On February 21, 2025, the Entertainment Law Review (“ELR”) hosted its Annual Symposium, which contained three topic-specific panels and one keynote. The film-related panel, titled “Shifting to Smaller Screens: Negotiating Talent Deals in an Increasingly Digital Landscape,” comprised three attorneys: Brad Miller is a Partner at Davis Wright Tremaine LLP, and before joining his current firm worked at Warners Brothers, ABC, and a production company; Jamie Shepard is a Senior Associate at Donaldson Calif Perez LLP and currently represents documentary producers and production companies of record and works in transactional practice, following his work in litigation—he also handles fair use clearance work and other clearances, while representing filmmakers; and Ellie Heisler is a Partner at Nixon Peabody, LLP and is a Loyola Law School alum who works in entertainment, working on licensing deals primarily for Youtube stars. Heisler has a fascinating career path having worked in-house at a licensing agency where she turned “celebrity personality into brands.” Inspiring, motivating, and impressive to say the least, these lawyers changed attendees’ perspectives on the dynamic on-screen world and how important it is to ensure consistent learning and growth during an ever-changing time.
The panel conversation began differently than most. Brad Miller referenced a PowerPoint deck to explain the changes in negotiation dynamics, drawing on how profit-measuring has changed throughout the years. From basic cable to international sales to streaming platforms, the profit participation for large companies has changed. Additionally, as globalization continues to gear up, the revenue lines and cash flows have to be malleable to consumer wants and needs. Miller further emphasized that new streaming market powers like Netflix and Amazon have gone global, entering many different territories. In turn, this could impede change, since global territories come with different laws that affect business strategy. Nonetheless, video streaming services have clearly found their way. Heisler continued to discuss how this shift in profit participation has affected her clients, sharing “look at the deal and what it is trying to accomplish to find the money maker.” For her practice, Youtube stars make a lot of money on ad revenues, which is not available in screenplays. For Shepard, the profit participation for his documentary clients is now risky since there is no back-end negotiation and there is difficulty from independent financing. This results in much more risk and much less profit.
Accordingly, legal counsel has to be strategic: many of their clients own their own intellectual property and use their own personal savings for financing. In Miller’s business, the key is leverage since it is fairly rational that the owners keep their rights. It does, however, get complicated when producer companies come into the mix. Heisler echoed Miller in maintaining leverage for her Youtube star clients, especially since many stars have transitioned to Netflix. For Shepard, leverage is also key in documentary work, yet his analysis is reached differently since documentary producers often find themselves with less financing. Therefore, a name can create greater leverage.
Nevertheless, a great challenge they all face is the upshot in AI, specifically when it comes to the unknown consequences that may affect their clients’ copyright protection. With little legislation and seemingly eerie effects on the name, image, and likeness, all three echoed a limited and strategic use of AI in client work and projects. While helpful in some parts of the industry, like in research as Shepard alluded, it is imperative to conduct thorough and productive research to ensure accuracy. Otherwise, heavy litigation will follow. Miller also discussed the uncertainty of what AI will produce, even when all the data is input with specific instructions. Shepard did, however, reassure the audience when asked about other trends in the entertainment industry, noting the positive fair use decisions coming out of AI.
To end the panel, the audience was informed of other trends in the industry. For Miller, international law has become an issue, and finding ways to support local and international law makes his work more complicated. Heisler, on the other hand, warned the audience to look for a potential incoming trend of shared ownership as more consumers are getting tired of the “you pay, you own” model. Companies and celebrities are getting creative in their offering of shared-rights ownership. Yet even with the dynamic film industry, Miller, Shepherd, and Heisler left the audience with much to think about and much to learn, especially since student attendees are just beginning their entertainment careers.