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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
Who Wrote That? Best Practices for Songwriters
Humans have been creating and performing music for thousands of years. Some of the earliest discovered songs date back to the ancient Sumerians with musical notations inscribed on clay tablets and tomb walls. Indeed, the history of music is inextricably intertwined with the history of humanity and songs have long been employed to chronicle and communicate knowledge, in addition to contemporaneous stories and folklore. In the words of Henry Wadsworth Longfellow, “Music is the universal language of mankind,” capable of connecting diverse peoples by transcending time, geography, and culture. From Mesopotamia to Greenwich Village, songwriters have been transcribing the vibrations and sounds emanating in their heads for the purpose of sharing those creations with others. For legal copyright purposes, the act of writing or recording original lyrics and melody is the threshold requirement to trigger copyright ownership in favor of the writer.
(Source: Arnall Golden Gregory LLP, October 19, 2022)
Iconic Chicago House Label Trax Records Sued for Decades of Illegal Business Practices
Nearly two dozen artists who have released music on Trax—including the label’s co-founder, Vince Lawrence—sued the label, the estate of its co-founder, Larry Sherman, and its current owners, Screamin’ Rachael Cain and Sandyee Barns, a.k.a. Sandyee Sherman. The artists involved in the lawsuit—which includes luminaries such as Marshall Jefferson, Adonis, and Maurice Joshua—allege in court documents and in interviews that Trax didn’t make royalty payments, and in a number of cases released their music without paying them anything at all.
(Source: Rolling Stone, October 14, 2022)
Prince Photo or Just Formerly Known as One? Supreme Court Weighs Warhol’s Art.
In a freewheeling and lighthearted Supreme Court argument that drew on pop culture and art criticism, the justices struggled on Wednesday to decide whether Andy Warhol had violated the copyright law by drawing on a photograph for a series of images of the musician Prince.
(Source: New York Times, October 12, 2022)
Ohio Fishing Duo Charged With Cheating and Attempted Grand Theft
A month after a two-person fishing team at an Ohio contest scandalized the competitive fishing world when organizers said they engorged walleyes with lead balls to increase their weight, a grand jury indicted both men on felony charges of cheating and attempted grand theft. The pair also face one count each of possessing criminal tools, a felony, and of unlawful ownership of wild animals, a misdemeanor.
(Source: New York Times, October 12, 2022)
Understanding Two Decades of Music Catalog Purchases
After the global financial crisis at the end of the 2000s, a trend began to emerge around song catalogs. Private equity firms, asset managers, and other financial institutions began to invest billions of dollars into song copyrights. The arrival of the financial institutions came at a point where industry commentators were ready to leave the record industry for dead but the emergence of technology firms (e.g. Spotify) proved to be an opportunity for these new players. This paper explores this history by tracking the last few decades of increased financialization of the music publishing and analyzing the song catalog markets. Next, the paper turns towards the differing assets being purchased by these firms to better understand the different copyrights musicians can hold and exploring why some may be of interest to some and not others. The report closes by exploring what the future may hold for these assets and where various markets across the globe differ from each other. The goal is to provide a longer historical perspective on this topic that is often not captured in mainstream business press coverage of this phenomenon and to allow for better informed discussion of what is happening within this new asset class.
(Source: CNM Lab, October 11, 2022)
Larry King Estate Battle: Shawn King Files $100M Lawsuit Against Former Business Managers
A battle for the estate of Larry King is getting messier. Shawn King, the broadcaster’s widow, is suing her former business managers, accusing them of stealing money and conspiring to help King’s son Larry King Jr. usurp her as executor of the estate. King died in January 2021 after being hospitalized for COVID-19. A month later, Larry King Jr. moved to become special administrator of the estate. He pointed to a handwritten amendment by King leaving his assets to his five children. Shawn King challenged the will, arguing it was changed under questionable circumstances. The matter was resolved through a confidential settlement.
(Source: The Hollywood Reporter, October 7, 2022)
Tucker Ellis Reps Coachella in Trademark Dispute With Afrochella
Tucker Ellis filed a trademark and service mark infringement lawsuit in California Central District Court on behalf of music and art festival owner and producer Coachella Music Festival and Goldenvoice. The suit accuses Afrochella Ltd. and other defendants of promoting multi-day music and art events in the United States and Ghana under the ‘Afrochella’ mark, which the plaintiffs allege is confusingly similar to the ‘Coachella’ mark. The suit also pursues cybersquatting claims for Afrochella Ltd.’s use of the afrochella.com domain name.
(Source: LAW.COM, October7, 2022)
Who Caught Aaron Judge’s Home Run Ball? Someone Who Needs an Accountant
Million-dollar baseballs are raining down on fans like pennies from heaven, and the taxman isn’t far behind. One of those balls, potentially worth $2 million, fell into a fan’s hands when New York Yankee Aaron Judge broke the American League single-season home run record. Both Yankees and Texas Rangers fans erupted as Judge belted out his 62nd, besting the 61-homer record set by Yankee legend Roger Maris in 1961.
(Source: Wealth Management, October 5, 2022)
California District Court Holds Fortnite Dance Moves Did Not Infringe Copyright
As the executive order explains, Fortnite features a virtual reality world where players can choose an avatar to represent them as they explore, build and destroy structures and battle each other in player-to-player combat. Fortnite players can customize their avatars using a variety of features, including “emotes,” which are dances that avatars perform while attending concerts or to celebrate a victory in a Battle Royale game, among others. Choreographer Kyle Hanagami filed a copyright infringement and unfair competition lawsuit against Epic Games based on his claims that one of Fortnite‘s nearly 500 emotes incorporated a handful of dance moves from a five-minute routine he posted on YouTube in 2017 and copyrighted in 2021.
(Source: Cloud Relics, October 4, 2022)
Howard Stern Ads Clear of Performer’s Rights, 2nd Cir. Says
Sirius XM Radio Inc.'s Howard Stern ads don’t violate the publicity rights of “Stuttering John,” a former performer on the show, the Second Circuit affirmed Tuesday. John Melendez, who performed on the show from 1988 to 2004, argued that Sirius XM used his name and likeness to advertise for the show without his permission. But a district court found that any audience for the ads would construe clips of Melendez on the show as promoting the show and its material, not suggesting Melendez endorsed it.
(Source: Bloomberg Law, October 4, 2022)
Kim Kardashian Charged by SEC for “Unlawfully Touting Crypto Security,” Agrees to $1.26M Settlement
She agreed to pay penalties, disgorgement and interest, while also cooperating with the SEC's ongoing investigation into EthereumMax: "Ms. Kardashian’s case also serves as a reminder to celebrities and others that the law requires them to disclose to the public when and how much they are paid to promote investing in securities."
(Source: The Hollywood Reporter, October 3, 2022)
Hipgnosis Secures $700 Million Debt Refinancing Deal
"The board of Hipgnosis Songs Fund Limited, the publicly listed company founded by Merck Mercuriadis, said on Monday (Oct. 3) it has closed on a five-year $700 million revolving credit facility. Hipgnosis will use the new line of credit to refinance its $600 million in existing debt and reduce the interest margin from 3.25% to 2.00%-2.25%, depending on the total amount drawn. The initial margin on the new package is 2.00%. The board said it is also in advanced talks to fix the majority of its interest rate exposure through rate swaps, which will allow it to hedge against risks presented by interest rate volatility. "
(Source: Billboard, October 3, 2022) [Subscription may be required]
California Makes it Harder To Use Lyrics as Evidence Against Rappers
California has become the first state to put guardrails on introducing a party’s “creative output” — such as a rapper’s lyrics or videos — into evidence during a criminal proceeding. Before allowing something like rap lyrics into evidence, judges must now ask, away from the jury, whether there is sufficient proof that the artistic expression is directly part of the criminal act on trial. Gov. Gavin Newsom (D) signed the Decriminalizing Artistic Expression Act into law during an online ceremony attended by generations of hip-hop artists that included Killer Mike, Too Short, Meek Mill, Tyga, Saweetie, E-40 and Ty Dolla Sign.
(Source: The Washington Post, October 2, 2022)
WWE, Video-Game Maker Owe Artist for Depicting Wrestler’s Tattoos, Jury Says
World Wrestling Entertainment Inc and Take-Two Interactive Software Inc must pay tattoo artist Catherine Alexander $3,750 in damages for recreating tattoos she made for wrestler Randy Orton in the "WWE 2K" video-game series without her permission, an Illinois jury said. The jury rejected WWE and Take-Two's defense that the game made fair use of the tattoos but also declined to award Alexander any profits from the games that she said were attributable to her work, according to the verdict sheet.
(Source: Reuters, September 30, 2022)
Ed Sheeran Must Face Trial in ‘Thinking Out Loud’ Copyright Case
English singer-songwriter Ed Sheeran must face trial in one of three lawsuits alleging that he lifted his 2014 smash hit “Thinking Out Loud” from Marvin Gaye’s 1973 classic “Let’s Get It On,” a U.S. judge ruled. U.S. District Judge Louis Stanton in Manhattan denied Sheeran’s bid to dismiss the copyright infringement suit by Structured Asset Sales LLC, which owns a portion of “Let’s Get It On” co-writer Ed Townsend’s estate.
(Source: Reuters, September 29, 2022)
Actor Bruce Willis Becomes First Celebrity To Sell Rights to Deepfake Firm
Action movie legend Bruce Willis has just become the first Hollywood actor to sell his rights to the possibility of a "digital twin" to the US firm Deepcake, according to The Telegraph. With the use of deepfake technology, Willis has offered his likeness to be used onscreen for future projects, following his first experience with the digital media manipulation in a commercial for Russian phone service, MegaFon, last year.
(Source: Collider, September 29, 2022)
'Friday the 13th' Screenwriter Awarded $887K in Attorney Fees After Decadeslong Battle Over Earnings From Film’s Success
The U.S. District Court for the District of Connecticut granted “Friday the 13th” screenwriter Victor Miller partial attorney fees, totaling more than $886,564, in his long-running fight against the 1980 horror film’s production company, Manny Co., over proceeds from the film. According to the court’s Sept. 26 opinion, written by U.S. District Judge Stefan R. Underhill, Miller was hired to write the screenplay in 1979 and was paid $9,282 for his work. A landmark film of the slasher genre, “Friday the 13th” went on to earn “tens of millions” of dollars for Manny.
(Source: LAW.COM, September 29, 2022)
Why the NFL’s Deal With Apple Is Bigger Than the Halftime Show
The Apple Music deal comes amid one of the most important few months in the league’s history. On Sept. 15, for the first time, Amazon launched its Thursday Night Football package, the first time a national NFL rights deal was streaming-only. And July 25, the league launched its own NFL+, which is meant to appeal to football superfans who may not have access to a TV. The league also is in the market to sell a piece of its NFL Media business, which includes NFL+ and NFL Network. The deals with Apple and Amazon underscore the league’s turn to tech as it plots out a future where the traditional pay TV bundle continues to collapse.
(Source: The Hollywood Reporter, September 29, 2022)
20 Musicians Who Were Sued for Plagiarism
Using more than just a "sample," creating a parody song that winds up in the Supreme Court, and subconsciously copying someone else's work can land a musician in years of legal battles. Not to mention the argument of where inspiration ends and straight-up plagiarism begins. All things considered, it's no wonder that the majority of the artists on this list decided to settle out of court. These are the landmark cases that have defined the music industry over the years.
(Source: BuzzFeed, September 29, 2022)
Phil Mickelson and Three Other Golfers Drop Out of Antitrust Suit Against PGA Tour
Mickelson and 10 other LIV-affiliated players had filed a suit against the PGA Tour in August after the tour suspended them for their participation in the rival LIV Golf league. The suit alleged the PGA Tour’s suspensions were anti-competitive.
(Source: CNBC, September 27, 2022)
The Labor Shortage and Its Impact on Live
“On a day-to-day basis the labor shortage is tough on everyone, especially on the touring crew, because when you don’t have enough local hands to help out, it ends up falling back on the people that are on the road who then are continually pushing harder to try to get things done,” Sara Full, who managed the Lumineers’ impressive “Here & Now” tour and learned how to make do, said.
(Source: Pollstar News, September 27, 2022)
Tour Cancellations Go Viral — Why the Risk May Be Too Great for Some Acts
Artists who carry cancelation insurance are generally covered when they come down with health problems, according to entertainment attorney and crisis manager Ed McPherson, but “every show-cancelation policy excludes COVID-related cancellations.” He adds that artists who cancel must eat their own expenses and lost revenue, while artists who reschedule generally negotiate with the promoter to waive or absorb “the promoter’s extra costs.”
(Source: Billboard, August 31, 2022) [Subscription may be required]
NFL Taps Peyton Manning’s Omaha Productions To Help Shape Programming for Reimagined Pro Bowl
The Pro Bowl will become a flag football game that will air on ESPN and ABC on Feb. 5, 2023. The shift to flag football from tackle football is a sea change for the NFL, but with some players opting out of the game entirely or playing very carefully to avoid injuries, the league decided to revamp the entire event.
(Source: The Hollywood Reporter, September 26, 2022)
Former Giants RB Michael Cox Wins $28.5 Million Verdict in Medical Malpractice Case
Former Giants running back Michael Cox has secured a gargantuan verdict in a case arising from allegations of medical malpractice in connection with surgery to repair an ankle injury that Cox suffered in December 2014. Cox won $28.5 million against Dr. Dean Lorich and New York-Presbyterian Hospital. Cox received $15.5 million for future pain and suffering, $12 million for lost earnings, and $1 million for past pain and suffering.
(Source: NBC Sports, September 24, 2022)
Netflix Settles Copyright Lawsuit Over ‘Unofficial Bridgerton Musical’
Netflix has settled a copyright lawsuit that it had filed against the creators of “The Unofficial Bridgerton Musical.” Netflix sued in July, alleging that Barlow and Bear had infringed on its copyrights by putting on a for-profit stage show at the Kennedy Center in Washington, D.C. The service argued that their conduct “stretches ‘fan fiction’ well past its breaking point.”
(Source: Variety, September 23, 2022)
Off the Road Again: A Tour Bus Shortage Is Pricing Some Acts Out of Touring
Demand for tour buses has been unusually high since early last year, when artists returned to the road after nearly a year of pandemic lockdown — and this year, top promoters report more touring stars and higher attendance than in pre-COVID 2019. Yet bus supply remains low. Experienced drivers have left the concert business for more stable trucking jobs, and tour bus companies have to wait longer than ever for repair parts due to international supply-chain problems. So many top bus companies, like restaurants and grocery stores, have raised their rates.
(Source: Billboard, September 22, 2022) [Subscription may be required]
Mid-Year 2022 RIAA Revenue Statistics
U.S. recorded music revenues in the first half of 2022 rose 9% to $7.7 billion at estimated retail value, building on the strong growth experienced the prior year. The number of paid subscriptions grew to a record high of 90 million, with revenues up 10% to $5.0 billion and comprising almost two-thirds of the first half total. At wholesale value, revenues grew 8% to $4.9 billion.
(Source: RIAA, September 21, 2022)
YouTube Announces Creator Music, a New Way for Creators To Shop for Songs for Use in Videos
In addition to the groundbreaking news that YouTube would begin to monetize Shorts videos and revamp its Partner Program, the company also announced a new offering for creators who leverage music to back their videos: Creator Music, now in beta testing. This new destination will introduce a large catalog of songs that creators can browse through, search and purchase, with the terms of the music rights spelled out in simple terms so they understand the costs. They’ll also be able to opt for tracks with new revenue-sharing option where both creators and music rights holders earn money from their content. The changes were introduced at today’s Made on YouTube live event, where the company presented its plans to retain the video creator community in the face of the growing threat of TikTok. Here, it announced a number of changes with a primary focus on helping creators make more money.
(Source: Tech Crunch, September 20, 2022)
Why Indie Artists Are a Rarity on Radio: ‘If You Don’t Pay, You Don’t Move Up’
Not long ago, a major-label radio promotion executive had a song climbing into the top 10 in his format. Eager to maintain the track’s upward momentum, he tried to get a station in a small city in the Northeast to put the song into rotation. There was only one problem: That station worked with a middleman, known as an independent radio promoter, who controlled what tracks received airplay. And that middleman demanded $3,000 for an “add.” “It frustrates the hell out of me,” the executive says. “But if you don’t pay, you don’t move up,” he notes, referring to the radio airplay charts. Adding to the frustration: The cost was high enough to make even a deep-pocketed major label think twice. In the world of independent labels, though, $3,000 to get one song played on one station in a small market can be prohibitive. “Majors can throw so much money at a release and get it running up the chart,” says one executive with experience running radio campaigns for indie labels. “As an independent label, you can get something played at a small handful of commercial stations. Once your budget runs out, you almost have a built-in ceiling.”
(Source: Billboard, September 19, 2022) [Subscription may be required]
Who Really Owns a Home Run Ball?
It's complicated!
(Source: NBC Sports, May 21, 2021) [Throwback Article]
A true masterpiece does not tell everything.
Albert Camus