Defending the Noble Arts: A Creator's Guide to Protecting & Monetizing Entertainment Properties
Edition: 2
Copyright: 2022
Edition: 2
Copyright: 2022
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Defending the Noble Arts examines the intricate interdependent connection between the intellectual property we create, the entertainment industry and the consumers that use and enjoy it—all seen through the long lens of his vast legal and teaching experience and music community leadership.
Clearly written by Barry Neil Shrum, Esquire, an entertainment attorney who has been practicing law for almost 30 years, Defending the Noble Art is a comprehensive legal guide to licensing, protecting, and monetizing entertainment properties.
Defending the Noble Arts is all about protecting what makes people happy. To that end, it draws the connection between the beliefs of two historic creators: Barnum and Thomas Jefferson’s declaration that the pursuit of happiness is an unalienable right. The title proposes that the creation of all forms of noble art historically deserve protection under this connection. Using the example of Walt Disney throughout as the exemplar of both a highly influential creator and a successive licensing conglomerate, the publication lays out a foundation of philosophical principles, legal rules and techniques to establish, protect and license the ideas that ultimately turn into entertainment properties, or the inalienable pursuit of happiness: songs, movies, books, characters and celebrity personas.
Foreword
Chapter One The Role of the Star in the Entertainment and Licensing Industry
Chapter Two The Pursuit of Happiness as it Relates to the Entertainment Industry
Chapter Three Ideas in the Entertainment Industry
What is an Idea?
Ideas versus Thoughts
Chapter Four The Contours of Copyright as an Archetype for Defending Entertainment Properties
Ideas and Expression
Case Study No. 1 Nichols v. Universal Pictures Corporation et al
Ideas and Expression Dichotomy
Case Study No. 2 Feist Publication v. Rural Telephone Service Company, Inc.
Other Contours of Copyright: Simultaneous Use of Ideas, Independent Creation, and Fair Use
Simultaneous Use of Ideas
Independent Creation
Staple Use Doctrine
Fair Use
Chapter Five Protection of Ideas in the Entertainment Industry
The Law of Protecting Idea Submissions
Case Study No. 3 Julian Blaustein v. Richard Burton et al
Buchwald v. Paramount Pictures
Lessons from Blaustein and Buchwald
Chapter Six Image, Trademark, and Branding in the Entertainment Industry
Trademark, Logos, and Trade Dress
Trademarks and Historical Perspectives of Marking
Classifications of Trademarks
Case Study No. 4 Abercrombie & Fitch Company v. Hunting World Incorporation
Generic Marks
Descriptive Marks
Suggestive Marks
Arbitrary Marks
Fanciful Marks
Logo Design, Vision, and Mission Statement
Merging the Power of the Logo with Celebrity
Rights of Privacy and Publicity
Case Study No. 5 Abigail M. Roberson v. The Rochester Folder Box Company et al
Case Study No. 6 White v. Samsung Electronics America Inc.
Psychological Components of Endorsements
Posthumous Rights of Publicity and Related Issues
Chapter Seven Licensing and Endorsements in the Entertainment Industry
Early Examples of Licensing and Endorsements
What is a License?
Types of Licensed Products
Visual Arts
Fashion
Culinary
Lifestyle and Home
Collegiate
Professional Sports
Non-Profits
Corporate
Character and Entertainment
Music
Traditional Publishing
Thinking Outside the Box
Advantages of Licensing
Licensing the Components of Entertainment
Licensing Celebrity
Licensing Sports Celebrities
Licensing Death
Evaluating the Value of Celebrity and Measuring the Impact
Celebrity Lifestyle Branding and Social Media Influence
Some of the Pitfalls of Using Celebrities for Endorsements
Character and Caricature Licensing and Marketing
Licensing Music
Licensing Art
Television Licensing and Syndication and Their Impact on the Entertainment Industry
Licensing in the Motion Picture Industry
Licensing Print Media and Book Publishing
Legal Techniques to Fund the Production of Movies
Chapter Eight Legal Constructs for Protection and Enforcement of Entertainment Properties
Protecting Entertainment Properties Through Transactional Laws
Black Letter Principles from Contract Law
Case Study No. 7 W. O. Lucy and J. C. Lucy v. A. H. Zehmer and Ida S. Zehmer
Elements of Contract Formation
Special Contracts and Issues Related to the Entertainment Industry
Personal Service Agreements, Injunctive Relief, and the de Havilland Law
Covenants Not to Compete
Option Contracts
Life Rights Agreement
Letter of Intent
Contracts of Adhesion
Non-Turpitude Clauses—The Good, the Bad and the Ugly
Components of Licensing Agreements
Definitions and Licensing Terminology
Grant of Rights
Term of the Agreement
Compensation and Royalty Structures
Types of Royalty Rates
Sublicensing and Sublicensing Royalties
Territory
Accounting Provisions
Quality Control Provisions
Representations and Warranties
Indemnification Provisions
Insurance Provisions
Termination Provisions
Sell-Off Provisions
Other Boilerplate Provisions
Third-Party Licensing Representatives
Licensing and Branding Agents
Sports Agents
Personal Managers
New Types of Licensing and Endorsement Deals
Protection of Entertainment Properties Through Litigation and Infringement
Legal Enforcement of Intellectual Properties
Case Study No. 8 Williams v. Gaye: Copyright and the Elements of Infringement
Case Study No. 9 Walker v. Time Life Films, Inc.
Special Consideration for Infringement of Musical Compositions
Case Study No. 10 Bright Tunes et al. v. Harrisongs Music, LTD., et al.
Protection of Intellectual Properties Using Trademark Strategies
Intersection of Free Speech and Rights of Persona: Celebrity Impersonators
Protection of Entertainment Properties Through Corporate Structure
Basic Business Structures Used to Protect Intellectual Assets
Special Structures to Protect Entertainment Assets in Various Industries
Protecting Intellectual Property Through Corporate Policy and Maintenance
Case Study No. 11 Bayer Co. v. United Drug Co
Chapter Nine Negotiating Entertainment and Licensing Deals
Traditional vs. Modern Negotiating
Negotiation Concepts, Tools, and Techniques
Outcome Analysis: Wiggle Room and Walkaway Position
BATNA
Relationship Assessment
Leverage
Special Considerations for Licensing Negotiations
Chapter Ten Unique Issues in the Representation of Entertainment and Celebrity Clients
Child Stars and Their Parents
Child Labor Laws
Dealing with the Paparazzi
Helping Celebrities Deal with the Media
Special Legal Issues Presented by Social Media
Celebrity Security Issues
Dealing with Celebrity Ego
Encouraging Social Responsibility
Epilogue
Appendix A: Case Studies
Case Study No. 1 Nichols v. Universal Pictures Corporation et al
Case Study No. 2 Feist Publications, Inc. v. Rural Telephone Service Company, Inc.
Case Study No. 3 Julian Blaustein v. Richard Burton et al.
Case Study No. 4 Abercrombie & Fitch Company v. Hunting World Incorporated
Case Study No. 5 Abigail M. Roberson v. The Rochester Folding Box Company et al
Case Study No. 6 White v. Samsung Electronics America, Inc.
Case Study No. 7 W. O. Luch and J. C. Lucy v. A. H. Zehmer and Ida S. Zehmer
Case Study No. 8 Pharrell Williams et al. v. Fraankie Christian Gaye et al.
Case Study No. 9 Walker v. Time Life Films, Inc.
Case Study No. 10 Bright Tunes Music Corp. v. Harrisongs Music, LTD., et al.
Case Study No. 11 Warhol v. Goldsmith
Case Study No. 12 Google v. Oracle
Barry Neil Shrum, Esquire is an entertainment attorney who has been practicing law for almost 30 years, representing serial entrepreneurs and businesses as well as some of the most famous celebrities in the entertainment and creative industries, including everyone’s favorite Shark from ABC’s Shark Tank, Daymond John. Many of his clients are familiar household names at the forefront of the technology, entertainment, business, music, movie, and licensing industries. Mr. Shrum has extensive expertise in litigating intellectual property cases at both the state and federal level. Mr. Shrum is also a professor teaching copyright, entertainment law, licensing, music publishing, and cyber-law at the prestigious Mike Curb College of Entertainment and Music Business at Nashville’s Belmont University. He currently lives in Franklin where he enjoys spending time with his wife and son, cooking, playing tennis, writing, riding bicycles, and pontificating about life in general.
To have Barry Neil Shrum, Esquire speak at your organization about the principles found in Guitars, Gavels & Gold: Contemporary Legal Issues in the Arts, Entertainment and Music Business, email info@shrumlaw.com. You can also find Mr. Shrum’s first three works, Defending the Noble Arts: A Creator's Guide to Protecting & Monetizing Entertainment Properties, Origins of an Idea and Counting Stars on Amazon or find out more about his law practice at www.barryshrum.com. Follow Mr. Shrum on all your favorite social media platforms.
Defending the Noble Arts examines the intricate interdependent connection between the intellectual property we create, the entertainment industry and the consumers that use and enjoy it—all seen through the long lens of his vast legal and teaching experience and music community leadership.
Clearly written by Barry Neil Shrum, Esquire, an entertainment attorney who has been practicing law for almost 30 years, Defending the Noble Art is a comprehensive legal guide to licensing, protecting, and monetizing entertainment properties.
Defending the Noble Arts is all about protecting what makes people happy. To that end, it draws the connection between the beliefs of two historic creators: Barnum and Thomas Jefferson’s declaration that the pursuit of happiness is an unalienable right. The title proposes that the creation of all forms of noble art historically deserve protection under this connection. Using the example of Walt Disney throughout as the exemplar of both a highly influential creator and a successive licensing conglomerate, the publication lays out a foundation of philosophical principles, legal rules and techniques to establish, protect and license the ideas that ultimately turn into entertainment properties, or the inalienable pursuit of happiness: songs, movies, books, characters and celebrity personas.
Foreword
Chapter One The Role of the Star in the Entertainment and Licensing Industry
Chapter Two The Pursuit of Happiness as it Relates to the Entertainment Industry
Chapter Three Ideas in the Entertainment Industry
What is an Idea?
Ideas versus Thoughts
Chapter Four The Contours of Copyright as an Archetype for Defending Entertainment Properties
Ideas and Expression
Case Study No. 1 Nichols v. Universal Pictures Corporation et al
Ideas and Expression Dichotomy
Case Study No. 2 Feist Publication v. Rural Telephone Service Company, Inc.
Other Contours of Copyright: Simultaneous Use of Ideas, Independent Creation, and Fair Use
Simultaneous Use of Ideas
Independent Creation
Staple Use Doctrine
Fair Use
Chapter Five Protection of Ideas in the Entertainment Industry
The Law of Protecting Idea Submissions
Case Study No. 3 Julian Blaustein v. Richard Burton et al
Buchwald v. Paramount Pictures
Lessons from Blaustein and Buchwald
Chapter Six Image, Trademark, and Branding in the Entertainment Industry
Trademark, Logos, and Trade Dress
Trademarks and Historical Perspectives of Marking
Classifications of Trademarks
Case Study No. 4 Abercrombie & Fitch Company v. Hunting World Incorporation
Generic Marks
Descriptive Marks
Suggestive Marks
Arbitrary Marks
Fanciful Marks
Logo Design, Vision, and Mission Statement
Merging the Power of the Logo with Celebrity
Rights of Privacy and Publicity
Case Study No. 5 Abigail M. Roberson v. The Rochester Folder Box Company et al
Case Study No. 6 White v. Samsung Electronics America Inc.
Psychological Components of Endorsements
Posthumous Rights of Publicity and Related Issues
Chapter Seven Licensing and Endorsements in the Entertainment Industry
Early Examples of Licensing and Endorsements
What is a License?
Types of Licensed Products
Visual Arts
Fashion
Culinary
Lifestyle and Home
Collegiate
Professional Sports
Non-Profits
Corporate
Character and Entertainment
Music
Traditional Publishing
Thinking Outside the Box
Advantages of Licensing
Licensing the Components of Entertainment
Licensing Celebrity
Licensing Sports Celebrities
Licensing Death
Evaluating the Value of Celebrity and Measuring the Impact
Celebrity Lifestyle Branding and Social Media Influence
Some of the Pitfalls of Using Celebrities for Endorsements
Character and Caricature Licensing and Marketing
Licensing Music
Licensing Art
Television Licensing and Syndication and Their Impact on the Entertainment Industry
Licensing in the Motion Picture Industry
Licensing Print Media and Book Publishing
Legal Techniques to Fund the Production of Movies
Chapter Eight Legal Constructs for Protection and Enforcement of Entertainment Properties
Protecting Entertainment Properties Through Transactional Laws
Black Letter Principles from Contract Law
Case Study No. 7 W. O. Lucy and J. C. Lucy v. A. H. Zehmer and Ida S. Zehmer
Elements of Contract Formation
Special Contracts and Issues Related to the Entertainment Industry
Personal Service Agreements, Injunctive Relief, and the de Havilland Law
Covenants Not to Compete
Option Contracts
Life Rights Agreement
Letter of Intent
Contracts of Adhesion
Non-Turpitude Clauses—The Good, the Bad and the Ugly
Components of Licensing Agreements
Definitions and Licensing Terminology
Grant of Rights
Term of the Agreement
Compensation and Royalty Structures
Types of Royalty Rates
Sublicensing and Sublicensing Royalties
Territory
Accounting Provisions
Quality Control Provisions
Representations and Warranties
Indemnification Provisions
Insurance Provisions
Termination Provisions
Sell-Off Provisions
Other Boilerplate Provisions
Third-Party Licensing Representatives
Licensing and Branding Agents
Sports Agents
Personal Managers
New Types of Licensing and Endorsement Deals
Protection of Entertainment Properties Through Litigation and Infringement
Legal Enforcement of Intellectual Properties
Case Study No. 8 Williams v. Gaye: Copyright and the Elements of Infringement
Case Study No. 9 Walker v. Time Life Films, Inc.
Special Consideration for Infringement of Musical Compositions
Case Study No. 10 Bright Tunes et al. v. Harrisongs Music, LTD., et al.
Protection of Intellectual Properties Using Trademark Strategies
Intersection of Free Speech and Rights of Persona: Celebrity Impersonators
Protection of Entertainment Properties Through Corporate Structure
Basic Business Structures Used to Protect Intellectual Assets
Special Structures to Protect Entertainment Assets in Various Industries
Protecting Intellectual Property Through Corporate Policy and Maintenance
Case Study No. 11 Bayer Co. v. United Drug Co
Chapter Nine Negotiating Entertainment and Licensing Deals
Traditional vs. Modern Negotiating
Negotiation Concepts, Tools, and Techniques
Outcome Analysis: Wiggle Room and Walkaway Position
BATNA
Relationship Assessment
Leverage
Special Considerations for Licensing Negotiations
Chapter Ten Unique Issues in the Representation of Entertainment and Celebrity Clients
Child Stars and Their Parents
Child Labor Laws
Dealing with the Paparazzi
Helping Celebrities Deal with the Media
Special Legal Issues Presented by Social Media
Celebrity Security Issues
Dealing with Celebrity Ego
Encouraging Social Responsibility
Epilogue
Appendix A: Case Studies
Case Study No. 1 Nichols v. Universal Pictures Corporation et al
Case Study No. 2 Feist Publications, Inc. v. Rural Telephone Service Company, Inc.
Case Study No. 3 Julian Blaustein v. Richard Burton et al.
Case Study No. 4 Abercrombie & Fitch Company v. Hunting World Incorporated
Case Study No. 5 Abigail M. Roberson v. The Rochester Folding Box Company et al
Case Study No. 6 White v. Samsung Electronics America, Inc.
Case Study No. 7 W. O. Luch and J. C. Lucy v. A. H. Zehmer and Ida S. Zehmer
Case Study No. 8 Pharrell Williams et al. v. Fraankie Christian Gaye et al.
Case Study No. 9 Walker v. Time Life Films, Inc.
Case Study No. 10 Bright Tunes Music Corp. v. Harrisongs Music, LTD., et al.
Case Study No. 11 Warhol v. Goldsmith
Case Study No. 12 Google v. Oracle
Barry Neil Shrum, Esquire is an entertainment attorney who has been practicing law for almost 30 years, representing serial entrepreneurs and businesses as well as some of the most famous celebrities in the entertainment and creative industries, including everyone’s favorite Shark from ABC’s Shark Tank, Daymond John. Many of his clients are familiar household names at the forefront of the technology, entertainment, business, music, movie, and licensing industries. Mr. Shrum has extensive expertise in litigating intellectual property cases at both the state and federal level. Mr. Shrum is also a professor teaching copyright, entertainment law, licensing, music publishing, and cyber-law at the prestigious Mike Curb College of Entertainment and Music Business at Nashville’s Belmont University. He currently lives in Franklin where he enjoys spending time with his wife and son, cooking, playing tennis, writing, riding bicycles, and pontificating about life in general.
To have Barry Neil Shrum, Esquire speak at your organization about the principles found in Guitars, Gavels & Gold: Contemporary Legal Issues in the Arts, Entertainment and Music Business, email info@shrumlaw.com. You can also find Mr. Shrum’s first three works, Defending the Noble Arts: A Creator's Guide to Protecting & Monetizing Entertainment Properties, Origins of an Idea and Counting Stars on Amazon or find out more about his law practice at www.barryshrum.com. Follow Mr. Shrum on all your favorite social media platforms.