Sports & Entertainment Beat

Welcome back and please come on in, lest you catch a cold. This past Sunday’s Grammy Awards dialed up the heat, taking place in the Las Vegas desert, having been bumped from its usual Los Angeles stage due to COVID restrictions. To the relief of many, no cringeworthy, front-and-center battery took place at this awards show (evidently the Nevada Gaming Commission put the kibosh on that). Indeed, the show seemingly went on without a ‘hitch’ — though I would have liked to have seen our ridiculously talented, Grammy-nominated clients leave with trophies. Another uber-talented nominee, singer/songwriter Ed Sheeran (sadly, not a client) is celebrating a big victory this week but it was not at the Grammys. Rather, he prevailed in his defense in his court case alleging that his hit song, “Shape of You” had infringed upon another musician’s copyrights. The “Bad Habits” singer went on the offensive, blasting baseless copyright infringement claims such as the one he faced as being, well…bad habits.

Elsewhere this week, March Madness gave way to April Adulation as two new NCAA Division I College Basketball champions were crowned, with the University of South Carolina Gamecocks and University of Kansas Jayhawks taking home the women’s and men’s top prizes (respectively). Notably, Kansas overcame a substantial deficit and was the beneficiary of a late injury to University of North Carolina star forward Armando Bacot caused by what many have theorized was a loose floorboard in the basketball court. For its part, the court’s manufacturer denied there being any issues with the court (which is incidentally what I would have advised it to do had I been its lawyer…). In any event, I hope that the winners from the past week enjoy their time in the spotlight as you enjoy this week’s Spotlight.

• • Having nearly a one-year sample size that includes the NCAA’s most marketable event (March Madness), one encouraging development in the name, image and likeness era is that female athletes have largely been outpacing their male counterparts on endorsements. Meanwhile, it is clear that NCAA and Commissioner Mark Emmert are no closer in efforts to have Congress establish uniformity in NIL rules, but having let Pandora out of the box without any meaningful guidance, should we even be surprised?
  • Marilyn Wilson-Rutherford, California girl and ex-wife of Beach Boys founder Brian Wilson sues Wilson over his $50 million song catalog sale.  This should be an interesting case to watch — if for nothing else, to see whether Wilson is represented by counsel named “Rhonda” or “Barbara Ann,” or whether Wilson updates the famous Beach Boys chorus to “I wish they all could be California (other than the ones that sue me for millions) Girls.”
  • Riding intrigue fueled by the popularity of Netflix docuseries (but regrettably, non-renewable resources), Formula 1: Drive to Survive is making U.S. media rights a hot commodity.
  • For those, like me, who have felt at times powerless to help the Ukrainian people, Ukraine’s government has created a website through which users can donate cryptocurrency and fiat directly to the government to aid in its war effort and provide humanitarian aid. Soon, the website will be set up with an NFT marketplace to raise additional funds from the sale of hundreds of donated NFTs. So you’ll be able to buy a CryptoPunk from Kyiv while sticking it to a real punk in Moscow.
    
    

Welcome back to the "Spotlight." I don’t know whether any of you have heard, but something pretty shocking took place this past Sunday night at the Dolby Theatre in Los Angeles. I hope you’re sitting down while you read this (those of you with standing desks may want to bring it down to its lowest level—your chiropractor will forgive you). But apparently there was an awards ceremony at which…get this: gold statuette trophies were given to some of the most talented and accomplished people in the motion picture industry for their work from the past year! Who knew?! Remarkable that all this could have happened around Will Smith’s violent demonstration of how paper beats (Chris) Rock. As for the awards themselves, the deaf family drama, CODA notably won the Best Picture category representing a watershed moment that many saw coming for years—that a streaming service could take home Hollywood’s most coveted prize, while Ariana DeBose became the first openly queer woman of color to win an Academy Award for her role in the film adaptation of West Side Story. Still, those firsts seemed overshadowed by the ugly incident of Smith storming on stage and assaulting Rock with a slap across the face for making a joke (albeit one in poor taste) about Smith’s wife.  In turn, we subsequently learned, Smith was asked to leave, he refused and then to punish him, he was given the Best Actor award (the horror!) and subjected to a standing ovation in the process (talk about best actors…). The weeks and months ahead are sure to have further dissection of the incident and reactionary measures at future award shows (the Grammys are just around the corner) and regrettably, at comedy clubs around the country (I’m even wearing a helmet as I write this). Whatever the result, I can only hope that what takes place around the stage does not detract from what is presented on the stage.  For now, my best supporting readers in an entertainment and sports law blog, this week’s Spotlight goes to…you.

• • Mamba forever: months after letting Kobe Bryant’s endorsement deal with Nike expire, his estate and Nike have forged a new partnership to help carry on Bryant’s legacy.
  • Dua Lipa is hit with yet another copyright infringement lawsuit over her mega-hit song, “Levitating.” If it were me from all this litigating, my heart would be palpitating. 
  • Musician and creatives’ social networking app, Vampr reaches new heights, adding users and taking on money hungry (err…blood thirsty?) investors. A surprising development for an app that only works in the dark.
  • Madonna vogues into the metaverse, becoming the latest celebrity to acquire a Bored Ape NFT, while fellow musical acts Diplo and Nas sell NFTs of their own through tokenized royalty platform, Royal. Clearly, we are liv-ing in an ethereal world…   

Welcome back to the "Sports & Entertainment Spotlight." We’re just one week into March Madness, and already my predictions from last week are coming to fruition (if only I had the same luck picking winners of the games themselves). Specifically, news of Name, Image and Likeness (NIL) deals have been popping up all over—even in some unexpected places. For instance, a memorable moment for the Indiana University Cheerleading Squad (during a forgettable game for the Hoosiers’ Men’s Basketball team) in which Cassidy Cerny was hoisted up to snag a basketball hopelessly stuck behind the hoop, led to her securing a NIL deal with a sports apparel company. Previously unknown players rise to fame, as Saint Peter’s University (amidst an unlikely Cinderella tournament run) guard Doug Edert and his distinctive mustache propelled his Peacocks into the Sweet 16, picking up NIL deals with Buffalo Wild Wings and Barstool Sports along the way. On a grander scale, Adidas announced that it would be setting up an NIL network, making affiliate commissions available to any of the more than 50,000 college athletes at schools whose sports programs it sponsors. I am looking forward to seeing what comes next this weekend – both on and off the court. In the meantime, you need not wait any further for your weekly Spotlight fix:

• • Usually Speedo-dropping is in and of itself a scandalous and embarrassing occurrence. Russian Olympian swimmer Evgeny Rylov found out it’s that much more scandalous and embarrassing when Speedo is dropping his sponsorship for his having attended a rally in support of war criminal/President Vladimir Putin.
  • Amazon’s $8.5 billion acquisition of MGM Studios officially closed, with many speculating whether the deal was primarily for the MGM name, history and its intellectual property including the James Bond franchise. For all we know, it may just be that some higher-up at the company wanted to introduce himself as “Bezos…Jeff Bezos.”   
  • With its latest trademark filings, American Express shows it may be just the latest example of an institutional brand looking to expand into the metaverse. Don’t leave your pixelated home without it.

This past week, I have realized my place is still on the blogosphere and not in the stands. That time will come. But it’s not now.

I love my readers, and I love my supportive family. Without them, none of this is possible.

I’m coming back for my second year of the “Sports & Entertainment Spotlight.” We have unfinished business.
LFG (as in Law: Foster Garvey—what else?!)

That’s right folks, like Tom Brady, I’m back for another year (and that’s pretty much where all Josh Bloomgarden/Tom Brady commonalities end). In any event, I’m feeling especially excited this time of year with Spring right around the corner, and March Madness in full swing. This year, I have a vested interest not only in the theatrics of the games (my brackets are probably being busted as you read this), but also in seeing how, for the first time, the name, image and likeness (NIL) rights of basketball players participating in the Women’s and Men’s basketball tournaments are leveraged in advertising and marketing opportunities throughout the tournaments. Undoubtedly, we will see buzzer beating highlights minted as non-fungible tokens (NFTs) and tournament heroes not only becoming household names and but collecting checks in the process.

Speaking of “madness,” I would be remiss not to mention what seems like a daily march of plaintiffs to the courts to claim copyright ownership in chart-topping songs. (Bonus points to you if you found all the word play in that last sentence). Indeed, ever since the Marvin Gaye Estate’s controversial “Blurred Lines” copyright infringement victory against Robin Thicke and Pharrell Williams (that many viewed as a misapplication of legal analysis that should have been focused on whether a melody was copied, rather than copying of a harmonic feel or rhythm of a song), songwriters and artists have been emboldened to try to get their share of the pie (and some publicity in the process). Just this past week, no sooner did Katy Perry prevail in her copyright suit, but Dua Lipa now finds herself in the middle of a copyright brouhaha, joining Ed Sheeran, Sam Smith and other top singers/songwriters – all for the most part against lesser-known artists or songwriters whose songs become publicized through their litigation. Perhaps out of these cases, there will come either judicial or legislative guidance that makes songwriters a little more self-assured that their contributions will not land them in court. Until then, these plaintiffs will continue to rack up streams (and legal fees) while spending a few minutes in the “Spotlight.”

Which reminds me, here’s what else made this week’s "Spotlight."

• • Just in time to celebrate Women’s History Month, Rihanna continues to assert herself as an entrepreneurial force, with her Savage X Fenty lingerie brand reportedly on the verge of a $3 billion IPO. Go ahead and “Take a Bow.”
  • Social media platform (and unrelenting reminder that I am aging) TikTok debuts its streaming service SoundOn, enabling artists to upload and monetize music through the service.
  • Not to be outdone, Instagram will soon debut NFTs on its platform — potentially enabling users to mint their own NFTs. So if anyone is in the market for NFTs featuring a darling Cavalier King Charles Spaniel, please contact me for details.
    
    

Welcome back to the...—  

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It’s the first anniversary of this often irreverent, at times poignant, occasionally (?) humorous(???), and always informative labor of love I call the "Sports & Entertainment Spotlight." The first year is said to be the toughest, that tries the mettle of a relationship and well, the honeymoon phase is over. So, if you’ve made it this far, you’re in it for the long haul. Of course, always happy to pick up new friends along the way. As we embark on the second year of the "Spotlight," complete with some swanky, new branding (hat tip to the Foster Garvey marketing mavens). I would love to have an opportunity to connect with you, the reader, and hear your thoughts and feedback on how I’m doing (other than from members of my family), what topics matter the most to you, etc. In that vein, I invite you to connect with me on LinkedIn or email me at josh.bloomgarden@foster.com. So as I await your outreach to imbue me with the knowledge to help me upgrade the lightbulbs in the "Spotlight," here is your anniversary present:

• • University of Connecticut women’s basketball guard Paige Buecklers is taking full advantage of the name, image and likeness (NIL) era in college athletics, cashing in on her brand and perhaps most significantly, bringing more interest to women’s athletics. Amazing what can happen when the National Collegiate Athletic Association (NCAA) loosens its grip (albeit begrudgingly).
  • In a collision of Sports & Entertainment, the National Basketball Association (NBA) has voiced its objection to the use of NBA team logos and other trademarks in the biopic HBO series “Winning Time: The Rise of the Lakers Dynasty” without any trademark license or clearance. Meanwhile, the Boston Celtics objected to there not being a biopic series about them.
  • Think before you post. Rapper Nas is the latest defendant against copyright infringement claims by photographer and serial plaintiff Al Pereira (who has filed about 500 copyright infringement lawsuits in the past few years), having posted on Instagram — without a license — a 1993 black and white photo by Pereira of himself (Nas) and fellow rappers 2pac and Redman. Related tip: next time you’re at a friend’s wedding, in lieu of shopping for a gift on your friend’s registry, give your friend a license agreement to use any photos you take of your friend at the wedding.  Sure, you’ll lose a friend, but at least that former friend will have the security of knowing you won’t sue them. And that’s the greatest gift of all. 
  • Disgraced Hollywood Producer Harvey Weinstein made headlines for having smuggled Milk Duds candy behind bars. I am not sure whether that is as much an indictment of LA County jail security as it is an endorsement of the quality of LA County jail toothbrushes. Either way, I am going to go out on a limb and guess that Milk Duds confectioners The Hershey Company will not be using this press for its next marketing campaign. 

As I write this, Ukraine remains under siege and its people (courageous and resolute as they are) subject to indiscriminate atrocities at the hands of Russian armed forces under the deranged authoritarian control of President Vladimir Putin. While in this moment, it is easy to become jaded, I find myself inspired by the "Profiles in Courage" (most significantly from Ukrainian President Volodomyr Zelenskyy), as well as the worldwide rebuke/response to this misbegotten war. As a testament to its social and economic impact globally, the sports and entertainment industry has played a prominent role in hitting back at Russian aggression. Of note are brothers and former world heavyweight boxing champions Wladimir and Vitali Klitschko (the latter being the Mayor of Kyiv) taking up arms to fight for their homeland. Then, there was Russian professional tennis player Andrey Rublev who used his platform on the world stage to send a message of protest, scrawling “No War Please” on a television camera lens after his victory at the Dubai Tennis Championships. Commendably, the Union of European Football Associations (UEFA) moved swiftly to relocate this year’s Champions League final from St. Petersburg, Russia, suspend all Russian competitions and sever sponsorship ties with Russian energy giant, Gazprom. Although international soccer’s main governing body, Federation Internationale de Football Association (FIFA) initially had a toothless response of simply banning Russia’s national team from playing on home soil, without an anthem or flags and calling themselves "Football Union of Russia" (reminiscent of the International Olympic Committee’s (IOC) past wrist slapping of the “Russian Olympic Committee” for doping violations), FIFA eventually suspended Russia from participating in any international competition (notably after the IOC itself finally decided to do the same). And lastly, Disney and other media and entertainment companies have halted planned releases in Russia. Whatever comes of this moment, let’s not lose sight of these and other meaningful ways that the world is uniting against Putin’s evil. Slava Ukraini.

After that weighty intro, I hope you will agree we could use a little (Spot)light humor. Here goes…

• • "Seinfeld" and "Curb Your Enthusiasm" creator Larry David’s documentary launch was scrubbed a day before the premiere – at Larry David’s insistence. Apparently, he didn’t think it was “prettayyy, prettayyy, prettayyy good.”
  • Fresh off a Super Bowl victory, Los Angeles Rams coach Sean McVay reportedly turned down a $100 million opportunity to join the broadcast booth for Amazon Prime Video’s Thursday Night Football telecasts – putting us yet another step closer to having Alexa do play-by-play while re-ordering laundry detergent. 
  • Songwriters look to take on streaming giant Spotify to get their fair share of royalties, saying “if we don’t get paid, songs don’t get made.” Hopefully for their sakes, lyrics are a little better than that…

Welcome back or for the very first time (what took you so long?) to the “Sports & Entertainment Spotlight”! As the torch is extinguished on, by most metrics (television ratings, in particular) a fairly underwhelming Olympic games, we turn our attention (limited as it may have been) from the five Olympic rings to the three rings (of the big top tent variety) that never seem far behind Kanye “Ye” West. Specifically, this past week, Ye announced that his highly anticipated album, “DONDA 2” would be released exclusively on his brand new $200 platform called “Stem Player” – not on streaming platforms. Now, a few things interest me about this development (none of which being: Who did/did not make the album; whether a certain reality television star and/or a certain Saturday Night Live cast member were referenced in the album; why the album release date was not met; why the audio at the livestreamed release party left much to be desired; or that the Stem Player looks like an Aspirin-Mentos lovechild (the pacemaker freshmaker?). First, as has been widely observed, is that this a shrewd marketing strategy that could serve as a model for future music releases – Ye grossed $1.3 million in revenue within just a few hours of his announcement. Of course, $200 is a lot to pay for an album, but the value proposition in the Stem Player is not just that its users gain access to the album, but also that the Stem Player allows the users to manipulate and record the so-called “stems” or component parts of a recording (e.g., drums, vocals, bass, samples) to create entirely new remixes. Given rumors of Ye having turned down a $100 million Apple distribution deal for the album, clearly there is conviction about the technology’s prospects. But putting on my lawyer hat, methinks the Stem Player could create a potential morass of copyright issues, for example, from users’ performance or distribution of remixes of others’ recordings. Any lawsuits related to the Stem Player platform could certainly hurt the bottom line, but I suppose that is mere speculation for now. Either way, I will keep tabs on the Stem Player and Ye so you don’t have to (you’re welcome). For now, I bring you this week’s highlights, for which no purchase is necessary:

• • The United States Women’s National Team settled their equal pay lawsuit against the United States Soccer Federation to the tune of $24 million and a commitment to equalize pay with the Men’s National Team. Your move, [insert your preferred organization with discriminatory pay practices].
  • Former Miami Dolphins head coach Brian Flores, himself in of a lawsuit regarding discrimination and the application of the Rooney Rule, lands an assistant coaching job with the Pittsburgh Steelers, incidentally owned by… (check notes)…Rooney.
  • Eight months into the name, image and likeness (NIL) era in college sports, the Division I Board of Governors is convening a review of the effects of NIL deals amongst other things, student-athletes’ mental health as part of its efforts to formulate a lasting NIL policy. The Spotlight has exclusively obtained an unofficial draft of the report reproduced here: .

Welcome back to another installment of the “Sports & Entertainment Spotlight”! Where better to start this week than with last Sunday’s Super Bowl that lived up to its name on all fronts? Sure, the commercials were witty, innovative and at times downright strange as usual, but the football game and halftime show (and let’s not forget my homemade guacamole) were outstanding. The TV ratings are a testament to that as myself and 112 million of my closest friends (for context, roughly the readership of the Spotlight, give or take 112 million) watched the hometown Los Angeles Rams’ Matthew Stafford, Cooper Kupp and Aaron Donald make big plays when they mattered the most to claim the Lombardi Trophy. Equally enjoyable for me was seeing/hearing – due to in no small part to Jay-Z/Roc Nation’s entertainment partnership with the NFL –hip-hop, rap and R&B take centerstage musical performances from the all-star collection of talent that included Dr. Dre, Snoop Dogg, Eminem, Kendrick Lamar and Mary J. Blige for what was as much an homage to Southern California as it was to the respective genres. To me, the only thing missing was an appearance by the late Tupac Shakur. Fittingly, the performance just so happened to take place on the same weekend on which Snoop Dogg released his new album B.O.D.R. (Back on Death Row) on his newly-acquired record label, Death Row Records – the very same label that launched his, Dr. Dre’s and Tupac’s careers.  Although things may have appeared to come full circle for Snoop, having full-heartedly embraced NFTs, he’s also taking a big leap forward with his stated intention to make Death Row a record label for the metaverse. In short, Sunday was a “Sports & Entertainment Spotlight” unto itself – but lest you worry, I have more to last you through next week:

• • Not to be outdone by Snoop, DJ Steve Aoki proclaims that he’s made more money from music NFTs than he has in his entire recording career. Financially, you could say he’s doing, “A-ok.”
  • 15-year-old Russian Olympic Committee figure skater Kamila Valieva is becoming a household name for all the wrong reasons, somehow finding herself back on Olympic ice despite having tested positive for banned performance-enhancing substances. For her part, Valieva says that the positive test arose from accidental contamination with her grandfather’s medication. Programming note to tune in to watch Valieva’s grandfather compete in this year’s Senior Olympics – think: curling, but instead of sending away curling stones, they grumpily use bowls of soup that are always too cold.
  • Actor Stanley Tucci inks a multiyear endorsement deal with Italian sparkling mineral water company, San Pellegrino, in which bottles will be branded “Stan Pellegrino.” An infinitely better proposition than a diaper rash ointment deal pitched to him for “Tucci Cream.”

Welcome back, and in case you’ve been living under a rock (unless it’s a "30 Rock"), two of the biggest sporting events will command millions upon millions of eyeballs for NBC this weekend with the Winter Olympics (already in full swing in Beijing) and the National Football League’s (NFL) Super Bowl LVI due to kick-off on Sunday between the Cincinnati Bengals and Los Angeles Rams (and Madison Avenue Agencies). However, at least for the time being, both Olympic and NFL news have largely been focused on matters taking place “outside the lines.” At the Olympics, a medal ceremony in figure skating was postponed for legal reasons – namely a member of the purported gold-medal winning Russian Olympic Committee (ROC) team having a suspected positive doping test. Already on thin ice for widespread doping violations, one wonders whether ROC is once again up to its old tricks or whether this is an isolated incident by one triple (k)lutz. Or perhaps, whether the figure skating team will be heralded as mettlesome or admonished as medal-less. In the NFL, former Miami Dolphins coach Brian Flores’ lawsuit alleging discriminatory hiring practices remains a hot button topic. Just this past week, we learned of Commissioner Roger Goodell voicing displeasure with the NFL’s lack of diversity in coaching and front office positions, while two of the NFL’s co-defendant teams, the Miami Dolphins and Houston Texans hired minority coaches Mike McDaniel and Lovie Smith, respectively. Meanwhile, media mogul Byron Allen is rumored to be preparing a bid to buy the Denver Broncos (another co-defendant), and in so doing, make the Broncos the first Black-owned NFL team. While those moves – calculated or not – may undermine Flores’ case, in just two weeks, Flores’ taking a stand has seemingly sparked soul-searching, for which Flores should be commended. From Olympic torches and stadium lights, let’s jump into the "Spotlight."

• • How many comedians does it take to have streaming services pay joke-writing royalties just as they do songwriting royalties? With the Estates of George Carlin and Robin Williams, together with a handful of living court jesters suing Pandora, we may yet find out.
  • Mega singer-songwriter, Sia joins forces with a plant-based pet food company on a mission to tell traditional meat-based pet foods, “see ya.”
  • Although Amazon is far from an incumbent in the sports broadcasting space, in Al Michaels, they may be bringing aboard an industry veteran to handle its Thursday Night Football broadcasts. Waiting in the wings if Michaels doesn’t get the gig? Al-exa.
  • A digital plot of land in the metaverse neighboring Snoop Dogg’s sold for the low price of $450,000. Fitting that with respect to the metaverse, what some view as an investment, others see as money going “up in smoke.”

Welcome back to the Spotlight and oh-me, oh-my, do we have a full slate of developments in the National Football League (NFL) – and that’s to say nothing of what happened on the field, with the Cincinnati Bengals and Los Angeles Rams battling their way into Super Bowl LVI. First, seven-time Super Bowl champion (and two-time Super Bowl runner-up to my New York Football Giants) quarterback Tom Brady was reported to have retired, several days before his official announcement and the vesting of his $15 million signing bonus. While he could well afford to have done so, the all-time great was not about to leave that money on the table. A few days later, the Washington Football Team (formerly known as the Washington Red…actions) debut their new name and branding as the Washington Commanders, and at least so far, appear to have avoided the same plight that the Cleveland Guardians baseball team met when changing their name several months ago. Kudos to the Commanders’ trademark attorneys there. But overshadowing all of that was former Miami Dolphins’ head coach, Brian Flores, a Black man, filing a potential landmark lawsuit for himself and an uncertified class action against the NFL and several named member clubs (unfortunately including the aforementioned New York Football Giants) alleging, amongst other things, pervasive racial discrimination in the NFL’s hiring process – in spite of the NFL’s “Rooney Rule,” requiring teams to conduct interviews with minority coaching candidates. Time will tell how this case will shake out, what other details will be revealed (already we’ve learned about alleged payments to coaches for losing football games in an effort to improve NFL draft position,) and how much Flores will be able to bring about lasting change through this lawsuit. Rest assured, the “Spotlight” has you covered – but until then, check out what else is on tap this week:

• • Former NBA Player J.R. Smith, who made headlines last year after retiring from basketball to enroll in, and play golf competitively at North Carolina A&T, signs with a sports agency to position himself for name, image and likeness opportunities, becoming the first former professional athlete to enter into such a deal. Whoever said it’s too late to relive your glory days?
  • Justin Bieber became the latest entertainer to buy a Bored Ape NFT, laying out an astonishing $1.29 million (500 Ethereum tokens). Far be it from me to question the behind the scenes deal making, but shouldn’t the Apes be paying for the entertainers on account of being bored?
  • The Joe Rogan - Neil Young et al. Spotify kerfuffle continues for a second week with more artists demanding that their music be pulled from the streaming platform over COVID-19 vaccine misinformation. We will see whether Spotify remains immune from loss of content.