Appropriate for the pirate genre, citing the parties’ “dueling experts,” a District Court recently denied Disney’s motion for summary judgment in a copyright lawsuit in which the plaintiffs claimed the films in the popular “Pirates of the Caribbean” franchise infringed plaintiffs’ copyrighted screenplay.  The Court ruled against the motion “because the parties’ expert opinions create a genuine issue of fact regarding whether the works are substantially similar.”

As a result, the case may be one of a small number of copyright infringement lawsuits involving feature films to reach a jury over many years.  If this occurs, it will have more to do with the Ninth Circuit’s unpublished ruling in July 2020, Alfred v. Walt Disney Co., 821 F. App’x 727 (9th Cir. 2020), than the parties’ summary judgment papers.

Plaintiffs filed the appeal after the District Court dismissed their claim under Rule 12(b)(6) based upon its determination that the works in issue were not substantially similar as a matter of law.  The Ninth Circuit reversed, faulting the District Court’s filtering out similarities between the works on the basis that they were “unprotected generic, pirate-movie tropes.”  The Ninth Circuit ruled that at the pleading stage it was “difficult to know whether such elements [were] unprotectible” and that “expert testimony would aid in determining whether the similarities Plaintiffs identify are qualitatively significant.”  Id.

The Ninth Circuit’s endorsement of the importance of expert testimony likely preordained the District Court’s denial of Disney’s motion for summary judgment, which Disney filed following expert discovery.  Disney offered a variety of criticisms of the Plaintiffs’ expert’s determination that the works were “substantially similar.”  In addition to offering its own expert’s report that they were not, Disney cited the Plaintiffs’ expert’s admissions that he formed his opinion without reviewing any works in the pirate genre, that he merely had “passing familiarity” with the genre, and that he was unfamiliar with the Ninth Circuit’s extrinsic test for determining substantial similarity.  However, the District Court ruled that these shortcomings went “to the weight of the Plaintiffs’ expert report,” while noting that the Court “cannot weigh evidence on summary judgment.”  DE 200 (Slip Op. at 5).

The Court also was not swayed by Disney’s argument that the conflicting expert reports did not preclude the Court from granting Disney’s motion.  While acknowledging the existence of cases granting summary judgment notwithstanding the submission of conflicting expert reports, the District Court found those cases inapplicable, in large part because none involved proceedings in which there was a prior appellate ruling that “expert testimony would aid” in determining whether the literary works were substantially similar.  See DE 200 (Slip Op. at 7).

Alfred II v. The Walt Disney Co., CV-18-8074 (C.D. Cal. Dec. 16, 2021).

IATSE, the union representing below-the-line production workers from cinematographers and editors to grips and hair stylists, has moved a crucial step closer to its first strike since 1945. In a strike vote with over 90% turnout, over 98% of members agreed to authorize union leadership to call a strike if negotiations fail.

Although wage increases are definitely on the table, especially for the lowest-paid job categories, working conditions have emerged as the top priority. Long hours, short turnaround times and interrupted meal breaks have crew members at the breaking point. A strike would involve some 60,000 workers in Los Angeles and around the country.

The majority of theatrical and television productions for broadcast, cable and streaming exhibition would be affected, but some productions are under different IATSE contracts that have not expired. These include commercials, productions subject to the Low Budget Agreement, and those under the Pay TV Agreement, which covers HBO, Showtime, Starz and Cinemax. Some post-production facilities have separate agreements with the Motion Pictures Editors Guild (Local 700). The Animation Guild (Local 839) also negotiates separately from the IA as a whole; its agreement has currently been extended from July until October 30.

With an overwhelming strike authorization in hand, IATSE leadership can return to the bargaining table with the leverage it hoped for.

We are not out of the woods yet.

Just as Hollywood was coping with the early effects of the pandemic, it barely avoided a Writers Guild strike. After a long year of extensive shutdowns, things just seemed to be getting back on track after unions and management hashed out COVID protocols for productions to follow. But now a serious new conflict threatens to shut down production again. IATSE, the union representing crew members across the US and Canada, is seeking strike authorization votes from its Los Angeles locals and its local unions outside of LA.

The underlying agreements expired on July 31 but were extended so that negotiations could continue. Talks broke off on September 20 when the AMPTP presented what it called a “deal-closing comprehensive proposal that meaningfully addresses the IATSE’s key bargaining issues.” The producers’ group faulted the union for having “walked away from a generous comprehensive package.”

The top issue on IATSE’s agenda is working conditions. Crews have complained for years about interrupted meal breaks and 16-20 hour workdays with inadequate rest time in between. Any hope that things might change coming back from the COVID-enforced hiatus proved illusory, prompting the union to seize this moment to push back on this longstanding gripe. IATSE is also looking for increases in scale, especially for the lower-paid job classifications, which may pay only slightly more than California’s $14/hour minimum wage. They are also seeking to eliminate the favorable wage scales for streaming projects compared to broadcast and theatrical.

LA-based crew and those working elsewhere are under separate contracts but both of these are at issue. A nationwide strike would have wide-reaching effects. Unlike a writers strike, producers and platforms will not have the option to substitute unscripted for scripted programming, since union crews work on both. A great deal of animated production also relies on IATSE personnel.  Management and the media have come to expect triennial drama when the three above-the-line guild contracts come up for renegotiation but may have taken below-the-line workers for granted. IATSE hasn’t gone out on strike since 1945. This has been an unusual year, indeed.

The lawsuit brought by Scarlett Johansson against The Walt Disney Co. has struck Hollywood like a thunderclap. The litigation arises out of Disney’s decision to release Black Widow concurrently in theaters and on Disney+. Johansson claims that the streaming release deprived her of compensation she should have received otherwise. The fact that this dispute was not settled but ended up in a nasty public fight highlights once again that the transformation of the entertainment business to one dominated by streaming media will not always be smooth.

Johansson’s character Natasha Romanoff was a supporting player throughout the Avengers cycle; Black Widow was her first chance to headline a feature on her own. (Probably her last chance too, since Natasha Romanoff sacrificed herself in the 2019 movie Avengers: Endgame. It’s also generally assumed that Johansson would have been reluctant to bring suit against Disney before her character’s arc was finished.)

The release of Black Widow was held back for over a year due to the COVID pandemic. With restrictions relaxing, it was widely expected to be a box office hit. In fact, the movie brought in $80 million in domestic box office in its first week and another $78 million abroad, but dropped a dramatic 68% in its second week. Total box office to date stands at $343.5 million and domestic box office at $167 million—low numbers for a Marvel movie. Meanwhile, Disney took the unusual step of announcing that the pay-per-view streaming revenues of Black Widow on Disney+ at $30/view were $60 million over its first weekend of release.

Johansson’s lawsuit claims that she was promised the film would receive a wide theatrical release. A substantial portion of her total compensation was to be from bonuses based on theatrical box office sales. The day-and-date release strategy with Disney+, she alleges, tortiously interfered with her Marvel deal. As the complaint asks, “Why would Disney forgo hundreds of millions of dollars in box office receipts by releasing the Picture in theatres at a time when it knew the theatrical market was ‘weak,’ rather than waiting a few months for that market to recover?” The complaint then offers two main answers to its own question.

The first was to pump up the value of Disney+: “On information and belief, the decision to do so was made at least in part because Disney saw the opportunity to promote its flagship subscription service using the Picture and Ms. Johansson, thereby attracting new paying monthly subscribers, retaining existing ones, and establishing Disney+ as a must-have service in an increasingly competitive marketplace.”

The second reason alleged for the concurrent release was simply for Disney’s Marvel subsidiary to save itself the very large box office bonuses that would have been payable had the theatrical box office not been cannibalized by a streaming release.

The complaint also alleges that Johansson tried without success to renegotiate her deal with Marvel. In this the Disney approach differs from Warner Bros., which announced that its entire 2021 theatrical slate would be released day-and-date on HBO Plus in an effort to jump start that service. In response to heated protests from talent, the company has been cutting deals to compensate them for putative lost income.

Within hours after the lawsuit was filed, Disney responded with a take-no-prisoners press statement: “The lawsuit is especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the COVID-19 pandemic. Disney has fully complied with Ms. Johansson’s contract and furthermore, the release of Black Widow on Disney+ with Premier Access has significantly enhanced her ability to earn additional compensation on top of the $20M she has received to date”

Talent and studio lawyers will inevitably work out new deal points to address the new business realities of streaming. Until they do, we are going to see more skirmishes such as these.

Meanwhile, in a relatively quiet but notable move, Netflix has asked for a seat at the insider’s table and joined the Alliance of Motion Picture and Television Producers (AMPTP). This is the organization that represents the studios in negotiating with the Hollywood labor unions, including over the critical issue of streaming residuals. Apple+ and Amazon Prime had previously joined the group.

A group of over 100 feature film producers have announced their intention to form a labor union. The group is led by producer Rebecca Green (“It Follows”), who says the time is right for this move. She notes that survey data revealed that 25% of US producers earned less than $2,500 from producing work in 2020. The goal of the Producers Union would be to bargain collectively with studios, networks and streamers.

This would not be the first organizing attempt by producers. In 1974, the California Court of Appeals declared that the Producers Guild of America could not be recognized as a labor union because its leaders were also the owners of the production companies with which the PGA was negotiating. Knopf v. Producers Guild of America, 40 Cal. App. 3d 233 (1974). The PGA has operated since as a trade organization but has announced that it supports the Producers Union in its attempt to obtain recognition as a union.

The Producers Union is employing a number of strategies to avoid the fate of the PGA. The group will be organizing as a supervisory union. Supervisors are permitted to organize and bargain, even though they are not subject to certification by the NLRB. It will focus initially on feature film producers to the exclusion of documentary and television producers. This decision is partly due to practical considerations arising out of limited resources. The needs of documentary and TV producers are different from those of feature producers, which the Producers Union organizers can hope to address at a later date. In so doing, the leaders of the Producers Union also sidestep a potentially nasty jurisdictional dispute with the Writers Guild of America, which represents television writer-producers. The Producers Union has good reason to avoid this dispute. The WGA financed the plaintiff, Christopher Knopf, in the case that led to the decertification of the PGA. Knopf himself was a past president of the WGA.

The Producers Union is also looking for members principally from the ranks of producers for independent studios rather than from the majors. Producers employed by the majors are more in the business of financing and distribution and are easier to classify as management. As the Producers Union treasurer Chris Moore puts it, “that doesn’t always overlap with our definition of a producer: the person tasked with finding the project, finding the funding and making sure it gets done on-time and on-budget.”

If history is a guide, if the new union organizes successfully, we can expect its initial push to be to establish mandatory pension and health contributions and perhaps set aside the issue of minimum wage scales for another day. This was certainly the approach of the other above-the-line unions when they sought to expand their jurisdiction into new media. It makes particular sense for the independent producers that the Producers Union is seeking as members. The work they do developing and financing projects is on their own account. Their fees are often not determined until a project is greenlit for production and they are engaged by the financing studio, at which point their fee is negotiated based on the budget among many other factors that would be difficult to set by reference to a schedule of minimums.

Copyright in characters is not a new concept but it can take interesting twists. We saw this recently when litigation over the Netflix movie Enola Holmes raised the question just how far the term of copyright in Sherlock Holmes could be extended. A strictly 2020’s application of the doctrine has emerged recently as comic book art meets blockchain technology.

Comic artists working on established titles typically have little to show for their work outside of fees. The leading publishers Marvel and DC jealously guard the rights to their characters in all forms of exploitation, no matter how substantial the contribution of individual artists to those characters’ identity. One exception has been that artist are permitted to retain their original drawings on paper for resale at comic conventions and the like.

Enter non-fungible tokens (NFTs). These are certificates of ownership of digital assets recorded on the blockchain. A number of comic artists saw an opportunity in this burgeoning market to sell their digital works. For the publishers, however, this was a bridge too far. Both DC and Marvel sent notices to their artists warning against sales of digital images featuring their intellectual property, whether in works created under commission for the publisher or original works.

This reaction is not at all surprising. NFTs are suddenly everywhere in the news, along with a sense that there is a great deal of money to be made with them. The giant companies that own DC and Marvel do not want to find themselves on the outside looking in. DC acknowledged as much in its letter to creators, which barred them from selling digital images “[a]s DC examines the complexities of the NFT marketplace and we work on a reasonable and fair solution for all parties involved.” The sale of paper artwork is a small, slow and manageable market that publishers know they can tolerate. The sale of NFTs is potentially disruptive, which leads them to be more protective of their assets.

In a unanimous decision, the Supreme Court voted to uphold a decision by the FCC to deregulate ownership of television broadcast stations. The Commission proposed the rule change in 2017 under Trump-appointed FCC chair Ajit Pai. The changes included an elimination of a rule that barred common ownership of stations in a market if the result would be fewer than eight independently owned stations, and another rule forbidding cross-ownership of a station and newspaper in the same market. The Commission also relaxed rules relating to joint advertising sales agreements between stations.

The Third Circuit overturned the rules change on the grounds that the Commission “did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities.” This was the same argument pursued by the public interest parties at the Supreme Court. They did not presume to dictate policy to the FCC, but only to show that it had failed to give serious consideration to the data in order to reach a balanced judgement.

The decision from Justice Kavanaugh swept this argument aside. Based on the record before it, he wrote, the agency “reasonably concluded that the three ownership rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism and viewpoint diversity….” Although there were gaps in the data on which it relied, the FCC acknowledged the gaps and was not obligated to dig further in order to avoid falling afoul of the “arbitrary and capricious” standard required to overturn agency rulings under the Administrative Procedure Act.

Proponents of the changes argued that they were long overdue. Local TV and newspapers have long been facing stiff headwinds, first from cable competition and now from hypertargeted digital advertising on Google and Facebook. The mom-and-pop broadcast outlets and local station groups would be doomed unless they can join deep-pocketed national station groups.

The argument for continued diversity has its appeal, however, when one looks at Sinclair Broadcasting, a large station group that made headlines for forcing the news broadcasts of its stations to run right wing segments. Even short of a conservative takeover of local news, widespread consolidation could result in homogenization and the loss of independent voices.

In light of these arguments, the unanimity of the Supreme Court decision may seem surprising. It’s plausible to suppose that the Court’s liberals are playing the long game here to ensure the continued viability of Chevron deference. This was the doctrine established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 384 (1984) that federal courts should defer to an agency’s interpretation of a statute if the statute is ambiguous and the agency’s interpretation is reasonable.

The Court has been steadily narrowing the reach of Chevron, and conservative commentators and some of the justices have called for it to be overruled. This has raised concerns on the left that judges will substitute their judgement for that of administrative agencies and accomplish deregulation by judicial means. By standing behind the FCC in this case, even though they may differ in the substantive result, the Court’s liberals have buttressed the principle of agency independence.

In light of the ubiquity of cable and satellite, a controversy over the ownership of terrestrial broadcast stations may seem like a sideshow. The reality is, however, that an increasing number of American households are receiving broadcast stations by means of over-the-air transmission, either exclusively or together with a subscription video service.

The Supreme Court recently heard arguments over moves taken by the FCC in 2017 to loosen regulations on broadcast stations. These included lifting the ban on common ownership of broadcast stations and newspapers in the same market and cross-ownership of television and radio stations. The FCC’s proposed deregulation also made it easier for outlets to join forces for purposes of advertising sales or to merge outright.

The Third Circuit rejected these proposed changes in September, 2019. It ordered the FCC to reconsider the rules changes in their entirety with greater attention to their effect on women and minority ownership of broadcast stations. The government and the National Association of Broadcasters (NAB) appealed to the Supreme Court, which heard arguments in January.

The position of the FCC and NAB is that broadcasters face so much more competition than they did in decades past that they must be permitted to consolidate in order to survive. They argued that the FCC is not required to prioritize women and minority ownership in its rulemaking. The NAB took this further. It asserted that Section 202(h) of the Telecommunications Act of 1996 calls for deregulation as a matter of simple statutory interpretation. That section requires the FCC conduct a biennial review of its rules and repeal or modify “any regulation it determines to be no longer in the public interest” as the result of competition.

The public interest parties took an administrative law approach. The issue they presented was not whether competition or diversity should be the controlling policy but whether the FCC had adequately explored the potential effect of deregulation on women and minorities. The rulemaking, they contended, included only conclusory statements of minimal effect without supporting data. Where the public interest parties had presented a study from Free Press showing that deregulation would affect women and minority station ownership adversely, the FCC did not present a substantive response.

Several of the Justices, both liberal and conservative, questioned the FCC’s failure to show specific data to support its decision to prioritize competition over diversity. Justice Sotomayor put it this way. “We have a legion of cases that say you don’t have to rule in favor of one point of view or another, but when you’re rejecting something, you should give it adequate consideration.” Justice Kavanaugh challenged the Deputy Solicitor General with a similar question. “Having considered it, doesn’t the FCC have to justify how it considered it?”

While most of us look back on the last twelve months as a horrible dream, Hollywood’s labor unions can actually point to a string of successes. Early in the pandemic, all three of the above-the-line guilds closed new three year deals that among other things included significant increases in residuals for high-budget streaming programs. Just this month, the WGA finally closed the book on its two-year campaign to bar talent agencies from collecting package commissions and owning interests in production entities exceeding 20%.

Now, in a less dramatic but also forward-looking move, SAG-AFTRA has provided a structure under which social media influencers can work under union contracts. It will work like this. The influencer must have a corporation or LLC that contracts directly with a brand to produce and deliver content. Compensation is freely negotiable with no set minimums. The content must be intended only for YouTube or for the influencer’s or the brand’s social media platforms or websites. Pension and health contributions are payable on the share of the influencer’s compensation (at least 20%) allocated to on-camera services as opposed to writing and producing services.

This structure is a foot in the door for SAG-AFTRA in what it sees as an area of potential growth. It remains to be seen what the uptake will be. In the immediate future, advertisers are for the most part not likely to add pension and health contributions to their payments to influencers, which means that most influencers choosing to work SAG-AFTRA would be going out of pocket for these payments. There may be a group of influencers willing to make these payments in order to get SAG-AFTRA health insurance. Union membership is also a benefit in itself in that it opens doors to work in other media. It may be a bigger boost, however, for the TV and movie stars who are active influencers. This move may give them the leverage to require that their brand include pension and health as part of their compensation.

In what must be counted as a victory for solidarity among WGA members and the often controversial tactics of its executive director David Goodman, the leading agency WME reached a deal for a franchise agreement with the union. This will permit the agency to resume representing writers almost two years after its writer clients fired the agency en masse. In exchange the agency will phase out package commissions on scripted projects and will reduce its stake in the production company Endeavor Content.

WME was the last to settle of the largest agencies. Its rivals UTA and CAA reached agreement last year, leading them also to drop out of the antitrust litigation to which all three had been parties. Fellow Big Four agency ICM, which was never a party to the litigation, made its own deal with the WGA last summer.

The sticking point for WME was not so much the elimination of package commissions. Those terms largely track those agreed to by UTA and CAA. The difficulty lay in getting WME’s ownership of Endeavor Content below the 20% share that the WGA would accept. Throughout its negotiations, the WGA had insisted on transparency regarding WME’s capital structure and that of its private equity investors. In reaching settlement, the WGA has satisfied itself that there will not be lingering conflicts of interests following divestiture.