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Media & Entertainment: 10 Legal Challenges for Companies in 2023
Wednesday, February 1, 2023

With the start of the new year, the ArentFox Schiff Media & Entertainment Industry team reviews 10 of the most pressing legal issues for companies in 2023.

1. Sweeping Impact of Generative AI

The gale wind roaring into 2023 for the entertainment industry (and others) is generative artificial intelligence (AI). As a tool, AI offers another means for artists to develop and express creative freedoms. Unknown though is how use of this tool will impact ownership of a work, and whether it might jeopardize rights and control over the work. (It’s been reported that the US Copyright Office is re-evaluating a decision to grant copyright registration to a comic book with text-to-image AI-generated graphics.) The human and ethical issues are numerous, including bias, privacy rights, homogenization of content, and loss of human creativity. All facets of entertainment — film/TV, content, video/audio, music, art, gaming — have been impacted.

2. Continuing Opportunities in the Metaverse

Despite the crypto-winter and new tech disruptors, celebrities, entertainment companies, artists, and athletes will continue to explore the opportunities of the Metaverse and web3. One of the major considerations is how to leverage brand recognition and maximize revenue streams. Watch for more branding agents and business managers to present evolving (yet untested) strategies. There will be stiff competition throughout the entertainment industry for long term contracts and licensing for Metaverse and web3 services.

3. Right of Publicity in Digital Spaces

The right of publicity is a critical means by which individuals can control the use of their identities. The increasing prevalence of new technologies, like NFTs and the Metaverse, provides wrongdoers with new opportunities to exploit and misuse those identities. Entertainers, artists, content creators, celebrities, and athletes should take care to protect their rights of publicity. For example, implement strategies to monitor for unauthorized uses of name, image, or likeness and enforcement of rights. More information on our work protecting individuals’ rights of publicity is available here.

4. IP Enforcement/Brand Protection in New Spaces

Entertainment has gifted us many iconic global brands and characters. This makes the challenges of brand protection in the Metaverse, blockchain, and augmented reality (AR)/virtual reality (VR) of heightened importance to entertainment. Brand owners are finding themselves exposed due to limitations of previous go-to online IP enforcement tools such as the Digital Millennium Copyright Act (DMCA) and ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP). For these technologies to thrive, clear standards and policies need to be in place to protect intellectual property rights and reduce consumer fraud and deception, and this year is likely to be pivotal.

Additionally, brand owners proactively should supplement their IP registrations and portfolios to establish rights on virtual platforms and web3 ecosystems, as well as fortify against the new types of infringements that can occur. The AFS IP Enforcement Task Force is helping lead the way toward a web3 that works for creators, developers, brands, consumers, and platforms, and will continue to monitor major developments and best practices.

5. Deep Fakes are Entering Mainstream Entertainment

AI-propelled technology now can create picture-perfect video dubbing. Potential benefits include aligned audio and facial moments to match a dubbed in language and tweaking lines without a re-shoot. However, as with most tech innovations, there are concerns. The industry will be forced to confront very quickly who has the right to make these changes and to what extent, what is the impact on the integrity of artistic expression of writers and actors, and the impact on compensation.

6. New Era Legal Challenges Under the VPPA

While many entertainment companies are familiar with the power of video and may even be familiar with the Video Privacy Protection Act (VPPA), they may not know that the VPPA is serving as the basis for a rash of new class actions. In recent cases, the VPPA has been relied upon in connection with advertising videos appearing on websites across industries. For more, see our alert here.

7. Growth of Shorts

Fueled by the success of TikTok, platforms such as Instagram and YouTube are seeing an opportunity emerge through the medium of shorts. Content creators are experimenting in this new medium by transforming their longer form content into shorts. But is the opportunity in this space worth the risk to the brand of long-form content creators? Are there legal structures that can help these content creators protect their brand/reputation while allowing them to enter the space of shorts? Additionally, creators must stay vigilant of others exploiting their already successful content through these short forms.

8. Will the Next Hit Song be by AI?

Advances in AI software programs have made it easier than ever to generate music and musical performances by simply inputting a text description of desired mood, length, and genre. Throughout the history of the recorded music and music publishing businesses, new technologies have presented challenges and opportunities. Will AI ultimately benefit songwriters and composers, recording artists, and owners of copyrights in musical compositions and recordings? Or, will it challenge the value of human creativity on which the music business has been built and the corresponding copyright law landscape? Music publishing companies, record companies, songwriters, composers, and recording artists should stay on top of developments in AI and an emerging body of lawsuits and US Copyright Office decisions related to the use of AI to generate creative works. To see earlier coverage on this topic, click here.

9. Leveling up Copyright Policies in Online Games

Video game developers own a broad set of copyright protection under US federal law in the game content that they create. In addition, third party created content embedded in games such as music have separate and additional copyright protections. A growing sector of the gaming entertainment industry is live gameplay on various streaming platforms including Twitch and YouTube. Game developers generally have resisted using copyright law and the DMCA to take down potentially infringing gameplay, primarily for the free publicity.

In exchange for facilitating take down notices and counter claims, platforms like Twitch enjoy protection from liability by complying with Section 230 of the Communications Decency Act. Even so, video game developers should review their copyright protection policies and procedures regularly as the streaming market continues to grow and users find new ways to user content on other digital platforms.

10. Facial Recognition Software Use by Entertainment Venues

Entertainment and sports venues are integrating facial recognition technology into their operations for purposes including validating tickets and scanning crowds. In a recent high-profile example, Madison Square Garden Entertainment (MSGE) relied on facial recognition technology to deny admission to Radio City Music Hall to a lawyer whose law firm was involved in litigation against MSGE. Use of facial recognition technology presents significant legal risks, however, from biometric privacy lawsuits to government investigations. Indeed, MSGE’s use of the technology has prompted New York lawmakers to introduce legislation barring owners of sports venues from refusing entry to people with a valid ticket. For more on the risks presented by deploying facial recognition and similar technology, see our recent review of biometric risks and litigation.

FREDERICK J. SPERLING also contributed to this article.

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