The Term “Market Definition” in Entertainment and Media Law Doesn’t Repeat Itself, But it May Rhyme
March 24, 2025
Author: Steven Madoff
There’s an old adage that says, “History repeats itself.” But Mark Twain had his own take on this saying, “History doesn’t repeat itself, but it often rhymes.” In some cases, this also applies to legal concepts precepts or mechanisms; they don’t repeat themselves as much as they may rhyme.
In entertainment and media law this occurs with the notion of “market definition.” The antirust version of market definition is the process or tool for identifying the products or services (product market) and the area (geographic market) in which companies compete. Many antitrust and competition cases involve a determination of the relevant area of competition and market power in that area; but to understand market power you must first determine the market being considered.
For example, when judging whether a merger of supermarkets is appropriate, arbiters will need to determine the market share of the combined entity. But to determine market share they will first need to define the effective “market.” Is the market all stores that sell food? Are big box stores (e.g., Costco and Walmart) in the same market as supermarkets (e.g., Kroger and Safeway)? Are convenience stores (e.g., 7-11 and AM/PM) in the same market as supermarkets? Are dollar stores in any of these markets?
Similarly, in the entertainment and media landscape, when looking at the potential merger of VHF television stations, the arbiter will need to determine if local VHF television stations are in the same market as cable networks, streaming services, webcasters, UHF television stations or if the market is even broader so as to include other forms of entertainment services like radio stations, podcasters and social media websites. A broad definition of “relevant market” may lead to one result, while a narrow definition may lead to another.
In a completely different area of entertainment and media law, the notion of “market definition” comes into play quite often, though it is applied in a different manner. If you represent a copyright holder of a motion picture or a television program looking to market or license rights to that program or if you represent a motion picture studio or independent production company seeking to license a library or catalog of programs, you will need to “clear” the rights to those programs for exploitation in particular “markets” or media of distribution and for geographical regions.
For example, you will need to determine whether a grant of television rights to a program or catalog of programs includes the right to exploit those programs by means of physical media like DVD and Blu-ray discs or to streaming over the internet. Generally, that determination will depend on the specific language of the original grant, which will vary on a case-by-case basis.
At the same time, in determining whether you have the rights to the program, you will need to determine if you have the rights to all of the copyrightable elements within the program, like third-party music and songs. The grant of rights to include a third-party song in a movie may be limited to distribution by physical media. If you are now looking to license the program to a streaming platform, you will need to go back and re-clear that song to be able to license the program in the new “market.”
Therefore, “market definition” or medium of distribution would need to be determined not only for the motion picture or program, but also each and every copyrightable element within the program. In addition, the geographical market for which rights are owned will also need to be identified and cleared before licensing rights in any new media “markets.”
In conclusion, “market definition is a vital and often used concept or tool applied in entertainment and media law and it is used in different areas of practice and in different but “rhyming” ways.