An Exposition Of Entertainment And Media Law In Nigeria: The Role Of Legal Practitioners In The Entertainment Industry

Introduction:

Over the years, the dynamism of the law has come into play in the emergence of various aspects of the law, which includes but not limited to entertainment law. Entertainment law is indispensable because of the rapid growth and significant progress the media industry has made over the years. Without entertainment and the media, it is hard to enjoy life. This is because many devices and machines that provide entertainment and help the media have been invented. Today we get entertainment from the theatre, cinema, sports, and games. Entertainment is a form of activity that holds the attention and interest of an audience or gives pleasure and delight. It can be an idea or a task, but is more likely to be one of the activities or events that have developed over the years for keeping an audience’s attention. The entertainment industry is a tertiary sector of the Nigerian economy containing large numbers of sub- industries devoted to entertainment such as musical theatre, film, comedy, sports and many others. Nollywood, for instance is reported to be the third largest and fastest growing movie industry in the world, after Hollywood and Bollywood. It is also the second-largest employer in the country, proving its huge socio-economic impact. Through Nollywood movies, Nigerians have been able to influence viewers worldwide.

Entertainment law is indispensable because it solves the legal issues that ex- perts who work in the industry are facing. This is because of the laws that cov- er all kinds of television, media, and movies on the internet, publishing, adver- tising and news. Therefore, any person who joins the entertainment and media industry should be familiar with the law that regulates them. Entertainment and the media laws have been fundamental in the growth of the industry. The role of entertainment law, in the regulation and standardization of media industry in Nigeria cannot be exaggerated, the industry has not only contributed to the country’s gross domestic product, it has also played a vital role in re-branding the country’s image overseas.

Lagos state is the Africa’s true megacity; its energy, its vibrant lifestyle, and its high concentration of unique artistic talent are becoming increasingly influential abroad. From Johannesburg to London, people are increasingly hungry for the Nigerian Musical sound, meaning the entertainment sector’s potential to change the country’s image and play a key role in the economy can no longer be neglected. Nigeria’s music industry has become an exceptional global phe- nomenon: in London, capital of the second-largest music market in the world, the rise of what many call UK afrobeats or Afro Bashment, a mix of hip hop and African sounds, has revolutionized the music industry across the country. Major British artists of Nigerian or West African roots have helped further ex- pose the Nigerian sound to the world by initiating important collaborations with Nigerian musicians like Wizkid, Davido, Mr Eazi, Burna Boy and Maleek Berry. Afrobeat is putting Nigeria on the global map in a positive light. When you think about Afrobeat, the first country you think of is Nigeria. The coming to promi- nence of afrobeat worldwide is unbelievable. Now more than ever, many Nige- rian songs and artists are being played all over the world. Nigeria’s entertain- ment and media sector is one of the fastest-growing sector in the world be- tween 2017 and 2020. This is in spite of the country’s many challenges, from piracy to a lack of industry structure. One can only imagine the potential socio- economic impact of entertainment if more investment is spurred and the right policies are implemented.

Economic Development and the Demand for Leisure have been the determining factor in the development of entertainment and media as an industry. Entertainment has grown as an industry in step because of the increased income and time available for leisure and entertainment. The growth of the entertainment industry has been directly related to the development of a modern economy and rising economic productivity. An important issue in the development of entertainment as an industry is the rising productivity of workers, and in particular, the ways in which technical progress has increased worker productivity. Progress in technology, in addition to creating the demand for entertainment products and services, has also led to the creation of much of the dominant forms of contemporary entertainment

Entertainment law involves legal concepts across multiple subject areas, including intellectual property, copyright, contracts, securities law, labour and employment law, corporate law, tax law, immigration, insurance law and other pieces of legislation regulating media of all types such as television, film, music, publishing, advertising, and internet.

This article aims to discuss the synergy between the law and entertainment in Nigeria, the role of legal practitioners in the entertainment industry, challenges in the Nigerian entertainment industry, and the way forward.

What is Entertainment Law?

Entertainment law, also referred to as media law is legal services provided to the entertainment industry. It is the collection of the many areas of law that impact the entertainment industry. Entertainment law is the sum total of several different types of law that are relevant to the entertainment industry including transactional law and litigation. The practice of entertainment law often involves questions and application of labour and employment law, contract law, torts, bankruptcy law, immigration, securities law, security interests, right of privacy, international law, insurance law, finance, litigation and intellectual property law principles to the interactions between players in the entertainment industry.

Entertainment law covers legislation regulating media of all types - television, film, music, publishing, advertising, internet, radio, visual arts, cinemas, theatre and news. Entertainment law influences not only the talent that performs in the entertainment industry but also the production aspects of creating entertainment content.

Laws Governing Entertainment Industry in Nigeria

Entertainment law in Nigeria is not developed but other legislations give force to the entertainment industry. These legislations are generally categorized as intellectual property law that most often, the term ‘Entertainment Law’ is used interchangeably with ‘Intellectual property’. However, intellectual property is just a tiny segment of entertainment law. Despite, the wide scope and the socio-economic benefits associated with the entertainment industry, Nigeria does not have a comprehensive legal framework to cater for this area. Since there is a dearth of legal and regulatory frameworks, resort are made to intellectual property laws. These laws are

1. Copy Rights Act Cap C28 LFN 2004 – The Copy Rights Act provides for the protection, transfer, infringement of, remedy and penalty thereof for copy right in literary works, cinematography films, sound recordings, broadcast and other ancillary matters

2. Patent and Design Act Cap P2 LFN 2004 – The Patent and Design Act makes comprehensive provisions for the registration and regulation of patents and designs. A patent in Nigeria is valid for twenty (20) years from the date the patent application was filed. Where the prescribed annual fee about the patent is not paid within the stipulated time and the fee remains unpaid after the six months grace period given by the commission, the patent shall lapse.

3. Trade Marks Act Cap T13 LFN 2004 – The Trade Marks Act provides for the regulation and protection of brand identity of registered trademarks. A trademark in Nigeria is initially valid for a period of seven (7) years and indefinitely renewable for another fourteen (14) years.

4. Companies and Allied Matters Act Cap C20 LFN 2004 – The Companies and Allied Matters Act established the Corporate Affairs Commission, which is the regulatory body saddled with the responsibility of company incorporation, incorporated trustees and registration of business names and other activities stipulated by the Act. This law mostly governs the business activities of the entertainment industry. Artist in the entertainment are often signed under a record label, production, promotion or management entities and these entities are usually companies incorporated and clothed with legal personality and are bound by the provisions of the Companies and Allied Matters Act ranging from capacity to form a company, filing of returns and other required compliance. 5. Companies Income Tax Act Cap C21 LFN 2004 – The Company Income Tax Act governs the administration of company income tax, which is applicable to companies. The Act makes provision for the current tax rate payable by a company in Nigeria. This tax is payable on profit accruing in, derived from or brought into or received in Nigeria. Companies in entertainment industry such as record labels, filmmakers etc are incorporated companies and therefore eligible to pay companies income tax and non-payment of same attracts a penalty.

6. Personal Income Tax Act Cap P8 LFN 2004 – The Personal Income Tax Act governs the administration of personal income tax. It imposes income tax on every player in the entertainment industry. Every player in the entertainment industry whether an artist, an author, an inventor of a work is eligible to pay his or her personal income tax and failure to do attracts a penalty.

Categories of Entertainment and Issues affecting them

Entertainment Industry is any business that generates value by providing people with something interesting to do or watch. The term is associated with vibrant and thrilling experiences that are packaged for mass consumption. Entertainment law covers different areas of the entertainment industry, which have their own specific policies, rules and regulations, agreements and others.

Entertainment law covers an area of which encompasses all of the legal problems and issues most commonly faced by entertainers. Some of these problems and issues as they relate to specific industries are;

1. Film – this includes contracts with artists, labour negotiations with various union crews and employees, financial backing arrangements, distribution agreements, equipment and space rental, production liability issues, merchandising and product placement and copyright and trademark issues.

2. Theatre – this includes contracts with artists and crew, rental and co- production agreements, producer agreements, production liability issues, ticket sale agreements, copyright and trademark issues.

3. Music – this includes contracts with record labels, managers, agents, concert promoters and concert producers; tour crew agreements and equipment rentals; recording studio rentals, music licensing and royalty agreements and copyright issues.

4. Digital – this includes space and equipment costs, employee contracts, talent agreements, music and image use agreements, licensing agreements and copyright issues.

5. Television and Radio – this includes contract with artist and crew, production studio and network agreements, distribution agreements, broadcasting licensing and regulatory issues.

6. Publishing – this includes production contracts, author agreements, advertising and marketing agreements and copyright and trademark issues.

7. Multimedia – this includes software licensing issues, video game development and production, information technology law and general intellectual property issues.

8. Internet – this includes censorship, copyright, freedom of information, information technology, privacy and telecommunications issues.

9. Visual Arts and Design – this includes fine arts, issues of consignment of artworks to art dealers, moral rights of sculptors regarding works in public places; and industrial design, issues related to the protection of graphic design elements in products.

Types of law that are part of entertainment law There are several laws that are all a part of entertainment law. An entertain- ment lawyer practices any of these types of law:

1. Contract law in entertainment law Professionals in the entertainment industry like performing artists and music producers must follow the legal procedures that govern their profession in the form of contract. The laws and legal traditions pertaining to the entertainment industry are unique and cover the broader aspects of the protection of rights for intellectual property. The economy of the entertainment industry is very un- stable and filled with uncertainty. Entertainment companies are continually forming, reforming, merging and often dissolving and that adds to the uncer- tainty. The factor of rapidly changing consumer tastes can either drive some artistic creations and artists to the zenith of success or plunge them into the deepest obscurity. To take care of the instability and protect the commercial interest of all parties, the entertainment industry heavily relies on contracts

A large part of entertainment law is contract law. Some contracts in the enter- tainment industry last years while others are for a single event. Contracts in the entertainment industry might involve very large amounts of money. Drafting and negotiating contracts is a key part of entertainment law. Lawyers must work to carefully to negotiate agreements that are favourable to their clients. They must be mindful of issues like enforceability of contract terms and damages in the event of a breach. It is necessary for parties to know the legislation and customs regulating each entertainment activity in order to pre- vent them from creating void or unenforceable contracts; this is why contract laws have been at the forefront of entertainment and media as an industry. The principles of contract, employment and labour law come in handy to spell out the obligations of each party to the contract and bind them

The entertainment industry relies on complex contracts drafted to protect the entertainment companies against economic risk. The entertainment contracts often contain clauses that artists may consider unnecessarily complex or one- sided. Record companies use complex contractual formulas to determine roy- alty payment to their artists. Various clauses in the recording agreements are used to reduce the royalty percentages, reduce the number of units on which royalties are paid, and delay payment. Many entertainment contracts are struc- tured with advances, which are payments made to an artist before any actual income is received by the company that manufactures or delivers the artist’s products or services. In the entertainment industry, personal service agree- ments are often governed by statutes and are often the subject of litigation be- cause they restrict the right of artists to perform or create for any entity except for the company with whom they contracted. Producers use personal service contract to bind artists for a certain time, during which the producers attempt to recover their investment in the artist, make a profit, and cover losses from less successful artists.

In some entertainment industries, personal service agreements are structured using options contract that provide a producer, the right to extend an agree- ment for several periods. For example, a record company may contract with a musician to provide one album during the first year of the agreement, with an option to extend the contract. After one year, if the record company feels that it would be economically wise to release a second album by the musician, the record company may exercise its option and require the musician to provide the second album. Under option contracts such as this, producers can keep artists on their roster for many years, or as long as the artists remain profitable. Option contract when poorly drafted can make artists to suffer. It is advisable for an artist to engage the services of a lawyer before he proceeds to sign an option contract. Musicians often sign an Option Contract without ensuring to incorporate the exit clause that allows him or her to exit the agreement if the music company does not release their work despite keeping them contracted to work for that company only.

Another type of contract prevalent in the entertainment industry is contract for rights. This contract is applicable for using a certain creative property like pho- to or song by way of transfer of license or copyright ownership. Often the con- tract for rights comes along with the personal service agreement. The contract confers the right to the company to use the work of the artist as a commodity for hire and automatically enjoys the ownership of copyright.

2. Intellectual Property In Entertainment Law Intellectual Property law deals with the rules for securing and enforcing legal rights to inventions, designs and artistic works. Just as the law protects owner- ship of personal property and real estate, so does it protect the exclusive con- trol of intangible assets. The purpose of these laws is to encourage people to develop creative works without fear of misappropriation by others. Intellectual Property law has many moving parts that include trademarks, copyright in- fringement and the right of publicity. The right of publicity is the right of every artist to control the commercial use of his or her identity. When the right is in- fringed, the artist’s publicity rights has been violated. The right of privacy is the right to not have artist’s name or likeness appropriated by another without his permission.

Copyright Act is the most central to the entertainment industry. It is aim to pro- tect literary works, dramatic works, art and music. It seeks to address and pro- tect the different aspects of intellectual property including origin, term and recognition of copyright, fair and private use of copyrights, protection in the event of reproduction of sound, images and/or circulation of printed material among other issues.

The Nigerian Copyright Commission (NCC) is empowered to regulate the mu- sic, publishing, artistic and literary societies in Nigeria and the Nigerian Broad- casting Service (NBC) regulates the award of broadcasting rights, licenses and assignments.

3. Litigation in entertainment law The legal challenges involving artists, songwriters, screenwriters, film studios, TV networks, producers and publishers are as plentiful and diverse as both the content that they create and the interests and agendas at the centre of their disputes. The Entertainment Litigation practice touches on all areas of enter- tainment including motion pictures, television, music, digital media, sports, broadcasting, theatre and publishing. From intellectual property and contract disputes to complex commercial matters, an artist can be represented in enter- tainment disputes including litigating claims in all areas of intellectual property law, litigating and resolving complex copyright infringement matters, protecting trademarks, copyrights and artist brands from infringement, litigating artist def- amation claims, defending right of privacy and publicity claims, and litigating and resolving contract claims of all types.

A contract may result in disagreements in entertainment law. When there are disputes, people and organizations in the entertainment industry turn to litiga- tion. They might use litigation to resolve contract disputes, torts, employment disputes and other types of wrongs or disagreements. Lawyers who practice litigation entertainment law must be skilled in civil procedure, trial advocacy, and alternative dispute resolution in order to help their clients achieve favoura- ble outcomes when entertainment leads to dispute.

4. Labour and Employment law in entertainment law Entertainment lawyers must be aware of labour and employment laws that ap- ply to their industry. Whether it is a written law from a federal or state agency or it is a negotiated union contract, entertainment lawyers who employ talent and production staff must be sure to follow labour and employment laws. La- bour and employment laws that are applicable in the industry may relate to fair hiring practices, maximum allowed hours of work, workers compensation or safety regulations.

Tips For The Entertainment Lawyers The practice of entertainment law could be divided into two basic categories: transaction-based and litigation-based. Transaction-based focuses on drafting and negotiating entertainment contracts, while litigation-based means resolv- ing disputes by filing a lawsuit or through mediation or arbitration. Examples of these include, helping an actor negotiate a contract with a studio, filing suit over a pirated film, protecting a recording star from illegal use of a copyrighted song, preventing invasion of a client’s privacy etc. Anyone who chooses to become an entertainment lawyer typically needs to be knowledgeable in many legal fields due to the wide variety of possible prob- lems and opportunities that the entertainment world presents. For example, lawyers representing an actor or musician usually need to know the ins and outs of contracts. The lawyer also needs to have a critical understanding of in- tellectual property law to protect their clients. Lawyers who represent movie producers usually need to have a grasp of the basics of distribution rights. Tel- evision networks can call on lawyers to help protect them from expensive law- suits. Anything creatively connected to any media could possibly come to the attention of an entertainment lawyer on any given day. Despite the lack of a universally accepted definition of what entertainment law- yers do, a legal practice in this industry is no different from other areas of law. No particular body of case law per se constitutes entertainment law because an entertainment lawyer regularly counsels clients on issues involving a wide range of legal practice areas, including intellectual property, contracts, busi- ness, employment/labour, securities, international deals, taxation, immigration, and litigation. A lawyer’s depth of knowledge of industry business practices al- ways determines his or her degree of effectiveness. In looking for the right en- tertainment lawyer, one should consider whether the lawyer or firm has exper- tise, experience and has no conflict of interest. Certain countries have in addition to case law, specific statutes pertaining to the entertainment industry. These laws may dictate whether a formal contract exists between parties, under what terms and conditions that contract may be enforced and for how long such contract may endure. A thorough understand- ing of the statutes of the jurisdiction in question is essential in order to deter- mine the validity or invalidity of a contract. Therefore, the lawyer should active- ly identify and learn the entertainment-related statutes and regulations affect- ing his client’s deals and contracts. Many different trade guilds and unions op- erate throughout the entertainment industry. Their agreements cover basic fee arrangements and working conditions for essential creative and technical per- sonnel. They control when the client is a “signatory” to a union/guild agreement of this type and/or when the production involves union members. Even if the country has right-to-work laws, these union rules still affect entertainment cli- ents.

Lawyers who are new at representing entertainment clients may find them- selves drawn in by their clients to perform other services. These other services may be unethical activities, which include serving as an agent, a manager, or an investment advisor for clients, and they may prove hazardous for lawyers. When dealing with entertainment clients, the lawyer must make it clear what can and cannot be done for the client. This is best accomplished through an engagement that states the scope of the lawyer’s activities for the client. The business of entertainment practice is built on relationships; the entertain- ment lawyer must therefore be vigilant and should especially be thorough in considering possible conflicts of interest. A lawyer is expected to exercise in- dependent professional judgment on behalf of a client, the manager or agent, whom the lawyer may be called on to negotiate with or even litigate against on behalf of the performer, writer or artist, should not engage he/she. Such dual representation can provide the appearance of a conflict of interest. Entertainment business is a very serious business that has its rules, policies, orders and rituals. Therefore, being an Entertainment Lawyer may seem like a glamorous career that creates wealth for expert lawyers in the Field. An enter- tainment Lawyer must know specific statutes regulating the entertainment in- dustry, and must understand how business is done in the industry. An Enter- tainment Lawyer should always participate in many sponsor seminars pertain- ing to the entertainment industry that will help him to build competence, and provides great networking opportunities. Apart from competence, an enter- tainment lawyer should know that entertainment industry strives on relation- ship. Thus, an entertainment lawyer should take his time to meet people who work in the industry and learn about their business.

Role of Legal Practitioners in The Entertainment Industry Unknown to many Nigerian lawyers, with Nigerian music and Nollywood thriving, entertainment law has today become a cash cow for lawyers who know their salt in this area. Specialists in Entertainment law make equal fortune with their counterparts who are in the Oil and Gas sector. Failure of Nigerian lawyers to develop competencies in entertainment law would give room for the incursion of foreigners who will hijack this emerging opportunity. The activities that form part of an entertainment lawyer’s job include;

1. To protect creative rights of the artiste at the infancy stage 2. To draft contract to accurately reflect the expectations of the parties and comply with the nuances of the law. 3. To review contracts from managers, publicists, record labels, film studios etc, to make sure they are legal. 4. To negotiate on behalf of the artiste 5. To offer legal advise to the artiste to avoid legal problems. 6. A lawyer can help a new entertainer to understand how business deals are done, how to identify pitfalls in business deals. 7. To acts as general counsel for established artists. 8. To acts as counsel during payment of tax or buying of properties by the ar- tiste. 9. To help the artiste to secure the rights to use music that other artists have written in compliance with Copyright Act. 10. To help to resolve contract disputes through Mediation, Conciliation or Arbi- tration. 11. To litigate an entertainment law case in Court. 12. To help to advice and facilitate prosecution on Copyright infringement.

13. Attend meetings on behalf of the client where necessary

14. Ensure the client is in compliance with the regulation agencies in the field they operate 15. Drafting and negotiating development and production contracts, such as writer agreements, talent agreements, and recording agreements. 16. Facilitating and negotiating distribution deals for an entertainment project. 17. Working on financing agreements for sponsorship, bank loans, co- production investments, grants, and other types of investments.

Challenges Facing Nigerian Entertainment Industry

The entertainment industry is one of, if not the biggest money-spinning indus- try in the world today, catering to an audience of over a billion people. Faced by the challenge of a global pandemic in 2020, and massive progress in the technology sector, the media and entertainment industry has to undergo inno- vations in how content is delivered to public. The entertainment industry has undoubtedly contributed to the development of the country’s economy in re- cent time, however, it is also necessary to state the challenges that abound in the sector.

1. The most prevalent issue in the entertainment industry in Nigeria is piracy, which has become a topic of concern that requires urgent attention. Piracy is the unauthorized use or reproduction of a person’s work usually associated with intellectual property. Despite the fact that laws and regulatory agencies have been put in place to protect intellectual property, piracy is on the in- crease. This continued practice has occasioned great financial set back to the industry and the nation at large. The creator of a work makes little or no cash compared to the amount invested in the project whereas some person in the popular Alaba international Market makes good money from selling thou- sand(s) of pirated copies. Where the owners of intellectual property fail to reg- ister their works, such failure attracts grave consequences. For exam- ple Section 3 of the Trade Marks Act provides for the effect of non- registration of a trade mark. It presupposes that an unregistered trademark owner cannot institute a proceeding to prevent or recover damages on infringement save for passing off.

2. There also appears to be issues arising from contract signed by parties in the industry. Most often, than not this happens because the actors sign this con- tract at a point where they are hungry for fame and have little or no cash, which makes them vulnerable to the managers who seem to hold their future. The agreements are usually drafted to exploit these upcoming players in the entertainment industry. 3. There is this notion that hiring a lawyer at the early stage of their pursuit is too expensive and unnecessary, they however, fail to realize that the consequence of entering into contracts they do not completely understand out weighs the cost of hiring a lawyer to scrutinize and even seek to expunge parts of the agreement that is not favourable on their part because once the contract is signed, parties are bound which could transcend to indirect slavery for the number of years the contract subsist.

4. Lack of access to financing of the entertainment industry has been a major draw- back for the industry. This necessitated the National Film Corporation (NFC), the Nigerian Copy Right Commission (NCC) and Nigerian Broadcast Commission (NBC) to endorse the establishment of the National Film Devel- opment to tackle this issue of lack of financing for film production activities in Nigeria.

5. The Inadequacies and lack of enforcement of these laws governing intellectual property and entertainment law in Nigeria also affects the activities of the in- dustry. This is one of the reasons piracy is still at its peak in the country.

Ways to tackle the challenges facing entertainment industry

1. The need to adhere and enforce the laws governing entertainment industry should not be side-lined considering the lucrative and vibrant possibilities it poses to this generation and generations to come.

2. There should be awareness campaigns to be held frequently, to promote and create awareness on the importance of intellectual property.

3. Players in the entertainment industry need to come to terms with the fact that the role of a legal practitioner in the entertainment industry is pivotal at every stage(from the initiation of the contract to the conclusion)

4. More effective enforcement procedures should be put in place to curb the menace of piracy and counterfeiting in the industry.

5. Entertainment focused legislation should be enacted to govern the entertain- ment industry in Nigeria. Legal Effect of Covid-19 Pandemic on Entertainment and Media Industry In Nigeria.

The outbreak of coronavirus significantly affected industries across Nigeria, with the media and entertainment industry being no exception. With the implementa- tion of lockdowns across all states as a way of containing the spread of the vi- rus, public gatherings were prohibited and theatres, cinemas, music festivals, shows and concerts were closed or cancelled indefinitely. Even after the lock- downs were lifted, the calls for social distancing become a norm and the ripple effects will have serious implications for the people in the entertainment industry who survive on production and distribution of music and movies and the allied live events. Consequences of the pandemic on these industries could range from lowered attendance at film festivals and music concerts, disruptions in film distribution to delayed or cancelled movie releases and curtailed on-location film shoots. Financial ramifications will likely be felt by production houses, music labels, filmmakers, artists, theatre owners among others for months or even years. The major legal issues are listed below:

1. Contracts The Film industry functions on a line of agreements between content owners, production houses, artists, investors, sponsors, promoters, distributors, vendors, production companies, broadcasters, ticketing agencies, theatres, licensors etc. With the disruptive impact of the pandemic resulting in the standing down of workforces, closure of borders, and enforced work from home arrangements, the risk of non-performance, poor performance, delay and non-payment is heightened. Execution of physical agreements is posing to be a challenge. Can- cellation of movie releases premieres and events result in a plethora of practical issues, such as potential refunds, exchanges, and contractual obligations, par- ticularly in relation to interested parties like sponsors, broadcasters, and ticketholders who may have committed significant amounts of money now sub- ject to uncertainty and losses. Some contracts address these issues expressly in their terms, in other cases, contractual principles like frustration will govern the parties’ respective rights.

2. Consumer Issue Cancellation of live events may result in potential claims relating to consumer protection rights. Companies may face the challenge of refunding monies to ticketholders, which would put immense strain on the already slow economy in the industry.

3. Insurance The companies need to assess if their insurance policies would cover them against the losses resulting due to the prolonged suspension of businesses ow- ing to the pandemic. The extent of insurance cover available to a company will depend on the specific terms of each policy. While companies do buy insurance to protect themselves against business interruption, such policies do not neces- sarily, cover a pandemic such as Covid-19. According to insurers, the business interruption coverage triggers only if the insured property suffers physical dam- age due to a covered peril such as fire or earthquake and would not cover loss- es caused due to a pandemic like COVID 19. Providing health insurance cover is a great gesture by a company towards its employees. Companies should strive towards providing health insurance cover to their employees. Group health insurance covers to the employees is a good option as they are not very expensive and can be purchased with ease by large and small-scale compa- nies.

4. Employment/Workplace Issues The entertainment industry workforce is largely comprised of casual workers or contractors who are not entitled to paid leaves and hence stand the risk of los- ing their means of livelihood. Since production and distribution streams are vir- tually at a standstill, companies, sooner than later, will look at cutting costs, which will consequently result in pay cuts and lay-offs for reasons beyond the employer’s control. However, these are difficult decisions that affect people’s very livelihood and can involve careful consideration of factual circumstances to determine the true nature of an employment relationship.

COVID-19, Force Majeure and the Entertainment Industry

The COVID-19 outbreak has wreaked havoc on the entertainment industry. Productions have been halted and distribution channels disrupted, causing a massive shift for both industry insiders and consumers alike. Live events now are being experienced via various streaming platforms as the doors to movie theaters, Broadway houses and concert venues remain shuttered. In the midst of the pandemic, one big question for contracting parties is whether force majeure will excuse or postpone a party’s obligations without liability. A force majeure, or a so-called “Act of God” clause, generally allows a party to suspend and also terminate a contract without liability if an unforeseen event beyond the party’s control makes performance of the party’s obligations impossible or im- practical. Before the entertainment industry was turned upside down by COVID- 19, force majeure clauses were not a primary focus, and were likely buried in the boilerplate language, often ignored and rarely negotiated. Now, as actors, writers, producers, directors, and production companies alike have found their income streams disrupted and their services deferred by letters invoking force majeure clauses, the entertainment industry is paying much closer attention.

Here are five things to bear in mind about a force majeure provision and its implications: 1. Even with a force majeure clause, the grounds to excuse performance may be limited.

Force majeure derives from the common law doctrine of impossibility, which has very narrow application. Under the doctrine of impossibility, to excuse a party’s non-performance, the subject matter of the agreement or the means of performance must become objectively impossible. A typical example is de- struction of property that makes performance of a contract impossible. But whether or not COVID-19 in given instances will meet the stringent criteria of impossibility is far from predictable. A well-drafted force majeure clause could remove that uncertainty, but just like the doctrine of impossibility, courts inter- pret force majeure clauses narrowly, and it is important to draft them with spec- ificity.

2. What does a force majeure clause say? A force majeure clause allows contracting parties to allocate risks relating to unforeseen events beyond their control. Generally, force majeure clauses: (i) identify events that, should they occur, would excuse a party’s non- performance (so-called “force majeure events”); and (ii) specify the scope of recourse available to an affected party (e.g., to suspend production or the obli- gation to furnish services). Force majeure events typically include a list of spe- cific events like “war, fire, flood, and governmental order or regulation.” In en- tertainment contracts, they may also specifically include reference to events that would delay or impede the development, production or exhibition of a giv- en project, such as union or guild strikes and the death, incapacity, unavailabil- ity or default of the director or any principal cast member of the project. Many clauses also include a catch-all specifying that force majeure events include any event “outside the control” of the parties, but the particular wording of such clauses determines whether and how they apply. The list of force majeure events should be as exhaustive and specific as pos- sible because of courts’ narrow interpretations. However, even if a clause does not expressly identify a particular force majeure event (e.g., by referring explic- itly to a “pandemic”), it may still include an event that is close enough to ex- cuse non-performance under the force majeure clause (e.g., by referring to an “epidemic”). In the absence of a detailed clause, or one that does not precisely specify the event, a court might conclude that a party affected by a particular event assumed that risk and cannot suspend or terminate its obligations.

3. What is the scope of recourse permitted by a force majeure clause?

The scope of recourse permitted by a force majeure clause depends largely on how it is drafted. It might allow the breaching party to suspend or terminate all obligations under a given contract, or it may allow only partial recourse. For example, for a contract entered into before the initial COVID-19 outbreak un- der which a producer is obligated to deliver a documentary feature by a certain deadline, the producer may be able to invoke a force majeure provision that includes an epidemic as a force majeure event if, due to COVID-19, the pro- ducer’s crew can no longer travel to film the documentary’s subjects in the in- tended locations. Depending on the text of the clause, the producer may have the right to deliver a different version of the project than was originally intend- ed, postpone delivery for a certain period of time, or terminate the agreement altogether.

4. If obligations are suspended, when will they be reinstated?

If a force majeure clause allows for obligations under the contract to be sus- pended, typically the duration for suspension will be for as long as the applica- ble force majeure event continues, and perhaps even for a reasonable time fol- lowing the event to allow for the resumption of normal activities.

Sometimes, however, parties negotiate for the force majeure suspension peri- od to be limited to a maximum time period (e.g., six months). After that period expires, the contract might entitle either party to terminate the agreement, or it might reinstate certain obligations even if the applicable force majeure event continues. Without clear details in the clause, it may be difficult to know when the duration of a force majeure event has ended and contractual obligations are restored, such as payment and delivery deadlines. This is especially the case for the current pandemic. Unlike a discrete event such as work stoppage caused by a union strike that would have a clear resolution, the end date of the current cri- sis may not be indisputable.

5. For entertainment contracts going forward, issues related to COVID-19 should be addressed directly and separately from other force majeure contingencies.

As parties negotiate new agreements for rendering services or granting rights, both sides need to consider how their expectations might be affected by covid- 19 and address them explicitly within the contract. This is the best way to avoid uncertainty, particularly because courts generally require force majeure events to be unforeseeable, and the pandemic is no longer an unforeseen occur- rence.

One approach might be to agree separate from other force majeure contingen- cies that certain obligations can be suspended due to covid-19 effects but with an outside date for their performance, failing which either party would have the right to terminate the agreement. A licensor may agree to an extension of a li- cense period at least for a period of time, perhaps if some payment is still be- ing made, but will want to know that a suspension will not tie up a property in- definitely.

Other obligations might be required to continue. For example, a production agreement might require strict adherence to a timeline for activities that can be done remotely, like script writing and preproduction planning notwithstanding covid-19 issues, while allowing for postponement of principal photography. A more complicated scenario would allocate the risk of a shutdown once produc- tion has commenced particularly if convid-19 effects are not covered by insur- ance. Parties would be wise to consider such possibilities in the current environment and specify directly and separately the effect that covid-19 will have on their obligations, either within a force majeure clause or in a distinct contractual pro- vision.

Conclusion Practicing entertainment law can be a fast-paced and challenging career that provides a rewarding and steady job. Lawyers can include entertainment law cases as a part of a wider practice or just focus on entertainment law exclu- sively. Entertainment law has something to offer, whether you prefer drafting documents, pouring over regulations, or being in the courtroom. Entertainment Lawyers may need connections in industries such as music and film so that they can secure the best contracts for their clients. Other types of lawyers may focus on marketing to potential clients. Entertainment lawyers need marketing skills, he must work with professionals other than their clients.

Additionally, the entertainment industry experiences more ups and downs than other industries. When work becomes scarce for their clients, entertainment lawyers must find ways to compensate — both for themselves and for their cli- ents. Lawyers must develop excellent business development skills.

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