Extract taken from 'The Media and Entertainment Law Review - edition 1'

Overview

The past year has seen significant judicial and regulatory developments affecting the media and entertainment industries in the United States.

Courts have continued to recognise the robust protections historically available in the United States for free speech and media access to government information in the face of a US Presidential administration more hostile to those ideals than any in recent history, and perhaps ever. Indeed, the news media are not only persisting, but thriving, in the face of efforts by numerous governmental actors to cast doubt on the credibility of professional journalists as reporters of objective facts. Courts have also continued to grapple with the effects of an increasingly interconnected, digital world on distribution and consumption of media and entertainment fare, with numerous decisions in recent years that help to define the contours of copyright law, rights of publicity and other relevant legal doctrines. We continue to see robust debate over whether courts are under- or over-enforcing intellectual property rights in the digital age.

Regulatory agencies have undertaken significant initiatives to ensure that their oversight function and regulatory activities are appropriately tailored for the modern, digital economy. For example, the US Federal Trade Commission (FTC) has undertaken an extensive review of its enforcement of federal antitrust and consumer protection laws, including many days of public hearings with dozens of witnesses and public comments from hundreds of additional stakeholders. While the FTC’s review is not limited to the media and entertainment industries, there has been a particular emphasis on the impact of large technology companies, such as Amazon, Apple, Facebook and Google, whose impact on those industries in recent years cannot be overstated. The US Department of Justice is systematically reviewing some 1,300 antitrust consent decrees that regulate conduct across various sectors of the economy, but this review has already resulted in a decision to terminate a long-standing decree governing the practices of certain large film studios with respect to the distribution of films for theatrical release, and the decrees governing the organisations that license the public performance rights for most of the music available in the United States are under intense scrutiny as well.

Legal and regulatory framework

The legal and regulatory framework that governs the media and entertainment industries in the United States is a patchwork of protections of constitutional dimension, state and federal statutes, government agency oversight and judicially evolved common law doctrines.

Perhaps the most distinguishing feature of US law with respect to media and entertainment is the robust protections for free speech and media freedom afforded under the First Amendment to the US Constitution and state constitution equivalents. While US media are not immune from libel and defamation claims, and there are some restrictions on their ability to gather and report news and information, they enjoy considerably more latitude than is afforded to their counterparts in most other parts of the world.

Another noteworthy feature of the operative legal and regulatory framework in the United States is the mix of state and federal government oversight. The media and entertainment industries are subject to general oversight under many statutes, such as the state and federal laws that protect consumers and competitive markets. In some instances, they are also subject to narrower forms of regulation, such as oversight of broadcasters and other media and entertainment companies, by the Federal Communications Commission, which regulates interstate and international communications by radio, television, wire, satellite and cable. There are manifold issue-specific statutes that affect media and entertainment companies, ranging from online collection of personally identifiable information about children to advertising of alcohol, tobacco and other products, to cite just a few examples. In some areas, such as copyright law, federal jurisdiction is exclusive and state regulation is pre-empted. In others, such as rights of publicity, rights are only provided at the state-law level, and there is no federal protection. And for many areas, such as antitrust and consumer protection, companies may be subject to regulation and oversight at both the state and federal levels. Also worthy of mention is the combination in the United States of statutory and common law. For example, US copyright law is a creature of federal statute, whereas the hot news misappropriation doctrine is a judicially evolved concept derived from general principles of equity.

This at-times overlapping, patchwork approach sometimes leads to disputes over which legal regime governs a challenged entity’s conduct. This frequently arises with respect to the pre-emptive reach of federal copyright law, which forecloses certain state law remedies viewed as overlapping with federal copyright law and policy. Varying state regulation (e.g., of rights of publicity) can also create anomalous results for the media and entertainment industries. Rights of publicity, which limit the use of an individual’s likeness for commercial purposes without permission, may survive post-mortem for 100 years in one state and not survive post-mortem at all in another. The complications this framework of regulation creates in an increasingly interconnected digital world that blurs geographic borders and traditional lines of demarcation between media industries can be confounding.