Venable is pleased to announce that Hemanshu (Hemu) Nigam has joined the firm as a partner in the eCommerce, Privacy, and Cybersecurity Practice in its Los Angeles office. Mr. Nigam has nearly 25 years of experience in solving online security, privacy, and safety challenges facing celebrities, pro athletes, high-net-worth individuals, corporations, and start-ups, as well as government and law enforcement. He has extensive experience conducting end-to-end cyber assessments and protection and often provides counsel on cutting-edge online privacy and security issues. Mr. Nigam seeks justice for entertainment and sports professionals who are cyberstalked, hacked, or harassed, or who have fallen victim to other forms of online attacks.
Join Us on July 14 for a Discussion on Entertainment and Media Liability Claims
There is more demand for content than ever, and media and entertainment companies face a wide variety of challenges that come along with the increase in production and distribution of content. In-house and outside counsel for media and entertainment companies need a working knowledge of how to deal with insurance issues that arise in their business, including the types of insurance policies that may cover the legal risks they face, and how to navigate the issues that arise when dealing with insurers, such as selection of counsel, allocation between covered and uncovered claims, and who controls the settlement of a claim.
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An Advertiser’s Guide to Section 230 of the Communications Decency Act
This article was previously published on Venable’s All About Advertising Law blog.
Background
Advertisers, e-commerce websites, affiliate networks, and publishers each play a large role in the development of the Internet. One reason they have been able to do so is Section 230 of the Communications Decency Act of 1996 (CDA), which immunizes online interactive services from liability arising from third-party content on their platforms. The CDA does so in twenty-six words:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Through this immunity, the CDA allows online services to host the speech of others, without assuming responsibility for what those users may say or do. No one disputes the premise that Section 230 fosters free expression and the creation of vibrant marketplaces for advertisers and merchants to efficiently and effectively reach consumers. Recently, however, confusion and controversy have arisen as to exactly who and what Section 230 does and does not protect, leading to divisions among court decisions and to calls for legislative “overhaul.” A quick review for merchants, advertisers, agencies, and affiliate networks seems desirable.
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Affordable Care Act Remains Intact – No Refunds to Taxpayers
The latest challenge to the Affordable Care Act (ACA) has been unsuccessful. On June 17, 2021, the Supreme Court issued a 7-2 decision in California v. Texas, 593 U.S. ____ (2021), dismissing the case for the plaintiffs’ lack of standing to sue. California v. Texas challenged the constitutionality of the ACA, but the Court did not rule on this issue and, instead, dismissed the case on procedural grounds. Last year, some taxpayers filed protective claims with the IRS to preserve their right to a refund for 2016 (for statute of limitations purposes) in the event that California v. Texas led to the ACA being struck down; in the entertainment industry, many business managers and accountants filed such protective claims on behalf of their clients. The Court’s ruling means that there will be no refunds with respect to such protective claims.
For our previous article discussing the filing of protective claims with respect to California v. Texas, see here.
Venable continues to monitor the latest developments in the law and stands ready to advise. To learn more about Venable’s Tax practice, click here.
Shane Nix and Sam Djahanbani Publish “Taxing Termination Rights” in Los Angeles Lawyer, Featured on the Cover of the 37th Annual Entertainment Law Issue
On May 10, 2021, Shane Nix and Sam Djahanbani published “Taxing Termination Rights” in Los Angeles Lawyer and were featured on the cover of the magazine’s 37th annual Entertainment Law Issue.
The following is an excerpt from the article:
As the music touring industry faced an almost overnight collapse with the pandemic entirely shutting down touring in 2020, music streaming revenues surged by more than $1 billion as fans streamed more music while under quarantine. Ultimately, however, global music revenue declined by 25% as a whole. And with musicians losing two-thirds of their income in 2020, music artists may continue to pursue alternative monetization, including in the form of catalogue sales. Meanwhile, as older generations increase music consumption through streaming platforms, the demand for older catalogues has dramatically increased. These factors, among others, may partially contribute to the increase in catalogue sales at massive multiples. It is conceivable that some musicians may exercise their copyright termination rights in order to renegotiate their original deals under current favorable market conditions.
Click here to access the article.
Second Circuit Finds Andy Warhol’s Use of Prince Photograph Not Fair Use
In a case involving Andy Warhol’s works known as the “Prince Series,” the U.S. Court of Appeals for the Second Circuit reined in the fair-use defense for visual art that is based on copyrighted photos. The works consist of fourteen silkscreen prints and two pencil illustrations based on an unpublished photo of musical artist Prince taken by professional photographer Lynn Goldsmith. In its ruling, the Court clarified that a secondary work must convey a “‘new meaning or message’ entirely separate from its source material” when it does not “comment on or relate back to” the copyrighted material. Using that clarification in its fair-use analysis, the panel found that Warhol’s Prince Series was not fair use. The panel also found that the Prince Series works are substantially similar to Goldsmith’s original photograph.
In 1981, Goldsmith took twenty-three photos of Prince, held a copyright in each of those photos, and licensed one to Vanity Fair as an “artist reference.” Vanity Fair then commissioned Andy Warhol to use that unpublished photo to create an illustration for an article about Prince. But Warhol didn’t stop there. Without Goldsmith’s permission, Warhol used the photo to make fifteen more works, creating the Prince Series.
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Celebrity Estates Features Alex Weingarten on the Tumultuous Estate of Aretha Franklin
On April 12, 2021, Alex Weingarten was featured on WealthManagement.com’s podcast, Celebrity Estates: Wills of the Rich and Famous, where he discussed the tumultuous estate of R&B singer Aretha Franklin and the need for good communication when developing an estate plan.
According to the podcast, it was believed at the time of her passing that Franklin left no will, therefore leaving her estate to be divided equally among her children. Since then, new developments have surfaced. Four separate wills were found in Franklin’s home, three handwritten and one typed but not signed, leading to a litigious estate battle.
Michele Mulrooney, Alex Weingarten, Paul Bernstein, and Lee Brenner Recognized in Variety’s 2021 Legal Impact Report
On April 8, 2021, Variety released its annual Legal Impact Report, featuring the top in-house attorneys, litigators, and transactional attorneys in the entertainment industry. Venable partner and chair of the firm’s West Coast Tax and Wealth Planning Practice Michele Mulrooney made her eighth consecutive appearance in the report. She was joined by partner Alex Weingarten, included for the fifth consecutive year, as well as partner and vice chair of the Entertainment and Media Group Paul Bernstein, and partner and chair of the Entertainment and Media Litigation Group Lee Brenner.
Tax Deadline Extended? Not so Fast.
Taxpayers who owe quarterly estimated taxes must make such payments by April 15,2021, notwithstanding the extended filing deadline this year. On March 17, 2021, the IRS announced a one-month extension of the tax filing deadline for individuals from April 15 to May 17 of this year. The rationale, per IRS Commissioner Chuck Rettig, was that the IRS wanted to “continue to do everything possible to help taxpayers navigate the unusual circumstances related to the pandemic, while also working on important tax administration responsibilities.” The IRS followed this announcement with Notice 2021-21, which confirmed the May 17 filing deadline and extended it to certain other filings.
In its March 17 announcement, the IRS admonished taxpayers that the deadline for estimated tax payments remained April 15. On April 8, 2021, the IRS reaffirmed its position and issued a bulletin reminding taxpayers that estimated tax payments are still due by April 15. Accordingly, accountants and business managers with clients that are expected to owe estimated taxes this quarter are urged to make such payments as soon as possible.
To learn more about Venable’s Business Transactions Tax practice, click here.
NFTs: From Rocket Ship to Main Street?
Hollywood is abuzz about NFTs—nonfungible tokens—the digital assets that are being sold at eye-popping prices by celebrities, athletes, and artists as limited-edition collectibles on blockchain marketplaces.
Prices are being driven by a relatively small group of buyers who made fortunes by getting in early on Bitcoin and other cryptocurrencies. But as the supply of NFTs increases exponentially over the coming months, it is almost universally expected that prices for new NFTs will sputter. The NFT rocket ship has flown to great heights, but like everything that goes up, it must eventually come down. The question is: When and where will it land?