There’s No Business Like Show Business Law

Managing passionate personalities, facilitating strange requests and learning the language of the film and TV industry are all in a day’s work in practising entertainment law. That’s what makes it so great.

Six months into articling at an insurance defence litigation firm, I almost ran screaming from the idea of practising law altogether. It was just not for me. I knew I needed to combine what I loved (Dear reader, it was not and will never be insurance) with what I was trained to do. The arts, especially dance and music, had always appealed, but it wasn’t until my brother, an aspiring musician, cut his own objectively terrible recording deal that my path into entertainment law became clear. With the idea that I could help artists get a fair shake with my legal skills, I started working on behalf of musicians and then segued into private practice for film and television law — and I have not been tempted to run away once.

Entertainment law is never boring. The film and TV business is driven by emotionally invested creators and producers who look upon their projects as parents might their children — they are precious and must be protected at all costs. Their decisions are frequently driven by emotion more than any business case offered in support of them. So, often, an individual’s legal skills are secondary to their ability to manage these passionate personalities in a way that produces an outcome where everyone feels seen and heard equally.

Beyond the people management that keeps you on your toes, there are the truly strange situations and requests you encounter. I have performed voice work for a scratch animation test at the request of a client whose actor failed to show up at a recording session. There have been several very awkward one-on-ones where I’ve found myself face-toface with directors and actors I’ve admired, instructing them on the dos and don’ts of appropriate workplace behaviour. What is it they say about never meeting your idols? Then there its unique language. You’re dealing primarily with artistic people who will look to you for advice on industry standard rates and practices as much as they will for your understanding of copyright law. You’ll often get contracts back littered with industry terms, not legal ones. “The first bite of the apple,” “a 100, 50/50 payout,” “triple bangers” or “100 over 5 royalties” are all things that, when starting out, I had to ask other entertainment lawyers about. There is no formal glossary of entertainment terminology to help you out with this — it’s all about on the job training. are the talent riders — everything you’ve heard is true. No ask is too outré to be considered. One actor requires a vegan meal delivery service, the other on the same show asks for only a case of tequila and a carton of cigarettes? Fine. Entertainment lawyers make sure it’s all there in black-and-white to follow to the letter.

To be truly successful in this field, you need to learn the industry and

It is a steep learning curve, but it’s an absolute thrill every time I see my name roll by in the credits of a film or TV series that I’ve played a part in. And that sense of accomplishment — being instrumental in bringing a creative enterprise to fruition — is also why I’ve transitioned from private practice to corporate counsel. Along with becoming colleagues with one of my mentors, Sarah Nathanson, working in-house now at Thunderbird Entertainment means being part of a large legal and business affairs team; it engenders connection to the content we make that didn’t frequently exist in private practice. It’s true. There’s no business like show business. And oh, I do love it so!

Lori Massini currently serves as Senior Vice President, Legal and Business Affairs at Vancouver-headquartered Thunderbird Entertainment. She has also created online course Producer Essentials: A Comprehensive Guide to Business Affairs and Production Law for Film and Television, with fellow entertainment lawyer Heather Watt, to help those interested in the field.

Twitter: @tbirdent — Instagram — LinkedIn

Copyright and Tattoos

Where to draw the line?

Whether you appreciate them or not, most people would agree tattooing is an art form. Original artistic works, such as paintings, engravings and drawings, are protected under the Canadian Copyright Act. It is reasonable to assume the courts will, when the time comes, extend the same protection to tattoos — U.S. courts have held that copyright applies to original tattoos.

Assuming Canadian courts follow the U.S. approach, copyright in a tattoo would provide an exclusive right to reproduce that tattoo or any substantial part thereof. As a result, infringement would arise from an unauthorized reproduction of the tattoo. Examples could include a tattooist creating a tattoo by copying an existing artwork or another tattooist’s tattoo. As a result, tattooists should avoid copying protected images or tattoos.

Taking a photograph of a tattoo could also be an infringing reproduction. Similarly, infringement may occur from displaying the tattoo in a movie or on avatars in a video game or the metaverse. For example, a jury in the Southern District of Illinois ordered a video game maker to pay a tattoo artist for displaying the wrestler Randy Orton’s tattoos in a video game. The U.S. decisions on tattoos appear to be fact dependent: the same video game defendant successfully dismissed a different claim alleging infringement of tattoos of well-known basketball players whose likenesses were featured in the NBA 2K game. The claim was dismissed in part because of the minimal nature of the copying and a finding that the tattooist granted the players implied licenses to use the tattoos. Readers may also remember the lawsuit brought in the U.S. against the producers of The Hangover — Part II over the unauthorized reproduction of Mike Tyson’s face tattoo. The claim was, however, settled out of court.

So, who owns copyright in a tattoo? Generally, a tattooist would be considered the owner of the rights unless they were an employee when the work was created. In that case, the employer may be the owner. Anyone wishing to recreate or display a tattoo should obtain a license from the owner or acquire it by assignment. The tattooist also possesses moral rights in the tattoo, which include the right to the integrity of their work and the right to be associated with their work. A breach of moral rights is a separate claim to copyright infringement. In Canada, moral rights cannot be assigned, but they can be waived. So next time you get a tattoo, consider obtaining both a waiver of moral rights and a licence or assignment of copyrights from the tattooist. Anyone wishing to use their image in video games or in the metaverse should do this to avoid any legal claims in the future. What is next for tattoos in Canada? We will likely have a decision from a Canadian court soon on copyright and tattoos, particularly as the use of avatars and the metaverse expands. Another important issue to consider is the appropriation of cultural elements in tattoos. Appropriation occurs when an element is taken from its cultural context and used in another. For example, what if a tattoo, which is protected by copyright, also includes Indigenous designs? The World Intellectual Property Organization is presently negotiating an international legal instrument intended to provide protection, through intellectual property law, for traditional cultural expressions such as designs, signs and symbols. This proposed legal instrument would arguably include Indigenous tattoos. However, the negotiation process has been ongoing for many years and is not expected to be resolved soon. In the meantime, the most likely method of resolving such unauthorized use would be through copyrights.