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ENTERTAINMENT THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION 34TH ANNUAL LAW ISSUE MAY 2018 / $5 EARN MCLE CREDIT “QUOTE” REQUESTS PROHIBITED page 22 SLANTS RULE page 30 Nondisclosure and Sexual Harassment page 12 Net Neutrality Threat page 36 Based on True Events Los Angeles lawyers Saul S. Rostamian, Diana Hughes Leiden, and Lev Tsukerman examine the future of docudramas after De Havilland v. FX page 16 2018 EntertainmentLawIssue FEATURES 16 Based on True Events BY SAUL S. ROSTAMIAN, DIANA HUGHES LEIDEN, AND LEV TSUKERMAN The specter of the California Supreme Court overturning the appellate decision in De Havilland v. FX Neworks creates additional uncertainty in the production of docudramas 22 Quote No More BY NESTOR BARRERO, SAYAKA KARITANI, AND JADE BREWSTER Labor Code Section 432.3, the latest milestone in California's evolving efforts toward equal pay, prohibits employers from requesting salary or compensation history Plus: Earn MCLE credit. MCLE Test No. 278 appears on page 25. 30 SLANTS Rule BY DREW WILSON In Matal v. Tam, the U.S. Supreme Court found the prohibition against disparaging trademarks to be unconstitutional Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 LACBA Matters 12 Practice Tips Bar Association New LACBA position focuses on diversity #MeToo challenges confidentiality and May 2018 and inclusion nondisclosure agreements BY STAN BISSEY BY ANN FROMHOLZ AND JEANETTE LABA Volume 41, No. 3 9 On Direct 36 Closing Argument COVER PHOTOS CREDITS: OLIVIA DE HAVILLAND: Jeffrey B. Valle The FCC's worrisome repeal of net NBC/GETTY IMAGES INTERVIEW BY DEBORAH KELLY neutrality rules CATHERINE ZETA JONES: KURT ISWARIENCO/FX/SHUTTERSTOCK BY JAMES E. MCMILLAN 11 Barristers Tips The elements of effective wage negotiation strategy BY MELISSA HAILEY LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period - icals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $38 annually; single copy price: $5 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 05.18 Visit us on the internet at www.lacba.org/lalawyer E-mail can be sent to [email protected] Follow Los Angeles Lawyer on Twitter at @LALawyerMag EDITORIAL BOARD Chair JOHN C. KEITH Articles Coordinator SANDRA MENDELL Assistant Articles Coordinator TYNA ORREN Secretary RENA KREITENBERG Immediate Past Chair TED M. HANDEL JERROLD ABELES (PAST CHAIR) TOM K. ARA SCOTT BOYER CHAD C. COOMBS (PAST CHAIR) THOMAS J. DALY GORDON K. ENG DONNA FORD (PAST CHAIR) STUART R. FRAENKEL MICHAEL A. GEIBELSON (PAST CHAIR) SHARON GLANCZ GABRIEL G. GREEN STEVEN HECHT (PAST CHAIR) DENNIS F. HERNANDEZ JUSTIN KARCZAG MARY E. KELLY (PAST CHAIR) KATHERINE KINSEY JENNIFER W. LELAND CAROLINE SONG LLOYD PAUL S. MARKS (PAST CHAIR) COMM’R ELIZABETH MUNISOGLU CARMELA PAGAY GREGG A. RAPOPORT JACQUELINE M. REAL-SALAS (PAST CHAIR) LACEY STRACHAN THOMAS H. VIDAL STAFF Editor-in-Chief SUSAN PETTIT Senior Editor JOHN LOWE Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Senior Manager MELISSA ALGAZE Administrative Coordinator MATTY JALLOW BABY Copyright © 2018 by the Los Angeles County Bar Assoc - iation. All rights reserved. Reproduction in whole or in part without permission is pro hibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing. 4 Los Angeles Lawyer May 2018 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org LACBA EXECUTIVE COMMITTEE President MICHAEL E. MEYER President-Elect NotSoBIGLAW.com BRIAN S. KABATECK copyright • trademark Senior Vice President TAMILA C. JENSEN Vice President PHILIP H. LAM Assistant Vice President NOT SO BIGLAW® is a service mark of Paul D. Supnik JESSE A. CRIPPS Assistant Vice President JO-ANN W. GRACE Assistant Vice President ANN PARK Treasurer JOHN F. HARTIGAN Immediate Past President MARGARET P. STEVENS Barristers President JEANNE NISHIMOTO Barristers President-Elect JESSICA GORDON Executive Director STANLEY S. BISSEY Chief Financial & Administrative Officer BRUCE BERRA BOARD OF TRUSTEES KRISTIN ADRIAN HON. SHERI A. BLUEBOND SUSAN J. BOOTH RONALD F. BROT TANYA FORSHEIT JENNIFER W. LELAND MATTHEW W. MCMURTREY F. FAYE NIA BRADLEY S. PAULEY ANGELA REDDOCK DIANA K. RODGERS MARC L. SALLUS MICHAEL R. SOHIGIAN EDWIN C. SUMMERS III KENDRA THOMAS KEVIN L. VICK WILLIAM L. WINSLOW FELIX WOO AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION THE LGBT BAR ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES Los Angeles Lawyer May 2018 5 he fun part of practicing as a lawyer in the entertain- ment industry now is the degree of dynamism in the T legal landscape and the business itself. Practitioners are daily challenged to solve novel problems that may affect the industry for a generation or more. Litigation more and more has “bet the company” consequences, as business models and consumer pref- erences change, and deals must address unique deal points for the same reasons. This year’s entertainment issue is a reflection of the dynamic forces in play. As Saul S. Rostamian, Diana Hughes Leiden, and Lev Tsukerman write in their article about the Olivia de Havilland litigation regarding her depiction in the television series Feud: Bette and Joan, “Hollywood is keeping a watchful eye on a lawsuit that could have a lasting impact on how real-life personalities are depicted in television and movies.” Although FX successfully prevailed on an anti-SLAPP motion striking de Havilland’s claims, a request for review to the California Supreme Court will doubtless follow. With the sheer volume of allegations of improper sexual conduct in the enter- tainment industry and beyond, it comes as no surprise that some deeply entrenched legal norms may be eliminated. Ann Fromholz and Jeanette Laba explain how the long-standing concept of strictly enforced confidentiality provisions in settlement agreements may be coming to an end concerning sexual harassment matters. An artist’s “quote” (payment on prior projects) was often the foundation of negotiating compensation provisions in talent deals. After enactment of last year’s AB 168, codified in Labor Code Section 432.3, however, as Nestor Barrero, Sayaka Karitani, and Jade Brewster explain, studios may be prohibited from requesting them. Whether this spells the demise of a traditional negotiating tool for talent deals and a corresponding effect on strategy is an open question. Drew Wilson looks at the substantial shift in trademark law effected by the Supreme Court’s decision in Matal v. Tam regarding the Slants’ trademark. Music groups and others often desire to brand themselves with “sharper, more shocking marks” that jump out at viewers. Long before Tam, shocking marks that crossed the line with “immoral, scandalous, or disparaging” matter were prohibited from obtaining registration. The Tam Court concluded the prohibition against such marks was con- stitutionally vague and ruled against it but left in place other similar prohibitions. Net neutrality is a significant issue for the entertainment industry. For telecom- munications companies and Internet service providers that control the pipelines through which content flows to consumers, freedom to monetize that traffic, to prefer certain types of content over others, and to create and offer “sponsored content,” is potentially a significant source of revenue. The FCC’s reclassification of broadband Internet services paves the way for that possibility, which would pose big risks to content creators and consumers. James E. McMillan presents a powerful argument in this month’s Closing Argument against preferential treatment of content and why an open Internet is of vital importance. n Tom K. Ara is a shareholder at Greenberg Traurig where his practice focuses on entertainment and media industry transactions, both domestic and international. Sharon J. Glancz is director of syndication licensing and business affairs at NBCUniversal Television Distribution and a member of the executive committee of the California Lawyers Association’s IP section. Thomas H. Vidal is a partner at Pryor Cashman, LLP where he is an entertainment and IP trial lawyer. Ara, Glancz, and Vidal are the coordinating editors of this special
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