DLA Piper Gaming event before the ICE. Come and join us!

DLA Piper gambling event will take place the day before the beginning of the ICE gaming conference in London.  Read the rest of this entry »

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/01/dla-piper-gaming-event-before-the-ice-come-and-join-us/

Report on the potential impact of Brexit published

By Francis Keepfer and Patrick Mitchell

The House of Commons Digital, Culture, Media and Sport Committee has this week released a report on the potential impact of Brexit on the creative industries, tourism and the digital single market.

The report draws a number of conclusions and makes various recommendations to the UK Government in relation to three key areas: workforce; funding; and the regulatory environment.

Notably, the report explores the impact of Brexit on a number of recent regulatory updates including the country of origin broadcast rules and territorial licensing.

The full text of the report can be found here.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/01/report-on-the-potential-impact-of-brexit-published/

Athletes’ Right of Publicity Claims Directed to Sports Video Games Not Preempted by Copyright Act

Authored By: Frank Ryan and Matt Ganas (with contribution from Michael Varrige)

The California federal district court, in Davis v. Electronic Arts Inc., recently issued the latest in a series of decisions involving athletes’ right of publicity (“ROP”) claims aimed at Electronic Arts’ (“EA”) popular sports videogame franchise. The plaintiffs in Davis are retired NFL players and allege that EA violated their publicity rights by using their likenesses in EA’s Madden videogame series without authorization. EA moved to dismiss the operative complaint, arguing that the plaintiffs’ state-based ROP claims were preempted by federal copyright law. On December 11, 2017, the district court denied EA’s motion.

The Davis case previously garnered considerable attention in 2015, when the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s denial of EA’s bid to dismiss the action under California’s statute prohibiting strategic lawsuits against public participation (or anti-SLAPP statute). Similar to other states, California’s anti-SLAPP statute permits early dismissal of actions that challenge speech or activities protected by the First Amendment. The Ninth Circuit in Davis, however, held that no theory of First Amendment protection proffered by EA necessarily immunizes it from alleged ROP violations related to the Madden videogame. When the U.S. Supreme Court subsequently declined to review the Ninth Circuit’s decision in 2016, First Amendment scholars and practitioners debated whether the Court squandered an ideal opportunity to impose a uniform standard for balancing ROP claims against First Amendment concerns.

On remand, EA again sought dismissal of the Davis plaintiffs’ common law ROP claims, turning to copyright preemption as its next line of defense. Indeed, sports-media producers have enjoyed some recent success invoking the copyright preemption doctrine to overcome athletes’ ROP claims. In Dryer v. Nat’l Football League, for example, retired NFL players asserted ROP claims directed to NFL Films productions that featured plaintiffs’ likenesses in historic game footage. Both the Minnesota district court and Eighth Circuit Court of Appeals held that Dryer’s ROP claims were preempted by the Copyright Act. But Davis represents the first significant attempt by ROP defendants to extend copyright preemption to the sports videogame setting.

The district court in Davis analyzed EA’s motion under the standard two-part test required to establish a copyright preemption defense. First, plaintiff’s state law claim must “fall[] within the subject matter of copyright as described in [the Copyright Act].” Among other things, this requires that the challenged publication be an “original work[] of authorship fixed in any tangible medium of expression.” Second, the plaintiff’s asserted state law rights must be “equivalent to the rights contained in [the Copyright Act],” e.g. to reproduce, distribute, display, or publicly perform the copyrighted work. The Davis court focused exclusively on the first copyright preemption factor.

As a threshold matter, the court recognized that videogames are generally copyright protectable works. The court acknowledged, however, that not every element of a videogame is copyrightable (and the same is true for most other original works of authorship). Specifically, the court reasoned that athletes’ likenesses depicted in Madden game play are not fixed in a tangible medium of expression, because such “game play is dynamic, interactive, variable, and in the hands of the consumer.” Accordingly, the court determined that the heart of plaintiffs’ ROP claims do not fall within the subject matter of copyright, and thus are not preempted by the Copyright Act.

The recent Davis decision reinforces that courts treat ROP claims directed to sports videogames differently from game footage, both from a First Amendment and copyright preemption perspective. In the aforementioned Dryer case, for example, free speech and copyright preemption principles shielded the NFL’s documentary-style films from ROP liability, where the challenged works reproduced plaintiffs’ likenesses in recorded and rebroadcasted game footage. But neither the First Amendment nor the Copyright Act have effectively insulated EA’s sports videogames from ROP claims brought by featured athletes. From a copyright preemption standpoint, the Davis court identified the Copyright Act’s “fixation” requirement as the key distinguishing factor between game footage and videogames. Specifically, in attempting to reconcile its decision with the outcome of Dryer, the Davis court reasoned that “[w]hile recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be ‘fixed’ in a tangible medium of expression,” in contrast to Madden’s user-dependent, interactive game play.

To request a copy of the sources used as background in the blog please contact rachael.pepper@dlapiper.com

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/01/athletes-right-of-publicity-claims-directed-to-sports-video-games-not-preempted-by-copyright-act/

Further changes to PIT exemption for gaming players in Poland

By Aleksandra Kozłowska


Starting from 2018 PIT exemptions for gambling winnings were changed. In particular, all types of gambling (therefore, online casino as well) organized and run by an eligible entity under the gambling legislation in force in a Member State of the European Union or in another country belonging to the European Economic Area are PIT exempt only if the one-time value of winnings does not exceed PLN 2280 (only winnings in a poker tournament are subject to exemption without limitation). Moreover, the new provisions define the one-off value of winnings, which in the case of winnings in a casino or slot machine game leads to the conclusion that the taxable amount should be equal to lost amounts (according to the definition the taxable basis is equal to the amount earned, being the difference between the sum of the paid bids and the sum of the winnings paid during a one-off stay in a casino or a one-off slot machine game).


Now the Ministry of Finance wants to withdraw from some changes, removing also the unfortunate definition of taxable amount. According to the draft of January 8, 2018 full PIT exemption will be restored starting from March 2018 (however effective from January 2018) for slot machine games, card games, dice games, cylindrical games, bingo games, cash bingo games. The link to the project may be found here.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/01/further-changes-to-pit-exemption-for-gaming-players-in-poland/

New Italian online gaming licenses now available!

The tender for the award of new Italian online gaming licenses has now been launched, but operators have to hurry up! Read the rest of this entry »

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/01/new-italian-online-gaming-licenses-now-available/

UK Government criminalises the use of ticket tout bots

By Francis Keepfer

The UK Government has introduced new draft legislation which criminalises the use of ‘bots’ to bulk buy event tickets.

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Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/01/uk-government-criminalises-the-use-of-ticket-tout-bots/

Follow-us! Audiovisual Finance: the New Italian Cinema Law – DLA Piper Rome, Via dei Due Macelli 66 – 11:00 AM, 6 December 2017

Follow us (Rome, Via dei Due Macelli 66, 6 December 2017, 11:00 AM) for our roundtable on the Decrees implementing the Italian Law no. 220/2016 (“Cinema Law”) and the related investment opportunities concerning audiovisual works (including tax credit, automatic contribution, protection of minors and European works). We will also analyze the financing structures of audiovisual and theatrical works. Read the rest of this entry »

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2017/12/follow-us-audiovisual-finance-the-new-italian-cinema-law-dla-piper-rome-via-dei-due-macelli-66-1100-am-6-december-2017/

CAP launches new guidance on advertising ‘free trials’ or other promotional offer subscriptions

By Francis Keepfer

The Committee of Advertising Practice (CAP) has this week launched new guidance on the advertisement of ‘free trials’ or other similar promotional offer subscriptions. The guidance has been issued as part of National Consumer Week 2017 which this year is focusing on subscriptions and subscription traps.

Working in collaboration with other organisations such as Citizens Advice and National Trading Standards, CAP’s aim is to ‘raise awareness and understanding amongst consumers about subscriptions so that they are better equipped to make informed choices and know who to turn to if something has gone wrong’.

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Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2017/12/cap-launches-new-guidance-on-advertising-free-trials-or-other-promotional-offer-subscriptions/

UK Autumn Budget 2017


On Wednesday 22 November, the UK Chancellor of the Exchequer delivered his Autumn 2017 Budget. The most significant announcement (though absent from the Chancellor’s speech) was that, from April 2019, the UK will be imposing UK tax on gains made by non-residents disposing of UK commercial property whether directly or via property-rich companies or other entities.

The Budget has also confirmed that with effect from April 2020, non-resident companies with UK source income such as rental income from UK real estate will be within the scope of UK corporation tax rather than income tax.

Alongside the Budget, the UK government has produced a position paper on how the digital economy should be taxed and a proposal to impose a withholding tax on royalties derived from UK sales paid to low tax jurisdictions from April 2019. Below is a summary of some the measures announced:

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Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2017/11/uk-autumn-budget-2017/

Can a TV show format acquire copyright protection?

By Patrick Mitchell and Will Thorman

Many years ago the Courts determined that there was no copyright in the format for the “Opportunity Knocks” game show (see Green v New Zealand Broadcasting Corporation [1989] 2 All ER 1056) and since then several other claims to copyright in TV formats have failed when considered under English law.

However, in its judgment (available here), the English High Court held that it was possible that a game show format could acquire copyright protection as an original ‘dramatic work’.

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Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2017/11/can-a-tv-show-format-acquire-copyright-protection/

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