Supreme Court Rules in Favor of Rock and Roll Photographer Against Warhol Foundation

Here’s the first question: Do you subscribe to Tuk’s Copyright Law Report? You should! If your job touches any intellectual property issues in the worlds of music, photography, film, literary properties, you are missing out.

Now that THAT is out of the way, go to the TCLR for a free analysis of the Court’s ruling. Or, you can read the entire ruling yourself below.

Name, Image and Likeness (NIL) Deals Happening for High School Student Athletes

In what appears to be a first for high school football, ESPN reports that Jaden Rashada, one of the top quarterback prospects in the Class of 2023 (ranked #26 in the ESPN 300) has signed a deal by which he will be paid to promote a recruiting smartphone app.  

This is a significant development in the wake of the NCAA’s policy change now allowing student athletes to enter into NIL deals, which was strictly prohibited prior to 2021.  That door is wide open at the collegiate level, and now apparently at the high school level to some degree. 

It is important to note however, that in some states - including Pennsylvania - the governing body that oversees high school sports prohibit these kinds of deals.  For example, the Pennsylvania Interscholastic Athletic Association’s bylaws require student athletes to maintain amateur status in order to be eligible to participate in PIAA governed sporting events (which is essentially every organized high school sport).  

Article II of the PIAA Bylaws provides: 

Section 1. Amateur Status Required.

To be eligible to participate in an Inter-School Practice, Scrimmage, and/or Contest, a student must be an amateur in the sport involved. An amateur student is one who engages in athletic competition solely for the educational, physical, mental, social, and pleasure benefits derived thereof and does not receive monetary or similar or equivalent compensation or remuneration for such participation.

A student athlete loses his or her amateur status - and is then ineligible to participate if: 

C. The student plays on, or enters into a contract to play on, a professional team or as an individual professional athlete in that sport; or enters into a contract to represent a corporation, organization or similar entity in competition or by appearing in public on behalf of such entity.  

Bylaws, at Art. II, §2 (emphasis added). 

Thus, while NIL deals for high school athletes are beginning to appear across the country, parents of high school student athletes in Pennsylvania should be aware of the current PIAA rules.  Those rules may change in the future of course, and this will be an issue to watch develop in PA. 

Of course, NIL deals are permitted by Pennsylvania law for collegiate student athletes.

For more information, please contact Tuk Law Offices.

UK Government Committee Recommends 50% Streaming Payments to Music Creators

Music streaming royalties in the United States are comically small. The tech companies originally purported to democratize music distribution, but in reality they have entrenched themselves in a financial ecosystem that pays the artists even less than the traditional record label model of the 1960s ever did through an oligarchy that wields outsized bargaining power.

Back in 2018, the US Congress passed the Music Modernization Act which looked promising from the standpoint of increasing artist streaming income, but little substantive progress has been made for the music creators since then. The streaming revenue earned by music creators in the US is not appreciably better than it was before 2018.

In the United Kingdom, the Digital, Culture, Media and Sport Committee of the House of Commons has recently issued a report entitled the Economics of Music Streaming. In this Report, the Committee adopts a shockingly pro-creator stance. You can read the entire 122 page report report below.

The huge takeaway from this report is that the Committee recommends that the UK government enact legislation that would impose a 50/50 split on streaming revenues between streaming platform and artist (See Report at p.47). In this respect, the UK government is light years ahead of the United States government position, which is simply mired in bureaucracy.

To put this in proper perspective, currently Spotify pays artists between $0.003 and $0.005 per stream, which means most artists do not earn enough revenue from streaming payments to even earn a living. Contrast that with Spotify’s $2.4 Billion gross earnings in Q3 2021 alone, and it becomes pretty tough to justify the notion that music creators are being treated equitably.

It remains to be seen what legislative action (if any) the UK Government will take on this matter. The Committee’s position should be noted by policy makers in the United States.

The Report contains Parliamentary information and is licensed under the Open Parliament Licence v3.0.

Employment Agreements: When Your Star Employee Becomes Toxic

Sometimes, a company’s star employee (or CEO or Head Coach) can be an inspirational force within an organization. Those key employees can drive a company’s sales performance to new heights and increase profitability. The company may want to reward those star employees with expensive long term contracts. That is all fine and well as long as the company goes into those negotiations with open eyes.

What if your star employee (or CEO or Head Coach) is revealed to have written emails or social media posts that by any rational definition are racist or misogynist? What if that star employee’s personal conduct is so far beyond any rational boundary of decency that the company has no realistic choice but to terminate the employee? Hopefully, the company has received good legal advice at the time the employment agreement was negotiated, and there is a morality clause in the agreement.

Most employment agreements address the circumstances in which the agreement may be terminated by the employer. Those provisions are usually negotiated with specificity if the parties to the agreement are experienced businesspeople. However, it is a surprise how many times an employment agreement comes across my desk where there is no morality clause. This may mean that an employer has to buy out the remaining payments on the contract while the former employee sits at home and collects his or her money. Clearly, less than an ideal outcome.

What is a morality clause? Simply put, a morality clause is language in an employment agreement which allows the employer to terminate the agreement if the employee engages in conduct which the company has defined to be morally objectionable. Often, this provision contains some specific examples of conduct (i.e. indictment of a crime of financial dishonesty, lewd acts, etc.).

In a previous post (which is the #1 most read post on this blog) I wrote about this topic in depth. Click here to read the original post. As an employer, you will be glad you did. For more details, email me.

Friday Night Lights and the First Amendment

In this podcast episode, Attorney Tuk discusses the how sporting events at public schools provide the potential for free speech issues to play out right in your own home town. What rights do public school students have on public school grounds? Listen to this episode to find out.

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