Photo of Paul S. Bernstein

On January 28, 2020, Paul Bernstein and Carly Trainor published “Inspiration to Infringement: Copyright Issues in Scripted Entertainment Inspired by Song Lyrics” in Music Connection Magazine. The following is an excerpt:

MGM Television is developing Scenes from an Italian Restaurant, a television series based on the lyrics of Billy Joel’s hits. This is the

Individuals in the entertainment industry have started coming forward to reveal harassment they have faced throughout their careers. In response to these revelations, filmmakers and showrunners have started depicting such harassment on screen. For example, the web television series The Morning Show explores the backlash that a network faces after a popular anchor on its news and morning talk show program is involved in a sexual misconduct scandal. While fictional, The Morning Show mirrors real-life occurrences. To tell such stories as accurately as possible, filmmakers and showrunners continue to seek firsthand accounts from the individuals involved in these real-life scandals. The problem: many of these individuals signed non-disclosure agreements (NDAs) as part of a settlement.

Non-Disclosure Agreements

NDAs are descriptively named—an NDA is an agreement not to disclose certain information. In the settlement context, one party usually pays the other to stay silent, and many NDAs include a “liquidated damages” provision, which sets monetary consequences of improper disclosure of the applicable information. Despite having signed NDAs, many of the individuals who choose to share their stories do so knowing their disclosures could subject them to significant financial costs.


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The NCAA has traditionally restricted college athletes from accepting any endorsements or compensation related to their participation in college sports. But less than a month after California enacted the Fair Pay to Play Act, which will prohibit the NCAA from preventing college athletes in the state from profiting off their commercial identities starting in 2023, the NCAA’s board voted unanimously to allow students across the country to benefit from the use of their “names, images, or likenesses.”

Name, Image, and Likeness

The right to profit from the commercial use of one’s name, image, and likeness, referred to as the right of publicity, prevents others from exploiting one’s identity without consent. Arguably, the NCAA’s previous policies interfered with athletes’ rights of publicity—while the NCAA and its member schools profited from college athletes’ names, images, and likenesses, the athletes received no compensation.


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The New England Patriots recently released star receiver Antonio Brown following allegations of past misconduct, which Brown denies. Setting aside instances in which such clauses are prohibited by unions, Brown’s termination highlights two issues that should be carefully considered when drafting any morals clause – what constitutes a morals violation and timing.

How Bad Is Bad?

Assuming no prohibitions from relevant guilds, sports teams, studios, advertisers, and other employers may negotiate with talent over what conduct qualifies as grounds for termination on morals grounds. Some behaviors, such as sexual assault, criminal fraud, or acts of violence, are so clearly over the line that they are generally non-negotiable and always included. Defining exactly what additional conduct counts as “bad behavior” for this purpose is often highly contentious, however, and can involve many categories of behavior, with qualifiers relating to, among other things, actual damage to the employer. For instance, both parties can agree that an employee may be terminated for cause based on “bad behavior,” as defined in the contract. But what happens when the company/studio/employer seeks to terminate a relationship on morals grounds, but the talent disputes the truth of the allegations? To avoid uncertainty, the parties may wish to define what level of investigation or proof is required before a morals termination is triggered.


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