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From the Executive Director’s Desk: Entertainment Conference Explores #MeToo, IP, and Social Media Backlash

By George Freeman

Last month, the MLRC convened its annual Entertainment & Media Law Conference in Los Angeles. Though to the amazement of those of us expecting the highly touted SoCal weather, it didn't stop raining from the moment we arrived in LA till the minute we left, the Conference was a great success.

As last year, we convened at the National Center for the Preservation of Democracy, part of the Japanese American National Museum in downtown Los Angeles. Our able partners at Southwestern Law School's Biederman Entertainment and Media Law Institute found the venue for us after we lost our prior site at the former Los Angeles Times building due to the sale of the LAT and the evacuation of its historic building. I really like the Museum – it's the right size and an attractive, even dramatic, space, and given the difficulty of finding a spot in Los Angeles that is convenient to everyone we could do a lot worse than a new venue that is just a few blocks from the old one. That's not to say it isn't a constant area of discussion how long it takes to get there – or anywhere in LA – and whether it wouldn't be better to be in Century City, at the studios in the valley, or anywhere that's a shorter drive for the person whom you happen to be talking to.

More than 150 people registered for the half-day conference, and we had an impressive turnout despite the rain (which was still better than the frigid temperatures that Jeff Hermes and I left behind in New York). Generally at this conference, we try to combine sessions and discussion on First Amendment principles, of course our calling card, media law issues particularly pertinent to the entertainment industry, and a touch of practical business and operational developments of interest to the Hollywood community.

We tried something different for our first session of the day, in which we explored legal issues arising from the #MeToo movement, by splitting the session into two halves to look at the same topic from the perspectives of news and entertainment companies. In the first half, I moderated a panel featuring the legal, reporting, and editorial staff of the Los Angeles Times (including MLRC stalwart Jeff Glasser and his colleagues Kimi Yoshino, Daniel Miller and Amy Kaufman; Kaufman had also written a book entitled Bachelor Nation about the eponymous reality show – I'll take the Fifth as to whether my eyes sometimes might gaze upon that piece of prime-time programming). They discussed LAT's reporting on #MeToo cases – including accusations that Russell Simmons, Brett Ratner, James Franco and James Toback were serial sex harassers – following the breaking of the Harvey Weinstein story, including the challenges of investigating accusations that could be decades old and the heartbreak of having a credible source who poured her heart out earlier than most other sources, but whose story could not be told under journalistic standards for lack of contemporaneous corroboration. They also talked about the paper's mad scramble to catch up with The New York Times' reporting on Harvey Weinstein after they were inadvertently tipped off by a person who confused LAT with its East Coast rival before the story broke.

In the second half, our colleague Orly Ravid, the new Director of the Biederman Institute, led a panel featuring attorneys discussing their experience with establishing training sessions and protocols to prevent misbehavior in the studios and the handling of internal investigations of sexual harassment claims at entertainment companies (including Ivy Bierman from Loeb & Loeb, Kate Gold from Drinker Biddle, and Joel Grossman from JAMS). Curiously, part of the training is devoted to teaching how to avoid a colleague's unwanted hug by putting out one's arm to shake hands, thereby blunting the hug.

We turned from there to two panels on intellectual property. A.J. Thomas, my former colleague at Jenner & Block, led a fascinating session featuring Andrew Hughes from Viacom, Monique Cheng Joe from NBCUniversal, and Eleanor Lackman from Cowan DeBaets, in which they outlined current strategies for protection of IP interests in characters, locations, and other discrete elements of creative works. They talked about cases in which these elements were held to have trademark protection as brands in their own right alongside copyright protection, against the backdrop of older works coming into the public domain en masse at the beginning of the year. They also discussed how trademark protection could apply to elements of public domain works despite a lapse in copyright protection. Whether, and how, Mickey Mouse will remain protected was included in the discussion.

Then, David Aronoff of Fox Rothschild led Bob Rotstein from MSK, Kelli Sager from DWT, Peter Afrasiabi from One LLP, Tammy Godley from Munger Tolles, and Tania Hoff from NBCUniversal through a lively discussion of the current state of idea submission and idea theft claims – including best practices for avoiding such claims, how copyright concepts have seeped into the judicial analysis of idea theft, lessons from other fields such as trade secrets and non-disclosure agreements, and more. Particularly striking was the panel's warning about doing "favors" for friends and family: Introducing your cousin with an idea to a client or a co-worker might seem like a harmless way to show off your Hollywood connections, but can result in an idea theft claim even when the idea is totally obvious.

Finally, Jeff Hermes moderated a multidisciplinary session discussing the practical and legal challenges of dealing with backlashes on social media against celebrities and entertainment companies. We brought together social psychologist Dr. Karen North from USC, law professor RonNell Andersen Jones from the S.J. Quinney College of Law, and the head of Fox Rothschild's Entertainment Department, Darrell D. Miller, to explore this issue from their respective angles. It turns out that these events are not quite as unpredictable as one might think; the panel explained how social media crises begin, the different events and actions that can trigger, prolong or shorten such a crisis, and the ways in which entertainment lawyers can prepare their clients for these events. The speakers touched on Kevin Hart's removal as host of the Oscars after a Twitter firestorm, the bizarre phenomenon of the most famous egg in the world on Instagram, and other recent events in the course of talking about morality clauses, social media policies, and the dangers of filing a lawsuit in response to an online backlash.

We wrapped up the conference by wandering across the Museum plaza to a reception featuring Japanese cuisine, where it was great to be able to chat with members from the West Coast in person. We'll next be returning to California in May for our Legal Frontiers in Digital Media conference in San Francisco, and we hope to see you there!

The opinions expressed in this column are those of the author and not the MLRC. We welcome responses at This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; they may be printed in next month's MediaLawLetter.

 
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