The big news in the 70's had been the overhaul of the copyright law leading to the passage of the Copyright Act of 1976 which, (along with its various amendments), continues to serve as the guiding legal light today. Throughout the 70's and 80's the music industry grew fat on the excesses of rock n roll and the musical appetites of the aging boomer population. In the early 80's the compact disc was introduced as the sound carrier of the future. The record industry prospered as it enjoyed a surge in revenue generated by the higher priced new format and the opportunity to convert its libraries of music to CDS for reissue to consumers whose old record players were becoming obsolete.
Meanwhile, the film industry discovered that its real profits were not at theater box offices but at video stores satisfying the home viewing audience. Just as the traditional entertainment industries of music, film and television began to reach maturity, along came yet another technological progression which is changing the legal landscape more dramatically than everthe digitization of information.
Historically, entertainment law practice has involved working within the convergence of a number of areas of law, and its impact on a patticular segment of the entertainment industry, whether it be music, fllm, television, publishing, art, computer games, etc. Typically, it involves applying principles of copyright, trademark, business organization, labor, tax, and contract law to a particular project. The practice requires a knowledge, not only of the law, but also familiarity of the customs, precedents, traditions, politics and economics of a particular industry either locally, regionally, nationally or internationally.
The arrival of digital technology and its application in the entertainment sector has given rise to new products, vocabulary, deal structures, legislation, economics, distribution systems, politics and practice areas. Terms like "new media," "internet law," "computer law," "convergence," "electronic publishing," "MP3," "electronic commerce," "streaming audio and video," and the "Y2K problem" now enter the conversation.
Issues related to financing, producing, distributing, and protecting entertainment products now extend to new mediums such as the Internet, and new products such as DVD interactive multi-media CD-Roms, enhanced compact discs, on-line play-for-pay Web sites and other digital downloads. As Nicholas Negroponte has said in his book, "Being Digital," "we are making the transition from moving atoms to moving bits." As more entertainment product information finds its way into our homes via the transfer of bits through broadband fiberoptic conduits to our combination TV/computer receiver, the nature of the business is transforming in ways that create new and unresolved legal issues. As a result, the base of knowledge required to be effective in the entertainment arena is expanding. The borderlines of the practice are fuzzier. The overlaps into traditional intellectual property areas and high technology issues are more frequent. Along with recording contracts, music publishing agreements, screenplay acquisition, and motion picture production deals, one can now include software copyright and license agreements, on-line licensing and consumer transactions, and protection of trademarks and domain names.
Rights acquisition issues have become more complicated. For example, in the old days if an artist wanted to record a song the record company requested a mechanical license agreement from the copyright owner and paid a fee set by statute. Now consider the rights issues in the case of an enhanced audio CD (one containing interactive audio and visual information) which will be promoted (performed and manipulated) on the Internet at a particular Web site from which the consumer can purchase, listen, or download all or part of the album. The act of transmission, distribution, reproduction, or performance of any portion of the audio or video elements can each trigger the necessity for one or more licenses from the copyright owner and the negotiation of a fee. Consequently, the packaging of new media products has become more expensive and the prosecution of infringements and the enforcement of rights is becoming a problem of greater magnitude and expense.
Texas has long been a contributor to the national entertainment industry by virtue of the talented individuals, actors, musicians, writers, and artists who are born in Texas and then move to New York, Los Angeles, or Nashville to fully exploit their abilities. Beginning in the early 70's, Texas began finding its place in the national spectrum as a geographic source of fully developed and produced entertainment products, in addition to being the birthplace for talented individuals.
The international distribution and success of television programs like "Dallas" did not hurt our popularity but rather increased the curiosity of those residing in foreign lands. By the late 70's, the television series, "Austin City Limits," was promoting Austin and Texas music in homes across America and beyond. The Texas Film Commission came to life in the early 70's under the guidance of its first director, Warren Skarren, who later achieved national recognition as a screen writer due to his work on Batman, Beetlejuice, Top Gun, Beverly Hills Cop, and more. By the late 80's, a Texas Music Office was created and since 1993 a Multimedia Industry Office has been established within the Governor's office. These three departments provide a wealth of information about the status and activities of their respective industries in Texas.
But when it comes to original records, television programs and motion pictures from Texas, the products are usually independent, low budget affairs that struggle to find financing and then distribution, marketing, and promotion outside the state. There are exceptions, and there have been successes which, of course, inspire others to keep trying. For every Willie Netson, Lee Ann Rimes, ZZ Top, Richard Linklater, Robert Rodriguez, Mike Judge, Little Joe y La Familia, Stevie Ray Vaughan, or Richard Garriott, there are hundreds, if not thousands more, trying to get the funding and find the connections that will lead to their national discovery.
Consequently, the practice of entertainment law in Texas has been not so much about representing big name talent, major studios, and record companies or working on 40 million dollar motion pictures (although this can happen from time to time), but more about working with a wide variety of copyright and transaction issues facing relatively young, new and developing artists and startup companies formed to exploit their work. It's this fact which has resulted in many large law firms declining to pursue the practice area and why much of the interest is coming from relatively young lawyers in solo or small firm configurations. That, plus the time involved in getting over a steep learning curve and the shortage of good paying practice opportunities, leaves us with very few full time entertainment lawyers in the state and a large number of curious observers and part-time participants.
Although Texas based producers of music, television and motion piclures have historically struggled to attain national recognition, the arrival of digital has put us back on a level playing field with other entertainment industry centers. Traditional Hollywood has had a difficult time making the digital transition in a significant way. They are still trying to recycle their oId methods and product originaliy created for a linear medium. Successful "New Media" entertainment products geared to the computer based, game playing, Internet oriented crowd are not tied to the archaic business, political, financial and creative structures and methods of the old Hollywood system. They are emerging from high tech centers like Silicon Valley, San Francisco, Austin, Boston, and Seattle with new business models created by adopting bits and pieces from older industry. We are seeing features of film, music, or book publishing industry agreements merged in an effort to capture a business format reflective of the new commerce. Highly original and creative new entertainment properties are originating from Texas and finding their way to consumers internationally without the necessity of Los Angeles based distributors.
New technological developments are decentralizing the industry and are moving us forward to a time when each individual will conceivably have his/her own web site, making each of us a creative content producer and distributor, and essentially a mini television station able to acquire and distribute copyrightable content directly to consumers worldwide. This is pretty exciting stuff for a guy that started life listening to Hank Williams on a windup Victrola record player.
With new technology leading the way, the entertainment business is rapidly changing and as usual the legal system is struggling to catch up. This should keep a few lawyers busy well into the next millennium. Meanwhile, look for my Web site coming soon to a computer near you (www.miketolleson.com).
Previously published in the Texas Lawyer, September 7, 1998.
Mike Tolleson is the principal of Mike Tolleson & Associates, Austin. He was the first chairman of the Entertainment & Sports Law Section of the State Bar of Texas, a lifetime member of the Texas Music Association, and currently chairs the Planning Committee of the Annual Entertainment Law Institute. (512) 480-8822; Fax (512) 479-6212.
Copyright Mike Tolleson1998
Editor's Note: Mr. Tolleson is looking for an experienced IP paralegal to work in his office in Austin. If you are interested, please contact him at the telephone or fax listed above.