Chaos Out of Order

Where Megalomania Meets the Heart and Soul

How To: “Keep Your Sex Tape Off the Internet”

one night in paris

Celebrity attorney Marty Singer gives us the vital prophylactic information that we’ve all been hoping for: how to keep your sex tape off the internet. Don’t tell me I never gave you any useful info!

Q: How do I keep my sex tape off the Internet?

Singer: Don’t make one! But if you must, here are some tips on how to keep it private. The person who records the tape is the copyright owner. So you should be the camera-person and try to own or co-own the copyright because third-party distributors are less likely to touch a sex tape if there is a potential copyright claim. Even if you don’t own the copyright, you also can assert claims for violation of your rights of privacy and publicity, both of which can lead to injunctions against distribution. Unless someone is on the tape telling you that the tape will be exploited, the release will violate your expectation of privacy. Plus, your name or image can’t be used for commercial purposes without your consent, so you can stop the promotion of the tape if not the release itself. Finally, if you didn’t know you were being taped, criminal charges might also be appropriate.

52009vUTC08bUTCFri, 21 Aug 2009 09:16:34 +0000 11, 2008 Posted by | Uncategorized | , | Leave a comment

“The Scenesters”

Some buddies of mine recently completed an impressive independent film, “The Scenesters”, which I did some (legal) work on. Relevant topics include comedy/murder-mysteries, making fun of people who consistently eat on Hillhurst, and the career of former Twin Peaks star Sherilyn Fenn. Here’s the trailer, take a look.

Scenesters

12009vUTC08bUTCMon, 17 Aug 2009 17:11:07 +0000 11, 2008 Posted by | Uncategorized | Leave a comment

iLike Deal Signals Myspace’s New Direction

ilikeMyspace is apparently in serious discussions to purchase digital music site iLike. As far as social networking is concerned, Facebook sped past Myspace a while ago and has lapped them numerous times depending on the length of the hypothetical track I’m alluding to.  Myspace still maintains a massive user base and has aggregated an enviable repository of both professional and user-generated content (primarily music). The company’s recent seismic management shift has left the web community wondering how the News Corp. property plans on leveraging these assets to revitalize the brand.

The iLike deal seems to confirm suspicions previously expressed by two of my favorite web players, Marc Cuban and Docstoc CEO, Jason Nazar. In their eyes, it’s time for Myspace to wave the white flag and cede victory to Facebook as “a place for friends”, and refocus on monetizing media content (whether directly or indirectly).

Nazar:

“[Myspace] should be the next generation content/ entertainment portal that leverages millions of user profiles to more accurately provide data to advertisers on what is appealing to specific demographics.”

Cuban:

“You have a strong (although appearing to weaken) position in Music.  Take a close look at the economics of music and see how you can leverage them to your advantage…At this point, MySpace’s core competency becomes arbitraging its ability to buy and sell music to its user base. The user base thinks they are getting a great deal, and the bands have a source of revenue that they are paid up front.”

myspace musicAt first glance, the iLike integration would appear to supplement the Myspace Music service. Myspace Music is not generating ad revenue as anticipated and the service is caving under massive royalty payments.  According to Michael Arrington at TechCrunch, it’s more likely that iLike will replace Myspace Music rather than supplement it:

“The last thing MySpace wants to do is put good money after bad and throw more assets into MySpace Music…iLike isn’t just about music and music recommendations. The platform they’ve built to facilitate artist-to-user publishing and user-to-user recommendations can be used for content beyond music, such as videos and games. Our guess is MySpace intends to integrate iLike’s technology into more than artist pages. So having the assets at MySpace makes sense.”

So Myspace may have waved the white flag on more than just social networking. This may be an admission that the Myspace Music model of ad-supported streaming in partnership with premium content creators/distributors is kaput and that the future lies in iLike’s model, i.e., recommedation-generating, download-to-own, with a heavy community component to it.

12009vUTC08bUTCMon, 17 Aug 2009 15:46:36 +0000 11, 2008 Posted by | Uncategorized | , , , , | Leave a comment

“Everything looks good except for our results.”

Inconvenient TruthThe American business community is experiencing quite a bit of failure these days. And with failure, comes spin. How do you spin a bankruptcy filing or devastating earnings report? A peculiar spin-cycle trend amongst corporate CEO’s (and I’m sure some small businesses) is the claim that “we’re a good company with a bad balance sheet.” Eddie Bauer CEO Neil Fiske claimed this on the eve of his bankruptcy filing and I’m sure a whole generation of middle school students is listening. Because of course, they’re good students with bad report cards.

Ok, ok, I understand what they are getting at. They have a strong brand with consumer appeal and legitimate sales growth, but just happen to be drowning under excess costs and interest payments stemming from decisions made during the salad days when everyone was in the midst of irrational exuberance. I get it, but that argument just doesn’t hold water. As Newsweek’s Daniel Gross puts it:

The balance sheet can’t be divorced from the underlying business. Any business plan has to take into account the ability of a company to service its debt, just as any household’s budget plan has to take into account the ability to stay current on the mortgage. If the enterprise is managed in such a way that it falls behind on payments, perhaps there was something wrong with the way it was managed.

If you can’t manage your debt, it most likely means you can’t manage your company. And if you can’t manage your company, then you don’t have a “good business”. You might have a business with potential to be good, but potential don’t pay the bills. A company borrows funds under the assumption that such funds will be allocated in a way that will drive revenue. If those borrowed funds aren’t allocated in a manner that builds revenue to a level which can sustain the debt payments and then some, then that’s a BP (business problem), not a CP (credit problem). However, convenient excuses will always be used generously. If not, they wouldn’t be convenient.

72009vUTC08bUTCSun, 09 Aug 2009 17:45:55 +0000 11, 2008 Posted by | Uncategorized | Leave a comment

God I Love Hollywood

Straight from Nikki Finke, a TV agent chimes in on recently departed NBC Entertainment Chairman Ben Silverman’s future career prospects.

“I have a better chance of converting to Catholicism than Ben Silverman does ever selling a TV project to Nina Tassler or Steve McPherson or Kevin Reilly.” (Remark to me today by one prominent Jewish TV agent.)

12009vUTC07bUTCMon, 27 Jul 2009 13:57:05 +0000 11, 2008 Posted by | Uncategorized | , | 1 Comment

Pro Sports Playin Game of Monopoly

Da Bears!

Little does the average sports fan know, but a great deal of what they spend their time obsessing over is an intricately constructed extension of labor and anti-trust law. With a seminal case in the history of professional sports coming up before the Supreme Court, American Needle v. NFL, it looks like Bill Swerski’s Superfans are gonna have to brush up on the Sherman Act in between rounds of Budweiser and buffalo wings. To explain, the primary issues facing professional sports leagues are labor issues (concerning franchises’ relationship to their players, i.e. labor) and anti-trust (concerning the league’s existence as a business entity and the relationship of the individual teams to each other and to the league as a whole). Anti-trust law is governed by The Sherman Anti-Trust Act under which

“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”

This legislation, along with the Clayton Anti-Trust Act, are in place to prevent monopolies, collusion, and other practices which unreasonable restrain competition and, therefore, are detrimental to the consumer. The Rule of Reason is the doctrine generally applied by courts to determine which restraints to trade are unreasonable and, therefore, illegal. In order to determine what is unreasonably restrictive in a market, you must determine what that market is.

The point of contention in terms of sports leagues is encompassed in the NFL’s “single entity” defense. The NFL contends that it’s conglomeration of 32 teams should be considered a single entity (in the form of the league) and that the market it is competing is the entire market for entertainment (i.e., its competitors are film, internet, music, etc.). That interpretation has typically been rejected by the courts, with the market considered to be professional football activities, with the 32 teams as separate entities competing against each other (would serve to figure, right?). The NFL is challenging this interpretation and trying to establish a Supreme Court ruling affriming the league as a “single entity” in its defense of a claim by a former NFL apparel licensee, American Needle. ESPN legal correspondent Lester Munson outlines the case and its implications for pro sports in general. A ruling in favor of the league will basically eviscerate any anti-trust or labor regulation of the leagues’ activities and player’s unions may become a thing of the past. Leagues will be able to set salaries, restrict free agency, and cut merchandise and media deals that would otherwise be unimaginable. In Munson’s words:

If the NFL is successful, then players, maverick owners, networks, paraphernalia manufacturers, fans and others will find themselves conducting business with what would be one of the most powerful cartels ever.

All professional sports would seemingly be exempt from anti-trust scrutiny and federal regulation. The shock and horror of exploding player salaries over the past 15 years may land you on the side of the league…at least until you go to Foot Locker and realize that DJ Mbenga jersey just went up $50 bucks. Luckily for Bill Swerski, he’s still rockin that ’85 Jim McMahon jersey with reckless abandon.

72009vUTC07bUTCSun, 19 Jul 2009 08:13:24 +0000 11, 2008 Posted by | Legalities | Leave a comment

Lakers Pull Lamar Offer

…But I’m not sweatin’ it. Basically, Lamar’s contract negotiation this year should be a slam dunk, but agents are always concerned that if a negotiation goes too easily, they look like they’re not worth their commission. There’s no one out there who can offer Lamar much more than the $9 mil a year that the Lakers have offered him and on the off chance Portland steps in and bumps it up a million or so (which they most likely won’t) the Lakers will match. Since Schwartz is playing hardball, Kupchak and Buss are daring him to go find a better offer. I don’t see it happening.

22009vUTC07bUTCTue, 14 Jul 2009 20:33:54 +0000 11, 2008 Posted by | Uncategorized | Leave a comment

The Tyranny of False Dichotomies: Judicial Version

There are a number of unfortunate false dichotomies currently operating in American politics and one is rearing its ugly head in the judicial confirmation hearing of Judge Sotomayor. By false dichotomies, I mean the cramping down of particular issues into convenient politically packaged opposites that entirely fail to account for the true complexity of the issue. The most pervasive false dichotomy of the judicial system is “strict adherence” vs. “legislating from the bench”, i.e.  judges either adhere to the rule of the established law, or under their own accord and desire, make the laws as they go along based on personal preference.

The idea that our entire legal system exists solely as a set of clearly defined, hard and fast, black letter laws is simply false. If that were the case, there would be no need for appellate courts, including the Supreme Court. Judicial responsibilities are the application of the law to the facts and particular circumstances of each case. In doing so, courts (particularly the Supreme Court) many times are dealing with cases of “first impression” for which no distinguishable law has been established or are establishing precedent as pertains to the application of law to a specific set of facts. That is why we have a judicial system, to make these tough interpretations in the most fair and honorable manner possible.

Republicans have continually harped on Sotomayor’s comment that she “hoped” that a woman of Latina background would make wiser decisions than a comparably wise judge who did not have similar experiences and challenges to overcome. Sotomayor’s most vocal critic, Senator Jeff Sessions, seems to believe that that comment (although flying in the face of a long judicial record that shows little to no evidence of bias nor radicalism) translates to discrimination: “”I will not vote for — no senator should vote for — an individual . . . who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision.”

Now I know that Sen. Sessions has to appeal to his base, most of whom are incapable of using a light dimmer as opposed to a light switch, but he should really try to make his attempts at critical overreach less transparent. In fact in the case which conservatives believe is the silver bullet proving Sotomayor’s radical views, white firefighter Frank Ricci’s discrimination claim against the city of New Haven, she in fact adhered to the previously established law. So I guess that “legislating from bench” is horrifying unless it is in favor of a conservative cause (*disclaimer: the foregoing in no way reflects on my personal views of the Ricci case, it is simply an illustration of my point that the “adherence” vs. “policy-making” dichotomy is irrelevant).

The idea that one incorporates their life experiences into their world view which in turn may influence and inform their application of the law to certain circumstances inevitably leads to discrimination, bias, and disregard of the law is completely disingenuous.  If our personal experiences did not shape and mold our world view, then all of us would think exactly alike. Sotomayor’s personal experiences inform her views just as Clarence Thomas’, Antonin Scalia’s, and Sandra Day O’Connor’s do them. The idea is not that a judge’s views and experiences be entirely neutralized, but that they inform their interpretation of the law instead of overwhelming it. Judging a job applicant’s viability based on their unyielding adherence to immutable certainties is more appropriate for math teachers. For judges, it’s simplistic and unrealistic.

22009vUTC07bUTCTue, 14 Jul 2009 13:02:34 +0000 11, 2008 Posted by | Uncategorized | , , , , | Leave a comment

Don’t Quit Your Day Job…I Guess

Former Lakers PF and #1 Overall pick, Kwame Brown, recently put his 6,000 square foot Playa del Rey house on the market for $2.9 million. That’s $400k less than he bought the place for in 2005. I’d say that I hope he plays basketball better than he plays the real estate market, but I think we all know the answer to that.

12009vUTC07bUTCMon, 13 Jul 2009 16:47:41 +0000 11, 2008 Posted by | Uncategorized | Leave a comment

Free may not be fatal

Allen & Co.’s yearly double secret probation Media Conference in the hidden hills of Sun Valley, Idaho was held last week. The confab of media barons has in the past been the playing field for paradigm shifting deals, but is of course currently more of a collective therapy session than  M & A marketplace. Primary themes of the conference naturally include the challenges posed by and opportunities presented by social/digital media (c’mon guys, in unison “monetization”, “convergence”, let the buzz words reign!).

In response to the mention of Twitter, Sony Chairman Sir Howard Stringer unleashed this zinger: “a lot of people are doing very well at making very little money. It’s not a club I’m looking to join.” While I appreciate Sir Howard displaying that obscure British humor that we are all so fond of, his quip fails to account for the fact that people who are doing very well at making very little money are doing quite well at grabbing people’s time and attention. And the more time and attention these people consume, the less time and attention people have to expend on the stuff that Sony actually does make money off of. I’m not aiming to give a definitive solution to this conundrum right here, but that doesn’t mean there is nothing to address.

Marc Cuban has always had clearly delineated views on free (thumbs down) and has been going heavy on the topic lately. Cuban’s issue with free (along with the fact that you are basically subsidizing the bandwith costs of web users) is that it leaves you disproportionately vulnerable to a competitor. Or in Cuban’s words, “At some point your Black Swan competitor will appear and they will kick your ass.” But what exactly makes companies that rely on free distribution any more or less vulnerable to substitution than fee-based services? Cuban seems to believe that as a free service’s user base grows, so does their infrastructure, expenses, and revenue obligations. So when a superior substitute comes around, they are nimbler and have less liabilities to cover and will undercut you.

Perhaps, but isn’t this true of any company? There are always advantages and disadvantages to size and scale, and there will always be threats from competitors who offer superior services and just enough differentiation to make a switch worthwhile. Free substitutes may be more dangerous because it takes less commitment to switch from one free service to another, but if a for-fee competitor can offer a better price, you’re in same position.

Most people who follow Cuban’s hypothesis point to the progression of Friendster to Myspace to Facebook and blankely assume that soon enough the next wave will come out and Facebook will be yesterday’s news. But blowing off free web services as fads is not necessarily accurate. Maybe Friendster and Myspace fell by the wayside because they didn’t perform well enough. The web has been in high growth stages for over a decade now. We don’t necessarily know the end result and what will be considered a “standard” web service (social media or otherwise). But perhaps, just like other industries during their high growth stages, we have the early entrants, the pioneers, whose services then get pared down until a satisfactory medium is established. Once that occurs, established companies don’t get replaced, they evolve and meet challenges from indirect substitutes and derivatives that offer certain aspects of their product/service (i.e., Twitter).

If so, Facebook is more likely to be the spoke of a wheel than a bygone link in the progression of the social media chain. Or to sum up, I don’t think Facebook, Google, or Youtube are going anywhere anytime soon.

72009vUTC07bUTCSun, 12 Jul 2009 20:26:50 +0000 11, 2008 Posted by | Uncategorized | Leave a comment

Follow

Get every new post delivered to your Inbox.