Entertainment Industry Predictions: Streamers, Litigation, Emerging Tech In 2023 – Media & Entertainment Law

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The entertainment industry has transformed itself in recent
years through the adoption of new technologies and is pioneering a
variety of exciting new creative avenues. Below we predict what
2023 will bring, ranging from the continued explosion of the
creator economy to advancement of novel technologies such as NFTs
and the metaverse. With over 45 years of experience helping the
biggest names in entertainment navigate and capitalize on this
rapidly changing and converging market, Manatt has its finger on
the pulse of innovation.

Manatt Entertainment Leader Jordan Bromley, Entertainment Litigation
Leader Robert Jacobs, and Partners Chris Chatham and Monika Tashman share their predictions on
where things might be headed this year:

Jordan Bromley on Music: “I see 2023 as a
year of continued and strengthened advocacy for music artists, and
songwriters in particular. Songwriters and their representatives
are getting increasingly frustrated by the gross inequity of
payment in the streaming economy. They see major global companies
posting billions of dollars of gain while they, as individuals,
cannot earn a living wage. Look for more on this, and on artist
advocacy in general, in the coming year.”

Chris Chatham on Content: “There is a lot
of press about how the contraction in our industry is coming in
2023. That very well may happen, but I’m not seeing that
currently. Streamers/studios are still spending but are just being
more selective. Granted, it is taking longer to get a green light,
but streamers and studios are still going to pay for quality
content, premium IP and big-name talent. The traditional lines of
revenue are not going away anytime soon. The emerging verticals for
influencers, gamers, talent ventures and the creator economy will
continue to flourish. Every facet in the industry will be under
pressure to perform in 2023, but those who have liquidity and are
calculated about risk will be fine.”

Robert Jacobs on Litigation:

  • Copyrights—What’s the Mouse to Do?:
    “Copyright protection for some of Disney’s earliest
    renditions of Mickey Mouse and some of its other iconic characters
    is coming to an end (but risks remain for those who might seek to
    exploit such public domain works). However, even though such early
    characters are entering the public domain does not necessarily mean
    that anyone is free to use them, given other potential avenues of
    protection available, including those afforded by the trademark

  • AI Growth, Real Legal Risks: “Generative
    AI platforms will increasingly come under legal fire by content
    owners, governmental regulators and politicians. These fights
    promise to raise complex questions about whether the by-products of
    these programs infringe the copyright interests in pre-existing
    content or constitute protected transformative works, and whether
    the by-products themselves, which may lack human authorship, are
    entitled to copyright protection.”

  • Art as NFTs: “Does art become subject to
    securities and consumer protection laws simply because it comes in
    the form of an NFT collection? These are among the fundamental
    issues that the newest Bored Apes lawsuit may decide in 2023. The
    stakes for the NFT art market—and NFTs as a whole—could
    not be higher.”

  • The Metaverse: “All things metaverse will
    continue to permeate the conversation about art and commerce and
    test legal boundaries for the foreseeable future. As these
    platforms continue to mature and attract more and more users,
    expect to see an increasing number of legal skirmishes that will
    clarify whether and how traditional IP and NIL rights apply in this
    brave new world.”

  • Fair Play: “The odds strongly favor the
    Supreme Court giving the fair use doctrine a refresh in its
    upcoming decision addressing Andy Warhol’s recasting of Lynn
    Goldsmith’s well-known photographic portraits of music icon
    Prince. Whatever the outcome, the decision is likely to
    address—and potentially curtail—the ever-increasing
    emphasis certain lower courts have placed on how transformative a
    secondary work is relative to the original.”

Monika Tashman on Artists: “During the
pandemic, artists reimagined and reconnected with their fan base,
looked hard at the profitability of their business deals and the
effectiveness of their relationships, and utilized the time to
create an immense amount of content. Last year, they re-emerged,
tentatively, with a newfound awareness of their business, their
fans, their efforts and the need for diversification. 2023 will be
the year they capitalize on both their creative investments and
their business insights. I expect to see artists expanding their
brands and seizing opportunities for growth and diversification,
with more artists proudly reigning over their own empire.”

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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