As the new year begins, the ArentFox Schiff Media & Entertainment Industry team looks back at the 10 most pressing legal issues facing companies in 2023.
1. The Full Impact of Generative AI
Heading into 2023, the big wind in the entertainment industry (and beyond) is generative artificial intelligence (AI). As a tool, AI offers artists another way to develop and express their creative freedom. But what is unknown is how using this tool will affect the ownership of the work, and whether it will jeopardize rights and control over the work. (The U.S. Copyright Office is reportedly re-evaluating a decision to grant copyright registration to a comic book that uses text-to-image AI to generate graphics.) Human and ethical concerns abound, including bias, privacy rights, homogenized content, and the loss of human creativity. All aspects of entertainment – film/TV, content, video/audio, music, art, games – are affected.
2. Ongoing Opportunities in the Metaverse
Despite the crypto winter and new technology disruptors, celebrities, entertainment companies, artists, and athletes will continue to explore opportunities in the Metaverse and web3. One of the main considerations is how to leverage brand awareness and maximize revenue streams. Watch for more branding agencies and business managers to showcase evolving (and yet untested) strategies. There will be intense competition across the entertainment industry for long-term contracts and licenses for Metaverse and web3 services.
3. The right to publicity in digital space
Publicity rights are an important means for individuals to control the use of their identities. The growing popularity of new technologies such as NFTs and metaverses provides new opportunities for criminals to exploit and abuse these identities. Entertainers, artists, content creators, celebrities and athletes should take care to protect their image rights. For example, implement policies to monitor unauthorized use of a name, image or likeness and enforcement of rights. More information about our work to protect individuals’ right to publicity can be found here.
4. IP enforcement/brand protection in new areas
Entertainment has given us many iconic global brands and characters. This makes the challenge of brand protection in the metaverse, blockchain, and augmented reality (AR)/virtual reality (VR) even more important for entertainment. Brand owners find themselves at risk due to the limitations of previously preferred 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 flourish, clear standards and policies need to be in place to protect intellectual property and reduce consumer fraud and deceit, and this year could be a pivotal one.
Additionally, brand owners should actively replenish their IP registries and portfolios to establish rights on virtual platforms and web3 ecosystems and guard against possible new types of infringements. The AFS IP Enforcement Task Force is helping to lead the way in web3 for creators, developers, brands, consumers and platforms, and will continue to monitor key developments and best practices.
5. Deep fakes are making their way into mainstream entertainment
AI-powered technology can now create picture-perfect video dubbing. Potential benefits include aligning audio and facial moments to match dub language and tweaking lines without reshoots. However, as with most technological innovations, there are some concerns. The industry will soon be forced to confront who has the authority to make these changes, to what extent, what impact it will have on the integrity of the artistic expression of writers and actors, and the impact on compensation.
6. New-age legal challenges under the VPPA
While many entertainment companies are familiar with the power of video, and possibly even the Video Privacy Protection Act (VPPA), they may not be aware that the VPPA is becoming the basis for a slew of new class-action lawsuits. In a recent case, VPPA was used to deal with advertising videos appearing on websites of various industries. For more information, please view our alert here.
7. Short growth
Driven by the success of TikTok, platforms such as Instagram and YouTube saw an opportunity through the short-form medium. Content creators are experimenting with this new medium by converting longer-form content into short clips. But is the opportunity in this space worth the brand risk for long-form content creators? Is there a legal structure in place to help these content creators protect their brand/reputation while allowing them access to the shorts space? Additionally, creators must be wary of others taking advantage of their already successful content through these short forms.
8. Will the next big hit be AI?
Advances in artificial intelligence software programs have made it easier than ever to generate music and musical performances by simply entering a text description of the desired mood, length, and genre. Throughout the history of recorded music and the music publishing business, new technologies have presented challenges and opportunities. Will artificial intelligence ultimately benefit songwriters and composers, recording artists, and copyright owners of musical compositions and recordings? Or, will it challenge the value of human creativity on which the music industry is built, and the corresponding landscape of copyright law? Music publishers, labels, songwriters, composers, and recording artists should stay abreast of AI developments and emerging lawsuits and U.S. Copyright Office decisions related to the use of AI to generate creative works. To view earlier coverage on this topic, click here.
9. Improving the copyright policy of online games
Under U.S. federal law, video game developers have broad copyright protections for the game content they create. In addition, content embedded in the game (such as music) created by third parties has separate and additional copyright protection. A growing area of the gaming entertainment industry is live streaming of games on various streaming platforms, including Twitch and YouTube. Game developers often refuse to use copyright law and the DMCA to remove potentially infringing gameplay, mostly for free publicity.
In exchange for facilitating takedown notices and counterclaims, platforms like Twitch enjoy immunity from liability through compliance with Section 230 of the Communications Decency Act. Even so, video game developers should regularly review their copyright protection policies and procedures as the streaming market continues to grow and users find new ways to consume content on other digital platforms.
10. Entertainment venues use face recognition software
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 entry to Radio City Music Hall to lawyers from its law firm involved in a lawsuit against MSGE. However, the use of facial recognition technology carries significant legal risks, ranging from biometric privacy lawsuits to government investigations. In fact, MSGE’s use of the technology prompted New York lawmakers to introduce legislation that would prohibit stadium owners from denying entry to those with valid tickets.