The Gratitude Episode

2021, Gordon Firemark & Tamera Bennett
Entertainment Law Update

Entertainment Lawyers Gordon Firemark and Tamera Bennett provide entertainment law news, commentary and analysis.

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[0:00] It's entertainment law update episode 139 for November 2021 the gratitude episode.

[0:10] Music.

[0:16] Welcome to entertainment law update from Los Angeles California I am Gordon Firemark.

[0:22] And from the Dallas Fort Worth Metroplex I'm Tamara Bennett and we are so glad that you're here with us once again for our podcast about entertainment law where each month we pull together a round up of legal and business news stories and,
Share our opinions and commentary and analysis trying to have a little fun and I said at the top of the show that this is the gratitude episode and actually we start off on kind of a dark tone but we'll get there. So,
It will you're going how are things with you Tamara?
You know what? Fantastic. It's we're recording this. The Wednesday before Thanksgiving. So,
Things are winding down. I hope for the week. And into family mode. So that's all. That's all exciting. My mom is in town from Tennessee. So that's it. Always an excellent thing as opposed to a year ago.
When we,
Did not were not together for the holidays. Getting together with family and looking forward to a nice
Day together we actually have had a couple of family events in the last couple of months and so my stepdad had his 90th birthday party.

[1:31] Over at the country club. Last week I went to weekend. Yeah. So we're we've all seen. We've seen each other there already.
Now it's time to cook and eat and enjoy and and that kinda so that's the connection to gratitude as we're right on top of Thanksgiving and I'm looking forward to that. So, alright. Well, let's just jump in. We've gotta
We've got a rundown for you like we usually do. We can't really start.

[1:56] Talking this month without addressing sort of the elephant in the room the the sad note as.
Probably heard there was a crowd surge at Travis Scott's Astro World Music Festival in Houston earlier this month and it left a number of people injured and 10 dads dead folks including a 9 year old boy.
And various lawsuits have already been filed against Scott and live national entertainment as a live nation in the national.
Blindation, isn't it? Live nation? Yeah, the biggest of those lawsuits came last week.
This latest suit taking over 750 million dollars in in damages on behalf of about 125 victims so to do the math that's about 6 million dollars per.

[2:43] Victim is what they're asking
And it lists a broad range of defendants including the rapper Drake who was on stage halfway through Scott's Astro World said he joined him and Apple Music is listing listed as a defendant. They were streaming the event.
And you know the suits are claiming that Scott
Continued the festival even after authorities announced there'd been this mask casualty event scots lawyer said nobody told him or his crew that there been a mass casualty event that complaints also alleged that he.

[3:15] Excuse me Scott has a history of encouraging crowds to rush the stage and undertake dangerous acts and.
The latest suit point specifically to a concert in 2017 where Scott encouraged fans to jump from a third floor balcony of some sort saying that fans below would catch them.
And in that instance one fan ended up paralyzed and.
Claim that he was here she was pushed off the balcony so Scott has offered to refund all the tickets and to pay for the funerals of the 10 people who died and in a what may have been a sort of tone deaf,
Social media post not long after the incident he announced a partnership of some sort.
With better help which is AA.
Mobile online psychology counseling app that they're giving they were offering you know a month for free and those kinds of things but number of fans number my students who are were fans and and
Following the story they expressed.

[4:18] Anger and and unhappiness with the tone that that set by you know it felt like it was already you know and prepared and and,
Yeah, sort of this one of those damned if you do damn if you don't situations for for Scott. Yeah, you know, I'm probably older than your students and.

[4:39] When I heard it I I couldn't quite decide how to process.
The connection. There was a part of me that was like, well, this is a great resource that's being provided. Yeah. But then I could definitely sense the.
Yeah, they were sort of just felt weird. Yeah. You know, type of situation and and I know from.

[5:02] It just physically dimming Dallas to Houston or 5 hours apart I obviously the world has
Been shaken by this but it does feel more at home that it's happened for us and we've had.
Friends and friends or friends of co-workers my husband's co-workers that were at the event in full fortunately.

[5:26] That you know at the concession stands are at the merchandise booth or you know where where of not in the middle of of what happened,
The injuries and the deaths so I I think it's something we're gonna see for for a long time unfortunately to to try and sort through what happened what can be done differently.
Well, let me, yeah, there I mean, there's all kind. I'm not gonna get into cycle analysis but you know, there's all kinds of things like, you know, survivors guilt. If you were there and you didn't get hurt and you feel, you know, you feel maybe it was,
There but for the grace of God or may you know you're just
Not in the wrong place at that moment what you know whatever but it's life changing for anyone who was anywhere close to it both close and in proximity but also close in business and so on I think that my students.

[6:17] Disappointment was that it was couched in terms of a business deal you know here people are dead and you're announcing a partnership.
Hey yeah yeah it just it could've been it it may have been in well intentions and just the the voice that it was.
Promoted in or any own stand just wasn't and we also talked about how hard it is for,
Headline performer who's on stage with lights in his face and and I presume any of your monitors in his ears so he's only hearing what the sound board is sending him.
You know and and the crowd that's noisy and it's you know thousands of people in in one space it's it's pretty hard to be totally situationally aware and so if he wasn't,
Told about the mass casualty event and if he wasn't given enough information to make a decision from himself in the heat of those moments to to stop you know it's it's AA tough call but
To, you know, to point fingers at the artist. I understand he's also the promoter of the event. So, whether he was you know,
On it or on it or not there's gonna be some.

[7:29] Some potential liability for this anyway we we'll be watching and keeping folks informed the event safety industry is is also taking a good hard look at this and.

[7:40] We will have more to talk about. I'm sure.
Yeah I'm just as sad as the continuing conversation regarding the rust filming and.
Yeah, last month's shooting month. Yeah, that tragedy of that.

[7:55] Yup. Well, the the lawsuits have begun. Just a little fair warning. We are going to talk a little bit.
About some of the harrowing details that we're covering in the shooting there will be some descriptions so if you're with kids or if you're sensitive about that kind of stuff might wanna skip forward about 5 minutes in the show but otherwise we'll we'll jump right in here so as we discussed back in
Episode 138 the rust shooting has raised all kinds of legal intrigue and litigation has begun.
One listener weighed in, in one piece of location, it was for intentional torts, rather than negligence, we'll talk about that a little bit speculation about why and so on. So, let's talk about some of the complaints. First off is the complaint where,
This one was filed on November 9 filed by a Gaffer brought on to the production by Helena Hutchins the the woman who was killed
And they were close friends apparently the lawsuit is against the various entities and individuals responsible for making the film as well as Alec Baldwin
And the armor is read and the allegations you know say they look the film was subject to
These the then standard low budget collective bargaining agreement under riots rules and that,
That's fetnoid was close enough to have felt a strange and terrifying woosh of air after the shot rang out he went to miss Hutchins cradled her while she died and and.

[9:20] A vagina notice how much blood loss was going on and tried to keep her conscious while the medicated but then she had passed some. He realized right after the paramedics arrived, then he sort of was able to
Gather his wits enough to realize that the bullet had been mere inches away from him as it passed by that's the wish that he felt and that led to him breaking down on set so he saw it suing for negligence
And it claims that there was no reason for a live bullet to have been placed in the revolver filming is relying on squibs and blanks and things like that and excuse me the the presence of this live bullet was the reason it
It was a lethal threat to everyone in the vicinity. He also alleges that.

[10:01] There was no reason bullets should have ever been allowed on set at all and that the gun wasn't properly checked by any of those people who had handled the gun including the including the prop master the first AD,
Read the armor and baldwin,
They allowed this load and gun to be pointed at living persons and that there was this failure to have hired a competent armor.
Presence of live rounds without adequate. Safeguards is a violation of the IIT agreement and so he's,
You know, calling attention to some of the earlier news reporting that the gun had been used for target practice so the production team wasn't taking safety seriously and he's looking for damages for his trauma,
That has prevented him from going back to work. And the future loss of work from that as well. So that's complaint from.

[10:55] And then the big one came down this is brought by Marnie I think her first name Mitchell,
Yeah, Marnie Mitchell and she's represented by Gloria Alrid who's a familiar name to us all I'm sure. In any event, she's,
Her complaint is is providing some additional insight she's the script supervisor on the film and she's suing for assault intentional infliction of emotional distress and delivered infliction of harm no negligence in her claims
And I I'm not familiar of the cause of action deliberate infliction of harm.
Is that is that a California cause of action? I mean, not as far as I know. I mean, it's not what I've ever heard of, but you know, it, well, I don't know. We'll see.

[11:44] So hey Anne yeah okay anyway interesting I just I haven't read how they've what I don't know what the elements of that cause of action are so it just jumped out at me as something I just wasn't familiar with yeah it sounds like it's probably similar to a battery kinda like maybe okay.
The harm isn't physical. So, if it leaves for her. Anyway, her complaint corroborates the stories of other people
Gun discharges on set lack of security around the guns and she also alleges that Baldwin
During that part of the filming there was no require no need to or reason to cock and fire the gum on that day they were they were shooting three tight shots
One of Baldwin's eyes, one on his shoulder, and one focusing on his torso as he reached down and pulled the gun from the holster. So,
She knows that the the assistant director not the prop master or the armor is the person who handed the gun to him which isn't.
You know, goes against the standards. Baldwin should have known not to rely on the assistant director telling him it was a cold gun.
And there's a common standard of safety that you treat every firearm as if it were loaded all the time. Never pointed at anyone. And that wasn't followed. So,
If the scene had called for the gun to be discharged crew would have been required to watch from exterior monitors not all crowded around behind the camera those kinds of things.
So, after the shooting, it alleges that she called 911 and the plane, the claims basically rely on that.

[13:12] Production was cutting through red tape cost cutting and made intentional decisions that led to and cause the shooting to occur.
Including the hiring of read the armor who is 24 years old and had only ever worked as an armor on one previous film so she's alleging assault because the defendants had acted intentionally in a way that would reasonably expect to cause injuries to plaintiff.
Are both hearing injuries and an apprehension of imminent harm to hearing the gunshot and it's interesting it's just alleging injury to her hearing and standing adjacent to miss Hussians who died as result of gunshot what's interesting about this is negligence.
Was alleged in the complaint but here.
Hey she's not claiming at least not suing over she seems to be making some statements that support the notion of negligence but anyway the question is why.

[14:08] The intentional torts and I've heard a couple of theories.

[14:13] One being, well, first of all, we know that insurance policies generally don't cover for intentional acts.
So is this an attempt to bankrupt the defendants in this case by getting a judgement against them and you know sort of put them out of the business or or at least so sour on the business that they wouldn't come back.
Or is this an attempt to I don't know maybe it's just hey if you know you're not insured you're more likely to come to the table and offer a settlement pretty quickly.

[14:44] Yeah I I don't know I mean it's it's it is interesting because the insurance is.

[14:52] I suspect and obviously we've not reviewed the policies but the insurance typically will not cover
An intentional act. Right. I mean, I've been involved in not anything related to this but other litigation were insurance comes in and.
A lot of times the insurance may actually want to pay in their like please keep this.
To negligence? You know, right, right. Cover the claim.
You know you have to appreciate an insurance person who who stands in that back area to say we're trying our best to help,
Are insured to cover them with the insurance they've paid for. The premiums they've paid. I also wonder about,
You know we'll waivers come up
You know, I I assume everyone on set signed some kind of waiver. You obviously, they're not waving intentional torques nor
Or they probably waving gross negligence. Wow. But but you know, did they wave some kind of negligence? Which might.
Cover some people's actions. I don't know. Typical crude deal memo for most of those folks on set.

[16:15] I I don't think there is such a waver but I do think that this Sunday I just thought of it the the lack of negligence claims.
Also keeps us out of the worker's comp system.

[16:29] Ah Han thought about that. So you know if if this was if people are claiming work related injuries the general liability insurance says okay great this is worker's comp. Go do the administrative process. And if it's.
Intentional torts we're back in big boy chord for lack of a better way of saying it.
Yeah, none of this makes it any any less traffic. Better, any less tragic, any more helpful for the people who are part of the whole process. Hey, you know, as.

[17:03] For taking off my lawyer hat trying to analyze it I mean it's just yeah I mean how does this make any of it better you know.
I don't know but we will we will keep watching it because we're gonna have to advise our clients.
And hopefully this never happens again but in preparation for you know I tried to do like this happening ha how.

[17:29] Yeah. Well, you know, and if we can, I'm not saying that there is such a thing as a silver lining in a situation like this but if we can look for positive change as a result, then,
Maybe there will be some little good that comes out of Miss Hutchins death and I think that's gonna be in the nature of more stringent safety protocols maybe even having some oversight when guns are being used on sets,
Maybe there'll be AA cruise safety buds men or something like that that's that's called for and.
You know hopefully we'll we'll at least see some shifting in the way we do things to protect people a little better you know it's,
Not to be ironic about it any sort of you know the the.
Use of guns on set has been the wild wild west for a very very long time and and the time has come for more safety.
Yeah. Yeah. Let's talk about Taylor Swift. You wanna take this? Hey, sure. So, you know what?
If I haven't said it before, I really do love Taylor Swift. Just for for so many things for her great music for the rights. She's stands for and represents and you know, if if folks aren't aware of it, you.
Well, here you go. She's she's had a lot of ups and downs with the various labels. She's been with. And she recently rereleased her red and fearless albums.

[18:55] Which is then led to kind of a what sounding like an industry changing contracts. This is not the first time she's actually been kind of on the forefront of of changing industry standards. Yeah.
As as background Taylor Swift decision to release new recordings of her old albums is really
Part of her struggle but she was signed to big machine records.

[19:20] And which she left them and in 2018 signed a new deal with Universal Republic records but
After she departed which is not a which is the norm. Big machine capped her master recordings for her first six records. They've got them. They own them. They can they can release them. But.
What is also standard? Is there would have been a rerecord clause? Which would have kept.
Her from rerecording and rereleasing the songs for a certain number of years. She has tried numerous times. The number of acquisitions to buy back these masters. It hasn't happened. Yeah.
But she owns the music publishing rights for all of these songs. So, what does she do? She set out to rerecord her first six albums releasing them. Now, this is interesting under their original name with the parenthesis Taylor's version
As her new alternative to the albums.
And it sounds like she did this within the scope and terms of her existing agreement she had with big machine saying that the standard recording restriction previously.
Triggered this way. You could not rerelease the song.

[20:36] 5 years from the delivery of the final contracted work or.

[20:42] 2 years from the contracts expiration typically the greater of.
So, she was within the window or outside the window rather to release it. Now, what we're hearing is reportedly universal music group has changed that period to 7 years from delivery or 5 years from release.
Greater length of.
When and I added a 7 year post period to both windows kind of tying in something that they could only rerecord a limited number of those songs in that
In that period. So, yeah.
I wouldn't surprise me if they also, you know, say and you can't release them in the same collection or or sequences and I'm one of the albums that we've released, you know, those kinds of things but.
Well, first of all, I wanna just a little contacts, you know, most artists aren't interested in rerecording their old stuff because they're, you know, moving on with their artistic.

[21:36] Views and so on. I think that and what I've heard is that, you know, Taylor Swift's particular acts to grind is with scooter brawn who.
Had bought big machine and and made it more difficult for her to sort of extract herself from things then at that time and so.
She doesn't want. The that company to be receiving any,
Money that could have otherwise come to a her in a different label. So, by by recording these masters.
Now when there's a licensing request it can come to her and her.
Label rather than the big machine so that you know whether that's out of spider whatever I don't know but it's an awful big investment to go rerecord albums you know out of spite.
It is interesting. I also think it's interesting not just for her but with timing. Yeah. And you mentioned money.

[22:36] You know we we definitely you don't see people putting the band back together to rerecord. Right.
It's her. It's obviously she's got a full group of musicians that are working with her.
I don't think I've heard anything. That's right. I don't, you know, yes, financially, she's spending the money but it's probably not.

[22:58] As challenging as it might be for others to. Right. To do that.

[23:06] Yeah and so I think it's interesting. We'll we'll continue to watch. We'll see, you know, I haven't seen a
A major label deal that's had this change to it yet so I'll be on the lookout to see see what comes up on that point and the truth is that's only gonna really happen the the change to seven.
Years and the longer post period and and those kinds of things really isn't going to affect artists with any real bargaining power cuz they're gonna.

[23:35] You know, stand Pat. Hey, we'll do it the way we used to do it. We're not going to make this change or maybe they don't care. I don't know. But what who is really gonna have an impact on is the young, the next taylor swifts, the people who are signing their first record deal.
And just don't have the power to you know insist on getting unowning masters or getting their masters back after those kinds of things so.

[23:57] You know make it harder for younger artists to do the Taylor Swift strategy in the future and that's right and any issue that I've always had and that I have seen happen for decades is,
What's the worst case scenario is they deliver they turn in the artist delivers turns in the tracks it sits on the shelf it never gets released and then they are tied in and can't rerecord it yeah that that to me is,
Is the true true tragedy of those kinds of deals I don't I don't negotiate record deals anymore but,
You know, I'm sure that you you look at that issue and you try to make sure that there's some way that the that master can revert or be bought out or something
If it isn't ever released under the deal. Oh yeah. Yeah. You try. Yeah. Exactly. Yeah. So, thanks. So, we've got it. Something interesting. I've got two things about Adele. Just just kinda fun stuff,
One is a Dale's 30 album released I have not listened to it cannot wait to listen to it it's your fourth album,
I can't believe Adele is 30 but there you go.

[25:11] And so her her concern be with Spotify was stop putting our albums on shuffle just.
You know, just like they've done for decades, the order of song placement on the album mean something,
And we want people to be able to listen from beginning to end and so Spotify listened and now shuffle is not the default.
When you're listening to an album on Spotify so I thought that was really cool I also heard the most interesting interview not with Adele but Adele is part of the topic and then they're talking about her 30 album I pinned it in the show notes.
Talking about vinyl and.

[25:55] Yeah, you know, there's been a huge resurgence in vinyl and yeah, with supply chain issues, it's getting harder, to press albums, and I think Adele made a order for five
100 thousand vinyl albums of this 30
So, anyway, great. Just a blizzard. Let Gordon and I finish. And then go listen to the, to the interview on NPR. And play that
Talking about it's just a great it was a great
Music business, COVID, vinyl, record business, history, kind of thing because they, they interviewed her some people who converted.
For manufacturing CDs to manufacturing vinyl so you get to hear their story they did this before Dale but it.
It was just a great historical piece for a person who started their life.

[26:53] With vinyl records me and how I learned and I'm sure you did too when we were in college about the history of pressing vinyl and and all of that stuff
So, anyway, just throwing that out there. Adele is you know, the question is, did Adele? Did Adele break the vinyl supply chain? But don't, don't, don't, don't hate on her. And go, go listen to that article.
It's really interesting to me that that here she is she's 30 and vinyl sort of.

[27:26] Stopped being the medium of choice for records more than 30 years ago so this is something that has been I guess an audio file and novelty kind of a medium,
Her whole life. And she's doubled down on on it this way which is very cool and impressive. So that's that's awesome.
Well and they also talk about a you know we're part of this is dealing with money with what we're talking about Taylor Swift
There's more profit margin on a vinyl record. Oh, that's interesting. For everybody involved, then, there is on a stream and you're still getting paid your 9.1ยข for a mechanical royalty.
You know it would really impress me as if they she went for the shellac record or wax discs I mean wax,
Drums. Oh, yeah. You wanna go back to old school recording technology? We have somewhere. My husband has a really nice.
Record player.

[28:27] In a closet and I I'm I'm apologizing to all the vinyl lovers that I'm like I have got to get that out we have got to get it set up it hooked into the.

[28:37] Very very large speakers we have and and enjoy some vinyl,
So, yeah, I've got a high five somewhere too. Don't use it much. Anyway. Well, last month we mentioned the lawsuit that was between Barry Mann and Latigra.
That's Catherine Hanna and Joanna Faitman over the 1990 song Decepticon where they where man's team had been arguing that it was infringing on man's 1961 hit who put the bomb.
61 six anyway somewhere in the 60s and the the news really is just that those parties have now settle that case with a with a statement that it was quote amicably resolved by a confidential settlement agreement without any public admission of liabilities. So,
Congratulations Barry and and Latigra ladies and this is good news so.
Hey Facebook exactly. Alright.

[29:52] Remember a couple of years ago we talked about the fearless girl statue that was.
Dropped in and placed in New York standing in front of the bowl statue on Wall St.
Yeah. So, it was quite the stir. I think 2017, 2018, whenever that was placed out there.
So yeah the the statue was installed in 2017 in the financial district in New York and the artist who created it
Is named Kristen Visbal and it was commissioned by state street.

[30:28] Global advisors trust company and,
They asked her to create AA statue symbolizing State Street's commitment to gender diversity on corporate boards so
It has become this sort of unofficial symbol for the women's movement in modern era and the statue really does promote you know the idea of gender equal
Equality. State street alleges that visible gave certain rights to the company regarding the copyright and trademark through a master services agreement as well as a copyright license agreement and a trademark license agreement.
Visbal has since created 25 additions and two artists proofs of the statue and she has now sold several copies of that for up to $250000 a piece.
She then created a smaller version of the statue and sold over 100 statueettes at $6000 a piece. One of those buyers is a law firm in Australia, another buyer placed their copy of the of the thing in front of the Grand Hotel in Oslo,
Norway and.

[31:30] Visible receives inquiries about the statue and would like to have her in places all over the world spreading this message of gender equality. Well.

[31:40] State street is arguing that's a breach of her contractual obligations and that it has been deprived of control over its reputation and its trademark in the fearless girl the company also alleges confusion because the public can believe that.
Buyers who purchased on authorized copies from Visbal are connected with state street somehow.

[31:59] And she's so so she has stopped since the final lawsuit she hasn't sold another copy the statue.
But she's announced that next month she plans to create a series of FTs based on the fearless girl to raise money for her legal fees. So, since she's not allowed to sell copies of the statue but it seems she's gonna create these NFTs as a
As a way around that. So, we'll we'll keep you posted on how this shakes out if it's public, the way it shakes out, and it's just sort of interesting.
You know, there was another similar story that just came up. With Quentin Tarantino announcing that he's gonna release NFTs of.
Certain scenes from and I guess his original script from.
Pop section and MiraMax has filed a suit against him to prevent and join that.

[32:52] NFT creation and yeah so this is gonna become this may be the wave of the future of what we talk about for a while is yeah the.
It's fascinating and I I think I need to get smarter about NFTs because they're not going away. And and we need to figure out
What do we say in a contract that protects our clients' rights relating to an FT's whichever side of the issue we are? That's right. I mean, who who can develop them? Are they part of the deal? Are they.
Are they all media now known in hereafter developed? I mean could they fit into that category?
Couldn't empty.

[33:32] You know could you argue that it's not a medium that it's a something else but I don't know. Well that's cuz I'm that's where I'm kinda going but yeah.

[33:41] What? I don't know. It's it's interesting. So that they mentioned on the fearless girls about a trademark. So the the state.
The financial company State Tree Global they do have a trademark registration for the words fearless girl related to promoting ginger and diversity and then also for their investment funds
So they they are the record of record owner of the trademark but we don't know what's in the,
Master services agreement as far as what rights she may have retained to use that design. So, even calling her sculpture fearless girl, her series of sculptures, fearless girl.
That may still be a trademark right that she can hold on to so there's a lot to unpack about this case as the car gets into it so.

[34:35] Well, are you familiar with the server test? Well, as as I've refreshed my memory, we've talked about the server test and and
You know, there's a part of me that going, oh my gosh, she's my server down. But we're talking about a little bit of a different server test. When it comes to the copyright office.
Sorry they they the courts and the copyright law and what does it mean when a visual work is displayed.

[35:07] On our computer screen on the computer server on all of those things
Yeah. So, this is about embedding an inline linking and and those kind of things that happen when a third party website uses
You know HTML code instructions to direct a browser to render visual images from,
Someone else's website essentially the website that actually hosts in stores that content being displayed as though it's coming through the third and the the intermediate site and we've talked about this a number of times. So, earlier this year,
There's this is we're talking about is there's a circuit split here. Earlier this year, group about a number of professional photographers filed complaint in the northern district of California in the night circuit. Looking for class action relief against Instagram for
Inducing coppered infringement contributory cop red infringement and vicarious copperhead infringement the case is titled Instagram
And they alleged that defendant by providing embedding tools
That enables third party websites to violate Planet's exclusive display right under the copyright act.

[36:13] They are the alleged defendant facilitated solicitant and induce those violations by misleading third parties and believing that they didn't need to obtain a license or permission to embed.
Until some public statements came out in 2020 clarifying that issue the third parties are responsible for obtaining necessary rights so on September 17
Of this year Judge Briar granted the defendant's motion to dismiss relying on the case of perfect 10,
Which was what perfect 10 versus Google from.

[36:44] Forgot what year it's been that's a good oh yeah and I've linked it I think it was 2011 or 2013 so it's in the show notes show notes for basically the same as in Hunley they both involve creating and storing thumbnail versions of pictures and displaying those in response to an image search query and
Mad aloud the third party users to copy and share the images so the Hunley Court ruled that the embedding images did not violate the exclusive display right now
Of the copyright holder because under the server test established in the perfect hand case and images of work that is fixed in a tangible medium of expression that stored
In a computer server hard disco or other storage device and because they're not storing the images or videos.
These services are not fixing the copyright work in any tangible medium of expression so the there's no,
Fixed copy being made I guess so when they embed the images and videos they do not display copies
Of the cooperative work and the court also determined that the Supreme Court's decision in the area case which we've also talked about in a bunch of episodes between episodes number 29 and 100 we talked about it a few times.
Anyway, that didn't contradict that perfect 10 ruling because aerial interpreted different statue language relating to the exclusive right to perform a copyrighted work. So, display right and performance, right?

[38:08] So so that the splits the second serve yeah.
And these are the ones we've talked about most recently. In the southern district has allowed two cases to proceed considering copyright infringement against defendants who had embedded social media post. They were Sinclair versus if Davis.
I'm sorry did we discuss that between episode 12 and 128 or maybe 120 and 128 is kinda the window there. Yeah.
A magazine versus news week and two other cases which I know we talked about several times the Goldman versus Britbart news. Yeah. And Nickline versus Sinclair Broad
Casting as well and those courts considered and rejected the perfect 10 rationale in the context Goldman involved in bedded tweets of Plains Copyright copyrighted images
Which plaintiff never posted the Twitter,
There were claims of an infringement involving a video that had been posted to social media regarding a starving polar bear that went viral and was embedded in dozens of media entities.

[39:14] And denying in this case the Sinclair case the defendants motion to dismiss seeking application of perfect 10 the judge and the second circuit ruled
The server test is quote contrary to the text and legislative history of the copyright act which defines to display as to show a copy of a.
Night to make an then show a copy of the work,
And I I feel like I'm coming down on that side of it but I'm not sure but anyway the court.
In the out of the second circuit said we've gotta look at two factors to determine if,
Perfect 10 should apply. The defendant operated a search engine and the user had to click a link or a thumbnail image which could be linked to display the copyrighted work. So if I'm reading that correct,
Perfect 10 applies.
Yeah. Yeah. So, we we have a split, you know, are we, are you, are they saved? Is in are the Instagrams of the world?
Saved. Well, yeah. A good question. Perfect 10 or not or you know, are we, can you provide a tool to allow embedding?

[40:31] And night be contributing to infringement not actually being fringing not by curiously infringing.
Well, that's the question and it is now a circuit split. We've got the second circuit and the ninth circuit approaching it differently and no word that there's an appeal headed to the Supreme Court just yet but it's certainly something we'll be watching for and.

[40:54] Hey yeah so here here's my practice pointer if you don't have to embed it don't do it.

[41:02] Yeah or get the permission. Get the permission.
If you really, if this is essential, you know, do something that you need to provide this as part of your content.

[41:17] Get the permission. It's a costumes. It is a cost of doing business or is there a different way to skin this cat? How essential is it? Right.

[41:28] It it on Fortwell.
For better or worse you know this this idea of embedding images and and things has become sort of a,
A standard practice in especially in the news.

[41:43] Website arena you know they'll they'll use AA an embedded image from another place to illustrate a story and then there may be fair use issues in that equation as well but so it,
It put the second circuit decisions do potentially have a major influence on how these companies do there,
Their business. So, anyway, we've got the circuits to watch for. Excuse me. Alright.

[42:13] Last echoing some things that have happened in the presidential politics arena election
Politics arena. The new contract for Ayatsy, the international lines of theatrical stage employees. Has now been approved.
By the membership but.
That is the case even though a majority of the members apparently voted against approving it so the Labor Union,
Represents technicians, artisans, craft persons, and the entertainment industry. They've ratified this thing. But the the percentages
Come out to 50.4% voting no against 49.6% voting yes i ought to use as a delegate system,
Where delegates are awarded based on the majority vote within each local and by that measure the contract was ratified in sort of an electoral college desk kind of a vote it was actually 256
Electoral votes against 188 because locals 44 and 700 are the two biggest locals they got them you know they voted Doratify and they've got
You know, just a more members in there and therefore, more more electors. I guess you could call him a more delegates.
So of the 13 basic agreement locals eight did vote to ratify while the other five rejected the deal.

[43:36] There we are. Negotiations were very difficult and many members urge that no vote.
Because they felt that it just doesn't do enough to address the quality of life issues. Long hours, meal penalty, meal breaks, and penalties.

[43:50] For now at least for the next few years it seems to have been an issue that's resolved so just sort of a little side note about.
Election politics don't aren't just limited to the national stage. Well, and you never, I mean, the, there's the unions are there to protect the rights of their members and yeah.
But they're but there has to be a way when there's such diversity and what what an ayachi member in.

[44:17] Fort Worth Texas might need, might be very different from somebody in Florida or New York or California. Yeah, and and you know, it may just be that.
Trade to trade. Also, you know, cuz these these locals are based on not actual just geography but also, you know, whether the person is a an electrician versus a you know,
A truck loader or what that would be the teamsters but you get my point there are different things makeup artists or something so there it is so yeah well
Well I just say I'm glad to know the Cleveland Indians I guess I'm glad to know that the cleanland Indians are now free and clear to be the Cleveland Guardians settled their lawsuit we talked about several months ago
Against the roller derby team who was also named the Cleveland Guardians. Actually, I guess the suit was filed October 27. It feels like it was,
Further again. Yeah. That you know I think the question I had as well as many others is how in the world did they not know.
The roller derby team existed.

[45:25] When they chose the name or didn't have a conversation with the Roller Derby team for her I I we I guess we probably will not know that answer as the settlement was not publicized the team's in order to join statement reaching an amical
You know part of just procedural wise the original application was filed in I think Moradas which is not unusual for a trademark application to be.
Filed in one of the countries where we can get a priority right in the US.
6 months after the fact you can within 6 months you can follow you at for all we know I don't know if we can go search the moratas records but they may have filed for multiple names.

[46:10] Good question. Yeah.
Yeah, it would again, not unusual, big brands do that all the time. Basically, just to keep it off the radar for. Yeah, potential.
Squatters and infringers of you know people who are gonna come along and jump on the bandwagon and start that that's right so anyway we will go into the 2022 baseball season with the Cleveland Guardians protecting us.
And hey Facebook roller derby they're gonna coexist so well that's exciting good for the roller derby,
Hey I took my husband on a date to the roller derby a couple years ago no kidding we'd never been we haven't been back.
Oh, well, alright. I've never done that either. I might be something. Well, it was it was something fun and different. There you go. It's so probably not nearly as fun and as exciting but just kind of a few practice pointers for.

[47:07] Folks who practice trademark law every day and those that maybe just occasionally file of an application the trademark modernization act is full steam going into effect,
We're gonna go ahead and wish our contributor John Rappold a happy birthday because
18th is evidently that his birthday and the date most of the actors going into effect thank you John for for letting us know that in our notes you know a cup a couple of things that are,
Out there that you might wanna look at is Xparte proceedings to cancelled unused registered trademarks. There's gonna be a new faster way to deal with that as well as expungement of marks, reexamination of proceedings,
So, there's a process there for cancellation, review, that is going to function differently than what we've been doing with the TTAB. So, we want
We wanna read up on that as we get ready to to jump on it.

[48:11] The one that gave me just a little bit of a panic attack 'cuz when I first read it, I thought it was going into effect in 2021 but it's not happening until December 1 2022.
This is super important for most of us. He purchased trademark laws. Yeah. The response time for an office action is being shortened to 3 months.
Starting in December 1 2022 so we've got a full year to to to get adjusted to only having 90 days or rather 3 months to respond versus 6 months. Right.
Two and office action. Now in December but the,
IT systems at the USPTO require a whole bunch of reprogramming and that isn't gonna happen in time so they've pushed it for a year. Also I'll say that right now you know the trademark office can't keep up with the response times that they normally.
Aim for and so I don't think there were any hurry to to rush this process. For attorneys, practitioners and to help manage your clients expectations.

[49:25] I've had
Filings March and April and they've not been reviewed yet. You know, we're we're in the process of just, you know, retouching base with all of our clients who we filed for to say this is unprecedented. No, it's not been reviewed.
It's just taking there were so many filings in 2020 and 2021 that they're just behind,
What end they shifted over to work from home system for a lot of people you know lots of other stuff going on there too
Yeah I seem at the same spirit I actually had a client email me earlier this week saying hey it's been you know over 9 months since we read recently filed the application I haven't heard a word from you
Who dropped the ball? And I was, you know, I was able to say, well, me because I didn't follow up with you but that's cuz I didn't get anything to trigger a follow up from
The trademark you know usually you hear hey an examiner has been assigned and you reach out to the clients say guess what it's moving along.
And none of that has happened. So. Yeah.
Crickets we're we're getting we're getting crickets. Hey there's other things in there that court orders concerning registrations, attorney designations, obviously we don't want fraudulent attorneys. Have that ever happened to you? It has happened to me. We're all of a sudden my name was attached to an application I had mentioned.
I have not had my name attached but I've had a fraudulent I've had someone claim.

[50:50] Our registration fraudulently. Oh interesting.
Yeah that was a panic. They and this is I'm aware of myself and two other attorneys where.

[51:04] Unknown third parties paid the filing fee in filed a renewal.
Section eight, section 50. It's it's it's bizarre. It's you have to watch. You have to
After stay on top of it, watch it. One of my practice pointers that I it actually didn't make it into a rundown so I don't know that it's really part of the new implementation of the modernization act but it is part of the implementation but it's really triggering now.
It started a year ago. You have to have a physical street address for the applicant. You no longer can have a PO box. That's started over a year ago.
But they are also and so you can put a
What's called a domicile address? So, your client only wants a PO box to be visible or maybe it's not even a real PO box but it's a street location post office type of thing
You still need to add a domicile address with a physical street address for your client.
The office action we just received not only said.

[52:18] Do you you need to have the physical street address if you put a doma salad address in it also said you need to submit to us a documentation of something that's been recorded somewhere officially showing that
That street address is for your client. So, you know, we we have,
Annual corporate reports that get filed and so that's what we've submitted to verify a domino style address. Now, my concern is I hope that,
Submission because it's attached to the office action doesn't become a public record. Yes, I have to see. So, so a corporate applicant.

[53:00] Well I guess it has any any individual that any any any applicant has to have a physical address of record but it doesn't have to be public,
Oh, interesting. So, you can imagine Adele may not want to have a physical address of her. Oh, okay. So, here's hoping the the records are in fact kept from being public. We've been told.
They are that the Damasal address is not public.
I I've also had it triggered where my clients really they're truly physical registered agent, place of business, was a different law firm. It was a name. I had questions from the examiner about that.
And so anyway, just be careful in the address. I tell you this, just to save you time, and money, and frustration, in something that
Is now a big issue with the trademark office because they want the information to be accurate to avoid fraud. Yeah.

[54:04] I just wanna say, you know, as much as we talk about the red tape with the trademark office and and the.
The challenges we have with our with the office actions and some of the examine attorneys I had an interaction with one examining attorney I'm not gonna name her here but but she was really really terrific or just last week this week,
Just trying to to sort of a client came to me and and ask me to fix
Abotched Apple a self application proceed application so I got involved and I you know had a question for this examine attorney I called her and and took a couple days get back to me she called me back and she gave me.
Answers that I could actually use and and it made the process.
Quick and easy and within 36 hours she had approved the,
The application for publication just you know because because she was accessible and open and helpful and so,
That has been my reach out to experience it really has been my experience,
Especially in the last 2 years. It has been that way.

[55:13] Hey Facebook I did get someone who maybe wasn't as helpful in the last month or so but that that is not the ordinary experience that I have the examiners are professional,
Obviously they can't give legal advice but I have found that they really want to make the process.
Smoother and if they can give you information.

[55:37] Many of them will you know go beyond above and beyond what they how to how to get it give you the information and this was situation where I was doing an amendment,
To the application but also an amendment to the to alleged use on one of the classes and you know the
There there was something about paying a fee that the form didn't wasn't set up in a way that would let it
Happened that way and she said we'll do it this way and I'll take care of it. You know,
And and so it it was just there were no real good instructions out there and so we we figure to work around and she was really shouldn't think of them as adversaries we should think of them as
A facilitators.

[56:16] I think so too and I I would also say if you have the opportunity at a continuing ad situation to interact with an examiner.
You know, a third
Carly, they are just human beings. They are just, they are just lawyers, human beings, just like us. So, god save us from the day when they're bots. That's right. That's right. So, good. Yeah. You know, I it's a fun part. I have to say it's always a fun part of my practice and
And the examiners the examiners go a long way in making it a like a good part of a legal practice. So,
Grateful for trademark examiners thank you USPTO well that brings us to the gratitude section of our of our episode we asked everybody on the team to,
Drop a note and just some of the things that they're grateful for. I will start and tell you and I just go back and forth on these. So, I first off, I'm grateful to you Tamara and my co host for.

[57:13] Almost 13 years of of this fun.
Enterprise that we're doing here and to everybody on the EO your team and you folks out there listening the audience without you we'd be you know talking in the microphones and and.
Not accomplishing much. So, also the technology to do this thing and to serve our audience and the community and of course,
I wanna say thank you. I'm grateful to my family, my wife, and my kids, my pets, my mom, my sisters, for our health and abundance and happiness and all the joy that we experience in in the world. So, thank you so much.

[57:49] Yeah and Gordon as well. So thankful to you as as I've said numerous times and anybody who's listened for the last 13 years knows I do not have the technical skills to pull this off. So I just appreciate your friendship and for you making this work
For us. As we put this out about every month. I I actually set down and made a gratitude list this morning with my husband, my son, all of our family members. I I give thanks for all of my past legal assistants.
There have been a few. Angela, my current assistant, the amazing ladies I office with, because they make my life better as well and
I don't think them nearly enough. Thankful for my health. My mom is healthy and that she's with us this week to celebrate Thanksgiving. So just just a good time for.

[58:38] Family, and friends. John Janice sex sounds like he is.
Thankful for having his library in office almost mostly unpacked. So, yay, John. Yeah.
Yeah Anna says that she's grateful for the essential workers who have put themselves in harm's way over
And over again throughout the COVID-19 pandemic. Often at huge emotional and physical cost to themselves and their families. All second that emotion. Here here for the essentials. Yeah.
Brenna grateful for the ability to spend time with her family and friends to celebrate the holidays this year. Carneil says I'm grateful for my family, friends, this podcast, and life in general. I'm also grateful for the essential workers helping us these past 2 years.

[59:22] Charles i am grateful for the opportunity to work with it
Work with and learn from the ELU team and be able to contribute to the podcast. Thank you, Charles. I am especially grateful that through a year and a half of pandemic as well as other health and safety concerns I've been able to enjoy time with my family, relatively
Free from health issues. That's awesome. And just a quick note to Charles, we wish you a rapid recovery. Charles was.

[59:47] Struck by a car but a carver is pedestrian situation and oh no not seriously seriously injured but still nursing those wounds and and,
You know, getting better needs some dental work and things like that. So, hope you don't mind me sharing that Charles but we we wish you a rapid and easy recovery.
John Rappold says I'm grateful for my health.

[1:00:09] And being able to help people through work I enjoy and get paid for my loving family especially my new edition on the way yay John congratulations his wife is expecting a baby girl in March.
And heck just a good life I'm so lucky to have happy Thanksgiving everyone I am thankful
Thankful for my health and a big lifestyle change congratulations moving in with his girlfriend his girlfriend she's so smart and supportive and I couldn't have made it through the last year without her he says he's also thankful for his family's health throughout the pandemic that they've been very lucky and they are so very grateful
So lots of excitement with our team members over the last year and we are so thankful for everyone of them
Making this happen for us every month. Yes, indeed and.
With that we can all be thankful that we're come to the end of another episode of entertainment law update if you have feedback that you'd like to share with us and we hope that you do please leave it for us using the voice widget on the website at Entertainment Law or
Email us entertainment law You can reach us on Twitter. The handle is at law update. We also now have an Instagram a very.

[1:01:22] Sparsely populated Instagram at the moment that's also entertainment law update is the is the name for the Instagram handle and.
And again, thank you, Tamara. How can listeners get a hold of you.
Yeah, so on most social media, I'm at Tamara Bennett T A M E R A B E N N E T T T or create we'll get you to my websites
And in Los Angeles I am Gordon Firemark with email is easy it's my first initial last name G firemark
At and G firemark is the handle for me on most social media,
Websites and things. So, we'll say thanks again to that crack volunteer team. John Janiceek, my heart also John Rapple, Charles Thorn, Mark Lindeman, Annacolas, Brenna Arbuckle, and Courtney Wilson.
And if you are interested in joining our team, reach out, entertain the law is the address and that's gonna do it for this episode of Entertainment.

[1:02:21] Music.