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 laws.”
- 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.”