The UCLA Entertainment Law Review (“ELR”) is an international law journal published once or twice a year by the UCLA School of Law. Since 1994, ELR’s staff has worked diligently to bring to our subscribers academic work of the highest quality, as well as articles that tackle the most novel and cutting edge issues in the field of entertainment law.
Volume 27, Issue 1, 2020
UCLA Entertainment Law Review
Table of Contents
Under current rules, a television broadcaster is presumed to satisfy its obligation to air educational programming as long as it offers an average of three hours of self-described “educational” content each week. I propose replacing this toothless presumption with one under which a broadcaster would be deemed to satisfy the obligation only if the broadcaster donates, in cash, to a qualifying educational nonprofit, the aggregate economic value of three weekly hours of television airtime. The idea is to address an inconsistency that has undermined the traditional approach since its inception: the rules require broadcasters to air educational television because market forces would not otherwise create an adequate incentive for them to do so, but the same rules then rely on market forces to discipline broadcasters as they determine which programs are sufficiently “educational” in substance. My proposal, by contrast, would strip unmotivated broadcasters of creative control, cash them out, and move the money instead to motivated nonprofits. The burden placed on broadcasters would be the same as it is today; either way, the real cost to broadcasters is the lost opportunity to earn revenue on three hours of more profitable programming. But the value created would be substantially more. Broadcasters, in short, would no longer be told to provide educational television; they would simply be told to pay for it.
For decades universities and other educational institutions have contracted with performance rights organizations in order to be able to publicly perform and use their respective musical catalogues freely without the fear of litigation. For educational institutions, this is a significant drain on their financial resources, which otherwise could be used for the support of students through scholarships, new equipment or higher quality instructors. This Article proposes a method for determining whether such blanket license agreements are actually necessary for an individual institution, or whether such an annual budget item is legitimately justified.
Bringing Balance to the Antitrust Force: Revising the Paramount Decrees for the Modern Motion Picture Market
Concentration of market power is nothing new in the media industries—and neither is government intervention to break it up. For over seventy years, the entertainment industry has operated under the shadow of agreements between the historically powerful film studios and the Department of Justice to stay out of the exhibition market, where the studios had cemented their dominance in the naissance of the American film industry. During the same period, however, understandings of antitrust law have evolved and what was once a discrete “film” industry has ballooned into a massive entertainment marketplace. While today’s streaming and technology giants battle the threat of increased regulatory oversight and calls for bolder antitrust enforcement, the general trend of legal and practical developments suggests a far less bleak outlook than that of their Hollywood progenitors.
In fact, the policies and arguments supporting the consent decrees that emerged from the 1948 Paramount decision have been severely weakened with the passing of time. The acceleration of diversification in content and content providers has created new industry leaders like Netflix, HBO, and Hulu—and a proliferation of innovative competitors like Quibi and Peacock—that are apparently excused from Paramount’s constrictions. Instead, the Paramount Decrees’ narrow focus risks stifling the competitive flexibility of “traditional” producers and distributors of theatrical feature films as they seek to combat these new market entrants. In short, the Paramount Decrees appear obsolete given the realities of the film industry today.This Article argues for revisions to, or rescission of, the Paramount Decrees in order to better align the permissible activities of traditional film studios with those of their modern competitors. It provides a thorough review of the concerns underlying the Supreme Court’s holding in 1948 and determines that the Court’s concerns have been undercut either by subsequent developments in antitrust law or the practical realities of new and dynamic market entrants. While the Court’s anticompetitive concerns may still be valid, they appear misplaced when focused solely on those parties still subject to the Decrees. Future antitrust enforcement will instead need to reframe the picture in order to more accurately address risks of market concentration.
A bedrock principle of U.S. Copyright law normally dictates that when a person steals your original work of authorship, a court should issue an injunction and require the violator to pay damages. For centuries this principle has sufficed; however, a lack of deep-pocket defendants and continued lobbying efforts by internet service providers have made this principle untenable when applied to illegal online streaming. This is especially true for the Ultimate Fighting Championship (UFC), a mixed martial arts promoter that has seen its live broadcasts pirated over the internet at an alarming rate, thereby threatening the bulk of its revenue.
This Comment advocates that the UFC unbundle its current pay-per-view business model in favor of charging market-based prices for each individual fight. The primary benefit of this approach includes increased revenue for the UFC by enticing consumers away from illegal online streaming with lower prices. Potential adjacent benefits include reforming fighter compensation schemes, incentivizing fighters to promote their own individual fights, easing controversies regarding unionization efforts by the fighters, and providing the UFC with greater marketing data. Therefore, by unbundling its business model, the UFC will ultimately be able to bypass the shortcomings of U.S. Copyright law and take the lead in a digital media landscape already changing at lightning speeds.
Tuning Into the On-Demand Streaming Culture—Hollywood Guilds’ Evolution Imperative in Today’s Media Landscape
Hollywood television and film production has largely been unionized since the early 1930s. Today, due in part to technological advances, the industry is much more expansive than it has ever been, yet the Hollywood unions, known as “guilds,” have arguably not evolved at a similar pace. Although the guilds have adapted to the needs of their members in many aspects, have they successfully adapted to the evolving Hollywood business model? This Comment puts a focus on the Writers Guild of America, Directors Guild of America, and the Screen Actors Guild, known as SAG-AFTRA following its merger in 2012, and asks whether their respective collective bargaining agreements are out-of-step with the evolution of the industry over the past ten years, particularly in the areas of new media and the direct-to-consumer model. While analyzing the guilds in the context of the industry environment as it is today, this Comment contends that as the guilds continue to feel more pronounced effects from the evolving media landscape, they will need to adapt at a much more rapid pace than ever before in order to meet the needs of their members. However only time will reveal whether the current trajectory is idyllic or flawed.
Sending Agents to the Principal’s Office: How Talent Agency Packaging and Producing Breach the Fiduciary Duties Agents Owe Their Artist-Clients
Talent agents have always been indispensable to writers, actors, and other creative workers in the entertainment industry, providing independent representation to their artist-clients in dealings with sophisticated corporate employers. But following a historical shift in their revenues from commissioning clients to lucrative television packaging fees, the power and profits of the biggest agencies grew exponentially. Revenues from packaging fees allowed these agencies to diversify into other businesses and attracted outside investment by private equity firms leading to further vertical integration. Now, the largest agencies have turned their eye toward a new revenue stream: producing and owning content through agency-affiliate production companies.These innovations have come at the cost of the independent representation agents are supposed to provide their clients. Packaging and producing by talent agencies and their affiliates breach the well-established fiduciary duties agents owe their clients under the law by aligning the agency’s own interests with the interests of its clients’ employers. Outside investment in the agencies only exacerbates these conflicts. These departures from traditional agenting undermine the avowed purpose of the California Talent Agencies Act: to protect vulnerable artists from the conflicted practices of their agents. While these issues are at the heart of the ongoing industry dispute between the Writers Guild of America and the big agencies, their importance should concern all agency clients and their unions. The California Legislature should amend the outdated Talent Agencies Act to enumerate and reaffirm the fiduciary duties talent agents owe their clients under common law and prevent the erosion of legal protections for creative workers in one of the state’s largest and most important industries.