Sports, media, entertainment & advertising

In a nutshell

Sports, Media, Entertainment & Advertising

Sports, media, entertainment and advertising 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 specialties 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. 

Sports 

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.  

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 specialty – the music industry, for example – while others remain generalists. 

 
Advertising 

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 something of a misnomer as its attorneys tend to fall into sub-specialties – generally using their expertise to advise on regulatory, transactional or false advertising matters. 

What lawyers do

Sports 

  • Assist with contract negotiations, be they between clubs and sportspeople, agents and players, sporting institutions and sponsors, broadcasters and sports governing bodies.  
  • Handle varied employment and immigration issues.  
  • Defend sportspeople accused of doping offences or other unsporting behavior.  
  • Advise on corporate or commercial matters like takeovers, public offerings, debt restructurings and bankruptcies, and the securing and structuring of credit.  
  • Enforce IP rights in the lucrative merchandise market and negotiate on matters affecting a sportsperson’s image rights. 
  • Work on regulatory compliance issues within a sport. 
  • Offer reputation management and criminal advice.  
  • 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.  

 

Media and entertainment 

  • 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. 

 

Advertising 

  • 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. 

Realities of the job

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, a litigation partner and co-chair of Gibson Dunn's media, entertainment and technology practice group: 

“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, presiding partner at Cravath, working in M&A 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, former 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.” 

 

 

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Current issues

June 2023

  • Probably the most significant trend affecting the media industry today is the massive displacement across the sector caused by new technologies. Lawyers must be aware of the potential new opportunities and challenges to their practice as a result of technological innovations. Generative AI is perhaps the biggest change to sweep through the industry, raising questions of ownership of work, rights of control, and human and ethical issues including bias and privacy rights. However, Ruth Fisher 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 brought about by rampant piracy in the early 2000s led to legitimate businesses launching their own music services including Apple's iTunes, Spotify and Amazon Prime: “A lot of companies turned toward streaming services, and lawyers are affected by that… deals, issues, disputes.”  

  • Stream ripping websites that allow users to illegally download permanent copies of both audio and video media are once again on the rise. YouTube is the most used source for such ‘ripping sites’, in fact, according to MIDiA’s reports, 39.2% of music piracy worldwide in 2021 was taken from ripping sites using YouTube as their source for illegal content, compared to 33.9% the previous year. These ripping sites have come under fire with lawsuits claiming breaches in copyright, infringement and piracy laws – as of late, in October 2021 a US judge called for two Russian ripping sites to cough up $82.9 million in damages. Huge media corporations such as WarnerMedia and Sony were involved in the case.    

  • New technology presents new threats to the 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 while at the same time trying to combat illegal distribution of their crown jewels,” explains Glenn Pomerantz.  

  • With the pandemic, the film industry and cinema chains took a big hit and 2023 looks to be a continuation of the industry’s box office recovery. The global box office is projected to grow by 12% - an improvement, but still below pre-pandemic levels. As a result, studios may look to continue diversifying further in the streaming space. 

  • More players, including Amazon, Hulu and YouTube, are presenting further challenges to traditional TV players with their live streaming services. This will have an impact that spans beyond just advertising, as firmwide media and entertainment group leader Matt Thompson at Sidley Austin tells us: “Broadcast TV has been a declining for a long time – apart from sports and awards shows. At some point, an entity like Amazon is going to buy the broadcast rights for the NFL. When something like that happens, the future of broadcast TV will be uncertain.”  

  • Right of publicity has always been an import way for individuals to control their public image and use of their likeness. 'Deepfake' technology has created a whole new element to this; it uses video and audio to replicate images and voices of people, and can be used to imitate public figures like celebrities or politicians. Despite being relatively new, the sophisticated technology has become almost indistinguishable from real life. At the moment, deepfakes have been used primarily for fun celebrity replacement YouTube videos (Sty Stallone in Home Alone anyone?) This growing technology means that in the future, studios could create a personalized film experience by letting audiences choose their favorite actor to watch as the main character. This would bring up complex legal issues around who gets paid and whose intellectual property the performance becomes. For trial media lawyers, the technology could also be used in more concerning ways – as a tool for blackmail, defamation and manipulation.  

  • Deepfake has also been infiltrating the adult entertainment industry – according to a study conducted by Deeptrace Labs in 2019, 96% of all deepfake videos were of pornographic nature, with women being the victim of nearly all these fake videos. The new technology is now being used as a way of creating ‘revenge porn’, this term describes the sharing of both online and offline personal sexual media without the subject's consent. Crimes being committed via deepfake in the media and entertainment industry have now moved far beyond copyright issues and entered a much more sinister domain concerning women's rights, domestic violence and harassment.   

  • The use of facial recognition by entertainment venues raises a number of questions regarding privacy and discrimination. One of the most recent high-profile examples of this was when Madison Square Garden refused entry to a lawyer whose firm was helping litigate against Madison Square Garden Entertainment.  

  • Social media platforms have been coming under fire for rules surrounding censorship, misinformation and freedom of speech. Twitter has increasingly tried to censor its platform and control the circulation of misinformation; in fact, in 2021 the platform made a bold move to permanently suspend President Trump from Twitter for inciting violence. In April 2022, Elon Musk completed a deal with Twitter to buy the platform for a whopping $44 billion – one of his main goals behind this transaction was to encourage free speech, Musk tweeted shortly after the deal had been finalized: "Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.” In May, the deal was put on hold, with Musk claiming he required further details on the number of fake/spam accounts on the platform. 

  • In 2022, sport is still lacking clarity in gender equality, as the National Collegiate Athletic Association split from USA swimming over trans-woman competing in swimming events. Recent performances by Lia Thomas, a transgender athlete competing in NCAA Women’s Swimming and Diving Championships, sparked arguments heard across newspapers and state legislatures. The NCAA remain firm on its policy that require trans-women to take testosterone suppressants in order to compete. Whereas USA Swimming have increased the requirement to include proof that “prior physical development” hadn’t affected their performance levels against their competitors.    

  • Gender equality in sports continues to be an issue in 2023, but progress has been made on this front. Following contention over equal pay for the US Women’s National Soccer Team with the men’s team in 2022,the organizations reached a collective bargaining agreement requiring the teams to be given the same revenue share for competitions and commercial gains.In 2023, Congress passed the Equal Pay for Team USA Act into law in January requiring National Governing Bodies to ensure male and female representatives receive equal compensation across competitions. 

  • Esports remains a hot and evolving industry. In 2021, the esports market amassed $155 billion worldwide, and according to Greg Boyd of Frankfurt Kernit Klein & Selz it is “predicted to reach a value of quarter trillion dollars in the next few years.” With money predominantly flowing from sponsorships and advertising deals, lawyers across the globe will become increasingly involved with issues relating to sporting governance, broadcasting rights, sponsorship, advertising, gambling, anti-corruption, and much more as the intersection between sport, tech, and media grows.     

  • The Esports Integrity Commission (ESIC) is a governing body overseeing the integrity of this industry. The Commission seeks to regulate and eliminate all forms of malpractice in the industry, ultimately aiming to preserve sporting integrity in its digitized manifestations. Poland, for example, has expanded legal sporting regulations to prohibit doping and other areas of misconduct in this newly emerging field.