TikTok Imminently, Sends Blistering Open Letter
In a dramatic move, Universal Music Group says that it will pull its song catalog from TikTok Jan. 31 after failing to come to terms on a new licensing deal with the fast-growing social video platform. The music label announced the move in a blistering open letter to artists and songwriters titled “Why we must call time out on TikTok.” “In our contract renewal discussions, we have been pressing them on three critical issues—appropriate compensation for our artists and songwriters, protecting human artists from the harmful effects of AI, and online safety for TikTok’s users,” the open letter stated.
(Source: The Hollywood Reporter, January 30, 2024)
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YouTube Podcast Sued for Using Late Comedian George Carlin's Likeness in AI-Generated Comedy Special
The estate of late comedian George Carlin has sued the “Dudesy” YouTube podcast for allegedly using his likeness and original copyrighted works to generate a script and sound-alike “performance” in a newly released comedy special.
(Source: Law.com, January 26, 2024)
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Hey, Ho, Let’s Go…to Court: Ramones Heirs Locked in Legal Battle Over Pete Davidson’s Joey Ramone Movie
There’s a new front in the long legal war between the family members of late Ramones founders Joey and Johnny Ramone, this time over a planned Netflix movie starring Pete Davidson centered on the pioneering punk band. In a lawsuit filed in Manhattan court, Johnny’s widow, Linda Ramone, claims that Joey’s brother, Mickey Leigh (Mitchel Hyman) “covertly developed an unapproved and unauthorized Ramones-based biopic” based on his own “one-sided recitation of the history of the Ramones.”
(Source: Billboard, January 25, 2024) [Subscription may be required]
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Kat Von D Claims Miles Davis Tattoo Is ‘Fair Use’ at Unusual Copyright Trial
Celebrity tattoo artist Kat Von D appeared in a Los Angeles federal courtroom Tuesday to fight claims she violated the copyright of an “iconic” portrait of jazz legend Miles Davis when she tattooed a version of the image on a friend without proper credit or compensation. The former star of reality shows Miami Ink and LA Ink sat before a jury as her lawyer said in his opening statement that Von D only used the famous photo for “inspiration” as she created a “completely different” work on her friend’s arm free of charge seven years ago. The 1989 photo at the center of the trial, created by plaintiff Jeffrey Sedlik, depicts Davis staring directly into the camera lens while holding a finger to his lips in what Sedlik described Tuesday as a “shhh” gesture. It was first published on the cover of JAZZIZ magazine in August 1989 and registered with the United States Copyright Office in 1994.
(Source: Rolling Stone, January 23, 2024)
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Michael Jackson Estate Locked in Legal Dispute With ‘MJ Live’ Las Vegas Tribute Act
The Michael Jackson estate is embroiled in a lawsuit with a Las Vegas tribute act called MJ Live, which claims that the King of Pop’s attorneys have unfairly begun threatening to sue over a show that’s been performed nightly on the Strip for more than a decade. In a complaint filed in Nevada federal court, the organizers of MJ Live asked a judge to rule that they could continue to stage their concerts featuring a Jackson impersonator, which are held six nights per week at the Tropicana in addition to other venues around the country.
(Source: Billboard, January 19, 2024) [Subscription may be required]
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The MLC Is Auditing Streaming Services for the First Time
The Mechanical Licensing Collective (the MLC) has issued notices of intent to audit all digital service providers (DSPs) that operate under the compulsory blanket license administered by the MLC since its inception in 2021. This includes a slew of different companies that license music, including on-demand streaming services (like Spotify, Apple Music, Amazon Music, Tidal and Deezer), the interactive streaming side of internet radio companies (like Pandora, Mixcloud and iHeart Radio) and music apps (like Ultimate Guitar, PianoTrax and WeavRun). The audits are intended to ensure the accuracy of reported and paid royalties beyond the measures already taken by the MLC.
(Source: Billboard, January 18, 2024) [Subscription may be required]
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Imagination is more important than knowledge.
—
Albert Einstein
