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
Martin Scorsese Sued Over $500,000 Fee to Exec Produce WWII Film
Martin Scorsese and his production company, Sikelia Productions, are being taken to court for allegedly reneging on a $1 million deal to executive produce a World War II movie. U.K.-based production company Op-Fortitude, created to make the film, alleges that Scorsese accepted a $500,000 initial payment to personally assemble an all-star cast for Operation: Fortitude and refused to return the money after doing no work for over a year. The film was written and is set to be produced by Simon Afram. “Mr. Scorsese has done nothing whatsoever in furtherance of production of the Picture, and has been completely non-responsive to Op-Fortitude’s repeated attempts to reach him and secure the fulfillment of his obligations,” reads the complaint filed on Monday in Los Angeles Superior Court.
(Source: The Hollywood Reporter, May 16, 2023)
Writers Guild Posts Studio-By-Studio Forecast of How Much a Deal Would Cost
The Writers Guild of America is estimating that the cost of its current contract proposals for top studios and streamers would be $343 million, while the overall cost to the industry would be $429 million. The union, which is currently on strike after talks stalled with these entertainment companies on May 1, broke down these projected costs by employer in a chart sent to members on Tuesday. Disney would incur $75 million annually, while the proposals would cost Netflix $68 million and Warner Bros. Discovery $47 million on a per-year basis, per the union’s calculations. The cost to Paramount Global and NBC Universal would be $45 million and $34 million, respectively, while Amazon would be set back $32 million.
(Source: The Hollywood Reporter, May 16, 2023)
‘There Has to Be Compensation’: ChatGPT Exec Faces Tough Music AI Questioning at Senate Hearing
Nashville’s U.S. senator had tough questions about artificial intelligence’s impact on the music industry during a Congressional hearing on May 16, at one point asking the CEO of the company behind ChatGPT to commit to not using copyrighted songs to train future machines. At a hearing before the Senate Judiciary Committee about potential regulation for AI, Sen. Marsha Blackburn (R-Tenn.) repeatedly grilled Sam Altman, CEO of OpenAI, over how songwriters and musical artists should be compensated when their works are used by AI companies.
(Source: Billboard, May 16, 2023) [Subscription may be required]
Peacock Becomes Home of First-Ever Exclusive Live Streamed NFL Playoff Game
Peacock will become the home to the first-ever exclusive live streamed NFL Playoff game, presenting an NFL Wild Card Playoff in prime time on Saturday, Jan. 13, 2024, it was announced today by NBCUniversal and the NFL. The Peacock exclusive Wild Card game will immediately follow a late afternoon NFL Wild Card Playoff game on NBC and Peacock.
(Source: NFL News, May 15, 2023)
TikTok Tests Exclusive Deals With Music Artists, Edging Into Labels’ Turf
Over the past few years, TikTok has become a viral hitmaker, sending musical artists like Lil Nas X to the top of the record charts and propelling the careers of Olivia Rodrigo and Megan Thee Stallion. Now TikTok’s parent, ByteDance, is angling to play a bigger role in these artists’ careers, which could reduce the increasingly steep costs of licensing their music. TikTok has been pursuing dozens of artists to exclusively distribute their work through its one-year-old service, SoundOn, in custom deals that are more typical of major record labels, according to two people with direct knowledge of its efforts. Some artists, such as rapper K Camp, whose single popularized the Renegade dance challenge, have already inked such deals with SoundOn, which mostly operates as a self-service platform to place musicians’ works on streaming sites.
(Source: The Information, May 12, 2023)
Johnny Depp Signs $20 Million-Plus Dior Deal, Marking the Biggest Men’s Fragrance Pact Ever
Dior is doubling down on its relationship with Johnny Depp. The French luxury fashion house and cosmetics giant, which stood by the star even when he faced choppy PR waters amid his legal battle with ex-wife Amber Heard, has signed Depp to a massive deal, marking the biggest men’s fragrance pact ever. Sources peg the three-year deal at upwards of $20 million, which eclipses Robert Pattinson’s $12 million deal to serve as a spokesperson for Dior Homme and Brad Pitt’s $7 million pact to promote Chanel No. 5. A source familiar with the fragrance industry says most A-listers with fragrance deals pull in around $2 million-$4 million per year like Chris Pine, whose deal with Armani is valued at $4 million a year over 3 years.
(Source: The Variety, May 12, 2023)
How Much Can a Director Change a Script During the Writers Strike? The Guilds Are at Odds
As the writers strike rages on and writer-directors are facing tough choices about which work they will or will not do, the Directors Guild of America has issued some new guidance on members’ rights and responsibilities when it comes to minor or incidental script changes. The message, sent to members on Wednesday, drills down on a series of specific responsibilities the WGA considers a form of writing and has banned during the strike, called “(a) through (h)” duties. These services, which include cutting for time and small changes to dialogue made during or before production, are allowed to be performed by non-writers per the WGA’s contract, even though the union has said it considers them writing work. During the strike, the WGA has taken the position that “hyphenates” (writers who also work in other capacities, such as directors, actors and producers) cannot perform (a) through (h) services for a struck company.
(Source: The Hollywood Reporter, May 11, 2023)
DGA Previews Studio Negotiations: ‘Together, We Are an Unstoppable Union’
The DGA begins its round of bargaining on Wednesday with the Alliance of Motion Picture and Television Producers. The guild is focused on rewriting the streaming residual formula to account for the growth in foreign subscribers. “The explosive popularity of streaming around the world has transformed how, and where, our work is viewed, and our contracts must adapt to changing production and distribution,” said Karen Gaviola, negotiations co-chair.
(Source: The Variety, May 9, 2023)
Mixtape Website Spinrilla Ordered to Shut Down, Pay $50M USD to Labels
A decade after its creation, Spinrilla, the music discovery website for independent artists, will cease operations immediately. A federal judge in Georgia ordered that founder Jeffrey Copeland take down the site and pay $50 million USD to a group of record labels – among them, including Sony, Warner, Roc-A-Fella and Atlantic – for copyright infringement. The ruling brings to a close a six-year-old lawsuit filed by the Recording Industry Association of America, alleging that Spinrilla was host to copyrighted material from artists, which it reportedly continued to leave up for streaming even once alerted of the infringement. There were apparently 4,100 tracks available for consideration in the case.
(Source: Hypebeast, May 8, 2023)
AI vs. the Music Industry: With the Internet Full of Fake Drakes and Eminems, Who Gets Paid?
The questions around AI and creators’ rights are so head-spinning it’s hard to know where to begin: If David Guetta uses ChatGPT to create a fake Eminem verse for a song, who gets paid? Should it be Eminem, or could it fall under fair use or even parody, which is protected by the First Amendment? Should it be the engineers of ChatGPT — or, since the machine did not create the verse completely by itself, should it be the music that was programmed into the technology that enabled it to create fake-Eminem’s rhymes? This doesn’t even begin to get into the publishing issues — or, to cite just one example: How can the technology that monitors copyright on streaming services decipher whether a sound-alike is a parody or simply a reverent influence? (Guetta largely sidestepped the issue by not commercially releasing his AI Eminem song.)
(Source: The Variety, May 3, 2023)
Adidas Sued by Shareholders Over Fallout From Kanye West Partnership
A group of investors has filed a class action lawsuit against Adidas, alleging the sportswear giant knew about Kanye West‘s problematic “personal behavior” years prior to ending its partnership with the rapper but failed to warn them about it. The complaint — representing people who acquired Adidas securities between May 3, 2018, and February 21, 2023 — also names Adidas’ former CEO, Kasper Rorsted, and CFO, Harm Ohlmeyer, as defendants, alleging the executives “employed devices, schemes and artifices to defraud” investors and that the company “failed to take meaningful precautionary measures to limit negative financial exposure” in the event the partnership was terminated as a result of West’s behavior.
(Source: Billboard, May 1, 2023) [Subscription may be required]
Actors’ Equity Members Ratify New Touring Contract
Members of Actors’ Equity have voted to approve the new touring agreement with the Broadway League. The union, which represents more than 51,000 stage managers and actors, had been negotiating with the League over the new touring contract since mid-January. On April 3, Actors’ Equity announced a strike threat against the Broadway League, which represents industry producers, presenters and general managers. The union announced that it had reached a tentative agreement on April 13. The new contract will be in effect through Sept. 7, 2026.
(Source: The Hollywood Reporter, April 29, 2023)
Coachella Owner AEG Threatens Legal Action Against Filmmaker Who Made Unofficial Frank Ocean Concert Movie
Coachella parent company AEG is threatening legal action against a filmmaker who created a concert movie using found footage of Frank Ocean’s controversial April 16 set at the festival. Brian Kinnes, who did not attend Coachella, stitched together about 150 videos uploaded by concertgoers to YouTube, TikTok and Twitter to make an unofficial, multi-cut film that accounts for the entirety of Ocean’s set, which spanned about one hour and 20 minutes. Kinnes launched his film online Tuesday and, that same day, received a cease and desist order from entertainment company AEG, demanding that Kinnes “remove and destroy all audio and video content […] of musical performances from the Festival.”
(Source: The Variety, April 29, 2023)
Record Producer Agreements, a Practical Guide
Over the years I have had a number of posts about negotiating record producer agreements. These posts were based on topics, so one would be on royalties, another on recording costs, recoupment, credits, and so on. Readers have asked that I combine these into one topic and I finally did it for the Copyright Alliance and now am posting the combined article on MTP–all 30 pages of it. The last page is a sample producer agreement check list which could be converted into a deal memo.
(Source: Music Technology Policy Blog, April 28, 2023)
How Sen. Klobuchar’s Bill to Clamp Down on Ticketmaster’s Deals Could Backfire
Sens. Amy Klobuchar and Richard Blumenthal’s new legislation aims to take on Ticketmaster by clamping down on the use of long-term contracts to lock up the exclusive ticketing rights of U.S. venues and festivals. But it could backfire in a way that would negatively affect venues and fans. Titled the Unlocking Ticketing Markets Act, the legislation — introduced on the same day as a second bill from Sens. Maria Cantwell (D-Wash.) and Ted Cruz (R-Texas) that would ban hidden ticket fees — is a clear attempt to break Ticketmaster’s grip on the ticketing industry, although it never actually mentions the Live Nation-owned company by name. (A press release announcing the Unlocking Ticket Markets Act says today’s concert marketplace is dominated “by one company” with a “70-80 percent market share” thanks in part to the long-term contracts its clients sign for its services.) But while Klobuchar and Blumental believe shortening ticketing contracts will promote competition, the proposal doesn’t seem to consider the benefits these contracts offer the venue clients.
(Source: Billboard, April 28, 2023) [Subscription may be required]
New York to Make Major Changes to Tax Incentive Program
New York is set to increase the cap on tax credits the state gives to the film and TV industry from $420 million to $700 million and make other notable changes to its incentive program in a bid to compete with neighboring jurisdictions for productions. Under an agreement announced on Thursday approving a $229 billion budget, above-the-line wage costs will be eligible for tax breaks for the first time, with certain restrictions and caps. The credit will also be raised to 30 percent. The changes are aimed at luring productions back from areas, namely Georgia, New Jersey and Canada, that offer their own packages of offerings to host productions.
(Source: The Hollywood Reporter, April 28, 2023)
Universal Music Group: Yes, Ripping Off Drake’s Voice for That AI Track Was Illegal – And We’re Certain of It.
Universal is very confident that, when it comes to superstar-mimicking vocals created via AI toolkits, the law is already on its side. On UMG’s Q1 call, Michael Nash, EVP and Chief Digital Officer at Universal (and someone who has written perceptively about AI in music in the past), was asked specifically about his company’s view of the legal framework surrounding copyright protection for superstar-mimicking AI voice technology. Nash’s answer to that question (from Morgan Stanley’s Omar Sheikh) was unequivocal: ‘Fake Drake’, and other recordings like it, contravene copyright law. Said Nash: “I’m glad that you asked [this] question about our legal view of AI, because I do think that there’s been a little bit of confusion… we’re happy to have the opportunity to be very, very clear about our view of the legal landscape.
(Source: Music Business Worldwide, April 27, 2023)
Careful With That Pic: Lawyers Are Filing More Copyright Suits for Photographers
The ease of misappropriating copyright-protected photos has given rise to a small but growing wave of litigation on behalf of photographers, who are defending their intellectual property rights. Since Jan. 1, New Jersey’s federal courts have seen a dozen suits filed on behalf of photographers and others who claim their photos were used without permission. That’s a big jump from three suits of this type in the first four months of 2022, and five suits in the same period in 2021.
(Source: Law.com, April 26, 2023)
Association of Talent Agents Sends Members “Force Majeure” Summary Ahead of Threatened WGA Strike
As negotiations for a new Writers Guild contract enter their final phase, the Association of Talent Agents has sent its member-agencies a 22-page summary of the “force majeure” provisions contained in the contracts of the WGA, SAG-AFTRA and the DGA. Force majeure, the ATA notes, “is a provision in a contract that addresses the parties’ obligations if an extraordinary event directly prevents one or both parties from performing.” Each of the guilds treats force majeure differently, but generally they establish the terms under which the companies can or cannot contractually suspend or terminate deals.
(Source: Deadline Hollywood, April 26, 2023)
Washington Nationals Prevail in TV Rights Dispute Against Baltimore Orioles
A unanimous New York Court of Appeals sided with the Washington Nationals in its yearslong dispute with the Baltimore Orioles over the neighboring teams’ fair market value of shared television rights. New York’s highest court, citing the state’s “well-established rules of contract law” and its application to arbitration awards, agreed that the Nationals’ value, as contemplated through Major League Baseball’s Revenue Sharing Definitions Committee, should be approximately $55 million for broadcasting rights in 2012, eventually increasing to $62.4 million in 2016. It amounts to an annual value of about $59.3 million during the five-year period.
(Source: Law.com, April 25, 2023)
Writers Guild Issues Rules for Potential Strike: Writing, Pitching and Negotiating for Work Are Barred
The Writers Guild of America has released the rules that would go into effect if the organization decides to strike when the current contract expires on May 1.
(Source: The Hollywood Reporter, April 25, 2023)
Grimes Invites Fans to Make Songs With an AI-Generated Version of Her Voice
The musician Grimes is inviting creators to use AI-generated versions of her voice to make new music, saying she could even provide the raw audio files to facilitate it. "We're making a program that should simulate my voice well but we could also upload stems and samples for ppl to train their own," she wrote on Twitter. The pop singer, whose real name is Claire Boucher, also said she would "split 50% royalties on any successful AI generated song that uses my voice."
(Source: NPR, April 24, 2023)
NITO Details a Nine Point Plant to Reform the Ticketing Industry
Amid the ongoing debate about the equity of concert ticketing in the modern era, the National Independent Talent Organization (NITO) announced a plan to reform the industry. NITO’s plan proposes nine key changes that the organization says will help to reshape the ticketing industry in the interests of independent artists, music venues, talent agencies and fans.
(Source: CelebrityAccess, April 20, 2023)
Fan Suing Wizards’ Beal Over Alleged Postgame Incident
Wizards guard Bradley Beal is being sued by a fan who claims the NBA star struck the side of his head with his hand and knocked his hat off after a March game at Orlando. Kyler Briffa filed the lawsuit this week in circuit court in Orange County, Florida. Briffa claims he and a friend were at the March 21 game, in which the Magic beat the Wizards 122-112. The suit says fans with courtside seats were allowed to enter the team tunnel as players left the court, and that after Beal walked past, Briffa’s friend made a comment about losing a bet on the game. The suit claims Beal walked back toward Briffa and struck the side of his head, knocking his hat off.
(Source: AP News, April 19, 2023)
Drake Hit With Lawsuit Over Alleged Unlicensed Voice Sample on ‘Honestly, Nevermind’ Track
Drake is facing a new copyright lawsuit claiming he used an unlicensed sample from the song of a Ghanaian rapper on his chart-topping 2022 album, Honestly, Nevermind. In a case filed in Manhattan federal court, an artist named Obrafour (real name Michael Elliot Kwabena Okyere Darko) claims Honestly, Nevermind track “Calling My Name” features a short clip of a vocal phrase — “Killer cut, blood, killer cut” — that was pulled directly from Obrafour’s earlier song, “Oye Ohene.” Unlike many such cases, Obrafour claims to have smoking gun evidence: An email from someone at Republic Records seeking to clear the clip. The June 2022 note allegedly admitted that Drake had already “used samples from the above referenced song” and wanted permission to release it. But according to the lawsuit, Drake’s album and song — complete with the unlicensed sample — were released just nine days later, before Obrafour had a chance to respond to the email.
(Source: Billboard, April 19, 2023) [Subscription may be required]
After Fake Drake Debacle, Expect More AI Songs. But Are They Legal?
A song featuring AI-generated fake vocals from Drake and The Weeknd might be a scary moment for artists and labels whose livelihoods feel threatened, but does it violate the law? It’s a complicated question. The song “Heart on My Sleeve,” which also featured Metro Boomin’s distinctive producer tag, racked up hundreds of thousands of spins on streaming services before it was pulled down on Monday evening, powered to viral status by uncannily similar vocals over a catchy instrumental track. Millions more have viewed shorter snippets of the song that the anonymous creator posted to TikTok. It’s unclear whether only the soundalike vocals were created with AI tools – a common trick used for years in internet parody videos and deepfakes – or if the entire song was created solely by a machine based purely on a prompt to create a Drake track, a more novel and potentially disruptive development.
(Source: Billboard, April 18, 2023) [Subscription may be required]
Streaming Sites Urged Not to Let AI Use Music to Clone Pop Stars
The music industry is urging streaming platforms not to let artificial intelligence use copyrighted songs for training, in the latest of a run of arguments over intellectual property that threaten to derail the generative AI sector’s explosive growth. In a letter to streamers including Spotify and Apple Music, the record label Universal Music Group expressed fears that AI labs would scrape millions of tracks to use as training data for their models and copycat versions of pop stars. UMG instructed the platforms to block those downloads, saying it would “not hesitate to take steps to protect our rights and those of our artists.”
(Source: The Guardian, April 12, 2023)
Are You a Foreign Artist? You Are Officially Not Wanted Here.
Have you ever traveled in Europe? Did you notice the huge numbers of street performers in the major cities? Did you talk to any of them? (It’s easy because they all speak English.) You find Czech musicians in Brussels, Peruvians in Paris, Americans in Berlin… Some of them are really good at what they do. And most of them don’t need a visa to do it. In general, they only need local work permits issued by the city where they hang out and perform. You can get one in a day.
(Source: Medium, April 3, 2023)
Getty Images Lawsuit Says Stability AI Misused Photos to Train AI
Stock photo provider Getty Images has sued artificial intelligence company Stability AI Inc, accusing it in a lawsuit made public on Monday of misusing more than 12 million Getty photos to train its Stable Diffusion AI image-generation system. The lawsuit, filed in Delaware federal court, follows a separate Getty case against Stability in the United Kingdom and a related class-action complaint filed by artists in California against Stability and other companies in the fast-growing field of generative AI.
(Source: Reuters, February 6, 2023)
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