Mira Hashmall Speaks at Media Law Conference Regarding Civil Rights Cases Before U.S. Supreme Court and Their Potential Impact on Entertainment Industry
By Martin Macias, Jr., Courthouse News – January 17, 2020 – Media law experts gathered Thursday at a conference in Los Angeles to discuss shifts and trends in the entertainment world’s wide web of legal wrangling, contract disputes and lawsuits.
Attorneys, scholars and other law experts were convened by the Media Law Resource Center to discuss a number of issues, including best practices in securing consent agreements and clearances from the subjects of biographical films, documentaries and TV shows.
In many cases around the U.S., entertainment productions have been halted by lawsuits or have faced legal challenges after they’ve been broadcast.
Jean-Paul Jassy of the firm Jassy Vick Carolan asked a panel of experts to explain the challenges of telling someone’s story when there are complications with securing clearance rights.
Natalie Rodriguez, counsel at Warner Bros. Pictures, told the crowd of about 150 people that when securing clearances, she pushes for agreements that ensure productions won’t be halted by lawsuits.
“My favorite thing to look for is a waiver of injunctive relief, besides consent to tell a story,” Rodriguez said. “That way you can make your movie and buy peace in the valley.”
Aaron Moss of Greenberg Glusker Fields told Jassy such clearance rights offer productions peace of mind when dramatizing or fictionalizing someone’s story.
“In the absence of clearance, you can still do a dramatization but [clearances] ensure that if you fictionalize you won’t be sued for defamation,” Moss said. “It also gives you access to information that might be private or not otherwise available.”
Jassy offered as an example the case brought by actress Olivia de Havilland who sued the creators of the docudrama series “Feud: Joan and Bette.”
De Havilland sued FX Network and the show creator, claiming the series portrayed her in a false light and never obtained permission to depict her.
A California appeals court ruled in 2018 that the series’ portrayal of the actress is protected by the First Amendment.
“Did the courts reassert what should be the rule?” Jassy asked the panel.
Moss said the ruling showed the boundaries of the law in such disputes.
“It’s a concise package and good go-to for producers to show the extent to which they enjoy First Amendment protections, including liberties to dramatize,” Moss said. “It also reminds us that celebrities that may be subject of biopics don’t have the right to veto or disapprove a filmmaker’s choice of how that individual will be portrayed.”
Mark Roesler of CMG Worldwide said that when a production involves facts that are publicly available, clearances are not required but are an “insurance policy.”
Jassy asked how entertainment attorneys counsel show creators on defamation and infringement cases, mentioning Colombian journalist Virginia Vallejo’s lawsuit against Netflix that alleged the studio infringed on her memoir about her relationship with drug kingpin Pablo Escobar.
A district court judge in Florida granted Netflix summary judgment in the case.
Pat Duncan of HBO said she speaks with writers before a script is written and encourages them to read biographies, public records and other documents regarding the subject of a production.
“Writers should pull from as many sources,” Duncan said. “Facts are facts no matter if one person wrote them or if several people did.”
Duncan said in cases where a studio pays for a production that tells a story that includes harm to a community, studios will pay into a victims of crime fund under Son of Sam crime laws.
“The victims fund will contact you,” Duncan said. “I’ve gotten those letters from crime victims.”
The conference, which took place at Southwestern Law School in LA’s Koreatown neighborhood, convened media attorneys who’ve argued cases before the U.S. Supreme Court.
With the confirmation of Justice Brett Kavanaugh last year, panelists said questions swirl in their minds about the politicization of the court itself and about how the court will rule on cases concerning entertainment law.
Attorney John Sommer told the audience that in his oral arguments to the court, he said his client, LA artist Erik Brunetti, had a right to express his viewpoint as part of his effort to copyright “Fuct,” the name of his clothing brand.
The Supreme Court sided with Brunetti, ruling that the Lanham Act’s prohibition on immoral and scandalous marks was unconstitutional.
Sommer said he told Supreme Court justices that under the First Amendment, individuals’ profanity can’t be limited.
“[Justice Samuel] Alito quizzed me on this, asking, ‘what is profanity,’” Sommer said.
J. Mira Hashmall of Miller Barondess said civil rights groups are eager to read the court’s decision in a case involving a claim that Comcast intentionally disadvantages television networks that are wholly black-owned.
The Supreme Court agreed last June to take up Comcast v National Association of African American-Owned Media, in which Comcast claims the Ninth Circuit wrongfully determined how the but-for causation plays into harm in this matter.
“It’s not predictable based on politics,” Hashmall said regarding the court’s decision, adding that in oral arguments, justices asked about the role that racism plays in tandem with other factors in discrimination cases. “Justices may only want to deal with pleading standard.”
Hashmall is counsel for NAAAOM in the matter.