Transcript
[0:00] It's entertainment law update. Episode 138 for October 2021.
[0:07] Music.
[0:12] Well hello and welcome to entertainment law update in Los Angeles California I am Gordon Firemark.
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett and we are so glad that you are here with us
This is our podcast about entertainment law where each month we pull together the roundup of legal and business news stories and share our opinions and commentary and analysis about,
Things and this will be no different this month. So, what's new with you in the world, Emma? Oh, you know, just
Chugging along.
[0:48] Fighting through a stress fracture on my foot which was a complete and total surprise to me so that's always delightful and any way just another you know kinda little bit of a rainy day in Dallas but
That's about it. Enjoy, enjoy that it's gonna get become fall.
Yeah and it's definitely we're in the highlight of football go OU
University of Oklahoma. Yup. Undefeated. So, you know, but that's that's an exciting time in our household as Brock.
Is a senior in the pride of Oklahoma marching bands so any we've talked about that in the past as our as our kids have grown up and so so we're we're just,
Doing a lot of football and enjoying life. How about you guys? Well,
It's funny early before we started recording. I was telling you about my sore shoulder and that I'm going to see the surgeon about it. So, I guess it says something about arriving at a certain
Time in your life when instead of complaining about how hungover you are you're complaining about the aches and pains from where and terror related stuff. That's right.
So, but you know, things are good. The kids are good. Celebrated a big wedding in our family over the weekend and,
And boy it was nice to be out among people.
Mm hmm. So, anyway, congratulations to Jacob and Kelsey and Jacob listens to the show. So,
But congratulations you guys. It was a beautiful wedding and I'm so happy for you.
[2:18] So shall we dive in,
We shall. For a moments of joy to to horror versus Miller. Oh, can we do a scary? Oh, there you go. It was so scary. It knocked my microphone over all the way.
From California to Texas. To really get it going. In any event.
This is the story of horror ink versus Miller and it is a second circuit decision of firming a,
A lower court's ruling in favor of Victor Miller the the.
[2:55] The screenwriter or writer who created novels screenplays and teleplayes in particular the screenplay for the original film Friday the 13th.
Well he submitted his termination of transfer,
Right you know person to section 203 of the copyright act and the producers of the film.
[3:18] Objected and sued claiming that no he was not an independent contractor that it was a work for hire. And
Horror anchors these successor and interest to Friday the 13th original producers Georgetown Productions there's other production companies and so on involved in there a mani company is a distribution company created by Sean Cunningham who was,
A producer and director and and writer of feature film. So, Cunningham contacted Miller about producing a horror film. In 1979, they orally agreed that Miller would write the screenplay for the project.
In June of that year 1979 both of the Mexican aid 1977 WGA standard form entitled writers flat deal contract.
[4:05] And it details that Miller is a member of the guild Manny is a signatory to the the minimum basic agreement Manny employed Miller to compete
Disconnect to complete and finish a screenplay for the motion picture titled Friday the 13th promising to pay,
$9282 in two installments,
$.269, right? Yes, so I'm eyewear. I'm wondering as I read that I was like,
Who knew what was gonna come out of this?
Yeah. Yeah. So, he wrote. Maybe that was about right in 1978 and 79. Well, and that isn't that part of why section two or three exists. Oh, yes. Did you know that? So,
He wrote the screenplay in 1979 the film was released in 1980 and Miller says that he watched the movie Halloween.
[4:52] Develop the film setting wrote the treatment and the first and second draft so the screenplay revising the second draft into the final,
Form that was shot and made he drafted that on his own typewriter with his own ribbon and paper,
He had control of when he worked which he did between 7 AM and and noon during the days he also had the responsibility of having the screenplay ready,
In time for the production schedule. Cunningham has a disputed contribution to the project.
He says he he taught Miller Key elements of successful horror films that he had to final authority of what water would not be in the screenplay
And stood over Miller's shoulder at times making contributions and suggestions. These are disputed facts.
Are undisputed is that he provided certain,
General suggestions that the killings in the movie should be personal,
And that guns are not are an impersonal way to kill that the killer should always remain masked and that the major aimed at major character should be killed early on. So, then we have Georgetown,
Acquiring I'm sorry Georgetown being acquired by her ink but they financed the,
The film receiving complete control of the screenplay and film and the copyright registration lists Georgetown as the film's author and that the film is a work made for hire.
[6:12] Digital version of the screenplay has a written by credit to Miller in 2016 he submitted the notices under section 203 and Manny and her and Sue Miller,
Seeking a declaration that was work made for hire and the termination.
Excuse me. Termination notices are invalid.
Just record granted summer judgement in favor of Miller,
Finding that he was the author and he could terminate company rights and the termination notice was timely. So, up we go on appeal. First argument.
By the by the companies is that this was an incorrect interpretation of employee
And a different that the definition conflicts with the national labor relations act they the court said the companies efforts to harmonize the copyright act in the NLRA or misguided and rejected that proposed construction of copyright law.
Second argument was that even though the read factors apply that's CCNV versus read community for creative nonviolence versus read the disrecord should have considered the,
Writers guild collective bargaining agreement as a factor under the company's view the court the court.
[7:28] Misinterpreted and determined that Miller's employment status is would be excuse me for copyright purposes would be dictated by labor law not common law agency.
And the third argument is that the district court failed to balance the read factors not assigning great weight to Miller's membership in the WGA and the court said this is another way to shift the read factors from agency to labor law
The read factors cannot be applied mechanically it's a list of possible considerations that may or may not be relevant in a given case,
And that there is no direction concerning how they are to be waited
So record analyzes the read factors and says.
[8:08] There's another case aims versus Benelli that assigns greater weight to certain.
Of those factors. They look in particular control and employ benefits on control the skill the court was not able to determine clearly but viewing the facts in the like most favorable to the companies,
The court concluded on balance the right to control factor tips slightly in the company's favor on skill it was,
All Miller basically. So that way's in favor of him. Employee benefits not supplied in this case, a nanny didn't supply any health insurance, pension planner, anything like that.
So that ways in favor of of Miller as an independent contractor on tax treatment.
There was no withholding or deduction of for taxes social security Medicare those kinds of things many paid Miller the exact amounts listed in the contract.
[9:02] Which again ways in favor of independent contractor.
[9:06] What else Miller? Oh, additional project. Miller was hired to only write the screenplay to Friday 13th but he did write,
The treatment which was not part of the agreement. The court found that the treatment and screenplay, excuse me, our parts of the same project.
And this way is in favor of independent contractor finding. Not sure I follow that. And then I was just gonna say I wonder if on additional projects it's more of.
Had it been, oh, we're just gonna drop by and hand off. Can you write the treatment or screenplay for X, Y, and Z as well? You know, more more directing.
These consistent additional projects which even if we were to look at someone on a non-creative job maybe it's a virtual assistant or assistant you know how much are we giving and directing those projects to be done.
So, yeah. No. So, the second circuit continued, you know, there were few a few other factors that they sort of
Address the duration method of payment location of work, discretion, and setting schedule. They found that all favored Miller's point of view that he's an independent contractor. Business entity and type way in the company's favor.
And the source and instrumental in excuse me source and instrumentalities,
Tools and hiring assistant factors really didn't apply so the court,
Disregarded those and ultimately found in Miller's favor and that the statue of limitations was.
[10:36] Was not a problem that Miller had filed his claims in a timely fashion and upheld and affirmed the district courts holding. So, finally, well, hopefully, finally, Miller,
Prevails in this case I I don't think there's a supreme court.
Appeal in the in the making here but anything can happen. What in in the next question is so what does that mean?
That Miller prevailed. He he did not reclaim any rights outside of the United States because the termination provision only applies to the portions subject to the US copyright grant. Yeah.
[11:15] But then is it?
Is he gonna get all the money moving forward from all new licenses because I would think.
[11:23] I mean, how? So, I I don't know exactly and they're gonna have to figure out exactly what he gets. I mean, within the scope of the copyright law.
Those prior licenses he even the US he doesn't.
Reclaim those prior issued licenses. They can go forward. It's the new licenses,
But then how much of those new licenses will he receive? There's other people involved besides.
[11:53] I don't know will they apply okay here's a standard rate will he maybe he'll license it back to the production company I don't know,
Well I think this is a franchise that you know that that releases a new Friday the 13th film every few years,
And if they wanna do that they it seems like the holder of those earliest underlying rights is a relevant and necessary,
License sore in any of those kind of transactions so they wanna make another Friday the 13th movie featuring Matt character is that Jason.
Yeah and Jamie Leaton and Jamie Lee Curtis right? Right. The only reason I think I would watch the new one that's just came out or is coming out this weekend or I think it just came out on the 13th. There's.
Just because I love Jamie Lee Curtis and but I hate scary movies. Yeah, I'm the same way. So,
Interestingly in in light of this ruling does now Miller have some kind of a claim on this latest film because he terminated those rights prior to its making.
[13:03] Hmm. So, no. Yeah. I mean, I think that's probably why everybody was fighting so hard on this was it. There was another one coming. Over there. Oh, and Jamie Lee Curtis might be might be the Halloween not Friday the 13th. No wrong.
You got me. Our audience probably knows. It is Halloween.
I'm sorry. Folks, see there you go. So, Halloween did do their 40 year reunion release. So,
Friday the 13th I think is Jason we're just sorry we are not horrible car films is not the genre for us I'm I'm good with sci fi so anyway anyway so.
[13:46] There's a related story and this determination of transfers is something that we're seeing a lot of activity right now,
Lately the last couple of years and,
Here's another one where it's an interesting what would you call a conflict between family law and copyright law,
Essentials.
Share the singer and actor share in her rights in relation to her divorce from Sunny Bono and part of the divorce agreement.
[14:19] And actually subsequent to the divorce agreement was that they agreed to an equal division of their community property after divorcing in 75 and then in 1978 reportedly there was a written,
Sunny bono or raviplia signed to share as her soul and separate property throughout the world and inpertuity 50%
Of the musical composition royalties record royalties and other assets
Related to certain compositions and recordings. So, she's getting a revenue share. Maybe these were things that she didn't write
But anyway she's getting an interest in a share at fast forward when Sonny Bono passed away he was married to Mary Bono
And Mary along with the children of Sony have filed a termination notice
Regarding his recordings and songs.
And so what happens if that terminates and it cuts off the payment.
That's been directed over to share which is I think going into a trust. Yeah. Can the family do that? Can the statutory airs cut off.
[15:37] By act of a termination notice if it's affirmed and and you know the court affirms that notice,
So, we're gonna see what's what's gonna play out. I will tell you, I think they can. This isn't the first time we've seen something similar. We saw it in the Ray Charles Foundation versus Robinson.
I went back to look at that case it was at the interest where Ray Charles prior to his death had assigned all of his copyrights and royalty streams or his royalty streams into a foundation,
End.
Gave his ears which are there are numerous of them set amount of money and said this is your full inheritance.
And and the last thing I had on that one was when in 2015 where the court said the foundation was a proper party,
Because they would be damaged so I think share get standing you know that if that's the first question yeah,
But I don't know. Will will we get a ruling on this or will it continue will it be a settlement? Yeah. I think there was something similar in the James Brown estate as well. There was. There was as well with the James Brown Estate. But here I think what we have is a little bit different because
And it's sort of turns on the the specifics of the when and why this particular assignment.
Of those interests was made. If it was part of a court ordered marital, you know, dissolution order.
[17:00] Then I think it's a different question than if it was just an independent settlement of the you know I mean I don't know does the fact that a cork was,
Signing off on the transaction make a difference.
[17:14] If it's a court order transfer of of cupright is it terminable intersection 203 I I don't know that we have a clear judicial opinion answering that question we may find out them I hope we do because,
This is an issue that comes up. Yeah.
And you know can that grant to be terminated.
[17:39] Hey Facebook I don't know.
Yeah I I and I think it's also a question of breach of you know is there a breach of contract issue I went back and looked at smokey Robinson,
There was a concern post divorce both he and his his he was living his his,
Ex wife living and when he went to terminate she filed suits saying hey.
It's set in the divorce degree i get a percentage of all future income and now you've got this future termination right,
That's settled so we don't have any answer on that one either but but interesting, interesting,
Stuff happening in the termination wall. We'll keep an eye on this one and if there's something to report, we will certainly share it next in our future episodes. So.
[18:32] We also have another,
This is actually a story we we had planned on talking about last month but we just ran out of time and this one is basically Marvel,
Is a little bit on the ropes in in this era of copyright transfer terminations they are,
Dealing with, you know, lucrative characters like Spider Man, Iron Man, Dare Devil, Black Widow, Marvel has filed a suits in New York and California against the airs of a slew of creators,
Behind comics like Iron Man the Avengers the amazing Spider Man Marvel's asking the courts to declare
It the sole owners of these works and of the characters comprising it comes in response to termination notices filed on behalf of several of these creators.
And including the the sort of lead one is Steve Ditko his estate
Filed him at the end of August. He is the one responsible for the earliest incarnations of Spider Man and Dr. Strange. And if the estate's termination stands, they would take effect,
As of 2023.
[19:41] So on the side of the comic book creators is Mark Oberov who represented the states of the Superman creators and they're unsuccessful suit against DC hard to believe that's almost a decade ago and yeah we discussed that back in 2012,
He also represented the estate of Jack Kirby in its ported termination of coppery with respect to,
Characters in the X-Men the incredible Hulk Iron Man and Spider Man and back then Marvel also sued for declaratory relief that the issues were
Excuse me, the works works made for higher. Initially, the court.
In those cases ruled in favor of marvel and that was held up a held excuse me by the circuit second circuit,
And that could be a helpful president in this current,
But it's worth noting Marvel ultimately settled the Kirby case after his estate petition the supreme court and.
[20:35] There was some interest signals mainly by Justice Ginsburg at the time that there was interest in taking that case up. So now, we are again expecting Mark Marvel to argue that the characters are work for hire that would take them outside of the
Termination provisions all together and we'll wait and see where the
What the lower courts do and then are we interested we have them signed simultaneously going in,
In California and New York. So, who knows what we're getting set up for? It might, yeah, we might, we're getting set up for a split. That's what we're getting set up for. Right, exactly. Well, you never know.
[21:11] Wouldn't be a big surprise. Yeah. So, yeah. Yeah.
You wanna take this next one? Yes, so the artist, the weekend prevails on a copyright infringement suit. Earlier this month, the ninth circuit court of appeals affirmed the California district court.
Courts decision to dismiss a case against R&B superstar the weekend finding that,
The accusing planus songwriters could not show infringement of their work,
So, in 2019, British songwriters Brian Clover, Scott McCulloch, and Billy Smith sued the weekend that that's his stage name in Los Angeles fellow,
Federal court alleging that his track a lonely night had infringed
Their song i need to love the allegations were part of the two songs were practically identical
Identical the weekend had creative collaborators who had access to their song
Via relationships with the universal music publishing and a London publishing slash management wing that was connected to Universal.
[22:23] That the co-writer of the weekend song also had links to Universal Music Publishing. So,
The playlist removing forward with.
The weekend had access. Well, then why are they so concerned about that? That's because they lack direct evidence of copying. So, since they could not meet that hurdle of direct evidence of copying, they had to go down this path of
While there was access and so does was there access because somebody at Universal or an affiliate
Could have had access and this also was on a it was dismissed on a motion for some rejuvenate the trial court.
The weekend alleges he's never heard the song that
The co writer credit on a lonely night actually came from a verse originally written from an earlier unfinished song before there were connections at the co-writer had at Universal. I need to love and a lonely night or not similar.
Hey and I've decided President of Casey's going all the way back to the stairway to heaven and copyright litigation we've talked about many many times on that.
[23:38] So the the three judge panel wrote that that the plains clover McCulloch and Smith fell to show that the weekend had any access.
Or that his producers had any access. Universal music song catalogue is too large. I haven't no idea how many.
Millions of songs might be in that catalog. And they just weren't similar enough.
The ninth circuit found that the songs were not similar enough to have only come from copying citing evidence that both songs were in fluid
Influence by Blondie's 1979 hit heart of glass. So, I don't know that we've heard anything from Blondie or her team about that. But it it just wasn't enough. I you know.
[24:24] I think access is just is just hard, hard, hard to prove. Yeah, I mean,
You know it'd be one thing if if the plans could show that they had actually submitted it to the weekend or to his producing team but really all they alleged here is that what we sent you know,
His publisher had access to it. His publisher had seen it. Well, but as you said, as the court said,
You know, that's a publisher that has millions and millions of songs and there's no telling if anybody ever actually listened. To it. Is that right? And I, you know, this is
Going on 30 years ago when I worked for publishers in Nashville.
[25:06] And people submitted everything on cassettes. I'm sure some of our listeners remember cassettes.
We will not allow to sign for anything.
[25:17] Because that could potentially this is well before I was a lawyer so I didn't totally understand that but it was this concern that that could prove access yeah,
If we sign for an unsolicited cassette that showed up.
But yeah I mean just you know I thought it was pretty settled that this idea of sort of corporate access was not enough.
To make a case you know to stand up circumstantially in in favor of a finding of of infringement at all I mean even with,
Very striking similarity but it was a ruling on emotion for some rejuvenate but that's why they the the plains felt like we need to kick this up on a pill,
Yeah, maybe. You know, I mean, it's interesting that the that the courts,
Well, both of the lower court and the appel court are talking mainly about the access issue even though we do have a finding that they're not substantially similar as well.
[26:21] You know I don't know why if you've got both of the maybe that maybe the substantial similarity is a jury question but.
Oh, yeah. I think I think that would be a that's a fact.
I mean disputed facts. There were there would have had to have been disputed facts on substantial similarity. But we don't have any discussion in the opinion of,
Other than to say, man, they're not substantially similar. Not as similar as Clover McCulloch and Smith claimed.
And citing president on similarities in song theft cases from the stairway to heaven infringement case. So, yeah, maybe they haven't met a sort of a primer face she case for that but,
Very interesting not similar enough,
To only have come from copy. Okay, so they're not saying, they're not saying it. They're not similar. They're saying there are other ways it could have happened. And that's the part of class.
Reference. So, oh, interesting.
[27:18] Three chords in the truth. There's only so many ways to write. Right, right, right. Oh, anyway. So.
[27:28] You know, I think the takeaway is you know, you don't have a case. So, without real act, you know, real evidence of access. If you don't have direct evidence of copying, you better have direct evidence of of access.
And a pretty strongly similar a strong finding of similarity I guess so,
Alright, well, there we go. It's it's not exactly new news, but.
The Black Widow case we talked about Scarlet Johansson's claims against Disney and Marvel over her.
[28:06] Being deprived I guess you could say if some of the back end participation she would have gotten when the film Black Widow was released,
Simultaneously on the Disney Plus platform as well as at the box office because her deal had a box office percentage backend,
Participation
So, the film was originally set to be released in May of 2020. It was delayed due to the pandemic and finally in September of last year, they released the movie. They they decided to release the movie in May of 21.
On March 23 it was announced that there will be released in both in the theaters and on Disney Plus and they garnered over 60 million dollars in premier access
Payments,
On Disney Plus that first weekend alone was about a 29 I think 2999 for subscribers that gave them access to the film.
[28:56] The box office comparatively the US box office reached 80 million dollars international box office was 78 million on the first weekend
But those are both relatively modest numbers for a Marvel films opening weekend and then the box office figure in North America dropped off by 68%
For the second weekend. So, Johansson's point of view is that the box office numbers would have been much, much stronger if there was only box office,
You know, only only able to see it in the theater. And that also the,
No no way to tell exactly how many tickets would have been sold because the single streaming purchase would give access to an entire family or household it's worth of people so she sued alleging,
She's a Disney alleging intentional interference with contractual relations her relationship with Marvel and also inducement to breach,
And inducement inducing Marvel to breach its obligations because they were aware of that agreement,
So this case had big implications because there were a number of other performers,
In similar situations and a stone with Cruella currently considering a suit John Krasinski and Emily Blunt for a quiet place too similar situation with Paramount Plus and Warner had paid out.
[30:17] A bunch of additional money 200 million dollars in additional conversation to make up for lost theatrical windows when it announced that it's slated movies would premiere on HBO Max so Disney tried to remove the case from federal court until binding arbitration,
And then, you know, by the end of September, the the two parties had found some common ground and and reached to settlement,
Supposed to be confidential but the numbers that are being thrown around are in the many tens of millions. Wow. So, yeah.
So how do you see this representing I I mean I hope Gordon that you represent talent at the caliber and income stream of Scarlet Johansson but in the event you don't and I don't in our listers don't
You know the conversation I'm having with AAA mom to an actress who.
Play some really amazing roles but she's not the leading lady. You know, is how is this going to trickle down?
To those actors and actresses or production companies who may also have something tied to the back end and now.
[31:24] The back ends removed or is it gonna show up in the writers guild agreement or you know, what's gonna change? I think, I think we're everybody else. Yeah. I think we will see a discussion of this in future write agreement writers guild agreement.
[31:37] Negotiations at least a as a practitioner, you know, for me, I am.
Paying closer attention to how we articulate those back end compensations rather than tying it to you know.
Domestic box office. We might just be saying, well, first of all, if you're lucky enough to be representing talent that is getting gross participation.
That's where this issue becomes a thing if if you're a net participant you know all of the revenue goes into that but it's a you know eating up by the expenses of course so I think you know we're we may need to.
[32:11] What we do need to be more specific and and broaden our thinking about where the grosses might be coming from.
And you know, so I might resist.
Tying it to box office and just say gross revenue. Exhibition. I wonder if.
Where we've seen issues come up with streaming, downloads, yeah. Well, in in DVDs. Yeah. VHSes is all media now known in hereafter.
[32:47] Developed. Right. In in the film is there a,
I get money paid off of all media here noon all revenue sources for all media here known and hereafter developed I mean is that language.
Well, that's usually a language in the grant of rights but then the the compensation structures are, you know, usually a fee plus some kind of back end participation and.
Yeah it's it's a matter of how do we define what that back end position is. Got it. Historically it's been you know gross box office receipts.
Or gross domestic US box office receipts and I think that's what went arri here is that when Disney says okay we're gonna release on Disney plus simultaneously it cannibalize those gross box office receipts had the deal said,
Gross receipts from exhibition regardless of medium. Or something along those lines. She would have been covered. Although it still would have been.
The issue of well now you sell 130 dollar ticket and five people in the household watch it whereas if you sell $20 tickets at the box office it generates $100 in revenue.
[33:56] Correct and so here's my question for you cuz you mentioned your after we watched our horror movie titles and actors and actresses that you're a sci-fi fan. So one in what year did the original Star Wars come out? 1977.
Okay and how many times did you go to the theater to watch it? That year I saw 11 times. There you go.
Right. Right. But to say, I think
That is true I think there would be,
People who still might go to the box office more than one time.
[34:33] To to see the film and you know, and so not only did we lose the first time. Yeah.
We lost the repeat and that's probably not as big a deal as it was in 1978. No. Because again of access and illegal access and illegal streaming and,
There's also a part of me that says, you know, Disney and the rest of the production companies may be putting this stuff out on their streaming services this the smartest thing they can do to fight bit torrent,
Yeah. Look, this is not.
Anything new. I mean, it happened when film started being released on video tape,
Happened again. I'm with the DVD era. You know, the the discussion of how do we figure out this.
[35:18] What the earnings of the film really are and how do we compensate.
The A list players has always been an issue. Every time I have new technology. So, here we are. Time to do another reset.
Negotiation. What's interesting is I this was a factor in ayachisis claim.
I order or negotiations as well as they were saying hey these streaming services are no longer the you know the the redheaded stepchild.
You know that are that that they were treated as and so the discount for streaming is no longer a,
A valid thing and you know the the the union members who had participations in.
[36:00] In those revenue streams or actually just pay scales is what it was in the union that negotiation. So, new technologies are disruptive. It's the way it goes and here we are.
Yeah, do you wanna talk about the IT? Plug it in here or?
Well, yeah. Oh, let me we have a rundown for it but it was a little later on in our room down so I just jumped forward. So, yeah, so I actually had scheduled it's vote.
Right after our last,
Our last episode went to publishing asking the members to authorize a potential strike the union was hoping that that authorization to call a strike would give them the leverage they needed to,
Jump start the negotiations with the Alliance Motion Television producers and sure enough it did the vote was overwhelming
90% of all members turned out to vote 98% of the votes favored,
The strike authorization. Wow. If that doesn't send a message to yeah. So, in the following week, the negotiations reopened and the strike was scheduled to begin on,
At midnight on October 18 if the negotiations won't resolve by then and in the morning of the 17th the the party's got to.
[37:19] Got to an agreement. So, a new three-year deal over basic and videotape agreements,
Seems to be a win for the union. Negotiations are still going on the area standard agreements.
Which is Minnesota regional variations but Ayazzi's president.
Called it a Hollywood ending and praised the union's solidarity among the members and so on. So, what they're getting in this new deal which I don't know if it's been ratified by the membership but it's expected that it will be.
Key Almonds upgraded health and safety standards.
[37:55] Wage increases forced especially for streaming projects daily rest periods of 10 hours no exceptions which is a big change weekend rests of 54 hours total,
And stronger meal panel a period penalties so workers are going to be expected to you know.
[38:16] Follow the old,
Shakespearean average of the show must go on right now. Anyway, you know, look,
I've worked hard. I've I've I've finished my day. I'm done. I'm going home. I'm gonna get rest. So that it's safe for me to be on the set tomorrow
And really it's that I think that's good for everybody. So members still have to ratify but as I said that's,
Mostly expected. There's a little bit of descension among the ranks now,
Certainly looks like it's gonna gonna get ratified and pass so,
Good news for the the movie industry it's not shutting down workers are getting a fairer shake,
In the things mostly and that's good news. You know, another story that we don't actually have in our rundown but it's sort of the elephant in the room. We can't not talk about it is the,
The tragic shooting of the director photography Helena Hutchins on the set of Rust Alec Baldwin's film which is you know the epitome of a workplace safety problem.
And I believe that was a non union crew at the time that that happened and I I haven't,
Dove into all of the details but my understanding is that there was some unrest among the crew on the film.
People walked off and then
You know, on the day that's happened, there were some replacement people on board. Apparently, the armor on the film wasn't was always the same armor they'd had all along and.
To say the least mistakes were made.
[39:43] And safety was compromised in a number of different ways and you know it's tragic of course for,
The death of miss Hutchins who was an up and coming and well regarded director of photography the director of the film was also injured I believe he's doing okay,
But I would say the careers of you know half a dozen people or more are really probably at their end as a consequence of this.
[40:10] It's just a just a horrible, unnecessary tragedy, you know, and I hate to say that some of my news gathering on this is
Because E comes on right after the local news. Yeah. And and you know when you're obviously hearing a very dramatic from that but
Hey, you know, one of the allegations and again, I'm not saying he is the choice of. Yeah. For your news gathering was that,
Someone had taken this weapon and was,
Obviously shooting live rounds out of it in the allegation is for Target practice in between,
Yeah and I'm like ah but again this is a safety issue something got missed in the safety protocol step.
And I guess we will we may figure that out and I just I feel so for the the family of
This woman as well as for you know obviously Alec Baldwin. Good night.
Whether you like or just like Alec Baldwin you gotta feel for the guy being the one who pulled the trigger on this gun and and.
[41:18] Yeah, I mean, nobody should have to carry that around for the rest of their life.
No. No. So going back to IRT, who exactly does IRT, the union represent? Which which workers on a on a set with a represent?
I think I mean it's it's so many different different chapters for different trades. It's it's remarkable. There's you know there's 60 thousand people.
Okay. Would have been affected by this strike. It's it's basically anybody who is not above the line.
In in you know that the the lead talent is tag after the directors guild is is above the line and the.
You know and the rest of the creative team but but,
Everybody below the line all the the regular rank and file workers and that work on a film make up artists hairstylists obviously the,
The set technicians, the guys who build the sets, the guys who move things around on the sets. It's every, it's really everybody. Yeah. If you're not a team star, you remember Valtie. Okay, that's what I was trying to say. Unless they're driving something. Exactly. They're a member of AIT. Okay.
Okay. You know, and it's.
[42:31] I mean it's it's the big union and it's sort of amazing that there's never you know in in the history of last 100 years or something there hasn't been,
Oh nationwide strike of this union so.
Street continues. Yeah. So, it's pretty amazing. And I'd say good news for a lot of folks, you know, do wanna keep working.
Get 128 years since the Indian was founded and there's never been a nationwide strike. So, well, and it's just a hard season having come off. Right. 2020 and even things that went into 2021 to then face a strike.
[43:11] Maybe that also gave them the leverage is to say we've already been out of work. What's a little bit more?
I think that's the case I also think that given the.
[43:21] Follow period that we've had. There's a lot of production happening so there's more demand for labor. But it's also everybody's trying to rush things and get it done and and make things happen and so the safety and rest periods and things like that were being
Compromise or at least that it threatened to be compromised and you know, I guess it's fortuneous timing that the contract came up for renewal when it did.
And you know the union.
Did its thing? They did. I think they handled it really well. So, yeah. Effectively anyone. So, let us jump back to our in our rundown to,
The king of pop I think. Even though I understand you might sing later but I will. No, I'll speak. So, I don't know when I say king of pop.
[44:08] I think most people,
Do think Michael Jackson as as the self proclaimed king of pop and maybe not even self proclaimed
Worldwide proclaimed king of pop. His estate has threatened legal action against a Belgian broadcaster for using the name
King of pop on a radio program for three seasons a show has aired every Sunday morning on the Dutch speaking studio brussel radio station,
Where celebrities and member of the public compete for the title king of pop by answering quiz questions about pop music so it's it's a,
It's a quiz show and if you can answer these questions then you'll be crowned the king of pop I.
[44:55] Trump triumph international inc that manages the trademarks and brands for the Jackson State has
Dozens if not hundreds of worldwide trademark registrations in applications for the term king of pop,
I did not, I stopped counting this morning when I was running it through the
The world and lunch on property organization brand database.
So they sent a season to sis letter to the broadcaster and it was quote signed by a lot of lawyers claiming the radio program could not use the name King of
Pop because of the state having this registered trademark.
[45:40] You know, so what is the show's host and program due? I mean, as they said, the show's host claimed that the king of pop was a very cheap radio program made by himself with very little budget.
He'd rather just have a new name than go through the trouble of fighting. Mm hmm. So, I guess my first question is, is this a is this really a trademark infringement?
[46:06] It's a pop show. It's a pop trivia show and if you win the trivia show, you're the king. I don't know the,
It would be a successful win based on the facts,
Limited facts I have but then you know I guess we kinda go down this path is this bullying is this wrongful enforcement of trademark rights,
Even if it's not direct trademark infringement the.
It's famous Mark I would think,
But do we have I don't know if they have delusion in that territory. I don't know. I mean, so, I don't know if delusion is just a US.
Right or there's a an equivalent one I I don't know from our notes here if this was a claim brought on a EU trademark registration or one,
Well, I think a country registration desist letter. It didn't go any further than that. This guy said, okay. I give.
I don't know that you can call that misuse or I mean, you know, yeah, it's intimidation. Big law firm sends a letter. Hey, stop it or else.
You know, unless you've got a big law firm on your side, you'd probably stop.
Right? Right. You know what? Yeah. Yeah.
[47:35] Yeah, it's interesting. I mean, you know, I wonder if there was any analysis at all done at that level or did he just say it? It's not worth fighting.
Sounds like that.
It does sound like that. And they may have been counting on that. The estate.
[47:51] But then I'm just and maybe it is a.
Hey what we were considering US a delusion factor again not knowing if that's what it's called in that territory.
[48:04] Hey, Jess. Seems a little crazy. Yeah.
Hey Facebook there would be so many bigger fish. Right. To go after related to all of the various trademarks. Yeah. Well, you as as a trademark.
Practitioner. You know that you do have to police your trademarks. You have to do something about it. When you see these things. So,
You know, and we haven't read the letter. We don't know how strongly worded it was or how big of a threat it was or you know? Who knows?
[48:36] That's right and I don't wanna discount that but you have an obligation as an owner of a trademark.
Two and four should write or you might lose those rights.
I think the analysis I'm I'm trying to get to and we just probably don't have enough facts to get to that is.
[48:53] Was this does this have a blush of an infringement.
Such that a cease and desist letter was warranted. You know, I kinda always go back to the, you know, the.
The Jack Daniel's season to sis letters. If anybody had just Google Jack Daniel season to sis letters. They're awesome.
Because they're really instructive to the potential infringe or their their friendly there we wanna work it out you know.
Yeah I think there was also a Budweiser one maybe,
Recently, TGI Fridays, I think had one. So, so, you know, if you're in a situation where your client, client is like, we have to send the season to this letter. You think, oh, this could play poorly in the news.
Go read some of these public season desist letters.
Hey Facebook need some guidance.
The fall another fart the potential fall out from sending even sending a season to his letter especially when you have sort of popular brand or popular,
A popular use that's the infringement you know you wanna you wanna handle it.
Well, I'm sort of with kid gloves really. So, and those those Jack Daniels ones definitely give a good example of how to do that.
[50:18] Well, let's talk about Australia for a minute. So, one of our, our contributors,
Anna Collis is a lawyer who practices in Australia but she did not weigh in on this one particular but media outlets in Australia this is an a ruling that media outlets can be vicariously liable for,
What commenters post on Facebook,
In response to their posts. So, we have the South Wales Supreme Court of Australia holding that the Sydney Morning Herald and the Australian are liable for comments made on their Facebook pages linking to stories about,
Detainee Dylan Voller. I don't know much about him but third parties made these comments allegedly defamatory comments regarding valor on Facebook pages. They don't the article doesn't get into what the content of those comments was but,
Very clearly that and and doesn't articulate weather or not.
The question of definition has even been adjudicated but the media outlets didn't take down these comments so.
[51:25] We have these newspapers posting their article on the on the news on the Facebook page for the newspaper and then someone comes on and makes it defamatory or allegedly defamatory comment,
And the media outlets didn't take them down.
So the court is now holding them reliable not for approving those comments but simply for allowing them to be made and shared on the Facebook page.
You know because comments were turned on essentially and that is held to have been facilitated. Encouraged and assisted.
By the publication of the initial article in the first place. So, it made it possible for the defamatory comments be made. So,
What's the result of this kind of a ruling?
Chilling factor do do the news outlets now not want comments on their pages and that you know that engagement is valuable but if they're at risk for this kind of thing it seems to me they just turn off the comments.
[52:26] Yeah, I would. I mean. Bro, I signed someone to police the stuff and anytime a comment comes in, you know, look at it and decide right away and that.
That's exactly right. I mean, then, we've suddenly.
I don't know how free speech is applied in Australia but in the US if I'm.
[52:49] I know we've talked about this if they're private entities they can do what they want to but you know I think there's.
Further free speech issues on what people comment and I guess there was a comparison here with section 230 in the US which is
Gives a blanket protection to some online activities for quote nope.
Provider or user of an interactive computer service shall be treated as the publisher or speaker.
Of any information provided by another information content provider.
[53:25] So, if if I come in on the post, I'm a personally liable if I say something. The family, it's not gonna be.
The Dallas morning news or CNN or NBC or or Gordon Firemark because I come in on something new had to say.
And and to be clear, you know, this is not saying Facebook is liable. This is saying that the the Facebook user that posts the comment, media, media outlet or not, I send. I guess.
If you I'm sorry if you if the.
The the people who post the article, excuse me, media outlet or not. They could be liable for what people say about their article. Or in their comments to that article.
[54:08] And that's troubling.
How is that different than a letter to the editor?
I mean the difference is the editor decides whether to publish the letter.
[54:20] Publishing every letter they get.
[54:28] In which case you'd have the same situation. Yeah.
[54:32] I don't know. This is, this is a little scary for me. So, maybe Anna or any of her colleagues in Australia that wanna chime in and and give us maybe a little better understanding of how,
How they've gotten there or what's been playing out to to get them to this point. I'd love to hear it. Well, I'll tell you in my conversations with with,
Couple of of Australian attorneys and people who paid in, you know, Australia is also,
Very tough. I mean, it is a defamation capital. Let's put it this way. Apparently, planets have a really good time with,
With defamation cases in Australia and so here's another example of hey we're going to give the plan of a lot of leeway.
[55:17] Go after the deep pocket. Interesting. Yeah.
So, it is what it is but yeah, I mean, if anybody, you know, more intimate with Australian law wants to jump in and give us, you know, share with us. Maybe we're missing interpreting, maybe we're,
Overstating the situation here but certainly section 230 here in the US would make this,
Impossible or nearly a impossible this kind of a case against a US defendant. For US publication,
And I wonder if Australia in law if we went you know way back in history if they are this way because they came from colonial UK,
Which is very much the other way.
Right. Well, yeah, that's a good question. I think that, yeah, the origins of,
Of Australians up Australia's approach to defamation probably do come from you know.
It's not nice to say bad things about the king and queen so don't or else and.
They grows from there. So, yeah. Well, anyway, we invite our listeners in Australia to share their thoughts and,
And the perspective on this would be glad to hear from you.
[56:30] Yeah. So,
Are you singing? I'm not going to sing on the spare the audience. No, but you're such a great boy. Hello, thank you. You know what? Maybe sometime when we have a meet up if we can.
Do it at a karaoke bar or something like that. Oh, okay. Fine. I don't have a good voice. So, nobody wants to hear me but Gordon has a great voice. So, he should sing who put the,
In the but he's not. So, there you go. Alright. So, singer, songwriter, Barry Mann.
His catalog lists 635 songs he's received
56 popular music country and rhythm blues awards including several Grammy's awards from BMI,
46 million war millionaire awards for radio performances number 1 million plays his song you've lost that love and feeling.
That he co wrote with his long time writing partner and wife Cynthia while along with,
Phil Spector was the most played song of the 20th century
More than 14 million plays. Well, at the beginning of his career, he wrote and recorded in 1960 1961. He wrote recorded the song Who Put the Bomp?
Which included the lyrics.
[57:50] More recently Kathleen Hannah and Joanna Faitman who are just comprised the band Latira recorded their song Decepticon,
And it includes those same lyrics. Actually, it's a slight variation. So, Barryman's song is Who Put the Bomp in the Bombsha Bomb Shabbat. There's in the chorus of their song says, who took the bomb?
What other medics it's saying and it repeats that who took the bomb blind several times. So,
Man's representatives sent Latigra a letter demanding settlement he wanted you know a payment,
Claiming that the song Decepticon infringes on his own who put the bump song in response Hannah and Faman have filed a civil suit in the Southern District of New York,
Requesting declaratory judgment stating that there's no copyright infringement.
And barring for the barring man from sending further letters of this nature.
[58:42] They alleged that the bomb lyrics that issue are not original to Mister Man,
He didn't create these quote vocabuls or song titles rather Mr. Man and his co writer copied them from.
Black dope groups active during the 50s and early 60s specifically that mister Baman took from the Marcel's Distinctive version of Blue Moon
And Ramama ding dong from the Edsels then popular ramma i'm a ding dong now the thing to know is that.
Man's song is widely perceived as a parody of those ridiculous lyrics. You know, in a sense or at least a commentary on them and so, yeah, he did quote other song title song quotes.
[59:25] This is my point of view. The way he constructed.
Those things is what is the original component. So, who put the bomb that is the is the thing. Anyway, if you can listen to song, we'll have the link to the to the,
To the article that we're,
Drawing from and it has both songs listed. You can listen to Decepticon and if you listen at 1 minute and 51 seconds in that's where the quote of this hook is repeated over and over again. It's this sort of the chorus of the song in a sense.
So the allegation is that man doesn't have any standing to sue because he used side alerts without authorization himself which I think is a stretch and that if he does have grounds for standing,
The use of the sided sections qualifies as fair use that may maybe be a case but I don't know I don't see the.
[1:00:16] The criticism of commentary component of things are education coming out of those kinds of things. So, anyway, it's a new filing Mister Man has been filed his answer to the complaint yet. So we'll see more. We'll be talking more about that. So, my first
Response to the defense is the video for.
[1:00:38] Decepticon was posted in 2008 on YouTube.
[1:00:44] Oh, 2008. Yeah, that seems like a long time ago. That seems like a statue limitations issue. Mm hmm.
Well, yeah, but interestingly now, have they waved the statue of limitations? Could he? Oh, because they. They filed for declaritory relief.
[1:01:03] No. No. Another fact that we don't know is was there something more recently within the last 3 years that prompted,
Okay now we gotta do something about this and you know the the sexual intations just says you can't sue for things that happen more than 3 years ago.
Right so get to actually that's that's his concern. Right. I'm bringing this suit is the statue of limitations. But I wonder if it comes out.
Maybe this ties into somehow into a termination that somehow he's just recently reclaimed.
[1:01:39] I don't know. I don't know. We'll have to follow that when that.
To listen to it. I'm having a hard time. Well one, it's very similar and two, they had access. So,
Right. Similarity. So then it's a.
You know could they somehow fit into a fair use fund let's be honest it is one line that is the same,
What would the change of one word but it it's fundamentally the same line and melodic tone to it I guess you could call it but,
But it's the key. It's the hook. Yeah. It's the hook. Yeah. I mean that that.
[1:02:28] The substantiality has got to weigh in favor of the original song.
[1:02:35] Hey guys of what they took different song other than that.
[1:02:48] Sort of, well, maybe mine. That use of that line. So, it's,
It's weird. And I don't think you get to claim it. It's light telling the police officer.
[1:03:00] Hey, the guy in front of me was speeding. Yeah.
So, you should have stopped him. Right. Oh, okay. No, I got you. Two wrongs, don't make it. Well, that's the sunny and share song. But two wrongs don't make it right.
I can't believe I went there. Anyway, yeah, do you, let me just ask you, you know, if a client comes to you having received a season desist letter like this?
Under these under what we know about these circumstances don't you pick up the phone and call the other lawyer and say hey you're kidding right come on you know.
I have and the other lawyers sometimes are just not not the not the type of lawyer I wanna be. Fair enough. I know. But.
You know, you you make the argument. You present or you write a letter back saying, hey, this we think it's fair use.
He didn't really originate these lyrics, you know, all those make this defenses there. Do you actually go and follow him,
Declarator relief action in response to a well maybe it was a nasty demand. Who knows? But strikes me that.
[1:04:09] It's triggering litigation. Well, maybe for not old for some lawyers, it's the last resort for others. It's a first resort and maybe that's what we're doing up here.
Yeah I I I don't know. Well, we will. I think it's an interesting,
It'd be fun to watch. Yeah. Yeah. Yeah. It does sort of for stall any opportunity to quickly settle. If they were trying to just say, hey, hey, mister man, back off. You got nothing here.
They could have done so in a way that didn't involve having to follow suit and then, you know, now they fight. Now, right. There is no settlement.
[1:04:47] You know, he he could have said, well, yeah, okay, fine. You know, don't do it again. Especially if it's 2008, right? So, now he.
They forced his hand. Yeah. We'll see what happens. It might be an interesting case. I I want I'm wondering about jurisdiction actually.
Our venue. Okay. You know, I'm sure their companies are based here nowadays.
They used to live in New York when the song was written but I don't think it's.
That's a small issue. We'll see. Wouldn't surprise me to one little bit of procedural stuff was.
[1:05:23] Kept us busy for a while. Could be. Anyway. Because they they sued him individually and not just his.
Company. Well, that's that maybe part of the procedure. So, yeah. Interesting. Well, we will, we will be listening and watching. No. Well, you know, based on what we had in our rundown, I thought we were gonna be
10 15 minutes shorter than our usual episodes but somehow you and I always manage to spend an hour a few minutes beyond so that is it for this episode of Entertainment Law update,
And we do wanna take a moment to say thank you to our loyal listeners for spending your time with us if you're new to the show please do subscribe and
And feel free to send us feedback as well. We hope you'll do that by leaving a voice message on our widget on the website at entertainment law update.com or you can email us entertainment law update@Gmail.com or,
Hey Twitter handle and Tamara tell folks how to reach you if they wanna get hold of you,
Sure. So, on most social media sites, I'm at Tamara Bennett T A M E R A B E N N E T T my website is T Benet Law.com or create protect.com. I would also ask.
[1:06:39] If folks will leave us a review on your favorite podcast listening platform not just because Gordon and I like to have accolades but,
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I need you to only if you don't think so Gordon's email is. Well, I'm Gordon Firemark from Los Angeles. My website at Fire Market.com and the Email address is,
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Malhar oza john rappled charles thorn marc lindman and a cola sprena arbuckle and carneal wilson all helped contribute to this episode and we thank you so much it wouldn't be possible to do this,
The way we do and I think as well as we do without you folks so thanks very much and if you are interested in joining the
Yell you family of contributors reach out entertain law update@Gmail.com. And that wraps up this episode of Entertainment Law update. Again.
[1:08:00] Music.