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
Lizzo, WME, Virgin Fest, and the Power of a Force Majeure Clause:
A $5 Million Cautionary Tale
In December 2019, promoters of Virgin Fest Los Angeles (“Virgin Fest”) announced their intention to host a two-day music festival in Los Angeles, California. The inaugural event was scheduled for June 6 and 7, 2020. The festival promoters subsequently entered into standard performance contracts with various pop artists, including Ellie Goulding, Kali Uchis, and Lizzo, each represented by William Morris Endeavor (“WME”). A few short months later, the COVID-19 pandemic forced a global shutdown, leaving shuttered events like Virgin Fest in its wake. The ensuing months proved devastating for the live music and event industries. Among the pandemic’s more novel consequences was the discovery (or rediscovery) of the frequently overlooked “force majeure” contract clause. To most laypeople (and some lawyers), force majeure was a rarely cited boilerplate concept that occupied a few lines on the closing pages of often overly verbose contracts. Well, rarely cited prior to March 2020.
(Source: Arnall Golden Gregory LLP, April 25, 2024)
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Industry News
Tupac Shakur’s Estate Threatens to Sue Drake Over Diss Track Featuring AI-Generated Tupac Voice
Tupac Shakur’s estate is threatening to sue Drake over a recent diss track against Kendrick Lamar that featured an AI-generated version of the late rapper’s voice, calling it a “a flagrant violation” of the law and a “blatant abuse” of his legacy. In a cease-and-desist letter obtained exclusively by Billboard, litigator Howard King told Drake (Aubrey Drake Graham) that he must confirm that he will pull down his “Taylor Made Freestyle” in less than 24 hours or the estate would “pursue all of its legal remedies” against him.
(Source: Billboard, April 24, 2024) [Subscription may be required]
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Pharrell Williams and Pink In Legal Dispute Over His ‘P.Inc’ Trademark
Pink has filed a legal action against Pharrell Williams over his efforts to secure a trademark on the term “P.Inc” – a case that comes just weeks after Pharrell was hit with a similar branding dispute case by a longtime friend. In an action filed at a federal tribunal, lawyers for Pink (real name Alecia Moore) claim that the trademark Pharrell is trying to register is so similar to her stage name that it’s “likely to cause confusion, mistake and/or deception” among consumers who see it. The case was filed by Pink’s company, Lefty Paw Print, which owns numerous trademark registrations to her name, against Pharrell’s company, PW IP Holdings. Reps for Pharrell did not immediately return a request for comment.
(Source: Billboard, April 19, 2024) [Subscription may be required]
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Spotify’s Music-Audiobook Bundle Means a Lower Royalty Rate for U.S. Songwriters, but Company Promises Record Payouts
Spotify’s premium plans combining music and audiobooks will mean a lower mechanical royalty rate for songwriters on those plans, the company has confirmed, although it claims that earnings for creators will continue to rise. “Spotify is on track to pay publishers and societies more in 2024 than in 2023. As our industry partners are aware, changes in our product portfolio mean that we are paying out in different ways based on terms agreed to by both streaming services and publishers,” the statement reads. “Multiple DSPs have long paid a lower rate for bundles versus a stand-alone music subscription, and our approach is consistent.”
(Source: Variety, April 18, 2024)
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Jelly Roll Hit With Name-Dispute Lawsuit From Philadelphia Wedding Band Called Jellyroll
Jelly Roll is facing a federal lawsuit from a well-known Philadelphia wedding band called Jellyroll, claiming that the rapper’s stage name violates the group’s trademark rights. In a complaint filed in federal court, attorneys for Kurt Titchenell accused the rapper-turned-country singer (Jason DeFord) of infringing his trademark to Jellyroll — the name he’s used for decades for an act the Philadelphia Inquirer has labeled as “Philly’s favorite wedding band.”
(Source: CBS News, April 16, 2024)
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Pandora Hits Back at MLC Lawsuit Over Streaming Royalties: ‘Legally Incoherent’
Pandora is firing back at a lawsuit filed by the Mechanical Licensing Collective (the MLC) that claims the company has failed to properly pay streaming royalties, calling the case a “gross overreach” based on a “legally incoherent position.” The MLC — the group created by Congress in 2018 to collect streaming royalties — filed the lawsuit earlier this year, accusing Pandora (a unit of SiriusXM) of misclassifying the nature of its streaming service to avoid paying the kind of higher royalties owed by “interactive” platforms like Spotify.
(Source: Billboard, April 16, 2024) [Subscription may be required]
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WSJ: Justice Department Will Sue Live Nation for Antitrust Violations
The U.S. Department of Justice is preparing to sue the country’s largest concert promoter and ticketing website Live Nation in the coming weeks for breaking America’s antitrust laws, the Wall Street Journal reported, citing anonymous sources familiar with the Justice Department’s plans. The lawsuit against Live Nation Entertainment, the parent company of Ticketmaster, will allege the ticketing company used its market-leading position to harm competition for live events, the Journal reported. But the paper wasn’t able to uncover specific details of the planned lawsuit.
(Source: CNN, April 16, 2024)
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Travis Scott’s Attorneys Say the Rapper Wasn’t Responsible for Safety at Deadly Astroworld Concert
Rapper Travis Scott's attorneys asked a Texas judge to grant his recently filed motion for summary judgment in the civil suit regarding the deadly 2021 Astroworld festival in Houston. Scott headlined the concert, during which 10 people were killed as authorities and festival organizers responded to a massive crowd surge and tried to shut down the show. In the motion, Scott's attorneys allege that the Houston rapper "acted diligently to protect against every reasonably apprehensible danger" and "supported festival organizers' efforts to eliminate" safety risks. [Scott's attorney] said that his client's responsibility in the Astroworld Festival was to market the festival, perform, curate the talent lineup, his personal security, and approve creative materials.
(Source: ABC 7 Chicago, April 16, 2024)
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Will Tennessee’s New AI Voice Law Have Unintended Consequences?
In an effort to combat AI voice cloning, the ELVIS Act makes a number of key changes to the law. Most directly, it expands the state’s existing publicity rights protections to explicitly include someone’s voice as part of their likeness. But the new law also expands the law in ways that have received less attention, including adding a broader definition of who can be sued and for what. According to Joseph Fishman, a law professor at Vanderbilt University who has been closely tracking the legislation, that broader wording “sweeps in innocuous behavior that no one seriously thinks is a problem that needs solving” — potentially including tribute bands, interpolations, or even just sharing a photo that a celebrity didn’t authorize.
(Source: Billboard, April 15, 2024) [Subscription may be required]
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Live Nation Hit With Wrongful Death Suit Following 'Beyond Wonderland' Festival Shooting
Live Nation has been hit with a wrongful death lawsuit after two concert goers were allegedly shot and killed by a fellow attendee during the June 2023 Beyond Wonderland festival at The Gorge in Washington state. The families of two Seattle nurses, Brandy Escamilla and Josilyn Ruiz, filed suit against Live Nation, its subsidiary Insomniac Holdings, and security companies working the event, looking to hold the entities accountable after the two women were fatally shot at the event’s campgrounds, according to the April 10 complaint, filed in Washington’s King County Superior Court by attorneys with Panish Shea Ravipudi, Boyle Law and PWRFL.
(Source: Law.com, April 12, 2024)
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ESPN Inks Nine-Year Deal With Peyton Manning’s Omaha Productions
ESPN will be in business with Peyton Manning for years to come. The Disney-owned sports media giant has inked what it is calling an “unprecedented” nine-year deal with Manning’s Omaha Productions, which will produce programming for ESPN into 2034. The deal includes the “Manningcast” alternate telecast for Monday Night Football, technically called Monday Night Football With Peyton and Eli, in which the brothers banter and speak to guests during the game of the week.
(Source: The Hollywood Reporter, April 10, 2024)
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Hollywood Labor Backs AI Transparency Bill That Could Offer Firepower to Creators
As generative artificial intelligence tools push into the entertainment industry, Hollywood is throwing its weight behind a bill that will require heightened transparency from AI companies. The legislation, introduced by Rep. Adam Schiff (D-Calif.), will require firms to disclose copyrighted works used to train generative AI systems. If the bill passes, OpenAI, for example, would be forced to reveal videos and other content used to create Sora.
(Source: The Hollywood Reporter, April 9, 2024)
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Takedown Fails: Artists Are Seeing Their Music Removed From DSPs for Streaming Fraud They Didn’t Commit
Streaming fraud is one of the most serious problems facing the music industry. Because most streaming platforms operate on a pro-rata payment model — in which payment is based on an artist’s share of total streams — fraudsters have managed to steer millions of dollars away from legitimate artists, songwriters, labels and publishers. And because DIY distributors like TuneCore and Distrokid allow virtually anyone to distribute unlimited audio files to streaming platforms for around $20 per year, at a volume that is extremely difficult to police effectively, the barrier to entry is virtually nonexistent.
(Source: Variety, April 9, 2024)
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Meta Seeks Dismissal of FTC’s Antitrust Lawsuit Over Instagram, WhatsApp Deals, Claiming it ‘Faces Fierce Competition From a Range of Platforms’
Meta filed a motion April 12 requesting the dismissal of the Federal Trade Commission’s antitrust lawsuit against the social media company — arguing the agency still hasn’t provided any basis for its litigation, which could potentially force Meta to divest Instagram and WhatsApp.
(Source: Variety, April 5, 2024)
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Pharrell Williams and Chad Hugo Embroiled in Legal Dispute Over Rights to ‘Neptunes’ Name
With hits like Snoop Dogg’s “Drop It Like It’s Hot,” Kelis’ “Milkshake,” Gwen Stefani’s “Hollaback Girl” and dozens of others, Pharrell Williams and longtime collaborator Chad Hugo rode to multiplatinum success as the songwriting/production duo the Neptunes. While Pharrell has become a superstar in his own right over the last two decades, with solo hits like “Happy” and “Freedom,” Hugo has kept a comparatively low profile – but the pair are now in a legal dispute over the group’s name. In the legal action, attorneys for Hugo accused Williams of “fraudulently” seeking sole control over the Neptunes’ trademarks, which they claim is in violation of their agreement to split everything equally. The duo have been friends and collaborators since childhood and were inducted into the Songwriters Hall of Fame in 2022.
(Source: Variety, April 1, 2024)
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Travis Scott Wants Out of Astroworld Lawsuits, Arguing Safety Was Not His Responsibility
Travis Scott is asking to be dismissed from the sprawling litigation over the 2021 disaster at the Astroworld music festival, arguing that safety and security at live events is “not the job of performing artists.” More than 2,500 people have sued over Astroworld, which left 10 dead and hundreds injured after a crowd crush during Scott’s Nov. 5 show. They claim Scott (real name Jacques Bermon Webster II), Live Nation and other organizers were legally negligent in how they planned the event, and are collectively seeking billions in damages.
(Source: Billboard, March 28, 2024) [Subscription may be required]
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Rapper Trefuego Used an Unlicensed Sample in His TikTok Hit 90MH. Now the Court Is Making Him Pay Over $800,000 in Damages to Sony Music
Sony Music’s lawsuit accused Trefuego, within 90mh, of “the flagrant and deliberate infringement” of both the sound recording and underlying composition in the 1986 track Reflections, released by Japanese composer Toshifumi Hinata (Hinata). The track went viral on TikTok and YouTube and racked up over 170 million Spotify streams. In a judgment issued in a Texas court on March 27, Trefuego (Dantreal Daevon Clark-Rainbolt) was ordered to pay Sony Music $802,997.23 in damages, including $14,078.82 currently held by DistroKid.
(Source: Music Business Worldwide, March 28, 2024)
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NCAA President Charlie Baker Urges States With Legal Wagering to Ban Prop Bets on College Athletes
In the midst of March Madness, the NCAA is pushing for states with legal wagering on sporting events to ban prop bets on college athletes. “Sports betting issues are on the rise across the country with prop bets continuing to threaten the integrity of competition and leading to student-athletes getting harassed,” NCAA President Charlie Baker said on March 27 in statement posted on social media. “The NCAA has been working with states to deal with these threats and many are responding by banning college prop bets.”
(Source: AP News, March 27, 2024)
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Netflix Must Face Revived ‘Tiger King’ Copyright Claim, US Appeals Court Says
A U.S. appeals court on March 27 revived part of a cameraman's copyright lawsuit against Netflix over the use of clips from his videos in its hit documentary series "Tiger King." The appeals court cited a recent U.S. Supreme Court decision on Andy Warhol's art in finding that Netflix's use may not have been "transformative" enough to be fair use. Netflix's "purported commentary did not 'comment' on the original composition, but rather targeted a character in the composition," Chief U.S. Circuit Judge Jerome Holmes said. "And Warhol has deemed such a use to not be sufficiently transformative."
(Source: Reuters, March 27, 2024)
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‘The Batman,’ a 2022 Blockbuster, Wasn’t Plagiarized, U.S. Judge Rules
Warner Bros Entertainment didn't steal the plot for its 2022 blockbuster "The Batman" from a writer who created a story about the caped crusader three decades earlier, a federal judge in Manhattan ruled on March 27. U.S. District Judge Paul Engelmayer also said the writer Christopher Wozniak infringed copyrights belonging to DC Comics, which employed him as a freelance artist in 1990 when he wrote "The Ultimate Riddle," later retitled "The Blind Man's Hat."
(Source: Reuters, March 27, 2024)
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NBCUniversal Settles in Back to the Future DeLorean Trademark Battle
A longstanding trademark battle surrounding NBCUniversal’s continued use of the DeLorean car in Back to the Future merchandise and tie-ups has been settled in federal court. NBCUniversal and DeLorean Motor Co. informed the U.S. District Court for the Central District of California that a complete and total resolution had been reached regarding the case, according to a report.
(Source: Washington Examiner, March 27, 2024)
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U.S. Recorded Music Revenue Up 8% in 2023 as Streaming Growth Remains Steady: RIAA
Recorded music revenue in the United States grew 7.7% in 2023 over the prior year, reaching a high-water mark of $17.1 billion at retail, according to the RIAA. Within that headline number, $14.4 billion — or 84% — was driven by streaming, a figure that was also up 8% over 2022. It’s the eighth straight year of revenue growth for the U.S. business, and the rounded 8% growth over last year’s $15.9 billion represents an uptick from 2022, when the business grew 6.1% over the prior year. And while the headline figure marks the third straight year that the business has set a record for revenue — previously set in 1999, when revenue hit $14.6 billion prior to Napster taking hold — when adjusted for inflation, it still falls far below that 1999 figure, which would be $26.9 billion at current rates.
(Source: Billboard, March 26, 2024) [Subscription may be required]
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Golfers Sue City of L.A., Calling Out Failure to Stop Black Market in Tee Times
Five golfers filed a class-action lawsuit this week against the city of Los Angeles, alleging that officials failed to rein in a bustling black market in tee times at municipal golf courses. In October, some of the golfers, who are members of an Asian American golfing group, shared evidence with L.A. Department of Recreation and Parks officials of brokers selling tee times on public courses, according to the lawsuit.
(Source: Los Angeles Times, March 22, 2024)
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And Justice for All: U.S. Court Throws Out Metallica Insurance Claim
Heavy metal legends Metallica have lost a lawsuit against their insurers over Covid-era losses, with the judge quoting Taylor Swift in her ruling. The "Enter Sandman" four-piece had wanted $3 million to cover bills after concerts in South America had to be canned in 2020 as the coronavirus raced around the world. But their insurers, Lloyd's of London, denied their claim, saying it did not have to pay out in cases where communicable diseases had caused the losses. Frontman James Hetfield and his fellow rockers filed suit in California, asking a judge to force the insurers to cough up, insisting that other factors could have been behind the show cancellations in Argentina, Chile and Brazil.
(Source: Barrons, March 22, 2024)
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Tennessee Adopts ELVIS Act, Protecting Artists’ Voices From AI Impersonation
Tennessee governor Bill Lee signed the ELVIS Act into law on March 21, legislation designed to further protect the state’s artists from artificial intelligence deep fakes. The bill, more formally named the Ensuring Likeness Voice and Image Security Act of 2024, replaces the state’s old right of publicity law, which only included explicit protections for one’s “name, photograph, or likeness,” expanding protections to include voice- and AI-specific concerns for the first time.
(Source: Billboard, March 21, 2024) [Subscription may be required]
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Painting is poetry that is seen rather than felt, and poetry is painting that is felt rather than seen.
—
Leonardo da Vinci
