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  • Posts by Joshua Bloomgarden
    Associate

    He represents a wide array of entrepreneurs, investors, entertainers, athletes, producers, writers, media production and distribution companies and emerging and established CPG brands and businesses on intellectual ...

This past week, I have realized my place is still on the blogosphere and not in the stands. That time will come. But it’s not now.

I love my readers, and I love my supportive family. Without them, none of this is possible.

I’m coming back for my second year of the “Sports & Entertainment Spotlight.” We have unfinished business.
LFG (as in Law: Foster Garvey—what else?!)

That’s right folks, like Tom Brady, I’m back for another year (and that’s pretty much where all Josh Bloomgarden/Tom Brady commonalities end). In any event, I’m feeling especially excited this time of year with Spring right around the corner, and March Madness in full swing. This year, I have a vested interest not only in the theatrics of the games (my brackets are probably being busted as you read this), but also in seeing how, for the first time, the name, image and likeness (NIL) rights of basketball players participating in the Women’s and Men’s basketball tournaments are leveraged in advertising and marketing opportunities throughout the tournaments. Undoubtedly, we will see buzzer beating highlights minted as non-fungible tokens (NFTs) and tournament heroes not only becoming household names and but collecting checks in the process.

Speaking of “madness,” I would be remiss not to mention what seems like a daily march of plaintiffs to the courts to claim copyright ownership in chart-topping songs. (Bonus points to you if you found all the word play in that last sentence). Indeed, ever since the Marvin Gaye Estate’s controversial “Blurred Lines” copyright infringement victory against Robin Thicke and Pharrell Williams (that many viewed as a misapplication of legal analysis that should have been focused on whether a melody was copied, rather than copying of a harmonic feel or rhythm of a song), songwriters and artists have been emboldened to try to get their share of the pie (and some publicity in the process). Just this past week, no sooner did Katy Perry prevail in her copyright suit, but Dua Lipa now finds herself in the middle of a copyright brouhaha, joining Ed Sheeran, Sam Smith and other top singers/songwriters – all for the most part against lesser-known artists or songwriters whose songs become publicized through their litigation. Perhaps out of these cases, there will come either judicial or legislative guidance that makes songwriters a little more self-assured that their contributions will not land them in court. Until then, these plaintiffs will continue to rack up streams (and legal fees) while spending a few minutes in the “Spotlight.”

Which reminds me, here’s what else made this week’s "Spotlight."

    • Just in time to celebrate Women’s History Month, Rihanna continues to assert herself as an entrepreneurial force, with her Savage X Fenty lingerie brand reportedly on the verge of a $3 billion IPO. Go ahead and “Take a Bow.”
    • Social media platform (and unrelenting reminder that I am aging) TikTok debuts its streaming service SoundOn, enabling artists to upload and monetize music through the service.
    • Not to be outdone, Instagram will soon debut NFTs on its platform — potentially enabling users to mint their own NFTs. So if anyone is in the market for NFTs featuring a darling Cavalier King Charles Spaniel, please contact me for details.

Welcome back to the...—  

Is there anything you want to say to me?
...Are you sure...?
...You forgot, didn’t you...?
Well let me remind you...

It’s the first anniversary of this often irreverent, at times poignant, occasionally (?) humorous(???), and always informative labor of love I call the "Sports & Entertainment Spotlight." The first year is said to be the toughest, that tries the mettle of a relationship and well, the honeymoon phase is over. So, if you’ve made it this far, you’re in it for the long haul. Of course, always happy to pick up new friends along the way. As we embark on the second year of the "Spotlight," complete with some swanky, new branding (hat tip to the Foster Garvey marketing mavens). I would love to have an opportunity to connect with you, the reader, and hear your thoughts and feedback on how I’m doing (other than from members of my family), what topics matter the most to you, etc. In that vein, I invite you to connect with me on LinkedIn or email me at josh.bloomgarden@foster.com. So as I await your outreach to imbue me with the knowledge to help me upgrade the lightbulbs in the "Spotlight," here is your anniversary present:

    • University of Connecticut women’s basketball guard Paige Buecklers is taking full advantage of the name, image and likeness (NIL) era in college athletics, cashing in on her brand and perhaps most significantly, bringing more interest to women’s athletics. Amazing what can happen when the National Collegiate Athletic Association (NCAA) loosens its grip (albeit begrudgingly).
    • In a collision of Sports & Entertainment, the National Basketball Association (NBA) has voiced its objection to the use of NBA team logos and other trademarks in the biopic HBO series “Winning Time: The Rise of the Lakers Dynasty” without any trademark license or clearance. Meanwhile, the Boston Celtics objected to there not being a biopic series about them.
    • Think before you post. Rapper Nas is the latest defendant against copyright infringement claims by photographer and serial plaintiff Al Pereira (who has filed about 500 copyright infringement lawsuits in the past few years), having posted on Instagram — without a license — a 1993 black and white photo by Pereira of himself (Nas) and fellow rappers 2pac and Redman. Related tip: next time you’re at a friend’s wedding, in lieu of shopping for a gift on your friend’s registry, give your friend a license agreement to use any photos you take of your friend at the wedding.  Sure, you’ll lose a friend, but at least that former friend will have the security of knowing you won’t sue them. And that’s the greatest gift of all. 
    • Disgraced Hollywood Producer Harvey Weinstein made headlines for having smuggled Milk Duds candy behind bars. I am not sure whether that is as much an indictment of LA County jail security as it is an endorsement of the quality of LA County jail toothbrushes. Either way, I am going to go out on a limb and guess that Milk Duds confectioners The Hershey Company will not be using this press for its next marketing campaign. 

As I write this, Ukraine remains under siege and its people (courageous and resolute as they are) subject to indiscriminate atrocities at the hands of Russian armed forces under the deranged authoritarian control of President Vladimir Putin. While in this moment, it is easy to become jaded, I find myself inspired by the "Profiles in Courage" (most significantly from Ukrainian President Volodomyr Zelenskyy), as well as the worldwide rebuke/response to this misbegotten war. As a testament to its social and economic impact globally, the sports and entertainment industry has played a prominent role in hitting back at Russian aggression. Of note are brothers and former world heavyweight boxing champions Wladimir and Vitali Klitschko (the latter being the Mayor of Kyiv) taking up arms to fight for their homeland. Then, there was Russian professional tennis player Andrey Rublev who used his platform on the world stage to send a message of protest, scrawling “No War Please” on a television camera lens after his victory at the Dubai Tennis Championships. Commendably, the Union of European Football Associations (UEFA) moved swiftly to relocate this year’s Champions League final from St. Petersburg, Russia, suspend all Russian competitions and sever sponsorship ties with Russian energy giant, Gazprom. Although international soccer’s main governing body, Federation Internationale de Football Association (FIFA) initially had a toothless response of simply banning Russia’s national team from playing on home soil, without an anthem or flags and calling themselves "Football Union of Russia" (reminiscent of the International Olympic Committee’s (IOC) past wrist slapping of the “Russian Olympic Committee” for doping violations), FIFA eventually suspended Russia from participating in any international competition (notably after the IOC itself finally decided to do the same). And lastly, Disney and other media and entertainment companies have halted planned releases in Russia. Whatever comes of this moment, let’s not lose sight of these and other meaningful ways that the world is uniting against Putin’s evil. Slava Ukraini.

After that weighty intro, I hope you will agree we could use a little (Spot)light humor. Here goes…

    • "Seinfeld" and "Curb Your Enthusiasm" creator Larry David’s documentary launch was scrubbed a day before the premiere – at Larry David’s insistence. Apparently, he didn’t think it was “prettayyy, prettayyy, prettayyy good.”
    • Fresh off a Super Bowl victory, Los Angeles Rams coach Sean McVay reportedly turned down a $100 million opportunity to join the broadcast booth for Amazon Prime Video’s Thursday Night Football telecasts – putting us yet another step closer to having Alexa do play-by-play while re-ordering laundry detergent. 
    • Songwriters look to take on streaming giant Spotify to get their fair share of royalties, saying “if we don’t get paid, songs don’t get made.” Hopefully for their sakes, lyrics are a little better than that…

Welcome back or for the very first time (what took you so long?) to the “Sports & Entertainment Spotlight”! As the torch is extinguished on, by most metrics (television ratings, in particular) a fairly underwhelming Olympic games, we turn our attention (limited as it may have been) from the five Olympic rings to the three rings (of the big top tent variety) that never seem far behind Kanye “Ye” West. Specifically, this past week, Ye announced that his highly anticipated album, “DONDA 2” would be released exclusively on his brand new $200 platform called “Stem Player” – not on streaming platforms. Now, a few things interest me about this development (none of which being: Who did/did not make the album; whether a certain reality television star and/or a certain Saturday Night Live cast member were referenced in the album; why the album release date was not met; why the audio at the livestreamed release party left much to be desired; or that the Stem Player looks like an Aspirin-Mentos lovechild (the pacemaker freshmaker?). First, as has been widely observed, is that this a shrewd marketing strategy that could serve as a model for future music releases – Ye grossed $1.3 million in revenue within just a few hours of his announcement. Of course, $200 is a lot to pay for an album, but the value proposition in the Stem Player is not just that its users gain access to the album, but also that the Stem Player allows the users to manipulate and record the so-called “stems” or component parts of a recording (e.g., drums, vocals, bass, samples) to create entirely new remixes. Given rumors of Ye having turned down a $100 million Apple distribution deal for the album, clearly there is conviction about the technology’s prospects. But putting on my lawyer hat, methinks the Stem Player could create a potential morass of copyright issues, for example, from users’ performance or distribution of remixes of others’ recordings. Any lawsuits related to the Stem Player platform could certainly hurt the bottom line, but I suppose that is mere speculation for now. Either way, I will keep tabs on the Stem Player and Ye so you don’t have to (you’re welcome). For now, I bring you this week’s highlights, for which no purchase is necessary:

    • The United States Women’s National Team settled their equal pay lawsuit against the United States Soccer Federation to the tune of $24 million and a commitment to equalize pay with the Men’s National Team. Your move, [insert your preferred organization with discriminatory pay practices].
    • Former Miami Dolphins head coach Brian Flores, himself in of a lawsuit regarding discrimination and the application of the Rooney Rule, lands an assistant coaching job with the Pittsburgh Steelers, incidentally owned by… (check notes)…Rooney.
    • Eight months into the name, image and likeness (NIL) era in college sports, the Division I Board of Governors is convening a review of the effects of NIL deals amongst other things, student-athletes’ mental health as part of its efforts to formulate a lasting NIL policy. The Spotlight has exclusively obtained an unofficial draft of the report reproduced here: .

Welcome back to another installment of the “Sports & Entertainment Spotlight”! Where better to start this week than with last Sunday’s Super Bowl that lived up to its name on all fronts? Sure, the commercials were witty, innovative and at times downright strange as usual, but the football game and halftime show (and let’s not forget my homemade guacamole) were outstanding. The TV ratings are a testament to that as myself and 112 million of my closest friends (for context, roughly the readership of the Spotlight, give or take 112 million) watched the hometown Los Angeles Rams’ Matthew Stafford, Cooper Kupp and Aaron Donald make big plays when they mattered the most to claim the Lombardi Trophy. Equally enjoyable for me was seeing/hearing – due to in no small part to Jay-Z/Roc Nation’s entertainment partnership with the NFL –hip-hop, rap and R&B take centerstage musical performances from the all-star collection of talent that included Dr. Dre, Snoop Dogg, Eminem, Kendrick Lamar and Mary J. Blige for what was as much an homage to Southern California as it was to the respective genres. To me, the only thing missing was an appearance by the late Tupac Shakur. Fittingly, the performance just so happened to take place on the same weekend on which Snoop Dogg released his new album B.O.D.R. (Back on Death Row) on his newly-acquired record label, Death Row Records – the very same label that launched his, Dr. Dre’s and Tupac’s careers.  Although things may have appeared to come full circle for Snoop, having full-heartedly embraced NFTs, he’s also taking a big leap forward with his stated intention to make Death Row a record label for the metaverse. In short, Sunday was a “Sports & Entertainment Spotlight” unto itself – but lest you worry, I have more to last you through next week:

    • Not to be outdone by Snoop, DJ Steve Aoki proclaims that he’s made more money from music NFTs than he has in his entire recording career. Financially, you could say he’s doing, “A-ok.”
    • 15-year-old Russian Olympic Committee figure skater Kamila Valieva is becoming a household name for all the wrong reasons, somehow finding herself back on Olympic ice despite having tested positive for banned performance-enhancing substances. For her part, Valieva says that the positive test arose from accidental contamination with her grandfather’s medication. Programming note to tune in to watch Valieva’s grandfather compete in this year’s Senior Olympics – think: curling, but instead of sending away curling stones, they grumpily use bowls of soup that are always too cold.
    • Actor Stanley Tucci inks a multiyear endorsement deal with Italian sparkling mineral water company, San Pellegrino, in which bottles will be branded “Stan Pellegrino.” An infinitely better proposition than a diaper rash ointment deal pitched to him for “Tucci Cream.”

Welcome back, and in case you’ve been living under a rock (unless it’s a "30 Rock"), two of the biggest sporting events will command millions upon millions of eyeballs for NBC this weekend with the Winter Olympics (already in full swing in Beijing) and the National Football League’s (NFL) Super Bowl LVI due to kick-off on Sunday between the Cincinnati Bengals and Los Angeles Rams (and Madison Avenue Agencies). However, at least for the time being, both Olympic and NFL news have largely been focused on matters taking place “outside the lines.” At the Olympics, a medal ceremony in figure skating was postponed for legal reasons – namely a member of the purported gold-medal winning Russian Olympic Committee (ROC) team having a suspected positive doping test. Already on thin ice for widespread doping violations, one wonders whether ROC is once again up to its old tricks or whether this is an isolated incident by one triple (k)lutz. Or perhaps, whether the figure skating team will be heralded as mettlesome or admonished as medal-less. In the NFL, former Miami Dolphins coach Brian Flores’ lawsuit alleging discriminatory hiring practices remains a hot button topic. Just this past week, we learned of Commissioner Roger Goodell voicing displeasure with the NFL’s lack of diversity in coaching and front office positions, while two of the NFL’s co-defendant teams, the Miami Dolphins and Houston Texans hired minority coaches Mike McDaniel and Lovie Smith, respectively. Meanwhile, media mogul Byron Allen is rumored to be preparing a bid to buy the Denver Broncos (another co-defendant), and in so doing, make the Broncos the first Black-owned NFL team. While those moves – calculated or not – may undermine Flores’ case, in just two weeks, Flores’ taking a stand has seemingly sparked soul-searching, for which Flores should be commended. From Olympic torches and stadium lights, let’s jump into the "Spotlight."

    • How many comedians does it take to have streaming services pay joke-writing royalties just as they do songwriting royalties? With the Estates of George Carlin and Robin Williams, together with a handful of living court jesters suing Pandora, we may yet find out.
    • Mega singer-songwriter, Sia joins forces with a plant-based pet food company on a mission to tell traditional meat-based pet foods, “see ya.”
    • Although Amazon is far from an incumbent in the sports broadcasting space, in Al Michaels, they may be bringing aboard an industry veteran to handle its Thursday Night Football broadcasts. Waiting in the wings if Michaels doesn’t get the gig? Al-exa.
    • A digital plot of land in the metaverse neighboring Snoop Dogg’s sold for the low price of $450,000. Fitting that with respect to the metaverse, what some view as an investment, others see as money going “up in smoke.”

Welcome back to the Spotlight and oh-me, oh-my, do we have a full slate of developments in the National Football League (NFL) – and that’s to say nothing of what happened on the field, with the Cincinnati Bengals and Los Angeles Rams battling their way into Super Bowl LVI. First, seven-time Super Bowl champion (and two-time Super Bowl runner-up to my New York Football Giants) quarterback Tom Brady was reported to have retired, several days before his official announcement and the vesting of his $15 million signing bonus. While he could well afford to have done so, the all-time great was not about to leave that money on the table. A few days later, the Washington Football Team (formerly known as the Washington Red…actions) debut their new name and branding as the Washington Commanders, and at least so far, appear to have avoided the same plight that the Cleveland Guardians baseball team met when changing their name several months ago. Kudos to the Commanders’ trademark attorneys there. But overshadowing all of that was former Miami Dolphins’ head coach, Brian Flores, a Black man, filing a potential landmark lawsuit for himself and an uncertified class action against the NFL and several named member clubs (unfortunately including the aforementioned New York Football Giants) alleging, amongst other things, pervasive racial discrimination in the NFL’s hiring process – in spite of the NFL’s “Rooney Rule,” requiring teams to conduct interviews with minority coaching candidates. Time will tell how this case will shake out, what other details will be revealed (already we’ve learned about alleged payments to coaches for losing football games in an effort to improve NFL draft position,) and how much Flores will be able to bring about lasting change through this lawsuit. Rest assured, the “Spotlight” has you covered – but until then, check out what else is on tap this week:

    • Former NBA Player J.R. Smith, who made headlines last year after retiring from basketball to enroll in, and play golf competitively at North Carolina A&T, signs with a sports agency to position himself for name, image and likeness opportunities, becoming the first former professional athlete to enter into such a deal. Whoever said it’s too late to relive your glory days?
    • Justin Bieber became the latest entertainer to buy a Bored Ape NFT, laying out an astonishing $1.29 million (500 Ethereum tokens). Far be it from me to question the behind the scenes deal making, but shouldn’t the Apes be paying for the entertainers on account of being bored?
    • The Joe Rogan - Neil Young et al. Spotify kerfuffle continues for a second week with more artists demanding that their music be pulled from the streaming platform over COVID-19 vaccine misinformation. We will see whether Spotify remains immune from loss of content. 
Super Bowl

With the Super Bowl coming up, it is important for brands looking to capitalize on football-themed promotions to remember that the terms “Super Bowl” and “Super Sunday” are registered trademarks guarded by the National Football League (NFL) more closely than a shutdown corner on a wide receiver.

Because there is a fine line between permissible fair uses of Super Bowl and Super Sunday (e.g., in on-air banter and news and sports reports) and impermissible promotional uses that may infringe the NFL’s trademark, here are some guidelines to keep you from going “offsides:”

After a compelling weekend of playoff football in the NFL, in which all four of the matchups came down to the final play of each game (serving to drive even more eyeballs to the NFL in what has been a fruitful season for the NFL), it’s only fitting that I write this piece against my weekly submission deadline. Well, if Kansas City Chiefs quarterback Patrick Mahomes can engineer a bananas game-tying drive in thirteen seconds, surely I am up for the task here. Apples to oranges comparison? Yes! But as someone who wasn’t allowed to play contact sports growing up (and with my diminutive frame, I might not be writing today had I been) I’m turning lemons into lemonade (and also plum-surprised at the amount of fruit-related idioms I’m using). Without further ado or meandering thoughts, let’s check out this week’s peachy Spotlight.

    • Rock and Roll Hall of Famer, Neil Young’s song catalog was removed from Spotify after a public ultimatum over Spotify’s providing a platform for COVID-19 misinformation in its wildly popular podcast, “The Joe Rogan Experience.” A cynic might point to the fact that Spotify has a $100 million contract with Mr. Rogan. A realist would agree.
    • Picasso NFTs of ceramic works are about to make their debut, with a starting price of a misplaced arm and a leg.
    • Rock legend Bob Dylan and R&B singer John Legend (no relation) strike gold selling their respective music copyrights to companies banking on long term royalties.
    • Speaking of banks and royalty, the Duke and Duchess of Sussex, Harry and Meghan find themselves being used - without authorization - for crypto investments.

Welcome to a special quarantine edition of the "Spotlight." When I set out to get more “exposure” for the "Spotlight" this year, this was not exactly what I had in mind. But hey – we play the cards that we are dealt. At least I can take solace in the fact that I did as well in the Australian Open Tennis Tournament as did 20-time major champion Novak Djokovic, who was eventually deported from Australia this past week for failing to comply with Australian COVID-19 vaccination requirements for international travelers. Credit to Djokovic, however, for lasting longer on Australian soil than the Dallas Cowboys on their home turf in the playoffs. Kidding aside, I am, like many of us (presumably Djokovic as well) growing weary of the pandemic as we enter its third year. With that in mind, as a sort of temporary escape from the physical world, I bring you this week’s metaverse-centric Spotlight. 

    • In its deal to acquire gaming giant Activision Blizzard, Microsoft placed a $68.7 billion bet that gamers are more likely to move into the metaverse than out of their parents’ basements.
    • Keeping up with the times, the NFL is offering Superbowl digital collectible ticket stubs in the form of NFTs, making it both highly implausible and physically impossible that I will be able to get my hands on tickets to this year’s contest.
    • Luxury fashion house Hermés goes for the purse of ‘MetaBirkins’ NFT creator Mason Rothschild, in a contentious lawsuit over the alleged infringement by Rothschild’s digital creations with respect to the intellectual property in Hermés’ physical Birkin handbags. The outcome of the case is likely to provide important answers regarding the extent to which digital manifestations of physical goods are infringing uses or protected expressions.

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The Sports, Arts & Entertainment group at Foster Garvey provides full service legal representation on sports, entertainment and business matters, including handling transactions related to brand management, licensing, joint ventures, venture capital, private equity, technology, the Internet and new media.
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