2024 BESLA Scholarship Essay Competition

For nearly 40 years, BESLA has supported law students financially, through mentoring and internship opportunities. BESLA also awards scholarships to deserving law students seeking careers in the entertainment, sports, and related industries. 
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The Essay Competition is an annual competition that encourages original and innovative research and writing on industry topics. An applicant may select one (1) of the two topics below for submission. 

Submission Deadline: August 1, 2024 (11:59 PM EST)

Essay Question #1: Sports - Theft of Trade Secrets; Theft of Proprietary Information 

Employee worked for the professional basketball team, the Bisons, as a “Shot Caller,” where he was responsible for tracking the effectiveness of and making adjustments to the team’s workouts and play-calling strategy. Shot Callers and similar employee roles across the league have access to team, league and industry (media) stats and resources. 

Employee accepted an offer to join the professional basketball team, the Rattlers.  While still employed with the Bisons and at the direction of managerial and coaching staff at the Rattlers, Employee used his Bisons credentials to log-in, access and download (external storage) files stored in the Bisons’ system.  Employee sent the files from his Bisons email account to his personal email account, which he then sent to his Rattler email account.  Employee later shared the files with the Rattlers. 

Some of the downloaded files are marked “Bisons – Confidential Information” and/or considered trade secrets, per the Bison Employment Agreement and Employee Handbook.  Bisons Confidential Information files include analyses prepared by multiple Bisons employees, as well as customized film compilations.

Some of the copied downloaded files are labeled with the date of the game and which teams the Bisons played (Ex: Bisons vs Tigers, May 7, 2023) and included scouting reports, play frequency reports, process for planning the season and the team’s organizational structure.

The Rattlers accessed the files they received from the Employee over 2000 times, within a 60-day period.
Employee’s agreement with the Bisons included the following:
 
Employees shall maintain in strictest confidence and secrecy all confidential or proprietary information concerning the Company or its businesses or organizations (in any form, including, without limitation, confidential or proprietary information which is oral, written, digital, or in any other format). “Confidential or Proprietary Information” includes, financial data, customer, vendor, business, sales or marketing plans, tactics and strategies; economic or commercially sensitive information, policies, practices, procedures or techniques; “trade secrets” includes, play books; scouting reports; draft strategies; trade strategies; player medical conditions or any other non-public information relating to the Company’s business activities, ventures or operations. Following any termination or expiration of Employee’s employment hereunder, Employee (a) shall return all tangible iterations of confidential or proprietary information then in their possession or under their control, and (b) shall not, except as required by compulsion of legal process, use or make any such information available for any purpose without the written consent of the Company.   

In addition, the Bisons implemented multi-factor authentication to access internal files and only certain employees have access to confidential and/or trade secret information contained in internal files.  Further, all employees received training, including covering confidentiality, information usage and insider-theft policies.

The Bisons sued The Rattlers and the Employee, alleging, among other counts:

• Misappropriation of Trade Secrets (Violation of The Defend Trade Secrets Act (“DTSA”); 

• Conversion; and  

• Breach of Contract (Against Employee Only).

Write a memo analyzing whether the Bisons may prevail on any of its claims.  In your analysis, please also address the Rattler’s strongest defenses, if any, against the claims. 

***

Essay Question #2:  Generative Artificial Intelligence in Film

You represent, Camilla Wyatt, a popular social media influencer who is not a member of any labor union. Wyatt recently completed filming an independent film, a political science-fiction thriller.  The film contract was highly negotiated with Mega Studio, as Camilla wishes to make impactful work, but wishes for her public perception to remain apolitical.  After filming wrapped, Mega Studio’s post-production team wished to enhance the film with voiceovers from Camilla’s character and contacted her to record additional dialogue.  Camilla refused, as that was beyond the scope of her contract, and  Mega Studio would not agree to additional compensation.  Subsequently, the post-production team used generative AI to do the voiceover additions for the film, mimicking the sound of Camilla’s voice.  Mega Studio also used the AI added voiceovers in promotional trailers and in commercials for the movie.  The AI added voiceovers were substantively not something Camilla would have been comfortable saying, even in her acting capacity.  Further, the added lines conveyed a certain political message with which Camilla fundamentally disagreed.

Camilla has sued claiming that Mega Studio’s use of generative AI to deliver the additional lines in her voice and as delivered from the character she portrayed has violated her rights of publicity and likeness, as well as her rights under the Lanham Act. 


QUESTIONS:
 

• Does Mega Studio’s use of generative AI to simulate Camilla Wyatt’s voice without her consent violate her the rights of publicity and likeness under New York law? 

• Please also assess the following claims under Section 43 of the Lanham Act,
  15 U.S.C. § 1125(a):

Unfair Competition and False Affiliation; and  
False Advertising.