By: Lucia Izzolo, Associate Editor

In the latest round of tech layoffs, Spotify announced last week that they are shedding 6% of their staff. This amounts to around six hundred employees. The streaming giant joins companies like Meta, Amazon, Google, IBM, Microsoft, and more by letting go of significant portions of their workforce.  

Spotify, like many other tech companies, engaged in a spending and hiring spree during the pandemic. Spotify expanded into new global markets and poured money into its podcast business. While the live music industry suffered, Covid-19 sparked an economic boom for many large companies within the technology sector. Individuals stuck at home due to lockdowns had more time and money on their hands, leading to an increase in the consumption of entertainment. However, as the pandemic slowly fades into history, so does this market trend. With the cost of living climbing and inflation rates remaining high, many individuals canceled their streaming subscriptions to save money. 

The layoffs at Spotify follow the economic downturn widely felt throughout the tech industry. Daniel Ek, Spotify’s CEO, posted a memo to the company’s website citing the changing dynamics of the organization and a shift in spending priorities due to a challenging economic environment. Ek took full responsibility for the cutback in spending, stating that he was “too ambitious in investing ahead of our revenue growth.” Although no one likes to see people lose their jobs, the layoffs are a silver lining from an investor’s perspective. Cost-cutting measures are a positive sign, representing a company’s manifestation of a more profitable state. And it may be working––Spotify’s stock price increased 4.5% after the announcement.  

From a legal perspective, Spotify has likely covered its bases, at least where its United States employees are concerned. Six hundred former Spotify workers may be without jobs, but they are not going home empty-handed. All affected employees receive five months of severance pay, healthcare benefits, and career counseling services. However, The Times reported that Spotify potentially breached United Kingdom employment law. Unlike the United States, where the default employment relationship is “at will,” employees in the United Kingdom enjoy contractual and statutory protections. Among these protections include a minimum statutory notice of termination of one week for every year of service (up to a maximum of twelve weeks’ notice). Whereas United States employers can terminate employment relationships for any reason—or no reason at all— dismissals in the United Kingdom are considered unfair if they are without reason and a fair procedure. United Kingdom employees at Twitter already took the company to the employment tribunal over how their layoffs were handled, and Spotify may be next.   

 

Works Cited:  

https://www.nytimes.com/2023/01/23/business/spotify-layoffs.html 

https://www.forbes.com/sites/qai/2023/01/26/spotify-announces-layoffs-to-6-of-its-workforcestock-price-jumps-in-response/?sh=41e5b4d71b38 

https://qz.com/spotify-tech-layoffs-2023-follow-larger-pattern-1850020423 

https://www.cm-murray.com/wp-content/uploads/2019/02/LITTLE-BOOK-OF-UK-EMPLOYMENT-LAW-FOR-US-EMPLOYERS-2019.pdf 

https://www.nationalworld.com/culture/music/spotify-layoffs-tech-redundancies-uk-ceo-daniel-ek-job-cuts-3997968 

https://www.thetimes.co.uk/article/spotify-not-following-uk-employment-law-nqzkrdl3j 

By: Shelby Harding, Senior Editor 

On August 18th, 2022, news dropped that Cleveland Browns suspended quarterback, Deshaun Watson for 11 games after civil and criminal lawsuits were brought against Watson alleging sexual misconduct. Two Texas grand juries declined to indict Watson on the criminal complaints, and Watson reached confidential settlements in 23 of the 24 civil lawsuits filed against him. Despite both the criminal and civil charges being resolved, many people questioned the NFL’s decision to proceed with Watson’s suspension and $5 million fine for violating the NFL’s personal conduct policy.  

However, the August 18th agreement between the NFL and the NFL Players Association (“NFLPA”) was not Watson’s initial discipline. The NFL and the NFLPA jointly appointed  former U.S. District Judge Sue Robinson to be the disciplinary officer in Watson’s case. At the end of June, Watson had a three-day hearing in front of Robinson, where the NFL was responsible for establishing the burden of proof that Watson violated the personal conduct policy. Following the hearing, Robinson ruled to suspend Watson for six games with no additional fine. It is worth noting the NFL recommended to suspend Watson for the entire 2022 season, but Robinson stated that she was “bound by standards of fairness and consistency of treatment among players similarly situated”. 

The NFL officially appealed Watson’s six game suspension, and NFL Commissioner Roger Goodell designated former New Jersey Attorney General Peter C. Harvey to rule on the appeal. The Collective Bargaining Agreement between the NFL and the NFLPA outlines each party’s right to appeal the decision. Prior to Harvey ruling on the appeal, the NFL and NFLPA reached a settlement for an eleven-game suspension and $5 million dollar fine. Watson will be eligible for reinstatement on November 28th to play in the Brown’s Week 13 matchup against the Houston Texans.  

Many fans were confused about the NFL’s authority to discipline Watson after the criminal charges were not pursued by the Texas courts. The answer is fairly simple. The Collective Bargaining Agreement between the NFL and the NFLPA outlines the NFL’s disciplinary discretion and procedure which both parties must approve. The Collective Bargaining Agreement includes all the rules and procedures the teams, players, and employees must follow. Deshaun Watson’s story with the NFL and the NFLPA’s disciplinary procedures continues as an additional civil lawsuit was filed against him in October. The NFL stated that they will be monitoring the newly filed litigation and will address the possibility of additional sanctions based on developments in the new case.  

Works Cited 

https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf 

https://www.nfl.com/news/browns-qb-deshaun-watson-suspended-11-games-fined-5-million-following-settlement 

https://www.npr.org/2022/08/19/1118350437/deshaun-watson-suspension-nfl 

https://www.nfl.com/news/nfl-commissioner-roger-goodell-explains-league-s-decision-to-pursue-one-year-sus 

https://www.nfl.com/news/new-civil-lawsuit-filed-against-browns-qb-deshaun-watson 

By: Melissa Bergmann, Senior Editor   

In recent years, the “docudrama” genre has grown in popularity. A docudrama is a television series or film featuring dramatized depictions of real events. This genre includes series such as “Dahmer,” “Inventing Anna,” and “The Act.” Coupled with the recent growth in popularity in this genre is growth in defamation lawsuits filed by the real-life individuals depicted in these movies and television shows.  

A defamation suit threatens HBO’s 2022 docudrama “Winning Time: The Rise of the Lakers Dynasty.” The series received rave reviews from audiences and critics, but actual members of the 1980’s Los Angeles Lakers basketball team, nicknamed the “Showtime Lakers,” are less than impressed. In a letter sent to HBO by his attorney, Jerry West (former Lakers basketball player, coach, and general manager) called his depiction in “Winning Time” a “baseless and malicious assault on [his] character.” While West has yet to file suit against HBO, the letter alludes to possible false light and defamation claims, which West has threatened to take “all the way to the Supreme Court.”  

However, “Winning Time” contains a disclaimer at the beginning of the first episode that reads, “This series is a dramatization of certain facts and events. Some of the names have been changed and some of the events and characters have been fictionalized, modified or composited for dramatic purposes.” A disclaimer such as this is on par with disclaimers in other docudramas. This leaves many wondering: does a disclaimer protect the creator of a docudrama from liability in potential defamation suits? 

The use of disclaimers in media works dates back to 1932 when Irina Yusupov sued MGM Studios for defamation over her depiction in “Rasputin and the Empress.” This lawsuit resulted in Yusupov winning approximately $125,000 (around $2.4 million today), followed by Hollywood filmmakers trying to prevent a similar fate by including “all person and events fictious” disclaimers in films. 

To prevail on a defamation claim, public figures, such as those who are commonly depicted in docudramas, are subject to the heightened defamation standard of proving actual malice, along with the traditional elements of defamation. Accordingly, a public figure depicted in a media work must prove the depiction was (1) an assertion of fact; (2) actually false or created a false impression about him; (3) highly offensive to a reasonable person or defamatory, and (4) the show creator knew the representation was not true or made it with reckless disregard for the truth. 

Therefore, a disclaimer, such as that in “Winning Time”, can be used by media creators as a defense against the “assertion of fact” element, arguing that no reasonable viewer would believe that the depictions were assertions of fact.   

Recent case law favors the assertion that disclaimers cannot absolutely absolve the producers of a docudrama from liability. In Gaprindashvili v. Netflix, Inc. (C.D. Cal 2022), the United States District Court for the Central District of California denied Netflix’s motion to dismiss, concluding that Netflix acted with a “reckless disregard” for the truth, in a case where Nona Gapringashvili brought a defamation claim against Netflix for her depiction in “The Queen’s Gambit.” The court held that the presence of a disclaimer at the beginning of the show, stating that the series is a work of fiction, is a factor in the defamation analysis but is not dispositive. The court noted that Netflix, by “purport[ing] to be set in a historical setting and…referenc[ing] real people and facts,” created “the impression that [it] was asserting objective facts.” 

The same court, in Mossack Fonseca & Co., S.A. v. Netflix (C.D. Call 2020), found that the disclaimers at the beginning and end of “The Laundromat” aided in dismissing the plaintiff’s libel case against Netflix. The court held that “no reasonable viewer…would interpret the film as conveying ‘assertions of objective fact.’” The court distinguished Mossack from Gaprindashvili by finding that the defamatory line in “The Queen’s Gambit” was one of “factual detail incorporated into the [s]eries for believability,” while the defamatory depictions in “The Laundromat” were “main plot devices…which are clearly fictional or at least dramatized.” 

Will the disclaimer at the beginning of “Winning Time” save the producers from liability for defamation? Legal experts point to one scene in particular that may prove that HBO producers were attempting to make assertions of fact. In this scene, West’s character throws an MVP trophy through an office window and Jerry Buss’s, character “breaks the fourth wall” by looking directly into the camera, saying “Jerry West, head coach of the Lakers, basketball legend, considered a true gentleman of the sport to everyone who doesn’t know him.” Media lawyer, Daniel Novack, believes that by speaking directly to the audience, the show is “basically [telling the audience] ‘trust us, this is real.’” Similarly, Alexander Rufus-Isaacs, the attorney who represented Nona Gapringashvili, said that this scene proves the show’s creators are “vouching for their portrayal of West.” 

Given that a disclaimer may be viewed as one element in the defamation analysis, instead of a dispositive factor, docudrama creators should not rely on a disclaimer to absolve them from defamation liability. Instead, as entertainment attorney David Halberstadter suggests, docudrama creators should engage in thorough review when script writing, including a citation to source material supporting any factual statements made. 

 

Works Cited 

https://www.latimes.com/sports/lakers/story/2022-04-28/jerry-west-winning-time-hbo-supreme-court-legal-experts 

https://www.hollywoodreporter.com/tv/tv-news/if-jerry-west-sued-winning-time-legal-case-may-face-uphill-battle-1235134802/ 

https://www.jdsupra.com/legalnews/is-jerry-west-s-potential-lawsuit-4797801/ 

https://www.cbr.com/movie-disclaimer-fiction-mgm-lawsuit-rasputin-empress/ 

Mossack Fonesca & Co., S.A. v. Netflix Inc., No. CV 19-9330-CBM-AS(x), 2020 U.S. Dist. LEXIS 250113 (C.D. Cal 2020). 

Gaprindashvili v. Netflix, Inc., No. 2:21-cv-07408-VAP-SKx, 2022 U.S. Dist. LEXIS 23304 (C.D. Cal. 2022). 

https://www.law360.com/articles/1539508/minimizing-the-rising-risk-of-biopic-defamation-suits 

By: Dani Bhadare-Valente, 3L Member 

This year, a Fairfax County, Virginia jury awarded Johnny Depp a defamation victory against his ex-wife, Amber Heard. The trial not only captivated the American public, but the verdict may potentially change the trajectory of defamation cases involving public figures in the future.  

To win his defamation case, Depp first had to prove that: (1) Heard made or published statements about Depp; (2) those statements were false; (3) those statements had a defamatory implication about Depp; (4) Heard intended to defame Depp; and (5) those statements were published to someone other than Depp.  

Because Depp is a public figure, he also had to prove that Heard had actual malice behind the statements at issue. The actual malice standard required that Depp prove, by clear and convincing evidence, that: (1) Heard made the statements knowing they were false; or (2) Heard made the statements so recklessly that it amounted to a willful disregard for the truth. If Depp failed to prove any of these elements, the jury was required to return a verdict against him.  Depp sued Heard for defamation about three alleged statements in a Washington Post op-ed:  

1. “I spoke up against sexual violence—and faced our culture’s wrath. That has to change.” 
2. “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” 
3. “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” 

As Heard’s attorney correctly stated in his closing argument, she only needed to prove one instance of physical, sexual, emotional, or psychological abuse by Depp—by a preponderance of the evidence—to win against him. Why? Because truth is an absolute defense to claims of defamation. Even if the jury found that Heard exaggerated the abuse, she would still prevail if they found she had proven at least one instance of abuse. 

Heard carried that burden of proof. This case was not, as many try to characterize it, a game of “he said, she said.” Throughout the trial, Heard testified to fourteen incidents of domestic violence throughout her relationship with Depp, all of which were corroborated with the evidence she provided in their U.K. libel suit in 2018. Heard introduced recorded conversations with Depp and photographs depicting her injuries after several violent interactions with him.  Depp himself testified to becoming “a different person” when drunk or high and admitted that there were several times during their relationship where he blacked out and did not remember what he did, said, or acted.  

Despite the overwhelming evidence, however, the jury found that there were no instances of abuse. So, how do we reconcile these apparently contradicting realities? Is it a failure by the Heard’s legal counsel? Is it a complacent jury? Maybe. But perhaps it was simply because the court of public opinion carried more weight than the court of law.  

Johnny Depp is a critically acclaimed Hollywood actor and has been since he stepped foot on the scene in 1984, starring in A Nightmare on Elm Street. He was, and continues to be, a heartthrob for women around the world. In fact, adoring fans camped outside the Fairfax County, Virginia courthouse for days, hoping to catch a glimpse of the A-list actor. Fans grew up with, adored, and fantasized about Depp. Though the attorneys for both parties worked hard to fill the box with impartial jurors, it was nearly impossible to find someone who had never even heard about Depp or liked one of his films. People don’t want to believe that a person they grew up admiring was anything other than the idol they built them up to be in their heads. 

On the other hand, Heard had no such advantage. While she has been in the public eye since 2004, she has not reached the level of fame or adoration as her ex-husband. In fact, most people know her as “Aquaman’s girlfriend.” People did not have the same level of familiarity or adoration for her as they did Depp. Think of it as the “home-court advantage” in a basketball game: sometimes you root for someone solely because of the color of their jersey.   

Of course, Heard carried fault as well. Depp also alleged and testified that Heard was abusive in their relationship as an affirmative defense to her claims of defamation. However, two wrongs do not make a lie. The merits of the case rested upon whether each party lied about domestic abuse with actual malice. It’s plausible that Heard and Depp proved truth as an absolute defense in their both cases, because it seemed clear that they were both active in the domestic violence claims. In that case, neither party should have received a verdict for defamation. However, the court of public opinion ruled, and it ruled early on. Amber Heard lost the case before she stepped into the courtroom. 

Works Cited:

https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/high-profile/depp%20v%20heard/cl-2019-2911-jury-instructions.pdf  

https://www.nbcnews.com/think/opinion/johnny-depp-verdict-amber-heard-defamation-case-wrong-rcna31510 

https://slate.com/culture/2022/06/johnny-depp-amber-heard-trial-verdict-evidence-truth.html 

https://www.imdb.com/name/nm0000136/ 

https://www.imdb.com/name/nm1720028/ 

By: Elizabeth Tirrill,  Digital Editor 

French designer Jean Paul Gaultier recently unveiled a new ready-to-wear capsule collection titled “Le Musée,” featuring depictions of famous art on Gaultier’s clothing designs. The pieces in the collection include clothing that features the likeness of Botticelli’s famous “The Birth of Venus” painting, along with other renowned works. This collection comes a few years after the luxury fashion house Louis Vuitton collaborated with artist Jeffrey Koonz to create leather goods that featured the works of Van Gogh and Da Vinci. However, the legendary Uffizi Gallery in Florence, Italy may potentially sue “Le Musée,” and Jean Paul Gaultier for the use of Botticelli’s work. 

After discovering Gaultier’s designs with “The Birth of Venus,” the Gallery sent a cease-and-desist letter, and another letter later demanding that the designer and artist either come to an authorization agreement or all production of the clothing cease. Botticelli’s Renaissance work is undoubtedly within the public domain. Italian copyright protection, much like American copyright protection, extends through the life of the author, plus 70 years. Generally, a work entering the public domain is a defense against an assertion of copyright infringement. Once the copyright term ends, others may use or copy the work without a license or attribution.  

Gaultier is at risk for liability, despite using a work in the public domain. This is because Italy adopted the Code of Cultural Heritage and Landscape in 2004. The code requires that works that have cultural significance cannot be used for commercial benefit without specific authorization and the payment of a fee. Here, “The Birth of Venus” is an iconic work that fits under the law’s description of something that has cultural significance. There are exceptions to this law, such as use for education or scientific purposes. In fact, a legal scholar suggested that Gaultier could fit into an exception under the code if he can successfully argue that his works are “creative re-elaborations” of Botticelli’s work.  

As of October 10, 2022, Uffizi claimed Gaultier “substantially ignored” its demands to cease using the design. Although Gaultier’s website no longer features the collection, there are still some retailers where the pieces may be purchased. Should Gaultier fail to meet Uffizi’s demands, this issue will proceed to court.  

Works Cited: 

13:19. Defenses commonly arising in copyright litigation—Public domain, Copyright Litigation Handbook § 13:19 (2d ed.)

https://www.thefashionlaw.com/uffizi-wages-legal-battle-against-jean-paul-gaultier-over-illicit-use-of-botticelli-art/ 

https://wwd.com/fashion-news/fashion-scoops/jean-paul-gaultier-uffizi-gallery-florence-botticelli-venus-legal-1235383521/?sub_action=logged_in 

https://www.wmagazine.com/story/jeff-koons-louis-vuitton-collaboration-mona-lisa-duffel-bag 

https://www.artnews.com/art-news/news/uffizi-gallery-sues-jean-paul-gaultier-botticelli-image-1234642647/  

https://www.wipo.int/edocs/lexdocs/laws/en/it/it211en.pdf  

By: Lauren Degen, Content Editor

Non-fungible tokens, commonly referred to as NFTs, have rapidly grown in popularity over the past few years. The cryptographic assets exist via blockchain and often represent tangible possessions like artwork or individuals’ identities. Because the current market for NFTs is primarily focused on collectibles, many athletes, musicians, and other celebrities use the digital tokens to release their own collections, purchase exclusive NFT artwork, and promote new creators through endorsements. While it is completely legal for celebrities to engage in the promotion and endorsement of NFTs, the practices may create legal issues of deceptive advertising when relevant information is not properly disclosed.  

For example, many celebrities, including Justin Bieber, have been warned by the consumer watchdog agency Truth in Advertising (“TINA”) for promoting NFTs online via Instagram. In the case of Bieber, he did not properly disclose that the promotional NFT posts were advertisements, nor that he had a material connection to the company which created the NFTs. Similarly, TINA warned Reese Witherspoon after promoting NFTs created by a company that was engaged in partnership with a brand owned by Witherspoon.  

These practices appear to be in direct violation of the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising (“The Guides”). The Guides explicitly state that any material connection in advertising, which includes personal stake in the promoted company or compensation in the form of money or free products, must be clearly disclosed to the public.  

The purpose of such disclosures is to protect the public, and the Federal Trade Commission (“FTC”) has ramped up enforcement as companies continue to seek celebrity endorsement via social media sites like Instagram and TikTok. In recent months, the FTC issued notices to over 700 companies for engaging in potentially deceptive advertising practices. Similarly, TINA has focused directly on reaching out to celebrities, like Jimmy Fallon and Tom Brady, to warn them that their NFT promotion practices may result in regulatory action from the FTC. The FTC also sought public comment on potential amendments to The Guides in order to strengthen advertising guidelines specifically targeting businesses and social media influencers.  

Many of the celebrities promoting NFTs use their platforms to reach consumers as influencers. Since the Guides were last amended in 2009, technological advancements and growth of social media advertising have created an appetite for updated endorsement regulation. However, a more beneficial approach may be to invest in educating brand marketers and influencers about the requirements they must follow when endorsing products like NFTs. Digital asset investment can sometimes be volatile, so celebrities should take caution to follow all endorsement guidelines issued by the FTC on future NFT collaborations to avoid reprimands and fines.  

 

Works Cited: 

https://www.investopedia.com/non-fungible-tokens-nft-5115211 

https://www.aeaweb.org/forum/2620/endorsements-testimonials-advertising-comments-invited 

https://www.law360.com/articles/1527194/celebrity-nfts-may-raise-deceptive-advertising-issues 

By: Noah Zedeck, Symposium Director

The Miami Dolphins are currently under fire for the organization’s apparent mishandling of its star quarterback’s head injuries. The National Football League and its concussion protocols are taking heat as well.   

In week three of the NFL season, the Miami Dolphins faced their division rivals, the Buffalo Bills. Just before halftime, a Bills lineman sacked Miami’s quarterback, Tua Tagovailoa.. As Tua tried to get back on his feet after the hit, viewers watched as he stumbled around the field and had to be held up by some of his teammates. Most people reached a fair conclusion after witnessing this scene unfold: Tua had suffered a head injury and would be unable to finish the game. However, after halftime, Tua shockingly returned to the field and finished the game. TheDolphins announced a minor back injury caused Tua’s apparent stumbling. 

Four days later, Tua and the Dolphins once again took the field for the team’s matchup against the Cincinnati Bengals. During this game, Tua was sacked once again, only this time he didn’t get up.  Dolphin’s personnel carted Tua off the field and took him to the hospital. Doctors determined he had suffered a severe concussion. Now, the NFL Player’s Association (NFLPA) began an investigation into Miami’s handling of the Tua situation and has vowed to “pursue every legal option.”  

It is the job of the NFLPA to protect and advocate for the players. This includes ensuring that teams follow the various injury protocols in place. The Dolphins insist that they followed the concussion protocols to a tee, and that, per League rules, Tua was evaluated by both team doctors as well as an Unaffiliated Neurotrauma Consultant (“UNC”). The NFLPA, however, isn’t buying it. The UNC that evaluated Tua’s apparent head injury in week three has already been fired, and the investigation is still ongoing. Many people are calling for the League to enhance its concussion protocols.  

If the NFLPA does find that the protocols were not properly followed, it can file a grievance with the NFL. Such filings are resolved via arbitration, and this is not the first time the NFLPA has had to intervene. In the past, the NFLPA has found that protocols were not properly filed. Those filings proceeded to arbitration, where penalties were imposed as fines, staff terminations, and protocol changes.  

This time, however, it appears that the NFL and NFLPA have already reached a settlement of sorts. Both organizations released a joint statement in which the NFL acknowledged that changes needed to, and would, be made to the Leagues concussion protocols. The NFL and NFLPA will have to agree on the changes, and the situation could still proceed to arbitration depending on the results of the NFLPA’s investigation into the matter.  

This situation serves as a reminder of the importance of the Player’s Association to hold teams legally accountable for the safety of their players. It imposes necessary costs upon teams that would otherwise look to win at all costs. 

Works Cited:

https://profootballtalk.nbcsports.com/2022/09/26/investigation-regarding-tua-tagovailoas-return-to-play-could-take-1-2-weeks/ 

https://www.si.com/nfl/2022/09/30/tua-tagovailoa-injury-nflpa-demaurice-smith-pursue-every-legal-option 

https://www.washingtonpost.com/sports/2022/10/01/nflpa-fires-independent-doctor-involved-clearing-tua-tagovailoa/ 

By: Aaron Steinberg, Editor-In-Chief

 

On-demand streaming, is primarily licensed and paid for by the streaming services, such as Spotify and Apple Music. This framework makes on-demand streaming unique since consumers are not paying directly for the licensed works. These on-demand, or “interactive,” streams pay fractions of a penny per stream to the songwriters and music publishers for two different royalties: public performance royalties and mechanical royalties. The combination of the public performance and mechanical royalties are referred to as the “all-in” royalty.

 

The U.S. Copyright Royalty Board (CRB) meets every five years to set both the required mechanical and public performance royalty rate. This rate set by the CRB is referred to as the “statutory rate.” Furthermore, the CRB established the method in which Spotify must allocate revenues earned by Spotify to pay publishers and songwriters.

 

In 2018, the CRB increased the percentage of United States revenue that on-demand digital service providers (DSPs) are required to pay to songwriters and publishers. The royalty rate went from 10.5% to 15.1%. Despite this ruling, the legal battle continued as Spotify, Google, Amazon, and Pandora filed an appeal, disputing the raised rate. However, as of August 2022, the DSPs, National Music Publishers’ Association (NMPA), and National Songwriter’s Association International (NSAI) jointly proposed new mechanical streaming rates for 2023-2027, where the top royalty rate will increase to 15.35%.

When the rate increase reaches 15.35%, Spotify will be required to pay songwriters the higher of either: (1) 15.35% of Spotify’s gross monthly revenue; or (2) 26.2% (or an updated percentage based on CRB ruling) of the sound recording royalties generated from all the record labels that had sound recordings stream that month. Based on this calculation, Spotify then splits the funds between mechanical and performance royalties and accounts the funds to songwriters and Performance Rights Organizations (PROs). The funds are distributed in accordance with the number of times each specific recording has been streamed compared to the total number of streams on the platform that month. This is called the “pro-rata” model.

 

Now, we must wait and see whether the CRB accepts or rejects this mutual proposal from the DSPs, NSAI and the NMPA to raise the top royalty rate to 15.35%.

 

Works Cited:

//www.royaltyexchange.com/blog/mechanical-royalties

https://vi.be/files/research/the-definitive-guide-to-spotify-royalties-by-jeff-price-3.pdf

By: Gavin Dwyer, Senior Editor  

 

Myles Brennan created waves throughout the collegiate football world when he announced his retirement on August 15, 2022. However, the waves were not related to his on-field performance, nor how his retirement would affect the LSU Tiger’s season. Instead, the media focused the spotlight on the name, image, and likeness (NIL) deals he signed while part of the LSU football program. NIL deals allow individuals to profit from their likeness through sponsorships, paid advertising, or other licensing deals. 

 

Brennan signed NIL deals with a variety of companies such as Raising Canes, Smoothie King, GameCoin, Smalls Sliders, and Hollingsford Richards Ford.  

 

 Members of the media, such as Darren Rovell of the ACTION NETWORK, pontificated how Brennan’s early retirement may slow NIL deals across the college football landscape. Rovell pontificates that “Brennan would have still been able to keep the money if, five days after he signed all the deals, he left LSU.” 

 

However, this is not necessarily true. Rovell is correct in saying the NIL deals cannot be predicated around Brennan playing for LSU or any performance incentive bonuses. However, just because Brennan signed these deals does not mean he automatically gets all his NIL money he contracted for.  

 

Like any other contract,  payment is not required if performance is not completed.  Therefore, Brennan keeps the money from any NIL deals where he completed his contractual obligations. However, if Brennan signed NIL deals based upon future endorsements that he did not fulfill, he would not see that money.  

 

Additionally, Louisiana and LSU provide protections to those contracting for the use of collegiate athletes’ NIL rights. Both Louisiana law and LSU NIL policy state contracts for collegiate athletes’ NIL rights shall not extend beyond their participation in an athletic program. Therefore, after Brennan left the program he relinquished all future compensation he could earn under his current NIL deals.  

 

Without being privy to Brennan’s contracts and the language contained within each of them, it is impossible to say what money he will keep and what money he will never see. In any event, the retirement of Brennan is unlikely to affect the growth NIL deals at any substantial rate like Rovell claims.  

 

According to On3, Brennan had an NIL valuation of $327,000, ranking 112th among all collegiate football players. This is a drop in the bucket when you look across the NCAA and see that players like Jaden Rashada allegedly signed an NIL deal worth $9.5 million. Until a major deal like that is affected by retirement, there will be no measurable impact on NIL deals in college athletics. 

 

Since NCAA v. Alston, NIL deals have allowed collegiate athletes to profit from their own NIL rights. They finally get a sliver of the billion dollar enterprise they devote years of their lives to. Brennan’s retirement will not slow the growth and expansion of this new arena. Attorneys will likely carefully draft these agreements in such a way where all the compensation is not due up front if the contract is likely to extend for multiple seasons or endorsements. 

 

Brennan’s situation should not be viewed as a cautionary tale to entities contracting to use collegiate athletes NIL rights. Instead it should be viewed as a success of Alston, finally allowing athletes who will never get a paycheck professionally to profit off of their dedication and participation in a billion dollar arena. 

 

Works Cited: 

 

https://www.sportsbusinessjournal.com/Daily/Issues/2022/08/16/Marketing-and-Sponsorship/Myles-Brennan-NIL.aspx#:~:text=Brennan%20signed%20a%20car%20deal,money%2C%20which%20he%20did%2C%22  

https://afrotech.com/jaden-rashada-said-to-have-inked-largest-nil-deal-in-history-at-9-5m  

https://www.on3.com/college/lsu-tigers/news/darren-rovell-details-how-myles-brennan-retirement-will-affect-his-nil-deals-lsu-tigers/   

https://www.actionnetwork.com/ncaaf/lsu-qb-myles-brennans-retirement-could-slow-speed-breadth-of-nil-deals-across-college-football 

Sen. Bill. SB60, 2021 Reg. Sess. (La. 2021). https://legiscan.com/LA/text/SB60/2021  

https://www.lsu.edu/bos/docs/policies/policy_name-imagelikeness-2021-june.pdf  

By: Katie Hinkle, 3L Member and Managing Editor

In early Summer 2022, The Ohio State University made headlines that were much different from many other newsworthy events. OSU filed a patent for the word “The” and the United States Patent and Trademark Office finally accepted it after a failed previous attempt. 

Generally, a trademark in the United States means “any word, name, symbol, or device, or any combination thereof used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter [the Lanham Act] to identify and distinguish the individual’s goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”  

There are four categories of trademarks: 1) generic 2) descriptive 3) suggestive and 4) arbitrary or fanciful. Generic marks belong in the weakest category, therefore never deserving of a trademark registration. Arbitrary or fanciful marks belong in the strongest category and deserving of registration. 

So, how did Ohio State receive a trademark for this seemingly “unfanciful” mark? 

Three years ago, the institution applied for a trademark for “The”. If you are familiar with Ohio State University, you know the use of this word runs deep within the rich traditions of the school. These traditions run deep enough to where many retailers sell t-shirts, posters, home décor, stickers and other pieces of apparel embellished with “The” in scarlet and gray, along with buckeye leaves, footballs, football helmets, and other symbolic ties to the school’s illustrious sports history. 

This decision by the United States Patent and Trademark Office to grant OSU the trademark leaves a sour taste in the mouths of many, particularly because many view the use of “The” in the name of the institution as pretentious. However, trademark scholars point to a common layperson misconception reminiscent with this same situation. The layperson may believe once a mark, phrase, or word is trademarked, no one else can use that mark at all, no matter the context. However, trademark protection is highly contextual, therefore just because an individual registers something that does not meanwhatever they registered cannot ever be used again.  

Case law explains why allowing registration for “The” is valid. When “The” is used in connection with the institution’s colors and sports teams, the mark has gained secondary meaning. This secondary meaning identifies the source of the goods with the mark “The” with The Ohio State University. The strength of this mark comes from the “intrinsic quality” of the mark , or its public history due to The Ohio State University’s use of “The.” In other words, the traditions carried on by the institution have contributed to the strength of this trademark. 

In the end, the registration of such a seemingly nonsensical mark is a great lesson on the validity of marks and exactly what misconceptions trademark law sparks among the public. 

Works Cited:

1 Gilson on Trademarks § 2.02 Generic Names 

15 U.S.C.S. § 1127 

15 U.S.C.S. § 1052(f) 

Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). 

McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1132 (2d Cir. 1979). 

National Law Review, “THE” Trademark of the Year? Ohio State University Trademarks THE, (June 28, 2022). https://www.natlawreview.com/article/trademark-year-ohio-state-university-trademarks#:~:text=Ohio%20State%20University%20Trademarks%20THE,at%20sporting%20events%20for%20decades.