January - February 2013 Issue
In a decade, the world has completely revolutionized the way it consumes entertainment. What has it meant for lawyers?
Christene Hirschfeld, Partner, BoyneClarke LLP, Dartmouth
Photo credit: Marvin Moore
Digital downloading, MP3s, iPods, iPads, YouTube, Netflix, e-books — in just over a decade, the world has completely revolutionized the way it consumes entertainment. Music lovers are online instead of at the record store. Kindle e-book sales have overtaken paperback sales on Amazon. And the market for on-demand web television is growing.
So what does it all mean for entertainment lawyers? A lot. And it starts with their evolving client base. Music lawyers are working on fewer “major label deals,” but have a greater number of smaller, varied, and often creative deals in the works as the music industry devises new ways to monetize a musician’s work. The same goes for book publishing: As more authors self-publish e-books, lawyers are advising them on business matters that authors were rarely involved with before. In the world of film, television and digital media, lawyers are encountering countless fascinating new challenges when it comes to copyright and content distribution. And this is just the beginning — legally, entertainment lawyers are breaking new ground every single day as they adapt to evolving digital distribution platforms. To get some insight into today's entertainment law practice, National spoke to five lawyers across the country...
Company: Partner, BOYNECLARKE LLP, Dartmouth
Specializes in: Business, entertainment and intellectual property law
Outside work: She lives on a small farm with horses, chickens, 12 dogs, homing pigeons and honey bees.
“What I find challenging is that everything is so readily available. Film and television producers can access images, for example, very easily off the internet. And they don’t always take the time to read the licence information. So when I hear someone say that something they’ve used in their production is in ‘the public domain’ now, my heart sinks, because invariably it means there is going to be a problem, since people throw the term ‘public domain’ around very loosely these days... In general, the changes in entertainment and intellectual property law are pretty astronomical. I’ll talk to a client about something, and I won’t be able to say, ‘The law is very clear on this.’ Instead we have to say, ‘Well, we can liken it to something, and my best guess would be that this is the way things are going.’ We’re creating our own game books. We don’t know whether we’ll be right at the end of the day.”
Dean Chenoy, Partner, Heenan Blaikie, Montreal
Photo credit: Pierre-Louis Mongeau
Firm: Partner, Heenan Blaikie, Montreal
Specializes in: Film, television, digital media, publishing, and video gaming
Road not taken: Dean jokes that he’s “smoked meat royalty.” His family owns Chenoy’s, a famous Montreal smoked meat restaurant first opened by his great-grandfather in 1936.
“One interesting thing that’s changed is my work in a day: what I accomplish now in a full day, 15 years ago would have taken me a few days. For example, say I’m reviewing a television program’s content for libel and defamation. Fifteen years ago, I’d get a video cassette, which would take a long time to make, and the quality would be lousy, and I’d sit in the boardroom and watch the video cassette in real time. But today I watch everything on FTP sites, and I can watch it everywhere. I don’t even have to be at my desk. I just watch on my iPad sitting on my couch. So my work is much more efficient. I’m not tied to an office, and as a lawyer, it can be more fun and more flexible. But the flip side is, now I’m reachable anywhere any time. So people expect answers much quicker. I work for a very large digital media platform, for instance, that often needs answers within an hour. It’s a much faster pace.”
Susan Abramovitch, Partner, Gowlings, Toronto
Photo credit: Paul Eekhoff
Firm: Partner, Gowlings, Toronto
Specializes in: Music, film, television, live theatre, multimedia, video-gaming, branded entertainment and book publishing
In an earlier life: Susan plays hockey, and one of her favourite summer jobs ever was as a fudge cutter at Ye Olde
Fudgery in Banff, Alta.
“The client base has changed big time. There are companies that are not traditional entertainment players that are being let in by the entertainment industry because, of course, we’re all seeking new ways to monetize the product. So whereas maybe a decade or two ago there would have been a reluctance to let a gum company come in and get involved with making music, or a food company come in and make real television programming, now it’s embraced… Overall, the great thing about [all the changes in the industry] is that it certainly makes work interesting. There was a moment there in the early 2000s where I was just doing music, and it was the same deals in and out — there were different clients and there are always different subtleties to each client, but basically you saw the same agreement day in and day out and you could do it in your sleep. Today, there is no deal that’s the same as the last, and I’m not just talking about the numbers. I’m talking about the structure, and the rights involved, and thinking about the new technological developments and retaining rights for future developments.”
Wayne Logan with country star client George Canyon
Photo credit: Marnie Burkhart/JAzhart Studios
with country star client George Canyon
Firm: Associate, Field Law, Calgary
Specializes in: Entertainment, intellectual property and sports
Claim to fame: One of his first clients was retired hockey star Gordie Howe. Logan now says, “Gordie Howe changed my life.”
“In the e-book and author world, the major book publishers are now going through what the major record labels went through 10 years ago, and they don’t know how to work with it. What the iPod did for music, the reading devices are doing for books. I’ve worked a lot in the e-book industry and that’s where it’s gotten really busy. Why? Many authors are now self-published. They can go directly to Amazon and sell their books. But they still need to get some publicity, still need to understand their business…So we help them with questions like, “is it original? Can I use these quotes from this other article in my book?” So that’s part of our practice, determining what’s original; fair use, fair dealing. A lot of people want to quote other people’s material — so determining whether or not they need permission, that sort of thing. And rights acquisition is big. There’s a whole new world of rights out there.”
Andrew Atkins, Partner, Atkins & Company,Vancouver
Photo credit: Venturi+Karpa
Firm: Partner, Atkins & Company, Vancouver
Outside work: He’s a boating enthusiast, who says he likes “all things boat”: power boating, kayaking, stand-up paddling, sailing, and his latest water venture is sculling.
“We see far fewer big record deals than we did before. The record companies are much, much smaller players in the development of artists than they were, say, five or 10 years ago. So where we did 10 major label deals 10 years ago, we might see one now. We continue to be busy, as we have a number of fairly large clients on the business side that keep us busy, but certainly the flow of small artists through the door has dropped dramatically. And the economics of those deals have become much more difficult, because the small record companies doing those deals are equally or more complicated than they were before. From a practice perspective, we have probably moved away from the volume that we did of artist deals, and we’re acting more for producers and managers and what have you. We’re seeing more deals come to us through our management clients…Generally though, it’s been a very, very exciting process. I’ve done this for 25 years and it’s been a constantly changing landscape, which has been fun to experience.”