So, Your Client is Considering Investing In a Film . . . .

Harris, a white man with grey hair, wears a red and white checkered shirt and a black jacket. By Mary Craven Adams and Harris E. Tulchin

In March 2023, the North Carolina Film Office reported that 2022 spending from film production had topped over $258 million, and 2023 was off to a strong start. Governor Roy Cooper lauded the industry for creating over 16,000 job opportunities in the state, including over 70 films, television, and streaming projects in 2022 alone.

With ever-increasing film production in North Carolina, it is timely to review the basics with respect to advising clients considering an investment in film. This blog post shares top legal and non-legal considerations when advising a first-time (or relatively unsophisticated) film investor. There is a long list of potential bad outcomes for a film investor — from the producer running out of money, the film being unable to obtain distribution, a lender taking over the project due to non-payment of a loan, or even the failure to distribute profits. Set forth below are key questions to ask about the proposed project to assist you in understanding the project and advising your client regarding strategies to minimize risk.

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Member Spotlight: Douglas Wood

By Douglas Wood

Throughout the year, the Sports & Entertainment Law Section will be conducting interview spotlights of its members to showcase the careers of the section members. This month, the section is spotlighting Douglas Wood, formerly with the law firm of Reed Smith LLP, and now enjoying a solo practice in North Carolina after 47 years toiling in “Big Law.”

What brought you into sports or entertainment law, and what area of sports/entertainment law do you currently practice?

In law school, I focused on intellectual property. I continued focusing on intellectual property while pursuing my LLM. After receiving my LLM, I was very fortunate to get a job at a boutique music and entertainment law firm. The rest is history!

Over time, my practice evolved and now focuses on transactions in the advertising and marketing industry. Examples include media buying, licensing, and endorsements.

For those interested in practicing in sports or entertainment law, what is a piece of advice you would share with them?

First, be patient and develop a written plan on how to break into the sector.

Second, be mindful that it is a lot broader than you might think — the area not only includes what you might think of as traditional sports or entertainment but also publishing, marketing, sweepstakes, contests and gaming, sponsorships, naming rights, name, image, and likeness (NIL), and many other areas.

Many law students are interested in the day-to-day life of a sports or entertainment lawyer.  What does your day-to-day practice look like?

As a transactional attorney, I primarily counsel clients either on the phone (including the unfortunate rise of Zoom and other video conferencing) or occasionally in person on their day-to-day issues.  That’s coupled with analyzing deals and writing contracts and memoranda in support of their goals or business needs.

From your perspective, how has the COVID-19 pandemic changed your portion of the sports or entertainment industry?

As a transactional attorney, most of what I do does not require in-person contact with clients. So, COVID-19 had little impact on my practice.  In fact, because so many contractual arrangements were turned upside down due to COVID-19 ramifications, it generated considerable work.

What new considerations do your clients (such as team owners, professional athletes and coaches or producers, talent, etc.) need to consider in the next year or so because of current events?

Perhaps more than any other issue, those in the industry — owners, athletes, performers, writers, etc. —need to understand the ramifications of artificial intelligence. It was the primary cause of the Writers Guild and SAG-AFTRA strikes and will continue to be a challenge for the industry going forward. Clearly, NIL’s is another area that is booming.  It has turned the college athletic scene upside down and leveled the playing field between colleges, athletes, and the NCAA.

What new technologies or resources are you seeing that are impacting your day-to-day, and what new topics can law students and other attorneys keep up to date on to be a value to the legal community in the area of sports or entertainment?

Two words: artificial intelligence. It is the new frontier — particularly for young lawyers.

Are any new laws or regulations, such as the new Name, Image, and Likeness monetization rules in sports, impacting your practice and in what ways?

Name, image, and likeness (NIL) deals are certainly having an impact and is an important area of focus.  But it will eventually settle down. Most of what entertainment lawyers address is evergreen. Specifically, issues surrounding copyrights, trademarks, licensing, performing, and the host of contract issues that accompany all the complexities in the industry do not change.

How has streaming and new technologies affected sports and/or entertainment from a legal perspective?

The biggest issue on streaming and new technology is how creators, writers, producers, directors, and performers are going to be paid. Streaming was a primary reason both the Writers Guild and SAG-AFTRA went on strike in 2023. Going forward, streaming and artificial intelligence will remain a primary focus for the entertainment industry.

What sort of licensing issues do you deal with frequently in your practice?

The biggest issues in licensing are the scope of rights granted, the length of the term (and any options), approval rights, compensation, and post-term usage. On each, the licensee wants as much leeway as it can get, and the licensor wants control. The two are often in conflict with one another.

What areas of intellectual property law impact your practice the most? What classes and/or CLEs would you recommend to our members to take if they are interested in your field?

In real estate, they say the three most important things are “location, location, and location.” In entertainment law, it’s “intellectual property, intellectual property, and intellectual property.” Young attorneys need to take as many courses in intellectual property as possible. Keep in mind that intellectual property includes not only traditional areas like copyright, trademarks, and patents, but also licensing and monetization of intellectual property. Intellectual property expertise should be coupled with a solid foundation in contract drafting. So, classes and continuing legal education in contracts are also important for prospective and current entertainment lawyers.

Do you know a sports or entertainment law attorney who deserves to be featured on our blog? Communications Chair Landis Barber would love to hear from you.

Welcome to the 2023-24 Bar Year: A Message from the Chair

By Alexa Whiteside Alexa, a woman with blond hair, wears a pale pink t-shirt and stands in front of green foliage.

Dear Members of the Sports & Entertainment Law Section,

It is a joy and a pleasure to have been given the privilege to serve as the chair of the section for the 2023-24 bar year.

After three years of work-from-home and virtual events, I think we’ve reached that moment when so many of us are ready to meet each other in person again.

The legal industry is one that relies on relationships. As sports and entertainment professionals, that is amplified for us. We work, or are interested, in a field that seeks to motivate the general public to get out of their homes and into the theater or stadium or complex where our work or the work of our clients is being showcased. Even video games can have an in-person component. Who doesn’t love a good old-fashioned day at the arcade? Our clients are often global travelers going from one state or country to the next to play their games or shoot their next film or project or perform their latest album.

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Member Spotlight: Ryan Fairchild

Landis, a white man with brown hair, wears a white shirt, red and blue plaid tie, and grey jacket.

Landis Barber

Ryan Fairchild is a man with brown hair and a beard. He is pictured wearing a white and blue plaid button-down shirt. He is smiling and standing in front of green trees.

Ryan Fairchild

By Landis Barber and Ryan Fairchild

Throughout the year, the Sports & Entertainment Law Section will be conducting interview spotlights of its members to showcase the careers of the section members. This month, the section is spotlighting Ryan Fairchild of Odin Law and Media. Fairchild is Chair of the Sports & Entertainment Law Section.

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“The” Ohio State University and the Trademark Protection of Cultural Identity

By Andrew McClain Adams

College football season is upon us, and The Ohio State University is in the hunt for the playoffs. As good as they have been on the field, the school’s first win came before the season started. In June, the United States Patent and Trademark Office granted Ohio State an unusual trademark: the word “The.”

For those unfamiliar with Ohio State, the attempt to claim ownership of a definite article may seem absurd, but the word “The” holds a special place in the heart of Buckeyes everywhere. While it has been a part of the school’s name since 1878, the university made a push in the 1980s to emphasize the word “The” as part of the college’s brand and to distinguish it from other OSU colleges such as Oregon State University and Oklahoma State University.  Since then, the word has appeared on Ohio State merchandise, promotional materials, and is emphasized in the pre-game introductions of Buckeyes competing in professional sports. The school’s first application for the trademark was denied, since the USPTO was skeptical that the word was being used as an indication of source, but their second attempt was approved after demonstrating the sheer amount of marketing and advertising they had poured into creating a link between the word and the Ohio State brand.

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Welcome to a New (Bar) Year

By Ryan FairchildRyan Fairchild is a man with brown hair and a beard. He is pictured wearing a white and blue plaid button-down shirt. He is smiling and standing in front of green trees.

Dear Members of the Sports & Entertainment Law Section:

I am so honored to have the privilege to serve as chair of the section this bar year.

For those who don’t know me: I am a lawyer in Wilmington with a practice focused on esports and content creators. I started my career by clerking for James C. Fox here in the United States District Court for the Eastern District of North Carolina before joining Brooks Pierce, where I litigated a variety of matters and built my current practice. Last September, I joined former section chair Brandon Huffman and the crew at Odin Law and Media. I also spent the better part of the last year doing business operations for a video game startup.

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April Expert Series CLE: ‘Entertainment Law and Coronavirus’

The April Expert Series CLE, “Entertainment Law and Coronavirus,” is available for viewing. The speakers included:

  • Timothy J. “Tim” Browne, Bass Berry & Sims PLC, Nashville, Tenn.
  • Melinda Morris Zanoni, Apollo Sports & Entertainment Law Group PLLC, Charlotte.

To access the CLE, click here.

In this CLE, Tim Browne and Melinda Zanoni discuss how COVID-19 has affected the practice of entertainment law, including challenges as content pivots to digital platforms, legal triage for counseling clients on how to operate in a lockdown, and COVID-defying solutions to pandemic problems faced by entertainment clients. Find out how to limit coronavirus liability at venues and discuss revisiting entertainment contract force majeure clauses in the era of COVID.

**Each month, the NCBA releases one-hour, on-demand CLEs, which are free of charge as the costs are included as part of your annual NCBA dues.

Elon Law SELS Presents “Legal Careers in College Sports”

On February 19 at 6 p.m., Elon Law’s Sports and Entertainment Law Society will host a panel about legal careers in college sports featuring Jeffrey Poulard, Compliance Officer at Rutgers. Poulard has a J.D. from William & Mary School of Law. His career includes work with the University of Maryland, the NCAA and the NFL.

Please see below for more information.

Mingling with Membership: Discussing ‘My Cousin Vinny’

Event Overview

Thursday, March 11 l 4:00 to 5:00 p.m. l Via Zoom

Join Clara Cottrell (Senior Counsel, BASF Corporation) and Clark Brewer (retired real estate and transactional attorney) to discuss the movie “My Cousin Vinny.” This movie has so many issues that it is used widely in presentations and law school classes! Clark will look at the procedural issues and trial tactics (e.g., efficient cross-examination to the role of expert witnesses) and Clara will focus on courtroom decorum and professionalism (e.g., when is all leather a good choice for your court appearance). If you would like a refresh of the movie, it is available on Amazon Prime for a small fee.

Also, Clark, as a huge movie fan, will provide his list of “Top 10 Legal Movies” of all time for your entertainment! (Spoiler, “My Cousin Vinny” is on the list!)

Registration for this event will close at noon on Wednesday, March 10.

Zoom link will be sent upon registration.

Elon Law SELS Presents ‘Legal Careers in Music’

On February 11 at 12:30 p.m. via Zoom, Elon Law’s Sports and Entertainment Law Society will host a panel with Jeffrey T. Jones and Danielle Hardy.

Jones is an Entertainment Lawyer with 25 years of experience and a former NFL Agent. He practices in Greensboro, North Carolina. Danielle Hardy is an Elon Law Alum and Counsel at Universal Music Group. Hardy’s career includes work with Spotify and Viacom. She is the founder of Pursuing the Esquire, a mentoring program for law students and pre-law students.

Please see flyer below for more information.