The Pitch - July 2022

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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

What’s in a Name? A Property Right
This summer, Louisiana joined the large group of states that codify an individual’s right of publicity. On June 15, 2022, Louisiana passed the Allen Toussaint Legacy Act (the “Act”), SB426 Act. 425, which provides that individuals have a property right in connection with their identity when used for commercial purposes. The Act takes effect on August 1, 2022. Previously, Louisiana did not expressly recognize a right of publicity. Now, Louisiana’s new law creates protections against the unauthorized use of an individual’s identity. These protections, however, come with potential repercussions.
(Source: Arnall Golden Gregory LLP, July 20, 2022)

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Industry News

Chicago's U.S. Attorney Sues Cubs Over ADA Compliance in Wrigley Field Renovation
Chicago’s U.S. Attorney’s office sued the Chicago Cubs on Thursday over the team’s recent yearslong renovation of Wrigley Field, aiming to force the North Siders to comply with the Americans with Disabilities Act. The lawsuit alleges that, amid the renovation of the century-old ballpark, the Cubs failed to provide wheelchair users with adequate sightlines compared to standing patrons, or incorporate wheelchair seating in new premium club and group seating areas. The feds say the Cubs designed and constructed general admission wheelchair seating so that it is largely clustered in the last row of seating sections — violating ADA standards — and failed to remove architectural barriers in unaltered portions of Wrigley where possible.
(Source: NBC, July 14, 2022)

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‘Rocket 2 U’ Songwriter Hits NFL, NBC With Copyright Complaint Over ‘Sunday Night Football’
In a complaint filed Wednesday in Manhattan federal court, songwriter Bobby Nunn — who wrote and produced “Rocket” for the band The Jets — says NBC and the NFL have repeatedly used the song in broadcasts, but singled out a Jan. 3 game between the Minnesota Vikings and the Green Bay Packers at Lambeau Field.
(Source: Billboard, July 14, 2022)

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So… How Much Did Tiktok Actually Pay the Music Industry from Its $4BN In Revenues Last Year?
According to MBW’s read of Goldman Sachs‘ latest Music In The Air report, TikTok paid recorded music rightsholders (i.e. labels and artists) a grand total of around $179 million in 2021.
(Source: Music Business Worldwide, July 14, 2022)

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Rare-Book Dealer Charged After Pilfered Eagles Lyrics Come to Light
Glenn Horowitz and two other men are accused of conspiring to sell Don Henley’s notes, including the words to “Hotel California.”
(Source: The New York Times, July 12, 2022)

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That Syncing Feeling: How Stranger Things Supercharged the Music Industry
The chart success of first Kate Bush and now Metallica thanks to ‘syncs’ in Stranger Things shows how TV shows and TikTok are increasingly crucial for heritage acts.
(Source: The Guardian, July 12, 2022)

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Senators Ask USPTO And US Copyright Office to Conduct NFT Study with Focus on IP Issues
Ranking Senators of the Judiciary Subcommittee on Intellectual Property requested that the USPTO and the Copyright Office conduct a joint study that addresses several IP legal issues surrounding NFTs. Citing those roles and their widespread interest in the “continued development and use of emerging technologies”, the senators requested that the study address several questions, including how do current statutory protections for copyright, such as the DMCA, apply to the NFT Marketplace and are those protections sufficient to address current infringement concerns?
(Source: Business News, July 8, 2022)

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Artists Are Leveraging False Infringement Claims Against Rivals
It's easy to "report" a song for violating copyright law on Spotify. It's also easy to abuse this system to derail acts with viral momentum, according to managers. This tactic of using the takedown feature against a competitor or rival is more common on platforms like Instagram or TikTok. Both have a “report” function that is supposed to be used only for content that violates the platforms’ guidelines. But prominent influencers sometimes come under attack from rival fan-bases or bots who “report” their page en masse in order to get it pulled down.
(Source: Billboard, July 7, 2022)

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Lewis Black Sues Pandora for $10M in Latest Comedian Copyright Infringement Lawsuit
Pandora has been hit with another lawsuit by a comedian accusing the streamer of shortchanging artists by neglecting to obtain the proper copyrights to stream their works — this time by Lewis Black. According to a complaint filed Thursday in California federal court, Pandora “took and exploited his works solely to make themselves money while knowing it had no license and had not paid, and would not be paying, royalties.” The lawsuit is the latest in an escalating feud between streamers and comedians pushing to change the landscape of compensation amid a boom in popularity for spoken-word content. They raise novel licensing theories arguing that they should be paid for writing their jokes, much in the same way that musicians are paid royalties for composing song lyrics.
(Source: The Hollywood Reporter, July 7, 2022)

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Artist Behind Banana Taped to Wall Can’t Escape Copyright Suit
The artist behind a viral sculpture featuring a banana taped to a wall at the 2019 Art Basel fair in Miami was unable to immediately shake a lawsuit claiming he copied the artwork from another artist. The idea of a banana duct-taped to a wall is uncopyrightable, but the specific “selection, coordination, and arrangement” of the various elements of the sculpture can receive a degree of protection, Judge Robert N. Scola Jr. said in his Wednesday opinion.
(Source: Bloomberg Law, July 7, 2022)

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Arizona’s $125M Film and TV Tax Credits Bill Becomes Law
Some praise the new program for allowing Arizona to compete with neighboring state New Mexico, though legislative analysts predict that the state will not see a return on its investment.
(Source: The Hollywood Reporter, July 6, 2022)

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Writers Guild West Members Saw Residuals Increase Amid Declines in Employment, Income in 2021
Even as employment and income decreased for writers in 2021, the Writers Guild of America West saw an uptick in residuals going to members across film and television. Guild members received an “an all-time high” of $493.6 million in residuals in 2021, representing a 5.4 percent uptick from 2020, according to the WGA West’s latest annual financial report, released on June 29. Overall, the year saw television residuals boosted 4.7 percent and film residuals increase by 6.9 percent. New media was “the largest residual category overall,” according to the Guild, comprising about 45.2 percent of all residuals in 2021, up 8.5 percent from 2020. In television, new media residuals rose 31.7 percent from the previous year and in film they rose 27.1 percent.
(Source: The Hollywood Reporter, July 6, 2022)

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'To Kill a Mockingbird'’s State Adaptation Rights Results in Ambiguity Battle
A current dispute over contract language in grants to different parties for theatrical adaptations of the classic 1960 novel "To Kill a Mockingbird" is an apt example of what can happen if contract language isn’t specific enough.
(Source: Law Journal Newsletter, July 1, 2022)

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What’s Happening With Productions Tax Credit in GA?
In recent years, the Peach State has become one of the most popular spots for film companies. However, the state General Assembly’s action with regarding one bill and inaction with regard to another have threatened to harm the entertainment industry.
(Source: Law Journal Newsletter, July 1, 2022)

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Copyright Royalty Board Confirms Streaming Royalty Raise for Publishers and Songwriters
In a big win for the publishing and songwriting community, the Copyright Royalty Board reaffirmed the 15.1% headline rate increase in royalties paid by streaming services to publishers for the 2018-22 period.
(Source: Variety, July 1, 2022)

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Ricky Martin's Former Manager Sues Over $3M in Unpaid Commissions
The lawsuit, filed by Venable attorneys in Los Angeles state court, alleges that the manager played a critical role in protecting Martin’s career when the songwriter and actor received a letter from “a highly-respected litigation attorney in Los Angeles” threatening him with a “potentially career-ending allegation” in September 2020.
(Source: LAW.COM, June 30, 2022)

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Preemptive Trademark Suit Filed in Anticipation of Roger Waters Concert
Counsel for filed Thread Shop, a division of Sony Music Entertainment, filed a trademark infringement lawsuit in Massachusetts targeting sellers of 'bootleg' merchandise in anticipation of a July 12 performance at Boston's TD Garden by Roger Waters.
(Source: US Courts, June 30, 2022)

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Kanye West Sued Over Claim of Illegal Sample On 'Donda 2'
Ultra International Music Publishing LLC said "Flowers" from West's album "Donda 2" includes a sample from Jefferson's 1986 dance song "Move Your Body" that is repeated at least 22 times.
(Source: Reuters, June 30, 2022)

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Metaverse Music Licensing: ‘We Have a Window to Sort This Out’
The music industry is excited about the potential offered by games and virtual worlds, but are its licensing models flexible enough to realise that potential?
(Source: Music Ally, June 30, 2022)

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FCC Commissioner Calls On Apple, Alphabet to Ban TikTok
A Federal Communications commissioner is urging Apple and Alphabet to remove TikTok from the companies’ app stores. According to a letter addressed to the chief executives of the companies, FCC commissioner Brendan Carr said TikTok poses an “unacceptable security risk” because it mines extensive user data, which is being accessed by employees in China.
(Source: The Hollywood Reporter, June 29, 2022)

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FTC Approves Horseracing Integrity and Safety Authority’s Proposed Registration Rule
The Federal Trade Commission has issued an Order approving the Registration rule proposed by the Horseracing Integrity and Safety Authority after a public comment period. The Registration rule requires covered persons and covered horses to register with the Authority, which has a registration portal at its website, www.hisaus.org.
(Source: Federal Trade Commission, June 29, 2022)

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Los Angeles Dodgers' Freddie Freeman Fires Agents Who Led Offseason Contract Talks
Freeman has fired the agency that represented him in his offseason negotiations, Excel Sports Management, according to multiple sources. Casey Close, who was the lead agent in Freeman's talks with the Braves and Dodgers, did not immediately respond for comment.
(Source: ESPN, June 28, 2022)

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CAA Closes $750M Deal for ICM Partners, Consolidating Major Agency Landscape
A source familiar with the terms tells The Hollywood Reporter that ICM was valued at $750 million in the transaction, giving the combined company a pro forma enterprise value of $5 billion. CAA says the combined company will have some 3,200 employees in 25 countries. Four hundred and twenty-five ICM employees will join CAA, with 105 expected to be laid off.
(Source: The Hollywood Reporter, June 28, 2022)

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Hollywood Aims to Trim Production Costs Amid Inflation Surge, Supply Chain Pain
Studio execs and stage operators say sets are at least 15 percent more expensive to build than they were just last year: "We're asking, 'This scene is seven-eighths of a page. Do we need the set, which costs $500,000?'"
(Source: The Hollywood Reporter, June 27, 2022)

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The Hot Mess of Fair Use for Music Educators
I’ve been writing about music for decades, but I still can’t tell you when I can share part of a song for educational purposes. This isn’t because I’m lazy or stupid. The plain truth is nobody can answer this question.
(Source: The Honest Broker, June 27, 2022)

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Game Over? Plaintiffs' Lawyers Banned from Madison Square Garden By MSG
At least two shareholder firms engaged in litigation over the 2021 merger of Madison Square Garden Entertainment Corp and MSG Networks Inc have received letters from an MSG lawyer advising that they are barred from entering Madison Square Garden, Radio City Music Hall, the Beacon Theatre and other MSG venues until the shareholder suits are resolved.
(Source: Reuters, June 27, 2022)

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Chelsea Handler Is Suing Lingerie Company ThirdLove for $1.5 Million, Alleging Breach of Contract
Chelsea Handler filed a lawsuit against ThirdLove, alleging that the lingerie company failed to honor its contractual commitments to her and refused to compensate her for an advertising campaign it had hired her to spearhead.
(Source: U.S. Weekly, June 24, 2022)

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'Thanks, Homegirl!' Michael Che Shuts Down TikTok Star's Lawsuit
Michael Che is off the hook in the "homegirl" lawsuit brought on by a TikTok star. The judge dismissed the case after Kelly Manno failed to prove the Saturday Night Live star stole the concept of her "HomeGirl Hotline" sketch for his HBO Max special.
(Source: RADAR, June 23, 2022)

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Ohio State University Wins Trademark for The Word 'THE'
Ohio State University has officially registered a trademark for the word "THE" after a nearly three-year battle to clinch legal branding access to a word that's deeply meaningful to the school's overall identity.
(Source: CNN, June 23, 2022)

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Why Did T Bone Burnett Record a Song With Bob Dylan That Only One Person Can Own? To Disrupt the Art Market
he new Dylan recording of "Blowin' in the Wind" that Burnett produced and played on will be auctioned by Christie's in July. The producer talks about the song, the new format it's being "released" on, and whether all art needs to be mass-produced.
(Source: Variety, June 23, 2022)

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Court: Harvard Can Be Sued for Distress Over Slave Photos
A Connecticut woman who says she’s descended from slaves portrayed in widely-published, historical photos owned by Harvard can sue the Ivy League university for emotional distress, Massachusetts’ highest court ruled. The court concluded the Norwich resident and her family can plausibly make a case for suffering “negligent and indeed reckless infliction of emotional distress” from Harvard and remanded that part of their claim to the state Superior Court.
(Source: BOSTON.COM, June23, 2022)

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Major League Baseball Now Allowing Teams to Sell CBD Sponsorships
Major League Baseball teams were told Tuesday that they can sell CBD sponsorships. The commissioner's office informed teams that a sponsor would need to be certified by the NSF, a global health and safety organization, to ensure the CBD products do not contain THC, which causes psychoactive effects. A sponsor would need to be approved by the commissioner's office.
(Source: ESPN, June 22, 2022)

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Naomi Osaka Launching Media Company With LeBron James and Maverick Carter’s SpringHill
Osaka and her longtime agent and business partner Stuart Duguid are behind the production banner, which is called Hana Kuma. Osaka and Duguid also launched their own athlete representation banner in May.
(Source: The Hollywood Reporter, June 21, 2022)

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Music Publishing in The Age of The Songwriter Report – Part 1: The Evolution of Music Publishing
Following on from our 2021 publication Drowning in Data, the report examines the fundamental shifts in the music industry in recent years and what they mean for the future of publishing, from new deal types and services that promote transparency and equality to creating more value for songwriters in the digital age.
(Source: Synachtank, June 21, 2022)

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Warner Music Sued Again Over International Deductions
Two members of American rock band Orleans have sued Warner Music over a common gripe in the artist community: record companies allowing their foreign subsidiaries to make deductions on digital income and then calculating the artist royalty based on what is received by the label in the artist’s home country after those deductions.
(Source: CMU, June 20, 2022)

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‘Gray v. Hudson’ Rules on Copyrightability of Musical Elements
The decision articulates the current state of Ninth Circuit law regarding the threshold of protectable originality in music infringement cases, and because so many music cases are brought in the Ninth Circuit the ruling will likely be significant to music litigators nationwide.
(Source: New York Law Journal, May 19, 2022)

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MLS Takes a Bite of the Apple
Apple will reportedly pay Major League Soccer a minimum of $2.5 billion over the next 10 years to broadcast all of its games.
(Source: Front Office Sports, June 19, 2022)

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Big Bang's Bialik Sues CBD Company For Using Her Name
Big Bang Theory star Dr. Mayim Bialik is suing dozens of websites and online markets that are attaching her name to CBD products without her permission. According to Law360, the star filed a lawsuit in Florida federal court on Thursday.
(Source: Green Market Report, June 17, 2022)

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Petition Asks SCOTUS to Clarify Takings Clause in Context of Copyright Infringement
Following a denial of rehearing en banc by the U.S. Court of Appeals for the Fifth Circuit in February, publishing company Canada Hockey L.L.C., doing business as Epic Sports, and Michael Bynum, a sportswriter and editor, have now filed a petition for writ of certiorari with the U.S. Supreme Court in their appeal of a copyright case against both Texas A&M University and a pair of school officials. The petition claims the Fifth Circuit’s decision leaves copyright holders “at the mercy of state infringers.”
(Source: IPWatchdog, June 16, 2022)

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Iceland Increases Film Tax Incentive to 35 Percent
Iceland’s film commission on Thursday announced it’s increasing tax breaks to movies and television projects that shoot in the country from 25 percent to 35 percent, launching it into the upper tier of international filming locations when it comes to incentives. Productions that qualify for the uncapped credits will be reimbursed for all costs incurred in Iceland.
(Source: The Hollywood Reporter, June 16, 2022)

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How the New 2022 SAG-AFTRA Commercials Contract Affects Performers and Advertisers
The 4.88% increase to use fees is the lowest rate hike in more than a decade. The 2022 Contract’s advertiser-friendly editing rules and its simplified approach to categorizing digital media outlets are clearly meant to alleviate advertiser and agency frustrations and make the contract more functional and user-friendly. Additionally, with new protections for talent in the wake of the #MeToo movement and new requirements designed to improve opportunities for performers of color, the Union achieved notable wins for talent.
(Source: Mondaq, June 10, 2022)

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The satisfaction of producing a work of art is the thing of getting off on it
on some level.

Jerry Garcia

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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