Legislative Initiatives:
What matters
Moderator: Daniel
Kummer, NBCUniversal Media, LLC
Panelists: Vans
Stevenson, Motion Picture Association of American, Inc.
Uniform Law Comm’n has a project this year to create a
uniform draft law for all 50 states. We, among others, have opposed that
program. We don’t want to have to lobby in all 50 states at once. NY: pending bill; Louisiana also, w/bill
sponsored by IP lawyer who’s looking at NY for what happens. Trying to solve an
issue for a locally famous French Quarter musician. Last 20 years, 14 states have worked on ROP
litigation MPAA engaged w/directly. Cal. 1999: Fred Astaire’s widow went crazy
on a ruling on an instructional video clip of Astaire protected by 1A. Could
have dealt w/digital avatars back then but then didn’t.
Kummer: postmortem extension is the biggest issue—why is
that?
Stevenson: biopics; dealing w/the heirs of famous people esp
those who aren’t actors.
Gena Feist, Take Two Interactive Software, Inc.: We didn’t
see a digital avatar problem; don’t fix something that doesn’t exist. Lohan/Gravano: ruled that the current statute
applied and that we didn’t violate it.
Pending legislation rewrites 2 sentences into 4 pages, adds postmortem
element, and adds digital recreations of actors. There’s been over 100 years of
litigation over 2 sentences; don’t change if there’s not a current problem. If
there is a problem, it’s that there is no fee-shifting or motion to strike
procedure to get rid of these cases quickly.
[anti-SLAPP law!] There’s
extortion from people who say “that looks like me!” and T2 can afford
litigation but small game makers, of which there are many, can’t. The games people are unclear about
expressiveness are simulation sport games, not games like Grand Theft Auto where there are 100 hours of storyline. The Lohan/Gravano argument focused on
“disguised advertising”—can you put something in the game and then use it for
advertising/mugs? Going forward, that’s
an interesting issue. Another issue resolved in the opinion: though sufficient
similarity may be an issue for a factfinder, there is a threshold issue of
whether there’s enough to get to a factfinder that a court can and should
resolve on a motion to dismiss.
Edward Rosenthal, Frankfurt Kurnit Klein & Selz PC: NY has
generally gotten it right; dangers to NY industries if there’s a big change.
[Solution in search of a problem.] If you really want a postmortem right,
that’s a 1 sentence fix to the statute, not a total rewrite.
Feist: a postmortem right doesn’t necessarily protect
creators. Perhaps a nontransferable right for families would go a long
way—avoid ROP trolls as there are patent troll groups, copyright troll groups.
Kummer: worry is that young performers will be forced to
sign away rights early in their careers.
Are exemptions counterproductive by suggesting that everything else is
subject to ROP?
Stevenson: exemptions for expressive works are designed to
increase certainty. We don’t want the cases brought in the first place against
motion pictures, magazines, etc.
Feist: if it encompasses all 1A rights, there’s no argument
against it. But she can’t imagine a bill that expands the right and then carves
out 1A protected rights that increases certainty unless it is incredibly clear
and incredibly strong and includes fee-shifting/motions to strike—people are
suing [T2] now based on a law that’s already really clear.
Stevenson: generally works well for us. [yes, b/c you are
representing legacy media, and Feist isn’t.]
Kummer: countering emotional appeal of actors/players
claiming rights over their digital avatars?
Stevenson: Paul Newman: if you are a producer (as he is) how
are you going to do certain kinds of stories w/o a real exemption? Much
high-level talent also works as producers, writers, and you explain that.
Kummer: deepfakes?
Feist: it’s a solution looking for a problem. Actors say
they don’t want to be cast against their will, that’s very sympathetic but it’s
not happening outside of porn—deal w/specific and narrow problem, not all
movies/video games. Also, the problem w/that industry is that it is unlikely to
respect any laws NY might write against it.
Rosenthal: identity theft doesn’t need to be addressed
through the ROP at all. Likewise revenge porn. So too with “deepfakes.”
Stevenson: Legislators often want to make a name; don’t care
about whether an existing law or another law would work [SESTA/FOSTA!]. Also they don’t care about the 1A: they say
let the courts figure it out; they’ll get the credit for the law regardless.
Kate Klonick: wants to push back on ROP as inappropriate for
deepfakes—there absolutely is going to be a big deal in which people want to
watch Harry Potter & Hermione Granger as played by the movie actors having
sex. There are dignitary and expressive
harms that occur.
Feist: but then you can’t have an expressive works exemption
(for regular movies, video games, etc.) as opposed to having a special targeted
statute.
Stevenson: political advertising is exempt, but deepfakes
for politics are going to be a big problem.
Q: digital avatars: Tom Cruise doesn’t need to be in Mission
Impossible 8. That’s sympathetic.
Stevenson: we drafted language with SAG-AFTRA that could
cover that, but in reality it’s covered by union agreements/contracts.
Q: similar to sports games: you’re having them do what they
do for a living and not paying them.
Feist: for living actors, that makes some sense, but for
dead ones it doesn’t. You’re not taking the dead one’s salary. A dead actor’s
“right” to earn for their families is different from a family interest in not
seeing a dead parent endorsing products 30 days after their death.
Stevenson: great advice: if you don’t understand it, kill
the bill!
Rosenthal: a couple of other things about last year’s NY
bill. It abandoned domicile and allowed anyone to bring claims in NY. Extended
statute of limitations from one to three years, and adopted a discovery rule.
We know from © how difficult this can be.
No comments:
Post a Comment