Digital Media

When Social Media Finally Holds Feet to the Fire, Trump Fires Back: Undermining the Communications Decency Act’s Safe Harbor by Executive Order

By Joshua M. Greenberg

Like most other providers of interactive computer services, such as websites or mobile applications that allow their users to post or contribute their own content, Twitter through its Terms of Service and community guidelines has long prohibited its users from posting or communicating, among other things, defamatory, profane, infringing, obscene, unlawful, exploitive, harmful, racist, bigoted, hateful, or threatening content through its service. Yet for many years, Twitter has declined to deactivate or take any further action against President Trump’s account, despite tacitly acknowledging that his tirades might very well violate these prohibitions, on the basis that the blusterous Tweets were nevertheless newsworthy. Facebook’s Marc Zuckerberg has similarly stood by his company’s decision not to fact check politicians on the platform, expressing concerns over free speech and democratic values and being an “arbiter of truth.”

That was until last week. On Wednesday, citing its civic integrity policy, Twitter added a label advising viewers to “Get the facts about mail-in ballots” from a page of curated news articles hyperlinked below two of President Trump’s Tweets that had falsely claimed California was “sending ballots to millions of people, anyone living in the state no matter who they are or how they got there” to seemingly undermine voter confidence in mail-in voting when, in fact, ballots were only being sent to registered California voters. Then on Friday, Twitter limited the viewability of President Trump’s Tweet about protestors in Minneapolis that contained the racially inflammatory trope “when the shooting starts, the looting starts” by placing the Tweet behind a notice stating the Tweet violated Twitter’s rules against glorifying violence before allowing viewers to click through to see it. In neither case did Twitter remove or delete the Tweets.

On Thursday, President Trump channeled his ire towards Twitter and other social networking platforms (namely, Facebook, Instagram, and YouTube) who he believes are censoring speech, particularly conservative speech, into a highly controversial executive order. The purpose of the order was to undermine the immunity from civil liability found in Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230(c), which protects interactive computer service providers and their users from liability for certain types of content posted or transmitted by users through those services, websites, apps, etc. and any actions or harm resulting from that content so long as the service provider or user, as the case may be, does not exercise control over the content akin to that of the publisher or speaker. Specifically, the law says, a provider or user of an interactive computer service will not be “treated as the publisher or speaker of any information provided by another information content provider” or be liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected, or any action taken to enable or make available to information content providers or others the technical means to restrict access to [information provided by another information content provider].” Without this liability shield, operators of websites or mobile apps that contain user-generated content or facilitate communication between users will be open to civil liability for such causes of action as defamation, invasion of privacy, products liability and negligent design of the service, failing to screen users’ communications and protect them from one another, among others, for the content that they allow their millions of users to post, contribute, or transmit through their services, despite perhaps not having the resources—monetary, technological, personnel, legal, or otherwise—to police all user-generated content and communications flowing through their service.

The Executive Order on Preventing Online Censorship clarified the federal government’s interpretation of CDA Section 230 to say that “the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”  The executive order goes on to state that the safe harbor should not extend so far as to “provide liability protection for online platforms that—far from acting in ‘good faith’ to remove objectionable content—instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.” The executive order directs the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) to propose new administrative regulations to narrow the scope of immunity provided under the CDA’s safe harbor in a manner that would, among other things, draw greater scrutiny to the alleged misalignment between these companies’ stated policies and “good faith” enforcement and their algorithms for the content and users they promote or do not promote.  The administration framed this alleged discrepancy as a deceptive trade practice, again, harkening back to the notion that social media platforms disfavor conservative voices and viewpoints (despite a lack of evidence of such bias).

The executive order will surely be challenged in court and the long line of caselaw reinforcing the safe harbor in the interest of protecting freedom of expression on the Internet and service providers and their users from liability therefrom, as well as recent lawsuits alleging political bias by social media platforms, will likely render the executive order unenforceable. However, until then, the executive order has the force of law and the FCC and FTC will commence their rulemaking processes so, this policy shift is something every website or mobile app provider whose service contains user-generated content or communications—and the lawyers who represent them—should pay close attention to.

Proposed Guidelines for Resumption of Motion Picture, Television and Streaming Productions

By Amy Stein

Earlier this week, the Industry-Wide Labor-Management Safety Committee Task Force released proposed policies and guidelines for the recommencement of productions, known as the White Paper. As of June 1, the White Paper was submitted to New York Governor Andrew Cuomo and California Governor Gavin Newsom for review.

The Task Force, comprised of the Alliance of Motion Picture and Television Producers, major studios (e.g., Amazon Studios, Apple Studios, HBO, Netflix, Sony, Walt Disney, Warner Bros. Entertainment, Fox), and many guilds and unions (i.e., Director’s Guild of America, I.A.T.S.E. and its West-Coast Studio Local Unions and New York Local Unions, the International Brotherhood of Teamsters, the Basic Crafts Unions, and SAG-AFTRA), sought expert advice from the U.S. Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, health care professionals, and industry professionals who know the ins and outs of production working conditions.

The White Paper is meant to be fluid and will evolve over time in conjunction with governmental suggestions and requirements. As of now, the White Paper is intended to create the initial road map to a safe return to production, which provides guidelines with respect to, for example, “regular, periodic testing of cast and crew for Covid-19,” “universal symptom monitoring, including temperature screening,” providing disposable masks which will be replaced each day, social distancing, as well as suggestions for access to mental and physical health resources.

While the White Paper will directly affect the productions produced under the studio and network system, it also provides a framework for independent films to follow (which frame work will have to comply with governmental requirements and protocols in the jurisdiction of production, and will have to be approved by the applicable guild(s)/union(s) of the production).

It should be noted that the White Paper is a set of recommendations for government authorization to commence production and has yet to be commented on by any governmental authority or department. The White Paper can be found here.

Character Exclusivity in Rights Deals

By Simon N. Pulman

In this increasingly competitive media landscape, companies are seeking to create entertainment brands that can endure, serve as the basis for dozens of hours of content on the new generation of owned-and-operated premium platforms, and extend across various forms of media. However, transmedia deals are seldom straightforward, and may create issues that one is less likely to encounter when negotiating a relatively simple deal for a book-to-film adaptation.

One such issue is character exclusivity – the idea that when an entertainment property has multiple rightsholders, certain characters (or, in hyper-complex instances, certain characteristics of certain characters) are owned exclusively by only one rightsholder. The phenomenon of character exclusivity (and the schism in a property that it tends to create) tends to arise from one of three main deal-making circumstances, as follows:

Creator Sequels

Traditionally, a purchaser in a rights deal acquired only one “installment” of a property, such as a novel. In the event that the author of that novel decided to write a sequel, the film and television rights in that sequel would typically be “held back” for a period of time (usually between three and seven years), and the purchaser of the first book would have a first negotiation right and some kind of matching right to acquire the rights in the sequel.

That structure is fine when one is acquiring a discrete novel for which a sequel is a hypothetical future possibility, and which would be (if written) a direct continuation of the original story. It works less well when a property is conceived from the ground up as a series, an anthology, or a shared universe (more on that below). However, even this relatively simple traditional structure begs the question: what happens if the original purchaser does not acquire a sequel?

Most studios include some form of the below language in their option agreements with respect to the creator’s reserved sequel rights:

“If Purchaser does not acquire any Author-Written Sequel, then Owner’s right to dispose of any rights in such Author-Written Sequel shall not include the right to produce or cause the production of any audiovisual production which contains any of the characters or incidents contained in the original Property.”

In essence, this language provides that a creator can sell sequel rights to a third party (subject to the holdback and first negotiation/matching right), but not rights to any characters that appear in the original work. So, to illustrate, the author of Bridget Jones could sell the screen rights to the second Bridget Jones book, but would not be permitted to grant rights to the character Bridget Jones (feel free to replace “Bridget Jones” with “Harry Potter,” “Harry Bosch,” “Frodo” or any other character of your choosing).

Suffice to say, this creates instant character exclusivity and in many instances makes the development of a sequel by a new buyer unworkable.

On the subject of “creator sequels,” it is also worth mentioning that contractual standards that were very simple when formulated to address the acquisition of discrete works such as novels or plays may be much less elegant in the modern world. For example, it may be difficult to discern the line between the “original property” and a “sequel” when you have an ongoing comic book series with multiple spinoffs. How about a true crime podcast anthology that presents multiple “seasons” focused on different crimes, under one united brand? Or what about a video game where updates are presented via a series of continuous downloadable updates, as opposed to individual and clearly separate releases at brick-and-mortar retailers?

These are issues that we are thinking about and addressing on a daily basis and should evidence why it is important that rightsholders and purchasers alike engage experienced rights counsel!

“Studio Created” Elements

Another provision commonly found in rights purchase agreements reads substantially as follows:

“The Reserved Rights do not include, and Owner will have no right to exploit or use, any new or changed element created by or for Purchaser and/or any new characters, new characterizations and other new elements from any production produced by Purchaser.”

Think of this as the “Daryl Dixon” clause. When AMC optioned and developed “The Walking Dead” comic books for television, they created Daryl as a new character. Daryl promptly went on to become one of the most popular characters in the series.

Because of the clause above, the comic book writer and publisher were not permitted to use Daryl in the source material – or in connection with any other reserved rights (such as video games and merchandising based on the comic book, as opposed to the TV series).

Historically, there were good reasons for this clause. It does not make sense for the author to be unjustly enriched by the studio’s creativity and investment, and the inclusion of a new character back in the original source material could trigger additional guild or contractual obligations (in essence, putting the purchaser on the hook for exploitation that it doesn’t control).

However, we are finally moving towards a paradigm where characters move fluidly across media and different forms of exploitation – where new movies are promoted in Fortnite, and where Freddy Krueger, the Demogorgon, and Michael Myers can all appear as killers in Dead by Daylight. In gaming in particular, there may be a compelling reason for a game publisher to be able to use a character in their games who initially appeared in a television series. Moreover, the expectation of audiences is increasingly that there will be some level of coordination and consistency across media, and so it may be necessary to reexamine the necessity of this clause in very specific circumstances.

Shared Universes

The concept of character exclusivity becomes particularly complicated in the instance of a “shared universe” – a vast sprawling story world that may encompass dozens of separate narratives that could be tied together by relatively obscure or minimal narrative threads. Think Brandon Sanderson’s Cosmere or, of course, the Marvel Universe.

For a shared story universe, it is possible, or even likely, that different characters or story elements will be controlled by different rightsholders. This concept has become familiar to audiences due to the X-Men and Avengers living (up to now) in completely separate story universes – or via the high profile and very public negotiations that were necessary to bring Spider-Man to the Marvel Cinematic Universe. Absent special arrangement, characters are “stuck” in one universe and cannot “cross over” – even if they did so routinely in the source material. This may lead to audience confusion and frustration.

Of course, there are exceptions to every rule and in addition to the aforementioned Spider-Man example, two characters were “shared” by Fox and Disney pre-merger – Scarlet Witch and Quicksilver (who appeared in the X-Men franchise starting with Days of Future Past, and in the MCU starting with Avengers: The Age of Ultron (after a brief post-credits appearance in Winter Soldier). However, the two iterations of the characters were played by different actors and, there were purportedly very specific contractual stipulations on how they could be characterized in each universe.

While the concept of a “shared universe” applies mostly to superhero and fantasy worlds, there are still potential repercussions for creators in other genres. For example, an author who writes crossovers between two book series (as Michael Connolly has done with the Bosch and Lincoln Lawyer books), or includes an Easter egg type cameo in their romance novel with a character from another book may be inadvertently creating rights and contractual issues that must be carefully addressed (and may be potentially headache inducing). Of course, the most successful US author of all – Stephen King – does this routinely. But creators must be careful because it is unlikely that they have the leverage that King does over his intellectual property!

“The Good Lord Bird” Trailer Just Released

CDAS represented producer Blumhouse in its deal to acquire rights to the James McBride book, the deal with Ethan Hawke (who stars as abolitionist John Brown), and the deal with Showtime where the miniseries will premiere on August 9. Watch the trailer here.

Content in Quarantine: Copyright Best Practices During a Pandemic

By Scott J. Sholder

At a time when we are stuck at home, working or “working” (or, sadly for many, not working) the tenet that content is king has never been more relevant.  From Disney+ releasing “Frozen II” and “Onward” early to help placate restless youngsters, to DreamWorks releasing “Trolls World Tour” for “theatrical” in-house rental, to Instagram sensation DJ D Nice offering his “Club Quarantine” and “Homeschool” IG parties and Spotify playlists, there is something for everyone on one platform or another.  Musicians are even offering special live-streamed performances from their homes (thank you Dave Grohl, Billy Joe Armstrong, et al.).

While the Disney and DreamWorks releases were clearly authorized corporate decisions, the world of quarantine content becomes murkier when one turns their overly scrubbed fingers to the keyboard.  Of course, the lead singers of Foo Fighters and Green Day, respectively, likely have the rights to publicly perform music they wrote, and reports indicate that DJ D Nice made licensing deals to avoid copyright claims stemming from his streaming discotheques.  But in the further corners of social media, the always-gray field of copyright has spawned more than its usual fifty shades in the time of COVID-19.  So, what about musicians performing other artists’ songs?  Fitness instructors on Instagram Live with their playlists thumping in the background?  The Internet Archive[i] offering its own “Emergency Library” of digital copies of books (a decision decried by the Authors Guild and Association of American Publishers, but claimed to be fair use by archive.org)?  Or DJs who, unlike DJ D Nice, did not have permission to publicly perform or remix the music featured during that IG virtual dance party?

At least in the latter case, some DJs and performers streaming on Instagram Live have reported that they’ve had their streams cut short by copyright infringement claims over use of musical content without authorization.  Lesser-known and aspiring artists (who, like many, are out of work at this time) are having their online raves canceled mid-performance.  But at the same time, artists whose content is being used may also be out of work and may be incentivized, perhaps more than usual, to enforce their copyright rights and preserve their dwindling income streams.  This presents a sensitive nuance to an already delicate balance between online content usage and rights enforcement. 

There is no timelier example of COVID-era copyright enforcement than Richard Liebowitz, the infamous plaintiff’s lawyer behind more than 2,000 copyright infringement lawsuits filed by photographers over the last four years.  His business model – which he characterizes as fighting for photographers’ rights, and much of the digital media industry characterizes as “trolling” – has, like COVID-19, mutated to adapt to its new circumstances.  It was recently reported[ii] that, despite quarantine and widespread isolation (or perhaps because of it), Liebowitz’s filings have actually increased, with his firm filing 51 lawsuits between mid-March and early April (39% of all copyright infringement lawsuits filed since the World Health Organization declared a global pandemic).[iii]  Likewise, porn studio Strike 3 Holdings is also keeping busy during the pandemic, having filed a more modest 11 new lawsuits since mid-March.[iv]  The uptick in these types of cases is potentially correlated to the increased use of content during quarantine and the reduced number of opportunities for photographers and other content creators to earn a living.  So, what’s a pandemic hermit to do?

The short answer: the same thing you’d do in pre-COVID life.  Even in these strange times of social distancing and mandatory isolation, the same rules apply even when unauthorized content use is undertaken for seemingly laudable reasons such as alleviating boredom, distracting your kids, or entertaining your Instagram followers.  For better or for worse, there is no exception in the Copyright Act for what’s going on out there, so vigilance in defense as well as enforcement is paramount.  For instance, the test for fair use set out in section 107 of the Copyright Act of 1976 requires a lot more than benevolence in alleviating boredom or even supplementing one’s income during hard times to successfully fend off a claim of infringement.  One of the keys to establishing a viable fair use defense is “transformative use” – use of existing content that adds new expression, meaning, or message to the original underlying work.  Simply using the content as intended, even in an unprecedented environment, almost certainly will not be considered transformative.  As tempting as it may be to utilize others’ content for a seemingly good cause, good intentions do not a fair use make. 

Best practices for content usage remain largely unchanged.  The first-tier best solution is to use vetted licensed content (ideally pursuant to representations, warranties, and indemnification from the licensor) or seek permission, preferably in writing, directly from the copyright owner.  There are plenty of options out there for many types of content.  Licensing agencies like Getty Images, Shutterstock, Adobe, and Pond5 are stalwarts for visual content.  Many book and journal publishers are now offering resources[v] for newly minted home teachers.  Creative Commons licenses and use of public domain material are also viable options, particularly for photographic content, although may be less useful for things like popular music and are not always fool proof.  Music licensing is a unique beast that could fill an entire treatise, but suffice it to say that several licenses may be required depending on the nature of the use, including public performance licenses from performing rights organizations like ASCAP, BMI, SESAC, and Global Music Rights, “mechanical” licenses from music publishers and “master use” licenses from labels when content is downloadable, and synchronization licenses from publishers and record labels for music that is cued up with accompanying video content.  It’s certainly worth noting that some sites offer royalty-free and low-cost licensable music, such as Freeplay Music, Audioblocks, and Free Music Archive, without the added worry of the music licensing labyrinth.

Reliance on defenses like fair use should be a last resort, and in such cases, it is always wise to seek advice from an experienced copyright lawyer.  And, on the other side of the equation, if you believe your content is being used in a way that violates your copyright rights, platforms like YouTube and Instagram have DMCA takedown forms for removal of infringing content, but recent developments in the law require at least some consideration of whether the user has potential defenses (such as fair use) before submitting a takedown notice.

As we stay vigilant against the virus that is causing so much havoc worldwide, we must also make sure that we stay within the bounds of the law and mitigate our legal risks as we mitigate our health risks.  While troubled times such as these call for cooperation, collaboration, forgiveness, and flexibility, absent content owners and users working together to reach mutually beneficial arms-length deals, or the creation of a collective effort to allow free use of IP like that of Open COVID Pledge[vi] for health-based patents and technology, the rules remain as they were even if the world outside doesn’t.   

This article appeared in the May 1st issues of LAW360 Intellectual Property, LAW360 Media & Entertainment, and LAW360 Coronavirus.


[i] “Announcing a National Emergency Library to Provide Digitized Books to Students and the Public,” Internet Archive Blogs (Mar. 24, 2020), https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/

[ii] Bill Donahue, “During Pandemic, Prolific Copyright Lawyer Keeps Suing,” Law360 (Mar. 27, 2020), https://www.law360.com/ip/articles/1257593/during-pandemic-prolific-copyright-lawyer-keeps-suing?nl_pk=db11a53e-b04f-44a7-96e1-76824544133d&utm_source=newsletter&utm_medium=email&utm_campaign=ip

[iii] See id.

[iv] See id.

[v] “What Publishers Are Doing to Help During the Coronavirus Pandemic,” Association of American Publishers, https://publishers.org/aap-news/covid-19-response/

[vi] Open Covid Pledge (Apr. 7, 2020), https://opencovidpledge.org/

Three Tips for Broadway Producers Recording their Shows for Streaming Platforms

By Frederick Bimbler and Marc Hershberg

Broadway producers interested in recording musicals for streaming platforms should pay attention to a new lawsuit.

The complaint was filed by Chapman Roberts, a Broadway music arranger, and alleges that a team of Broadway producers entered into an agreement with the plaintiff in 1994 to make original vocal arrangements of some famous songs from Jerry Leiber and Mike Stoller for their musical revue, Smokey Joe’s Café. According to the complaint, the contract stated that Roberts’ arrangements in the show could not be performed, transcribed, recreated, copied, published, or recorded without his permission.

But, according to the complaint, in 1999, Broadway Television Network recorded a couple of performances of the Tony Award-nominated show without Roberts’ permission.

“When Roberts learned of this, he contacted BTN, and BTN then asked retroactively for permission to commercially distribute the recording of the [m]usical to the public,” his lawyers claim. But, it is alleged that no agreement was ever reached, and Broadway Television Network broadcast the recording as several pay-per-view events and then licensed it for distribution through BroadwayHD, a video on-demand service for musicals and plays.

More recent digital streaming licenses of the recording purportedly have occurred, and in October, Roberts sued Broadway Television Network, BroadwayHD, and several other related parties in federal court, alleging direct and contributory copyright infringement and the intentional and knowing distribution of false Copyright Management Information.         

The merits of this lawsuit aside, which the court will decide in due course, Broadway producers should bear in mind the following three lessons from the allegations in the lawsuit.

1.     When creating an audiovisual recording of a theatrical production, Broadway producers should be certain to obtain all of the necessary rights. Experienced entertainment attorneys can help producers determine which rights are necessary and who owns them – and then negotiate the deals for those rights.

2.     The rights to various protectible elements required to perform a work on stage do not necessarily include the right to create and exploit an audiovisual recording of the same work on stage. While some contracts might include provisions that address audiovisual productions, for many elements of a theatrical production, it is likely that the audiovisual rights will need to be granted in a separate license agreement.

3.     If Broadway producers cannot successfully obtain all of the necessary rights for an audiovisual recording of a theatrical production, then they should not proceed with distributing the recording. Missing some of the necessary rights will frustrate deals with distributors who do their homework, and the recording might result in a lawsuit, like this lawsuit involving Smokey Joe’s Café.

The case is Chapman Roberts v. BroadwayHD LLC et al., Index No.: 1:19-cv-9200 (S.D.N.Y. Oct. 4, 2010).

YouTube Launches Stick Figure’s “Stay Home With: Yungblud”

“Stay Home With: Yungblud,” a weekly series featuring the U.K. recording artist and his band as they create music while in quarantine, premiered this week as part of YouTube’s “Stay Home #With Me” campaign. Amy Stein represented producer Stick Figure Entertainment in the license agreement with YouTube and agreements with Yungblud and his label, Interscope. Viewers are encouraged to donate to No Kid Hungry.

“A Secret Love,” from CDAS client Blumhouse, Rated 100% on Rotten Tomatoes

Blumhouse’s bittersweet documentary “A Secret Love” premiered today on Netflix to rave reviews. Simon Pulman represented Blumhouse in its deal with the filmmakers, Briana Hill was involved in the film’s financing, and Calvin Mohammadi and Simon represented Blumhouse in its deal with Netflix. Watch the trailer here.

CDAS IP Group and Partner Nancy Wolff Recognized in Chambers USA 2020


The highly regarded “Guide to the Top Lawyers and Law Firms” described CDAS as a “highly skilled boutique offering excellent capabilities handling trademark and copyright infringement cases, as well as substantial portfolio management matters. [CDAS] exhibits expertise acting for market-leading entertainment, media and digital platform clients.” In addition to recognizing the firm for Intellectual Property: Trademark, Copyright & Trade Secrets (New York), Nancy Wolff was also recognized as “a leading attorney in IP issues relating to digital media, counseling clients in a broad range of matters including disputes and licensing.”


“Wendy” Now Available on Most Digital and MPVD Providers

This beautiful reimagining of J. M. Barrie’s beloved characters, produced by Andrea Cannistraci’s client Paul Mezey and for which Andrea provided production legal services, is widely available as of today. Watch the trailer here.

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