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Challenges and trends in entertainment law
The current surge in interest rates, coupled with the widespread integration of AI in the profession, has meant that those in entertainment law have had to confront a number of emerging challenges head-on and adapt accordingly.
Grace Robbie
Miet Engelhardt is an entertainment lawyer at marshalls+dent+wilmoth and the winner in the sports and entertainment category at the recent Lawyers Weekly 30 Under 30 Awards. Notably, she was also a finalist in the same category for 30 Under 30 Awards 2023.
“I am seeing that it’s getting harder to secure adequate insurance as required by investors and lenders – film production insurance and particularly errors and omissions insurance,” Engelhardt commented.
“Insurers are taking a risk-averse approach, and it’s costing the already hard-to-finance indie films. We are seeing this particularly in relation to films or series portraying real individuals or events.”
Given this challenge, Engelhardt highlighted strategies for lawyers practising within this space can implement to effectively navigate and surmount this issue.
“Reviewing contracts from an insurance perspective as well as providing advice with respect to the risks (especially from a defamation perspective) involved in the script – really being the producer’s advocate to the insurer,” Engelhardt stated.
Engelhardt also shared her insights on the anticipated evolution of the film and entertainment industry in the coming year, particularly focusing on the rise of studio-funded films and its impact on independent productions.
“We are seeing the rise of studio-funded films, and it’s becoming more and more difficult for independent producers to raise finance for films, especially with the current interest rates,” she said.
“Whilst I think studio films are on the rise and particularly being shot in Australia for tax incentive reasons, I would like to hope that independent films continue to be and become more feasible.”
Having had the opportunity to offer legal services to both types of production companies, Engelhardt delineated the differences in practising within these spaces.
“From a professional perspective, it’s a very different experience representing a studio [versus] an independent film, where typically it is a bit more relaxed for everyone – writers, actors and even lawyers,” she commented.
The forthcoming trends within this sphere in 2024 include the significant impact new technologies will have on the entertainment law space.
“The rise of AI and protecting performers against exploitation of their likeness or work. This was a particular issue in the actors strike in America – the ability for producers to use a performer’s likeness, including through the use of AI, in perpetuity,” Engelhardt stated.
“Whilst the laws and union rules are different in Australia (and arguably protect the performers more), we are seeing changing rules from the union and agents really cracking down on this sort of thing.
“Another key trend is the rise of streaming platforms and films going straight to streaming (and, of course, the contractual negotiations involved in this changing environment). I would like to argue, however, that post-COVID, cinemas are back!”
Further, Engelhardt offered guidance not only to aspiring young lawyers aiming to enter the film and entertainment industry but to all young professionals, emphasising the critical importance of self-belief and continuous skill development.
“Just do it! You know more than you think you do,” she said.
“Don’t be afraid to develop niche skills – the further you go, the more valuable you become in the industry and the bigger the industry seems to get.”
