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
- “It's a great deal of fun, in part because of the personalities involved,” says Bruce Wilson, a senior corporate partner from Covington & Burling with expertise in sports law. But mingling with the stars also brings its own set of challenges. “You need to be willing to stand up to people unaccustomed to hearing the word 'no',” he explains. This demands attorneys to “be exceptionally creative, and learn how to say 'perhaps there's an alternative option'.”
- Media clients are generally accustomed to a more informal working style than you find in the world of BigLaw. To succeed in this industry, you'll need to demonstrate that you're clued up on what makes the entertainment industry tick. A healthy understanding of the media is just as important as your knowledge of the law.
- CEOs and senior management of corporate businesses are particularly interested in advertising litigation. Why? “Because advertising significantly impacts market share,” says Larry Weinstein, co-head of Proskauer's false advertising and trademark group. “Market share is really how corporate America stays alive and thrives, particularly in the areas of consumer products and pharmaceuticals.” Attorneys in these areas tend to work not just with in-house counsel but with people at every level of their clients' business.
- It's also worth noting that these cases – advertising in particular – often involve complex issues of technology, consumer research, or product testing methodology. You don't need to be a science whiz-kid, but it's essential to be open to learning about new techy concepts and products.
- Attorneys in each of these fields should expect a heavy workload, strict deadlines and an extremely fast-paced lifestyle. On the advertising side, cases tend to go to trial more than the average commercial litigation in the US. “On average, each partner in our advertising practice at Proskauer tries one or two cases a year,” says Weinstein. “That's a lot for a big corporate law firm, and it's very exciting.”
- Whether you're a transactional or litigation lawyer, there are a number of different disciplines you'll need to master in order to succeed in the competitive world of media and entertainment. Scott Edelman, cochair of Gibson Dunn's media, entertainment and technology practice group, stresses: “I'd encourage people who want to end up as media and entertainment litigators to acquire a broad set of skills in litigation. It doesn't matter if it's environmental, real estate or employment litigation, but acquire a broad set of skills before narrowing.”
- Many newbies waltz into the world of media law expecting glitz and glamor. There's an element of that: “If you're an associate telling your friends about a deal you've worked on they'll understand who the company is and what they do. It makes it more glam and exciting,” says Faiza Saeed, head of Cravath's M&A group. However, “in terms of nuts and bolts, it's basic M&A skills.”
- Choose your law firms carefully. As a generalization, in media and entertainment law, big corporate firms tend to deal with industry clients, and smaller boutiques with the 'talent'. They're very different career paths, and there's not as much crossover between them as you might expect.
- Finally, media and entertainment, advertising and sport are extremely competitive areas to break into. There are far more associates looking to work here than there are job opportunities. Weinstein stresses: “If you want to have a chance to work on advertising cases, you'll be far better off working at a firm with 30 or 40 cases a year in this area, than one with a few.”
- There is ongoing debate as to whether and in what way media organizations should distinguish sponsored content, often known as infomercials or advertorials, from native content. In late 2013 the FTC issued a warning about them to consumers and stated its intention to vigorously enforce false advertising legislation against companies that mislead consumers.
- Another area which has become particularly relevant recently is the extent to which the First Amendment protects journalists from being forced to testify in cases upon which they have reported. At present, each state has been able to take its own approach, with “the 4th Circuit reaching the unfortunate decision that James Risen, a New York Times Journalist, could be compelled to testify at the trial of a CIA employee accused of leaking,” explains Laura Handman, cochair of the appellate practice at Davis Wright Tremaine. Meanwhile, in New York the High Court ruled that another journalist who published leaked excerpts from 'Batman killer' James Holmes' diary was protected by the First Amendment from having to testify to the source of the leak at his murder trial.
- In November the DC circuit ruled that satire, even when a proportion of the recipients don't appreciate it as such, is classed as protected opinion. The ruling came as a result of lawsuits brought against the author of 'Where's the Birth Certificate?', questioning President Obama's heritage. Esquire posted a statement on its Politics Blog that, following the publication of the certificate, the publisher would recall and refund all copies of the book. “The statement was held to be satirical as the hypothetical reader would have perceived it as such,” according to Handman.
- Rights of publicity in video games has hit the headlines as two groups of college footballers sued for royalties after their likenesses were used in games without permission. They succeeded in one case but failed in another, under virtually identical facts. According to Charles Tobin, chair of Holland & Knight's media practice team, “the case law in this area is extremely confusing. This has meant that it is very difficult for lawyers to advise clients on the associated risks."
- Another important issue which has reached the courts is when it is possible to sue the author of an app for cell phones or tablets for making use of personal data, such as geolocation and behavioral preferences, without consent. A number of companies, including Rovio (producers of Angry Birds), are currently engaged in a class action suit in Texas. Tobin explains that “this is a very fruitful class of suit for plaintiffs. With increased regulation from the Federal Trade Commission in the form of broad mandates developers must follow, this area of law has become very confusing. This helped drive the expansion of entertainment law as a practice.”
Advice from the gurus of sports, media, entertainment and advertising
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.”