Business Law Prof Blog

Counseling Creators: Influencers, Artists and Trendsetters Negotiation Competition and Conference

If you happen to be in Miami or think it's worth it to fly there next week, this is for you. I'll be moderating the panel on regulatory considerations for promoters and influencers and we have student teams competing from all over the country. 

February 29 - March 1
University of Miami

Content is king. We live in the golden age where content creators, artists, and influencers wield power and can shift culture. Brands want to collaborate. Creators need to be sophisticated, understand deal points and protect their brand and intellectual property. Miami Law will be the first law school in the country to pull together law students with leading lawyers, influencers, artists, creatives and trendsetters for a negotiation competition and conference.  

Negotiation Competition - Thursday, February 29 

Where

Shalala Student Center, 1330 Miller Drive, Coral Gables, FL 33146

Who Should Participate

This competition is ideal for law and business students. THE. TEAMS ARE FINALIZED ALREADY.

What to Expect

Participants will have the chance to represent influencers, brands, artists, fashion companies and other creators in the first ever Counseling Creators: Influencers, Artists and Trendsetters Negotiation Competition

• Register a team of law students (can include business school students)
  1. Team of up to 4
  2. Individual registrants will be placed on a team
• In advance of the competition, you will be assigned two negotiations where you may be representing your favorite influencer, brand, artist, or fashion company negotiating the compensation, deliverables, and key deal points
• Industry judges will grade your negotiation and provide feedback
• Top teams will advance to the final negotiation to be held live during the conference 

Conference - Friday, March 1 

Where

Lakeside Village Auditorium, 1280 Stanford Dr, Coral Gables, FL 33146

Who Should Attend

This conference appeals to all lawyers, law students, brands, influencers, artists and creators for the first ever law school conference on Counseling Creators: Influencers, Artists and Trendsetters.  

What to Expect

• Panel conversations + Keynotes
• Topics such as: The Business of Content Creation, Fair Use for Content Creators, Clearances for Creators, The Brand Deal, Compliance and Regulatory Considerations for Creators, Promoter Liability
• Opportunity to network and learn from industry leading creators, brands, and lawyers and more

PROGRAM (Subject to change)

9:00am - 9:15am         Opening Remarks

9:15am - 10:15am       The Brand Deal

Moderator: TBA

Speakers:

Jennifer Karlik, Director of Business Development, CAA Brand Management
Michael Calvin Jones, SVP, Creators, Wasserman
Mark Middlebrook, VP, Legal Affairs, Fanatics Collectibles
Michael Isselin, Partner, Entertainment & Media Group, Reed Smith
Jonathan Seiden, Senior Vice President, Associate General Counsel, Endeavor

10:20am - 11:20am    Fair Use and Clearances for Creators

Moderator: Vivek Jayaram, Founder, Jayaram Law and Co-Director, Arts Track, Entertainment, Arts and Sports Law Program at Miami Law

Speakers:
John Belcaster, General Counsel, MSCHF and Miami Law Entertainment, Arts and Sports Law Program Advisory Board Member
Katie Fittinghoff, Creative, MSCHF
Matt Rayfield, Creative, MSCHF

11:30am - 12:30pm    Athletes as Content Creators 

Moderator: Greg Levy, JD ’10, Associate Dean & Director Entertainment, Arts & Sports Law Graduate Program, Miami Law

Speakers:
Kirby Porter, Founder, New Game Labs
Michael Raymond, Founder, Raymond Representation
Bob Philp, Sr. Executive, Sports Partnerships & Talent Management, Roc Nation Sports
Darren Heitner, Founder, Heitner Legal

12:30pm -1:30pm      LUNCH
 

1:30pm – 2:20pm      Creator Fireside Chat

2:25pm - 3:25pm       Regulatory Considerations and Promoter Liability for Creators

Moderator: Marcia Narine Weldon, Director of Transactional Skills Program, Miami Law

Speakers:
Toam Rubinstein, JD ’13, Senior Associate, Entertainment & Media Group, Reed Smith
Mr Eats 305, (@MrEats305), Food, Travel, & Lifestyle Creator & Law School Graduate
Tyler Chou, Founder and CEO, Tyler Chou Law for Creators

3:30pm - 4:30pm       The Fashion Collaboration

Moderator – Carolina Jayaram, CEO, The Elevate Prize and Co-Director, Arts Track, Entertainment, Arts and Sports Law Program at Miami Law

Speakers:
Demeka Fields, Counsel for Global Sports Marketing, New Balance
Danielle Garno, Partner and Co-Chair of Entertainment Practice, Holland & Knight and Miami Law Entertainment, Arts and Sports Law Program Advisory Board Member
Matthew Growney, Founder, Thermal Brands; Sr. Advisor (Fashion/Creative), PUMA & Stella Artois

 
4:40pm - 5:30pm       Competition Final

 

For More Information

Contact [email protected] or 305-284-1689.

 

 

 

 

Victoria's Secret: The Song and the Business

Posting something light tonight . . . .

I have found myself fascinated listening to Jax's recent hit "Victoria's Secret," a clever pop ballad about female body image concerns and intimates retailer Victoria's Secret.  The refrain is catchy and, itself, tells a story--a business story.

I know Victoria's secret
And, girl, you wouldn't believe
She's an old man who lives in Ohio
Making money off of girls like me"
Cashin' in on body issues
Sellin' skin and bones with big boobs
I know Victoria's secret
She was made up by a dude (dude)
Victoria was made up by a dude (dude)
Victoria was made up by a dude

Because I knew some of the history of the Victoria's Secret business, I understood that the allusion to the "old man who lives in Ohio"--the "dude"--is a reference to Leslie Wexner, the founder of L Brands (earlier famous for owning major brands like The Limited, Express, and Abercrombie & Fitch, as well as Victoria's Secret).  Victoria's Secret became an independent publicly traded firm, Victoria's Secret & Co., last year through a tax-free spin-off from L Brands (now known as Bath & Body Works, Inc.).  From the Victoria's Secret & Co. website:

On August 3, 2021, L Brands (NYSE: LB) completed the separation of the Victoria’s Secret business into an independent, public company through a tax-free spin-off to L Brands shareholders. The new company, named Victoria’s Secret & Co., includes Victoria’s Secret Lingerie, PINK and Victoria’s Secret Beauty. Victoria’s Secret & Co. is a NYSE listed company trading under the ticker symbol VSCO.

In conjunction with this announcement, L Brands changed its name to Bath & Body Works, Inc. and now trades under the ticker symbol BBWI.

According to (among other sources) a Newsweek piece from last summer, Wexner did not found Victoria's Secret.  He bought it in 1982 from the founder.  However, he did elevate the brand to cult status and financial success.  So, one might say that he did "make up" Victoria (as she is conceptualized in the song's lyrics). 

Having said that, it also seems fair to note that Ed Razek, long-time L Brands chief marketing officer, is credited (in that same Newsweek article) with overseeing the iconic Victoria's Secret fashion shows that ran from 1995 to 2018.  In the minds of many, these fashion shows created--or at least popularized--the image of the Victoria in Jax's lyrics ("skin and bones with big boobs").

Victoria's Secret & Co. has been working to change its image.  Its website includes value statements consistent with greater inclusion and features some photos of nontraditional intimates models--models that are not reflective of the Victoria described in the "Victoria's Secret" song lyrics.  Moreover, the Victoria's Secret & Co. CEO reportedly reached out to Jax to thank her for highlighting body image issues through her song.

With the craziness of current business stories, grading, and the holiday season, this post is designed to offer some amusement (if not educational value).  I have endeavored to ensure that BLPB readers now know Victoria's Secret--the company--a bit better.  I also hope you enjoy the Jax song and appreciate its encouragement of positive body image.

Managing Grief and Sharing Our Way Forward (Music Edition)

Like so many law schools, we're navigating our way to online and other remote teaching and learning in a rapid and unexpected way.  We started classes yesterday, and it's gone fairly well.  Our faculty has worked hard, and our students have been incredibly resilient in the face this adversity we all, unfortunately, share. It does, though, impact people in many different ways.  

Some people face additional health risks, financial challenges, childcare problems, technology limitations, learning disabilities, and more, and I have been so impressed with the strength and composure I have seen in our community. I suspect it's that way a lot of places, and I hope so, but it has been remarkable to see.  

The Harvard Business Review posted a piece yesterday that framed this whole COVID-19 experience in a way I had not considered. The piece is titled, That Discomfort You’re Feeling Is Grief. I would not have framed it the way, but I think it's an important perspective.  The whole piece is worth a read, but here are some important points worth considering: 

Anticipatory grief is the mind going to the future and imagining the worst. To calm yourself, you want to come into the present. This will be familiar advice to anyone who has meditated or practiced mindfulness but people are always surprised at how prosaic this can be. You can name five things in the room. There’s a computer, a chair, a picture of the dog, an old rug and a coffee mug. It’s that simple. Breathe. Realize that in the present moment, nothing you’ve anticipated has happened. In this moment, you’re okay. . . . .

You can also think about how to let go of what you can’t control. What your neighbor is doing is out of your control. What is in your control is staying six feet away from them and washing your hands. Focus on that.

Finally, it’s a good time to stock up on compassion. Everyone will have different levels of fear and grief and it manifests in different ways. A coworker got very snippy with me the other day and I thought, That’s not like this person; that’s how they’re dealing with this. I’m seeing their fear and anxiety. So be patient. Think about who someone usually is and not who they seem to be in this moment.

This all makes sense to me, and it is a helpful way to think about things when everything feels a little off.  And right now, that seems to be often.  Another thing I have tried to do is find some routine and ways to share with one another.  We have been having family dinners and family movie night most nights. And we have been reconnecting with friends around the country via phone calls, but more often on Zoom. Sharing some time with friends works remarkably well, at least now that we lack other options interaction.  

In the interest of sharing, here are a few recommendations.  As to movies and music, if periodic coarse language, drug references, etc., are not for you, my recommendations may not be for you.  So in closing, I will share some (mostly new) songs you may not have heard (and I think you should).  Be safe, be well, and be good to each other.   

1. I think I'm OKAY, Machine Gun Kelly, et al., -- seems about right. 

2. how will i rest in peace if i'm buried by a highway?, KennyHoopla (for old guys like me, there's a modern edge with an old techno, maybe New Order, feel)

3. Hit the back, King Princess (sultry, smooth, with a 70s dance vibe, not too sappy). 

4. Celoso, Lele Pons (chill Latin dance that's upbeat yet goes well with a cocktail) 

5. Don't You (Forget About Me), beabadoobee (Okay, you've probably heard this one, but not this version.  Like I said, I'm Gen X).  

Johnny Hallyday - French Rock 'n' Roll, Death, and Taxes . . . .

While I was in France last week touring and attending an academic conference, a French music legend died and was mourned.  Johnny Hallyday, the King of French rock 'n' roll (known widely as the "French Elvis"), died earlier this month at the age of 74 after a battle with lung cancer.  I learned of this in a circuitous way--because one of his songs, Quelque Choses de Tennessee (Something of Tennessee), was playing on the radio in a hotel shuttle van and caught my attention (for obvious reasons, although the song refers to Tennessee Williams, not the state, as it turns out).  Also, I happened to be in Paris the day of his funeral, when many roads (including the Avenue des Champs-Élysées) were blocked off for the related activities.

Curiosity about the song and the singer led me to the Internet.  My Internet searching revealed Hallyday as the singer and described an interesting life.  This guy loved the United States--not only adopting rock 'n' roll, but also writing lyrics about this country based on his U.S. travels.  Perhaps most famous is Mon Amérique à Moi (My America and Me), which includes the following lyrics near and dear to my heart (sung in French, of course):

My America is modest and quiet
She says to me, "Good morning!" with a big smile
Serves hot coffee, vanilla apples
Invites me to spend Christmas in Tennessee
And to go horseback riding in West Virginia . . . .

Cool.  Honestly, I am amazed that I hadn't heard of this guy before.  I am sorry that he left this world before I knew of his music.  But I am glad to have found it.

My research also revealed that Johnny Hallyday had business-related law issues--specifically French wealth tax law issues.  Of course, show business--like other businesses--generates income and, therefore, income taxes.  An article on Hallyday's death in Variety, for example, notes that "he struggled for a long time to reimburse 100 million francs in back taxes."  A CATO Institute article (quoting from a book coauthored by the author of the article) offers a bit more information:

Hallyday created a media sensation when he fled to Switzerland in 2006 to avoid the tax. He has said that he will come back to France if Sarkozy “reforms the wealth tax and inheritance law.” Hallyday stated: “I’m sick of paying, that’s all … I believe that after all the work I have done over nearly 50 years, my family should be able to live in some serenity. But 70 percent of everything I earn goes to taxes.”

Interestingly, in addition to his time in Switzerland, Hallyday resided for many of his last years in Los Angeles for tax reasons.

So, here's to Johnny Hallyday, a fan of U.S. culture who brought that culture to the French populace.  May he rest in peace, free of illness, pain, and French wealth taxes.  And may his music be a lasting memory and legacy.  Check it out, if you are unfamiliar with it.  It has some Elvis, some Johnny Cash, and something else in it.

Lessons on Teaching Law and Creating a Legacy from Hamilton: An American Musical

With a Fourth of July post, I was inclined to write something patriotic and connected with our great nation and to law schools generally. As an unabashed and unapologetic fan of the Hamilton: An American Musical, a couple of analogies from this brilliant production seemed appropriate to convey my thoughts on law school and leaving a legacy.  

First, I think most of us who are fortunate enough to serve as law professors recognize the great gift we have to pursue our passion and to be part of educating the next generation of people who understand the rule of law and have the skills to protect the rights of individuals and groups. This is especially needed for those who are marginalized or under represented and thus less likely to be able to enforce their rights without the help of our legal system.  This is an incredible legacy in America, set in motion by some our nation's founders.  

Like John Adams defending British soldiers and Alexander Hamilton defending Loyalists after the war, lawyers (and law professors) do not need to compromise their own views to embrace the ideals they seek to uphold. We can vigorously maintain our personal views, while defending the rights of others to have their views.  As law professors, I think we generally do value and defend the rights of others who have differing views, but I also think we can do a better job ensuring that is the case (and that others know it).

To be effective, law professors must be engaged with their work, with their institution, and their students. This means, to me, engaging in scholarship, in some way, and sharing that work with the world.  As Alexander Hamilton tells Aaron Burr in The Room Where It Happens: 

“When you got skin in the game, you stay in the game. But you don’t get a win unless you play in the game. Oh, you get love for it. You get hate for it. You get nothing if you…Wait for it, wait for it, wait!”

We need to part of the program. We need to engage and share our ideas. This doesn't mean being overtly political, and it doesn't necessarily mean being abrasive. But we must be invested in what we do, and we must be invested in how we do it. The passive teacher and scholar will likely have passive students, and we need to be educating lawyers to get in, get dirty, and keep learning.  We can't just tell them. To some degree we have to be the ones to show them how.

Second, as law professors who are committed to their profession, I think we need to be thinking about who we want to be as professors, including our desires for our legacy, early in our careers.  We need to think about what we want to be like as tenured professors before were are tenured.  And we need to think about where we hope to get as professionals, as teachers, and as scholars.  I think a lot faculty members (law and otherwise) get to a point where they aren't sure what it will mean to move on or how, and that makes it hard to stay engaged or focused because you don't have an idea of the end game. And that is linked, in part, to feeling like their legacy is incomplete.  That is understandable.   

Alexander Hamilton says, in the song, The World Was Wide Enough Legacy: 

"What is a legacy? It's planting seeds in a garden you never get to see."

And it's true. We rarely, if ever, will get to see our legacy, but we can know what we are trying to grow.  We each create our own legacy by the seeds we choose to plant.  And as professors, we plant those seeds in our students.  They go out and hopefully grow and flourish. And as part of a profession, those seeds are spread wider than just our students, as those new lawyers go out and interact with and work to protect others.  We must think carefully about what we are teaching about the profession that we helping to shape, whether or not we ever see it fully grown.  The world evolves and so must we, so that the seeds we plant, our legacy, is one that is worthy of this great, though greatly flawed, nation that got its start 241 years ago.  

As we celebrate the Fourth of July, let us celebrate the past while at the same time we think about the future.  This goes for both our teaching and for our nation overall.  Wishing you a happy and safe Fourth. 

Five "Best" Songs About Business (Law Edition)

It has been a crazy busy couple of weeks, and one thing I rely on the keep sane (or sane-ish) is music. This morning I was listening to the most recent Public Enemy album, Man Plans God Laughs, which includes a song called "Corplantationopoly."  (The album is solid, and while it will never top Nation of Millions or Fear of a Black Planet, Chuck D is still powerful to hear.)  This got me to thinking about songs that reference business as part of their lyrics and/or theme.

With the availability of the internet, of course several such lists have already been compiled. Here is a sampling:

1. 30 Best Songs About Business and Money
2. Songs About Money, Business, Finance and Economics
3. Top 10 Business Songs of All Time | Veritas Prep
4. The Top 25 Entrepreneur Theme Songs | Addicted 2 Success
5. 10 Famous Rap Songs About Money

I didn't go to those, though.  Following is my quick list of my five best business songs.  "Best" in this context is the songs that came to mind that talked about business or money.  No voting. No quality assurance.  Pure memory and impulse.  So here you go, my five "best."  I welcome thoughts and other suggestions (or criticisms, though I prefer thoughts and suggestions) in the comments.   

 

1. The Notorious B.I.G., Mo Money Mo Problems

 

I don't know what, they want from me
It's like the more money we come across
The more problems we see

 

2. Kanye West (ft. Jay Z), Diamonds from Sierra Leone (Remix)

 

I'm not a businessman. I'm a business, man!

 

3. Pet Shop Boys, Opportunities (Let’s Make Lots of Money)

 

I've had enough of scheming and messing around with jerks
My car is parked outside, I'm afraid it doesn't work
I'm looking for a partner, someone who gets things fixed
Ask yourself this question, do you want to be rich?

 

4.  Cyndi Lauper, Money Changes Everything 

 

You think you know what you're doin'
We don't pull the strings
It's all in the past now
Money changes everything

 

5. Tom Petty, Money Becomes King

 

The sound was my salvation
It was only everything
Before money became king.

 

Bowie Leaves Legacy of Music, Creativity in Talent and Finance

On Sunday, the world lost a musical giant in David Bowie, who died of cancer at 69.  He was the first artist who that made me a true music fan. Like buy all the records, read the biographies, hang-posters-on-the-wall type fan.  I grew up with a love for Motown music, especially Smokey Robinson, the Supremes, and the Four Tops, that I still have, but my appreciation for that music came from listening to my parent's records.

When it came time to choose my own artists, other kids were into Led Zeppelin and Pink Floyd, but Bowie emerged as my guy.  He was later followed by bands like R.E.M., the English Beat, and The Cure, among others, as I moved into more of the college radio scene, and I really liked Joan Jett, but Bowie was always The Guy.  My fandom started with an album I poached from my aunt, Heroes.  I also got ahold of David Live (1974), and then worked my way back before going forward.  The Rise and Fall of Ziggy Stardust and the Spiders from Mars, Space Oddity, The Man Who Sold the World, Aladdin Sane, Diamond Dogs, and Hunky Dory were the next to follow. I even own a copy of the Christmas record featuring David Bowie and Bing Crosby. 

Let's Dance came out in 1983.  It was a hit, and yet criticized for being too mainstream. I was twelve, and thought it was great.  I still do, though in a very different way than much of his other work.  The connected tour for the album, the Serious Moonlight Tour, featured Bowie in a bow tie.  I thought it was the coolest thing. I bought one and learned to tie it myself.  I still have the tie, and I wore it to teach my first Business Organizations class of the semester on Tuesday (and my Energy Business Law and Strategy course).  Contrary to what some want to believe now that E. Gordon Gee is the president of my institution, bowties originated with Bowie for me, not President Gee.  (And yes, it is likely that only a law professor could connect someone as cool as Bowie with bowties, and probably only this law professor.)

I write this as much for me, as anything, I suppose, but a few things about David Bowie strike me as relevant to this blog. First, he was always ahead of his time, looking for what was next. He didn't back down, he said what he thought in a strong, but usually respectful way.  He was, unfortunately, well ahead of his time in criticizing MTV for its lack of programing diversity. Not so much for calling them out -- others did that, too -- but in the way he did it, as you can see here.  

His eye for talent was remarkable, too.  David Sanborn played sax on David Live. Luther Vandross sang backup on Young Americans. Stevie Ray Vaughn played on Let's Dance, and Reeves Gabrels (now with The Cure) with Tin Machine. Adrian Belew played on Lodger.  Bowie, in turn, sang back up and played sax on Lou Reed's Transformer.  And his work with Iggy Pop, Queen, Tina Turner, Trent Reznor, and others crossed genres and time.   

Finally, he tried creative financial vehicles.  As one report explains, 

In 1997, Bowie, born David Robert Jones, securitized revenue from 25 albums (287 songs) released before 1990. At the same time, he swapped distribution rights on his back catalogue for a $30 million advance on future royalties in a deal with EMI. The 10-year “Bowie Bond” he created with banker David Pullman promised a 7.9% return and raised $55 million, along with a media frenzy. A flurry of other artists followed, but the Bowie Bonds skidded toward junk status by 2004, downgraded by Moody’s from A3 to Baa3.

The trend never really took off, though. Despite never missing a payment, the bonds did not do well, though that did not appear to hurt Bowie.  People got worried about online music sharing soon after the deal was struck.  Still, the idea of monetizing intangible assets, was rather forward looking, even if some believe that loans, and not bonds, are the better suited to assets like music. For Bowie, in music and otherwise, new things were worth trying, even if they didn't always go as planned. I still wished I'd gotten in on that deal, regardless.  I always felt like I missed out. 

I know Bowie is something of an acquired taste for some (and an unacquirable one for others), but the outpouring of support following his death shows a tremendous amount of respect and admiration.  He may even get his first U.S. number one album with his Blackstar album, which was recently released. Some believe the track Lazarus and the related video were his goodbye to the world.  It's hard to argue it's not.    

He will be missed, but I'm glad his legacy provides such a tremendous body work. I think the Sirius/XM Bowie channel should be permanent, and not just a limited-run engagement.

As I write this, I got a notice that Alan Rickman, also 69, has died of cancer. Cancer sucks.  As David Bowie noted in this short, but poignant, interview from 2002, "Life is a finite thing."  It sure is. 

So Happy Together?! Me and You and Intellectual Property Law Reform

The Turtles continue to have salience in the music world.  Now, they also are a "happening thing" in legal circles.  Two recently published law review articles take on an interesting issue in copyright law relating to pre-1972 sound recordings that has been the subject of legal actions brought by members of The Turtles.  The articles (both of which use the song Happy Together, a Turtles favorite, in their titles) are authored by my University of Tennessee College of Law colleague, Gary Pulsinelli, and Georgetown University Law Center Professor Julie L. Ross.  

In his abstract, Gary summarizes the problem as follows:

Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. . . . 

He concludes:

[S]tate law cannot provide the remedy that the owners of pre-1972 sound recordings seek. Their concerns, however, should not be dismissed. The exclusion of pre-1972 sound recordings from the federal system does deprive the owners of such recordings of royalties received by similarly situated owners whose recordings happen to have been made after that date. Because state law cannot remedy the problem, federal law must. Pre-1972 sound recordings should be brought into the federal system, on essentially the same terms as other works from the same era that are already protected by federal copyright.

Professor Ross reaches the same conclusion, as summarized in her abstract:

[G]iven the delicate balancing that has gone into Congress’ recognition of a limited digital performance right and creation of a compulsory statutory licensing system, any remedy for the inequity to owners of pre-1972 sound recordings must be left to Congress. Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances. This is a result that the Supremacy Clause does not permit.

Last week, I posted on federal securities law reform.  It looks like federal copyright law also is in need of some fixing . . . .  However, the copyright issue addressed in these two papers seems like an easy one to fix efficiently and effectively, unlike some of the federal securities law issues on the current reform agenda.  Regardless, I'll raise three cheers to fixing what's legally broken in the most efficacious way!

Imagine how the world could be
So very fine
So happy together . . . .