Entertainment Law Update Podcast Episode 13 - by Gordon Firemark

Gordon Firemark and Tamara Bennett Trademark, Copyright, Entertainment Attorneys discuss a variety of issues on August 25, 2010.  The following are two issues I found interesting:

Invasion of Privacy issue:  Justin Beiber tweeted 15-year old Kevin Krisopik’s phone number on a Saturday night, telling his 4.5 million followers that it was his own phone number.  Kevin received 26,000 calls and text messages from fans of Justin Beiber.   Justin admitted to going this and said that he did it because Kevin got ahold of Justin’s cell phone number, and had been bothering him with unwanted, annoying text messages. Kevin’s father is worried about the phone bill.   Gordon and Tamara discussed what the possible damages would be.  There were not any monetary damages because Kevin had an unlimited text messaging phone plan.  It may have cost money to change the phone number, but that is small claims issue, probably not worth pursuing. It was the responsibility of Justin.  Was there a right of privacy violation?  Since the phone number was private, a reasonable person would think it is a violation of privacy.  Was it an intentional and willful act of Beiber?  Probably not.  The discussion of this case was interesting because the attorneys did bring up any possible legal liability, that could apply to this case, but none of them applied.  

The next discussion that I found interesting is the Federal Communications Commission’s (FCC) indecency policy ruling that, the FCC must allow for isolated instances.  This case involved, Fox Broadcasting, which had been cited by the FCC for comments made by Cher and Nicole Ritchie during the Billboard Music Awards show in 2002 and 2003.  (Teinowitz, 2010).   A Fox spokesman, Scot Grogin, stated, “we must allow for the unfortunate isolated instances where inappropriate language slips through.”  (Teinowitz, 2010)  The Federal Court had tossed the FCC’s indecency policy, ruling that it violates the First Amendment and admonished it for vague enforcement.  The court referred to incidences such as Janet Jackson’s “wardrobe malfunction” and Bono’s f-bomb at the Golden Globes.  The three-judge panel at the U.S. court or appeals called the FCC policy “unconstitutionally vague” and it “creates a chilling effect”. 

The podcast discussed the fact that the networks indecency policy is impermissibly vague, and that it results in a standard that even the FCC cannot articulate or apply consistently.  I agree with Firemark and Bennett, there has to be flexibility in the law to protect kids and those with sensitive ears for when these things happen.  This issue has to do with an expression of excitement, that sometimes happens on live television.  The FCC has a list of 7 bad words you can’t say on live television.  Should there be a list of the 7 bad words?  Is the list the right criteria?  Maybe the list should be updated. And, the policy has to be clear and concise so that it can be followed.  I also agree that the policy is unconstitutional and the FCC must update it. 

The second issue is something that could possibly apply to my business plan.  You never know if the artist I manage could win an award and I would be there with them to accept it.  Some of the other issues discussed on the podcast were on-going and more research would have to be done to go back to the original cases.  

Detroit Free Press, The Detroit News, WSJ. (August 17, 2010). Justin's Evil Prank. Retrieved on January 29, 2012, from http://theweek.com/article/index/206135/justin-biebers-evil-prank

http://firemark.com/2010/08/25/entertainment-law-update-podcast-episode/

Teinowitz, Ira (July 13, 2010). Fox 'Pleased' by Indecency Ruling: 'Must Allow for Isolated Instances'.       Retrieve on January 29, 2012, from http://www.thewrap.com/media/column-post/court-tosses-fccs-indecency-policy-first-amendment-  violation-19182

Legal Liabilities in the Concert Industry

The entertainment industry has many different kinds of lawsuits.  I think a career as an entertainment attorney would be very interesting.  There are a few different lawsuit articles that I found interesting relating to the concert industry.

The first issue is a lawsuit filed on December 28, 2011, by Juice Entertainment, LLC. in federal court claiming Live Nation Entertainment used unfair business tactics that led to the fair terminating its agreement to have Juice book concerts in 2011, at the Meadowlands complex in East Rutherford, New Jersey. The lawsuit claims that Juice Entertainment lost more than $75,000 as a result and alleges Live Nation interfered by telling State Fair Entertainment Management, that Juice was broke and lacked the experience to book concerts for the fair. (Reinartz, 2011)

I have been following Live Nation news and events for the past year, as I am interested in the company.  As for this lawsuit, Juice Entertainment just may have a valid claim to Live Nation pushing them out of the way, after all Live Nation is a powerful corporation taking on most of the world in concert and music promotion.  As for unfair business practices, Live Nation would have a tough time getting where they are at today by practicing unfair business practices.

The next legal liability I want to talk about is a horrible event that happened over the summer.  The Sugarland stage collapse in Indiana where 7 people died.  Forty-four survivors and family members of the deceased, along with producers, stage riggers, and others associated with the show of August 13, 2011, filed a lawsuit on November 22, 2011. According to plaintiff’s attorney, Sugarland’s contract gave the performers final say on whether the show should be cancelled due to weather. The complaint claims that the band and other entities are said to have owed a duty to provide a safe concert environment, using reasonable care in the direction, set-up and supervision of the show. (Schillaci, 2011)  Another article on the Hollywood Reporter said that the tour manager stopped the band from going onto the stage just minutes before it collapsed.  (Powers, 2011)

This is a tragedy that could have been prevented.  I agree that it is the duty of the band and its entity.  There are some disasters that cannot be prevented, but I agree that it is up to the tour manager to keep up with what is going on with the weather when you play at outside venues.  The weather report said that 60 mile an hour winds were expected just one half hour before the concert began.  

There were 2 other concerts where stages collapsed last year but fortunately they were not as tragic as Sugarland.  One of these concerts was a Flaming Lips concert in Oklahoma,   August 8, 2011.  The other was a Cheap Trick concert in Ottawa, Canada.  Neither resulted in lawsuits that I am aware of.   Another thing that venues and performers may want to look at is the age and strength of staging and concert equipment.

http://www.cbsnews.com/stories/2011/08/15/earlyshow/main20092363.shtml

http://www.pollstar.com/blogs/news/archive/2011/12/28/792443.aspx

http://www.hollywoodreporter.com/news/sugarland-stage-collapse-lawsuit-indiana-265443

http://www.hollywoodreporter.com/news/sugarland-stage-collapse-indiana-state-fair-saved-lives-223600  


http://www.hollywoodreporter.com/news/massive-flaming-lips-set-piece-220439 


http://www.hollywoodreporter.com/news/stage-collapses-cheap-trick-concert-212425  

Roger Waters – The Wall Tour 2011-2012

Tickets go on sale this week for Roger Waters - The Wall stadium tour, which starts in May 2012.  As I was deciding whether or not to buy tickets for the next leg of this amazing theatrical rock concert, I thought this would be an excellent topic to post on my blog this week.  In December of 2010, I had the opportunity to see The Wall at an arena in San Jose, but seeing it at AT&T Park in San Francisco would be amazing.  I had also thought how cool it would be to work production for this tour!

I’ve been a fan of Pink Floyd since the late 70’s.  I can still remember the first time I listened to The Wall album.  I saw Roger Waters in 1987, soon after he left Pink Floyd, and again in 2008 for his Dark Side of the Moon tour.  And in 1994 I also had the opportunity to experience four Pink Floyd concerts with David Gilmour (no Waters).  I had a friend who worked for that tour as a video technician and in charge of the giant inflatable pig.  For these shows I was able to go backstage after the show and see the production, and sit on the third level of the video board in the middle of the venue during the show, at Foxboro Stadium in Massachusetts and Olympic Stadium in Montreal, Quebec.

Okay, back to Roger Waters, The Wall.  There’s some interesting reading on this production.  Roger Waters is a perfectionist and is attempting to perfect the touring version of what he considers the defining work of his career.  (Hiatt, 2011)  The Wall album was originally released in 1979, and was a tale of an alienated rock star named Pink whose biography bears a distinct resemblance to his own.  Pink Floyd's original live version of The Wall was in 1980 and it had giant puppets, synchronized graphics and that wall, constructed brick by brick, and then knocked down at the show's climax.  This tour set a standard for other rock spectacles including the Rolling Stones, Steel Wheels Tour and U2’s Zoo TV. The 2011-2012 version is all that of the original but so much more high tech. 

The Wall was originally an album about the feelings of loss and alienation that Waters was feeling during that time in 1979.  Although the original narrative is still present, the meaning has now turned to a wider statement on the effects of war, religion, politics and commerce on 21^st century life.  It is filtered through Waters concern for the human condition and is as much of an emotional experience as it is cerebral (2011) In its largest configuration, the wall is 35’ high and 240’ wide and depending on the slope of the venue where it is being played, it can range from 210’ wide to 240’.  The wall is built brick by brick during the two-act show, each act at approximately 55 minutes long.  At the end of the show the wall crashes down.  With the building of the wall, the story, music, theatrics, flying planes and pigs, and the vocal emotions of life by Waters, this makes for a show that should be experienced. 

Read more: Retrieved on November 13, 2012 at http://www.rollingstone.com/music/news/back-to-the-wall-rolling-stones-2010-profile-of-pink-floyds-roger-waters-20111006#ixzz1ddzspJZ7


Read more:  Retrieved on November 11, 2011 at http://www.tpimagazine.com/production-profiles/874494/on_the_road_with_roger_waters_the_wall_live.html 

Keeping Up With Live Nation Entertainment

I have been following the business news of Live Nation Entertainment (LNE), as it is currently the world’s leading live entertainment in the world. LNE is comprised of four market leaders: Ticketmaster.com, Live Nation Concerts, Front Line Management Group and Live Nation Network.  They also have a contract with top bands such as U2, Madonna, Jay-Z and Nickelback.  Ticketmaster.com is the global event-ticketing leader with over 26 million monthly unique visitors. Live Nation Concerts produces over 20,000 shows annually for more than 2,000 artists globally. Front Line is the world’s top artist management company, representing over 250 artists.

LNE is constantly adding more entertainment endeavors to the company, so what are they up to now?  On October 25, 2011, LNE announced an agreement with Los Angeles based concert promoters Andrew Hewitt and Bill Silva, who cover two of the largest music markets in North America, Las Vegas and Southern California. At this time another promoter, AEG Live, is strong in those areas.  This move will strengthen their presence in that competitive area. With this agreement, Hewitt and Silva will join the Live Nation team in overseeing the booking, marketing, and promotion of the company’s concerts in Southern California and Las Vegas.  The concerts venues will range from smaller club like venues to large stadiums, and bring in some of the top acts in the business.  "Working together, we will be able to maximize our market leadership and grow our business in these major entertainment markets."  (Billboard, 2011)

I believe that LNE will continue to add more to their company.  LNE are constantly keeping up with the market and the economy, offering lower ticket packages and finding new ways to satisfy the consumer. This is a company that I would love to get onboard with because they do marketing, promotions, and artist management and because they are such a mega company, that continues to grow. 


http://www.billboard.biz/bbbiz/industry/touring/live-nation-muscles-up-in-southern-california-1005435572.story 

Contract Negotiations in the Music Industry

On September 18, 2011, I spoke with Brad Stewart, Founder and CEO of Dynamic Artists Management, LLC, San Pablo, California.  Dynamic Artists Management, LLC, has provided management and booking services for eclectic music clientele since 1999.  Brad has worked in the music industry since 1990 and has been involved as a booking agent and manager for a variety of music artists such as rock, blues, R & B, jazz, world, reggae and pop. Brad believes that Dynamic Artists Management (DAM) is built on offering potential clients a go-getting work ethic and personal attention.  Brad referred to DAM as a boutique agency; a smaller, specialized agency servicing a specific group of artists for highly focused industry needs in California’s Bay Area.

Brad has had plenty of experience in negotiating contracts, as a large part of the business is contract negotiation, finding the best “buyer” for the artists.  The buyer would be the promoter or venue, and can be anything from a smaller club to a large festival.  Over the years Brad has established good relationships with the buyers and this is a very important part of negotiation. 

I asked Brad how often he used objective criteria to come to a mutual benefit when negotiating contracts for the artists and his response was that all negotiations should result in a mutual benefit.  He stated, “In realistic contracts you have to first understand who your buyer is, what their needs are, and what their capability is before bringing up what he needs.  This way you know if they are in the same ballpark.”   Brad also stated that part of mutual benefit is making sure that the artist is as comfortable as possible and that they receive high profile visibility.

Of course when negotiating contracts with the buyer, mutual benefit is also about the money.  In negotiating contracts it is important to find a mutual cash benefit for all of the parties involved.   


A few of the artists that are represented by DAM are: George Clinton and the Parliament Funkadelic; Peppino D'Agostino and Frank Vignola.

Peppino D'Agostino

The Concert Runner

As I was attempting to find a recent news article about the concert industry to post on my blog this week, I thought about what it really was that brought out my passion to pursue a career in concert production.  From 1992-1998 I was a Runner/Production Assistant in Vermont.  Although being a runner is really the bottom of the ladder in the concert industry, it isn't as easy as you may think and several performers and road crew have told me that there are few good runners.  

Just like the road crew for a concert tour, a runner is the first one to arrive at the venue and the last one to leave after the trucks are loaded and the crew are ready to go.  Many times the runner picks the bus driver up at the hotel when it's time to leave.  It's kind of like that song The Load Out  by Jackson Browne, which by the way brings me to one of the many duties I had as a runner.  One time when I was copying a set list for Jackson Browne to hang in various places on stage, etc. I mentioned liking that song and he asked me to join his tour manager and crew member on stage to sing part of the chorus in Stay.  Some other duties were things like finding a certain shampoo, hairdryer, taking the performers bored teenagers sightseeing, finding the right birthday present for the performer, finding certain kinds of food that they didn't have in that area, buying all the cigarette lighters in the store, picking a performer up at the airport in a snow storm using my own vehicle, and following a tour bus to the hotel to retrieve stage clothes. These are just a few of the things you will be asked to do as a runner/production assistant.

What made being a concert runner fun was that you never knew what you would be asked to do from one show to the next.  And you were able to meet many interesting people, while seeing how a concert is produced from start to finish.  If I could make enough money to survive I would find a job as a runner again.  I believe it prepared me for something bigger.  

The Concert Business Update

Concert ticket sales declined in 2010 but what does it look like for 2011?  With the merging of Live Nation and Ticketmaster, and signing contracts with Madonna, U2, and Kanye West, things are looking up for the concert industry.  It seems like the promoters are trying new ideas to sell tickets and it must be working.  The new thing this year is pairing up top headliners together to sell more tickets, for example, Rod Stewart and Stevie Nicks.  Some other reasons concert ticket sales may have increased are artist playing smaller venues at higher ticket prices drawing the attention of concert goers by making it a more intimate setting bringing the audience closer to the artists.  Better artist packages are something fairly new and though it increases show costs it offers the fans a better value for their dollar.

According to Pollstar reports, concert business sales are up 11% in the first half of 2011 (Lewis, 2011)  Totals from 50 tours added up to $1.65 billion, despite a 2/1% drop in the number of tickets sold to 194 million.  This means that the bump in the total box office is the result of higher ticket prices.  Ticket prices increased at an average of 13.6% or $10.23 worldwide.  North American ticket prices are better than worldwide at 16.2% to $1.12 billion.  I have to mention that leading the concert tours in ticket sales is U2 (my favorite band).  U2 sales had a total gross of $164 million in 6-months, the last leg of their 360 Tour, now the highest grossing tour of all time.

Following behind U2 is Roger Waters with an average ticket price of $112.99 selling $97.9 million, Bon Jovi, $96.26 average ticket price, $921 million, and Lady Gaga, $96.77 ticket price, at $65.3 million.  Compared to eight tours last year, 12 tours in 2011 charge more than $100 per ticket, and there were 22 tours charging more than $90 this year compared to only 12 last year.  In conclusion, even though ticket sales have increased, the consumer is still willing to pay the price to see their favorite artist(s) live.


Retrieved on August 6, 2011 at http://latimesblogs.latimes.com/music_blog/2011/07/concert-business-is-up-11-in-first-half-of-2011-pollstar-reports.html

Marketwatch report on the concert industry