With consumers seeking an ever-widening array of outlets for accessing entertainment, the media faces tremendous opportunities driven by new technologies and evolving business relationships. To take advantage of these opportunities, lawyers in this practice area help to structure, negotiate and execute arrangements of agreements for a wide variety of the industry participants. This article focuses on the laws and principles regulating entertainment industries.
The entertainment industry, informally known as Show Business or “Show biz”, is a tertiary sector of the Nigerian economy containing large numbers of sub-industries devoted to entertainment. Show Business predicates commercially popular performing arts, such as musical theatre, film, comedy and many others. It also applies to every aspect of entertainment, including cinema, television, radio, theatre, and music. It could be an exhibition, live performance, through mass media or electronically.
2.0 AN OVERVIEW OF ENTERTAINMENT LAW
Entertainment law is also referred to as “media law”. It refers to legal services provided to the entertainment industry. One may question why legal services are required in a field such as entertainment. However, it is important to note that the entertainment industry has grown into something big over the years. It is therefore inevitable that there will be conflict of interests which shall lead to legal issues. Legal issues may arise in all stages of the creation of original works of entertainment. They move from the production stage, where formal contracts are drawn to set forth the respective rights of the parties involved in entertainment work, to the licensing and distribution stage. Legal issues may also arise from the most apparently trivial matters, such as the case in 2008 where the Mayor of the city, “Batman” in Turkey decided to sue the movie producer and director of the movie, “Batman: The Dark Knight” for using his city’s name without permission.
Entertainment law is a demanding career involving the sound knowledge of contract law, corporate law, finance, tort, bankruptcy law, immigration, tax law, insurance law, labour law, intellectual property law and applying the principles to the interactions between players in the entertainment industry. It also covers pieces of legislation regulating media of all types such as television, film, music, publishing, advertising, internet, news inter alia. Much of the work of an entertainment lawyer is transaction based, and includes drafting contracts, negotiation, and mediation. This may lead to litigation or arbitration.
2.1 Categories of Entertainment Law
Entertainment law can be narrowed down to fields under which various issues might arise depending on the area of entertainment. These include some areas that have their own specific trade unions, production techniques, rules, precedents, and negotiation strategies.
This area covers option agreements, the chain of title issues, talent agreements (screenwriters, film directors, actors, composers and production designers), production, post-production and trade union issues, distribution issues, motion picture industry negotiations, distribution and general intellectual property issues especially relating to copyright and to a lesser extent, trademarks. An example is the case of Gaumont-British Picture Corporation Ltd v Alexander, where there was a breach of contract for the provision of movie production services.
This includes software licensing issues, video game development and production, information technology law and general Intellectual Property (IP) issues. In Universal City Studios (UCS) v Nintendo, UCS sued Nintendo for perceived copyright infringement. This was owing to the fact that a giant ape in Nintendo’s released game “Donkey Kong” had a striking resemblance with their creature feature star, “King Kong”. Also, in O’Bannon and Keller v Electronic Arts, the suit was filed because Electronic Arts used their likeness without permission or payment in their NCAA football and basketball franchises.
This includes talent agreements (musicians, composers), producer agreements and synchronization rights, music industry negotiation and general IP issues especially relating to copyright. In the case of Bonsor v Musicians’ Union, where a musician was wrongfully ousted from membership of his union and therefore unable to practice his trade without great difficulty. The question was whether he was entitled to relief by way of damages for breach of contract.
2.2.4 Publishing and print media
This includes advert, models, author agreements and general IP issues especially relating to copyright. In Okafor v’ Ikeayi and ors., the allegation against the defendant was a defamatory publication of the plaintiff.
2.2.5 Television and Radio
This includes broadcast licensing and regulatory issues, mechanical license, and general IP issues especially relating to copyright just like most cases in the entertainment industry.
3.0 INTELLECTUAL PROPERTY IN ENTERTAINMENT LAW
Intellectual property (IP) law deals with the rules for securing and enforcing legal rights to inventions, designs and artistic works. Just as the law protects ownership of personal property and real estate, so does it protect the exclusive control of intangible assets. The purpose of these laws is to encourage people to develop creative works without fear of misappropriation by others. IP law has many moving parts that include trademarks, copyright infringement and the right of publicity. An example of a copyright infringement case is the Copyright Society of Nigeria (COSON) in 2015 where COSON filed a suit against First Bank with regards to unauthorized use of several musical works and sound recordings communicated to the public.
Article I, Section 8.8 of the American Constitution
4.0 CONTRACT IN ENTERTAINMENT LAW.
The entertainment industry exists in a state of economic uncertainty. Entertainment companies continually form, merge, dissolve and reform. Also, consumer tastes in artistic products can change quickly, skyrocketing certain artists or artistic movements to the heights of popularity and plummeting others to obscurity. This instability causes the entertainment industry to rely on contracts which are usually drafted to protect entertainment companies against risks. The principles of contract, employment and labour law come in handy to spell out the obligations of each party to the contract and bind them. Though the parties are free to enter into general contracts, it is necessary for them to know the legislation and customs regulating each entertainment activity in order to prevent them from creating void or unenforceable contracts. Contract laws have been at the forefront of entertainment with leading cases. For example, in Kesha v Dr. Luke, the judge declined to release Kesha from her binding contract which prohibited her from continuing her career. The judge did this based on the fact that she had entered an agreement after she had sworn under oath that no harassment was taking place.
5.0 TORTS IN ENTERTAINMENT LAW
The subject of torts is civil lawsuits in which one person alleges that another person perpetrated some harm. Examples of some torts include battery, assault, outrage (Intentional infliction of emotional distress), invasion of privacy, slander, and defamation. In the case of Katie Armiger v Cold River Records (2016), Cold River Records caused defamation and false light against Armigers’ character when they challenged her in a court case that played out in the public eye.
6.0 RIGHT OF PUBLICITY AND PRIVACY IN ENTERTAINMENT LAW
The right of publicity is the right of every human being to control the commercial use of his or her identity. When that right is infringed, the individual’s publicity rights have been violated. The right of privacy is the right to not have one’s name or likeness appropriated by another without the individual’s permission, privacy included – private information made public and the individual placed in a false light. Most entertainers have their publicity and privacy rights infringed on.. In the case of Woody Allen v American Apparel, Allen sued the defendant for 10 million dollars after they used an unauthorized image of a bearded Allen in Annie Hall on a billboard. His claim was that they used his image and identity in total disregard of his rights to privacy.
7.0 ENTERTAINMENT LAW IN UK
The UK Film Council was responsible for representing the economic, cultural and educational aspects of every film in the UK and abroad. Following its closure on 31 March 2011, the British Film Institute (BFI) took charge. The main legislation regulating their film industry is the Video Recordings Act 1984 and Films Act 1985. Another National film regulatory authority is the British Board of Film Classification (BBFC), a non-governmental organization funded by the film industry which is responsible for film classification. Most cases involving the BFI are tax-based ones. Films are subject to copyright protection under the Copyright, Designs, and Patents Act 1988 (CDPA). The main areas of litigation in the UK film production transactions are Copyright or other IP right claims relating to ownership of rights in the underlying work just like in other categories of entertainment.
For music, the main trade bodies are the Music Publishers Association (MPA), British Phonographic/Recorded Music Industry (BPI) and Association of Independent Music. Moral rights exist under the CDPA to protect certain rights for the author of the musical work. These bodies are set up to prevent mainly copyright infringement and clearly define when copyright has been infringed. In Radio head v Lana Del Rey, the Oxford band sued for 100% of the publishing of her song, “Get Free” because they alleged that the song sounds similar to their 1992 hit song, “Creep”.
The major book publishing trade bodies are the Publishers Association (PA) and the Association of Learned and Professional Society Publishers (ALPSP). The Copyright Licensing Agency (CLA) is responsible for licensing the wider digital copying of book, magazine and journal content in the UK. The main pieces of legislation are the Newspaper, Printers and Reading Rooms Repeal Act, (1869); Newspaper Libel and Registration Act, (1881); Public Lending Right Act, (1979); Copyright Act, (2002); (visually impaired persons) Communications Act (2003) and the Legal Deposit Libraries Act, (2003). The Press Complaints Commission (PCC) is a National self-regulatory body which deals with complaints about the editorial content of newspapers and magazines. The main legal issue here is the content of the publication (defamation). In Lachaux the subject of the suits was defamation.
8.0 ENTERTAINMENT LAW IN THE US
Entertainment law in the US generally encompasses industries involving motion pictures, television, music, publishing, and theatre. The law of Copyrights, trademarks, trade secrets and patents each play a role in protecting creative rights.
US Copyright law contains provisions specifically covering the entertainment industry. Copyright is obtained simply by creating the work. However, in order to get federal protection of copyright, one has to file two copies of the work with the Copyright Office in Washington DC. For example, in the case of Marvin Gaye (2015) where Gaye’s estate sued the defendants because parts of their song “Blurred Lines” were identical to Marvin Gaye’s 1977 hit “Gotta Give It Up”.
A trademark may be registered pursuant to Federal law if it distinguishes a person’s product or service from products or services of competitors. Registration of a mark on the Federal Principal Register entitles a person the exclusive use of the mark. An example of a trademark case is the one of Playboy Enterprises Inc. v Welles where former 1981 Playboy playmate of the year, Terri Welles was accused of trademark infringement and trademark dilution in her use of Playboy’s trademarked terms in the Meta Tags of her website.
Trade secrets are protected under State law rather than Federal law. This protection may be by virtue of common law or statutory law, such as the Uniform Trade Secrets Act. The US Constitution gives Congress the right to provide for patent protection in legislation in order to encourage useful inventions. A patent enables the owner to exclude others from making, using or selling the invention for the life of the patent.
The television industry is subject to especially intense scrutiny by public watchdogs and regulators. FCC access, programming, and digital conversion regulations are all matters on which attorneys regularly provide counsel.
9.0 ENTERTAINMENT LAW IN NIGERIA
Entertainment law in Nigeria is not fully developed but other legislation give force to the entertainment industry. For example, trademark law governed by the Trade Marks Act, Cap T13 LFN 2004 regulates and protects a brand identity. Copyright law, governed by the Copyrights Act, Cap C28, LFN 2004 provides the rights that creators have over their literary and artistic works. Patent and Designs Act, Cap P2, LFN 2004 which deals with safeguarding rights over scientific and technological inventions from outright copying to knowledgeable or in knowledgeable incorporation of already patented work and even to the incorporation of such a product that is sufficiently similar to one. Many Nigerians earn their living from the entertainment industry. Nollywood itself contributes a huge percentage to our country’s GDP and practices in entertainment law can make an equal fortune with their counterparts in the Oil and Gas sector with their cards well played. Issues pertaining to service breach also occur from time to time in the Nigerian entertainment industry. An example is a recent case of Consumer Protection Council in October 2018. CPC filed a suit against Multichoice when they decided to increase their subscription rates all of a sudden. They filed for service breach and service delay.
In conclusion, media content carries with it particular risks of litigation, and to mitigate that risk, lawyers provide production and pre-broadcast review for defamation, copyright violation, and other issues, as well as offering chain-of-title clearance review.
About the Author
Benita Riagbare is a 300 level student of the Faculty of Law, University of Lagos. She is the Online Editor of the UNILAG Law Review. She is an avid writer with an interest in commercial law and litigation.