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September 14, 2023

Defending the First Amendment: The Latest Chapters in Book Censorship

Copyright is the engine of free expression. But what if free expression is threatened? Fueled by new state laws and nationally organized censorship efforts, the number of books challenged in U.S. schools and public libraries hit an all-time high in 2022. Over 2500 titles – overwhelmingly by or about LGBTQIA+ individuals and people of color – were targeted. Authors, publishers and their allies have been fighting the rising tide of censorship in court actions, with notable successes, but the story is far from over. A panel of those on the front lines will speak to the latest legal developments, including legislative enactments and recent cases in Arkansas and Texas, as well as the impact of book banning efforts on writers of targeted works.

Cheryl L. Davis is General Counsel of the Authors Guild, where she oversees the organization’s legal affairs, including its in-house corporate affairs and management of literary estates. She is also active in the areas of book banning and diversity in publishing and writes about and participates in panels and webinars on these topics. She received her A.B. from Princeton University and her J.D. from Columbia University. She holds leadership positions in the following legal organizations: ABA Section of Intellectual Property Law (Literary Works Committee Chair), ABA Entertainment, Arts and Sports Law Forum (Arts and Museums Vice Chair), New York State Bar Association, Entertainment Arts and Sports Law Section (Diversity Committee Co-Chair), Dramatists Guild Legal Defense Fund (Board member).

David Horowitz has served as executive director of Media Coalition, Inc. since 1998.  Media Coalition is a trade association founded in 1973 to defend the First Amendment right to produce and distribute books, movies, magazines, recordings, home video and video games, and protect the American public’s First Amendment right to have access to the broadest possible range of information, opinion and entertainment. He is responsible for protecting the First Amendment rights of Media Coalition’s members’ in Congress and all 50 state legislatures.  David also oversees Media Coalition’s legal docket. David oversaw the publication of Only a Game: Why Censoring New Media Won’t Stop Gun Violence and Shooting the Messenger: Why Censorship Won’t Stop Violence

Maria A. Pallante is President and CEO of the Association of American Publishers (AAP).  Based in Washington, DC, she leads policy strategy, litigation, and programmatic priorities for the modern publishing industry, with a particular focus on copyright, freedom of expression, and digital markets.  Before joining AAP, Maria served as Register of Copyrights for nearly six years, directing the U.S. Copyright Office during a particularly active period of statutory and regulatory modernization.  She worked closely with Congress to close gaps in the law, including launching public studies and recommendations on small copyright claims, music licensing, enforcement tools, streaming protections, and Internet policy.  She previously held counsel and leadership positions in New York with the worldwide Guggenheim Museums, Authors Guild, and National Writers Union.  Maria serves on several expert committees and has delivered a number of prominent legal lectures, including “The Next Great Copyright Act” in 2013 (Manges Lecture, Columbia Law School) and “The Art and Innovation of Exclusive Rights” in 2022 (Brace Lecture, Copyright Society).  She earned her law degree at George Washington University Law School. 

Recognized nationally and internationally as a fearless freedom of expression advocate, Laura Lee Prather was awarded The American Lawyer’s inaugural Tony Mauro Media Lawyer Award for her tireless and successful efforts advocating for legislation to strengthen First Amendment rights, including zealous advocacy for free speech rights both at the statehouse and the courthouse. Board certified in Civil Appellate Law, Laura represents a broad array of clients at the trial and appellate court level in First Amendment, Anti-SLAPP, and intellectual property disputes. She represents content providers including online and traditional publications, cable and terrestrial broadcasters, streaming media platforms, podcasts, production companies, and music and sports entities. Her clients value her dedication and work ethic as demonstrated by her recognition as a BTI Client Service All-Star (BTI Consulting Group). In addition to her private practice, Laura is heavily involved in community and trade organizations.

June 14, 2023

Where Will the Streaming Wars Lead Us?

Even before COVID disrupted our lives and viewing habits in 2020, Netflix had been busy disrupting the film and TV business.  It offered its customers nearly unlimited premium television and film content for a low monthly price, the ability to binge entire series immediately, Oscar-level direct-to-streaming films, no advertising, and the option to cancel at any time.  Netflix had created a product so compelling that it forced other major distributors to follow suit, which in turn accelerated the decline of more reliable ways to make money from content, including pay TV, digital sales and rentals, and windowing.  Now, in 2023, it's clear that the streaming ecosystem is in trouble, or at least ripe for more upheaval. As content behemoths like Disney, Warner Bros. Discovery, Paramount, NBCUniversal and Sony struggle to formulate their plans to attempt streaming profitability, the resulting changes will affect everyone in the audiovisual creative industries.  Could the old strategies -- advertising? bundling? contingent compensation? consolidation? -- ultimately save the industry?  And where will newer players like Amazon and Apple fit in?

Join us for a provocative conversation about our collective film and television future with Pank Patel, Head of Strategy and Corporate Development at North Road. Reporting into North Road's CEO Peter Chernin, Pank works with North Road's leadership to set the company's strategic direction and leads all global investment and M&A activity.  Before joining North Road, Pank was EVP, Strategy & Business Development at NBCUniversal where he spent over a decade supporting C-level executives in developing and executing strategic initiatives including M&A. Pank has held leadership positions at Universal Pictures (Film), Universal Studio Group (TV) and NBCUniversal International, based in LA and London. In addition, he spent a year in Mumbai supporting Comcast's development of its entry strategy for India. Prior to joining NBCUniversal, Pank worked in the M&A team at Goldman Sachs in London.  Pank holds a BA in Economics from Girton College, Cambridge University and an MBA from the Stanford Graduate School of Business.

Ian Slotin, SVP, Intellectual Property at NBCUniversal, leads the Innovation, Technology and Policy team in the company’s Intellectual Property Legal Group.  His team supports the company’s emerging technology initiatives, handles the IP aspects of M&A transactions and oversees the company’s patent strategy.  Ian is also the lead IP attorney for the company’s global policy and legislative strategies on copyright, rights of publicity and other IP-related disciplines.  He also advises business leaders on the legal and policy ramifications of disruptive technologies, and chairs a cross-functional working group that develops policies and guidance on new technologies.  Before joining NBCUniversal, Ian was an associate at Irell & Manella, LLP and TroyGould LLP, and served as a law clerk to the Honorable A. Howard Matz in the U.S. District Court for the Central District of California. He is a graduate of the Yale Law School.

May 10, 2023

In the Wake of Raging Bull: A Growing Circuit Split Since Petrella v. MGM

In the 2014 Petrella v. MGM case, the Supreme Court decided that laches did not bar a copyright claim brought within three years of infringement. In so doing, the Court noted that under the Copyright Act’s “separate accrual” rule, a plaintiff can recover damages only for infringements that occurred within three years of suing. In the wake of Petrella, the Courts of Appeals are divided about whether the three-year damages bar also applies to infringement claims that accrue under the discovery rule. In 2020, the Second Circuit, in Sohm v. Scholastic, Inc, ruled that it does; but last year the Ninth Circuit, in Starz Entertainment, LLC v. MGM Domestic Television Distribution LLC, came to the contrary conclusion. And in February of this year, the Eleventh Circuit, in Nealy v. Warner Chappell Music, Inc., joined the Ninth Circuit on its side of the circuit split.

Please join us for a panel that will discuss the legal and practical impacts of this deepening circuit split that may make its way to the Supreme Court.

Jay Srinivasan is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. The Daily Journal named him to its 2022 “Top Antitrust Lawyers” list for California.  He represents a wide range of clients, primarily in the entertainment and tech industries in high-stakes litigation matters, and also provides antitrust advice in the context of mergers/joint collaborations, government investigations, and business practices. Mr. Srinivasan represented MGM in the Starz v. MGM case.

Tyler Ochoa is a professor at the High Tech Law Institute of Santa Clara University School of Law. He is a recognized expert in copyright law and is the author of annual updates to the treatise The Law of Copyright (originally by the late Howard Abrams). He has also published three articles on statutes of limitations.  Before joining the faculty at Santa Clara, he served as a professor and co-director of the Center for Intellectual Property Law at Whittier Law School. He was also a clerk for the Honorable Cecil F. Poole of the U.S. Court of Appeals for the Ninth Circuit and an associate with the law firm of Brown & Bain in Palo Alto, California. In the Starz v. MGM case, Professor Ochoa submitted an amicus brief in support of Starz.

The panel will be moderated by Kenneth M. Trujillo-Jamison, a partner at Willenken LLP. He has extensive experience litigating entertainment matters, including defending a major studio against copyright infringement claims involving animated films and a prominent portrait photographer in a right-of-publicity case brought by the rapper Jay-Z. Kenneth wrote a recently published article in the Daily Journal about this panel’s topic.

Reading Materials

April 11, 2023

What's in a Name? Overlapping Trademark, Publicity and Copyright Laws Involving a Person's Identity

A well-known fashion designer sells the business that bears his name — including the associated trademark rights — for a lucrative sum. How, if at all, may he later use his name or appear in public to publicize his involvement with a new venture?  A young designer’s employer requires her to transfer trademark rights in her name as a condition of employment. Post-separation, can her employer force her to remove social media posts promoting her work and turn over social media handles under her name? If a musical artist forms a company to hold and license out trademark rights in her identity, can control of the company — and the ability to authorize others to use her identity for commercial purposes — be transferred through a bankruptcy or divorce settlement, and if so, what are the implications for her next album? And what is the role of publicity rights in the analysis, particularly the elements rooted in a person’s control and dignity rights, and are those rights even cognizable if they aren't held by the individual?   

Join Professor Jennifer Rothman, America’s preeminent publicity rights scholar and a leading expert in trademark and copyright law, in sorting out the fragmentary and overlapping IP-related rights in a person’s identity, and the real-life implications for artists, artisans and influencers.  Professor Rothman posits that trademark law's ancient personality-based roots can help lead us through this "identify thicket” in ways that are both surprising and illuminating.