How Much Do They Cost? Entertainers Being Both (Lay)Person & (Intellectual) Property
Hunter S. Thompson is quoted with saying, “[t]he [entertainment] business is uglier than most things. It is normally perceived as some kind of cruel and shallow money trench through the heart of the journalism industry, a long plastic hallway where thieves and pimps run free and good men die like dogs, for no good reason.”[1] The area of soft intellectual property law and its effect on some of these so called “good men,” is one of the reasons for Thompson’s criticism. But before we dive into IP law, we first need to check the source that sparks the flame: employment law.
Let’s say you throw a party. At the end of the night you make $1,000,000. However, it cost $500,000 to throw the party. Then your party planning mentor/advisor takes $200,000. Then the person who found you the venue takes $100,000. And then your lawyer and your financial consultant take another $100,000 total. From that $1,000,000, you only take away a profit of $100,000 or 10%. Now a hundred questions start flooding your mind about “How is this fair?” or “I’ve spent years cultivating my party throwing talent. Do you have a clue how many tea parties, bat-mitzvahs, and proms I’ve had to go through to get to this point?” or “I’m about to fire my lawyer, he probably didn’t even do anything anyway.” But you then realize that this is a hypothetical and that you’d never let something so unjust happen to you. However, when it comes to the entertainment industry, this is a standard and commonplace occurrence; with caveats in place that attach themselves to you and your estate in perpetuity.[2] Once you sign the dotted line, you and everything you do, become someone else’s. You might now be wondering, “I thought that this was about IP law, not employment law.” Well, spoiler alert, the essence of this post is about how, when it comes to entertainers, the two are one and the same.
Entertainers have the ability to sell their public image to companies with advertisements, but this can sometimes backfire. In 2005, Helena Bonham Carter became the new brand ambassador for Yardley Cosmetics for £500,000, which is equivalent to over $920,800 today.[3] In a subsequent interview, Carter stated, “I don’t know why Yardley chose me, I don’t wear much make-up.”[4] In 2013, after being hired as Blackberry’s new Creative Director, Alicia Keys sent out a tweet that was tagged to have been “via Twitter for iPhone.”[5] The exact same thing happened almost exactly 5 years later, when Gal Gadot tweeted an advertisement to promote the Huawei Mate 10 Pro Phone.[6] O.J. Simpson had a brand partnership with Hertz for about 20 years, to the point that Hertz’s Vice President of Public Affairs stated that O.J. was “as highly identified with Hertz as he [was] with football.”[7] After Simpson was charged and arrested for the infamous case against him, Hertz was dragged into the case as well.[8]. Everything an entertainer does is watched, not just by their fans and the media, but by those who run the business; and it starts from the second they sign their contract.[9] In each of these cases there were repercussions that led to each entertainer no longer being a representative for the brand.
Next on our journey is entertainers and copyright. Copyright is the intellectual property that protects original works of authorship and begins as soon as an author fixes the work in a tangible form of expression.[10] It comes with the rights of reproduction, derivative works, distribution, public performance, public display, and digital (audio) transmission.[11] Lastly, copyright covers multiple different mediums, including, but not limited to, literature, plays & musicals works, choreography, and motion pictures. Recently, entertainers have not realized that when they do not “author” an expression—even when they’re the subject of said expression—they are not given any of the copyrights that come with the expression’s creation.[12] And these are not minor artists. Miley Cyrus, “Justin Bieber, Ariana Grande, and Dua Lipa (twice),”—household names in 2022—have each been sued by the same photographer, Robert Barbera, for posting photos of themselves without his permission.[13] Under copyright law, the author of an “original expression” is the owner of the copyright.[14]
However, even when an artist is the author of an expression and owns the copyright to the expression, there are times when the story does not end happily ever after. In the music industry, a song is normally made up of two parts: the composition (the song written out) and the sound recording (the final product often distributed to consumers). The composition is normally owned by the artist, while the official original recording (or master) is owned by the recording company.[15] This means that an artist can put their heart and soul into a finished product, have the ability to purchase ownership at a marketable price, plead for the ownership, but still come to a point where they will never own the copyright for their art.[16] This has recently been seen in the controversy between Taylor Swift and Scooter Braun.[17]
The reason for these examples is to point out that entertainers are more of a good than a service provider. The situation is comparable to a different part of the intellectual property spectrum, artificial intelligence (“AI”). There are two main types of AI that are focused on in today’s technology community: artificial narrow intelligence (“ANI”) and artificial general intelligence (“AGI”).[18] The difference between the two is that ANI preforms tasks, while AGI can seemingly take intellectual actions similar to that of a human.[19] Due to advancements in AGI, there is a question of whether such AI should be seen as an independent content creator or if the content that it solely creates belongs to the AI’s creator.[20] That question has already been answered in the entertainment industry; due to the aforementioned split of authorship.
There comes a point in an entertainer’s life, where they are no longer a person. They, and what they create, are bought and sold by different entities. After they do what is asked of them, their owners make extreme profits from their crucially specific work. They are constantly watched with close to no privacy and are sometimes working around the clock, like machines. A flaw or mistake could mean being thrown out and replaced by a new model. Of course, they can make their own decisions and own property and many other things the average person can do. But so can wholly owned corporations. At what point do entertainers become more of a brand or idea than human? These entertainers are commodities that are always being put in front of a customer’s view to be watched. I guess that’s why it’s called show business.
Footnotes
