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In the first part of a series of interviews with international soccer agent, Erkut Sögüt, we sat down to learn more about his background, his work, and how he sees the world of soccer evolving in the near future. Erkut, who has his PhD in sports law from Universität Osnabrück, is the director of his own agency (“Family and Football”), through which he represents many star Premier League players, including Arsenal midfielder Mesut Özil, Manchester City midfielder Ilkay Gundogan, Arsenal defender Shkodran Mustafi, and others. Whilst acting as the agent of Özil, he has dealt with all matters between the player and his club, including contract negotiations, commercial deals with Adidas, Mercedes-Benz and Beats, and the founding of the Özil Charitable Foundation. Dr. Sögüt has lectured at UCFB and FBA programmes as well as at Harvard University, and is fluent in German, Turkish, Spanish, and English.

The interview was conducted by Daniel Alford ’20 (Executive Editor, Online Sports Content) and Madison Martin ’21 (Online Content Chair, Sports), from the Harvard Journal of Sports and Entertainment Law. It has been edited for clarity.

Daniel Alford, Journal on Sports & Entertainment Law (JSEL): Hi Erkut, nice to meet you. Could you speak a bit about your background and how you got to where you are, especially in the sports industry and with Mesut?

Erkut Sogut (ES): Thanks, Dan! So, my story is I grew up in Hannover, Germany to Turkish parents who both had an amazing work ethic and wanted myself and siblings to achieve as much as we could. I was pushed to become a doctor or lawyer by my father, and eventually pursued a career in sports law. I’m currently based in London, and act as the agent and business partner of footballers (soccer players) such as Mesut Ozil. Besides football, I’m also a registered basketball and hockey agent too. It’s been an amazing journey thus far and feel that it is just the start!

The answer to this may actually surprise you, as I initially came into contact with Mesut through teaching! At the time, I was a lecturer (mainly in Germany and Turkey), teaching the regulations for being an agent. Lots of agents are actually the family members of players and many came to my seminars. Mesut’s father got in touch with me about assisting him and his team in Germany, and from there I became the lawyer of Mesut’s marketing company. As time progressed, I got closer with Mesut and it eventually led me to become his full-time agent! It’s amazing that it has now gone full circle! Having founded Football Agent Education a couple of years ago, I’ve been fortunate enough to go to some amazing universities across the world and teach the next generation of agents, as well as detail all of my experiences in my book!

JSEL: That’s so interesting to hear. Do you represent other athletes and how has that been?

ES: Yes – so the agency we founded is called Family & Football. Besides Mesut, we represent other English Premier League players including Mesut’s teammate, Skhodran Mustafi. In addition, we have Kieran Gibbs and Lucas Perez on our roster. Our mentality has always been simple: we’d rather have only a few high-profile clients and do everything we can to represent them as best as possible, on and off the pitch. That’s how we operate. Right now, we’re also starting to work with some really promising youth players in Europe, who we believe can reach a really top level too.

JSEL: And could you take us through your day-to-day? What is a day in the life of Erkut Sogut like?

ES: Every day is different, and that’s what makes this job so exciting. There’s no such thing as a typical day, but I’ve tried to make a routine for myself as much as possible. I wake up at about 5:00 and either start by reading contracts, sending and responding to messages, or anything else that needs to be done. This time of the morning is great, as few people are awake, and I feel I can really concentrate. As soon as I do arrive in the office, I normally have a meeting with my team to update each other on the latest, and make sure we keep on top of all the projects that we’re currently running. From there, the day may entail a number of different things. Whether it be sitting down with a club, a sponsor, other agents, visiting a client’s house, or flying abroad for meetings, anything can happen!

Even on the weekend the job doesn’t stop – in fact it’s sometimes busier! At Mesut’s box in the Emirates we have fifteen seats, and we often host important guests from abroad. Part of what I do is looking after them – meeting them in the days leading up to and after the game, as well as entertaining them during the match. Usually after the match ends I go downstairs to speak with Mesut. Every game, we have at least five seats reserved in our box for kids from local London charities, and we also of course take them after the game to meet Mesut. For me this is the most fulfilling thing I do.

JSEL: Wow, sounds very busy. What is, then, the most rewarding aspect of your job?

ES: As I mentioned before, the charity work we do with Mesut is incredibly rewarding for both of us. Not only is it rewarding, but I see it as one of the most important things I do. Aside from this, I’m fortunate to work with a great group of players, and as such have had lots of memories. In January 2018 we secured the biggest Premier League contract in history for Mesut and was obviously something really special and a moment to be proud of. Negotiating transfers and contracts always have their thrills – it’s hard work yet gives you this incredibly satisfying buzz. But at the same time, I still have this passion for teaching and education. As I said before, I deliver football agent seminars in London and guest-lectures globally, and the fact that people come from all over the world to see me speak is a truly irreplaceable feeling. Spreading knowledge, experience and advice is a true privilege for me. Likewise, when I see people have ordered our book from Australia, or Asia, or the US, it’s special.

JSEL: It is great to see such a rewarding return on your hard work. I must then ask, what keeps you up at night?

ES:  What keeps me up at night? My son Emre! He’s nearly two years old, and incredibly full of energy! It’s funny because in the garden I even got artificial grass and a goal, so I’m training my son! I’m trying hard to make him a left-footed player, but he still shoots with his right.

JSEL: Perhaps the next Messi? Speaking of which, how do you see the industry in the next ten years developing?

ES: The issue with football agency lies in its registration process. The rules to become an official agent are so relaxed and the procedure is extremely simple. Of course, initially this may seem like a good thing – it means that people can be an agent tomorrow if they wanted to! However, this is the main problem. You have people that are unqualified and don’t know how the industry works suddenly being able to represent a player. A lot of the time as an agent you can be dealing with players that are in their early twenties, or even teenagers. If you have people going to these young players saying that they are capable of representing them, but in truth only became a registered agent the day before, then the problems are obvious to see. Suddenly, lots of players are poorly represented by people with no experience or who operate immorally. In very few professions is this wide-scale lack of regulation present. I’m actually part of FIFA’s football agent commission, and one of the things we’re trying to tackle is exactly this. Whether it be the re-introduction of an exam for agents, or just more rigorous rules, it’s obvious something has to be done.

JSEL: That makes sense. How about yourself and your future?

ES: Actually, I see myself in the US! Not only has it always been a dream to move to America, but given how quickly the game is growing here it makes business sense for me too! The structure and the team we have created in London is really fantastic. We are like a family. Replicating this same setup in America is something that I really want to do, and perhaps even venture into other sports such as basketball. Also, I definitely feel that I want to do more on the educational side. As I said, it’s my passion, and teaching in perhaps more of a full-time role is something that is certainly a potential priority.

JSEL: That would be truly wonderful. We see the game growing exponentially here. Do you see any room for growth in the EPL here stateside? How about MLS?

ES: Obviously, it is tricky with the time difference (especially on the West Coast) but given how the English Premier League is going from strength to strength I think that viewership of soccer will only rise as the sport in general grows in North America. There’s a huge amount of talent right now in England, and with six of the best teams in the world playing in the Premiership, it’s at its height of entertainment.

I believe that the MLS has incredible potential. US soccer is growing incredibly quickly, and events like the 2026 World Cup will only boost the league. Like all American sports, the MLS is run really well, and all the regulations serve to help and grow the clubs. In the past the US has been seen as an almost retirement league for top players, but I feel that the MLS is becoming much more than this. It’s producing amazing young talent of its own, and I am confident that it has the potential of becoming a top-tier league in the coming years

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The relationship between the Washington Nationals and Baltimore Orioles has been fraught ever since baseball returned to DC in 2005. Because the Nationals (formerly the Montreal Expos) would be tapping into a major chunk of the Orioles’ formerly exclusive television market, an unwieldly and tenuous deal was brokered: The Mid-Atlantic Sports Network (MASN). Since its creation, it has been the cause of much litigation.

The Orioles were given ninety percent ownership of MASN, and the Nationals the remaining ten, despite the fact that the media outlet would broadcast both teams’ games. Under the agreement, the Nationals would gain an additional percentage point of ownership each season until 2032, when they would be capped at a lowly 33% interest .

Also as part of the deal, MASN pays the same amount in rights fees to the Orioles and Nationals each season. On top of that, MASN distributes to the teams shares of the broadcast profits, most of which goes to the Orioles as MASN’s majority owners.

Because the Nationals get so little in terms of MASN profits, the team has been fighting for years for greater rights fees. In 2012, the dispute went before baseball’s Revenue Sharing Definitions Committee (RSDC), made up of representatives from the Pittsburgh Pirates, Tampa Bay Rays, and New York Mets. The three-person panel ruled that MASN owed the Nationals $298 million for the team’s 2012-16 television rights. The Orioles sued, and the New York Supreme Court Appellate Division sent the decision back to a reconstituted RSDC, this time made up of representatives from the Milwaukee Brewers, Seattle Mariners, and Toronto Blue Jays.

This reconstituted panel heard the case this past November and released its findings on Tuesday. An attorney from the Nationals immediately filed a motion in New York Supreme Court in Manhattan asking that the RSDC decision be confirmed and submitted under seal. Only time will tell which details, if any, are released to the public.

Thomas “Buddy” Bardenwerper is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: Royals at Orioles 5/8/18, Keith Allison, CC BY-SA 2.0.

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Last week, a Los Angeles Superior Court judge denied a motion for summary judgement submitted by Stranger Things creators, Matt and Ross Duffer, in a breach of implied contract suit filed by independent filmmaker Charlie Kessler. Kessler claims the Duffers stole the idea for their show after he pitched his own project to the brothers at the 2014 Tribeca Film Festival.

With sky-high ratings, an accompanying book deal, and a PlayStation VR game in the works, Stranger Things has made its mark as the single most popular streaming show of all time. Based in small-town 80’s America, the series (originally titled The Montauk Experiments) focuses on the disappearance of a young boy and the dark forces that unfurl as his family and friends search for answers. What starts as a simple missing persons case develops into a supernatural mystery that includes top-secret government experiments, children with extraordinary psychic abilities, and a monster from another dimension. Though viewers have embraced the innovative premise of the Duffer Brothers’ creation, filmmaker Charlie Kessler alleges that the idea was taken directly from his short film, Montauk, as well as his accompanying feature-film screenplay, The Montauk Project. Like the Duffers’ story, Kessler’s work centers on the search for a missing boy, a battle against paranormal forces, and the discovery of an abandoned military base that conducts secret experiments on children.

It may seem odd that Kessler chose to bring an implied-contract claim, rather than a copyright infringement complaint. However, under federal copyright law, Kessler has no case. Ideas – even those that are finely detailed and significantly developed – cannot be copyrighted. This means that a film idea, and “any of the characters portrayed [with]in it” is largely free for the taking, regardless of who thought of it first. Under the contract claim, however, Kessler can (and does) allege that there was a “mutual [understanding]…that [the Duffers] would not disclose, use, and/or exploit” Kessler’s ideas. The Duffers aim to show that they independently created Stranger Things prior to meeting Kessler, a complete defense against the filmmaker’s claims in the state of California. (See Teich v. General Mills, 170 Cal.App.2nd 791, 799 (1959)).

While the Duffers’ motion for summary judgement cites emails from 2010, three years before Kessler’s alleged pitch, that detail their plans for a supernatural film project, Judge Michael L. stated that the brothers provided insufficient “verifying evidence of the originality of their idea,” raising several issues surrounding the ownership of original work. The emails directly reference central elements of Stranger Things, such as a protagonist who is “[a]bducted with a group of other psychically gifted…children,” a “[s]ecret underground research facility,” and the “opening up another dimension” that leads to a “creature…escap[ing].” Considering the specificity of these plot details, one must wonder: what doesconstitute sufficient, unrebutted evidence of the originality of a creative idea?

The answer to this question could have a serious impact on Hollywood’s creative circles and the manner in which artists develop and pitch their ideas. With the possibility of an implied contract breach stemming from standard mingling lurking on the horizon, industry movers may become more hesitant to hear casual pitches from relative unknowns. This, of course, could make it increasingly difficult for independent artists to break into the Hollywood sphere and secure financing for their projects. On the flipside, the protections Kessler seeks to establish may give emerging writers and directors some comfort that, should they manage to pitch their next big project to potential collaborators, sponsors, or producers, their work will be safe from copycats.

The trial, now with a May 7th start date, is set not only to provide insights into the development of Netflix’s runaway series, but may also serve as an indicator for how the entertainment industry as a whole could evolve to regulate the free exchange of creative ideas.

Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).

Image: LowtrucksStranger Things logoCC BY-SA 4.0

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Judge Edgardo Ramos for the Southern District of New York ruled that that actions of University of Arizona men’s basketball coach, Sean Miller, and Louisiana State University men’s basketball coach, Will Wade, are irrelevant to the upcoming college basketball bribery trial and will thus not have to testify. An audio from a wiretap of Wade allegedly discussing an offer to a recruit, believed to be LSU player Javonte Smart, will also not be permitted during the trial.

The coaches were subpoenaed for a trial involving sports agent Christian Dawkins and Adidas representative Merl Code over federal bribery and conspiracy charges. Federal prosecutors say Dawkins and Code paid college assistant coaches to direct their players towards them for professional representation.

Defense attorneys argued that testimony from Miller and Wade, in addition to audio evidence and recovered text messages, was necessary to show the state of mind Dawkins was operating under when he was accused of bribing assistant coaches. In regards to Miller, they argued that because of his alleged willingness to pay his players, he has more influence over players than his assistants.

The prosecutors argued, though, that a lot of people may be influencing players. While Judge Ramos agreed to grant the prosecutors’ motion to keep both coaches from testifying, he said the motions “are subject to being revisited depending on how the evidence at the trial plays out.”

Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: Jeff Turner, USAirwaysCenter-2008NCAAWestRegional, CC BY 2.0

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As of April 15th, the European Union officially approved a controversial new Copyright Directive that has left members of the art and tech worlds fiercely divided. The Directive, which was narrowly approved by the European Parliament in a 348 to 274 vote last month, has now been given the green light by 19 out of the 28 EU member states, which leaves EU members with 24 months to comply with the new measure.

Under fire is Article 17 of the Directive (previously referred to as Article 13), which renders platforms like YouTube, Facebook, and Instagram liable for the misuse of any copyrighted material that users upload to their sites. As liability shifts from individual users to the tech giants themselves, platforms will need to either buy licenses to the copyrighted content, remove the content entirely, or prevent copyrighted material from being posted in the first place. Prominent artists like Paul McCartney and Björn Ulvaeus are in support of the Directive, asserting that YouTube and its peers are unfairly profiting off of creative labor it has not paid for, feeding a cycle of IP theft. To put this complaint into context, a user may currently upload a video with an unauthorized background song. users flock to the video, platforms profit from the increased traffic generated by the appropriated content. while the artist, who bears the onus of reporting the infringement, receives nothing.

Though the Directive may seem like a much-needed response to artistic exploitation, platform spokespersons, emerging artists, and notable tech figures like Jimmy Wales and Tim Berners-Lee are more concerned about its chilling effect on creative expression. This concern is not unfounded. The Directive will almost inevitably cause platforms to utilize automatic filters to police new uploads—filters that are notoriously ill-equipped to discern between fair use and infringing content (take YouTube’s $100 million dollar Content ID system as an example). This means that derivative art forms such as memes, parodies, and music mixes could be under threat—a fear which is particularly relevant in the internet age, where creative appropriation is not only commonplace, but celebrated.

In addition to the censorship issue, the Directive may further aggravate the divide between prominent artists and those struggling to make a name for themselves in the industry. As YouTube CEO Susan Wojcicki points out, platforms may not have the financial and technological resources available to comply with the Directive’s provisions; consequently, they may end up limiting content providers to a select number of large, vetted companies because smaller, individual providers are too difficult to monitor effectively. This would only further the already powerful monopoly that brand-name artists have over the creative industry, making it even more difficult for rising artists to gain exposure for their work.

Not only does the Directive spell out issues for artists, it also means trouble for the platform managers. Because the EU requires each nation adopting the Directive to formulate its own unique interpretation of the measure’s language—which critics call “maddeningly vague” — tech companies may have to devote resources to develop customized mechanisms and procedures to fit numerous regulatory regimes. As “#SaveYourInternet” protests carry on in Berlin, Poland, Austria, and Portugal, questions remain: who is the biggest loser here, the artists or the platforms, and is the Directive championing creativity, or destroying it?

Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).

Image: ClkerFreeVectorImages, Copyright-40632, CC0 1.0

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Baseball is the national pastime of both the United States and Cuba, but players from the Caribbean nation who dream of playing in the Major Leagues have only two options: defect during international tournaments or embark on maritime journeys at the mercy of human smugglers. Both options are extremely dangerous and preclude any chance of return to the players’ homeland.

Toward the end of the Obama presidency, however, an agreement was reached that would have removed the need for players to attempt smuggler-aided escapes from Cuba to fulfill their goal of playing in the U.S. Under the agreement, players would have been permitted to “to retain their Cuban citizenship, travel to the U.S. with their families and return to their homeland in the off-season.” In exchange, MLB clubs that signed Cuban players would have paid up to 25% of the signing bonus to the Cuban Baseball Federation.

Cuba had released the list of the first group of 34 MLB-eligible players.

The U.S. embargo against Cuba makes it illegal for Cuba to enter into financial arrangements with a U.S. entity unless the arrangement is licensed by the Treasury Department. But the Obama administration had determined, with support from MLB, that the Federation was “itself not part of the Cuban government,” allowing MLB to legally negotiate with the Federation.

In a major blow to MLB, the Treasury Department recently backed away from the previous administration’s position regarding the Federation and rescinded the landmark agreement. Thus, MLB and its member clubs would be violating the embargo by paying commissions to the Federation. According to National Security Council spokesman Garrett Marquis, the Obama-sponsored agreement would have “institutionalize[d] a system by which a Cuban government entity garnishes the wages of hard-working athletes who simply seek to live and compete in a free society.”

The last-minute revocation seems to be directly related to Cuba’s involvement in Venezuela. According to National Security Advisor John Bolton, “America’s national pastime should not enable the Cuban regime’s support for Maduro in Venezuela.”

In response to the sudden turn of events, MLB Vice President Michael Teevan stated, “We stand by the goal of the agreement, which is to end the human trafficking of baseball players from Cuba.”

Thomas “Buddy” Bardenwerper and Andrew Distell are Entertainment and Sports Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).

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Property owners suing Niantic, the developer of augmented reality gaming sensation Pokémon Go, for trespass and nuisance, have likely settled after years of litigation. They submitted a proposed settlement to the US District Court for the Northern District of California. The class action, a consolidation of numerous claims filed against Niantic in 2016, alleged that the developer induced Pokémon Go gamers to trespass onto homeowners’ properties. The class action settlement would force Niantic to implement stricter internal policies regarding the virtual placement of game characters on private property.

The concept of Pokémon Go is simple—players are able to capture, train, and battle virtual creatures that are “mapped” onto real-world locations, enabling every 90’s kid to live out their dream as a real-life Pokémon trainer. But by fusing the virtual and physical worlds, the game’s designer, Niantic, has raised a slew of legal issues surrounding privacy, intellectual property, and, in this case, trespass.

In one claim, a homeowner, Boon Sheridan, discovered that his house had been designated a Pokémon “gym,” which serves as a landmark where Pokémon players can gather to battle head-to-head with their rivals. As a result, activity around his quiet suburban home spiked exponentially, with Pokémon trainers battling outside his door at all hours of the day and night. One player proudly asserted his status as the gym’s owner, despite the fact that the virtual haunt is located directly on Sheridan’s property.

This raises several unresolved issues surrounding property ownership and trespass. Who owns a virtual space? Is it owned by the game designer, the player who establishes in-game dominion, or the owner of the physical location onto which the virtual space has been mapped? Who should be held responsible for the numerous trespasses that have been committed since the launch of Pokémon Go? Though Niantic has spurred players to break the law in pursuit of Pikachu, the design team itself has never stepped foot onto private property.

While homeowners disparage Pokémon Go for the increased foot traffic it has created, stores have jumped at the opportunity to boost their number of visitors, and brands like Starbucks and McDonalds have partnered with Niantic to get their locations tagged as Poké gyms. Pokémon Go has since driven over 500 million visitors to sponsored locations, with companies paying up to 50 cents per visitor attracted. As the financial stakes surrounding virtual spaces continue to grow, notions of property ownership within the AR world become increasingly significant, and perhaps one day will be as hotly disputed as the traditional property rights at issue today.

Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).

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A group of retired NFL players and Electronic Arts Inc. (EA) settled a lawsuit this past week regarding the use of the players’ likeness in the Madden football games in the United States District Court for the Northern District of California.

While EA licensed current players’ image, the “historic teams” rosters in the game featured retired players whose images EA had not been authorized to use. While the game did not include the retired players’ names, the players in the game possessed other attributes that could serve as identifying characteristics.

The judge in the case rejected class certification for the roughly 6,000 former NFL players in the case. Class liability could not be found because of the individuality of each player’s identity.

The suit was initially brought in 2010. EA moved to dismiss the case, arguing that it quieted speech and that its use of the players’ likenesses was transformative, incidental and in the public interest. The motion to dismiss was rejected and EA appealed to the Ninth Circuit. The court analogized this case to its ruling in Keller v. Electronic Arts Inc. (holding that EA’s use of players’ likeness in another of its video games, NCAA Football, was not transformative) and found these two cases to be indistinguishable. The Ninth Circuit, therefore, affirmed the lower court’s rejection of EA’s motion to dismiss.

After being denied cert in the Supreme Court, a trial back in California was set for September of this year until the parties reached a deal.

Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: bloque interactivo, NFL Hall of Fame quarterback Joe Montana, left, plays the XBox 360 “EA Sports Madden 13” video game with EA Sports Executive Vice President, Andrew Wilson at the Microsoft Xbox 360 E3 2012 Media Briefing in Los Angeles Monday, June 4, 2012 (cropped), CC BY-SA 2.0.

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The Student-Athlete Equity Act was introduced by U.S. Representative Marker Walker (R-NC) and co-sponsored by U.S. Representative Cedric Richmond (D-La). The bill is designed to prevent qualified amateur sports organizations from restricting student-athletes from using or being compensated for use of their name, image, and likeness. The bill’s sponsors purport to give equitable free-market opportunities to collegiate student-athletes.

Specifically, the bill looks to add to the language of Section 501(j)(2) of the Internal Revenue Code of 1986. This section provides the definition for an amateur sports organization that qualifies for tax exemptions. The bill would amend the end of the definition as follows – ‘‘Such term does not include an organization that substantially restricts a student athlete from using, or being reasonably compensated for the third party use of, the name, image, or likeness of such student athlete.’’

The bill is directed towards current NCAA rules, under which student athletes cannot sign endorsement deals or be paid by third parties, and doing so threatens their NCAA eligibility. Universities, meanwhile, are able to profit from use of student-athletes’ names and likenesses. Walker had previously called on the NCAA to change its rules regarding student-athlete compensation for likeness.

Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

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Ariana Grande’s “Sweetener” World Tour is not so sweet for the press photographers tasked with capturing her star power on stage. Major media outlets including The New York Times, Associated Press, and the Los Angeles Times have joined forces with the National Press Photographers Association to protest the pop star’s markedly restrictive photo policies. According to the contract Grande currently has professional photographers sign, “all rights (including all copyrights) in and to the photographers shall be owned by [Grande’s touring company] as a ‘work made for hire.’”

What does this mean, and how does it disrupt the typical rights of photographers? Under U.S. copyright law, a photographer automatically owns the copyright to their image at the moment of the image’s creation. The exception to this rule is when an employment contract includes an explicit “work for hire” clause, which specifies that the photographer’s work has been commissioned exclusively for the employer’s use (such as a staff photographer working for a news publication). Media outlets argue that by forcing press photographers to deem their images as “works made for hire,” Grande’s team has essentially transformed them into unpaid employees. Grande can use their images for marketing, advertising, and social media purposes, without the photographers ever seeing a dime. And to make matters worse, the photographers can’t even showcase their work without written consent from Grande.

Though media outlets argue that Grande’s photo policies are extreme, they are not without precedent. Taylor Swift received similar criticism during her 1989 tour. Though she did not explicitly claim the photographers’ image copyrights, she took away any power the copyright holder may have held, requiring photographers to abide by strict usage rules and to let her use their work for any purpose in perpetuity. Some photographers have pointed out Swift’s hypocrisy in standing up for musician’s rights on Spotify, yet denying photographers the same opportunity to get paid for their work. Swift has since relaxed some of her strictest policies, such as one that authorized the destruction of images–and even equipment–of photographers who violated the terms of her contract.

However, even if photographers are not forced to sign a “work made for hire” contract, their image rights may not be so black and white. A photographer may own the copyright to a photograph, but they do not own the rights to use a subject’s likeness for commercial use. This means that a freelance photographer, unburdened by a contract, can snap a photo of a singer and license that image for editorial purposes (by asserting that the image is “newsworthy” and thus shielded by the First Amendment), but they cannot use the image to promote a product, service, or idea.

Despite these restrictions, the rise of social media made it increasingly difficult for celebrities like Grande to control the use of their likeness and personal brand online–hence such reactive image policies. While Ariana Grande claims to be responding to “greedy” photographers who sell her images for use on unauthorized merchandise, artists like Beyoncé fear being “quickly memed” from photos they deem unflattering.

Though the digital age has certainly increased such problems for celebrities, it has also placed unfortunate pressures on professional photographers. As photography becomes more accessible through mobile phones, free online galleries, and affordable equipment, “super fan” photographers are on the rise–and they’re willing to give away their images for free, leaving professional photographers with very little leverage over exploitative image policies from celebrities like Grande.

Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).

Image: Berisik Radio.com, Ariana Grande – The Honeymoon Tour Live Jakarta (5), CC0 1.0

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