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
Will the Spirit of Title IX Survive State Legislation Allowing Institutions to Directly Pay Their Athletes?
There is no doubt that name, image, and likeness ("NIL") deals have been groundbreaking for both men’s and women’s college athletes. It’s the hot topic among everyone in the college sports world — and for good reason. The emergence of NIL deals over the last few years has provided a litany of opportunities for college athletes to gain business experience through brand sponsorship, garner fan interest for their sport, earn income while being a student-athlete, and gain well-earned recognition for their talents.
(Source: Arnall Golden Gregory LLP, May 23, 2024)
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Industry News
Sony Music Sues Marriott Hotels for Alleged ‘Rampant’ Copyright Infringement in Social Media Posts
Sony Music Entertainment (SME) has filed a lawsuit in the US against Marriott International, accusing the hotel company of “willful” infringement of copyright in social media posts. “Marriott’s infringement is rampant, and not limited to content controlled by Sony Music,” SME said in a complaint filed on May 17 with the US District Court for Delaware. The complaint says Sony Music has identified 931 infringements of its sound recordings, including works by Beyoncé, Harry Styles, Britney Spears, Mariah Carey, Michael Jackson, Miley Cyrus, Shakira, and Doja Cat. Of those alleged infringement, 913 were in social media posts made by hotels owned, managed or franchised by Marriott, while another 18 were from social media influencers paid by Marriott.
(Source: Music Business Worldwide, May 22, 2024)
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'Earth, Wind & Fire Wins $750K From ‘Deceptive’ Tribute Band in Trademark Lawsuit
An Earth, Wind & Fire tribute act will pay the legendary R&B group $750,000 in damages for using its trademarked name in ways that a federal judge called “deceptive and misleading.” The payment, announced in a court filing Tuesday, will effectively end a year-long lawsuit in which the band alleged that the tribute act — “Earth, Wind & Fire Legacy Reunion” – infringed the trademark rights to the famous name by suggesting it was the real thing.
(Source: Billboard, May 22, 2024) [Subscription may be required]
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Scarlett Johansson’s AI Legal Threat Sets Stage for Actors’ Battle With Tech Giants
Artists were first to sue. Then authors hit generative artificial intelligence companies with a volley of lawsuits, followed by publications. As battle lines over the use of AI tools in Hollywood are being drawn, actors may be the next group of creators to open another front in what could be an industry-defining legal battle against AI firms over the use of copyrighted works and personal data to power their human-mimicking chatbots. On May 20, Scarlett Johansson threatened legal action against OpenAI for allegedly copying and imitating her voice after she refused to license it to the company. According to the actress, OpenAI asked her to be one of the voices called “Sky” for its newest AI system. She declined, though she said that didn’t stop chief executive Sam Altman.
(Source: The Hollywood Reporter, May 21, 2024)
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Jaden Rashada Sues Billy Napier, Florida Booster Over NIL Deal
Former University of Florida football recruit Jaden Rashada is suing coach Billy Napier, along with a big-time Gator booster and others, claiming they defrauded him out of millions of dollars by backing out of a promised $13.85 million agreement after the quarterback had turned down offers tied to other programs. The lawsuit filed May 21 includes an allegation that Rashada signed his national letter of intent to Florida on Dec. 21, 2022, less than an hour after Napier promised the player's father a $1 million "partial payment" that day upon signing. Rashada never received the $1 million, and the boosters never fulfilled the deal, the lawsuit states.
(Source: ESPN, May 21, 2024)
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NMPA Calls on Congress for Copyright Act Overhaul Amid Spotify Battle Over Bundling
The National Music Publishers’ Association (NMPA) has sent a letter to Judiciary Committee leadership in both the U.S. House of Representatives and Senate, asking for the overhaul of the statutory license in section 115 of the Copyright Act, which “prevents private negotiations in a free market” for mechanical royalty rates for songwriters and music publishers in the U.S.
(Source: Billboard, May 21, 2024) [Subscription may be required]
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AI Voiceover Company Stole Voices of Actors, New York Lawsuit Claims
Two voice actors sued artificial-intelligence startup Lovo in Manhattan federal court on Thursday, accusing the company of illegally copying their voices and using them without permission in its AI voiceover technology. Paul Skye Lehrman and Linnea Sage said in the proposed class-action lawsuit, opens new tab that San Francisco-based Lovo is selling AI versions of their voices without permission after tricking them into providing voice samples for the company. The actors, seeking damages of at least $5 million for the class, accused Lovo of fraud, false advertising and violating their publicity rights.
(Source: Reuters, May 16, 2024)
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The MLC Sues Spotify for Bundling, Cutting Royalties for Publishers and Songwriters
The Mechanical Licensing Collective (the MLC) has filed a lawsuit against Spotify, calling the way the streamer reclassified its premium, duo and family plans as “bundles” and started paying a discounted royalty rate to publishers and songwriters “improper.” “The financial consequences… are enormous for songwriters and music publishers,” the MLC writes in the complaint. The root of the conflict started late last year when Spotify added 15 hours of free audiobook listening to Spotify premium, duo and family plans in the United States and other markets. At the time, this was a free extra for subscribers, and Spotify continued to pay the original full mechanical royalty rate for musical works in the United States.
(Source: Billboard, May 16, 2024) [Subscription may be required]
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Hollywood at a Crossroads: “Everyone Is Using AI, But They Are Scared to Admit It”
Behind closed doors, most corners of production, from writers’ rooms to VFX departments, have embraced generative AI tools. For every project that has faced blowback for using AI in some part of the production pipeline, there are dozens more that have quietly adopted the technology. “There are tons of people who are using AI, but they can’t admit it publicly because you still need artists for a lot of work and they’re going to turn against you,” says David Stripinis, a VFX industry veteran who has worked on Avatar, Man of Steel and Marvel titles. “Right now, it’s a PR problem more than a tech problem.”
(Source: The Hollywood Reporter, May 15, 2024)
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Netflix Will Be the Home to Live NFL Games This Christmas Day
Netflix has an early Christmas gift for you -- but it won't fit under the tree. On Dec. 25, 2024, Netflix will be the global home of the NFL's two Christmas Day marquee games. And mark your calendar for Christmas Day in 2025 and 2026 when Netflix will be streaming at least one holiday game each year as part of this three-season deal.
(Source: NFL News, May 15, 2024)
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Apple, Netflix Amazon Want to Change How They Pay Hollywood Stars
In recent weeks, Apple Inc.’s Hollywood studio has told its business partners that it wants to change the way it pays talent. After years of compensating people as though all their projects were successful, Apple will soon begin basing pay on how a series or movie performs.
(Source: Bloomberg, May 12, 2024)
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Wall Street Regulator Moves to Ban Election Betting, Escalating Fight Over New Market
A top Wall Street regulator has proposed outlawing election betting in the U.S. derivatives markets, with officials warning that the activity poses a threat to the sanctity of American elections. The Commodity Futures Trading Commission, which is charged with regulating the vast and complex derivatives markets, voted 3-2 to issue a new rule proposal that would ban so-called event contracts that effectively act as wagers on political elections. The plan would also prohibit those contracts related to sporting events and even awards ceremonies like the Oscars.
(Source: Politico, May 10, 2024)
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Restaurant Owners Slam California's New 'Junk Fees' Law
California restaurant owners are furious about a new law banning eateries from charging customers so-called "junk fees." Senate Bill 478, which was signed into law by California Governor Gavin Newsom last year, will prohibit most businesses in the Golden State from charging hidden fees beginning on July 1. Although fees can still be charged on top of goods or services, the new law mandates that required fees must be included in advertised prices, including "service fees" and other surcharges.
(Source: Newsweek, May 10, 2024)
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Spotify to Pay Songwriters About $150 Million Less Next Year With Premium, Duo, Family Plan Changes
When Bloomberg reported that Spotify would be upping the cost of its premium subscription from $9.99 to $10.99, and including 15 hours of audiobooks per month in the U.S., the change sounded like a win for songwriters and publishers. Higher subscription prices typically equate to a bump in U.S. mechanical royalties — but not this time. By adding audiobooks into Spotify’s premium tier, the streaming service now claims it qualifies to pay a discounted “bundle” rate to songwriters for premium streams, given Spotify now has to pay licensing for both books and music from the same price tag — which will only be a dollar higher than when music was the only premium offering. Additionally, Spotify will reclassify its duo and family subscription plans as bundles as well.
(Source: Billboard, May 9, 2024) [Subscription may be required]
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U.S. Supreme Court Rules Against Warner Music in Copyright Damages Case
The U.S. Supreme Court ruled in favor of a Miami music producer in a legal fight with Warner Music (WMG.O), opens new tab over a song by rapper Flo Rida, finding that there is no time limit for recovering monetary damages in copyright cases that have been filed before the expiration of a statue of limitations. The 6-3 ruling, authored by liberal Justice Elena Kagan, affirmed a lower court's decision that favored producer Sherman Nealy, who sued a Warner subsidiary and others in Florida federal court in 2018.
(Source: Reuters, May 9, 2024)
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NBA, Football, NASCAR Stars Cough Up $2.4M in Voyager Promo Suit
Three high-profile American sports personalities have agreed to collectively pay $2.42 million to settle allegations that they helped promote the failed cryptocurrency exchange Voyager Digital. According to a class action settlement filed on May 3, retired NFL star Rob “Gronk” Gronkowski will pay the largest share of $1.9 million. NBA player Victor Oladipo will pay $500,000 and NASCAR driver Landon Cassill will pay $25,000. All three sports stars have agreed to the settlements without admitting to or denying any of the accusations.
(Source: Cointelegraph, May 8, 2024)
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Can Drake & Kendrick Sue Each Other for Defamation Over Ugly Diss Track Accusations?
After an ugly weekend of diss-track crossfire, the beef between Kendrick Lamar and Drake now features unproven accusations of spousal abuse, drug use and even pedophilia. Those claims might be “slander” to many people, but are they defamatory? We asked the legal experts. The long-simmering dispute between the two hip hop heavyweights went thermonuclear on Friday, when Drake dropped a track claiming Lamar had abused his fiancée. Minutes later, Lamar fired back with accusations about addictions, hidden children and plastic surgery. The next day he dropped another song accusing Drake and others of pedophilia. With the allegations getting wilder by the minute, spectators on social media began to wonder if either rapper – but particularly Kendrick – could be setting themselves up for more than just another scathing response: “Has anyone ever filed a defamation lawsuit over a diss track before?” joked Matt Ford, a legal reporter at the New Republic, on Saturday night.
(Source: Billboard, May 7, 2024) [Subscription may be required]
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Former Nickelodeon Producer Files Defamation Lawsuit Against Warner Bros. Discovery Docuseries
Former Nickelodeon producer Dan Schneider filed a complaint alleging defamation against producers of the Warner Bros. Discovery docuseries “Quiet on Set,” which falsely implies he sexually abused children who worked on Nickelodeon television shows from the early 1990s to mid-2010s. Schneider’s attorneys, Jana M. Moser and Richard McKie of Moser Legal in Santa Monica, California, filed the lawsuit in Los Angeles Superior Court on May 1. The filing claims the producers of the docuseries and its trailer implied that Schneider sexually abused the child actors working on his TV shows. He is seeking damages in addition to injunctive relief, including editing taking down or removing portions of the docuseries.
(Source: Law.com, May 6, 2024)
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‘Road House’ Copyright Dispute Sparks Countersuit From Amazon Studios, MGM
A legal brawl is underway over the Road House remake, with MGM Studios bringing counterclaims against the original film’s screenwriter over the rights to the 1986 screenplay that spawned the movie. In a countersuit filed on Friday in California federal court, the studio and its parent, Amazon, accuse Hill of fraud for lying to the U.S. Copyright Office that he’s the true author of the screenplay and can take advantage of a provision in copyright law that allows him and other similarly-situated writers to reclaim the rights to past works.
(Source: The Hollywood Reporter, May 6, 2024)
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NBA All-Star Dominique Wilkins Sues AmeriHealth for NIL Use
Former NBA Hall of Fame basketball player Dominique Wilkins sued AmeriHealth Partners on May 6 in Georgia Northern District Court over trademark infringement claims. Wilkins accuses the defendant of using Wilkins' name, likeness and image in AmeriHealth's marketing materials for the nausea supplement PeptideVite without his authorization or consent.
(Source: Law.com, May 6, 2024)
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UMG and TikTok Strike Licensing Deal After Three-Month Standoff
Universal Music Group (UMG) and TikTok have struck a new licensing agreement which will soon bring UMG’s catalog of millions of sound recordings and songs back to TikTok after three months off the platform. Though it is unclear exactly when all of UMG’s catalog will return to the app, a press release about the new license says it will return in “due course” and the two companies are “working expeditiously” to return the music.
(Source: Billboard, May 2, 2024) [Subscription may be required]
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Major Daily Newspapers Join Legal Fight Against OpenAI as Battle Lines Are Being Drawn
A coalition of eight daily newspapers have sued OpenAI and Microsoft for copyright infringement, expanding a growing front in the legal battle over the unauthorized use of articles to power artificial intelligence technology. The lawsuit, filed in New York federal court , is at least the fourth complaint brought against the Sam Altman-led firm over copyright issues associated with training the automated chatbots that have vaulted the company to a multibillion-dollar valuation and sparked rivals to pour troves of cash into competing technology. It argues that thousands of their articles were used to train the AI systems that power ChatGPT, Microsoft Copilot and other products that now effectively compete against them.
(Source: The Hollywood Reporter, April 30, 2024)
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Forgiveness or Permission?: What LeBron James’ Copyright Infringement Defense Win Means
A Northern District of Ohio jury recently held that people with tattoos have an implied license to include their body art as part of their appearance when depicted in video games, further drawing the line between infringement and noninfringement in tattoo copyright claims. The result comes after tattoo artist James Hayden sued LeBron James and 2K Games for copyright infringement for not getting permission from him to use his tattoo designs before including them on LeBron’s character model in a basketball video game. Lebron was Hayden’s client and paid to get two shoulder tattoos from him 17 years ago. These were later realistically depicted in the basketball simulation video game NBA 2K with LeBron’s permission, but not Hayden’s. Hayden, represented by a team including Andrew Alexander of Calfee Halter & Griswold asked the jury to award a “substantial portion of $25.6 million,” according to the defense, represented by a team including Kirkland & Ellis’s Dale Cendali. Now, however, a jury has determined that LeBron and 2K didn’t have to get Hayden’s consent.
(Source: Law.com, April 29, 2024)
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'Nasty Turn' in Guess Who Fight Sees Burton Cummings Cancel Agreements That Let Band Perform His Songs
Burton Cummings's latest blow in his legal battle against the current lineup of the Guess Who is tarnishing the legacy of the famous Winnipeg rock band, a local music historian says — and could set the stage for similar rifts between bands and former members. The band's ex-frontman has terminated agreements with performing-rights organizations for every Guess Who song he wrote and published, which means fans of hits like American Woman or These Eyes won't be able to hear them played live in concert.
(Source: CBC News, April 13, 2024)
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Paramount Prevails in Copyright Case by Heirs of Original ‘Top Gun’ Story
A federal judge ruled against the widow and son of the author of the original 1983 "Top Guns" magazine article, who claimed Paramount Pictures' 2022 "Top Gun: Maverick" sequel infringed on their copyright to the story. U.S. District Judge Percy Anderson in Los Angeles granted Paramount Pictures' request for summary judgment on the family's infringement and breach of contract claims. According to the judge, there are no substantial similarities entitled to copyright protection between the magazine article and the movie, in which Tom Cruise reprises his role as Navy pilot "Maverick" from the 1986 blockbuster.
(Source: Courthouse News, April 8, 2024)
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Heirs of Original ‘Top Gun’ Author Lose Copyright Lawsuit Against Paramount Over ‘Maverick’ Sequel
Barry Tubb, the actor who played Lieutenant Junior Grade Henry “Wolfman” Ruth in the original "Top Gun" movie, is suing Paramount Pictures over the unauthorized use of his likeness in the 2022 sequel "To Gun: Maverick." Tubb says in a complaint filed in Los Angeles federal court that Paramount knowingly featured his image in key scenes of the sequel without seeking his permission and without compensation.
(Source: Courthouse News, February 21, 2024)
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Whether you succeed or not is irrelevant, there is no such thing. Making your unknown known is the important thing.
—
Georgia O’Keeffe
