In 1981, Queen and David Bowie released the smash hit "Under Pressure." Nine years later, the iconic bass line appeared in "Ice Ice Baby" by Vanilla Ice. A lawsuit ensued, and while the rapper at first denied intentional plagiarism, he wound up settling for a sum estimated at around $4 million.
The entertainment world is a minefield for potential copyright infringement. The frequency of infringement claims has only increased as more and more content becomes available on streaming platforms. Some of these cases are easy to decipher. For others, issues of ownership and originality are not so cut and dried.
For example, with unscripted productions like reality TV, what formats or storylines are generic enough to be considered open to the public? How does a producer protect their golden nuggets from the clamoring mob of competitors?
Fortunately, the solution is simpler than one might expect. According to entertainment attorney Jody Simon, Chair of Production Company Practice at Fox Rothschild, "Ideas are not protectable - only the expression of ideas." First, the work must be novel and specific. This can be a high bar for an unscripted format. If an element of a work is one that would always appear in a work of that type (such as an elimination in a competition program) anyone can use it. Second, unless it's written down or recorded, any idea, no matter how genius, is up for grabs.
On the other hand, scripted works almost inevitably have sufficient originality to qualify for automatic copyright protection once they are "fixed in what's called a 'tangible medium of expression,'" says Simon. "If it's written down, it has copyright protection." It's the tangible product, be it written, filmed or in some other medium, that constitutes the copyrighted work.
While the thought of being sued is frightening, especially if you copied a protected work by accident, Simon says that disputes get settled more often than not. The entertainment industry is a chaotic bubble, and not everyone has time to squabble over 'who said it first.'
On the flip side, being scared to hit "publish" because someone might steal your ideas is like purposefully losing a race because someone might beat you. "People worry too much about people stealing their ideas," says Simon. "It's more important to get [it] out there than to worry about somebody taking it."
Meanwhile, dealmaking on behalf of content creators has become more challenging as the number of buyers shrinks. Following the expansion of the market with the entry of Netflix, Amazon and Apple, a wave of consolidation began with the Fox-Disney, Warner-Discovery, anticipated MGM-Amazon and rumored Netflix-Roku mergers. This followed some dramatic rollups over the past decade, for example in unscripted TV, which used to support dozens of independent companies and is now dominated by a few huge holding companies.
When it comes to selling rights, Simon notes that negotiations can be tricky since subscription platforms don't directly allocate revenue to a show. This has thrown a wrench into tried-and-true backend compensation formulas based on revenues, generally called Modified Adjusted Gross Receipts (MAGR). For now, the various streaming networks are proposing many different formulas for compensation tied to the success of a program. The community of sellers' representatives--lawyers and agents--is starting to push back at some of these. It may be that as dealmaking evolves in this space, the industry will settle on a framework as it did for MAGR.
The business of entertainment is a shapeshifter, making the job of content attorneys ever-evolving -- and increasingly necessary. For producers and artists alike, entertainment law is quickly becoming essential.