“Hooray for Madison Avenue!” How a Brand Can Become a Player in Hollywood

November 12, 2024    

As brands increasingly seek to create compelling entertainment content for streaming platforms, they face complex legal, business, and creative challenges. Recent court decisions, including Warhol v. Goldsmith (2022), Tiger King cases, and Billie Eilish documentary rulings, provide important frameworks for navigating rights management and creative control. These cases establish guidelines for how brands can incorporate existing content, manage incidental use, and protect creative assets while developing entertainment properties.

Key Takeaways

The 2022 Supreme Court ruling in Warhol v. Goldsmith has reshaped how brands must approach content creation and fair use. The Court's interpretation requires brands to carefully consider how they transform and incorporate existing content, especially when creating entertainment properties.

Legal precedents from recent cases like the Netflix Tiger King litigation and Billie Eilish documentary dispute offer practical guidance on incidental use, de minimis considerations, and fair use in entertainment contexts. These decisions help brands understand when they need clearance versus when they can rely on fair use exceptions.

Entertainment content creation requires sophisticated rights management strategies. Brands must navigate complex clearance requirements, talent agreements, and production partnerships while maintaining creative control. This includes understanding when "life rights" are necessary and how to manage defamation risks.

Distribution considerations have become increasingly complex, with brands needing to understand platform-specific requirements, territory restrictions, and rights duration. Success requires careful structuring of agreements and consideration of multiple distribution channels.

Action Steps

1. Develop comprehensive rights management protocols for entertainment projects.
2. Create clear guidelines for creative control and brand integration.
3. Establish processes for talent agreements and production partnerships.
4. Build relationships with entertainment industry legal experts.
5. Implement systematic content review procedures.
6. Create frameworks for managing creative partnerships.
7. Design distribution strategies accounting for platform requirements.
8. Build internal expertise in entertainment industry practices.
9. Create clear metrics for measuring content success.
10. Monitor and update legal compliance frameworks regularly.

CLE Materials

• Session Materials
• Andy Warhol Foundation for Visual Arts, Inc. v Goldsmith
• Andy Warhol Foundation for Visual Arts, Inc. v Goldsmith Brief
• Bill Graham Archives, Plaintiff-Appellant, v Dorling Kindersley Limited
• Campbell v Acuff-Rose Music, Inc.
• Cramer v Netflix, Inc.
• Kelley v Morning Bee, Inc.
• Whyte Monkee Productions v Netflix

Source

"Hooray For Madison Avenue! How A Brand Can Become A Player In Hollywood." Lauren Campisi, VP of Northwell Studios at Northwell Health; Samantha Warrick, chief strategy and operations counsel at LVMH Holding Group; Marcie Cleary, partner, entertainment group at Frankfurt Kurnit Klein & Selz; Victoria Cook, partner, entertainment group at Frankfurt Kurnit Klein & Selz. ANA Masters of Advertising Law Conference, 11/11/24.