Federal and state laws regulate many areas of the entertainment industry. Constitutional issues sometimes arise as well. However, courts have played a central role in defining the rights and obligations of artists, agents, managers, publishers, producers, distributors, and other entities in the industry. Below is an outline of key cases in entertainment law with links to the full text of nearly every case, provided free by Justia.
Entertainers have a right to control and profit from the commercial value of their identity, such as their name and likeness. Some states view the right of publicity as an aspect of the right of privacy, while other jurisdictions view it as an independent property right. Related disputes sometimes arise over imitations of a famous entertainer.
Pavesich v. New England Life Insurance Co. 一 Subject to some limitations, the body of a person cannot be put on exhibition at any time or at any place without their consent. Personal liberty encompasses not only the right to exhibit oneself to the public at all proper times, in all proper places, and in a proper manner, but also the right to withdraw from the public gaze when one sees fit and when one’s public presence is not required by law.
Zacchini v. Scripps-Howard Broadcasting Co. 一 The First Amendment does not immunize the news media when they broadcast a performer’s entire act without their consent. The state’s interest in permitting a right of publicity involves protecting the proprietary interest of an individual in their act in part to encourage such entertainment. This interest is analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of their endeavors rather than protecting their feelings or reputation.
Stephano v. News Group Publications, Inc. 一 Since the right of publicity is encompassed under the New York Civil Rights Law as an aspect of the right of privacy, which is exclusively statutory in New York, a plaintiff cannot claim an independent common-law right of publicity.
Allen v. National Video, Inc. 一 The unauthorized use of a person’s name or photograph in a manner that creates the false impression that the person has endorsed a product or service in interstate commerce violates the Lanham Act. In cases involving a lookalike, a court must still decide whether the defendant’s advertisement creates a likelihood of consumer confusion over whether the plaintiff endorsed the defendant’s goods or services.
Lahr v. Adell Chemical Co. 一 Imitation may be unfair competition if it causes a mistake in identity, rather than simply copying material or ideas.
Motschenbacher v. R.J. Reynolds Tobacco Co. 一 When the likeness of a driver in a commercial was unrecognizable as the plaintiff, this did not mean that the driver was not identifiable as the plaintiff when the markings on the car were peculiar to the plaintiff’s cars and caused some people to think that the car was the plaintiff’s car and infer that the driver was the plaintiff.
Midler v. Ford Motor Co. 一 When the distinctive voice of a professional singer is widely known and is deliberately imitated to sell a product, the sellers have appropriated what is not theirs and have committed a tort.
White v. Samsung Electronics America, Inc. 一 The common-law right of publicity reaches means of appropriation other than name and likeness, and the specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiff’s identity. Also, the difference between a parody and a knockoff is the difference between fun and profit.
Copyright Protection and Infringement
A form of intellectual property law, copyright protects original works of authorship but extends only to expression rather than ideas. Infringement may be found only if the defendant’s work is substantially similar to protected elements of the plaintiff’s work. Sometimes a defendant will avoid liability under the four-factor fair use doctrine.
Desny v. Wilder 一 Ideas may still be the subject of a contract in California and may be protected accordingly, even though they are not protectable under the laws of plagiarism. Thus, if an idea purveyor has conditioned their offer to convey an idea on an obligation to pay for it if the offeree uses it, and the offeree knows the condition before knowing the idea, accepts the disclosure of the idea, and uses the idea, the law will hold that the parties have made an express contract or imply a promise to compensate to prevent fraud and unjust enrichment.
Zambito v. Paramount Pictures Corp. 一 The test for substantial similarity is whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. Copyright protects only an author’s original expression of an idea, rather than the idea itself. Also, copyright does not protect scenes a faire, which are characters, settings, or events that necessarily follow from a certain theme or plot situation.
Universal City Studios, Inc. v. Film Ventures International, Inc. 一 To determine substantial similarity under the intrinsic ordinary observer test, a court may consider similarities in elements such as the basic story points, the major characters, the sequence of incident, and the development and interplay of the major characters and story points.
UMG Recordings, Inc. v. MP3.com, Inc. 一 The statutory fair use factors are the purpose and character of the use (such as whether the use is commercial), the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the potential market for or value of the copyrighted work. The first factor also involves considering whether the new use repeats the old use or transforms it by infusing it with new meaning or new understandings.
The Internet and Copyright Infringement
Digital file sharing of music and films may lead to contributory liability of internet service providers for copyright infringement. This is often a more efficient way to enforce copyright law than pursuing individual users.
A&M Records, Inc. v. Napster, Inc. 一 Contributory liability requires that the secondary infringer knew or had reason to know of direct infringement and induced, caused, or materially contributed to the infringing conduct. Vicarious liability arises when a defendant has the right and ability to supervise the infringing activity and has a direct financial interest in the activity.
MGM Studios, Inc. v. Grokster, Ltd. 一 An entity that distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.
Music Sampling and Copyright Infringement
Music sampling occurs when a musician or record producer uses part of an existing song in a new recording. This can violate copyright laws if the sampling party does not have a license.
Fisher v. Dees 一 A taking is considered de minimis only if it is so meager and fragmentary that the average audience would not recognize the appropriation.
Newton v. Diamond 一 Even when the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial.
Artists may work with personal managers, business managers, agents, and sometimes lawyers. The contractual duties of agents and managers may be loosely defined under the common law, but California and certain other states also regulate them through statutes.
Meyers v. Nolan 一 The fact that a contract provided that the managers could devote as much time to an actor’s affairs as the managers deemed necessary did not destroy its mutuality.
Mandel v. Liebman 一 It is not for a court to decide whether a contract between a manager and an artist was a good or bad bargain.
Byrne v. Barrett 一 An agent has a duty not to use confidential knowledge acquired in their employment in competition with their principal.
ABKCO Music, Inc. v. Harrisongs Music, Ltd. 一 There is no general “appearance of impropriety” rule governing the artist-manager relationship. However, clear questions of impropriety arose when a business manager purchased a known claim against their former client when the right to the claim had been established, and all that remained to be done was to assess the monetary award.
Buchwald v. Superior Court 一 The California Labor Commissioner has original jurisdiction to hear and determine controversies arising under the Artists’ Managers Act to the exclusion of the superior court, subject to an appeal within 10 days after determination to the superior court, where the case shall be heard de novo.
Wachs v. Curry 一 The occupation of procuring employment is intended to be determined according to a standard that measures the significance of the agent’s employment procurement function compared to the agent’s counseling function taken as a whole. If the agent’s employment procurement function is a significant part of the agent’s business as a whole, they are subject to the licensing requirement of the Talent Agencies Act even if procurement of employment was only an incidental part of their overall duties with respect to a particular client.
Pryor v. Franklin 一 The furthering of an offer constitutes a significant aspect of procurement prohibited by law, since procurement includes the entire process of reaching an agreement on negotiated terms when the intended purpose is to market an artist’s talent.
Chinn v. Tobin 一 A person or entity that employs an artist does not procure employment for them by engaging their services directly. The activity of procuring employment refers to the role of an agent when acting as an intermediary between the artist whom the agent represents and a third-party employer that seeks to engage the services of the artist.
Park v. Deftones 一 The Talent Agencies Act requires a license to engage in procurement activities even if no commission is received for the service.
Eden Management v. Kavovit 一 While a child actor can disaffirm a contract with their manager, they must continue to pay all the commissions to which their manager would be entitled under the contract as they become due.
Contracts Between Artists and Entertainment Entities
Long-term personal services contracts may trigger the California seven-year rule, which limits the ability of a studio or other entity to enforce these contracts. Other issues in this area include exclusivity provisions in contracts and “Hollywood accounting.”
De Haviland v. Warner Bros. Pictures 一 A contract for “exceptional services” cannot be enforced against an employee for seven years of actual service if this would require the employee to render services over a period of more than seven calendar years. (The court misspelled the last name of the actress.)
Manchester v. Arista Records, Inc. 一 Successive term employment agreements are not voidable under the seven-year rule just because they happen to overlap with one another.
Polygram Records, Inc. v. Legacy Entertainment Group, LLC 一 When a contract between a musician and a record label specified that the musician would provide exclusive personal services for the purpose of making phonograph records, as the label may require, this did not give the label a right to exploit recordings of performances by the musician for other purposes, such as pre-recorded radio broadcasts.
Peterson v. Highland Music, Inc. 一 Under California law, a party to a contract can rescind it, and such rescission can be accomplished by the rescinding party by giving notice of the rescission and offering to restore everything of value that the rescinding party has received.
Buchwald v. Paramount Pictures Corp. 一 Several provisions of the net profit formula used in a film studio contract were unconscionable.
Credit or attribution for the contributions of an artist to a creative work generally must be outlined under a contract. No separate right to claim a credit exists under the common law, nor has the European doctrine of moral rights found traction in the U.S.
Cleary v. News Corp. 一 Once authorship rights are relinquished through a work for hire contract provision, the right to attribution is also relinquished unless it is reserved explicitly in the contract.
Gold Leaf Group, Ltd. v. Stigwood Group, Ltd. 一 The billing provision of a contract is material in that it is not just a matter of status or prestige, but serves to protect and enhance the future marketability and commercial value of a star performer.
Smith v. Montoro 一 The protection afforded by the Lanham Act extends to claims that a motion picture shown to the public might contain false information as to origin, such as when the name of one actor is substituted for another actor’s name in film credits.
King v. Innovation Books 一 When a movie draws in material respects from a literary work, both quantitatively and qualitatively, a “based upon” credit should not be viewed as misleading without persuasive countervailing facts and circumstances.
The First Amendment and the Entertainment Industry
Works that contain extremely explicit sexual content or openly facilitate criminal activity may not be entitled to free speech protections. Meanwhile, the public forum doctrine may protect performing artists from content-based discrimination.
Skyywalker Records, Inc. v. Navarro 一 Musical works are obscene if they meet the Miller v. California test for obscenity. This requires finding that the average person applying contemporary community standards would find that the work as a whole appeals to the prurient interest, the work depicts or describes sexual conduct defined by the applicable state law in a patently offensive way according to contemporary community standards, and the work as a whole lacks serious literary, artistic, political, or scientific value.
Rice v. Paladin Enterprises, Inc. 一 A book finds no preserve in the First Amendment when it methodically and comprehensively prepares and steels its audience to specific criminal conduct through exhaustively detailed instructions on the planning, commission, and concealment of criminal conduct.
Byers v. Edmondson 一 Liability may arise from producing and releasing a film containing violent imagery that was intended to cause its viewers to imitate the violent imagery.
Cinevision Corp. v. City of Burbank 一 When the government opens public property for use by the public as a place for expressive activity, the government cannot open the forum to some and close it to others solely to suppress the content of protected expression, unless there is a compelling government interest.
Music Licensing Fees
Performing rights organizations (PROs) collect royalties on behalf of songwriters and music publishers when a musical composition is publicly broadcasted or otherwise performed.
U.S. v. ASCAP, In re Fox Broadcasting Co. 一 ASCAP may not split rights to collect more than one license fee for any one use of the music in its repertory. In this case, since local stations had paid ASCAP for the public broadcast of music included in Fox programming, ASCAP could not also recover license fees at the distribution level.
Literary Publishing Contracts
Publishing contracts may include provisions related to the quality of the work. Meanwhile, ambiguities may arise when a publisher receives the right to use a work as part of a larger collective work.
Random House, Inc. v. Gold 一 The requirement that a manuscript be satisfactory to the publisher gives it the right to reject a work if it acts in good faith.
New York Times Co. v. Tasini 一 When print publishers engaged authors as independent contractors, but their contracts did not secure the consent of the authors to place their articles in electronic databases, the publishers infringed the copyrights of the authors by permitting and facilitating electronic publishers in placing the articles in their databases. Section 201(c) of the Copyright Act did not shelter the publishers because the databases reproduced and distributed the articles standing alone and not in context.
Bankruptcy in the Entertainment Industry
If an entertainer files for bankruptcy, they may need to defeat an argument that they have filed in bad faith if they seek to reject major contracts after filing. A business bankruptcy may involve issues related to copyrights.
In re Watkins 一 When a debtor moves to reject contracts shortly after filing, this fact alone does not establish bad faith. The real question is whether the debtor was experiencing bona fide financial problems that warranted bankruptcy relief.
In re Peregrine Entertainment, Ltd. 一 A security interest in a copyright is perfected by an appropriate filing with the U.S. Copyright Office, rather than a UCC-1 financing statement filed with the relevant secretary of state.
In re Waterson, Berlin & Snyder Co. 一 While copyrights held by a bankrupt music publisher may be sold by the bankruptcy trustee, they should be sold subject to the right of the composers to be paid royalties according to the terms of the contracts between the composers and the publisher.
This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.