A Catch-22 in the Social Media Age

Earlier this week a prominent client of mine asked me what I can do to stop a local blogger from constantly writing about my client’s personal activities and linking to my client’s company’s website. I explained the available options and discussed with him why it may be best to ignore the blogger. I mentioned the Jones Day v. Blockshopper.com case that was settled last year where a large law firm, Jones Day, filed suit against an internet company that listed the real estate purchases of some of the law firm’s employees and then linked to the employee’s law firm biographies. This case was settled out of court and the bottom line is that Blockshopper.com is still able to link public land records to the web biographies of Jones Day employees.

I told my client something I’m sure many are taught in elementary school, to ignore the bully, and eventually, the bully will go away. My client was told not to do what Jerry Seinfeld did to Kathy Griffin’s character Sally Weaver in the January 1998 Seinfeld episode “The Cartoon.” In the social media age, if a cease and desist letter is sent to a blogger, assuming the blogger can be identified, it will just provide the blogger more ammunition and will most likely increase traffic to the blog. Most of my clients are Type-A personalities and it goes against their make-up to ignore this type of situation. In general, the 1st Amendment protects most forms of speech. Therefore, in many of these situations it is be best not to legitimize the offending blog’s comments by providing a response. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media and The Right To Publicity

The Right To Publicity enables a person to profit off of his or her name or likeness. This right varies from state to state and may be extremely valuable for entertainers and professional athletes who have a marketable name or likeness. This right was first recognized by the U.S. Courts in 1953 in Halean v. Topps 202 F.2d 866. Here, a baseball card company sued a competitor alleging that it owned an exclusive right to photograph and to publicize ballplayers they had under contract and that a competitor did not have the right to utilize a player's likeness in their trading card set while the player was still under contract with the plaintiff.

The Halean Court stated, "that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made 'in gross,' i. e., without an accompanying transfer of a business or of anything else. Whether it be labelled a 'property' right is immaterial; for here, as often elsewhere, the tag 'property' simply symbolizes the fact that courts enforce a claim which has pecuniary worth. This right might be called a 'right of publicity.' For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures."

Entertainers, professional athletes, and celebutantes (those famous for being famous) have a love-hate relationship with the paparazzi. The paparazzi serve a much needed role because they help these people stay in the public's eye. According to the L.A. Times, some celebrities may have formal or informal relationships with members of the paparazzi which feed the publicity machine that is so important to an entertainer's career. Celebrities sell the rights to their images for staggering sums. For example, according to the Today Show, Brad Pitt and Angelina Jolie sold photos of their newborn twins to People and Hello magazines for $14 million dollars. Pitt and Jolie had previously sold images of their daughter Shiloh to Getty Images for a donation and to People and Hello Magazine for $4 million dollars.

The bottom line is that social media may create new revenue opportunities that if properly utilized has the potential to become major income streams. Unfortunately, for most entertainers and professional athletes the window of opportunity to capitalize on these assets is short and unpredictable. Therefore, social media action plans must be created and implemented during the early stages of a celebrity's or athlete's career. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Entertainment and Sports Social Media 360 Deals

Entertainment 360 deals have slowly become more prevalent in the entertainment industry during the past several years. A 360 deal is one where a record label or entertainment company signs talent to a contract that entitles the company to derive revenue not only from traditional revenue streams such as record sales, but also from all other monetizeable areas. These other revenue streams may include: endorsements, merchandise sales, publishing, and songwriting. The revenue splits vary depending upon an artist's leverage in the industry.

Michael Jackson's estate recently signed an agreement that appears to be what I call an "Entertainment Estate 360 Deal." The full details of the contract have not been disclosed as of this writing, but, it sounds as though this agreement may break new ground in the manner in which entertainment contracts slice and dice intellectual property rights. According to the New York Times, the agreement "allows Sony and the estate [of Michael Jackson] to collaborate on a wide range of lucrative licensing arrangements, like the use of Jackson music for films, television and stage shows and lines of memorabilia that will be limited only by the imagination of the estate and the demand of a hungry worldwide market." This groundbreaking agreement appears to fully monetize Michael Jackson's estate in a manner that will benefit the estate's heirs. Unfortunately, Michael Jackson may have been worth more dead than alive.

Generally, in the world of U.S. professional sports 360 deals do not exist. NFL players have an incentive to quickly monetize their social media assets because on average their playing careers last approximately 3.4 years. In order to properly leverage an athlete's social media potential, a player needs to be both talented on the field and have a unique and engaging personality. Chad Ochocinco has this rare combination and this has enabled his twitter account to attract sponsors due to his ability to acquire almost 800,000 followers.

As an attorney who practices entertainment, sports, and social media law, I am always looking for creative methods to increase my client's revenue streams. In my February 5, 2010 post, I discussed "Social Media Engagement Product Placement Contracts." To elaborate further on this topic, I want to discuss what I call "Social Media 360 Deals." In a "Social Media 360 Deal," a celebrity or professional athlete's social media assets are utilized to create synergy for both the client and the sponsor(s). Due to the constantly changing technology of social media, an attorney must be well versed in not only contract law and intellectual property, but must also fully understand the technology and capabilities of the social media platforms involved. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.