Transcript
[0:00] Ladies and gentlemen, boys and girls, children of all ages, it's entertainment law update. Episode 136 for August 2021. The happiest episode on Earth.
[0:12] Music.
[0:18] Welcome to entertainment law update from Los Angeles California I am Gordon Firemark,
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett. Thank you for joining us. This is our podcast about entertainment law.
Where each month we pull together a round up of legal and business news and share our opinions and commentary and analysis and those kinds of things but before we dive into our content do let's first off what's new with you Tamara? Oh.
You know, it's funny. Brock went back to college, happy sad, happy sad mom moment. Yes. So that's good. So, enjoying being a little bit of a empty nester for a few weeks.
That's probably the new, the newest thing on our front. Repeating.
Well, it's hard to believe the summer has ended. My kids are all back in school although they're we're still keeping them home to keep them safe from
The various bugs that are out there and and so on I was at the the podcast movement conference in Nashville at the beginning of August and of course came home
Sick as a dog for a couple of weeks I quarantined here in my office and our guest room turns out it wasn't covid but I'm I'm I'm grateful.
For that but it wasn't a fun. A fun time. Yeah. Here we are. Anyway, anyway, everything, everybody's alive, everybody's happy and healthy and and we got my wife has now gone back to school as well started back in school. She's studying to be a nurse and.
[1:45] So between my teaching and their studio studying it's school school school all the time around here. Yeah, I know I didn't even think about it.
When you announced we were recording to anyone in your home before we started about your kids being still doing school from home this this fall so yeah yeah our our
Well, stay to California. They are allowed to go back into the classrooms. And my oldest son is vaccinated.
But the younger two are not eligible for vaccine yet and.
[2:16] I live in a community where some people will wear masks and some won't and some parents are telling their kids not to and it's it's just a little it's risky in our view my my daughter has a health condition that we gotta watch out for things and so
Just playing it safe.
Yeah, yeah, you know, what you do, what's best for your family. Exactly. The most important thing. Anyway, before we dive too far into our content, I just wanna
Do a little in memorial yesterday the music world lost one of the greats
Charlie Watts the long time drummer for the Rolling Stones has passed away no real legal ramifications that we're aware of but we want to express our sadness and condolences to his family and friends and bandmates.
[2:58] Yeah and and we do and we also wanna recognize the passing of Nancy Griffith,
For those that are familiar with kind of the Texas singer songwriter genre she was just one of the greats
Wrote wrote and performed many of her own hits but had top five hits with country singers Kathy Mattea and Susie Bagus as well as others and,
She's just one of those songwriters where nail I think I can probably go back and really appreciate her craft
So, just just sharing that information. That's it. That's a big loss for the Texas community as well as the Nashville community I I heard a lovely conversation on NPR with Cathy Mattea.
On
[3:46] I guess it was maybe Sunday morning. I can't. I was in the car. Saturday or Sunday and just really just a wonderful conversation highlighting her life and her career. So, so too great. Set two very different genres.
That we will be missing from the music community as we as we move forward. Yes, indeed. Well, as you may have,
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[4:08] Inferred from the way we've titled the show and the way we opened up this time. This episode is chalk full of stories about Disney. And we'll start off with the news about the bare necessities case.
Guilty sin versus disney enterprises in the California second of all district in 1963 Walt Disney Productions Commissioned Mister Gilkesen to compose some songs for,
Potential use in the animated motion picture the jungle book and the most prominent of those of course is the bare necessities which was actually used in the film.
And of all all of the songs that he that he created were done under a work made for higher agreement.
[4:52] Yeah, which in <§6 C reads.
That he would receive quote an amount of money equal to 50% of the net amount received by our music publisher on account of licensing or other disposition of the mechanical reproduction rights,
In in two material so written by you close quotes now six of the songs he wrote were used with,
Bonus features in the home entertainment releases of the movie and Disney hasn't paid any royalties since the film was released on home video in 1991.
[5:23] And that also includes no payment of royalties for later releases on other media laser desk DVD blue ray and so on.
So in 2013 yokey sends air suit Disney for breach of contract over those royalty penants but Disney,
Book a position at the contract was from mechanical reproduction royalties only.
[5:42] Regarding the DVD sales disney said the suit was time bard there was a 4 year statue of limitations they filed in 2013.
For royalties relating to releases in 2007 and 1991.
The court granted the Gilkinson Airs leave to amend they amended their complaint in 2014 and then the court dismissed that case.
In 2017 they brought another suit,
This time the jury awarded the errors total damages of about $350000 for quote the lump sum basis for song uses with static images,
And lyrics in the song karaoke. Oh god, karaoke. I see. Excuse me. And in 2019, the judge awarded the Arizona of.
699003 $116.40 in future damages. Excuse me.
[6:37] Then in 2021 they have appealed and Disney's relying I'm sorry Disney guesses people Disney's relying on <§6 C to interpret the contract that the royalty rights are limited to 50% of the net amount received by,
The music publisher for exploitation of mechanical reproduction rights,
And the court found the following. That the 1963 contract didn't obligate Disney to pay royalties,
When licensing fees weren't charged. So, I'm just gonna interject right there. So, here's what was going on. The original agreement was signed with Disney, Disney, then, assigned the agreement.
[7:14] To their publishing arm,
Wonderland, I believe was the name of it. Okay. Sorry, a page of my notes somehow didn't make it from home to office. I'm like, where did that page go? It had all the good stuff on it. So, so, I don't wanna say there was a brother-in-law deal.
But well there was no.
Disney didn't pay the publishing company any royalties and connection with certain exploitations so that means the publisher did not collect anything from which they could then.
Remit 50% if it was a mechanical reproduction right so that was one of the issues that was like a good is licensed issued from the publisher so but a home video release isn't usually considered a mechanical anyway is it,
It's not and that's that's a whole lot of what goes into it is that you know was that a mechanical it was a synchronization license but what they the family did get paid on at least from the.
[8:15] Jury verdict was there were still images.
In some of the bonus content so there was no synchronization of the sound with the moving image and they were able to.
Argue successfully at that level that that was a mechanical reproduction. Yeah. So.
Well the court also said that the plane language of the contract gives of the contracts gives Disney the right to exploit the mechanical reproduction rights without paying royalties
The errors did not present any extrinsic evidence supporting any different interpretation of that contract and there's no principal in California law that justifies disregarding
The party's objective manifestation of intent as expressed in the language of the contract. So, there's need ducks.
Liability on this one. Doctors the bullet. Yeah. Interesting read. I actually and friends and colleagues with.
The attorney for the family. I I have not had a conversation with him. He's a Texas lawyer. So I am confident it was well lawyered on both sides. And,
You know, but it but read, read the case, I think it's got some really good information there as we will continue to work with these very historical.
50 plus year old contracts for interpretation.
[9:40] And as always, of course, the links to the news articles and the the case are in the show notes so you can find it at Farm Run Farm at Entertainment Law update.com. This is episode 136,
And they can always go to firemark.com and find you and that's true links. Yeah, I always cross post the.
Podcast there too but anyway another lawsuit this time about the film
Inside out. Now, this is gonna sound like deja vu all over again. You recall, we've discussed several US lawsuits relating to the film inside out.
The first and most significant involving claims by a child development expert.
That the Disney film infringed her television show idea the modesters and the second involving allegations by a writer that the movie infringed a poetry book and movie script and the ninth circuit has ruled in favor of Disney and both of those cases and the Supreme Court recently denied certain
On the moodster's case. Well, now we have another copyright suit against the film this time arising in Canada.
[10:42] Damon Porschem has filed suit against Disney in Ontario claiming that the film infringes his 14 minute live action student film.
Produced in the early 2000s also titled Inside Out,
And it's centers on the internal life of a boy named Lewis and how his behavior is controlled by five organs.
Each personified as a character, brain, stomach, colon, bladder, and heart.
Disney's filmers of course also about the internal life of Central character controlled by five character
Components. In this case, his emotions join anger fear sadness. Sorry, her emotions join anger fear, sadness, and discuss. So, pushing argues that the similarities between the two,
Works extend from the title over arching themes down to my nude and specific details he claims that his school shared in college is known for producing first class animation talent.
[11:36] And so his work may have come to a Disney's attention and also that four of his former classmates actually worked on the Disney movie.
Are we seeking in a junction and financial damages and accredit? So far the court? Yeah, well, you know, more power to him. The the court has addressed only the question of jurisdiction and they've overturned a lower court.
And allowing him now to proceed against the majority of the name defendants,
Despite various objections and so on. No date scheduled for trial yet. So, we'll wait and see but something to look forward to in the coming,
The other two cases we've talked about there was always maybe this summer sortion of how Disney.
Could have had access obviously that has to be asserted,
As part of an infringement claim you always wanna assert access in case it's not as substantially similar as one might wanna be yeah unless you've got direct evidence of copying you know but right and but.
[12:42] I look forward to the to the the defense argument of who these four former classmates what their role was in,
The film Inside Out. Mm hmm. Just to say, I'm curious of this exposure because if,
I'm kinda thinking shared and maybe a small college. I don't know. I'm not familiar. I don't know much about me either.
But it seems like in that type of major with those kinds of productions you know if they're within a year or two of you of your class at school they know all the projects. Yeah of course.
You know, I mean, in the US courts someone involved with, you know, the film working and working on the the defendant film,
Isn't usually enough to establish access unless that person worked in a creative capacity where they might have brought their knowledge of the original into the.
Into the discussions and so on. So, if these animators were really just doing it in paint. Income color, excuse me, then, I wouldn't expect that there's a lot of.
[13:45] Create, you know, they did, they're not deciding story line and and overarching concept, but you know, if one of them was a writer or or.
Maybe an assistant director or something like that. Maybe there is the kind of access that the court need to look at. While they've asserted that.
[14:03] In the Canadian court we may have to have one of our Canadian colleagues join us. Yeah. In the future to talk about is access even a factor in a copyright claim.
And you know, hey, guys. Give us some feedback. Yup. So, entertainment law update.com. The little red flag on the side of the screen will give you a little recording tool. You can give us voice feedback or you can Email us or take what we'll give you all them.
Hey girl I know Greg paying listens and he's we've been on his podcast before so maybe he he will,
Give us some feedback on the elements for copyright infringement in in oh Canada,
Hey, we talked about breaking into song earlier before we recorded. So,
I'll limit myself. Alright, well, you recently did an interview for news radio WOA about this next Disney story and we have a link to the interview in our show notes. It's periwinkle entertainment.
[15:01] For the services of Scarlet Johansson
Versus the Walt Disney Company here in the Superior Court of California and you're in LA County Scarlet Johansson is suing the House of Mouse over simultaneous release of Black Widow on both the big screen and,
The Disney Plus service.
So, you wanna jump in on this one? Yeah. So, what one? I had a whole lot of fun doing the interview. You know, the target audience wasn't necessarily lawyers which is who just what our target audience is. So, so go go for your listening, enjoyment, go listen, but but understand that wasn't the target.
The target audience. But Johansen signed a contract for the Marvel film back in 2017. Also keep in mind this
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[15:48] She's been playing the Black Widow for years but this is the first feature film for that character. In according to her complaint, they're allegation is the film would have a theatrical release of no less than 1500 screens.
And she also alleges that quote theatrical release is generally known in Hollywood to Maine the release is exclusive,
To theaters so this all kinda goes into this day and date release,
Abit simultaneously happening in the theater and then happening on other services in this case Disney Plus but it was important to Johansson that the contract provide.
[16:27] Provided the book of her compensation to be on the back end so it was gonna be based on a percentage of box office take.
[16:36] And again keep in mind all of this was negotiated well before we had heard of covid pandemic
2017. Or before we had heard of Disney Plus or most of the state services. So we get to 2019 Disney announces this launch of
Of Disney Plus starting in Joanneson and her reps are asking questions.
[17:02] Any emailing and it's documented and I love reading their email responses from Disney and Marvel's lawyers cuz they just don't find her to anything but
You know, hey, if this is gonna happen and we're gonna have this release, you know, we need to discuss this and and.
In Marvel's Chief Council? Is saying, you know, we if
If this is gonna happen, should the plan change? We need to discuss this with Johansson to come to an understanding as the deal is based on you know, large, very large box office, bonuses.
[17:37] She at Johan's and ask or her team ask for kind of these confirmations that we're gonna do something multiple times over the period,
Obviously, with covid, there was a pushback on the release date. It should have been May of 2020. It was delayed multiple times. Then, in September 2020, it was decided it was gonna be a May of 2021.
I think we would had the actual release date maybe in July 2021 just this past 6 weeks anyway
So following speculation that the film could be delayed again.
Or subject to simultaneous release Marvel's president stated in a January 2020 interview that Disney was making the decisions can turn concerning the release of Marvel content on the platform,
Disney CEO stated in February 2021 the film would still get that theatrical release as initially intended.
[18:34] Then in March it was announced to be released in theaters and on Disney Plus simultaneously so money wise 60 million for their premiere weekend.
And it was also on Disney Plus which great you can pay 30 bucks in your whole family can watch it not just once but as much as you wanted to yeah,
I'm sorry it gained over 60 million on the Disney Plus premiere access the US box office opening weekend was 80 million international was 78 million it dropped substantially.
[19:12] And so you know she files the suit claiming one it led to an increase of Disney subscribers and their 4% increase in their stock.
[19:23] You know obviously it devalued her earnings is the assertion claim right about how.
The CEO and the former CEO of the company our compensated right that they're performance metrics are those Disney Plus plus performance numbers and the stock price numbers and they get bonuses based on that so that that's and that's man,
I feel bad all the time when. You know, the employee, of course, she's not an employee but when the.
When the CEO's,
Get these huge bonuses and it may not always be what's best for the people down the food chain and how they're compensated. You know, it's interesting so she shoots Sue's for intentional interference. She sues Disney, her contracts with Marvel.
That Disney intentionally and feared interfere they induce the breach of the contract.
And you know, Disney is arguing they fully complied. They made some allegations that.
To I felt like painted her very negatively in light of covid but what we know is,
This was not necessarily covid issue it was in the works well before covid and and to me the question is if we just look at the four corners of the contract.
[20:44] Did Disney breach? Or did Disney induce Marvel to breach? Because the four corners of the contract does not divine.
[20:55] Her guarantee of a wide theatrical release including two two be limited to theatrical release only.
It didn't say anything about not doing a simultaneous release. I mean, we've got in my stone, with Disney's Carilla.
In the same situation John Krasinski and Emily blunt a quiet place too along with pyramid and then they're we're settlements that warner paid out additional compensation,
When they released a variety of movies on HBO Max day and date. So,
Hey you know I don't know why don't you bring us up to date on WhatsApp after is doing well what do you think what do you think the future's gonna be yeah yeah it's not just saga after the other unions have taken no to all of this also but,
But Zack after his you know been sort of public by the same look this is going to affect everyone on a production not just the big stars and and.
[21:50] And especially all the performers.
Compensation isn't they they wanna make sure that the compensation in the deals is an undermined by a change in these strategies and eliminating the exclusive,
Theatrical windows and things like that. The writers guild settled with CBS All Access in April,
For three almost three and a half $1000000 for shows that had gone straight to that streaming service,
And that negotiation resulted in a new approach to measuring the value of the straight streaming content but the concern critics are saying that this doesn't account for things like an increase in stock price,
That's caused by growing subscriber base for these things but I'll say, you know, box office bonuses and gross participation deals also didn't do anything to address,
Increases in stock price or bonuses received by CEOs and those kinds of things. So, this is nothing new really. It's just, you know, at that we have a new medium.
Or new distribution platform I guess you could say that wasn't contemplated at the time the original deal was made.
[22:56] And so, you know, when you look at the plain meaning of the contract on the four corners of that contract, the plane meaning of distribution window meant something in 2017 that is a little different now when you say the theatrical release.
Nobody was thinking about these date let me know a few day and date releases of things on home video and stuff but it really wasn't considered sort of the normal way of doing things so,
If we have a new normal that may impact how with the courts look at or the juries look at these okay well let's let's back up yeah.
[23:28] To bear necessities which we just talked about.
[23:34] Yeah. Technology changed. And the contract was enforced. Sure.
So will we start we'll contracts be looking different moving forward
Yes. You can say that again. I I can look into my crystal ball in a firm match. I can look at the paper on my desk and confirm that.
That doesn't mean how are,
You know, are we gonna get in? All these law school awards, parole evidence. Yeah. Is it truly just gonna be the four corners of the contract? This case is gonna settle and we're not gonna get a good decision but you know, yeah.
[24:17] There's there's.
The contract says what the contracts is. We're gonna have to come in and see if that definition actually is defined the way that her legal counsel is defining it.
Well, you know, the next round of union negotiations is I think where this is really going to be a hot button issue for everybody. And if the unions
Choose to make it so and and the studios are willing to you know even talk about it I think they'll have to at this point it there's no way to avoid this and.
Yeah so that's what we're waiting for but it's all those of us in the non union space and a lot of the deals for the productions that are ending up on the streaming services are non union deals. So that's another area you know.
[25:00] Obviously these big star platform the temple kinds of releases are but there's a whole other economy of non union that's you know alive and well and.
We've gotta be on lookout for that as well. One last little bit of news about this case is that just this morning,
Reports are out that the current judge on the matter has recused himself because he used to work at the law firm of oh Melbony and Myers which had done work for Disney and he still seems a pension from that firm so
He's gonna step away and let some other judge handle the case and and sounds like the.
Absolutely the right approach to things. There you go. Okay. So, I mean, I, everything is changing and.
[25:49] You know my my first initial thought when I read all of this is you know welcome to the music business
Again let's again go back to fairness necessity. Right. You know technology changed everything. There's my quote. Somebody can quote that. Technology changes everything.
So, it'll it will be fun, fun to watch, and again, I think both you and I while
While we might hope that we are representing the Scarlet Johansson's of the world. Many times we're not but we're representing people who are just as valuable to the process.
[26:26] And we wanna make sure they are compensated appropriately. Yes, indeed. So.
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[26:33] Next up we have a case this is not a Disney case we're shifting gears a little bit dealing with some footage of the events of 911.
[26:43] Was that 2001, 20 years ago. Wow. And yeah, 20 years ago, this next month, yeah.
So, this dispute has been cooking along for about 6 years. Finally starting to see some resolution with multiple defendants.
Getting various verdict. It's an interesting mix mishmash of things. Anthony Fiorinelli.
[27:03] Brought the case 6 years ago he had taken footage from the side of the disaster he filmed a lot of that famous footage of the twin towers being
Struck and collapsing. Initially, he had licensed it out but then he got into a dispute with CBS. Which he claimed to take him more than what he had licensed to them. That case was quickly settled,
Cbs still had his sub licensed so much of that footage that eventually his work was spread into other works he hadn't directly authorized including all of her stones movie World Trade Center Celsius 41.11 which is a,
Conservative approach to the story in response to Michael Morris movie Fahrenheit 911 another film 911 the day that changed the world,
In total his footage ended up in 16 different films in each of these instances it only is a few seconds of screen time,
And the first major aspect of the judge's decision pertains to the argument that as such the use was diminimous,
Judge Vernon Broader characterized those arguments as a mathematical one and he says I find that the gravity of the footage does not defeat its qualitative nature in each of the 16 films.
[28:15] The 911 material is in clear focus and occupies in all but two films the entirety of the screen so he's saying.
Substantive not
Quantitative quantitative not quantitative counts in that what's the the element,
Then he moves on to the question of fair use more broadly and hear a few of the defendants find their decisions influenced by,
The Andy Warhol case from the second circuit specifically guidance that is secondary work only rises to being transformative,
Hey Facebook call something more than the imposition of another artist's style on the primary work. So when documentaries are using this 911 footage it can't be simply for the same purpose.
That the footage was originally used in newscasts,
The judge says I find the original purpose of the 911 material no different than the purposes of the uses in miracle survivor crime scene 911,
Dtcw Stairway B relics how it was and the CBS 911 newsrails.
The material he says is included in those seven films to depict what the original work itself illustrates that it being what happened at ground oh on September 11 2001 and over the course of the following days including the recovery efforts so producers using the footage.
[29:38] That way. More sort of out of luck. Now, producers using the footage to build some sort of thesis.
They're better. The judge saying, a reasonable juror could be persuaded by the argument that they
Purpose of the uses in oh the conspiracy files and death ray is to educate viewers about conspiracy theories surrounding 911 that is an arguably different purpose than the original aim of proving photographic memory of the
911 events four posterity.
[30:09] Over stones use was even more transformative according to the judge he showed a couple of seconds of the front photo journalist footage in the in the stone film
To show how families watch the events of the day unfold on live TV and have a wondered weather their loved ones were safe he said that was very transformative use.
Regarding other uses by overstone the judge notes that he,
The stone restricted the 911 footage to television playback so it's always appearing on a TV screen that people are watching I find that stones commentary he says in featuret
Ambused the 911 military with new insights and understandings concerning the rational behind,
Storm cinematic choices and use of that material. In other words, the feature at his essence, a behind the scenes view,
Of stones movie from his perspective and it's clearly also transformative and then paramount beat the copyright claim entirely so yeah,
I really think it's, well, one, you wonder if Oliver's stone.
[31:12] You know his team just had a better concept thinking through the fair use.
[31:17] Hey Facebook better lawyer I don't know but you know they did the court put the transformative factor as a,
Under purpose and character. The nature of the original and this is where a lot of times we hear this talking about the original is just facts.
And that did not necessarily sway the the judge here because it was just
It was factual reporting of the day and this is all happening rapidly what kind of creative choices is the photographer videographer taking
In the midst of a disaster. Yeah. You know, so a mountain substantiality. We talked about that that that
Even though it wasn't very much it was very substantial. Affect on the market. I I think it's a good read. I also posted a link.
To another 911.
[32:13] Photograph case the North Jersey media group versus Pyro which is sided I'm gonna go back and put in the link as well in our show notes for the Andy Warhall case which we've talked about
So that we've kinda got the whole picture there. If if you represent photographers, videographers,
Or filmmakers. I feel like these are some really key. We're actually getting some really key, timely, relevant cases.
Yes, indeed. With I think some good facts.
You know so not only we're not having a bad facts bad law type decision. Yeah no definitely important to read and be familiar with these cases for,
You know how we advise our clients and whether we take cases in location against uses of these things and and all that stuff.
[33:05] Great. Well, the next story involves it's not the Disney frozen. It's about frozen mechanicals. My brain went well.
What? We have a frozen case. We had some discussions during our our weekly production meetings with the team as well. So that's why I thought it was a fun way to
Play on the disney theme here. But this is about the current copyright board copyright royalty boards.
Review of statutory mechanical licensing rates that were licensed rates. Excuse me around copyright.
That board, you know, they're in that this is what they do but the mechanicals have been frozen. That mean meaning there's been no change in the rate,
No adjustment for inflation or anything like that since when what is it 16 years now something like that yeah 2006 and before the end just to give everybody history the first rates were set in 19 oh nine,
They changed in 1977. Yeah.
[34:04] I just wanna get this out here before we go through the whole conversation. The rates are too low to start with. Yes. So,
Okay. So, originally, originally in the in the early part of the previous century, it was set at ¢2 per copy made. Now it's up to
All of 9.1¢ since 2006 so the CRB is supposed to review this every few years and every 3 years or something like that.
That they're supposed to review it and and set the raid and they've they've been leaving it in place.
The National Music Publishers Association and the Nashville Songwriters Association International,
Are both trade organizations and they and the major labels Sony music UMG recordings warner music group group.
[34:52] Who also own many of the major music publish it easy for me to say music publishing companies in filing a motion to adopt a settlement of statutory royalty rates as part of that motion and propose settlement.
There's an illegal unmemorandum of understanding between the named parties that couldn't indicate that the agreement to the settlement is conditioned on the terms of a separate memorandum of understanding the requested settlement asks the
Or the of the judges to continue to freeze the mechanical rates on physical copies and downloads at 9.1¢.
Well the songwriters guild of America Ivors Academy ATX musicians the side of composers and lyricist music answers the screen composers guild of Canada the alliance of
Latin American proposers and authors and a handful of the whole host of other organizations representing composers and and publishers have objected to that proposed settlement.
And then additionally, there are some individuals. Helianne Lindval
David Lowery who is a well known name in the music publishing arena and Blake Morgan have joined together and filed their objections and there's all kinds of bassies,
First and foremost among them is that.
[36:07] Their argument that they these organizations don't have the authority to negotiate for non participants at the NMPA and the Nashville songwriters,
Organization are not copyright owners. It they doubt that they have expressly obtained authority from any of its members to negotiate the settlement on their behalf. They argue that some songs are co-published or administered by publishers that are not a party to the,
To these things and that freezing the statue royalty rates for yet another 5 years is essentially granting me reduced rate license.
Lots of co-publishing or administration agreements include a restriction on publishers that prohibits them from,
Granting licenses at less than statue rates so it's there it is they also say that the limit that the court should the board excuse me should limit the settlement only to the named parties to that agreement,
Or open things up and shine some sunlight on the settlement if it applies to all songwriters in the world.
[37:07] Hey that the language of that memorandum of understanding which was originally not released and then it was later made public in a in another filing.
Seems to have a ring of their being a quid pro quo directly related to extending these frozen rates that,
A fair reading of that memorandum suggests in me even require.
That the consideration for the MOU is tied directly to extending those frozen rates in the proposed settlement.
That has a potential to be explosive if if anybody agrees with that particular argument.
[37:40] Yeah, I mean, historically, the NMPA and the Nashville songwriters association have entered into also NMPA, entered into a settlement.
[37:51] I guess with YouTube as an example. And if you were not a publisher songwriter member of NMPA you could opt in or opt out. Yeah.
And and I'm wondering if this is how this happens but it very different. Youtube is a private third party. It is not.
Think government setting the rate.
[38:17] So how can you opt in opt out if the government sets it or freezes it?
You know it's a statutory rate that theoretically applies to nothing rightly it would apply to everybody. It it applies to everybody so how how can I as a publisher,
I'm just kinda we're all playing devil's advocate,
How would I don't understand the vehicle for opting and or opting out? It it is what it is. Yeah.
Why man I guess the the board could say you know something like the the new rate will be this unless you've opted into the settlement.
Okay. Now, let's talk about how that's gonna happen in the real world. So, well, right and I'm how in the world are.
[39:07] Well, okay. So, record labels are the ones that then won't need to apply this rate in their licensing.
Are they real? I understand their software could do it. Are they really going to? Everybody's gonna get lower right. Except for the people who can go sue and enforce an audit.
Well, and especially that's more than the next arguments is that both the buyers and the sellers of the songs in most these instances at least under the these.
Participants in the MOU and the settlement are the same well owned by the same companies.
[39:43] That that on the major labels, right? The publishers and labels are in many instances both owned by the same parents.
[39:51] And so, the settlement doesn't really, there's no arm, there's this sort of arms length negotiation going on. Oh, right. This is the brother-in-law deal.
[40:00] They they also pointed that vinyl is a booming business.
And that there is, you know, market, the mechanical rates are still a relevant thing. I guess you could say. And.
What else they say that despite the green parties decision to accept a frozen rate because they believe physical is declining as a configuration there was a very small survey conducted by artist rights watch of self selected songwriters.
Where 26 of the 26% of respondents said that,
There's songwriting income from physical sales that accounted to more than 16% of US record industry revenues last year.
Exactly sure what the significance of that is in six you know,
More than 16% that's that's a big chunk given how most people consume music these days.
I don't understand why.
[40:56] Organizations that get paid for the use of their songs are ever arguing for less money.
[41:05] Yeah. Hey, I mean, I get the, I don't know if they think by arguing to freeze.
[41:14] On the physical that that is then gonna give them more bargaining power for the streaming may it maybe that's it.
[41:22] It seems kinda toes those rates are too low as well.
Record label clients too now. Obviously, whatever the statutory rate is, that's what I'm gonna tell my record label clients to pay unless and until they argue something that would secure, straight, but.
[41:41] Anyway I'm sorry that the commenters also say things like well the the they could the court should limit the settlement rate to the settling parties I don't know how you do that with a statutory thing
They could set a higher rate for non-settling parties but again then who's gonna be in both the incentive for anybody to settle or return to linking the rate to the CPI or some kind of an index to keep up with inflation and those kind of
That seems like a sensible approach to me. They also talk about the controlled composition clauses and recording contracts.
[42:15] But you know that's a function of contract between you know parties that are theoretically represented and and and that there is a fair market value.
And then by asking to raise this rate it might be determined that it should actually go down to oh this is the record labels arguments.
Due to reduce throughout the rates that record labels paid to their artists who are also songwriters.
[42:37] There is a fair market rate that's actually lower than the statutory rate but.
We also I feel like within the last 12 months we discussed that was it BMG said that they were removing the control composition clause from their recording contracts maybe forward,
So, you know, this this settlement and proposed.
Continued freeze of things and by the way if you search on the #frozen mechanicals as one word you'll find a lot of stuff out on the web about this and
Chris Castle has has done a lot of writing on it and he's republishing all the comments that are being submitted in these board proceedings and so on. So,
Some good reading out there for for folks that are interested and want a little more information about this but you know all of this is against the backdrop of.
Some record labels recognizing that songwriters haven't been paid enough. And some a few music users,
Similarly recognizing that artists, songwriters, publishers, they all, you know, they all feel.
That the songwriters aren't getting a fair slice of the of what is it of the revenue pie for music these days.
So in historically that's always been the argument you know was the.
[44:00] In relation to what the artist negotiates. Their rate.
[44:06] Is is the publishing being paid accordingly in this really does go to this kind of I don't know. Willing buying, willing seller, just it.
This this is all also all the same conversations we had leading up to the MLC and that passing and now I think it is this the new new part of it in relates to.
[44:29] Well the mechanical rate. And everything else is that there are so many small independent.
Songwriters and publishers many of them the same people who just don't have the resources to participate in these kind of proceedings,
And so there's sort of a due process thing going on here that's just a function of the size of the companies that are settling and agreeing in the size of the organizations that represent them it's so disproportionate to who most of the.
[45:03] Creators.
[45:05] Are. And and so it's just a sort of questions of fundamental fairness as well going on here. Yeah, there's due process in the sense that there's a notice in comment and,
In fact I think the the board actually extended the comment period this time around cuz they wanted more information more input.
[45:23] You know even to assemble a code in argument about that it means getting some lawyers involved or really applying some.
[45:32] Complex legal technical thought about all this stuff that most of those independent artists just aren't equipped to really,
Meaningfully participate in these things. One of the groups that had responded was ATX musicians. So, I am,
Get friends and colleagues with one of the the founders of that, Nakia, and so I have not read the brief. I didn't have anything to do with the brief but now I'm going to go read that brief. So, ATX abbreviating for Austin,
So cool. I'm interested to kinda see what what therapy has to say. I did.
Also related but maybe not related unrelated Chris Castle lives in Austin now. So, we have a couple of interesting theater law cases that have made their way through the courts recently. The first of them is,
The case of.
See if I can say this right. Code Skya versus Gay. This is a DC court of appeals ruling that affirmed a district court dismissal of a false light claim brought by
A person against the director and playwright of this play this fictional play.
[46:47] I'm gonna call her the planet from this case cuz I'm not gonna try to repronounce that name. Sued the director and playwright of the show claptocracy. It's a fictional play inspired by the political rise and fall of the planet's husband.
I'm gonna say it again.
Her husband Mikayle the head of the Russian oil company Yukos was a long time political opponent and critic of the Russian president Putin and in 2003 he was arrested by Putin's government for promoting democracy,
And fighting corruption within the red Russian federation the play click clubtocracy was a fictional play inspired by some historical events and it ran,
For a month at the arena stage in Washington DC,
It opens with Putin reciting a Russian absurdist poem followed by michael's pursuit of end of the planet and his eventual arrest on false charges.
Because he check champion economic freedom she claims that the play falsely portrait her as optitute and a murderer,
And in her complaint she asserted both false light invasion privacy and intentional infliction of emotional distress the district court dismissed the complaint.
[47:58] Emphasizing that the play was a fictional one and that
By custom the signal to viewers at the events involve dramatizations rather than factual depictions of historical events was there. In other words, just record found that the place representations could not reasonably be seen as communicating or playing
Facts about the real life person. When I went to the court of appeals,
They agreed with the district court the play is depictions would not have reasonably been understood,
By the audience to communicate actual facts about the real life in it. So the rule they cite the rule.
They pointed first Amendment claiming the first amendment renders immune from suit statements that can't be reasonably interpreted as as stating actual facts about a person and they found that the rule.
Coming from definition suits is also appropriate in the false light context. Then they found that the.
The pictures of Anna couldn't reasonably be understood to communicate actual facts about her relying mainly on the context or genre of the work containing the alleged false light.
Because it's a theatrical election production it automatically they said signaled to viewers that the events were dramatizations rather than factual depictions of that historical events.
And that no reasonable viewer could.
[49:14] Look at the play as an accurate historical representation they pointed to some defining features of the play it depicts a tiger as a companion for the often comical potent character.
So it's a tiger sort of metaphorical in the way it's used in the play,
Are also featured the ghost of a syrup a Siberian mayor who's only visible to Mikayle and the throughout the play the the Putin character recede,
So recites and absurdist poem. So, no way you look at this and say this is factual. This is an interpretive kind of a thing.
Finally the court found that the scenes that she was prominently featured in didn't stray from the plays genre generally as drama and even featured some dramatic devices themselves and not like I get into all the details so somebody judgement court affirms
The dismissal of Anna's complaint. By some rejectment.
And her falls like claims her. Are out. So, yeah and this is again, we kinda, I just starting to get lots of.
[50:17] Lots of law. I mean, I mean, it's exciting because they cite that to have one case that we we've talked about multiple times and this was in.
I'm I'm sure it was in federal court because of a diversity issue,
But it did apply district of Columbia law that was I was actually looking for that to see what was the law that was applied.
Regarding the invasion of false law false light invasion of privacy and intentional infliction so it was it's funny I is it state law is that the right thing to say it's anyway it's the district of Columbia,
Yeah.
That the court analyzed even though it was in a federal court. Well, and this is just,
Another situation where the court is out is sort of bringing in the traditional defamation analysis into a false light case.
Even though they're you know I don't I'm not exactly sure why she didn't sue for defamation. Maybe there's maybe she's considered a public figure. I don't know. And.
[51:19] Yeah. So, some questions in my mind about are these two, is the false light torque and the defamation torque real are they sort of.
Getting blurred and merged into one one sort of thing.
That'll come as we get more on this subject. So, our other.
[51:39] Theatrical related story is just a final wrap up on the jersey boys. Okay, I'm laughing cuz we've said final wrap up. Well, in this case, five times. I think we have. Alright.
Well, the bottom line is final final. In June, the Supreme Court,
Denied search Ferrari on the case and so there's no further appeal for anybody,
This is the case where Donna Corbella the wife of the author who had ghost written.
[52:09] The band member Tommy DeVito's autobiography sued the producers and authors of the the musical of the jersey boys which depicts the history of the four seasons from its origins in New Jersey in the 50s.
All the way up until 19:90 when they were inducted into the rock and roll hall of fame she argued that her husband had given
The producers of Jersey Boys a copy of the written autobiography back in the 80s but never published it
She claimed that the musicals creators infringed on that copyright in that book and the question of the court then was whether or not Frankie Valley and the other defendants associated with Jersey Boys infringed on the copyright
The Nevada Federal Jewelry found infringement but the district appeals judges unanimously ruled that any similarities in the books were based on unprotectable historical facts so there was no infringement of any protected components of the
Autobiography. The ninth circuit found that the musical did not infringe the copyright in the autobiography. The court determining that many of the disputed elements were on predictable
Historical facts. Thus, no copyright infringement, and.
[53:13] But the events that were portrayed were portrayed as fact and so on,
So this asserted truths although that was the interesting part that's right the court adopted the asserted truths doctrine which basically says an author who holds that they're workout as nonfiction
Or as fact can't later claim in litigation that aspects of the work were actually fictional and entitled to full copyright,
Protection. So authors can't claim that,
Details were fictionalized or for copright purposes after holding them out as historically accurate factual kinds of details. So, no copyright infringement and at the end of June, the Supreme Court tonight sort.
Holding remains in favor of the producers of the play and I think we will hear no more about this until it's sighted another cases.
[54:06] Case we've had on entertainment live take podcast
It was at the very beginning I have yet to see the play but i am seeing it,
Hmm. Either this year or first of next year, it's part of the musical. Yeah, it's part of the musical package. Yeah, full package that's coming to Dallas. So, one of my good friends, it's her favorite.
[54:35] Musical. So, I'm excited to go see it but you know, now maybe I can go and watch it in peace. Yeah. Since we, since we know the dispute is over. Yeah, your mind will be at ease while you watch it. Yeah. I hope so.
So hopefully Corbello is is taking it,
In the manner intended by the song Big Girls Don't Cry. Sorry, had to do it. In an event, oh brother, if you haven't seen the movie,
Don't watch it till after you've seen the musical but it's also fabulous. It's really well done. Directed by Clint Eastwood. And.
[55:13] I haven't seen the movie either. Yeah. And I will say a part of the reason I haven't seen them is it just ruins it for me. I hear you.
Yeah. When when you feel like you're at work, when you shouldn't be. So,
Anyway I but neither have I seen the the showtime show Billions which we talked about in October 2019 and March 2020 but it it is done I think it's Shull versus Sork in second circuit US Court of Appeals
Real life hedge fund coach Denise Shaw brought suit against Andrew Ross Sorkin showtime in CBS alleging,
Fictionalized character of Wendy Roads is is her but fictionalized.
In the showtime billions the second circuit affirmed the district courts decision by finding no substantial similarity between the fictional character and the real life
Person. So, just a little wrap up on that one that we've talked about a couple of times. Okay. And then we have the.
The Star Trek mashup.
Copyright battle with the Dr. Seuss estate. We've talked about this a number of times in the past. The comic, excuse me, the copyright infringement suit against comics mix.
Buy the Dr. Seuss Enterprises as the Planets claiming infringement of the copyright in.
[56:42] Oh the places your girl is the sue's book and I think it was I forgot the title of the of the mashup.
[56:52] Oh all the places you're bodily go or something like that.
Which matches up Star Trek with this Doctor Sue's style and and storytelling. In any event.
The district judge in the case initially found that the book was a fair use but the ninth circuit reversed on that ruling and in June the supreme court died so it's back to district court where judge Samartino.
Has now denied Doctor Susan's enterprises request for pretrial summary judgment ruling on the coprode infringement claims.
While comic mix couldn't deny that the book copied extensively from Susa's works and was substantially similar to their copper protected elements,
The judge said the question of whether the works the works were substantially similar should be left to a jury.
So off it goes we may see AA jury trial or we may see a settlement at some point so boldly goes,
Right. So, there are factual issues remaining as to, sorry, as to whether the total concept and feel of the work is similar enough to find infringement. So, we may, we may hear about it. Yeah, this has been won't running a long time too and it's not quite over. So.
[58:02] And that they run the risk of things coming at them from multiple directions because of multiple potential.
Cbs and Paramount sort of stayed out of the the fray over this one even though it copies as much the Star Trek stuff as the.
Doctor Seuss on real close to as much anyway. So, different choices for different.
[58:23] Different planets or potential planners in the case. Oh, yeah. Well, you probably heard that the Cleveland baseball team has changed the name,
Their name away from what was formerly known as the Indians they've selected a new name The Guardians.
[58:40] But what's interesting is they mean that the the baseball team.
Didn't do it's due diligence so well the guardians formally the Indians had announced the name change but they failed to properly do a search and a check and what they didn't realize is that there was already a team,
In the city of Cleveland roller derby team using the name the Guardians.
[59:07] The roller roller derby team has the domain name Cleveland Guardians.com as well so,
Just a practice pointer if you're representing a client is going through this kind of rebranding renaming. Do some searching. Check it out. At least do a Google search. Find out what's up.
I so here's here's a little more information.
[59:29] The Cleveland Indians baseball company or one they haven't changed their official entity name because the applicant on their trademark applications are the Cleveland Indians baseball company LLC.
They filed in the metropolis of.
I'm gonna say this wrong. Moracia, Morada, it's foreign country. Oh.
[59:54] How do I say it? I don't know. M A U R I T I U S.
[1:00:01] There's no in in it. Oh okay. We we will just both butcher it.
I don't know. Anyway, they did what many companies will do. Brands will do is they file in a foreign jurisdiction first so they can get a priority date. Huh. But without tipping off.
Everybody in the US, at the USPTO filings, what they filed. So, they did that in April 2021.
[1:00:29] Then.
[1:00:33] They filed a couple of applications, trademark applications in the US, claiming back to that priority date, probably,
The day before the announcement then the Cleveland Guardians roller derby applied for their application on July 27 2021,
Which was after the announcement of the new name change. That's right.
[1:00:57] There there had also been there must have been talk about this getting out because an individual.
Filed for the name the Cleveland Guardians in December 2020 interesting. Now that that application has been abandoned so I yeah I don't even.
Well, I don't even know what to say about this. Did they just think.
[1:01:25] Apparently the name Guardians is already associated with the city of Cleveland in fact on the there's a bridge in Cleveland that has sculptures that are known as the Guardians.
And and I think it may be a copy of registration for the Guardians Sculptures so,
You know it's already been in use in the in the community in different ways but if the roller derby team preexisted this decision to change to.
The Guardians for the Baseball team that seems to way in in their favor.
As far as you know likely of confusion and priority of use right? Yeah.
Well so we're gonna have a battle at the trademark office of who filed first and what does that priority filing get them then.
I don't know why the Cleveland Guardians roller derby team they filed for their merch but they didn't file.
[1:02:26] For their services? That's interesting. Which I would have.
Strongly encouraged they filed for and I've been had I've been representing them but I don't know what their strategy is,
So, this this is a fun one. Sorry, I just trademark nerve tonight. This is good. It's just gonna be an interesting one and unfortunately, we probably know how it's gonna end. Maybe not.
Maybe not maybe that those roller derby fans will get excited and.
[1:02:58] Yeah. Yeah. First Melbourne. Yeah. It's one way to save. It's one way to city'll stay in the public.
Spotlight I guess. People lot of jokes about Cleveland but
Yeah and I but I didn't know the history that Guardians actually tied into some of the history of the city as as I've heard, you know, comedians making fun of the name.
So, so that's kinda cool that there is a basis basis for that.
Yeah we will we will keep following it if we have any loyal listeners in Cleveland or in Ohio who has you know some boots on the ground comments we'd love to have them. Right on.
Well, one more story to talk about here is,
It was something we talked about in a previous episode or two. Last month in fact, we talked about Sergeant David Shelby of the Alameda County,
California Sheriff's Office admitted to playing a Taylor Swift song on his phone when confronted by activists in order to prevent their recordings,
The video recordings of his interaction from being uploaded successfully to the internet.
[1:04:05] You know the background of course is that he had this belief in intent that the AI at YouTube and those kinds of places would recognize the copyrighted material automatically take it down or prevent it from being uploaded,
Ehm,
Lead to the termination of live streams recordings and police accountability activists accounts altogether but his plan failed in the interaction that issue does seem to have had no problem making its way around the internet.
So now the allow me to county sheriff's department has implemented a new policy that reads as follows.
Quote agency member shall not purposely annoyingly use or broadcast any cooperated body of work in a manner that will adversely impact the level of professionalism, performance conduct, and productivity,
That is expected of a peace officer or professional staff member and copyrighted work show not be used in a manner as to limit the public's ability to exercise their first amendment rights as set forth in the United States come.
Constitution. So, good news for police accountability activists and it seems pretty reasonable. We.
[1:05:09] We do have a right to to film and otherwise record the police in order to you know exercise our first memorite so.
Lots of several circuits have a firm to establish that this is a right but the supreme court has yet to weigh in on that subject so
You know people still get arrested for filming the police from time to time at least in some places and police will continue to try to escape these lawsuits,
Until the spring court rules so there's there's more work to be done on this front but it's been interesting to see the.
[1:05:43] Use of copyright as a tool by the law enforcement or attempts to use someone has probably done this I'm I'm not aware of it though to know how many different.
[1:05:57] Localities or governmental bodies have have issued or modified.
You know, some type of implemented a policy. Similar policy. Well, yeah, my guess is a lot of.
A lot of it's been informal. You know, the in the briefings, the boss says, hey, don't let's not do this. This isn't right.
[1:06:19] And you know, we'll see if everybody gets a word. We may see more of these things popping up from time to time and in this instance, they all made a county that they were in the spotlight. They were under the microscope so they.
[1:06:32] Decided to issue a policy decision about this, I'm I think that's smart. So,
That is it for this episode of Entertain the Law update and we wanna say thank you to you our loyal listeners our new listeners are subscribers and everybody who hears this for spending your time with us,
We know your time is valuable and we appreciate
Are you giving us a slice of it? If you have any feedback for us and we hope you do, you can leave it for us. There's that voice which did I mentioned earlier on the website at entertainment law update.com or send us an email, entertainment law update@Gmail.com,
On Twitter you can find us at Ant Law update and camera tell folks how to reach you directly,
Yeah, they can find me online. My website T Ben@Law.com or create Protect.com. Tamara Bennett eyes
Most social media sites that's T A M E R A B E N N E T T I also I know you're you will always think our crack volunteer contributors but,
As it's kind of a new season, a new timing. We have folks rotate on and off.
Being a contributor, Gordon, why won't you tell folks what they need to do if they would like to be considered to be a contributor? If you would like to join our family of contributors, reach out to us using that email address, entertainment law update@Gmail.com, send us a
A quick cover note nothing formal and your resume.
[1:07:58] And we'll follow up with you on that and and schedule a time to talk and get to know each other a little bit and see if it's a good fit and
We normally usually if it's a law student we're asking them to probably have finished their two L year does that sound right or at least finish their one out year I say if you finished a course in copyright law or your you know or you have some experience with copyright law even if you haven't yet taken a course formally in law school
Copyright law is, you know, something we talk about a lot on the show and we, that's sort of basic.
Prerequisite background, trademark laws useful, you know, I've experienced in the entertainment industry accounts for a lot as well. So,
Yeah usually that's too well student of people have finished at least half of the 2 hour and gotten that copyright place the class out of the way so
Yeah.
I just for me if you wanna reach me I'm in Los Angeles my website is Firemark.com email address G fire market firemark.com,
And G Firemark will find me on most social media and let's actually say thank you to our current team of volunteer contributors managing editor John Janice.
Carnial wilson thank you all for your help on this episode.
And all the episodes we really do appreciate everything you do for us and that's gonna do it for this episode of Entertainment Law Take so thanks.
[1:09:21] Music.