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

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

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

Recently, California Governor Gavin Newsom raised some eyebrows when he announced that state government officials anticipated publishing guidelines for the reopening of Hollywood production facilities by Memorial Day. The Governor’s announcement took many in the industry by surprise, given that producers and unions continue to wrestle with the legal obligations and operational complexities involved in safely reopening film and television productions with the ever-present threat of COVID-19. Faced with this monumental task and the fluid nature of the pandemic, most production houses do not anticipate any return to work before July 1. Regardless of the precise timing of Hollywood’s return to work, the various union collective bargaining agreements (Basic Agreements) are clear that producers and unions will share responsibility for ensuring a safe and healthy workplace for industry employees. Given the outsized roles that the Hollywood Guilds play in shaping industry employment policy, strategic labor relations will be key to the success or failure of producers’ reopening plans.
Continue Reading Back to Business: Hollywood Producers Navigate the Choppy Waters of Reopening Plans and Labor Relations

California employers beware. In Tilkey v. Allstate Insurance Co., No. D074459 (Cal. Ct. App. Apr. 21, 2020) (Order), California’s Fourth District Court of Appeal recently affirmed a judgment on a theory of self-published defamation. In doing so, it held that the plaintiff, a former life insurance salesman for Allstate, was justly awarded damages based on his compulsion to recite the allegedly false allegations Allstate made for terminating his employment to prospective employers.
Continue Reading California Court Affirms Self-published Defamation Judgment

A California federal court recently dismissed the majority of the counterclaims asserted by the Writers Guild of America (the Guild) against William Morris Endeavor Entertainment, Creative Artists Agency, and United Talent Agency (the Agencies) in a highly publicized suit over the Agencies’ right to receive “packaging” fees.

The case arose from the Guild’s decision last year to prohibit talent agents from earning packaging fees on film and television projects.  For decades, it was common practice for studios to pay talent agents “packaging” fees for acquiring and pooling talent (e.g., assembling writers, actors, and directors, as talent agencies have a substantial roster of such talent) for a given project.  These fees frequently consist of a combination of license fees paid by studios for a project and a percentage of the project’s gross receipts.  The Guild banned this practice last year, claiming that packaging fees create conflicts of interest between talent agents and the writers they represent.  In the Guild’s view, enabling talent agents to participate in the profits of a film or television project through packaging (1) lowers production budgets (thereby reducing writer compensation) and (2) lowers the agents’ incentive to increase their writer-clients’ compensation.  The Guild favors a commission-based system, where a talent agent takes a percentage of their clients’ earnings, which it believes better incentivizes talent agents to maximize their writer-clients’ compensation.  Following the Guild’s ban, the Agencies filed suit, alleging the packaging prohibition amounts to an illegal group boycott in violation of the Sherman Act.
Continue Reading Counterclaims on the Cutting-Room Floor: How a Central District Court Cut Down the Writers Guild’s Countersuit Against Hollywood’s Talent Agencies

On March 4, 2020, Arnold Schwarzenegger (through his company, Oak Productions, Inc.) filed a lawsuit in a California state court against ASAP Group, LLC (doing business as Promobot).  See Oak Prods., Inc. v. ASAP Grp., LLC, No. 20SMCV00347 (Mar. 4, 2020).  According to the complaint, Promobot manufactures customizable service robots that can be made to look like real people, and it has “made Schwarzenegger the unwilling ‘face’ of Promobot” by marketing a robot made in the former governor’s likeness[1] without his permission.

Specifically, Schwarzenegger’s complaint lists four causes of action, based on (1) California Civil Code section 3344; (2) common law right of publicity; (3) unjust enrichment; and (4) unfair business practices (i.e., likelihood of confusion regarding whether Schwarzenegger has endorsed Promobot).  And although the case is still in its infancy, it is worth noting that this is not the first time a celebrity has brought right of publicity claims against the use of a robot that resembles her or him.


Continue Reading Man vs. Machine: Schwarzenegger Files Right of Publicity Suit Against Robot Builder

As the U.S. braces for the coronavirus COVID-19 pandemic, companies across a broad range of industries are increasingly affected by the growing restrictions on travel and trade.  Practically speaking, concerns abound over issues like whether airlines will issue refunds for cancelled flights, or what happens to manufacturers who source materials from Asia.  Indeed, the entertainment industry is not immune either.  For instance, what if a production contract calls for filming in Hong Kong next week?  What if talent is unable to leave their home country for a concert tomorrow?  What if, heaven forbid, talent is under mandatory quarantine while recovering from the virus?  At times like these, the answers usually lie in the contracts, specifically in a powerful provision that is often underestimated because it is only invoked in the unlikeliest of scenarios: the force majeure clause.
Continue Reading Force Majeure Clauses under California Law in Light of the Coronavirus