With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations don’t land them in legal hot water. One of the most prevalent cross-industry issues is music licensing. Music is everywhere in online content and often plays an integral part in the overall experience. From video game players streaming music as they show off their skills on the largest video platforms to fitness instructors using popular music to pump up their workout classes, individuals and companies must ensure that they don’t run afoul of the copyright laws when they incorporate music into their online content.

Copyright owners are granted an exclusive bundle of rights in relation to their copyrighted works, including the exclusive rights to reproduce, perform publicly, and distribute their copyrighted works.1 The copyright in music is broken down into two separate rights—one for the music’s composition (i.e., music and lyrics) and one for the actual sound recording (i.e., a fixed performance). Because of these dual rights, using copyrighted music may require two different licenses.

Whenever you release a video with a song that someone else wrote and composed, you need a synchronization (sync) license. For example, if you release a video of your band playing an Incubus song, you need a sync license to use the music and lyrics of that song, even if it’s a small portion of the song. You do not, however, need a sync license for songs that you wrote and composed yourself or songs in the public domain, so you’re free to use the song “Danny Boy” in your next YouTube video. But if you use a copyrighted sound recording in your video, you will need a sync license for the composition and a master use license for the original recording. Again, this applies even if you’re using a small portion of the original sound recording. Master use licenses are negotiated with a song’s owner—typically, a record label or the recording artist. Sync licenses and master use licenses are separate and distinct from public performance and personal entertainment licenses, which are not covered in this article. For a broader look at music licensing, please read this companion article. The following examples and best practices illustrate and address the challenges associated with using music in online content.

Continue Reading Legal Implications of Syncing Copyrighted Music with Other Content

Although many businesses providing services in the field of performing arts are not eligible for the qualified business income (QBI) deduction, some entertainment businesses that do not fall in this category have taken the position that they do qualify.  Recent indicators from the IRS, however, suggest that taxpayers claiming the QBI deduction may be subject to increased audit risk in the near future. Continue Reading Taxpayers Claiming QBI Deduction May Face Increased Audit Risk

The California Court of Appeal (the Court) has affirmed a trial court’s grant of preliminary injunction, enjoining HomeAdvisor’s use of allegedly misleading language in advertisements.  See People ex rel. Gascon v. HomeAdvisor, Inc., No. A154960 (Cal. Ct. App. June 5, 2020).

The lawsuit was brought by the People of the State of California (the People), acting by and through the San Francisco District Attorney.  Specifically, the People claimed that HomeAdvisor’s advertisements were “false and misleading because they are likely to deceive consumers into believing that all service professionals hired through HomeAdvisor who come into their homes have passed criminal background checks.  That is not the case.  The only person who undergoes a background check is the owner/principal of an independently-owned business.”  Id. at *1. Continue Reading Court of Appeal Affirms: No First Amendment Protection for Misleading Commercial Speech

Among the countless casualties of COVID-19, many much-anticipated events had to be canceled. Instead, some of the world’s largest entertainment industry events are becoming virtual experiences.

Comic Con, which boasts over 135,000 annual attendees, announced that its in-person convention will be replaced in 2020 by a virtual experience. Lollapalooza, an annual music festival in Chicago, will also be virtual this summer. Even the venerable Cannes Film Festival has moved online.

These virtual formats pose new legal challenges, however, including cybersecurity threats, consumer privacy policies, and music licensing. Continue Reading Virtual Events Raise Real World Legal Issues

A Texas Court of Appeals recently affirmed the dismissal of a case against Kirkstall Road Enterprises (Kirkstall), the production company behind the true-crime show The First 48, holding that Kirkstall could not be held liable for the shooting of a man who appeared as a witness on one of the show’s episodes.

The First 48 is a nationally-broadcasted show that features investigations of real homicide cases.  Each episode follows homicide detectives in the first 48 hours of their investigation and includes both reenactments of events surrounding the investigation as well as actual recordings of police interviews of different witnesses. Continue Reading First Amendment Protects True-Crime Show From Negligence Liability

An increasing number of celebrities and social media personalities are endorsing the use of cannabidiol (CBD) products through social media. Many of these “influencers,” however, fail to account for and comply with the complex regulatory environment surrounding CBD advertisements. In the United States, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) both limit the use of certain language in CBD endorsements. As these advertisements attempt to reach the broadest possible audience, violations by influencers are especially noticeable to regulators, who have stepped up their enforcement efforts in this area. Continue Reading CBD Advertisements: What Celebrity Influencers Need to Know

One of the key elements in the White Paper from the Industry-wide Labor-Management Safety Committee Task Force is the agreement among producers and unions to have an “autonomous” COVID-19 Compliance Officer for each production. The Compliance Officer will not be above-the-line talent, but will nonetheless play a starring role.

The White Paper defines the role of the Compliance Officer as an autonomous designee whose principal responsibilities will include overseeing and monitoring physical distancing, symptom monitoring and testing, disinfecting protocols, and PPE education, protocols, and adherence on set. Officers will be accessible at all times during work hours and will undergo specialized training on health and safety precautions, policies and procedures related to infection prevention, surface disinfection, and the use of PPE. Given the volume of federal, state, local, and now industry-specific pandemic safety laws and guidelines, coupled with the unique demands of Hollywood productions, the training is expected to be rigorous and time-consuming.  Continue Reading As the Entertainment Industry Gets Back to Business, COVID-19 Compliance Officers to Have a Starring Role

On April 13, 2020, a federal district court in the Southern District of New York[1] held in Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 180CV0790 (KMW) (Order), that an Instagram user who posted a photograph to a public account effectively gave Instagram the right to sublicense her photographs to a third party.  The Court held that the user therefore had no viable claim against the third party for copyright infringement.

The plaintiff user in this case was professional photographer Stephanie Sinclair (Plaintiff).  The co-defendant who licensed the photograph from Instagram was Mashable, Inc., a media and entertainment site (Mashable).  Plaintiff sued both Mashable and its parent company, Ziff Davis, LLC, for copyright infringement.

Continue Reading Instagram Users: Post at Your Own Risk. Your Public Content May Be Legally Sublicensed

On June 5, the California Department of Public Health (CDPH) released statewide guidance for music, film, and television production to restart.  This guidance is the latest development in the reopening of the entertainment industry in California as the state continues to advance through its roadmap for reopening, following the submission to Governor Newsom on June 3 of a white paper with recommendations on this topic from representatives of producers and the unions of the motion picture and television industries (White Paper).

In this new guidance, the CDPH recommends that music, TV, and film production resume no sooner than June 12 and abide by safety protocols agreed upon by labor and management, which may be further enhanced by county public health officers.  The CDPH also recommends that back-office staff and management adhere to the office workspace guidelines published by the CDPH and the California Department of Industrial Relations.

Continue Reading California Allows Production to Resume June 12, Subject to County Rules

On June 1, the Industry-Wide Labor-Management Safety Committee Task Force (Task Force), composed of representatives of producers and the unions of the motion picture and television industries, submitted to the governors of California and New York a white paper proposing guidelines for the resumption of motion picture, television, and streaming production (White Paper). The White Paper presents the consensus of the Task Force regarding the circumstances under which content production can safely resume, with an emphasis on regular testing, sanitation, physical distancing, and education and training. The White Paper also addresses unique production-specific concerns, such as preventing infections from equipment that is commonly shared and not feasibly disinfected (e.g., lighting / electrical cables and certain props, costumes, accessories, wigs, and other specialty items), and special guidelines for casts that include minors or animals. Continue Reading Industry Task Force Proposes Guidelines to Restart Production in California and New York