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4 Ent. & Sports Law. 13 (1985-1986)
Defining Entertainment Law

handle is hein.journals/entspl4 and id is 53 raw text is: Over the past several years, this writer has been privi- leged to read many interesting articles on entertain- ment law in this and other publications. During such period, no one has apparently considered it appropri- ate in such articles to offer a definition of the area of law about which he or she has been writing. To this writer's knowledge, no one has yet sought to propose a conceptual framework for entertainment law to give cohesion to what may otherwise appear unrelated sub- ject matter. The absence of attempts to define enter- tainment law is understandable since the subject matter embodied under such rubric tends to defy defi- nition. More than once has this writer heard comments to the effect that entertainment law is incapable of defi- nition but, rather, that it is a catchword for unre- lated-albeit individually definable-areas of law. Unquestionably, there is truth to such comments, but they do not tell the complete story. Accordingly, this article will propose one definition of entertain- ment law which has been shaped by the experience of this writer and a colleague with whom this author has spent years teaching and writing about the theory and practice of entertainment law. This writer and his col- league have defined entertainment law as follows: Entertainment law, as practiced in the United States, is that body of principles governing activi- ties within the entertainment industry in this country. This industry has five branches: movies, television, live theater, music and print publish- ing. Among these branches are common issues, such as the structure of power relationships within the branches; the importance of credit or billing; the methods of structuring compensation and related issues; creative control and the in- terests at stake in seeking to obtain or restrict such control; the different methods by which rights and creative products may be transferred; and representations, warranties, and indemnities re- lating to risks particularly characteristic of the entertainment world. To understand the principles which apply to these issues throughout the entertainment industry, it is sub- mitted that practitioners of entertainment law must first understand the business practices which exist in the different branches of the industry. The principles of entertainment law, after all,' are merely aids for resolving disputes arising among business people in the industry. To use these aids effectively, however, it is essential to understand the business issues at stake for the parties to the dispute. Our definition of entertainment law suggests a view, functionally speaking, which holds that the subject matter of entertainment law is the deal, i.e., the ex- ploitation of an entertainment project. Such a view, in turn, supports an analogy wherein business is per- ceived to be the skeleton to which legal principles, in part, bestow flesh. Therefore, in the world of enter- tainment law, business, not law, dominates. Different from most industries, in the entertainment business the foundation of a deal is an underlying piece of intellectual property. Thus, in the movie branch of the entertainment industry, an obvious ex- ample of intellectual property with which that branch is identified is the screenplay. In the television branch, it is the teleplay; in the theater, it is the play; in music, it is the records and songs; and in the print publishing branch of the entertainment industry, the analogy is books. Accordingly, the practitioner of entertainment law must have some knowledge of the legal principles governing the use and protection of intellectual prop- erty rights, i.e., primarily copyright and trademark law. The negotiation of intellectual property rights, in the context of making a deal in the entertainment business, requires knowledge of certain additional matters primarily relevant to the entertainment indus- try. Echoing our definition of entertainment law above, this writer and his colleague have suggested that these additional matters comprise the following: issues of credit or billing (i.e., attribution of function to person); particular issues of compensation (dealing, for example, with concerns about contingent as op- posed to present remuneration); artistic control (i.e., determining the appearance of an entertainment proj- ect); grants of rights (dealing with such concerns as the differences between licenses and assignments); and representations, warranties and indemnities pertain- ing to risks based on rights characteristic of the enter- tainment industry (such as the rights of privacy, pub- licity and copyright). One question posed by our definition of entertain- ment law is the effect such definition might have upon the entertainment practitioner. It is submitted that such definition would heighten sensitivity to the fact that business considerations really dictate resolution of an issue, whether in the obvious context of negotiat- ing a business deal, or the less obvious context of re- solving a dispute through litigation. Two cases whose plaintiffs this writer has represented are described below in illustration of this point. They are Perin Film Enterprises, Ltd. v. TWG Productions, Inc. 78-4031 (S.D.N.Y. 1978), and Silverman v. CBS, Inc., 84 Civ. 1894 (S.D.N.Y. 1984). In Perin, the court held that plaintiff stated a valid cause of action for unfair competition in claiming that 13

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