Sports & Entertainment Beat

On August 6, 2014, the online gaming community and video platform Twitch announced that copyright protected music and audio would be muted in its Video on Demand content.  In a move that is likely related to its recent acquisition by Amazon, Twitch is collaborating with Audible Magic, the provider of automated audio content identification software, to identify and mute copyright-protected content.  In an explanation provided on Twitch’s blog, it notes that it “respect[s] the rights of copyright owners” and is seeking to “help protect both our broadcasters and copyright owners.”

On August 18, 2014, the Ninth Circuit Court of Appeals issued an opinion that may impact the way website users are bound by Terms of Use.  In Nguyen v. Barnes & Noble, Inc., Plaintiff had purchased two items during a "fire sale" on the Barnes & Noble website, received an order confirmation and then received another e-mail the following day notifying him that the order had been cancelled.  Plaintiff proceeded to file a putative class action lawsuit against Barnes & Noble, alleging deceptive business practices and false advertising.  In response, Barnes & Noble moved to compel arbitration pursuant to the Barnes & Noble website Terms of Use.  Plaintiff argued that he never clicked on the link to the Terms, and he had no notice of the Terms or the arbitration provision.  The district court ruled in favor of the Plaintiff, finding that, even though the site contained a hyperlink to its Terms of Use on every page, including through completion of the purchase process, the Plaintiff did not have actual notice of the Terms, nor did the existence of the hyperlinks provide him with constructive notice (i.e. implied notice) of the Terms, and Plaintiff was therefore not bound by the arbitration provision.

With high-profile deaths of iconic NFL players such as Junior Seau and Dave Duerson making headlines over the past couple years, the long-term health and well-being of NFL players has come to the forefront as the hot topic of the day.  Nowhere has this issue gained more notoriety and exposure than in the series of lawsuits filed against the NFL by retired players.

The Alliance of Artists and Recording Companies (AARC), an organization representing featured recording artists and sound recording copyright owners in the areas of hometaping/private copy royalties and rental/lending royalties, recently filed a federal class action lawsuit against automakers General Motors and Ford, as well as electronics manufacturers Denso and Clarion, seeking to collect royalties allegedly owed to artists, songwriters, record labels and music publishers under the Audio Home Recording Act (AHRA).

Billboard reports that music industry leaders are considering a single worldwide weekly release day for new albums.  The International Federation of the Phonograph Industry (IFPI) is proposing a uniform release day of Friday in a move that departs from the existing disjointed jurisdictional variation resulting from each territory’s ability to select its own release day.  As a result, albums are currently released on Friday in Australia and Germany, Monday in the United Kingdom, and Tuesday in the United States. The unification initiative is supported by the Recording Industry Association of America and executives in the major music territories and at the major labels.

When UCLA basketball star Ed O’Bannon saw his avatar used in an NCAA-branded video game for which he received no compensation, he decided to take action, and agreed to serve as lead plaintiff in a class action challenging NCAA rules prohibiting student-athletes from receiving a share of revenues earned from use of their names, images and likenesses.  The suit alleged that the restrictions constitute an unreasonable restraint on trade in violation of antitrust laws.

On Thursday, the NCAA Board of Directors voted to allow Notre Dame and the top five conferences in Division I - Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern Conferences (collectively known as the “Big 5”), to create their own rules in the following 11 areas affecting student athletes (the “Autonomy Measures”):

• Athletics Personnel;

• Insurance and Career Transition;

• Career Pursuits Unrelated to Athletics;

• Recruiting Restrictions;

• Pre-Enrollment Expenses and Support;

• Financial Aid;

• Awards, Benefits and Expenses;

• Academic Support;

• Health and Wellness;

• Meals and Nutrition; and

• Time Demands.

The decision of a Los Angeles probate judge on Monday, July 28, 2014, provides a glimpse into the private lives of owners of an NBA franchise.

Judge Michael Levanas, in the Sterling Family Trust matter, evaluated the testimony of both Shelly Sterling and Donald Sterling, found Mrs. Sterling to be more credible and issued a tentative oral ruling giving her authority to move forward with the sale of the Los Angeles Clippers for $2 billion to former Microsoft CEO Steve Ballmer. Mrs. Sterling entered into the sale as the sole trustee of the Sterling Family Trust.

YouTube Music Pass, the new Google-owned music service, has indicated that it intends to block content from independent labels that have not signed up for its subscription music service from its current free service.  YouTube Music Pass is a new streaming service that will allow people to download music to their mobile devices and watch and listen to music videos without ads, even when not online.  On June 17th, YouTube’s head of content and business operations, Robert Kyncl, confirmed that independent artists could disappear from YouTube if their labels do not sign up for the new service.

Many unsigned or independent music artists struggle to finance studio time, recording an album, touring the country or even promoting their music locally.  The struggle can push some artists to treat their talents like a hobby or even give up the dream of performing professionally. Others work full- or part-time jobs to raise the money themselves while playing small gigs for little pay. Some industrious artists use crowdfunding websites to raise the capital necessary to fund their talent.