Media, Entertainment and Technology

LEADERS

Overview

Gibson, Dunn & Crutcher’s Media, Entertainment and Technology Group is one of the world’s leading practices.  We represent both established and emerging media, entertainment and technology companies and handle our clients’ most important and complex corporate and intellectual property transactions, litigation, antitrust, internal investigations and other legal challenges.  With more than 70 members with various substantive areas of experience and knowledge of media, entertainment and technology properties, the practice can handle even the largest matters.  As a global law firm, we are also able to draw upon the additional resources of more than 1,200 lawyers in the firm’s 20 offices.

Our litigators are well-known for their decades of experience in handling the full array of media and entertainment-related matters, including accounting, contract and profit participation disputes and enforcing film and television distribution agreements.  We are leaders in conducting sensitive investigations and are renowned for our First Amendment practice.  We have defended and prosecuted high-stakes copyright disputes, as well as trademark, rights of publicity, patent and other IP-based matters.

Our transactional lawyers are recognized for their comprehensive capabilities in mergers and acquisitions, complex film finance transactions, and joint ventures.  They handle presales of media rights; acquisitions and dispositions of catalogs, copyrights and name and likeness rights; television output and film distribution agreements; as well as the full range of corporate transactions that cut across industry lines.

A substantive part of our transactional practice is our significant intellectual property transactions practice, with deep industry knowledge in a variety of areas, including: content licensing across all media; brand-related agreements; data security and privacy issues; data acquisitions and transfers, including regulatory issues; software-related transactions including those arising in the context of cloud computing; hardware agreements including manufacturing, supply, VAR and distribution and services agreements; and patents, including patent licensing, patent pools, and the acquisition and disposition of patents and patent portfolios.

EXPERIENCE & RECENT REPRESENTATIONS

Gibson Dunn has a prominent U.S. litigation practice with a winning track record litigating virtually every kind of dispute that arises in the media, entertainment and technology industries.  Our experience encompasses contractual issues such as profit participation and film finance, as well as intellectual property issues such as copyright, trademark and trade secret, and the right of publicity. We coordinate with our partners in related practice groups on patent and First Amendment issues.

We also handle a wide variety of commercial disputes for our media, entertainment and technology clients, including securities, real estate, class action and contract disputes.  In addition, we represent clients in connection with internal and governmental investigations.

Our clients include major and independent motion picture studios, television networks, newspapers, magazines, video game publishers, producers and distributors, entertainment industry executives and performers, production companies, studios, book and music publishers, merchandising and record companies, authors, personal managers, and talent agencies.  Our lawyers litigate in U.S. state and federal courts as well as arbitrate before guilds and other institutional forums such as the Independent Film and Television Alliance.

Contract Dispute, Profit Participation and Film Finance

Gibson Dunn lawyers represent studios, production companies and talent in all facets of entertainment and media litigation, including contract disputes, finance agreements, profit participation and accounting disputes, and business fraud. We also handle internal and government investigations for our clients.

Intellectual Property and Associated Rights

Gibson Dunn provides its media, entertainment and technology clients with skilled counsel on a wide range of IP issues, including licensing disputes and infringement claims involving high-profile industry names.  We also have extensive experience litigating a wide variety of intellectual property rights, including copyright, rights of publicity, trademarks, trade names and trade dress, theft of ideas, Internet advertising, counterfeiting claims and patent disputes for our entertainment clients.

First Amendment Litigation

Gibson Dunn is unique among law firms in terms of the depth and breadth of its media, entertainment and technology practice.  The firm has been extensively involved in handling First Amendment issues in virtually all areas of free speech and press and offers counseling, litigation at the trial and appellate levels, prepublication or prebroadcast review, and contractual negotiations among many other services.

Employment Litigation

Gibson Dunn has one of the premier labor and employment practices in the United States, with approximately 70 lawyers nationwide assisting corporations with their most sensitive and challenging matters.  We help clients develop company-wide policies that affect tens of thousands of employees; represent media, entertainment and technology companies on issues involving a single employee or work site; and litigate disputes large and small on behalf of individuals and corporations, before courts, agencies and arbitrators in jurisdictions throughout the country.

Wage and Hour Litigation

We have represented many clients, including film studios, production companies and television companies, in both individual and class actions alleging wage and hour violations, including unlawful business expense practices.

Discrimination Litigation

We have successfully defended a wide variety of clients in the entertainment and media industries against claims of discrimination, including the defense of a talent agency in an industry-wide age discrimination class action filed by television writers.

Union Litigation

We regularly represent entertainment companies in actions brought by unions, including those initiated by them on behalf of individuals.

Wrongful Termination

We have been involved in a variety of wrongful termination actions, including those alleging termination in violation of public policy (“whistleblower” cases).

Other Claims

Our broad-based employment litigation client work includes a wide variety of other employment-related claims, such as alleged sexual harassment, fraud, defamation and breach of contract.

Contract Disputes, Profit Participation and Film Finance Litigation

  • Won a major victory for Facebook and its founder Mark Zuckerberg in a breach of contract case filed by Paul Ceglia, who claimed he was entitled to an 84% ownership stake in Facebook based on a purported 2003 contract.  After being retained to replace another law firm, we uncovered evidence of fraud and a forgery scheme that resulted in the plaintiff’s arrest on federal felony charges.  In response to our motion to dismiss Ceglia’s breach of contract case, a federal magistrate judge ruled the lawsuit a fraud that should be dismissed with prejudice.  The federal judge presiding over the case adopted that ruling, dismissing the case with prejudice based on Ceglia’s lies, forgeries and litigation misconduct.  We then secured Second Circuit affirmance.
  • Representing NBC Universal in a profit participation suit seeking accounting and monetary damages brought by producer Glen Larson alleging that he is owed net profits as the producer of such television series as “Six Million Dollar Man,” “Magnum P.I.,” “Battlestar Galactica,” “Knight Rider” and “Quincy M.E.”
  • Represented CBS in its high-profile challenge to the development of ABC’s reality series “The Glass House” for its substantial similarities to CBS’s long-running show “Big Brother” and in connection with its trade secret misappropriation claims related to the production of “The Glass House.”
  • Secured summary judgment from the Central District of California for Nike, Inc. against competitor Oakley in a lawsuit over which company was entitled to the endorsement services of former No. 1 world-ranked golfer Rory McIlroy.  Oakley, alleging that Nike intentionally induced McIlroy to breach his contract with Oakley when Nike signed him to a marketing contract, sought damages of more than $105 million.  The court held that there was no evidence that Nike intended to interfere with Oakley’s contract, and that Nike was entitled to rely on McIlroy’s agent’s representations regarding McIlroy’s existing contractual obligations, regardless of their truth.  Earlier in the litigation Gibson Dunn successfully defeated Oakley’s attempt to compel production of athlete endorsement contracts with such icons as Tiger Woods, Michael Jordan and Kobe Bryant, among other sensitive and protected trade secret documents.
  • Represented Dow Jones & Company, Inc. in putative consumer class action in the Southern District of New York brought on behalf of all annual Wall Street Journal online subscribers.  Plaintiffs alleged that Dow Jones breached its contract with annual subscribers and violated New York’s consumer protection laws when it “spun off” Barron’s Online from The Wall Street Journal Online into a separate subscription product. Gibson Dunn won summary judgment and defeated plaintiffs’ motion for class certification as moot.  In its ruling, the court held that Dow Jones’s subscriber agreement, which permitted Dow Jones to discontinue or change its services (defined to include Barron’s Online) at “any time,” was enforceable and that the discontinued access to Barron’s Online was in accordance with the contractual terms.  The Second Circuit affirmed, holding that the subscriber agreement permitted the “spin-off” of Barron’s Online, which meant that both plaintiffs’ breach of contract and consumer protection claims failed.  The court also rejected plaintiffs’ alternative argument that the spin-off denied them of so much of the value of the contract as to make it illusory, holding that Dow Jones’s conduct was reasonable as a matter of law.
  • Successfully settled a high-profile case during a jury trial on behalf of VOOM HD Holdings LLC, a high-definition television subsidiary of Cablevision Systems Corporation’s Rainbow Media Holdings LLC.  In its multibillion-dollar lawsuit against Dish Network’s EchoStar, Voom alleged that the company unlawfully terminated a 15-year agreement to carry its high-definition television programming.  The defendants were burdened by a January 2012 New York appeals court decision upholding a ruling that EchoStar had destroyed evidence.  As a sanction, jurors would be told that EchoStar erased e-mails, and they could assume the evidence was helpful to Cablevision.  Before the jurors were told, the parties settled.  The settlement was valued at well over $1 billion, one of the largest settlements in a breach of contract case.
  • Represented Warner Bros. and the WB Network in a profit participation lawsuit relating to the television series “Smallville.”
  • Represented Fox Broadcasting Co. in a widely publicized breach of contract lawsuit brought by “American Idol” creator Simon Fuller over his role in the singing contest “X Factor.”

Copyright and Patent Litigation

  • Won pretrial dismissal, for Zynga and Electronic Arts, of patent infringement suits in the Northern District of California, invalidating plaintiff GT Gaming’s asserted patent that purported to claim methods for allowing players to purchase objects during a game. We then secured Federal Circuit affirmance of the dismissal.
  • Secured victory for LiveJournal Inc., in a copyright infringement suit in the Central District of California brought by Mavrix Photographs LLC, a celebrity photograph agency, concerning seven sets of allegedly infringing photos posted by users of the LiveJournal community, Oh No They Didn’t!  The court ruled in favor of LiveJournal on its motion for summary judgment and affirmed that service providers like LiveJournal, which provide an online platform for users to express themselves, are entitled to protection under the Digital Millennium Copyright Act’s safe harbor provision.
  • Won a motion for summary judgment on behalf of client FX Networks, LLC in a highly publicized theft of ideas case.  Plaintiff Chuck Zito, a well-known radio and television personality and the former president of the New York City chapter of the Hells Angels motorcycle club, claimed that FX breached an implied-in-fact contract allegedly formed during a 2004 pitch to FX by using his ideas for a television show about an outlaw motorcycle club to develop FX’s hit series “Sons of Anarchy.”  In granting summary judgment for FX, the court held that “Sons of Anarchy” was developed independently by writer Kurt Sutter, in collaboration with two feature film producers, John and Art Linson.  
  • Represented a collation of the world’s largest music publishers in a copyright class action against XM Radio alleging multiple counts of copyright infringement based on XM’s operation of a digital music download service.

Lanham Act/Trademark/Unfair Competition Litigation

  • Secured Ninth Circuit affirmance for Yelp of the dismissal of a purported class action that threatened the way in which companies manage user-generated content.  The well-known online review site allows members of the public to read and write reviews about local businesses.  Small business owners had alleged that Yelp manipulated reviews based on whether a business paid for advertising on Yelp’s website.  In the trial court we had obtained dismissal by combining a motion for failure to state an actionable claim with one for lack of standing, a strategy that broadened the evidence we were able to submit.  The Ninth Circuit accepted our key arguments on appeal and upheld the dismissal with prejudice, ruling that plaintiffs had not sufficiently alleged the elements necessary to predicate their claim on allegations of extortion.
  • Obtained dismissal with prejudice from the Central District of California of Lanham Act case brought against client Playtex Products, LLC by a competitor to challenge odor control superiority claims on Playtex’s market-leading “Diaper Genie Elite” diaper pails.  Adopting Gibson Dunn’s arguments, the court concluded that plaintiff’s claims were time-barred, by its own admission: Plaintiff suffered sales losses well outside of the applicable statute of limitations.  This win, on the heels of Gibson Dunn’s April 2013 trial victory for Playtex in another competitor’s Lanham Act case, ended the latest round of competitors’ “diaper pail” challenges.
  • Just hours before a week-long jury trial was to begin, obtained a complete defense win on all claims for Playtex Products (a division of Energizer Holdings) in a long-running Lanham Act case that challenged advertising statements on Playtex’s Diaper Genie products.  The court granted Playtex’s motion to exclude all of its competitor’s damages evidence on the eve of trial, rejecting its attempts to introduce new damages theories that would have totaled $106.7 million.  Gibson Dunn had previously prevailed in securing a new trial as to liability and damages, resulting in the judge throwing out a $13.6 million verdict reached after a two-week jury trial.

Rights of Publicity Litigation

  • Represented a leading toy manufacturer and Hard Rock Cafe International (USA), Inc. in an action brought by the lead singer of The Horrorpops, claiming the Hard Rock Cafe® Rockabilly Barbie® doll violated her rights of publicity and the Lanham Act.
  • Represented Lucky Strike Entertainment, LLC in an action brought by a model who appeared in Lucky Strike’s nationwide advertising and promotional media campaign.
  • Represented the family of James Dean and its licensing agent, the Curtis Management Group, in a successful federal court trial regarding merchandising and Dean’s right of publicity.

Theft of Ideas Litigation

  • Represented FX Networks in a breach of implied-in-fact contract action brought by a former chapter president of the New York Hells Angels, claiming the television series “Sons of Anarchy” was based on his ideas pitched to FX executives.
  • Represented Penguin Group in successful defense against claims that an author of a book on the Zodiac serial killer appropriated the research and theories of the killer’s identity developed by a Zodiac hobbyist.
  • Represented the estate of Carl Sagan in a theft of idea action brought by Francis Ford Coppola concerning the motion picture Contact.  Obtained summary judgment, which was affirmed on appeal.​

ICANN Arbitrations

Arbitrations with favorable resolutions before the Internet Corporation for Assigned Names and Numbers (ICANN) have included those involving:  

  • Foxchannel.com and Alienmovies.com (representing Twentieth Century Fox)
  • Tejonindustrialcomplex.com (representing Tejon Ranch)
  • uscbookstore.com (representing the University of Southern California)

First Amendment Litigation

  • Represented major media organizations (including NBC, CBS, CNN, Fox, The New York Times, Los Angeles Times, Gannett, the Associated Press and The Washington Post) in seeking public access to secret judicial proceedings and records in the California criminal trial against Michael Jackson, and British journalist Martin Bashir and “Tonight Show” host Jay Leno, called as witnesses in the Michael Jackson criminal trial.
  • Represented Time Inc. and its reporter Matthew Cooper in connection with U.S. Supreme Court proceedings arising from their refusal to reveal their confidential source information in response to subpoenas from Special Counsel Patrick Fitzgerald in his investigation regarding whether White House officials illegally leaked the name of CIA official Valerie Plame to the press.  (Earlier in the case, Gibson Dunn filed amicus briefs for 25 news organizations and reporters’ and editors’ groups in both the district court and in the District of Columbia Circuit Court of Appeals in support of Time, Cooper and The New York Times reporter Judith Miller, and Time Inc.)
  • Represented The New York Times and its reporters Allison Hope Weiner and David Halbfinger in connection with a grand jury investigation of leaked audiotapes of defendant Anthony Pellicano’s conversations with his co-defendants, which were posted on The New York Times website.  Gibson Dunn successfully persuaded the U.S. Department of Justice not to issue subpoenas against the reporters as part of the leak investigation.  We also represented Weiner when she covered the trial for The Huffington Post.  This time, one of the defendants demanded that Weiner be enjoined from disseminating the contents of the audiotapes and turn them over to the court.  Gibson Dunn successfully opposed the request on grounds that it was an unconstitutional effort to chill speech.
  • Persuaded a federal district court, on behalf of The Wall Street Journal, to overturn the largest libel verdict in history ($222 million) based on lack of evidence and “serious misconduct” of the plaintiff during discovery and trial, and devised a strategy that caused the plaintiff to dismiss its case entirely.
  • Represented 13 major media organizations (including the Associated Press, NBC, CBS, CNN, Fox, The Wall Street Journal, The New York Times, The Washington Post, and the Los Angeles Times) in obtaining public access to secret judicial proceedings and records throughout the grand jury investigation conducted by Independent Counsel Kenneth W. Starr concerning the conduct of President Clinton and Monica Lewinsky.​
  • Represented Dow Jones, successfully briefing and arguing a motion for summary judgment in a federal court libel action against Professor Rodney Smolla by a Texas stockbroker suing over a Barron’s article, “Nest Egg Cracked.”
  • Represented a major media organization as lead counsel in a Louisiana defamation, privacy and newsgathering tort action arising from an exposé of Russian baby adoptions.  We defeated a privacy-based request for a prior restraint in 1998; plaintiff was later indicted and pleaded guilty to federal immigration felony.

Ownership/Founders Litigation

  • Won a major victory for Facebook and its founder Mark Zuckerberg in a breach of contract case filed by Paul Ceglia, who claimed he was entitled to an 84% ownership stake in Facebook based on a purported 2003 contract.  After being retained to replace another law firm, we uncovered evidence of fraud and a forgery scheme that resulted in the plaintiff’s arrest on federal felony charges.  In response to our motion to dismiss Ceglia’s breach of contract case, a federal magistrate judge ruled the lawsuit a fraud that should be dismissed with prejudice.  The federal judge presiding over the case adopted that ruling, dismissing the case with prejudice based on Ceglia’s lies, forgeries and litigation misconduct.  We then secured Second Circuit affirmance.
  • Representing Square, Inc. and its two co-founders, Jack Dorsey and Jim McKelvey, in connection with claims filed in federal court in St. Louis, Missouri, that they breached an alleged oral joint venture agreement to form the innovative company.  Square is a major technology start-up that revolutionized credit card payments by allowing users to accept credit cards using their mobile devices.
  • Representing Yik Yak, Inc. and its two co-founders, Tyler Droll and Brooks Buffington, in connection with claims filed in state court in Georgia that they breached an alleged partnership/joint venture agreement that governs a popular mobile application, Yik Yak, an anonymous-messaging app that has spread rapidly across college campuses.

Other Litigation

  • Filed and successfully settled a challenge to the constitutionality of certain Pennsylvania law provisions concerning online wagering on horse races, on behalf of Churchill Downs, Incorporated, host of the Kentucky Derby, and its online wagering subsidiary, TwinSpires.com, in the Commonwealth Court of Pennsylvania.  The challenged provisions allowed only in-state racetracks to apply for licenses to accept wagers on horse races from Pennsylvanians, and imposed a 10% tax on any such wagers accepted by an unlicensed entity.  The settlement, reached after oral argument on an application for a preliminary injunction, achieved Churchill Downs’ goal of replacing the punitive 10% tax with the same 2.3% tax paid by in-state racetracks on online wagers.
  • Secured affirmance from the California Court of Appeal of summary judgment for Lawrence Ng, co-founder of oversee.net, a multimillion-dollar Internet marketing business that oversees and monitors over 600,000 domain names. Plaintiff co-founder sued in connection with Mr. Ng’s decision to sell his shares to a private equity firm, alleging breach of fiduciary duty as a company director for failing to consider an allegedly superior offer for all outstanding company shares.  The trial court granted summary judgment based on Gibson Dunn’s argument that plaintiff was precluded from bringing the lawsuit because of a previous action he had brought against Mr. Ng in Delaware but then dismissed with prejudice so that he could participate in the sale to the private equity firm.
  • Secured the voluntary dismissal in the Central District of California of a shareholder derivative suit against Conversant, Inc. (formerly known as ValueClick, Inc.), its directors and officers.  The suit was prompted by the company’s announcement of a major write-down of a note receivable taken in connection with the sale of its lead generation business unit as well as a significant drop in revenues and income from its media segment business. The complaint largely copied similar allegations in a securities class action filed against the company that also was voluntarily dismissed.  Shortly after Gibson Dunn moved to dismiss the derivative action for failure to allege demand futility as required by Delaware law, plaintiff’s counsel voluntarily dismissed.
  • Obtained from the Delaware Supreme Court a rare expedited ruling from the bench reversing an injunction of the Delaware Chancery Court against an $8.3 billion stock repurchase transaction involving client Vivendi S.A. and software publisher Activision Blizzard, Inc.  A shareholder suit sought expedited proceedings to prevent closing of the transaction, in which Vivendi had agreed to sell most of its majority ownership stake in Activision back to the company and a consortium of investors.  The Delaware Supreme Court’s ruling reversing the injunction and remanding the case allowed the transaction to proceed.
  • Successfully opposed an effort to enjoin a stockholder vote on Ameristar Casinos, Inc.’s proposed merger with Pinnacle Entertainment, Inc.  Ameristar’s Board of Directors had analyzed and rejected the idea of remaining independent and restructuring the company as a real estate investment trust (REIT).   Plaintiffs alleged the Board breached its fiduciary duty to stockholders and sought a preliminary injunction on the vote, arguing that Ameristar’s definitive proxy statement filed with the SEC omitted certain material information provided by financial advisors regarding the “upside” of a REIT transaction.  The court denied the motion, agreeing with Gibson Dunn that plaintiffs had not established a likelihood of success on the merits of their disclosure claim.
  • Secured dismissal with prejudice of all claims against the directors of Hewlett-Packard in a shareholder derivative suit arising out of the termination of former CEO Mark Hurd, and related claims of breach of fiduciary duty lodged against HP’s board of directors.  Plaintiff made demand on HP to bring claims against the directors for, among other things, violating their duty of oversight, making false statements in HP’s annual proxy statements, and approving an improper severance deal for Mr. Hurd when he was forced to step down as CEO following a personal scandal.  In response, HP conducted an internal investigation and concluded that the directors had not engaged in any wrongful conduct.  Plaintiff sued, claiming that his demand was wrongfully refused, and that HP’s independent committee, in-house and outside counsel had engaged in a “whitewash” investigation designed to exonerate the board and management.  The court dismissed the plaintiff’s original as well as amended complaints and denied further leave to amend.
  • Won denial of class certification in a securities action against client Belo Corp. and certain officers and directors arising from acknowledged circulation overstatements at a flagship newspaper, the Dallas Morning News.  The Fifth Circuit affirmed, accepting Gibson Dunn’s argument that the “corrective disclosure” included negative news unrelated to the circulation overstatement and that plaintiffs had failed to prove that the overstatement-related news, and not the unrelated negative news, caused a significant amount of the stock price decline that followed the disclosure.  
  • Obtained dismissal from a high-profile shareholder class action for client Vivendi, permitting it to complete its multibillion-dollar Business Combination Agreement with Activision, Inc. to form Activision Blizzard.
  • Won dismissal of Internet privacy class action filed against Specific Media, Inc. on grounds that the plaintiffs lacked standing to bring the suit under Article III of the U.S. Constitution.  The case was brought as a putative class action by a group of plaintiffs who claimed injury as the result of Specific Media’s alleged placement of Adobe “flash cookies.”  The ruling appears to be the first decision in an Internet privacy class action finding that plaintiffs failed to allege sufficient injury to establish standing.  ​

The core of Gibson Dunn’s transactional media, entertainment and technology practice is comprised of mergers and acquisitions; equity investments in media, entertainment and technology businesses; financing; product placement and promotional agreements; licensing, distribution and production agreements; and intellectual property transactions.

Mergers and Acquisitions

We have assisted clients in the acquisition and disposition of entire businesses, of equity interests in publicly and privately held media, entertainment and technology clients, asset acquisitions and dispositions, and in merger transactions.  Because of our familiarity with the industry, we are able to bring to this setting the requisite level of understanding and insight in assessing intellectual property rights, potential antitrust and other regulatory issues and similar industry-specific knowledge.

Financings

Financing transactions in the media, entertainment and technology industry have grown increasingly complex and varied.  We enjoy one of the leading practices in this area and have represented clients in both equity and debt offerings in public and private markets, as well as in bank financings and tax-advantaged financings.  Our representation of clients in the film finance area has included single picture financings, multi-picture production agreements, and slate financings, among others.

Mergers and Acquisitions

  • A.H. Belo in its sale of the newspaper operations of The Press-Enterprise, a newspaper publisher located in Riverside, California, to Freedom Communications Holdings.
  • Amazon.com in its:
    • Sale of Abebooks, an Internet retailer of used books, to James Sorbel
    • Series G investment in LivingSocial.com, an online coupon company
    • Acquisition of Liquavista, a developer of technology for displays on mobile devices, from Samsung Electronics Europe Holdings
  • AOL Inc. in its:
    • Acquisition of Gravity, a developer of technology that creates Interest Graphs based on individual Internet interests
    • Joint venture with Hale Global to run Patch, a platform for local news and information
    • Acquisition of Buysight, Inc., a business-to-business targeted advertising company
    • Acquisition of StyleMePretty, a blog and Internet retail site for weddings
    • Acquisition of Adap.tv, a video advertising company
  • The Chernin Group in its joint venture with AT&T to acquire, invest in and launch online video businesses.
  • Doremi Labs, Inc., a provider of digital cinema video playback solutions, in its sale to Dolby Laboratories, a creator of audio, video and voice technologies.
  • ExactTarget, Inc., a developer of cloud marketing software, in its $2.5 billion sale to Salesforce.com, a developer of customer relationship management (CRM) software.
  • Lazard Freres & Co. as financial advisor to the Special Committee of Caesars Acquisition Company in its $2.2 billion sale of Bally’s Las Vegas, The Cromwell, The Quad and Harrah’s New Orleans to Caesars Growth Partners.
  • The CEO of Maker Studios, a provider of video content on YouTube, in its acquisition by The Walt Disney Company.
  • Media General’s independent members of the Board of Directors in connection with the company’s merger with New Young Broadcasting Holding, a local broadcast and digital media company.
  • MGM Resorts International in its joint venture with AEG to develop a 20,000-seat indoor arena in Las Vegas to host boxing and other sporting events, major headline entertainment and other special events.
  • Vivendi S.A. in its:
    • $8.2 billion sale of the 85% of Vivendi’s interest in Activision Blizzard, a video game developer, to Activision Blizzard and a consortium of executives and investors
    • $5.7 billion sale of Vivendi’s 53% share in Maroc Telecom to Etisalat (Emirates Telecommunications Corporation)
  • Zynga, Inc. in its acquisition of Spooky Cool Labs, a developer of free-to-play social casino games.

Financings

  • Lenders and borrowers in complex film financing transactions such as:
    • The funding of a slate of motion pictures for STX Entertainment, a new motion picture and television studio
    • Paramount Pictures, Twentieth Century Fox and Universal Studios, each in connection with multiple multiyear, multipicture investment transaction with various investors
    • Macquarie Capital in connection with a “P&A” (print and ad) lending facility
  • Fox International Pictures in connection with an international film slate financing transaction involving Ivanhoe Pictures.
  • Morgan Stanley in the sale of its interest in Paramount Vantage, which produced several successful independent projects such as BabelNo Country for Old Men and There Will Be Blood.
  • Summit Entertainment in connection with a Spanish tax-incentivized film investment transaction with Banesto.
  • Twentieth Century Fox Film Corporation in connection with various UK film investment transactions with Ingenious Film Partners.
  • Universal Pictures in connection with its multi-picture financing and distribution transaction with Legendary Pictures.
  • Universal Pictures in connection with multiple single-picture financing transactions.

Gibson Dunn’s intellectual property transactions lawyers represent many of the world’s leading technology, entertainment and digital media companies in sophisticated IP transactions.  We regularly represent our clients in a wide variety of license, development, acquisition, strategic alliance, joint venture and other transactions involving technology, content and intellectual property.

  • Content.  We regularly represent clients in acquisition and license transactions involving digital media and content, including video games, mobile applications, music recordings, motion pictures, television programming and other content streamed or distributed over the Internet.
  • Brands.  We represent brand owners in license agreements, coexistence agreements, acquisition agreements, spin-off agreements and joint venture agreements involving the acquisition or licensing of valuable brands.
  • Privacy and Security, Data Acquisition and Transfer.  We counsel clients regarding data security and privacy policies and transactions.  We represent clients in transactions involving the transfer, sharing, licensing, mining and analysis of regulated data, such as personally identifying information, personal health information, credit card data, export/ITAR controlled data and financial information.  We also counsel clients on privacy and data security matters including certification and regulatory requirements, cross-border transfer agreements, and development of internal and external policies.
  • Software.  Our lawyers regularly advise clients on cloud computing agreements (including terms of service, service level agreements and subscription agreements) and related regulations, and regularly represent clients in software development, distribution, OEM, escrow, support and end user license agreements.
  • Hardware.  We represent clients in manufacturing, supply, VAR, distribution and services agreements involving semiconductor devices, computer hardware components and telecommunications equipment.
  • Patents.  We regularly represent clients in the acquisition and licensing of patent portfolios, including patent cross-licenses arising from participation in standards-setting organizations and from settlements of patent disputes.

Gibson Dunn’s IP transactional lawyers play an important role in supporting the firm’s merger, acquisition and other corporate transactions practices.  We conduct diligence regarding the status and ownership of intellectual property, the scope and status of inbound license agreements, open source contamination issues, infringement exposure, privacy/data security and other IP issues that may be of great significance in the context of a technology or content company acquisition or other corporate transactions.  We have substantial experience dealing with licensing and other transactions involving Internet companies, including e-commerce agreements, website development and hosting agreements, content license agreements and website co-branding agreements, and in addressing the various legal issues that arise in the context of online businesses.

Our extensive trademark licensing and counseling practice regularly advises clients regarding enforceability and infringement issues associated with the selection of new marks and assists clients with registering marks throughout the world.

Merchandising, Product Placement and Promotional Agreements

Our lawyers are skilled in the negotiation and documentation of merchandising agreements, for a variety of properties and in a broad range of media.  We also advise clients on the acquisition of companies in merchandising and related businesses.

In the area of product placement and promotional agreements (including sponsorship agreements), we represent both buyers and sellers.  Our experience in this area ranges from short-term or relatively limited placements or promotions to company-wide alliances generating significant opportunities for all parties over a period of years.

We are widely practiced as well in counseling clients on disputes related to merchandise licensing claims and foreign merchandising activities.

Licensing, Distribution and Production Agreements

We represent companies at every stage in the acquisition, development, production and distribution of content.  We handle licensing of content, production and coproduction agreements, and representation of both content licensors and distributors in distribution agreements, including output agreements.  Our distribution agreement experience includes agreements covering a limited range of products, as well as distribution agreements related to “packages” or to entire catalogs or libraries.

IP Transactions Involving Entertainment Content and Digital Media

  • Zappos.com in software licensing matters.
  • Ancestry.com in connection with a data exchange agreement and content exchange agreement with The Church of Jesus Christ of Latter-Day Saints.
  • Technicolor in connection with various transactions, including a joint venture with DreamWorks Animation relating to the MGo digital content discovery and delivery platform and an acquisition of cinema delivery assets from Cinedigm.
  • Zynga in the acquisition of patents and other IP assets of Spooky Cool Labs.
  • Amazon.com in connection with various license, services and acquisition transactions and data security and PKI certification matters.
  • Shaw Communications in connection with various commercial and intellectual property matters, including supply agreements with Motorola Mobility and Cisco Systems relating to network infrastructure, set-top boxes and other satellite or cable television equipment.
  • Shazam Entertainment Limited in connection with:
    • The licensing of its audio recognition patents and related music identification technology and acoustic fingerprint software to Amazon.com
    • Reacquisition of certain audio recognition patents and related development license for music identification technology and acoustic fingerprint software with Broadcast Music, Inc.
  • Cablevision Systems Corporation in connection with various patent license agreements relating to patents covering set-top box functionality and network communications.
  • Sharp Corporation in connection with various patent license agreements relating to patents covering technologies incorporated in consumer electronic components.
  • Outfit 7 in connection with various intellectual property issues relating to its “Talking Tom” iPhone applications.

M&A Transactions Involving Entertainment Content and Digital Media

M&A transactions involving entertainment content and digital media on which our IP transactions team played a key role include the following recent representations:

  • Mail.com in its acquisition of Nikki Finke’s Deadline Hollywood Daily, an entertainment industry blog.
  • Machinima, a multi-channel video entertainment network and media streaming website, in connection with certain acquisition and investment transactions.
  • One of the world’s leading retailers in connection with its acquisition of VUDU, an online movie distributor, and Kosmix, a social media technology provider.
  • Doremi, a provider of digital cinema delivery technology, in its sale to Dolby.
  • SK Telecom in connection with its bid for certain digital distribution and other assets of Blockbuster.
  • Pace plc in connection with its acquisition of 2Wire, Inc. and its bid for the Motorola Home business unit of Google.
  • Rustic Canyon Partners in connection with its investment in Gaikai, Inc., a cloud-based gaming technology provider.

Merchandising, Product Placement and Promotional Agreements

  • Universal Music Group in connection with a potential joint venture related to the exploitation of certain trademarks and related IP.
  • Volkswagen AG in product placement and promotional rights in connection with the film Sahara.
  • Volkswagen of America in a global alliance with NBC Universal for product placement, promotions, theme park promotions and television promotional rights.
  • Universal Studios Inc. in connection with the acquisition of theme park rights.
  • Paul Cayard and Cayard Sailing Inc. in negotiating various agreements to skipper and manage the boat The Black Pearl, Walt Disney’s entry in the 2005/6 Volvo Round the World Race to promote Disney’s Pirates of the Caribbean films.1

Licensing, Distribution and Production Agreements

  • Twentieth Century Fox in the development and production of an Avatar show for Cirque du Soleil.
  • Universal Pictures in multiple film and television output agreements.
  • DIRECTV in connection with its agreements with the NFL for NFL Sunday Ticket and NFL Network, as well as other affiliations and retransmission agreements.
  • Universal Pictures in its 10-year first-look production and distribution agreements with Blumhouse Productions.
  • Twentieth Century Fox in connection with its agreements with Resorts World Genting to develop the world’s first “Fox” branded theme park, in Malaysia.
  • Single-picture distribution deals for independent financiers, including Anheuser Busch.

Gibson Dunn has one of the leading antitrust practices in the world.  The firm is ranked as a top-tier firm in the United States and recognized as a leading global firm for Competition/Antitrust law in the 2018 edition of Chambers Global.  It is also ranked among the top “Global Elite” firms in the 2017 edition of Global Competition Review‘s GCR 100, a list of the world’s top 25 antitrust practices.

The Antitrust Group provides services to media, entertainment and technology clients in virtually every significant area of antitrust and trade regulation law.  Our practice includes client counseling; mergers, acquisitions, joint ventures, and strategic alliances; antitrust compliance; private treble damage and injunction litigation in U.S. federal and state courts, including class actions; cartel investigations, grand jury practice and criminal antitrust litigation; government civil investigations and enforcement; appellate representation; and EU and Member State antitrust (UK, France and Germany).

Antitrust Litigation

Our litigation covers the full spectrum of antitrust claims and issues, including alleged price fixing, predatory pricing, price squeeze, price discrimination, market allocation, boycotts, resale price maintenance, exclusive dealing, exclusive territories, tying arrangements, refusals to deal, dealer terminations, other vertical restraints, monopolization, monopoly leveraging, essential facilities, mergers and acquisitions, joint ventures, trade associations, and interlocking directorates.

Antitrust Transactional Engagements

Our lawyers are involved at all stages of mergers and joint ventures that raise antitrust issues and have shepherded numerous transactions through U.S. and foreign government merger reviews.  With many alumni from the federal antitrust agencies in our ranks, Gibson Dunn has considerable experience with the administrative review process that is often triggered by significant merger activity in an industry.

We routinely assist clients in preparing Hart-Scott-Rodino Act (HSR) premerger notification filings and in responding to government second requests.  The need for experienced counsel in such matters has been dramatically underscored in recent years by the multimillion-dollar fines that have been imposed because of noncompliant HSR filings.  We also assist clients with EU and foreign merger notification and Exon-Florio filings, and have significant experience as well dealing with other regulatory aspects of mergers and state attorneys general investigations of merger transactions. Finally, our lawyers have considerable experience representing parties to a merger in both government and private preliminary injunction challenges to mergers and acquisitions in federal courts.

Antitrust Litigation

  • Obtained dismissal for DreamWorks Animation SKG, Inc. in a class action alleging that DreamWorks and other animation studios Pixar, Lucasfilm, Blue Sky Studios, ImageMovers, Sony Pictures Animation and Sony Pictures Imageworks violated federal and state antitrust laws when they allegedly entered into per se unlawful agreements not to solicit each other’s employees and to fix ranges of compensation for employees.  The Northern District of California granted defendants’ joint motion to dismiss the complaint on the ground that plaintiffs’ claims were time-barred.  The court agreed with defendants that the accrual rule – not the discovery rule – applies to antitrust claims.
  • Defeated a putative class action seeking injunctive relief and more than $6 billion in restitution for Time Warner Cable.  Plaintiffs alleged that Time Warner was obligated to give subscribers on the enhanced basic cable tier the opportunity to opt out of new Los Angeles Dodgers and Los Angeles Lakers sports channels.  Asserting that Time Warner and all other Southern California pay TV providers should offer these channels on an à la carte basis, they claimed that requiring non-sports fans to pay for unwanted sports programming violated California’s Unfair Competition Law.  The Complex Division of the California Superior Court granted our motion to dismiss, and the California Court of Appeal affirmed.  Holding that Time Warner’s shifting of existing sports programming to new channels on the enhanced basic cable tier – even if accompanied by an alleged rate increase – was not a “fundamental change” to the service, the appellate court concluded that plaintiffs’ claims were therefore preempted by federal law and regulations.
  • Obtained victory for Comcast when the U.S. Supreme Court reversed an order certifying a class of more than two million current and former Comcast subscribers after plaintiffs alleged Comcast increased prices in the Philadelphia area through anticompetitive conduct.  Agreeing with Gibson Dunn’s arguments, the Court concluded that the class action was improperly certified under the Federal Rules of Civil Procedure, holding that Rule 23(b)(3) cannot authorize treating subscribers within the Philadelphia cluster as members of a single class.

Antitrust Transaction Engagements

We have counseled clients on the formation and operation of a variety of joint ventures in the media, entertainment and technology sectors.  We have also represented clients in a series of transactional engagements reviewed by the DOJ or FTC, including:

  • Vivendi and Activision
  • Ticketmaster Entertainment and Live Nation Entertainment
  • Intel and McAfee
  • Sony Music and BMG
  • Sony Music and Universal online joint venture
  • Knapp Communications and Advance Publications
  • New Orleans Publishing Group and Times Picayune Publishing Corporation
  • Hollywood Entertainment and Movie Gallery

RECENT PUBLICATIONS

The Hollywood Reporter Names Scott Edelman and Orin Snyder to its 2018 Power Lawyers List

-April 5, 2018

D.C. Circuit Applies U.S. Copyright Law to Video Content Streamed from Abroad

-March 9, 2018

NAURA Technology Group’s Acquisition of Akrion Systems Named Deal of the Year

-January 31, 2018

Media, Entertainment and Technology Group – 2017 Year-End Update

-January 19, 2018

Media, Entertainment and Technology Group – 2017 Mid-Year Update

-July 19, 2017

Supreme Court Strikes Down Ban on Registration of Disparaging Trademarks on First Amendment Grounds

-June 21, 2017

Supreme Court Establishes National Test to Determine When an Artistic Element of a Useful Item Is Protectable Under the Copyright Act

-March 31, 2017

Media, Entertainment and Technology Group – 2016 Year-End Update

-February 16, 2017

Media, Entertainment and Technology Group – 2016 Mid-Year Update

-August 4, 2016

New Rules are Monumental for Commercial Drones

-July 27, 2016

Third Circuit Strikes Down FCC Rule Prohibiting Joint Sales Agreements and Stresses FCC’s Legal Duty to Review All Broadcast Ownership Rules Every Four Years

-May 26, 2016

1st Circ. Video Privacy Decision Creates Split With 11th Circ.

-May 13, 2016

How The Fight For Streaming Royalties Is Going Over The Top

-May 3, 2016

Sensible Regulations Encourage Drone Use

-April 11, 2016

Commercial Drone Industry May Be Ready For Takeoff Soon

-February 18, 2016

Paxton Ruling on Fantasy Sports is Good for Texans

-January 26, 2016

U.S. Supreme Court Hears Argument in Big Data Case with Far-Reaching Implications

-November 9, 2015

A Practical Guide to the Use of the Commissioned Public Report as an Effective Crisis-Management Tool

-June 12, 2015

Cybersecurity and Data Privacy Outlook and Review: 2015

-February 17, 2015

New FTC Report Sets Out Principles Likely to Influence Regulation of the “Internet of Things”

-February 5, 2015

Judicial Campaign Rules Go to Court

-December 23, 2014

U.S. Supreme Court Rules That Aereo’s Streaming of Broadcast Television Programming Violates the Copyright Act

-June 25, 2014

U.S. Supreme Court Resolves Circuit Split on Standing to Bring Lanham Act False Advertising Claims

-March 26, 2014

U.S. Commerce Department Announces Plan to Accelerate Transition to Private Management of the Domain Name System

-March 18, 2014

U.S. Court of Appeals for the D.C. Circuit Vacates FCC “Net Neutrality” Rules

-January 14, 2014

The Enduring and Universal Principle of “Fair Notice”

-April 30, 2013

Federal Trade Commission Updates Online Advertising Disclosure Guidelines; Addresses Mobile Devices and Social Media

-March 14, 2013

Shining the Light on California’s “Shine the Light” Law

-September 5, 2012

Searching questions: Freedom of expression, competition and search engines

-June 12, 2012

Under Fire: Continued Attacks on Exclusive Forum Provisions May Slow Adoption

-April 20, 2012

The Obama Administration Unveils New Consumer Data Privacy Framework for the Digital Economy

-February 24, 2012

The Supreme Court of India Rules in Favor of Vodafone in a Landmark Judgment

-January 20, 2012

Nationwide Privacy Class Action Dismissed in In re iPhone Application Litigation Based on Lack of Article III Standing

-September 27, 2011

U.S. Supreme Court Invalidates California Statute Prohibiting Sale or Rental of “Violent” Video Games to Minors

-June 28, 2011

Ninth Circuit Rules that Emailed Receipts Do Not Trigger the Identity Theft Provisions of the Fair and Accurate Credit Transactions Act

-June 2, 2011

U.S. Supreme Court Upholds Settlement Of Copyright Infringement Claims Involving Unregistered Works

-March 3, 2010

OPEN Government Act Restores Promise of FOIA

-December 31, 2007

Deal Note: Gibson Dunn’s Media & Entertainment Group Represents Vivendi in Proposed Combination of the Businesses of Vivendi Games and Activision

-December 5, 2007

European Court of Justice Delivers Important Judgment in Laserdisken Case on Interplay Between National and EU Copyright Law

-September 19, 2006