Towards a Conceptual Framework of Entertainment Law for the Twenty-First Century

Abstract

Throughout the history of entertainment, there have been only three goals of the state’s regulatory focus: health and safety concerns; content and cultural control; and monopoly power restrictions on those who control the media. The first has been to require health and safety standards comparable to businesses of all industries. It is the second and third goals of government regulation that make the entertainment industry stand apart. The second goal reflects the continuing state interest in managing the national culture first introduce through laws regulating theatrical players and the printing press. The third goal reflects the state’s interest in assuring that the individual and corporate influences on the media and culture do not grow too powerful. Governments use competition and antitrust laws to regulate the economic power and anti-competitive practices of the media empires. The technological innovations in computing and mobile devices provide for dramatically different solutions to monetize the digital marketplace and shape the culture of the society. The twenty-first century media streamers in film, television, music, and print will be very different from their counterparts from the previous decades. And just as the technology for delivery has changed, so have the powers of the U.S. government to control the content and manage the competition among the industry leaders. What has stayed the same is the innovative spirit that began with Gutenberg and fueled the invention of the camera, movie projector, phonograph, radio, and television. It informed the growth of the computer, the PC, the Internet, and the modern streaming services. At each stage, the media’s power to entertain, educate, persuade, and shape has remained unchallenged. Technology and culture are at a tipping point, just as they were when piracy triggered the end of the Stationers’ Company and the development of copyright law or the end of the Motion Picture Patents Company and the rapid growth of the motion picture industry. The printing press, the theatrical performance, the motion picture, and the TV show illustrate again and again that the medium is the message. From the middle ages forward, governments and society has learned to accept the relinquishment of control over the media and the power of the media companies to shape culture. In the coming years, those who best understand the implications of streaming, mobile devices, and new technologies will lead in its development. This article provides a conceptual framework to approach entertainment and the regulation of entertainment — entertainment law — from its historical origins and normative objectives. In most cases, these efforts apply at the margins because culture is simply too powerful a force to do more. Nonetheless, an understanding of the implications for entertainment law regulation will help the producers, regulators, and consumers of entertainment to understand the power of entertainment law and the foreseeable development of the law in the early twenty-first century.