USA Edition Issue 1: (C)opyright Chronicles with Greg Lush

Note: This interview was conducted at the end of 2020.

The (C)opyright Chronicles is a series of interviews with creatives from different backgrounds, focusing on their practical experience of copyright law. We’re kicking off our 2021 (C)opyright Chronicles with a USA Edition!

For our first installment in this series, Dion from FAME chatted to Greg Lush from Disney.

Greg is an intellectual property and entertainment law attorney with extensive experience in copyright and marketing litigation. He completed his JD in California and his legal career has taken him from a small litigation firm to three of the major Hollywood studios. He currently works with Disney’s studio marketing division following the acquisition of 20th Century Fox and provides advise on legal issues related to marketing materials and content.

To start, why don’t you introduce yourself and briefly outline what you do at Disney.

I am an intellectual property and entertainment law attorney with experience in a number of areas such as consumer product and promotion licensing, marketing vendor agreements, sweepstakes, influencer engagement, rights management, clearances, credits, and copyright litigation.  My legal career has taken me from a small litigation firm to three of the major Hollywood studios.  I earned my bachelor’s degree at American University in Washington, DC and my Juris Doctor at the University of Southern California Gould School of Law in Los Angeles, CA.  When I’m not working, I love puzzles, trivia games, reading about history, cooking new recipes, and pushing for higher outputs on my Peloton.

At Disney, I support the studio marketing team.  I primarily handle tie-in license agreements, which are copromotions between a third-party brand and the studio to promote an upcoming release.  Marketing services can include a wide variety of tasks like negotiating product placement agreements, vendor agreements to provide advertising support and creative content production, live event agreements (like drive-in screenings which have become very popular again due to social distancing), and reviewing advertising pieces like commercials, banner ads, emails, social posts, and sweepstakes rules.

While at Fox, I was very fortunate to counsel the incredible and creative international theatrical marketing team.  The marketing team had brilliant ideas, as evidenced by the marketing campaigns for Deadpool and Bohemian Rhapsody.  It was a joy to work on such interesting and innovative projects. 

What does a regular day look like for you? What are the most common legal tasks that you have to deal with?

Most of my time is spent on contract drafting and negotiation.  I will receive a letter of intent or other type of initiation message from the business unit to begin drafting an agreement.  Like every company, we have templates to use but the deal terms of each agreement will vary.  The draft is then issued to the other side and typically comes back with redlines.  From there, it is my job to review the redlines, communicate the changes to the business unit and collect their feedback, elevate and traffic any unique questions to the appropriate group within the company (such as labor counsel, IP counsel, privacy, and risk management), and then negotiate the redlines with the other side.  I must ensure that the agreement protects our interests while still securing a deal that works for us and makes the arrangement worthwhile.

At Disney, my client is the studio marketing business unit.  That said, an interesting note about in-house lawyers, especially at large companies, is that we also have a duty to the company as a whole and must take care to keep those interests in mind when advising the business unit.  What may be good for my business unit may harm another.  I always have to be mindful of how my work may impact the rest of the company.

To address it upfront, how have you adapted to a COVID-normal?

I have adapted well although it took time.  I enjoy going into the office so I had a hard time working from home.  I used to work from my kitchen table in an unorganized manner hoping the arrangement was temporary, but I finally got a small desk and some basic office equipment and life has been much better.  I also like the increased use of video calls.  Oddly enough, I see my clients and colleagues more than before. 

I came to Disney through its acquisition of Fox and was reshuffled into the marketing group, but I still work out of the Fox lot while my clients and colleagues are at the Disney lot.  I rarely saw my new team and clients but now I see them much more because of video calls.  I’ve also found that without a commute I have a lot more time to exercise and have taken advantage of it.

Could you explain in a bit more depth how third-party tie-ins operate? What significant legal hurdles are involved in this arrangement?

Tie-ins are licensing arrangements whereby a third-party brand gets to leverage a movie in its advertising by including movie artwork and clips in advertising assets like commercials, emails, banner ads, social posts, websites, and other various marketing activations. The third party will include cobranded ads in its paid media advertising and other marketing activities around the release date for the movie, and in exchange the cobranded ads will have call-to-action messaging for the movie (i.e., “See [Movie] in Theaters [Date]”). The third-party brand will attract the film audience to its products and will see increased engagement during the promotional term, and the studio will reach the brand’s audience.

There are a number of issues that frequently come up when negotiating a tie-in promotion deal.  Each promotion has to be addressed on a case by case basis since no two promotions are alike.  To illustrate a few issues:

  1. Approval Rights – The studio will always want to approve in its sole discretion every use of movie content by the brand.  Brands will ask for a reasonable right of approval and that the approvals not be unreasonably withheld since they have deadlines to meet and risk losing out on media they have already paid for.
  2. Indemnities – Since the brand is running the promotion, the studio wants the brand to indemnify the studio in the event the studio is harmed as a result of the brand’s actions.  Many brands want to put caps on liability and exclude certain claims from liability.
  3. Termination Rights and Morals Clauses – The studio wants the right to terminate in the event that the brand does something that, while not necessarily illegal, could cause social backlash.  Brands are going to be wary about what could trigger a termination on morals grounds since they invest time and money into promotions and want to make sure that investment is protected, and morals have an element of subjectiveness.
  4. Ownership – Because tie-in promotion ads are inherently cobranded, ownership of these ads is often contested.  Who really owns a co-branded ad?  The key baseline is always that no rights to the studio’s intellectual property can be granted to the brand beyond the limited license.
  5. Insurance – we have baseline insurance requirements to make sure that if the brand does run into a problem, they have the insurance to cover it.  If a brand does not have insurance that meets our minimum requirements, we have to run a risk assessment.
  6. Release Date Changes – This is a new one since it used to be that once a movie was slated, the release date would never change.  COVID upended all of this.  Negotiating what happens if the release date changes requires creative solutions.
Tiffany’s x Death on the Nile Tie-In Source: Hollywood Reporter; Rob Youngson/20th Century Studios

What has been the most interesting/unique deal to come across your desk?

I am currently working on a software as a service agreement for a cloud database, which is a new but exciting challenge.  I am expected to be able to assist my business unit with whatever their needs are, and sometimes the deals are outside my usual practice.  I have not handled a software as a service agreement before but it is a fun challenge and will broaden my area of expertise.

Have deals ever fallen through because of legal conflicts or ramifications?

I have not experienced this.  There have certainly been close calls and last-minute negotiations, but I have found a resolution in every case so far.  I need to keep in mind that by the time I get a deal, the business units for each side have reached a preliminary understanding on the deal terms and are likely both taking steps anticipating the contract will get finalized.  While there are a few things I can stand firm on in a negotiation, my job is to find the solution and not stubbornly stick to a position that will blow up the deal.  Business units will understand if there’s a legal issue that I need to fight for, but will be very frustrated if that kills the deal.  This tension goes back to what I was saying earlier about needing to balance the interests of the business unit with the interests of the company as a whole.

Has your career trajectory been how you imagined it? Is there a defined career path in this kind of field?

I imagined being where I am now but my trajectory was not as I had imagined, mostly because I had no plan other than to keep my eyes open for opportunities and take advantage.  I bombed my on-campus interviews so the traditional path of working for a big firm for a few years then transitioning in-house was out.  I spent my summers in law school primarily in dependency court (courts that handle child custody matters) and a small litigation firm, but I was always applying for in-house opportunities.  I finally landed an internship at Universal for my last year of law school.  After law school, I did not have a job lined up and was desperate so I took the first one I was offered which was litigating copyright claims at a small firm.  I did not have a strong desire to litigate then, but I thought that the copyright angle could help position me later.  I then took a risk and left that job after a few months to take a one-year temporary position back at Universal, hoping that could be my foot in the door to a full-time job.  Long and stressful story short, that did eventually turn into a full-time job, but not until the last minute and I even gambled further by not taking the only job I was offered prior to the end of that one year.

There is no sure career path to becoming an in-house lawyer or working for a studio.  As I mentioned, the traditional path is to work for a big firm for a few years and then transition.  Sometimes it is possible to turn an internship into an out of school job.  A lot of the time the path is like mine where you keep your options open and take risks.  In any path, I would say that the keys are preparation, persistence, and luck.  You can prepare yourself by taking law school classes relevant to entertainment law and in-house roles, joining relevant clubs and bar associations, and writing articles for a school journal or blog in the practice area.  You have to be persistent with your search and networking for opportunities – I applied for every internship I could find and had applied to Universal each cycle (summer, spring, and fall) for two years before I got an interview.  The hard truth is that there will always be an element of luck involved, but this is not luck that just happens –preparation and persistence lay the foundation for luck to strike.  I was lucky to get my temp job and then lucky again for it to turn into a full-time job, but I had prepared and worked hard to maximize my odds.

What skills and attributes do you think are key that we as students should be looking to develop to crack into entertainment law?

I think law students can do three things to help prepare and position for entertainment law.  First, take advantage of offerings from the school to build a foundation and demonstrate interest, such as enrolling in relevant course work (intellectual property, contract drafting and negotiation, etc.) and joining relevant organizations and clinics.  Check if your university will let you take classes at other schools like the business or film school to get a nonlegal perspective on a topic (for example, I took a class about the talent agency business through USC’s film school).  Second, constantly watch for internship opportunities and apply where you can.  It might take a while to land something but keep trying – anything you can do to get your foot in the door.  Third, students may get special pricing or even free membership to bar associations which often have specialized practice area groups.  These groups collect and post topical news stories and host networking events.

Most people have an inflated conception of the entertainment industry. Is this also the case for entertainment law? Are there any misconceptions that you would like to dispel?

I think it all depends on who the audience is, but in my experience many people think of entertainment law in terms of movie deal-making or having something to do generally with intellectual property.  While movie deal-making and “something to do with intellectual property” are certainly areas of entertainment law, the reality is that entertainment law encompasses a wide variety of practice areas and specialties.  A sampling includes production, finance, litigation, labor and employment (who also have to manage guild rules and relationships), privacy (which gets more complicated by the day with each new regional privacy law), distribution, acquisition, and marketing. 

On top of that, you could be a lawyer for a theme park, direct-to-consumer streaming platform, or consumer product arm.  The work also varies by size of the entity.  A large studio is going to have specialized legal teams for each line of business but a smaller company is going to need someone with a wide range of expertise.  You could spend your whole career never working a movie deal or handling intellectual property matters.

Stock photos obtained from pexel.com

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