Entertainment

#BlackTikTokStrike: How TikTok Dance Creators Can Begin to Protect Their Choreographic Works

By Kamilah Moore

The hashtag “BlackTikTokStrike” has been viewed more than six million times on TikTok, a free video-sharing-focused social networking service. TikTok has created superstars like Addison Rae and Charli D’Amelio, but these stars have mostly been white women and girls, and they have often gained notoriety and received millions of views by parroting dance routines primarily created by Black creators and other creators of color.

In March, TikTok star turned media personality Addison Rae made an appearance on The Tonight Show Starring Jimmy Fallon teaching the late-night host eight of the most trending or popular dances on the social media platform. Fallon and Rae subsequently received major backlash for initially failing to credit the originators of each of the eight dances.

Jalaiah Harmon, the creator of the “Renegade” dance, Keara Wilson, creator of the dance to Megan Thee Stallion’s “Savage Remix”, and Dorian Scott, creator of the “Corvette Corvette” dance, are just a few Black creators who did not initially receive credit for their viral dance routines. The mishap on The Tonight Show serves as just one of many examples where Black creators and other creators of color have not received proper attribution in the marketplace for their creativity.

Noticing this trend, a growing number of Black TikTok users, rather than choreographing and posting viral-worthy dance routines, are instead posting videos bringing awareness to the strike. Dancer Erick Louis, one of the first to announce the boycott, stated in his post: “This app would be nothing without [Black] people.”

Against the backdrop of the strike, what can Black creators and other creators of color do to protect their choreographic works, protect their rights, and monetize their creativity? Part of the answer may lie in gaining a solid understanding of United States copyright law and an understanding of its importance and relevance to digital media and the culture of platforms like TikTok.

How TikTok Dance Routines and U.S. Copyright Law Intersect

If a TikTok user creates a viral-worthy dance routine to one of the most popular songs in the country, and then proceeds to post a tutorial video on TikTok, what are the creator’s rights and how can she/they/he protect them? It is important to first address: what is a copyright?  

A copyright is defined as a form of intellectual property that protects original works of authorship as soon as the author fixes the work in a tangible medium of expression. Further, section 102(a)(4) of the U.S. Copyright Act of 1976 provides for copyright protection in “…choreographic works.”

In other words, a dance routine can become copyrightable. For example, an original dance routine is considered an “original work of authorship”, and it becomes copyrightable once the creator posts or ‘fixes’ the dance routine on a platform or “tangible medium of expression”, like in the form of a TikTok video.

Once a creator posts their dance routine on TikTok (or on any other platform), they are the author and the owner of such work, and therefore, are immediately afforded exclusive rights under U.S. copyright law. Some of these rights include, but are not limited to:

  • Performing and displaying the dance routine publicly. 
  • Preparing derivative works (other creative works based on the dance routine).
  • Authorizing others to exercise these exclusive rights, subject to certain statutory limitations.

Although the creator is afforded the above-mentioned rights immediately upon posting their dance tutorial on social media, registering the actual dance routine with the U.S. Copyright Office will enhance the creator’s protections. Thus, while copyright registration is not required, it does provide creators with enhanced rights and benefits. Some of these enhanced rights and benefits include: 

  • Presumption of ownership of the dance routine.
  • Public record of ownership of the dance routine. 
  • Ability to enforce copyrights by filing a federal lawsuit for copyright infringement of the dance routine. 
  • Eligibility for statutory damages (monetary damages set by the law that do not have to be specifically proved), attorney fees, and costs of suit.

In summary, copyright is less about attribution and credit and more about monetary incentives and being compensated for your work while fostering creativity. Black TikTok creators and other creators of color may seek legal protection by immediately registering their choreographic works with the U.S. Copyright Office. One caveat: the U.S. Supreme Court ruled in Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S. Ct. 881 (2019) that copyright owners must wait for the U.S. Copyright Office to approve their application before filing a lawsuit for infringement.

Critical Takeaways for TikTok and Other Dance Content Creators: 

  • Continue cultivating and building your choreographic skills!
  • Consult with an attorney for advice on whether your choreographic work(s) qualify for copyright protection.
  • If so, consult with an attorney to register your choreographic work(s) with the U.S. Copyright Office.  
  • Consider forming a company such as an LLC to treat your hard work like a business – and get paid!

Disclaimer: The materials available on this website are for informational purposes only and not to provide legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Cowan, DeBaets, Abrahams, and Sheppard LLP and the user or browser. The opinions expressed at or through this site are the individual author’s opinions and may not reflect the firm’s opinions or any individual attorney.

Legal Drama over Docudramas: New York Appeals Court Rules in Favor of Film Producer in Porco v. Lifetime Entertainment Services, LLC

By Scott J. Sholder and Leah Scholnick

On June 24, a New York appeals court ruled in favor of docudrama makers in Porco v. Lifetime Entertainment Services, LLC,clarifying when filmmakers and producers who make unauthorized use of an individual’s name or likeness are shielded from liability under New York’s statutory right of publicity. The decision is a victory for First Amendment advocates and the media and entertainment industries in general, more clearly delineating the freedoms afforded to creators of docudramas when conveying important matters of public interest. Prior right of publicity cases in New York have not directly addressed the genre of docudramas and this case harmonizes New York law with other jurisdictions, most notably California.

Plaintiff Christopher Porco, who was convicted of brutally murdering his father and attempting to murder his mother, sued Lifetime over the docudrama entitled Romeo Killer: The Chris Porco Story, which depicted the events surrounding the murder in a semi-fictionalized manner. Porco alleged that Lifetime made a commercial, nonconsensual use of his name and likeness and that the docudrama was highly inaccurate, violating New York’s statutory right of publicity found in Civil Rights Law Sections 50 and 51. Lifetime argued that there was no such violation because the film used Porco’s name and likeness in reasonable relation to newsworthy events, invoking the “newsworthiness” exception. The trial court denied both parties’ motions for summary judgement, holding that there were issues of fact relating to whether the film was so materially and substantially fictitious that it no longer served the goal of conveying newsworthy information.

On appeal, a panel of the New York Supreme Court Appellate Division, Third Department explained that to prevail on his claim, Porco needed to demonstrate that Lifetime knowingly fictionalized incidents and made a substantially fictitious biography solely to trade on Porco’s persona. The court’s analysis delved into the history and interpretation of New York’s statutory right of publicity, which was enacted over a century ago to provide limited civil and criminal liability for the nonconsensual, commercial use of a living person’s name or likeness for advertising or trade purposes. New York courts have long recognized that this narrow right must be balanced against First Amendment guarantees of free speech, and as such, have carved out an exception for newsworthy events and matters of public of interest, even if the ultimate use is for profit. According to the court, many diverse forms of expression—even those created mainly for entertainment purposes—can be considered newsworthy because they provide audiences with access to information about various subjects of public interest.

However, the exception does not apply when biographical information is so fictionalized that it no longer serves the goal of providing that information to the public. Where to draw the line was the key question at issue in Porco, and is one that is relevant to all docudramas, a genre rooted in presenting historical events in an entertaining manner that risks misleading viewers as to the complete accuracy of the events. Porco’s sensational, newsworthy crime made it a likely candidate for a true crime docudrama, which Lifetime did not need Porco’s permission to create as long as the filmmakers did not create a fictionalization of the events that would no longer serve the goals of the newsworthiness exception.

Porco argued that Lifetime’s film was fictionalized to the point of being an “invented biography” that no longer fit within the scope of the newsworthiness exception. The court reviewed case law in which the newsworthiness exception did not apply, including where a writer was held liable for an unauthorized biography of a baseball player that included so much “material and substantial falsification” that it no longer served the purpose of providing access to information of public interest, and where a filmmaker was held liable for a “fanciful” dramatization of the true story of a “daring sea rescue” that would have had newsworthy value had it bore any relation to the actual event.

The court ultimately found Porco’s case distinguishable from these precedents. After the court reviewed the film, a timed dialogue script, media interviews, and transcripts from Porco’s real-life criminal trial, it concluded that the film satisfied the newsworthiness exception. Despite the dramatization of certain elements in the film—such as recreation of dialogue, use of flashbacks and staged interviews, and use of fictional names and composite characters—the film constituted a “broadly accurate depiction of the crime.” Additionally, the court emphasized the critical fact that Lifetime acknowledged and informed viewers, both in the beginning and at the end of the film, that the events were dramatized and “based on” a true story. This disclaimer, the court held, was necessary to prevent viewers from believing that the film’s depiction of Porco was entirely true.

In sum, the court held the newsworthiness exception applied even to highly dramatized works as long as the work does not mislead viewers into believing that embellished depictions of individuals or events are entirely true. For these reasons, the Appellate Division reversed the trial court’s denial of Lifetime’s summary judgement motion because Porco failed to raise an issue of material fact as to whether the film amounted to a fictitious biography that defeated the goal of conveying information about a matter of public interest.

As a point of comparison, the 2018 California case de Havilland v. FX Networks, LLC similarly addressed the unauthorized use one’s persona, specifically the name and likeness of actress Olivia De Havilland in a docudrama series entitled Feud: Bette and Joan. The California Court of Appeals, in also ruling in favor of the defendant, focused more on the importance of First Amendment protections of docudramas measured not necessarily by their newsworthiness, but by whether they are merely advertisements for the sale of goods or services, whether the depictions of the plaintiff were transformative, and whether the work primarily derives its value from those depictions. While their rationales differed, both the de Havilland and Porco decisions resulted in broader freedoms for producers and filmmakers of docudramas to rely on the First Amendment—framed by court-articulated guideposts—as a shield for their creative works. Both discussions complement each other and provide a broader understanding of increasing protections for hybrid fictional/factual works in the entertainment and media epicenters of the country.

In light of the Porco ruling, New York creators of docudramas may use an individual’s name and likeness as long as the overall work remains generally accurate and any dramatizations and fictionalizations are made clear to the audience through the use of disclaimers and other disclosures that the work, while based on true events, is not meant as a purely factual depiction of history.

California District Court Dismisses “Tiger King” Case, Citing First Amendment Interests

After captivating home-bound viewers earlier this year, Netflix’s documentary series “Tiger King” had its day in court recently when a California district judge dismissed a case brought by the publisher of Hollywood Weekly Magazine (“HW”) against the producers and distributors of the show.  See Prather Jackson v. Netflix, Inc., Case No. 2:20-cv-06354-MCS-GJS (C.D. Cal. Dec. 9, 2020).  The magazine complained that Netflix had used two of its trademarks in the show: (1) the magazine’s name, and (2) “Tiger King,” a term which HW claimed that it had coined in 2013 when it published a series of articles that profiled Joseph Maldonado-Passage a/k/a Joe Exotic, who is now widely known as the Tiger King.  On Netflix’s motion to dismiss, Judge Mark C. Scarsi of the Central District of California determined that First Amendment interests in the expressive work “Tiger King” outweighed HW’s Lanham Act claims.

The dismissal adds to a growing body of case law stemming from the Second Circuit’s 1989 decision in Rogers v. Grimaldi.  In that case, actress and dancer Ginger Rogers asserted Lanham Act claims against the producers and distributors of a film entitled “Ginger and Fred”; the court considered how the Lanham Act should be construed so that it does not intrude on First Amendment values.  The Second Circuit adopted a test to determine when the Lanham Act should apply to artistic or express works—namely, when the use has “no artistic relevance to the underlying work whatsoever,” or when it “explicitly misleads as to the source or the content of the work.”  Though the use in question before the Rogers court was the name of a celebrity in the title of a film, the Second Circuit’s test has been extended to apply when a Lanham Act claim is asserted against a use of a trademark within an expressive work. 

As the Ninth Circuit adopted the Rogers test in 2002, the California district court was obliged to apply it to HW’s four Lanham Act claims for trademark infringement of its two marks, dilution, and false designation of origin, and in doing so, rejected HW’s arguments.  Applying the first  “artistic relevance” factor, the court considered the use of term “Tiger King” as both the title of Netflix’s documentary and within scenes throughout the film.  Notably, the term was used to refer to Joe Exotic, as he himself used it on merchandise, in the name of his reality television show, and in his short-lived campaign for president, which the documentary detailed.  The series also depicted issues of the magazine, bearing HW’s name, as Joe Exotic proudly showed off the articles that dubbed him the “Tiger King.”  As artistic relevance is a low threshold—the use of the mark need only have “some relevance” to the work—the court determined that this prong was easily met, because the documentary chronicles the life and business of Joe Exotic, who is publicly known as the Tiger King.

For the second prong of the test, the court considered whether Netflix’s use of the unregistered “Tiger King” mark would make the public believe that HW was somehow behind the documentary or sponsored the work. Because the question is whether the work explicitly misleads—or as the Rogers court put it, the work contains an “explicit indication,” “overt claim,” or “explicit misstatement”—the court was not satisfied by HW’s inability to point to any statement in the series that explicitly misled about the sponsorship of the documentary.  In its complaint, HW relied upon conclusory legal statements, rather than any allegations of explicit deception that would satisfy the second prong of the Rogers test.  The court applied the same analyses on the first and second prongs for the “Tiger King” mark to the HW mark and determined that Netflix’s use of the magazine’s name in the series did not give rise to actionable Lanham Act claims.

Additionally, the court dismissed HW’s copyright infringement claim over Netflix’s depiction of certain issues of the magazine, citing the deficiencies in HW’s allegations regarding what works their cited registrations covered and which parts of the copyrights Netflix infringed.  Though Netflix had also briefed a fair use argument for this claim, the court did not reach it since it determined that HW’s copyright infringement claim failed on the face of HW’s pleading.

Although HW can assert Lanham Act claims regardless of the federal registration status of its two trademarks, it is worth noting that HW is also facing an uphill battle with the U.S. Patent & Trademark Office (“USPTO”) over the registration of the “Tiger King” mark, which has become quite popular over the past year.  Notably, while HW claimed to have coined the term in 2013, it did not file for federal registration until July 2020 after the Netflix series had debuted and a host of others had already filed applications for the same mark.  HW is currently facing an office action from the USPTO, which is refusing registration on numerous grounds including the words Tiger King’s failure to function as a trademark.

The dismissal in this case is the latest decision in a robust and growing line of case law balancing First Amendment interests against Lanham Act claims.  As most courts have adopted the Rogers test (or some iteration thereof), the “Tiger King” decision provides further armaments to litigants facing Lanham Act claims for their use of a mark or other protected designation in an expressive work.  Clients clearing rights in expressive works should remember to consider the Rogers test, in addition to other commonly used doctrines like classic or nominative fair use and, when in doubt, seek legal counsel.

Homeowner Turns to Copyright to Protect Against Unauthorized Use of Home in Adult Films

What recourse exists when a tenant hands over a rental home to an adult film production company, which proceeds to film fourteen feature-length adult movies onsite, without the owner’s knowledge or permission, over the course of five months? Turns out, copyright law.

This was the crisis facing Martha’s Vineyard homeowner Leah Bassett in 2015, when she discovered that a tenant, in violation of his lease, had handed over her property to adult film producer Monica Jensen and her Canadian distribution company, Mile High Distributions, which proceeded to use the personal residence as the shooting locale and backdrop for an extensive series of pornographic films. Bassett sought redress via 11 legal claims, including a claim for copyright infringement, filed in the U.S. District Court for the District of Massachusetts in March 2018 (captioned Bassett v. Jensen, 1:18-CV-10576).

Why turn to copyright? Considering that Bassett had leased her home willingly, the court refused to permit a number of Bassett’s original claims, of particular note, trespass. Lacking real property protection, Bassett focused on other avenues of relief, including intellectual property, asserting protectable ownership of the rights to art that she had created that was situated within her home and depicted, by consequence, in the films.

Bassett’s copyright claim surrounded alleged copyright violations from the use of her own artworks in the background of the films, including sketches, hand-stitched pillows, a fireplace, and a hand-painted table. Although Mile High’s attorney argued that he “would bet [his] life savings . . . if you polled every juror in the world, not one would say, ‘I saw this film and focused on the etching or the stitching on the slipcover,’” Bassett nonetheless argued—prior to an official accounting—that the total time for the works on film was not insignificant under copyright law, ringing in at 473 seconds, or a little under eight minutes.

To combat a de minimis use defense, Bassett ultimately provided a detailed accounting of the duration of the works’ onscreen appearances to the court, which had itself declined to watch—or require a jury to watch—the films. Citing the Second Circuit’s seminal Ringgold v. Black Entertainment Television, Inc.,which had also addressed the depiction of a copyrighted work used as set decoration in a filmed program, the court noted that copyright owners could enforce the use of works featured in the background of a shot provided they are clearly visible, such that the medium and style of the work may be discerned by the average lay observer. The court considered the benchmark for quantitative significance to be the point at which an artwork had appeared, clearly visibly, for at least 30 seconds on film, whether at one time or in the aggregate. Upon reviewing Bassett’s accounting, the court determined that at least one work was clearly visible for this timeframe in each of ten films at issue, taking the uses outside of the realm of a de minimis defense. The uses included, for example, “colorful geometric paintings above a couch” that appeared, “prominently and often fully, for over four minutes” onscreen, as well as “green wall hangings above [a] bed appearing throughout [a] nine-minute scene.”

In granting Bassett’s summary judgment motion on infringement, a ruling which occurred in early August, the court also denied the defendants’ motion for summary judgment on fair use under copyright law, which would have allowed the works’ depiction, even without Bassett’s permission. Undertaking the four-factor fair use analysis and rejecting the defendants’ arguments, the court noted that Bassett’s belongings in the film were artistic works that had not been used in a transformative way, and indeed had sometimes been featured in full.

Although the copyright prong of the lawsuit has been resolved, the court will still permit Bassett’s claims on unfair trade practices, civil conspiracy, business interference, and emotional distress, in an upcoming trial slated for the summer of 2021. The court must also determine damages owing for the copyright infringement, and to this end recently confirmed that Bassett is entitled to profits.

A key takeaway from the intellectual property portion of this dispute is the way in which copyright may serve as an unlikely remedy where unauthorized use of a physical property occurs pursuant to a lease, failing to rise to the level of actionable trespass. Should use of the property include copyright-protected works, a homeowner who owns the copyrights in those works may have recourse to recover damages, including profits, under copyright, particularly, in the context of film productions that, unwittingly or otherwise, misuse copyrighted artworks as mise en scène.

Five Qualities of Next Generation Entertainment Platforms

By Simon Pulman, Partner

If your only exposure to TikTok is seeing the occasional funny video pop up on Facebook or watching your nieces studiously rehearse one of Charli D’Amelio’s signature dances, then you could be forgiven for wondering what all of the fuss about a potential ban is about. Likewise, if you’ve heard of Fortnite but you have no idea how Twitch works, you might not be aware of the degree to which Twitch is disrupting the audience for traditional television and even live sports.

Irrespective of whether TikTok survives (at least, in its present form), the impact that it has had on the future of entertainment consumption is immeasurable. And likewise, having fended off competition from the likes of Mixer, Twitch is poised for further extreme growth. Both platforms have lessons that those in traditional media would do well to heed when seeking to identify (or perhaps create) the next major media platform.

1. They Are A Culture And A Language: TikTok is not merely a video sharing platform. It is its own discrete culture and language that is impenetrable to those who are not on the platform. In essence, TikTok is an extreme evolution of “meme culture,” and without familiarity with the various “trends” that move rapidly through TikTok and the key creators and personalities who often create them, it is impossible for a viewer to understand many TikTok videos in isolation. Like all languages, TikTok builds upon itself, as users create videos that mimic, parody or comment upon an existing popular video. None of this is explained to the user upon joining the app. It has to be absorbed and understood by interacting with videos. This means that for Gen Y and college students, it is simply essential for them to be on TikTok in order to communicate with and relate to each other. It’s the concept of tuning into an old broadcast “watercooler show,” just amplified exponentially.  Likewise, Twitch has its own “language” in the form of “emotes” that viewers can post in chats while watching videos. Like memes, emotes require an understanding of context and meaning – and a shared understanding of emotes can create a common bond between the user base.

It is not an exaggeration to state that TikTok in particular is the single biggest communication and culture platform for Gen Y, and accordingly, is also the easiest way to mobilize young people. If TikTok still exists, it could have a significant impact on the upcoming US election – which is perhaps why President Trump is so keen to shut it down. We have already seen the influence of TikTok in action when TikTok users apparently reserved tickets to Trump’s June rally in Tulsa Oklahoma, falsely giving the impression that the event was a sellout. TikTok content is also highly shareable, meaning that content can live and spread off of the platform. This helps to bring new users into the platform. Compare with Quibi, which launched with zero sharing or social capability whatsoever, and a rigidly old-world walled garden approach.

2. They Have Their Own Stars: To millions of teenagers, the biggest celebrities on the planet are not actors or pop stars, but rather two sisters from Connecticut – Charli D’Amelio and Dixie D’Amelio. The D’Amelio sisters built a presence on TikTok at an astoundingly fast rate (at the time of writing, Charli alone has almost 86 million followers and over 6.6 billion “likes”). The D’Amelios have parlayed that platform into myriad commercial endorsements (Charli has her own drink at Dunkin Donuts) and, in Dixie’s case, a singing career. Likewise, within the world of Twitch, the likes of Ninja and Pokimane are bona fide stars, often attracting millions of fans for their “streams.” Like the D’Amelios, big Twitch influencers monetize their profiles in multiple ways, ranging from traditional product endorsements, to sponsored content, to Twitch “donations” whereby fans can simply donate cash to the influencers to thank them for their content (and for a moment of fleeting recognition).

These new influencers operate differently to celebrities of old. While they still have managers and publicists, and seek to curate a brand, they are generally more open about their personal lives because “authenticity” is highly valued by their audiences. With that said, several influencers have publicly articulated their struggle at maintaining a distance between their public persona and private life, most recently Twitch streamer Pokimane, who has been unfairly accused of concealing that she has a boyfriend in order to maintain her fanbase. Maintaining a level of distance can be difficult for influencers whose livelihoods depend on interacting regularly and directly with fans. Indeed, there are many “gossip accounts” that focus on the rumors surrounding influencers and their personal lives.

The challenge for traditional entertainment executives is that the new era of talent does not necessarily need to crossover into traditional media. While it was recently announced that Addison Rae Easterling has accepted a role in “He’s All That” (a reimagining of the Rachael Leigh Cook/Freddie Prinze Junior romcom), most TikTok influencers, and certainly most leading Twitch influencers can make more money, more quickly simply sticking to their core platforms (or other media that they can exert more control over, such as podcast).

Moreover, as an attorney who has negotiated many deals to hire Twitch influencers for “traditional media,” it is important to note that new media influencers, and their reps, value different things to traditional talent and are not always prepared to agree to otherwise accepted “industry norms.” For example, we typically see a lot of pushback against “options” in TV or anything that could lock the talent in for an extended period of time. Additionally, the concept of providing free promotional services (including by social media) as part of the engagement is totally foreign to influencers used to being paid on a “per post” basis.

3. They Are Broadcast Platforms: While platforms such as Instagram and particularly Snapchat have leant into the concept of users sharing content with people that they already know, TikTok and Twitch are broadcast platforms on a massive scale. They operate on a “one to many” model, whereby an individual user can theoretically reach millions of total strangers all across the world from their own home. TikTok in particular is probably the biggest and most effective broadcast ever built, with its “your page” discovery algorithm allowing hit videos to potentially reach billions of users. Many Gen Y users want to experience stardom above all else, and while TikTok’s incumbent “stars” (such as the D’Amelios, Addison Rae, the inhabitants of Hype House, and now Bella Poarch) certainly have a leg up, TikTok remains the only platform in the world where a user can potentially acquire half a million followers in a day. Twitch is a harder platform to crack, and many streamers labor away streaming for few viewers. However, there are still opportunities to rapidly grow a userbase on Twitch – especially around the launch of a new game. For example, multiple Twitch users gained over one hundred thousand followers in the month following the release of the hit battle royale game “Fall Guys,” with the user “MrKeroro10” gaining almost 400,000 users.

4. They Are Highly Personalized. At first glance, there may be little that seems to differentiate TikTok from predecessors such as Vine, or its many clones. It’s a platform for short videos, right? Well, yes and no. The strength of TikTok is actually in its algorithm, which by tracking user behaviors and habits in many ways (some no doubt concerning to privacy advocates), is simply the most accurate recommendation engine ever created in a media app. As a result, within a few hours of using TikTok, the algorithm will learn an individual’s preferences – whether that’s music, cooking, dancing or humor. Thus, while it is likely that most TikTok users will see videos from the megastars (Charli, Addison Rae, etc.) at some point, it is not unusual for the “for you page” of two users to be completely different.

It’s quite fascinating to see the differing approaches of two media companies through 2020 so far. Quibi bet on extremely expensive, traditional television or film content chopped up into smaller chunks and, presumably, aimed at a broad audience. TikTok focused on serving up an endless stream of short, user generated, highly personalized content. It’s not a secret that one company’s approach was more successful than the other. Media companies need to accept that the future of media is personalization – which is perhaps why Netflix has invested so heavily in a diverse range of scripted and unscripted content, often internationally focused.

5. They Can Create New Hits – And Revive Old Ones: The power of TikTok to create hits and stars (it is now the essential driver for creating new music hits) is well documented, as is the influence of Twitch in popularizing new video games. However, both platforms have the capability to revive catalogue titles as well. On TikTok, a popular influencer posting a lipsync to a scene from an old movie, or a dance to an old song (which will inevitably lead to thousands of copycat videos) may lead to millions of users discovering that piece of content for the first time -essentially introducing it to an entirely new audience and increasing its value significantly. For that value, media companies may wish to advise their legal departments to be judicious in policing content that could arguably be infringing (whether TikTok videos are sufficiently “transformative” to be fair use is a discussion for another day), because the halo effect of trending on TikTok could be significant.

Disclaimer: While our firm does not represent either Twitch or TikTok, we do represent multiple clients active on both. We also represent Triller, a TikTok competitor.

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!

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