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DCS 2019 Annual Meeting

Leadership Election and Review of Committee Accomplishments and Plans

The annual meeting of the MLRC Defense Counsel Section was held on Thursday, November 7th at Carmine's Restaurant on West 44th Street in New York City.

DCS President Jay Brown led the meeting. The first matter of business was the election of a new executive committee member. Toby Butterfield of Moses & Singer in New York was elected as Treasurer beginning in 2020. The other members of the 2020 DCS Executive Committee are: President Robert Balin; Vice President Robin Luce Herrmann; Secretary Rachel Matteo-Boehm.

Jay Brown will continue to serve as President Emeritus during the coming year. He warmly thanked outgoing President Emeritus Jack Greiner for his years of service and leadership on the DCS Executive Committee.

George Freeman delivered the Executive Director's report on MLRC's projects and plans. That was followed by reports from Committee Chairs on Committee accomplishments and plans for 2020.

Committee Reports

Advertising and Commercial Speech Committee
Brendan Healey and Terri Seligman
Vice-Chair: Robin Luce-Herrmann

In 2019, we continued to focus on developing the committee as a practice resource and forum for exchanging knowledge among MLRC members who advise clients on advertising and commercial speech issues. We used committee meetings in 2019 to host substantive presentations by members and outside speakers on current developments and issues of concern to advertising law practitioners. Of course, this year everyone's focus has turned from GDPR to CCPA. Recently, David Zetoony from Bryan Cave Leighton Paisner, gave a presentation on CCPA and its implications for AdTech. The presentation was our first joint presentation—we did it with the Data Privacy committee—and we hope to do more joint presentations in the future. The committee also hosted presentations by Christine Walz from Holland & Knight on website ADA lawsuits and by Tyler Maulsby from Frankfurt Kurnit Klein & Selz on cannabis advertising. We hope to have one more presentation before the end of the year.

The headline of 2019, though, is that the new and revised "Checklist on Advertising Content" is nearing completion. More than a dozen committee members have contributed to the checklist, and we are now basically in the editing stage. We didn't start from scratch. We have great source documents—the "Advertising Clearance Checklist" (created by Nancy Felsten) and the "Checklist on Advertising Content" (created by Alice Lucan and Jack Greiner). Look for the new (I won't say "improved" because the prior outlines are excellent) checklist soon. Our committee continues to stay nimble and, as quickly as technology is changing and creating new legal issues, our committee follows topics as they develop and attempts to find speakers at the core of these issues to talk about them. We welcome suggestions for speakers and topics.

Finally, we note that Terri Seligman is transitioning out of committee leadership. As those who practice in this area know, Terri is one of the real superstars in the field, and we appreciate her many contributions to the committee in her years as co-chair. We also welcome back Faiza Javaid as co-chair. Faiza previously served as co-chair when she was at Forbes, but she took a hiatus from the committee when she left Forbes to do inhouse stints at non-media companies. Faiza has returned to our bar with an inhouse position at G/O Media, and we are delighted to have her back in committee leadership.

Anti-SLAPP Committee
Bruce Johnson and Laura Prather

The MLRC SLAPP committee meets quarterly and focuses its attention on recent SLAPP rulings, passage and defense of anti-SLAPP bills in state legislatures, possible model SLAPP statutes, and advice and counsel on securing federal anti-SLAPP protection. We have guest speakers who are at the heart of the issues present on their personal experiences both in the courtroom and at the legislature.

For instance, during 2019, from a judicial standpoint, we discussed the increasing trend to not apply anti-SLAPP statutes in federal diversity cases with the recent rulings from the 11th Circuit in Carbone v. CNN and the 5th Circuit in Klocke v. Watson. We also discussed the California Supreme Court's significant ruling on the scope of its anti-SLAPP commercial speech exemption in the FilmOn case.

From a legislative standpoint, we discussed how Colorado and Tennessee were able to get new anti-SLAPP statutes passed; how Texas defended against attempt to gut their anti-SLAPP statute; and the proposed bills recently filed in New York and Ohio.

Finally, we share significant tactical information about how to build coalitions to support the passage of anti-SLAPP statutes and briefing to defend the constitutionality of such statutes and argue for their protection in federal court.

California Chapter
Co-Chairs: Sarah Cronin, Tami Kameda-Sims, Dan Laidman

The California Chapter engaged in vibrant discussions this year on (1) the California Consumer Privacy Act of 2018 (CCPA); (2) the intersection of the First Amendment and breach of contract law; (3) litigating trademark infringement claims in different parts of the country where courts apply different First Amendment tests on the trademark side; (4) what California's new independent contractor law means for the entertainment and news industries; and (5) the effect of California Supreme Court's important new anti-SLAPP decisions.

The Chapter's first meeting, held on December 18, 2018, discussed the California Consumer Privacy Act of 2018 (CCPA). Dominique Shelton Leipzig, co-chair of Perkins Coie's Ad Tech Privacy & Data Management group, discussed the CCPA, a sweeping new law that introduces a host of privacy rights for California consumers and creates robust obligations for many businesses that collect personal information about California consumers. David Aronoff, partner at Fox Rothschild, discussed key developments in California's anti-SLAPP law in 2018.

The Chapter's second meeting, held on April 3 at Davis Wright & Tremaine's Los Angeles office, discussed the line between aggressive negotiation and extortion. Professor Laurie Levenson, of Loyola Law School discussed the ethics of negotiation, with the dispute between Jeff Bezos and the National Enquirer as a focus point. Kevin Vick, partner at Jassy Vick Carolan LLP, discussed the California Supreme Court's anti-SLAPP decision in Rand Resources, LLC v. City of Carson, which addressed a developer's suit against the city of Carson over a proposed NFL stadium.

The Chapter's third meeting, held on July 25 at Venable discussed the First Amendment and when a non-disparagement clause can trump First Amendment considerations. Aaron Moss, chair of Greenberg Glusker's litigation department, and Ricardo Cestero, entertainment litigation partner at Greenberg Glusker, discussed the recent spate of contract related claims being brought against productions related to the obtaining and disclosing of information about the subject of the production. The discussion also touched on the similar issues as the lawsuit brought by the Michael Jackson estate over HBO's documentary Leaving Neverland, in which the estate alleged that the film constitutes a breach of a non-disparagement clause in a 27-year-old agreement related to the right to air a televised concert following the release of Jackson's album Dangerous.

Also at the Chapter's third meeting, Jonathan Segal, partner at Davis Wright Tremaine, discussed litigating trademark infringement claims in different parts of the country where courts apply different First Amendment tests on the trademark side.

The Chapter's fourth meeting, held on October 30 at NBCUniversal, discussed new developments in media and employment law and what California's new independent contractor law means for the entertainment and news industries. Shannon Alexander, Senior Vice President, Litigation at NBCUniversal, discussed California's hotly-debated Assembly Bill 5, which Governor Gavin Newsom signed into law last month. Jean-Paul Jassy and Kevin Vick, partners at Jassy Vick Carolan, discussed the California Supreme Court's recent decision in Wilson v. CNN. The case involved a CNN producer who alleges he was wrongfully terminated and subject to discrimination.

The next meeting will take place in January.

Criminal Law Committee
Jacquelyn Schell and Kaitlin Gurney

The Criminal Law Committee, now in its second year, aims to monitor and report on criminal law issues that impact journalists, sources, and the broader media sphere. The Committee held three major events in the past year and worked with the Litigation and Newsgathering Committees to prepare MLRC's recently-released Espionage Act Prosecutions Against the Press, available at http://www.medialaw.org/espionage, contributing sections on the criminal law elements of mens rea, vagueness, and overbreadth.

In September, the committee hosted an all-MLRC event on the Espionage Act, "The Assange Prosecution: Will It Affect the Press, and What Should We Do About It?" The panel, organized by George Freeman and Jeff Hermes, discussed the history of the Espionage Act, WikiLeaks founder Julian Assange's prosecution, and the concerns it raises for media outlets moving forward. The two-hour event drew fifty attorneys in-person in New York and nearly the same amount by webcast.

Last winter, the Committee hosted a panel webinar discussing Newsroom Safety & Security. In April, we presented a panel, both live in New York and webcast, to discuss best practices in responding to government Search Warrants, Subpoenas & Seizures involving members of the media. The April meeting was co-hosted with MLRC's Next Gen committee and followed by a happy hour.

Data Privacy Committee
Daniel Goldberg, Ed McAndrew, and Jena Valdetero

This new committee launched in May 2019. The committee's purpose is to monitor domestic and international developments in the law governing the collection, maintenance and use of data concerning individuals and entities as relevant to MLRC's media members, and to educate members regarding those developments, their impact on both the business of and the content produced by members, and areas of legal risk and best practices for reducing that risk. The committee holds quarterly meetings and has a current roster of more than 120 members.

The committee's activities began with a cocktail party! A small group of interested members held an impromptu side-gathering at the Legal Frontiers in Digital Media Conference in May 2019.

On June 27, 2019, the committee held its first meeting by telephone. We began by introducing the committee's substantive scope and logistical plan for meetings and events. We then held a substantive discussion of the quickly evolving and groundbreaking California Consumer Privacy Act, which takes effect on January 1, 2019. We also provided an update on the new Nevada Privacy Act, which took effect on October 1, 2019.

On September 19, 2019, the committee held its second meeting by telephone. We spent most of that meeting covering amendments to the CCPA and the then-forthcoming regulations to be proposed by the California Attorney General's Office. We also discussed the CCPA's private cause of action for data breaches resulting from the failure to implement reasonable cybersecurity procedures and practices, and steps that companies can take to mitigate litigation risk. We closed with a discussion of the FTC's COPPA settlement with Google relating to children's privacy issues on YouTube.

On October 22, 2019, the committee and the Commercial Speech and Advertising Committee hosted a joint webinar entitled, "AdTech, Cookies, and the CCPA." David Zetoony, Co-Chair of Bryan Cave Leighton Paisner's Data Privacy & Security Team, gave a great presentation on the impact of the California Consumer Privacy Act on third party behavioral advertising cookies and strategies for compliance with CCPA privacy provisions. Approximately 40-50 participants joined for a substantive and practical discussion of the issues.

Looking forward to 2020, the committee anticipates tackling new legislative, regulatory and litigation developments in both digital privacy and cybersecurity. We hope to host or co-host special events and to participate in the MLRC's events throughout the year. We welcome members' ideas for making the most of this committee.

Employment Law Committee
Tanya Menton and Thomas Wilson

The Employment Committee addressed the changing landscape of government agencies that impact the workplace including the NLRB, EEOC and OFCCP. How these agencies have engaged with media employers through changes in political appointments and even a government shutdown was a hot topic that carried us through the first part of the year. The use of arbitration agreements between media employers and employees has become more controversial. We addressed how media employers should consider the pros and cons of such agreements including the interest of the media in transparency and how that interest does or does not fit with maintaining a mandatory employment program for employment issues.

The Committee continued to work with other Committees on overlapping topics including the Advertising & Commercial Speech and the Litigation Committees on the topic of accessibility to online content under the Americans With Disabilities Act.

Finally, the Committee is putting the finishing touches on a paper that discusses best practices for media employers doing internal investigations. This will be the swan song for the current Co-Chairs of the Committee as we pass the baton to the next team. It has been great for both of us and an honor to lead this Committee.

Entertainment Law Committee
Co-Chairs: Lincoln Bandlow and Jessica Davidovitch

The mission of the Entertainment Law Committee is to keep its members apprised of key cases and the latest legal developments in the world of entertainment. The Committee meets via a group conference call that is usually held on the first Wednesday of every month. In preparation for each meeting, the Committee Chairs review a variety of publications and assemble approximately 10 items of interest. About a week ahead of each meeting, the Chairs circulate a list of these items to the Committee, from which members can select which items they would like to volunteer to present. A final meeting agenda with links and attachments is distributed 3-5 days before the call. Agenda items are selected with an eye toward currency, significance, balance and entertainment value.

Even when volunteers are not available to cover all the topics compiled for each call, the compilation and circulation of those matters in the monthly pre-call email is a helpful resource for members of the subcommittee to review in their own time.

Some of the specific topics discussed this past year included:

  • "Hamilton" Producer Fights Copyright Claims to Alexander Hamilton's Life
  • Showtime, Sacha Baron Cohen Ask Court to Toss Roy Moore's "Who Is America?" Lawsuit
  • How Hollywood Can (and Can't) Fight Back Against Deepfake Videos
  • California Supreme Court Analyzes Lawsuit by Ex-CNN Producer
  • Ariana Grande Sues Forever 21 for Using a "Look-Alike Model" on Social Media
  • 9th Cir.: NFL, DirecTV Face Revived Antitrust Suit Over "Sunday Ticket" Telecasts of Out-of-Market Games
  • N.Y.: Photog sues Steven Spielberg for blocking his view of "West Side Story" film set
  • Netflix Sued For Defamation By "Afflicted" Subjects Who Say Docuseries Painted Them As "Crazy Hypochondriacs"
  • Bobby Brown's failed ROP claim shows some of the cracks in the current ROP tests
  • Cayuga Nation tribe sues Showtime's 'Billions' for defamation
  • 5th Circuit holds that Texas Anti-SLAPP Law does not apply in federal court
  • Proposed Reform to New York's Anti-SLAPP Laws May Bring Big Changes
  • InfoWars Headed to Copyright Trial Over Use of "Pepe the Frog"
  • Assange/Espionage Act and Implications for Documentarians
  • C.D. Cal.: Disney Wins "Pirates Of The Caribbean" Script Copyright Suit
  • Elon Musk Faces Trial Over 'Pedo' Tweet
  • CNN files motion to dismiss $275M Sandmann suit, says reporting was factual, not defamatory
  • SCOTUS to Decide Whether Copyright Infringement Claim Over Pirate Ship Can Be Sunk by Sovereign Immunity Defense

Insurance Committee
Betsy Koch, Eric Brass, Jim Borelli

The purpose of the Insurance Committee is to bring together in-house counsel, defense attorneys, and insurance professionals to consider issues that will result in greater understanding of the nuts and bolts of insurance coverage, the media insurance marketplace, and the risk management challenges faced by media and entertainment clients today. In our second year in existence, we have continued to grow and now have 58 members.

We intend to have committee meetings once a quarter, either in person or via conference call. On February 1, we had an in-person meeting in Miami Beach during the Cocktails, Conversation & Connections segment of the ABA Forum on Communications Law. The session was facilitated by four committee members – Edward Copeland, Evynne Grover, Michelle Worrall Tilton and Jim Borelli - and included presentations about (1) insuring video games (2) privilege concerns over communications within the tripartite relationship (3) burdensome discovery requests in "scorched earth media litigation," (4) adequacy of limits in the age of mega verdicts and (5) the benefits and drawbacks of combined coverage packages.

On June 27, we held a call-in committee meeting that covered two topics. The first topic considered dealt with issues arising from panel counsel used by "non-media" insurers in defending media and entertainment cases. A discussion on the MLRC Listserv that took place on May 17 – 20 under the subject of "A generalized rant...." was a primary reason for considering this timely topic at our meeting. The initial post was made by a prominent in-house counsel and long-time MLRC member who was concerned and frustrated by his company's insurer's retention of a panel counsel who wasn't experienced in defending media cases and who was filing an answer instead of a well warranted 12(b)6 motion. The second topic involved the GDPR and its potential impact on the insurance programs and risk management practices of media and entertainment companies. The discussion was led by Eric Brass, and Dan Shefet, a human rights and data privacy lawyer, was invited to participate as a special guest.

The committee also generates articles on issues and developments concerning insurance and risk management relevant to the media & entertainment community for publication in the MediaLawLetter and elsewhere.

In the coming year, the Insurance Committee intends to hold quarterly meetings to discuss such topics as claim trends, emerging exposures, claims attorney's role in defense/litigation strategy, reporting requirements, unique coverage needs of particular media classes of business, and risk management procedures.

International Media Law Committee
Co-Chairs: Gillian Phillips and Julie Ford
Vice-Chair: Peter Canfield

Our committee conducts conference calls to discuss current issues of concern to lawyers representing international publishers and journalists. We usually have one or more guest speakers on each call to describe recent media developments in their respective countries.

We started out the year by looking at our own southern border, where an award-winning Mexican journalist publicly criticized U.S. immigration policy and was arrested by ICE because he failed to "tone it down." We also received an update on press freedom and human rights in Brazil under populist President Bolsonaro.

We had a compelling session on disturbing events in Southeast Asia: the trial and appeal of Reuters reporters in Myanmar and the challenges faced by Maria Ressa in the Philippines, whose publication Rappler has been highly critical of President Rodrigo Duterte.

Our colleagues in Australia continue to be good sports by staying up all night so they can report on events down under. This year we got an account of the Australian Federal Police raids on a journalist's home and news organization, and learned of a legal decision finding media organizations liable for alleged defamatory comments by third parties on the organizations' public Facebook pages.

Other topics reported on this year include how recent events in Hong Kong have affected journalists, the role of the UN Special Rapporteur on the Right to Freedom of Opinion and Expression, and UK Parliament's scathing report on Facebook.

We plan to round out the year with two more sessions. In November we will hear from a panel of copyright experts who will compare copyright laws in the US, UK and Europe. In December, we look forward to having Randy Shapiro and Adam Cannon recreate their discussion from the London conference on the challenges of cross-border prepublication review. As for 2020, we plan to go wherever current events take us. The world is our oyster.

Internet Law Committee
Co-Chairs: Judy Endejan & Matt Leish

The Internet Law Committee interacts primarily through quarterly conference calls. The first 2019 call occurred on April 1, 2019 on the topic of "Captain Marvel Beats Back Trolls and Memes for Control of the Internet: A Conversation with Professor Eric Goldman about His Predictions for 2019." The speaker, Professor Eric Goldman, is a professor of law at Santa Clara University School of Law. He writes the blog "Technology & Marketing Law Blog," which has been inducted into the ABA Journal's "Blawg Hall of Fame." Many of his articles are linkedin the daily MLRC bulletin. "Managing IP" magazine twice named Professor Goldman to a shortlist of "IP Thought Leaders" in North America. He shared some of his thoughts, ranging from the future of Section 230 to "emoji law" to the Supreme Court's ruling requiring registration prior to litigation.

The Committee's second call, on September 12, 2019 discussed "'Blocking and Tackling"-Recent Developments in Controlling Content on the Internet Highway" examining some of the hot issues de jour in controlling both access to, and the content of, speech posted on platforms like Twitter and Wikipedia. Jacob Rogers, from Wikimedia, discussed how the Wikipedia community functions and how the Wikimedia Foundation decides to remove certain types of postings or uploads and its strategy on where to go in the future. Pat Carome, from Wilmer Hale, discussed recent lawsuits he has handled for Twitter in which the plaintiffs claimed that Twitter wrongfully suspended or blocked their accounts. Katie Fallow, Senior Attorney for the Knight First Amendment Institute at Columbia University discussed Knight Institute v. Trump in which the Second Circuit held that Trump's Twitter Account is a public, government account and he could not block access to it from his critics due to the First Amendment prohibition on viewpoint discrimination.

The Committee hopes to schedule a third call before the end of 2019, to discuss the top two or three cases addressing important legal issues regarding the internet, based upon a survey of Committee members.

In addition to our quarterly calls, we sent Committee members a short, informal questionnaire to help us develop programs, topics, tasks for the Committee in April of 2019. We did not receive an overwhelming response, so we plan to re-send it for the same purpose for 2020. One "action item" that has surfaced is the construction of a "checklist" of considerations for removing content from an internet platform and volunteers will be sought for this task.

In 2018 the Committee published an updated version of the Practically Pocket-Sized Guide to Internet Law, available on the MLRC website. The Guide offers a series of concise articles on a wide range of Internet law questions that come up in day-to-day media law practice. We will explore the frequency for updating this guide.

Joshua Kolton has produced an updated version of the section that he wrote for the Guide on Online Anonymity available through MLRC Bulletin: Legal Frontiers in Digital Media.

The Committee is exploring additional activities for 2020, and we welcome input from Committees members and the MLRC membership for ideas for projects related to the Internet.

Litigation Committee
Co-Chairs: James Hemphill, Steve Mandell
Vice-Chair: Thomas Curley

The Litigation Committee concerns itself with all aspects — pre-trial, trial and post-trial — of defamation and invasion of privacy lawsuits brought against the media, including discovery, dispositive motions and strategic matters. In 2018, we focused our efforts on developing the committee as a resource on media law litigation issues. We used committee meetings to discuss current developments and issues of particular concern to defense litigators, including a presentation with the Employment and Newsgathering Committees regarding the joint representation of journalists and media companies in the same litigation. Together with the Criminal Law and Newsgathering Committees, committee members authored sections of the forthcoming MLRC white paper on the Espionage Act pertaining to its legislative history and interpretation, and the potential application of the Bartnicki case to the Act's prohibitions. For the new year, the Litigation Committee plans additional phone meetings and conferences and will be reaching out to other Committees to explore cooperative projects.

Media Copyright and Trademark Committee
Co-Chairs: Toby Butterfield, Lauren S. Fisher, Scott J. Sholder

This year the Media Copyright and Trademark Committee grew to approximately 120 members. We held conference calls at 1 pm EST on the fourth Wednesday almost every month, with about 40-50 attendees each time.

As before, we heard from invited speakers and some committee members about recent court decisions, legislative developments and practice pointers. Examples of topics addressed this year include recent U.S. Supreme Court jurisprudence, European legislative developments, data-mining, copyright and trademark fair use cases, Trademark Office practice amendments, and various members' litigation experiences.

By way of example, last month, we discussed the potential impact of the CASE Act on how parties litigate small copyright claims; heard from in-house counsel concerning their defense of the Otto v. Hearst copyright trial about use of amateur photographs taken at the Trump National Golf Club in Bedminster, NJ; and discussed other effective defense mechanisms in such cases.

Meetings in upcoming months will address the plethora of high profile music infringement cases; and update members on pending litigation over the legality of "LoCast," the latest streaming service to rebroadcast over-the-air television, this time claiming a not-for-profit exemption. We welcome new members each month. Please let any of our co-chairs know if you would like to join us or to contribute.

Newsgathering Committee
Co-Chairs: Cynthia Counts and Edward Fenno
Vice Chair: Rachel Matteo-Boehm

The Newsgathering Committee made a major contribution to the MLRC's Espionage Act Guide this year, with several Committee members contributing significant time and effort to research and draft several sections of the Guide. The Newsgathering Committee also hosted two topical conference calls during the year. The first (in conjunction with the Employment and Litigation Committees) concerned joint representation of journalists and media companies in the same matter. The second concerned whether President Trump and other public officials can block public access to their Twitter feeds and other social media accounts. The Committee is planning a third conference call before the end of the calendar year.

Next Generation Media Lawyers
Co-Chairs: Al-Amyn Sumar, Amy Wolf, Matthew Schafer

Last year, the Next Gen committee laid out several goals, chief among them: encouraging committee members to connect with members of the bar, learn from each other, and plan for career advancement. This year we worked toward this goal in a number of ways.

First, with MLRC and George's help we made a push to enlist more young lawyers for the committee. In total we added fifty new members this fall, bringing total membership to 170. Second, we are rolling out a mentor/mentee program that pairs Next Gen members with experienced members of the bar for candid career advice. If you have interest in being a mentor to a Next Gen member, please let me know after the lunch. Third, we hosted a panel with Katie Townsend of the Reporters Committee for Freedom of the Press, who was interviewed by Max Mishkin of Ballard Spahr about her career trajectory, her current role, and advice for young lawyers.

We also had two in-person roundtable events where a smaller subsection of the committee gets together to informally discuss current issues in media law, and, in December, we'll be having a "Oh the Places You'll Go" panel discussions with four lawyers who each took different career paths in media law, which we hope will give our membership insight into different opportunities in the media bar.

Pre-Publication/Pre-Broadcast Committee
Co-Chairs: Alexia Bedat and Anna Kadyshevich
Vice-Chair: Eric Feder

Our committee convenes monthly conference calls to engage with speakers on timely information for lawyers who vet content. We program a mix of topics to inform our members on recent developments in the law, and how those developments may affect the pre-publication and/or pre-broadcast review process. This past year we have been fortunate to have attorneys directly involved in many of the cases discussed below present their first-hand experiences to the committee. Calls this past year have covered topics including:

  • The fair report privilege, including in the "Steele Dossier" case against BuzzFeed and the libel lawsuit from former Trump campaign strategist Jason Miller against Gizmodo Group, both in Florida;
  • Recent legislative efforts that aim to regulate misinformation from hyper realistic (but fake) videos (i.e., "deepfakes");
  • The decision in hiQ Labs, Inc. v. LinkedIn Corp., regarding automated scraping of public accessibly data and the Computer Fraud and Abuse Act (CFAA);
  • Copyright, right of publicity and trademark issues in video games, with focus on the litigation surrounding characters' dance routine in the game Fortnite;
  • Copyright litigation over photographs from serial plaintiff's lawyers like Richard Liebowitz;
  • Implied contract in claims over allegedly stolen ideas, with focus on litigation over the Netflix series Stranger Things;
  • Right of publicity in documentary films (with focus on the recent decision in a case filed against Showtime over a documentary about Whitney Houston); and
  • Vetting from the client's perspective, featuring among a producer and in-house lawyers for Vice News.

Through all the calls, we have discussed how these new trends and issues could come into play in the vetting context. We also discuss new technologies in the newsroom and how these are changing the role of in-house counsel. In the next year, we plan to continue to host monthly calls on a variety of topics, including, unique challenges in vetting podcasts, libel in fiction, and the impact of European privacy and copyright laws. We encourage anyone interested in these topics to join the committee and participate in the calls.

State Legislative Affairs
Co-Chairs: Eric Kemmler and Leita Walker
Vice-Chair: Joseph Martineau

Over the past year, the committee held eight conference calls and helped ensure updates in the MediaLawLetter on anti-SLAPP laws in Tennessee, Texas, and Colorado. The committee also hosted presentations/discussions on various legislative developments, including in May when Ben Sheffner, SVP & Associate General Counsel at the MPAA, discussed the movement in state legislatures to criminalize "deep fakes;" in September when Phil Yannella, Ballard Spahr partner, gave a presentation on data privacy laws and legislation to watch outside of California, including especially in Nevada; and in October when Jim Ewert of the California News Publishers Association, gave a presentation on California's new labor law, AB 5, and the collateral impacts it is having on the media industry and its use of freelancers in particular.

Starting this summer, and largely due to poor attendance of monthly calls, the committee turned its focus to ensuring that we have active members in key states to assist with monitoring legislative developments. We have added seven new members since July and attendance at the monthly calls is significantly up—with at least a couple of dozen people attending calls in September and October. We hope to have presentations on substantive topics on a semi-regular basis. The next call, at the end of November, to be held in conjunction with the Employment Law Committee, will feature Paul Mersino from Butzel Long. He will discuss how state non-compete laws impact the media industry. The committee is also in the process of identifying major trends that it should be tracking and more systematically reporting upon to the larger membership. One leading contender is laws surrounding the issue of transparency in law enforcement—states continue to grapple with press and public access to body cam footage (Iowa, Wisconsin and Tennessee, to name a few) and police personnel records (New York), while others are moving to encrypted radio for police dispatch calls, making it difficult for the press to monitor law enforcement activity via scanner (Minnesota).

The committee holds monthly calls at 10 am central on the fourth Friday of each month.

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