In a nutshell
Media and entertainment, advertising and sports are distinct yet overlapping areas of the law. Some aspects of their practice are common to them all – contracts law, for example – but ensuring a '100% beef burger' abides by the rules stated by the Federal Trade Commission (FTC) is clearly a matter for an advertising specialist.
Whichever strand you practice, one thing is for certain: the work is incredibly varied. None of these specialisms has its own distinct branch of law. Rather, they involve piecing together elements of a broad range of legal disciplines and applying them to one particular industry sector.
Media and entertainment
Media and entertainment lawyers provide legal advice and representation to those working in the entertainment industries, including the fields of theater, television, music, publishing, gambling, film and digital media. The practice has a major fault-line down the middle, with most lawyers falling on either the transactional or the contentious side. Many entertainment lawyers hone one particular specialism – the music industry, for example – while others remain generalists.
Advertising lawyers advise on every aspect of brand promotion, from drawing up contracts and deploying 'viral' campaigns to settling false advertising disputes. Again, the role of 'advertising lawyer' is somewhat of a misnomer as its attorneys tend to fall into subspecialisms – generally using their expertise to advise on regulatory, transactional or false advertising matters.
Split between transactional and litigation work, sports lawyers help out individuals and companies involved in the sports industry. That involves anything from drawing up player signing contracts, purchasing and selling stadiums and negotiating branding agreements to litigating licensing issues.
What lawyers do
- Draft and negotiate record, publishing, producer, management, distribution, touring, merchandising, corporate sponsorship, licensing and internet agreements.
- Consult with artists, record companies and publishers regarding their financing, entertainment and internet strategies, plus the protection of their IP rights.
- Advise media and entertainment companies on their M&A and merger activities.
- Provide pre-publication content advice to broadcasters and publishers.
- Litigate matters including contractual, copyright and trademark, employment, and payment disputes.
- First Amendment law is a substantial specialism in itself – advising on issues of free speech, censorship and defamation, among other contentious issues.
- Advise advertisers on playing by the rules according to advertising watchdogs including the FTC, and legislation such as the Children's Online Privacy Protection Act.
- Counsel manufacturers on all facets of food and drug labeling, marketing and advertising requirements.
- Advise on sweepstakes and other commercial promotions.
- Litigate false advertising claims, from single party to consumer class actions – particularly those falling under the Lanham Act, the federal false advertising statute.
- Provide copyright advice on advertising issues.
- Negotiate advertising-based content licensing agreements, for a whole range of different media.
- Advise broadcasters and other sports bodies on audio-visual media piracy issues.
- Sports-related litigation – anything from athlete contractual disputes to stadium construction and copyright issues.
- Advise professional sports leagues, club owners, investors and other financial institutions on sports-related licensing agreements, project finance, securitizations, and security offerings.
- Involved in M&A transactions involving sports-related bodies, and in the purchase and sale of sports teams.
- Advise sports administrators, commercial bodies and municipal authorities on hosting major sporting events.
- Manage IP portfolios for sports brands.
Realities of the job
- You need to be prepared that an actual job of an entertainment lawyer is not going to be all that different from that of any other lawyer. “The day would be the same as that of a junior associate working on a matter in any industry: reading, drafting, spending a long time on the phone with clients. It’s no different than work for any similar transactional or litigation practice group,” confesses Ruth Fisher, a co-chair of Gibson Dunn's media, entertainment and technology practice group. You will be expected, however, to understand very industry specific requirements, such as “where the rights are owned and how they are owned.”
- “If you could visualize it, you have to think about it as a wheel, where there’s IP, advertising, data content, and technology – all of those are interrelated,” illustrates James D. Taylor at Loeb & Loeb. You will need to master many different disciplines whether you are sports or media lawyer, and excel at those. Although it means more work, he stresses that “the value and benefit of this is that you develop a holistic approach.”
- Work in the fun sector is far from being just fun! There is an awful lot to learn as you go: “It takes a great deal of hard work to stay current. Projects move very quickly,” warns Kenneth Florin, co-chair of advanced media and technology and chair of digital and social media groups at Loeb & Loeb. “It’s not a nine to five job, but if you want to dig deep, there’s plenty of opportunity.”
- The fast pace and an ever-changing nature of the job is what actually makes it so exciting and special: “I think what’s of particular interest to younger attorneys is that the legal landscape is changing fairly dramatically because of technology,” says James D. Taylor. “What’s unique is that what we are doing hasn’t existed before: we are at the very beginning of digital revolution with things continuing to accelerate.” On the other hand, some elements of work do not change, so you can expect some continuity: “Whether it is a talented director creating a new movie, or an artist creating a new recording, you have issues around that. Disputes arise between actors and studios. Those existed 30 years ago and stay the same,” reveals Glenn D. Pomerantz, litigation partner in the Los Angeles office of Munger, Tolles & Olson.
- “I have wonderful clients,” enthuses Pomerantz, “but the entertainment industry tends to attract more volatile, eccentric people than other industries, not only as business people but as lawyers too..” If the idea of working with eccentric people scares you away, you may find some consolation in the fact that you do not need to change yourself or your style to fit the industry: “I think so many types of lawyers that other industries need, this industry needs too, so there is wide room for lawyers with different styles.”
- “In some ways it’s high profile. When you go to a dinner party most people have understanding of issues you work on,” says Pomerantz. However, he goes on to add: “Much of what you do is what you’d do in other industries, it’s just that it tends to be of more interest to wider community.” Ruth Fisher has a strong view on this: “The point I’m trying to make is that it’s a wonderful practice intellectually but it’s not all about the glamor. We don’t meet the stars!” You should be prepared instead to meet studios, people dealing with large studios and distributors, remembering that “clients are all the same: they expect you to do excellent work instantly.”
- With tough competition and few jobs, the path to becoming a lawyer in this discipline may be a long and arduous one, so it is for the patient. It’s important not to overestimate one’s chances just because of some experience at an entertainment company: “No one should think they have an in because they have worked for an entertainment company. Half of students have experience in media companies.” Glenn suggests you pick a firm that does some entertainment work so you have a chance to practice it, but “if not, do general work and that will give you experience relevant for industry.” It may sound a little obvious, but all sources agree that the rule number one is simply to be a first-rate lawyer.
- Probably the most significant trend affecting the media industry today is the massive displacements across the sector caused by technological disruption. Lawyers must be aware of the potential new opportunities and challenges to their practice as a result of technological innovations. Ruth Fisher at Gibson Dunn sees “a lot of opportunities now in helping clients navigate new distribution methods and finding ways for the ever-increasing number of channels to get to audiences.” Glenn Pomerantz says that dramatic changes in the music business from rampant piracy in the early 2000s led to legitimate businesses launching their own music services, like Apple's itunes, Spotify, and Amazon Prime: “A lot of companies turned towards streaming services, and lawyers are affected by that… deals, issues, disputes.”
- New technology presents new threats to media industry in terms of IP infringement. To take new-real time piracy as an example, we can expect to see more copyright holders litigating for copyright infringement. However, the owners of live-streaming platforms may find an easy escape considering that current US law is still not firm on this point. Another option for copyright holders is to harness new technology to their own advantage to protect themselves from piracy. “Every company is thinking of how to take advantage of this great opportunity whilst at the same time trying to combat illegal distribution of their crown jewels,” explains Glenn Pomerantz.
- Digital forms of advertising are clearly overtaking the traditional channels. America’s TV ad-revenues are expected to slow down, whereas Internet advertising is forecast to expand considerably. Amazon and Hulu will present a further challenge to traditional TV players by showing live TV from 2017. Facebook shall continue to own the biggest share of the total online ad spending. Notwithstanding these trends, TV and print advertising is not going away, as James D. Taylor clarifies: “There is not a movement away from one form of advertising to another,” but rather “advertisers look across different channels and leverage what their capabilities are.”
- The latest update on the controversy in sports law surrounding the rights of college athletes for compensation is the Supreme Court’s decision October 2016 not to hear the O’Bannon versus NCAA case. The previous ruling in the case overturned NCAA restrictions on the athletes’ ability to receive compensation for the commercial use of their images, and guaranteed athletes up to $5,000 a year. The latest denial of certiorari was a rather inconclusive end to the six-year trial, but the amount of publicity it received brings hopes of larger reform to the college sports establishment.
- As a consequence of the continuing debate over the legality of online fantasy sports games, more and more states are enacting laws legalizing and regulating the industry. New York passed the bill in June 2016, allowing players to play the games for cash under gambling laws, apart from English Premier League. At least 20 other states have failed or not taken the action to pass the laws in 2017.
- The recent trend of new money coming into the industry from China, following big acquisitions of Hollywood studios by Chinese film groups, may be undercut amongst uncertainty with US politics and the possibility of changes under the new administration. Although the impact of the current administration remains “a 64 thousand dollar question, less regulation could certainly mean more deals and acquisitions,” according to Kenneth Florin.
- Ruth Fisher adds: “Putting aside regulated deals, like TV broadcasting – it’s very hard to see why a creator or a distributor would fear new foreign investments in the industry. There are so many distribution channels.”
Bruce Wilson, a senior corporate lawyer at Covington & Burling with expertise in sports law:
“Probably the most important thing I've learnt is that in this transactional area, there's industry expertise but not sports law per se – it's not a separate branch of the law. There are very unique issues in antitrust law and competition, but the most important thing to remember is that a transactional sports practice requires you to draw on so many different areas of corporate work. It's M&A, financing, IP, media, and competition all rolled into one and you have to be comfortable in each of those areas.”
“Challenges are the rules of the game. In order for sports to be interesting, someone else must be doing the same thing. You can't have a football game or test match with just one team turning up. It's a competitive universe, with people competing in terms of sport, attention and ticket sales. But competitors on the pitch need to be business colleagues off the pitch.”
Scott Edelman is a litigation partner and cochair of Gibson Dunn's media, entertainment and technology group, based in Century City:
“From my perspective, I don't think entertainment law is inherently 'sexy'. I don't work with celebrities – I work with studios, networks and music companies, which are corporate enterprises just like Bank of America, General Motors and the Shell Oil Company. Even for those working at boutique firms who represent the talent, it isn't necessarily easy. Some celebrity clients can be demanding, and frequently need to be pampered. Competition to do entertainment work is intense, and nobody should get into entertainment law thinking it is easy.”
“My general advice is don't load up on entertainment classes at law school – maybe just take a couple of basic classes like copyright or IP. If you want to get into entertainment law, use law school as a time to cover basic solid subjects including securities, commercial law and antitrust. There will be plenty of time to focus on entertainment later.”
Faiza Saeed is the head of Cravath's M&A group, working primarily with media and entertainment clients:
“The clients are less accustomed to full-blown long-form agreements, and some of the dynamics that go into being more precise in describing a transaction and what the restrictions will be on two companies going forward. It's often helpful to speak their language, and understand how they do deals in their own business, so you can do a better job of counseling.”
“I think that students have to make a decision as to which side of the business they're interested in. Are they deal-oriented, in terms of being a corporate transactional lawyer, or more on the entertainment side – dealing more with talent? They're very different career paths that lead to working at very different firms, and many are fuzzy as to which side they want to be on.”
Larry Weinstein, co-head of Proskauer's false advertising and trademark group in New York:
“It sounds almost stupid to say as it's so obvious, but if you want to be a good advertising lawyer you need to find advertising interesting. If you're a sports lawyer, you have to like sport. If you're an entertainment lawyer, you have to like the music or the movie business, for example.”
“When students are searching for law firms to apply for, they should try and get beyond the generalities they see on the firm websites. We do this kind of work 24/7, and there's a big difference between practicing advertising law at a firm like ours compared to other firms who only do false advertising work on rare occasions.”