Entertainment

PARTNER SIMON N. PULMAN FEATURED IN VARIETY’S “2018 DEALMAKERS ELITE NEW YORK”

Cowan, DeBaets, Abrahams and Sheppard LLP (CDAS) partner Simon N. Pulman is included in Variety’s “2018 Dealmakers Elite New York” feature.

“Dealmakers Elite New York” profiles the people behind the major entertainment industry deals of the past 12 months – executives, lawyers, financiers, entrepreneurs and others from all sectors of the business, including film, TV, games, live theater, music and digital media.

Simon is recognized for his work representing TV/film companies and TV channels on content, including working outside business/legal affairs for Epix. Also noted was his work with Blumhouse for TV productions of the Roger Ailes biopic and adaptation of movie series “The Purge.”

To read more and view the complete list, click here.

Recent Developments in IATSE, SAG-AFTRA, and WGA.

IATSE, SAG-AFTRA, and WGA have all been in the news this summer with respect to subscription video on demand (“SVOD”) and ad-supported video on demand (“AVOD”) platforms and the impact the continued growth of those platforms continues to have on the entertainment industry.

2018 IATSE Agreement and the Editors Guild.

IATSE leadership reached a tentative deal with the studios and networks in July to replace the prior agreement that expired on July 31, 2018. While the agreement is expected to be ratified in September by the bulk of IATSE members, the Editors Guild (Local 700) has rejected the agreement in large part.  Editors Guild members and leadership don’t think that the new agreement sufficiently addresses residuals concerns (as well as other health and safety issues such as sufficient turnaround time), claiming that residuals revenue (which fund the pension and health fund) from traditional avenues of distribution such as DVD sales has greatly decreased in recent years, but the corresponding growth of SVOD content (and revenue) has not been reflected in the IATSE agreement. However, leadership of the twelve other locals that make up IATSE think that the new agreement addresses this concern adequately and are actively encouraging their members to ratify the agreement.

IATSE Reaches Deal on New Three-Year Contract With Studios, Networks

Editors Guild’s Board Votes Unanimously To Urge Members To Reject New IATSE Film & TV Contract

Hollywood Editors Break with Parent Union IATSE Over New Studio Contract

The Potential Strike No One Wants to Talk About: Streaming and the Future of Hollywood’s Union Crews

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Scott J. Sholder Named a 2018 Law360 Rising Star for Media and Entertainment

Cowan DeBaets, Abrahams and Sheppard LLP attorney Scott J. Sholder has been named a Law360 Rising Star. A Partner at the firm, Mr. Sholder is among one of 168 attorneys included in the full list and one of only 4 attorneys recognized for their dedicated work in the practice area of Media and Entertainment.

Law360’s “Rising Stars” recognition is reserved for top legal talent under 40 years of age and “whose legal accomplishments transcend their age.”  After carefully reviewing more than 1,200 submissions for the Rising Star distinction, Law360’s team of editors arrived at the list of attorneys under 40 hailing from 80 law firms and spanning 36 practice areas.

To review the complete list, click here.  Profiles of the winners will begin running this week on Law360.

 

 

Five Important Negotiation Principles For Consideration

Don’t Negotiate Your Own Deals. In an ideal world, you would never negotiate your own deals. The first reason for this is obvious – if you’re a creative or an executive, you have to operate in multiple different capacities and wear a lot of different hats. An experienced professional negotiator – whether lawyer or agent – who spends all day, every day negotiating is likely to be more skilled and have more insight into the marketplace than you. The second reason is perhaps less obvious to laypeople, which is the benefit of detachment and plausible deniability. Even if you are a master negotiator, there is always a benefit to having someone else negotiate in your place. You can instruct them to take certain actions with less risk of jeopardizing your personal, creative or business relationships with the other side. You can use them to test the waters with the other side. And, if needs be, you can detach yourself from (or even politely disown) their responses if there is a negative reaction. Your representative is there to help facilitate the deal and relations with the other side – but on occasion you may wish to use them as the “bad guy,” and you should not be afraid to do so.

Don’t Make Gives To Try to Accelerate Deals. Inexperienced negotiators often try to accelerate the pace of a deal by readily agreeing to terms and surrendering positions. While there are exceptions, this strategy generally does not yield positive results. An experienced negotiator will often respond to attempts to push a deal through by slowing the deal down and thus seeking to increase the desperation of the other side to close. If an initial proposal or response has been met with an accommodating response from a party visibly keen to close, an experienced negotiator may respond by making more asks. In the entertainment business at least, absent a very compelling reason to close (e.g., principal photography needs to start, a financing needs to close, or a producer is about to lose an actor) most deals take a certain amount of time irrespective of their complexity or the efforts of one side to be efficient.   Continue reading

Lundin v. Discovery Communications: Even in Reality TV Context, Parties Can’t Contract Away Liability Based on Intentional Harms

The U.S. District Court for the District of Arizona in Lundin v. Discovery Communications ruled that a defamation suit brought by a reality television star against the network and producers of a reality show was not barred simply by virtue of an exculpatory “Assumption of Risk” provision containing a waiver of all claims.  Significantly, the ruling stands for the proposition that there is no special exception for reality television or documentary programming which would bar intentional tort lawsuits.  This decision could have potentially significant implications in the reality television sector, as many reality stars may now have recourse for the oft-cited “bad edit.”

The agreement at issue was entered into by Cody Lundin – an internationally recognized professional survival instructor, best-selling author, and survival and sustainability consultant for national and international news outlets – in connection with his appearance on Discovery Channel’s “Dual Survival.”  Lundin served as the show’s on-camera host, wilderness survival expert, and consultant.  The show features a pair of survival experts in predetermined scenarios set in challenging environments.  For instance, Lundin and his co-hosts have been marooned on an island, lost in a jungle, and stranded in the desert, all with minimal survival gear. Continue reading

Assembly Bill 168’s Impact on Hollywood

As of January 1, 2018, Assembly Bill 168, a new California law prohibiting employers (including movie and television studios) from asking potential employees for their salary history, went into effect. The new law prohibits the following: (1) Relying on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant; (2) Asking (orally or in writing) an applicant for employment about his/her salary history, including compensation and benefits; (3) Refusing to provide, upon reasonable request, an applicant with the pay scale for a position; and (4) Contacting an applicant’s prior employer(s) for the information covered by (1), (2), and (3). However, the law does not prohibit the applicant from “voluntarily and without prompting” disclosing this information but, does prohibit agents from disclosing the information without express permission from their client. “This represents a pretty fundamental change in how negotiation has traditionally transpired in the entertainment industry,” says corporate attorney Bob Darwell, who represents companies like Amazon Studios. “The first step to cutting a deal was to call the talent representative and ask for quotes and then to verify those quotes.”[1]

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Chambers USA 2018 Ranks Partners Lackman and Wolff as Top IP Attorneys; Recognizes Two Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) Practice Groups

Cowan, DeBaets, Abrahams & Sheppard LLP is delighted to announce that partners Eleanor M. Lackman and Nancy E. Wolff and both CDAS’s Entertainment and IP, Copyright and Litigation Practices have been recognized by Chambers and Partners in the Chambers USA 2018: America’s Leading Lawyers for Business guide.

Eleanor M. Lackman

Nancy E. Wolff

This is the fifth consecutive year Ms. Lackman and the second consecutive year Ms. Wolff have been ranked in the Chambers USA guide. They are both among just 41 New York lawyers ranked in the field of “Intellectual Property: Trademark, Copyright & Trade Secrets – New York.”

“Impressed sources” told Chambers that Ms. Lackman is “an absolutely incredible trademark litigator” and added: “She is very practical and always seems to make the right call.” She also has notable experience handling copyright matters, often advising clients across the media and entertainment industries.

Chambers describes Ms. Wolff as “very well-known and well-respected.” She receives plaudits for her expertise in a range of complex copyright matters and is highlighted for her particular skill across the photography and visual art industry.

CDAS’s Entertainment Practice was awarded a regional designation of “Noted Firm” in “Media & Entertainment: Film, Music, Television & Theater – New York” for the third consecutive year, while the Firm’s IP, Copyright and Litigation Practice received a  “Noted Firm” designation in “Intellectual Property: Trademark, Copyright & Trade Secrets – New York” for the second consecutive year.

The annual guide ranks law firms and lawyers based on in-depth interviews with clients and lawyers, technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.

Examine How the #MeToo and #TimesUp Movements are Impacting Entertainment Contracts

As the #MeToo and #TimesUp movements and their effects continue to unfurl, Hollywood is utilizing legal mechanisms via entertainment contracts to implement and supplement the changing norms, from “morals provisions” to “inclusion riders.”

What are commonly referred to as “morals provisions” have a long history in the entertainment industry, but in recent years, have been more commonly found in endorsement and advertising deals than in television and film agreements. Studios and production companies that had stopped using such provisions have started putting in place plans to reimplement them, while those that had been using them all along are revising them to conform to the new landscape.  Even distributors who never used morals provisions are starting to include them in their contracts, lest one of their projects ends up with some unexpected negative baggage.  Regardless, all of these industry players are looking for ways to tailor their contractual language to better address the valid business concerns related to fallout from the #MeToo movement.  Although talent attorneys are generally not pleased at the resurgence of these provisions, it appears unlikely at this time that the provisions will go away entirely; indeed, in some cases talent representatives think that there should be reciprocal provisions benefitting talent if there is another Weinstein-like situation with a studio or distributor. Continue reading

The de Havilland v. FX Networks, LLC Appeal: Round 2 Goes to FX

On Monday a California appeals court handed down a decision in the closely watched case of de Havilland v. FX Networks, LLC et al., triggering a collective sigh of relief from studios, networks, and other content producers. The court’s decision reaffirms two widely recognized principles: (1) that the First Amendment’s protection of creative works is not limited by the mere fact that a work generates income, and (2) that an individual cannot censor the way in which she is depicted in a creative work merely because she does not like that depiction.

These principles, as applied to the entertainment industry, have been challenged in recent years with a wave of cases such as de Havilland.  For instance, a case in New York, Porco v. Lifetime Entertainment Services, LLC, was allowed to proceed after an appellate court held that the newsworthiness exception to New York’s statutory right of publicity did not apply to a docudrama that substantially fictionalized the life story of a real person.  The court stated that such a work was “mainly a product of the imagination” and thus “nothing more than [an] attempt[] to trade on the persona of the plaintiff.” Continue reading

Cowan, DeBaets, Abrahams & Sheppard LLP is Pleased to Announce that Simon N. Pulman has Become a Partner of the Firm

CDAS LLP is pleased to announce that Simon N. Pulman has become a partner of the firm.

An emerging young leader in the entertainment industry, Simon is a transactional attorney primarily counseling clients in entertainment and media law matters, focusing on television, film, and interactive entertainment transactions, including representing digital influencers and esports teams. Simon also acts as outside business affairs for a number of high level television studios and production companies, negotiating all forms of development, production, financing and licensing deals.

He has significant experience in structuring and negotiating digital distribution agreements and other cutting-edge transactions at the convergence of traditional media and emerging technology platforms, with a special interest in digital video, streaming platforms and SVOD.

Variety included Simon in its 2017 Legal Impact Report “Up Next” list and since 2015, he has been recognized in Super Lawyers magazine as a New York Metro “Rising Star” in the field of entertainment and sports.

Simon frequently writes about entertainment and digital content related matters, and has been published in multiple industry publications. Industry events where he has participated as a speaker include Digital Hollywood NY and LA, Media Summit, DOC NYC, Made in NY Media Center, Social Media Club, Biz-eSports Summit. In March, Simon will lead a mentor session at the 2018 SXSW Film Festival.

Simon is a graduate of Duke University and Vanderbilt University Law School.

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