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Lawyers with more than three decades of experience don’t typically get nervous. But cable news networks don’t normally interrupt programming for live coverage of court of appeals arguments. And major entertainment and technology companies don’t usually bet their entire business models on the outcome of copyright litigation.
So as Russell Frackman, a senior partner at Mitchell Silberberg & Knupp, stepped into a San Francisco courtroom to plead Hollywood’s case against Napster, butterflies began circling in his stomach.
“We are not trying to stop the Internet,” Frackman recalls arguing that afternoon in 2000 as he was peppered with questions from three federal judges. “That’s our intellectual property. That’s what we sell. Thirty years ago, I used to go into garages where people were making copied eight-track tapes and putting labels on them.”
Frackman got his injunction, and Hollywood later emerged victorious in a U.S. Supreme Court battle against Napster clone Grokster that has come to govern the evolution of online entertainment.
That a Mitchell Silberberg lawyer would play a key role in the Napster case is not surprising. Like the industry it serves, the firm — currently celebrating its 100th birthday — has evolved from a provincial fraternity into an international player, in the process influencing everything from the creation of the studios to the rise of record labels and their ongoing fight to remain viable in the face of online piracy.
“They’ve helped Hollywood studios and record companies navigate new technologies and have always been good at thinking strategically and being practical as the business has changed,” says Alasdair McMullan, senior vp legal affairs at EMI, a longtime client.
Though founded in 1908 by Shepard Mitchell and Mendel Silberberg as a general practice firm (Guy Knupp, a Stanford Law classmate of Mitchell’s, joined in the 1920s), the firm discovered Hollywood via Silberberg’s friendship with Columbia Pictures founder Harry Cohn.
By the 1940s, the firm represented United Artists and MGM Studios, as well as Ingrid Bergman and Jean Harlow. It negotiated the sale of Liberty Films to Paramount Pictures in 1947. And partners Arthur Groman and Eddie Rubin won the first major invasion-of-privacy lawsuit in entertainment when they defended RKO Pictures against a Tahitian girl who wound up in a documentary without consent.
During this era, the firm was integral in the development of the studio system, drafting many of the agreements that led film companies to control production and distribution as well as exhibition.
In a scenario that would be unthinkable today, lawyers from Mitchell Silberberg would often meet each other at the bargaining table in representing both talent and the studios that tied them to years-long contracts.
“Contrary to having conflicts, the studios would recommend to stars whom they should hire as lawyers,” says Hal Friedman, who has been at the firm since the 1960s.
Ironically, Mitchell Silberberg also represented Charlie Chaplin, Mary Pickford, Douglas Fairbanks and D.W. Griffith when they — looking to escape the growing power of the studios — co-founded United Artists.
The firm’s most glamorous client during those days was Howard Hughes, the paranoid billionaire who took over RKO Studios in 1948. Hughes refused to meet with counsel in an office and only rarely talked on the phone. Instead, he would show up at his lawyers’ homes after midnight with odd assignments, such as tracking down an RKO actress.
When Hughes died in 1976, a mad scramble ensued at the firm to find his will.
“Nobody ever turned it up,” Frackman says. “I suppose we could have been involved in one of the biggest estates in history.”
As swiftly as Mitchell Silberberg had helped build up the studios, by the 1950s the system began crumbling after the 1948 U.S. Supreme Court antitrust decision in United States v. Paramount Pictures.
Hughes owned the fewest theaters of any of the studios and decided it might be beneficial to put RKO on equal footing with his competitors. So Mitchell Silberberg negotiated a consent decree with the federal government, splitting RKO into separate entities for producing films and running theaters. Soon, Paramount and MGM also made corporate divestitures to please authorities, thus eliminating their advantage.
Like the entertainment business, the firm soon underwent a major transformation.
Both Knupp and Mitchell retired in the 1960s, and Silberberg passed away. The firm’s remaining partners — trial legend Groman, Chester Lappen and tax specialist Irving Axelrad — began grooming a new generation, including Abe Somer, who represented A&M Records (co-founded by former Mitchell Silberberg partner Herb Alpert), as well as some of the biggest musicians of the day: the Rolling Stones, the Beach Boys, the Mamas & the Papas, and the Doors.
At the same time, the firm represented MCA and Lew Wasserman in a dispute over the management of Dean Martin and Jerry Lewis. And Eddie Rubin helped solidify one of the firm’s calling cards, its relationship with the Association of Motion Picture Producers (predecessor of the AMPTP), by representing it in growing disputes with talent.
As the studios cut overhead in the 1960s and 1970s, the firm helped by “lending out” production lawyers to work on the lots.
Once the industry started to grow again, the entertainment legal landscape also began evolving. Mitchell Silberberg joined upstarts like the Ziffren Brittenham firm and stalwarts such as Gang Tyre in focusing on representing talent like Paul Newman, Dustin Hoffman, Jack Nicholson and Steve McQueen.
The early 1980s arguably marked the firm’s apex of power. When rival Kaplan Livingston Goodwin Berkowitz & Selvin folded, Mitchell Silberberg scooped up a who’s who of legal talent, before pressures set in.
“In the mid-’80s, the firm suffered great tension and the attrition of many of its most talented lawyers,” says Kenneth Kleinberg, a former managing partner at the firm who now heads Kleinberg Lopez Lange Cuddy Edel & Klein in Century City.
Kleinberg says that many of Mitchell Silberberg’s most senior partners abhorred percentage-based fee arrangements, which were becoming standard at the talent boutiques. This view created problems for the firm when Ken Ziffren and others began approaching young Mitchell Silberberg partners with attractive compensation offers.
As a result, some who would go on to become the town’s elite talent lawyers decamped from the firm, including Sam Fischer, Gary Stiffelman and Steve Warren. Others, like Kleinberg and Richard Finkelstein, left to take exec positions at the studios.
Meanwhile, Hollywood’s corporatization in the early ’90s put new demands on the firm.
“Record companies and motion picture studios started to hire a lot of in-house lawyers,” says David Steinberg, a partner specializing in IP and technology. “A lot of law firms like ours concluded that by representing talent, they were creating conflicts.”
So once again, Mitchell Silberberg adjusted. Although it maintains a talent practice far stronger than most firms its size, it has largely returned to its roots representing music labels and studios, becoming especially adept at helping them adapt to the digital world.
Frackman, following the lead of the late Howard Smith, has been integral to protecting the industry’s content online.
Likewise, labor partner Bill Cole has continued in the footsteps of Rubin, as well as former partners Harry Keaton, Tom Burke, and Nick Counter, to build a labor practice powerhouse. Cole represented the AMPTP in its recent standoff with writers and is now negotiating a new labor agreement with SAG.
“The firm has won hundreds of cases for us over the years and has been very valuable in terms of strategic planning,” says Counter, now AMPTP’s president.
Recently, the firm has charged into the burgeoning video game arena, and it has set employment law precedents, with partner Adam Levin winning an appeals court victory for Warner Bros. in a 2006 case brought by a former writers’ assistant for “Friends” who claimed sexual harassment based on ribald language used in the writers room.
“Regulating entertainment work environments had the potential to chill free speech,” Levin says. “As a result of the decision, everyone got sufficient breathing room.”
Mitchell Silberberg has grown to 140 lawyers, with new offices in New York and Washington. And it continues to evolve, with clients that include Columbia Pictures, Fox, Warner Bros. and Universal Music.
“A good lawyer in Hollywood is like having a good script,” says A.C. Lyles, a longtime producer and client. “All of us who have been represented by the firm have great confidence that they are leading us to great opportunities — and saving us from lots of trouble.”
Carrying the torch: From left, after a century in Hollywood, Mitchell Silberberg still services the industry with specialists like Bill Cole for labor matters; intellectual property litigator Russell Frackman; and entertainment and new-media practice chair Phil Davis.
Content protectors: From left, managing partner Tom Lambert; former MGM exec Patty Mayer; and employment litigator Adam Levin.
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