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
For the Avoidance of Doubt: The Authors Guild Provides Guidance on Addressing AI in Licensing Contracts
In the wake of class action lawsuits against generative artificial intelligence (“AI”) systems and general anxiety surrounding “artificial intelligence and the perils of plunder,” it’s time for creators and licensees alike to batten down the hatches.
(Source: Arnall Golden Gregory, July 19, 2023)
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Streaming and Scheming: Beware of Taxes on Digital Content and Performances
Over the last few years, state and local governments have drastically increased their efforts to tax streaming services, including online video, music, and gaming services, especially as consumers cut the cord on cable television and rely more on the internet for entertainment.
(Source: Arnall Golden Gregory, July 19, 2023)
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Industry News
Ninth Circuit Affirms Server Test in Instagram Embedding Case
The Ninth Circuit Court of Appeals affirmed the dismissal of a closely-watched class action lawsuit alleging that Instagram induced and contributed to “widespread copyright infringement” by allowing third parties to embed photos from public Instagram feeds onto their own websites. The Court held in Hunley v. Instagram that the plaintiff photographers’ lawsuit was foreclosed by its 2007 decision in Perfect 10, Inc. v. Amazon, Inc., which first established the server test in a case involving the display of thumbnail images in Google image search results. The Ninth Circuit panel recognized that it was bound by Perfect 10 in the absence of an en banc reversal of that case or a contrary determination by the U.S. Supreme Court. Under the server test, providing HTML instructions that direct a user’s browser to an image hosted on Instagram’s servers isn’t equivalent to displaying a copy of the image. Therefore, there’s no direct infringement. Without an act of direct infringement, Instagram can’t be liable for secondary infringement.
(Source: Copyright Lately, July 17, 2023)
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SAG-AFTRA Strike: What Actors Can Still Work on Without Violating Union Rules
The SAG-AFTRA strike will shut down dozens, perhaps hundreds, of productions as the actors union fights for a better contract with covering scripted TV series and movies. The union’s strike rules also bar members from doing publicity, stunt work and voice acting for struck companies. The strike against TV, streaming and theatrical work does not, however, keep actors from doing other jobs covered by separate SAG-AFTRA agreements — including some shows that form key parts of broadcast networks’ fall schedules. Here’s a look at what actors can still do during the strike.
(Source: The Hollywood Reporter, July 17, 2023)
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SAG-AFTRA Strike: Negotiations Cratered Over AI, Streaming Revenue Sharing, Pay Hikes and More
SAG-AFTRA and the major studios remain at odds on a dizzying array of issues, as film and TV actors hit the picket lines Friday for the first time since 1980. According to sources on both sides, the biggest sticking point is the union’s demand for 2% of the revenue generated by streaming shows. The two sides also remain far apart on basic increases in minimum rates, with the studios offering 5%, 4% and 3.5% across the three years of the contract, while the union is demanding 11%, 4% and 4%. But that only scratches the surface. The parties are at odds on dozens of issues, only a handful of which have been publicly reported.
(Source: The Variety, July 15, 2023)
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Summerfest Sues MLB Team Over Rival ‘Summer Fest’ Concert Series
A legal battle is underway in the Upper Midwest over dueling “Summer” music festivals, pitting the organizers of Milwaukee’s decades-old Summerfest against an upstart rival hosted by the Minnesota Twins under a similar name. In a lawsuit filed July 13 in Wisconsin federal court, the company behind the Milwaukee concert series accused the Twins of infringing its trademarks by launching TC Summer Fest, which will kick off Friday and feature performances by Imagine Dragons and The Killers at the ballclub’s Target Field in Minneapolis.
(Source: Billboard, July 14, 2023) [Subscription may be required]
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SAG-AFTRA Issues Strike Rules With Walkout Set to Begin at Midnight
SAG-AFTRA has sent members its strike rules, which order them to “cease rendering all services and performing all work” covered by the TV/Theatrical Contracts. The “Strike Notice and Order” also says that members “must not cross SAG-AFTRA picket lines,” “must instruct their agent and/or other representatives to discontinue conducting negotiations on their behalf with the studios, streamers and networks for covered services,” and “must inform SAG-AFTRA of all strikebreaking activity.” The rules note, however, that members “may be able to work on projects produced by non-AMPTP-related production companies under these agreements if such projects qualify for an Interim Agreement.” A list of projects that adhere to an Interim agreement will be posted at sagaftrastrike.org.
(Source: Deadline Hollywood, July 13, 2023)
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Sarah Silverman Sues OpenAI and Meta Over Copyright Infringement
The comedian Sarah Silverman has joined a class-action lawsuit against OpenAI and another against Meta accusing the companies of copyright infringement, saying they “copied and ingested” her protected work in order to train their artificial intelligence programs, according to court papers. The lawsuits, in which she joined the authors Christopher Golden and Richard Kadrey, were filed in the San Francisco Division of the U.S. District Court of the Northern District of California. Each suit says that the company in question made copies of the authors’ works, including Silverman’s memoir, “The Bedwetter,” without permission by scraping illegal online “shadow libraries” that contain the texts of thousands of books.
(Source: The New York Times, July 10, 2023) [Subscription may be required]
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Jury Seated in Trial Over Aretha Franklin’s Handwritten Wills
A Michigan judge narrowed the issues Monday in a dispute over Aretha Franklin’s estate, saying the only task for jurors is to decide whether a 2014 document handwritten by the Queen of Soul and found in couch cushions can be accepted as a valid will. The stipulation was made by attorneys for Franklin’s sons before a jury was seated in Oakland County Probate Court. Franklin died in 2018 at age 76. But five years later, the music superstar’s estate remains unsettled. A son, Ted White II, believes a 2010 handwritten will should mainly control the estate, but two other sons, Kecalf Franklin and Edward Franklin, are in favor of a 2014 document.
(Source: Billboard, July 10, 2023) [Subscription may be required]
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Ron DeSantis Slammed by ‘Peaky Blinders’ for Netflix Footage in Campaign Ad
The team behind the Netflix gangster series has slammed the Florida governor and would-be Republican presidential nominee for using their show’s footage in a heavily criticized anti-LGBTQ campaign ad.
(Source: The Hollywood Reporter, July 5, 2023)
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Global Live Music Revenue Surpassing Pre-COVID Levels in 2023
The Global Entertainment & Media Outlook 2023–2027 report reveals that live music ticket sales are projected to reach $23.0 billion in 2023, surpassing the $21.5 billion generated in 2019, the last year before the global outbreak.
(Source: Celebrity Access, July 5, 2023)
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Permits for New York City Film & TV Production Continued to Fall in June Amid Labor Uncertainty
The number of filming permits issued by New York City declined in June from previous months and fell sharply from a year ago amid a WGA strike and continued uncertainty over the status of SAG-AFTRA. The actors’ contract with the Alliance of Motion Picture and Television Producers expired June 30 with no deal but the two sides agreeing to extend talks through July 12 — at 11:59 pm PT. With an industry on edge and much at stake, some 471 permits were issued for 184 projects in June, down from 549 permits for 188 projects in May, according to data provided by the NYC Mayor’s Office of Media and Entertainment. Permits issued in June of 2022 were 834 for 254 projects — so a drop of well over 40% from a year ago.
(Source: Deadline Hollywood, July 5, 2023)
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“I Have a Problem With the Stealing of My Material”: A Common Rallying Cry Emerges on AI
As Hollywood execs begin to test artificial intelligence, from using the tech to de-age actors to partnering with companies in the field to create AI-composed music, key players in the industry are pushing for regulations — or lawsuits.
(Source: The Hollywood Reporter, July 3, 2023)
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Ryan Castro Sues King Records for Breach of Contract
Colombian urban artist Ryan Castro has sued King Records, the indie label belonging to fellow Colombian artist Kevin Roldán for breach of contract of his management and label agreements in two separate complaints. The lawsuits — filed in Medellín, Colombia, in April and May, respectively — both name King Records, which is Roldán’s label.
(Source: Billboard, June 30, 2023) [Subscription may be required]
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Federal Trade Commission Announces Updated Advertising Guides to Combat Deceptive Reviews and Endorsements
The final revised guides announced today take the public comments received into consideration and make a number of revisions including: 1) articulating a new principle regarding procuring, suppressing, boosting, organizing, publishing, upvoting, downvoting, or editing consumer reviews so as to distort what consumers think of a product; 2) addressing incentivized reviews, reviews by employees, and fake negative reviews of a competitor; 3) adding a definition of “clear and conspicuous” and saying that a platform’s built-in disclosure tool might not be an adequate disclosure; 4) changing the definition of “endorsements” to clarify the extent to which it includes fake reviews, virtual influencers, and tags in social media; 5) better explaining the potential liability of advertisers, endorsers, and intermediaries; and 6) highlighting that child-directed advertising is of special concern.
(Source: Federal Trade Commission, June 29, 2023)
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Astroworld Tragedy: Travis Scott Will Not Face Criminal Charges
A grand jury in Houston on June 29 said that no criminal charges would be filed against Travis Scott or other organizers of the deadly Astroworld music festival. Following a 19-month investigation, a grand jury found there was not enough evidence to support criminal charges against Scott or several other individuals involved in planning and operating the 2021 festival, during which a crowd crush disaster left 10 dead and hundreds physically injured.
(Source: CNN, June 29, 2023)
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An Anti-Scalping Effort Was Gaining Momentum in the Senate – Until Live Nation Came Out to Support It
Ticketmaster owner Live Nation’s push for legislative ticketing reform earlier this year has actually slowed down progress on those issues, sources tell Billboard, stalling a long-in-the-works bill that addresses nearly identical concerns about the ticketing business.
(Source: Billboard, June 29, 2023) [Subscription may be required]
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Columbia Pictures Sues to Retain Rights to ‘Bad Boys’ Story
Columbia Pictures is suing George Gallo, who wrote the story that was developed into the 1995 action hit Bad Boys, to reassert its rights to the movie franchise. In a complaint filed in California federal court , the studio argues that Gallo can’t exploit a provision in copyright law that allows authors to claw back ownership of their works after a certain period of time. It’s asking the court for a declaration that Gallo penned the story as a work made for hire, which would make it ineligible for termination.
(Source: The Hollywood Reporter, June 26, 2023)
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Kanye West Wants Sample Lawsuit Tossed, Citing KRS-One Quote: ‘You Will Not Get Sued’
With Kanye West facing a lawsuit for allegedly using an uncleared sample from the pioneering rap group Boogie Down Productions, his lawyers are making an unusual argument: That a Boogie Down founder promised all future rappers that “you will not get sued.” In a motion filed June 23, lawyers for West (who legally changed his name to Ye) asked a Manhattan federal judge to toss out the November lawsuit, which claims West included an illegal sample from the 1986 song “South Bronx” on his own his “Life of the Party,” released on 2021’s Donda.
(Source: Billboard, June 26, 2023) [Subscription may be required]
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Supreme Court Sides With Google Over Genius in Internet Lyrics Battle
Four years ago, the online song lyrics database Genius, fka Rap Genius, accused Google of posting information from their site directly into Google search results. By the end of the year, Genius had sued Google, claiming that the company and its affiliate LyricFind, which provides the lyrics seen in Google search results, were directly copying exclusive material from Genius via scraping technology. Genius even suggested that it had discovered a secret code in Google’s use of different kinds of apostrophes that spelled out “REDHANDED” in Morse code.
(Source: Stereogum, June 26, 2023)
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DGA Members Ratify New Film & TV Contract; 87% Vote In Favor
Members of the Directors Guild of America have overwhelmingly ratified a new film and television contract. The vote was 87% in favor to 13% opposed, with 6,728 members voting out of 16,321 eligible (41%). According to the guild, “The turnout level exceeded any prior DGA ratification vote.” Releasing the voting data is a break from DGA custom; in the past, the guild would only say that contracts were ratified “overwhelmingly.”
(Source: Deadline Hollywood, June 23, 2023)
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Iceland Wants to Be a Destination Spot for Recording Music. A 25% Refund Doesn’t Hurt
Earlier this month, jam band Greensky Bluegrass moved its annual Camp Greensky festival to Iceland, a country the act had never visited before but figured would be a once-in-a-lifetime adventure. With three nights of shows booked in the capital of Reykjavik, “we decided to do more,” says band member Anders Beck. The week before the festival, the band journeyed five hours up north in a rented van to Flóki Studios, a farmhouse-turned-music recording space. There, along with guest keyboardist Holly Bowling, the band spent four days recording four tracks, which it plans to release as an EP. What solidified the decision to go to Iceland, Beck says, was the country’s Record in Iceland program, which reimburses artists 25% of recording-related costs. “If we’re going to go record, it’s great to get a kickback, obviously, from government funding,” Beck tells Billboard. “And we thought that being in a really unique place like northern Iceland, in the middle of nowhere, would make for some unique music. And it indeed did.”
(Source: Billboard, June 26, 2023) [Subscription may be required]
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Final Determination Set for Songwriter, Publisher Streaming Royalties for 2018-2022
The Copyright Royalty Board issued its final determination on Thursday (June 22) for songwriters’ and publishers’ U.S. streaming royalty rates during the Phonorecords III period of 2018 to 2022, reaffirming its previous decision to increase the rates 44% incrementally. This new filing triggers the start of a complicated reconciliation process to account for the past five years of royalties under the new rates. Once the Federal Register publishes the determination — which is expected within the next 60 days — streamers and publishers have six months to review their accounting for the period and rectify any additional royalties owed to the other party. This is likely result in a financial boost for the music business. Any adjusted payments from either side that lag behind this six month period will result in fines.
(Source: Billboard, June 22, 2023) [Subscription may be required]
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RIAA Cracks Down on AI Voice Group on Discord: ‘Undermines the Entire Music Ecosystem’
Lawyers for the RIAA are aiming to shut down a popular Discord server centered on artificial intelligence and voice models, the latest effort by music companies to rein in the disruptive new technology. In an action filed in D.C. federal court, attorneys for RIAA obtained a subpoena demanding that Discord reveal the identities of users on “AI Hub,” a message board with 145,000 members that calls itself “a community dedicated to making AI voices and songs.”
(Source: Billboard, June 22, 2023) [Subscription may be required]
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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 20, 2023)
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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: Variety, June 20, 2023)
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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)
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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)
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Art is not what you see, but what you make others see.
—
Edgar Degas
