Media and advertising

In a nutshell

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.

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

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 specialty 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

You need to be prepared that the 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, chair of the advanced media and technology group 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.”
Working in a fun sector doesn't mean fun work all the time! 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, chair 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 a 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 into 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 an understanding of the 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: “No one should think they have an in because they have worked for an entertainment company. Half of students have experience in media companies.” Pomerantz 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 number one rule is simply to be a first-rate lawyer.

Current issues

June 2021

During the COVID-19 pandemic, the Federal Trade Commission sent warning letters to several companies that have allegedly violated the FTC Act by deceiving the public about their products’ ability to treat or cure coronavirus. Multi-level marketers have also been called up on misleading people about earnings they can make from selling supposed COVID-19 treatment and prevention products.
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. 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.”
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.
California’s Assembly Bill 5 (AB5) came into effect on January 1st, 2020. The bill requires ‘gig economy’ workers to be classed as employees. This will affect the entertainment industry, though it seems the rules of the bill work differently for photographers, freelance writers and graphic designers. How broadly those definitions of those are used will affect entertainment’s use of screenwriters, camera operators, animators, etc., and likely be a source of future litigation. In May 2020, California Attorney General Xavier Becerra sued Uber and Lyft for allegedly misclassifying their drivers as independent contractors and denying them employee benefits like minimum wage, violating AB5. Uber and Lyft have appealed California Superior Court Judge Ethan Schulman’s ruling that drivers must be classified as employees. New York, New Jersey, Illinois and Washington have all implemented similar laws. During the 2020 presidential election campaign, Joe Biden pledged he would implement a nationwide version of AB5.
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.”
'Deepfake' technology 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 sinister ways – as a tool for blackmail, defamation and manipulation.
In April 2020, Jay Z took legal action against YouTuber Vocal Synthesis, who used deepfake technology to upload a video of Jay Z rapping Billy Joel’s ‘We Didn’t Start the Fire’ and Hamlet’s ‘To be or not to be’ soliloquy.

Top tips

Scott Edelman, litigation partner and co-chair of Gibson Dunn's media, entertainment and technology 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, 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.”