Don Verrilli, Former Solicitor General, Predicts How the Supreme Court Might Impact Entertainment

In late September, Donald Verrilli Jr. announced he would be opening up a new Washington, D.C., office for the law firm Munger, Tolles & Olson.

The fact that Verrilli, who served as solicitor general in the Obama Administration from 2011 to 2016 and won some big cases before the Supreme Court, including defending the Affordable Care Act and same-sex marriage, has joined private practice is no surprise. But the choice of a Los Angeles-based firm has turned some heads, and thanks to his pick, Verrilli might have the opportunity to soon play a key role in the future of entertainment and media. 

That’s because his new firm represents some key clients in the industry. The entertainment practice is led by Glenn Pomerantz and Kelly Klaus. The firm’s work in the past few years includes successfully fending off an injunction on behalf of ABC when CBS attempted to enjoin an alleged Big Brother rip-off; Warner Bros. over its Two and a Half Men termination of Charlie Sheen; and Fox in its still ongoing dispute over Bones profit participation. Perhaps the biggest sign that Verrilli could be tasked with important appellate matters for the industry is that one of Munger, Tolles‘ key clients at the moment is the Motion Picture Association of America. On behalf of the film trade group, it is defending a proposed class action over how films featuring smoking are rated suitable for children. Also, on behalf three of the MPAA’s studio members, the firm is waging litigation against VidAngel, characterized as an “unlicensed VOD streaming service” that is attempting to use the Family Movie Act of 2005 as its salvation from copyright liability.

Verrilli, a 59-year-old Columbia Law grad, envisions a wide-ranging practice that will include pro bono matters close to his heart such as voter rights and criminal justice reform. But he’s certainly expecting handling cases in the entertainment realm, too. Most notably, before he served as solicitor general, he scored an important victory when he represented more than two dozen entertainment companies in his first Supreme Court case, MGM Studios v. Grokster, a 2005 high court opinion that shaped the law on contributory copyright infringement.

The courtship began in late spring, says Pomerantz.

“We spent basically months talking about the fit and opening up a new office on the East Coast,” says Pomerantz. “We were only interested in doing because we found the right person.”

Verrilli had a lot of offers, as one can imagine, including going back to his prior firm, Jenner & Block. Ultimately, he says, he chose Munger Tolles because the “firm’s values were in perfect alignment with my own,” citing collegiality and the challenge of opening up a new office.

So what comes next?

Asked what big issues in the entertainment and media industries he could see being taken up for review by the justices at the Supreme Court, Verrilli identifies two.

“One is the extent to which the First Amendment limits right of publicity claims,” he says.

The high court has only dealt with state laws that protect names, images and likenesses just once. In 1977, it ruled in Zacchini v. Scripps-Howard Broadcasting, a case involving an entertainer with a human cannonball act whose entire performance was shown on television. The justices concluded that Ohio’s law protected Zacchini’s incentive to perform and that a lawsuit against a news media company wouldn’t flout free speech. Since that decision, however, many states have passed aggressive right-of-publicity statutes, and there’s been widespread confusion over whether celebrities and non-famous individuals can stop the exploitation of their likenesses in biographical films, video games and ancillary products put out by news publishers.

On Monday, the Supreme Court passed on the opportunity to review the First Amendment issue as part of a dispute pertaining to whether college athletes are entitled to be paid for their exploitation. The NCAA — represented by Munger Tolles — wanted the high court to review whether the First Amendment protects a speaker against a state-law right-of-publicity claim based on the realistic portrayal of a person in an expressive work, but that won’t happen just yet.

“It’s not the last word,” responds Verrilli. “i do think there is a good prospect that court will take up the important issue at some point.”

The other topic that Verrilli thinks might go before the high court is a bit underneath the radar, but perhaps he’s onto something.

“It’s the question of the application of 512c of the DMCA [Digital Millennium Copyright Act] to sound recordings under state law,” he says.

Broadcasters have been roiled by recent court decisions in New York and California that pre-1972 sound recordings are protected under state laws. If the rulings are upheld on appeals, it would mean that SiriusXM, terrestrial radio operators and maybe even restaurants, bars and sports stadiums will have to negotiate for the right to play pre-1972 sound recordings instead of relying upon blanket licenses under federal copyright law.

But that’s not precisely the issue that Verrilli is identifying. The DMCA provides copyright immunity to internet service providers that expeditiously remove works upon notice from copyright holders. The problem are those pre-1972 sound recordings that don’t fall under federal law. Does an ISP still get “safe harbor” for responding to a takedown demand from, say, the owner of an old Bob Dylan recording?

In June, the 2nd Circuit Court of Appeals cheered the tech community in Capitol Records v. Vimeo, ruling that safe harbor does indeed apply for pre-1972 recordings.

But the plaintiff record companies asked the district court judge last month to continue a pause on the case.

“The Record Company Plaintiffs now intend to file a Petition for Certiorari to the United States Supreme Court, requesting that the Supreme Court consider the issue of the application of the DMCA safe harbors to pre-1972 sound recordings,” they wrote.

Now, the very lawyer who has argued more cases than anyone before the Supreme Court these past few years, whose legal opinion was probably the most influential besides those of the justices themselves, is predicting the high court will indeed tackle the issue. 

Who do you predict will be arguing it?