Protecting the Entertainment Industry: A Deep Dive into Intellectual Property Law
By: Kelsey Welby
The rise of AI has led to many questions and concerns for those in the entertainment industry. The Writers’ and Actors’ Strike of 2023 was partially in order to protect jobs from being taken over by artificial intelligence. Due to the rapid progression of AI, it has been difficult to create any legislation, especially with the confusing relationship between AI and copyright.
Copyright can be a complicated subject. Copyright does not protect ideas, it protects expressions of creativity. With Generative AI, the inputted prompt can be argued to be either an idea or a creative expression. The generated result is not really either of those things. It’s a mix of millions of different pieces of information found throughout the Internet, with most of those being expressions of creativity. AI is going to cause problems for a while, but copyright on human-made expressions of creativity is fairly reasonable.
In the music industry, for example, there are two types of copyright. Composition copyright is owned by the songwriter or publisher and includes the song itself. The master copyright is owned by the artist or their label and includes the final, recorded performance of the song. To put this into context, it is easy to think of Taylor Swift. All of Taylor Swift’s earlier albums are owned by a new record label that bought out her previous label, thus they own the master copyright of her discography. However, Taylor Swift did not want to be a part of this new label, so she decided to re-record all of her songs. This is not copyright infringement because, as the songwriter, she owns the composition copyright. If she were to have republished her earlier songs, it would have been infringing on the master copyright that she does not own. Record labels saw the effect that Taylor Swift’s re-recordings had, though, and many now want to prevent the possibility of re-recording albums. Swift now owns both types of copyright on all her new songs, which can have incredible financial effects.
The different copyright owners not only have different powers in terms of what they own, but they also have power in terms of what decisions they can make. Depending on the contract, one person may have all the power to decide what shows and movies can use an artist’s songs, what covers are allowed, and more. This specific form of copyright, and ownership, is found slightly tweaked throughout the entertainment industry, but it is most common in the music industry. It is seen in something that impacts consumers of media, DMCA, or the Digital Millennium Copyright Act. If you have ever been on social media, you have probably seen a silenced video, or an edited version of a published movie or show, this is because of DMCA. DMCA protects copyrighted content by making sure other people are not reproducing or sharing it. Fair use is a complicated subject regardingthe use of copyrighted works. Fair use can be argued when copyrighted content is used in critiques, reports, and a few other situations. This is how the news and content creators use bits and pieces of content when discussing it without any consequence or need to compensate the owner of the media.
Trademarks are more common within the entire entertainment industry. Trademarks protect names, logos, and slogans, so most celebrities and companies use them. A unique example of the power of trademarks is the Olympics. The words “Olympics,” “Team USA,” “Olympians,” and their logos are some of the most protected in the country. This is so the US Olympic and Paralympic Committee can foster more partnerships, sponsorships, and money, as this is the main way they do so. A more specific form of intellectual property are rights of publicity, which thirty-five states recognize. These protect a celebrity’s name and face from being used commercially for anything that has not been approved by the celebrity themself. Questions regarding rights of publicity are usually sparked after a death, with questions over the use of images and more. However, once something enters the public domain, there is no longer any form of copyright that can save it. When a copyright expires, intellectual property enters the public domain, and anyone can use it. For example, the first official Mickey Mouse cartoon, “Steamboat Willie” entered the public domain this year, meaning that anyone can use that character for commercial use. However, Disney is extremely protective over its intellectual property, so it’s not recommended to try and use anything owned by them commercially.
The biggest thing when it comes to intellectual property laws is contracts. Contracts outline revenue and ownership of intellectual property. It is necessary to have an outline of who owns which copyrights, who can make financial and other decisions regarding use, and who recieves the money. In the music industry, it’s incredibly important to have this information written down. Songwriters, producers, band members, and more are all involved in creating one song, and it is important to know how the revenue will be split up. It’s also important to set up plans for the future, especially in cases of a record label being bought, or a band breaking up. There have been cases in the past, many of which have gone to court, about conflicts over performing rights of music, money divisions, and more. Intellectual property law has taken a major role in protecting the entertainment industry, but it is also new and vulnerable to further questions and conflicts as technology evolves
Image Source:
https://nashvillelawoffices.com/other-areas/entertainment/
Sources:
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Fair Use (FAQ). (n.d.). U.S. Copyright Office. Retrieved November 4, 2024, from https://www.copyright.gov/help/faq/faq-fairuse.html
Malik, Y., Kachwala, Z., & Koyyur, A. (2023, September 27). Explainer-What caused the Hollywood writers' strike and is it over? Reuters. Retrieved November 4, 2024, from https://www.reuters.com/article/world/uk/explainer-what-caused-the-hollywood-writers-strike-and-is-it-over-idUSKBN30X0UN/
Milano, B. (2024, April 3). How Taylor Swift changed the copyright game by remaking her own music - Harvard Law School | Harvard Law School. Harvard Law School. Retrieved November 4, 2024, from https://hls.harvard.edu/today/how-taylor-swift-changed-the-copyright-game-by-remaking-her-own-music/
Roesler, M., & Hutchinson, G. (2020, September 16). What's in a Name, Likeness, and Image? The Case for a Federal Right of Publicity Law. American Bar Association. Retrieved November 4, 2024, from https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law