ENTERTAINMENT LAW

Syllabus
Prof. Eugenio H. Villareal
Ateneo de Manila Law School
1st Semester, SY 2020 -2021

Course Objectives and Methodology

The course approaches the subject fields of law basically through

industrial “immersion.” The natural scheme of things would be for
the law student to learn and master legal provisions and jurisprudence
and then apply these to clients connected with said fields. But then,
the fields of media and entertainment have so much a life of their own
that a “band-aid” type of legal approach would not do justice. The
course thus leads the law student into such worlds, gets the law
student immersed and allows him or her to learn, appreciate and
understand the relevant law and jurisprudence from within.

The law student thus steps into the shoes of every fan, actor, actress,
director, writer, producer, supplier, exhibitor, booker… and so on.
And from there, he or she gets to discover how she can be an effective
advocate not only for individual or corporate clients, but also for the
industries as a whole.

The course thus aims for the student to:

• be immersed in the subject industries and appreciate their

distinct culture, policies, practices, and nuances
• discover how the law has developed and continues to develop
as a means of social order and economics in the said industries
• have practical knowledge of the all relevant and applicable
law, jurisprudence, rules, regulations, and customs in the
subject industries
• acquire the basics of industry-friendly service to clients as well
as develop foundation for “out-of-the-box” advocacy.
Practice-oriented immersion complemented by theoretical input
constitute the methodology for this course. Expected output would
include simulated delivery of clientele requirements based on dig-
deep legal research and analyses augmented by “real-world”
experience.

Constitutional Foundation and Considerations (1987 Phil.

Constitution)

Section 11, Article II, Dignity of the Human Person

Section 12, Article II, Protecting the Family as a Basic Autonomous

Social Institution; State Support for the Natural and Primary Right of
Parents in Rearing the Youth for Civil Efficiency and Moral Character;
also Article XV, The Family

Section 13, Article II, Well-Being of the Youth (including moral,

intellectual, and spiritual aspects)

Section 14, Article II, in relation to Section 14, Article XIII, Respect for
and Protection to Women

Section 15, Article II, in relation to Sections 11 to 13, inclusive, Article

XIII, Right to Health

Section 4, Article III, Freedom of Speech and of Expression

Section 7, Article III, Right to Information

Section 10, Article XVI, in relation to Section 24, Article II, Policy
Environment for Communications as Tool for Nation-Building

Sections 14 to 18, Arts and Culture

Section 11, Article XVI, Media Ownership, Citizenship Requirement,

vs. Combinations in Restraint of Trade and Unfair Competition; also
Section 19, Article XII, Regulation or Prohibition of Monopolies for
Public Interest

Sections 2 and 3, Article II, Right to be Secure and to Privacy

Section 5, Article II, Free Exercise and Enjoyment of Religious

Profession and Worship

Section 4, in relation to Section 1, par. (1), Article IX (C), COMELEC

regulation of media.

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Knowing the Industries

The Film Industry

Pitch and Pre-Production

Production
Post-Production
Marketing and Distribution
Film Types and Genres
Players and Stakeholders (Directors, Producers, Artists, etc.)
Credits, Billings, and Compensation
“Pay or Play” clauses
The “Adam Smithee (or “Smithy”) Rule
The Studio System
Philippine Cinema (The Beginnings; The Golden Age – with the Big 3:
Sampaguita, LVN, and Premiere; Star-based Productions – FPJ, RVQ,
JE, and Imus; The “Bomba” Era; “Bold” and Experimental Cinema; the
80s with Regal and Viva; the Star Cinema period; and the “re-
emergence” of Independent Cinema)
Development of Independent Cinema; MTRCB Memorandum
Circular No. 07-2011
Film Councils, Commissions, and Associations
Globalized Entertainment, International Co-Productions
Film Tourism (applies to Television also)
Country Film Quotas – e.g. Argentina, Austria, Brazil, China, and
South Korea)
Film Piracy

RA 9167, Film Development Council of the Philippines (FDCP) and

Cinema Evaluation Board (CEB)
Philippine Film Export Service Office (PFESO)
Film Academy of the Philippines
G.R. Nos. 20375 and 204418, FDCP v. Colon Heritage Realty
Corporation, et al./FDCP v. City of Cebu and SM Prime Holdings, Inc.,
16 June 2015.

Entertainment Video
RA 9239, Optical Media Act of 2003, creating the Optical Media Board
(former Videogram Regulatory Board)
Piracy Issues (RA 10088, Anti-Camcording Act; cf. relevant provisions
of RA 8293, Intellectual Property Code of the Philippines)

The Television Industry

Pitch, Pre-Production, Production, Post-Production

Seasons, Series, and Mini-Series (including the Telenovela
phenomenon)
Compensation Arrangements
Block-timing, Line Production, and Co-Production

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Television Advertising Spots; Sponsorships
Philippine Television (The Beginnings; Pre-Martial Law period;
Martial Law era; Kapisanan ng Mga Broadkaster ng Pilipinas (KBP);
post-EDSA Revolution period – how the television networks
“influence” the film industry)
Broadcast Code of the Philippines, KBP (2007)
Kinds of Television Programs in General
News Programs
Public Affairs (G.R. No. 155282, MTRCB v. ABS-CBN, 17 January 2005
– “Inside Story” case; MTRCB Memorandum Circular No. 07-05 dated
17 May 2005)

Reality Television (talent shows and other challenges)

Game and Quiz Shows

Cable and Satellite Television

Executive Order No. 205 dated 30 June 1987 (Regulating the Operation
of Cable Antenna Television [CATV] Systems in the Philippines and
for Other Purposes)
Executive Order No. 436 dated 09 September 1997 (Prescribing Policy
Guidelines to Govern the Operations of Cable Television in the
Philippines)
G.R. No. 176694, GMA Network, Inc. v. Central CATV, Inc., 18 July
2014
Clean Feed Dynamics

Digital Terrestrial Television (DTT) Broadcast Service; National

Telecommunications Commission (NTC) Memorandum Circular No.
07-12-2014 (the shift from analog to digital TV in the Philippines)
VOD (Catch-up, Subscription, and Transactional)/OTT

Closed Captioning Law RA 10905 and MTRCB Memorandum Circular

No. 04-2016 dated 08 December 2016

Advertising

Ads Standards Council (ASC) (KBP)

ASC Code of Ethics and Manual of Procedures
Outdoor Advertising
TV Shopping
Product Placement/Branded Entertainment

Radio Industry

KBP
Major Players and the Evolution of the “Teleradyo” Model

The Music Industry

The Evolution of a Musical Piece

Composers, Performers, Producers and Publishers

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Recording Companies
Tour Promoters
Performance Rights
The “Music Video” and the developing “Digital Economy” pertaining
to Music
“Sharing” and Piracy Issues; Downloading Tracks (Spotify, etc.)

Collecting Societies

Collective Management Organizations (CMOs) – FILSCAP,

Soundsright, PRSP
Section 183, Intellectual Property Code of the Phils. (RA 8293), as
amended by Section 10, RA 10372
IPOPHL Office Order No. 13-173, Series of 2013

Video Game Industry

Varieties
Pre-Production, Production, and Post-Production
Desirability of Age-Appropriateness-based Classification

New Media

RA 8792 Electronic Commerce Act and IRR (see the definition of

“convergence”)
Internet/Over-The-Top (OTT) Services (Netflix, iWantTV, iFlix etc.)
Entertainment YouTube Channels/Movie and Cable Cross-Over –
Regal Entertainment/Kapamilya Channel
NTC Memorandum Circular No. 07-12-2014, supra, on One-Seg
facility

Media as Statutory “Privilege”

Legislative Franchise Requirement

National Telecommunications Commission (NTC): Certificate of
Public Convenience and Necessity
ACWS v. NTC, G.R. No. 144109, 17 February 2003 (cf. RCPI v. NTC,
G.R. No. L-68729, 29 May 1987)
Executive Order No. 546 (23 July 1979); Act No. 3846, as amended
Pervasive Presence of Broadcast Media – Federal Communications
Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Eastern
Broadcast Corporation v. Dans, Jr., 137 SCRA 628
Executive Order No. 205 dated 30 June 1987 (Regulating the Operation
of Cable Antenna Television [CATV] Systems in the Philippines and
for Other Purposes), supra.

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Content Regulation

Regina v. Hicklin, L.R. 3 Q.B. 360 (1968)

Roth v. United States, 354 U.S. 476 (1957)
Miller v. California, 413 U.S. 15 (1973)
Pope v. Illinois, 481 U.S. 497 (1987)
Young v. Motion Picture Association of America, 299 F.2d 119
Freedman v. Maryland, 380 U.S. 51 (1965)
Time Film Corp. v. City of Chicago, 365 U.S. 43 (1961)

Motion Picture Association of America (MPAA) System and Ratings

MPAA Classification and Ratings Administration (CARA) – using
“Agreement to Submit Motion Picture for Rating”
MPAA Advertising Administration
(US) TV Parental Guidelines Monitoring Board
Miramax v. MPAA, 580 N.Y.S. 2d 730 (1990)
Borger by Borger v. Bisciglia, 888 F. Supp. 97 (E.D. Wis. 1995) - using
MPAA ratings as guide in school district (“Schindler’s List” case)
Yakubowicz v. Paramount Pictures, 536 N.E. 2d 1067 (Mass. S. Jud. Ct.
1987) – alleged effect of Film Violence
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000) –
on sexually-oriented cable programming, scrambling requirement,
“signal bleed” phenomenon
Graves v. Warner Bros., 253 Mich. App. 486, 656 N.W. 2d 195 (Mich.
App. 2002) – television violence on “The Jenny Jones Show”

Movie and Television Review and Classification Board (MTRCB),

Presidential Decree No. 1986 (Norms on Age-Appropriate
Programming, Audience-Sensitivity, Regard for “Vulnerable Sectors,
and Self-Regulation)
MTRCB Memorandum Circular Nos. 08-2012 and 10-2012, Revised
Film Ratings and Advisory
MTRCB Memorandum Circular No. 05-2011, Revised Classification
Ratings for Television
MTRCB Memorandum Circular 04-2014, Revised Rules for
Classification of Trailers and Publicity Materials
Supplemental Guidelines for Implementation of MTRCB MC 04-2014,
dated 18 August 2014 (for Hard-Locked Trailers)
MTRCB Memorandum Circular No. 12-2011, Guidelines for SPG
(Strong Parental Guidance)
MTRCB Memorandum Circular No. 03-2012, Review and
Classification of Television Programs Based on Sample Episode
MTRCB Memorandum Circular No. 09-2011, Rules Governing Public
Exhibition of Films in Common Carriers and Other Public Places
MTRCB Memorandum Circular No. 07-2012, Guidelines on Public
Exhibition of Government Materials
MTRCB Memorandum Circular No. 09-2012, Review and
Classification of Film Versions

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MTRCB IRR on the Standards for Review and Classification of Optical
Media Materials for Private Viewing (2005) (Section 27, RA 9239 in
relation to Section 3[a], PD 1986
MTRCB 2004 Implementing Rules and Regulations (IRR), as amended
(Registration, Permits, Review and Classification, and Other Matters)

KBP Broadcast Code of the Philippines (2007) (also applies to Radio)

Magna Carta of Women & IRR (Non-derogatory and non-
discriminatory Portrayal of Women in Media), RA 9710
Children’s Television Act of 1997 (IRR) – Safe Harbor Period for
Children
Magna Carta for Persons with Disability, RA 7277, as amended by RA
9442
Special Protection of Children Against Abuse, Exploitation, and
Discrimination, RA 7610 (vs. obscene shows, etc.)
Supreme Court Resolution dated 22 October 1991 Prohibiting Live
Radio and Television Coverage of Court Proceedings (vs. Non-Judicial
Proceedings, e.g. Impeachment Proceedings, Inquiries in Aid of
Legislation)
Rule on Examination of Child Witness
Relevant Revised Penal Code Provisions (vs. National Security and
Public Order, vs. Honor [Libel], vs. Decency and Good Customs)
Right to Privacy and Protection of Other Rights, Articles 26, 32, and
723, New Civil Code
Media as “Acts Promoting Trafficking,” RA 9208, as amended by RA
10364 (Expanded Anti-Trafficking in Person Act of 2012
Confidentiality Rules (Anti-Trafficking in Persons Act, supra, VAWC,
etc.)

Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529

Soriano v. Laguardia, G.R. Nos. 164785 and 165536, 23 April 2009 and
15 March 2010

Ads Standards Council Code of Ethics (includes Advertisements of

Contests and Promotions), relate to Consumer Protection Act (RA
7394)
Tobacco Regulation Act of 2003

Music Content Regulation: McCollum v. CBS 202 Cal. App. 3d 989, 249
Cal. Rptr. 187 (1988) - alleged suicidal effect of Ozzy Osbourne music
(also, Waller v. Osbourne, 763 F. Supp. 1144 (1991)

Model: Entertainment Software Rating Board (ESRB) – Video Game

Ratings

Internet Regulation: Resort to Parental/Family-Based Self-Help

Arrangements – Family Online Safety Institute (FOSI) which replaced
the defunct Internet Content Rating Association

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Reno v. ACLU, 51 U.S. 844 (1997)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

Ashcroft v. ACLU, 542 U.S. 656 (2004)

United States v. Ragsdale, 426 F.3d 765 (2005)

RA 10175, Cybercrime Prevention Act of 2012 (relate to cyber-aspect of

Anti-Bullying Act of 2013, RA 10627).

Intellectual Property Considerations

The Use/Exploitation of Ideas

Blaustein v. Burton, 9 Cal. App. 3d 161, 88 Cal. Rptr. 319 (1970) –
Richard Burton film “Taming of the Shrew”

Anderson v. Stallone, 1989 WL 206431 (C.D. Cal. 1989) – Rocky IV

Murray v. NBC , 844 F.2d 988 (2nd Cir. 1988) – The Cosby Show
Nadel v. Play-By-Play Toys and Novelties, Inc., 208 F.3d 368 (2nd Cir.
2000) – “novelty to the buyer” standard vs. Murray v. NBC ruling
Copyright Ownership
RA 8293, Relevant Provisions of the Intellectual Property Code
Lanham Act - false impression of origin (relate to right of publicity vs.
copyright dichotomy)
Berne Convention
Rome Convention (1961)
Performer’s Rights vs. Performance Rights
World Intellectual Property Organization (WIPO) Copyright Treaty
and Performances and Phonograms Treaty
Derivative Works (higher standard – cf. Gracen v. Bradford Exchange,
698 F.2d 300, 7th Cir. 1983)
Joint Authorship vs. Credits – Aalmuhammed v. Lee, 202 F. 3d 1227
“Work for Hire” (Hollywood Plays, Inc. v. Columbia Pictures Corp.,
77 NYS, 2d 568 (1947)

Licensing/Exhibition Rights
Bundle of Rights
• Transfer/Assignment of Right
• Termination Right
• Performance Rights
• Moral Rights (droit moral) – to create, to disclose/make public, to
withdraw, attribution, integrity (against distortions – Gilliam v.
ABC, 538 F. 2d 14, 24 [2nd Cir. 1976], vs. excessive criticism

Intervention of CMOs (supra)

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Infringement

Sheldon v. MGM Pictures, 81 F.2d 49 (2nd Cir. 1936) – mis en scène: the
film “Letty Lynton” vs. the play “Madeleine Cary”
Sid and Marty Krofft Television Productions v. McDonald’s Corp., 562
F.2d 1157 (9th Cir. 1977)
Arnstein v. Porter, 154 F. 2d 464 (2nd Cir. 1947)
A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001)
BMG v. Gonzalez, 430 F.3d 888 (7th Cir. 430)
Bit Torrent – The Pirate Bay case (Sweden)
Legal Music Streaming : Spotify, Deezer
“Bootlegging,” when File-Sharing becomes illegal

Fair Use
“Innocent” Infringer
Basic Idea for a Story not copyrightable – Grumbach Productions v.
Waring, 59 NE 2d 425 (1944)
Common Stock (scène à faire) : the case of the ″Mockbusters″ (54
ATENEO L.J. 850 [2010])

Trademarks and Merchandising

Right of Publicity/to Privacy

Johnston v. One American Productions, 2007 WL 2903218 (N.D. Miss.
2007) – consented participation in “religious documentary” turned out
to be being featured in the major comedy motion picture “Borat”
Exploitation of “Characters” - when is it the person, and not the
character
Vanna White v. Samsung Electronics America, 971 F. 2d 1395 (9th Cir.
1992)
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F. 2d 831 (6th Cir.
1983)
Wendt v. Host International, 197 F. 3d 1284 (9th Cir. 1999)
Character as having “trademark significance”
Frederick Warne & Co., Inc. v. Book Sales, 481 F. Supp. 1191 (1979)
Becoming an “action figure”
Landham v. Lewis Galoob Toys, Inc., 227 F. 3d 619 (2000)
Right of Privacy expires upon death – Maritote v. Desilu Productions,
345 F. 2d 418 (7th Cir. 1965)

Right to One’s Persona as applied to Sports Personalities

Abdul-Jabbar v. General Motors Corporation, 85 F. 3d 407 (9th Cir.
1996) – use of Kareem Abdul-Jabbar’s birth name “Lew Alcindor”
ETW Corporation v. Jireh Publishing , 332 F.3d 915 (6th Cir. 2003)

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Entertainment Contracts and Arrangements

Film Contracts in General

Legal Effect of “Standard Practices” – Preminger v. Columbia Pictures,
49 Misc. 2d 363, 267 N.Y.S. 2d 594 (S. Ct. 1966)
Insurance Contracts – vs. risk of not having the film project completed
(e.g. by an actor)
CNA Intern. Reinsurance Co. Ltd. v. Phoenix, 678 So.2d 373 (Fla.App.
1 Dist 1996) – against the estate of River Phoenix who died due to drug
overdose at the time he was committed to do two films
Artist/Talent Contracts
Product Endorsement Contracts
Talent Agency Contracts
Talent Management Contracts
Recording Contracts
Band Partnership Agreements
Band Management Agreements
Band Agency Agreements
Symphony Orchestra Agreements

Sports Coverages

Sports Media Rights; Off-Tube Coverage

BBC v. Talksport, 2001 FSR 53; (2000) All E.R. (D) 831 Ch. D.
Fair Dealing
The case of “World Cup” Extracts – BBC v. British Satellite
Broadcasting Ltd. (1992 Ch. 141).

»•»

GRADING SYSTEM

30% Exercises, Recitation, Quizzes, etc.

35% Mid-Term Examinations or Requirement
35% Final Examinations or Requirement.

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Resources

Burr, Sherri, Entertainment Law in a Nutshell, West (Thomson

Reuters), 2012

Crowell, Thomas A., The Pocket Lawyer for Filmmakers: A Legal

Toolkit for Independent Film Producers, 2nd ed., 2011

Donellan, Laura, Sport and the Law: A Concise Guide, Blackhall

Publishing, 2010.

Nelson, Vincent, The Law of Entertainment and Broadcasting, Sweet

& Maxwell, 1995.

Smartt, Ursula, Media and Entertainment Law, 2nd ed., 2014.

Amador, Vicente, “Entertainment Law: Agents, Managers, Attorneys,

and Promoters,” 54 ATENEO L.J. 817

Villareal, Eugenio, “Mockbusters, Rip-Offs and Tie-Ins: Musings on

the Free Use of Ideas on Film and Television from a Justice Philosophy
Perspective,” 54 ATENEO L.J. 850.

Villareal, Eugenio and Gaw, Katrina, “Beyond ‘Conventional’ Free TV

and Moviehouses: Proposing a Regulatory Framework for Video-on-
Demand and Livestreaming Services Content Accessed Through the
Internet and Establishing Norms for Audience Empowerment and
Sensitivity on Web-based Entertainment,” 61 ATENEO L.J. 123.

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