Transcript
[0:00] Entertainment law update episode 140.
[0:07] Music.
[0:12] Hello, welcome to Entertainment Law update. This is episode 140 for December 22, 2021, or year end,
Episode I from Los Angeles California I am Gordon Firemark,
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett. And we are grateful for you being here with us. This is our podcast about entertainment law update where,
Each month we pull together a round up of legal and business news stories and share our opinions and commentary and analysis about them,
And it's the Christmas season Tamara how are things going for you?
Fantastic. We're recording on December 23. So, yes, it is. Did you not say December 23? I said the 22nd which was what we originally planned to do. That's right.
We're usually a Wednesday record. We kind of adjusted things for our travel schedules and work schedules to record on the,
Thursday the 23rd so I hope you and your family had just a
Fantastic Hanukkah celebration in we're now moving into the Christmas celebration and then to the New Year celebration and then in January,
It's our birthday celebration.
[1:23] We've got a lot going on. I actually we had AA nice Hanukkah but it came so fast after Thanksgiving. Yeah. That it's sort of took us by surprise and my wife had been out of town over the Thanksgiving weekend,
For a family event that, you know, that's adventurous. It was her father's funeral, and so she came back when we had to
Jump into the celebration mode. It was a very sort of weird, surreal vibe. But we're excited about the holidays now, and, and Christmas is upon us, and the,
The tree and the can the presents we do both in our house so we're we're glad for that and and I'm enjoying a little time often,
It's all it's all good.
Good. Yeah. We are too. My my mom will be here this afternoon. The the whole Bennett family side. We we swapped our noses. We're all cool. We're all good. And it's that's always exciting and then after she she's here for the weekend and then next week we'll go down San Antonio for a
Day and a half for the Oklahoma Bowl game and.
[2:30] Yeah. So, anyway, lots and lots of fun and excitement as well as we and then, you know, also focusing on the true reason for the season. So, bye.
Let's
Let's get going. Let's do it. We've got a little bit of breaking news at troubling development that just crossed my desk early this morning. In the world of podcasting and journalism and the first amendment. Just yesterday, December 22, a judge in the San Diego
Trial of several formal,
Former enable servicemen in AA very sort of big corruption case has ordered two podcast companies project brazen and audiation the producers of the Fat Leonard podcast,
To comply with the defense council subpoena for all of their raw recordings of interviews,
With a person who will be a key witness in the trial. Now, these recordings are really equivalent to reporters notes unusually.
Courts are low to order media outlets to,
Produce that kind of stuff but the defense argued that look the the finished episodes of the podcast are you know chopped up components of this with summaries and paraphrasing and those kinds of things and.
[3:41] And the
The judge and the ruling upholding the subpoena said this was an emotion to quash they said that the naval officers fifth and sixth amendment rights to do process and confrontation
Are paramount and overshadow the podcast producers first amendment rights to protect their sources and unpublished materials and i gotta say I strongly disagree with that analysis I think the first amendment analysis is,
Is equally important or more so in a situation like this and.
You know, there it is. So, the, there's time for an appeal still. They have I think the,
Court order them to comply within a week and so they've got a little time to get an appeal file but this is a tough week to be doing that also. So,
Anyway we'll be watching and seeing what happens in that dangerous president. And for me it trouble it's troubling that. Somehow a podcast is being viewed a little differently than a,
Traditional mainstream media outlet even though this particular podcast I think is a very much a journalistic style show so.
[4:51] Yeah I I I'm not familiar with this podcast yeah.
Listen to the podcast so I understand and then make a make a little asterisk there you and I are doing our podcasting CLE in just a few weeks we need to add this topic so certainly do
And you know what? We need to also add to for our listeners, the link to that CLE so that they can do it. It's they can join us. It's virtual,
That's right. We'll we'll make sure that's in the show notes. Yeah. When the
When the episode goes live. So, check it out. Okay, well, let's move on to our our regularly scheduled stories and by the way, we're gonna do a few stories and then we're also going to sort of round up the the year of 2021 and review. It was sort of a strange year and
We'll talk about some of the big cases this year and a little bit about what we're looking for. Happening in in 2022. So.
[5:45] First off the the area of comedy is starting to see some interesting developments in the copyright and ownership space negotiations in a dispute between Spotify and spoken giants,
Has resulted in the removal of multiple spoken word albums and works from spotify. So,
We all know you know music played and licensed and streaming platforms like Spotify their composed of two parts that composition and the recording and the public performance aspect of those compositions is licensed through the PROs Ask at BMIC GMR and the license for the actual recording is a direct license
With the record labels now spoken word,
In comparison might be thought of as performance rights to the literary work and and the,
The recording. Also, you could break it up the same way. Spoken word pieces typically not covered by any PRO,
And yet there is a claim of copyright so it's for spoken word they're typically only compensated for the recording.
[6:47] But these new agencies like spoken giants are trying to get authors of the spoken word works compensated in the same way that songwriters are compensated
So this is AA debatably a question of whether or not the recording labels ability to license the recording,
Encompasses the rights to the underlying,
Comedy routines themselves and it's notable that the US pen and trademark office typically deems stand up routines not as literary works but as performance works so there's a little bit of government for this and,
I I don't see why stand up comic or an author of jokes couldn't register them,
The copyright office. So, what do you think about this? Yeah, that's interesting. So, I guess if we're looking at the USPTO being the trademark office, it would be a holding that as far as from a trademark for the brand.
[7:41] That last 41 live entertainment services.
Versus if I okay so here's an example of,
David Letterman for his if he was doing live stand up performances,
It would be a service class but at one time I had a book that was around up of the top 10. David Letterman's top 10 published. Well, that would be a physical work.
Projected as you know. So, but we know that comedians do file copyright applications and that they're they're skids. They're performances. They're recordings.
Of their performances.
Audio and or audio video are protected by copyright. I mean, I think there there's has to be compensation.
[8:29] Because it is a public performance.
I mean it falls within the definition of a copyright act of a public performance when it's played when it's streamed on spotify. So I is that another direct license because there's not a statutory nature.
Or a group of entities such as Ascapi and my Csac.
Performance rights organizations to collect or are we going to see that somehow maybe,
I don't know the answer to this and I think it's it's an intriguing question. Could.
[9:05] A comedian join.
[9:09] Yeah. Or by definition or the PRO solely limited to musical compositions that they cannot.
[9:20] I think they are. I I don't. That's my suspicion too but you know, this new organization and and there are several of them apparently spoken giants in this instance.
Certainly seems to be trying to become a PRO for the spoken word content arena,
Of course there are no, you know, what do you call him? Consent decrease and involved in as they were with us happen via my but you know, it seems to me.
That this is an opportunity for the stand up comedy,
Creators and let's be you know really candid here not all of the stand up comics that you see performing right all their own content so there are writers out there.
As well who create.
[10:05] Comedy routines are parts of comedy routines that get worked in to various comics act. So, there's also the web of of ownership that needs to be untangleable. Who really gets it?
Hey, yeah. I mean, it's it's it's five hurricane just like a recording as the the writer maybe different from the performer. Yeah. Yeah.
And there may be multiple writers in one comedy routine. You know, joke one came from writer A and joke two comes from writer B and so on and so so you know, maybe there's a need for an organization like this to,
Gather the data and organize and and create a an algorithm and figure out how to pay,
Royalties to these authors but it's you know it's interesting the the cop product specifically addresses music in some ways that the,
That it doesn't for other kinds of works. So, I think there's gonna be a while that we watch this and it starts to be worked out but in the meantime, if you're a fan of comedy, you're not listening on Spotify anymore.
You know, it is, it really a matter of this is just several years or a decade behind the music business because.
[11:20] Remember when we bought comedy albums I'm sure they've been became
Comedy. Comedy CDs. Well, that market has gone away and it's not just a matter of watching,
The HBO special anymore. Sometimes we wanna listen to comedy even if we're not seeing comedy.
Hey it works well when you're driving or doing other activities kinda like podcasts too so maybe we podcasters in the next round of of creators to be looking at these things but you know the truth that is in the in the
In the comedy recordings,
Arena we also have to wonder cuz I suspect that the record deals are very similar to a music record deal but maybe there's a an acquisition of more rights by the record company.
[12:08] And so, you know, yeah, and what I don't know is if if the comedy is online quote, you know, a somewhat major label or major independent label that has a deal with Spotify. Right.
[12:22] The labels probably getting paid but I suspect these are issues with.
Comedy routines that are being posted that there is no deal for any compensation company from Spotify.
So that may also mean we see a movement in that arena as well too. Performance royalties for those sound recordings.
[12:43] Okay. Well, let's talk about Megan Markle.
Yeah. Like like everybody else does, right? She has, we've gotta be relevant.
You see where exactly. Well, she has prevailed in her case against the British tabloid over the publication of her letter
To her father
That I just proceeded the wedding. Back in 2019, mail on Sunday and mail online published portions of the five page letter that you wrote to her father. She sued
Associated newspapers limited for is in the UK by the way for misuse of private information breach of duties under data protection legislation
And copyright infringement and in February of this year the high court issued a ruling before discovery had even begun,
Giving Marco Legal victory the judge in that case found that Marco had an expectation that the letters would remain private,
That the outlets disclosure of such private letters was manifestly excessive,
And noted that a trial would not have produced another outcome seems to be version of a sort of summary judgment. No.
Tribal issues of material factors something. So the newspaper organization took an appeal and requested that a full trial take place are doing that it needed to publish the letter the reasoning being.
[14:02] That Marco's father's character was attacked in a people magazine article because friends of Michael had told the magazine that the letter was loving and nice and he was there for the one in the wrong for not attending the wedding.
[14:14] The newspapers argued that it needed to show the true nature of letter and vindicate.
I heard that. So, in early December, the Court of Appeals rejected that request for a trial, the Court of Appeal stated that the matters were personal, not of public interest,
And Markel is calling this a win for privacy rights for all people not just celebrities in public figures. The,
The newspaper organization commented that none of the evidence had been put through the rigors of cross examination and that judgment should really only result from trial and not before or at least not before discovery in so on. So,
We have to ask the question what does this mean?
Moving forward for tabloid journalism and other journalism as well what is a matter of public interest and what isn't and isn't.
[15:01] The I don't know. Isn't something like this dealing with a celebrity soon to be royal? Not.
Is this really not AA matter of public interest seems to me a lot of interest,
There's the others a lot of. Maybe not public. To our interested.
And it's interesting too because this is coming out of London which normally aren't they more.
[15:27] Have Lloyd favorable. I think the rulings. I think they're tabled friendly but I also think that they're really tough on.
Anything that has to do with the royals. They're they're very protective of the royals. But I don't know. This feels.
[15:45] Oh no. I'm a one hand earlier case. I was talking about the first amendment and feeling really strong about it here. I mean, this wouldn't fly in the US. There would be a, I think there would have been a trial. Well, I think so too. I think it would have been very.
Different yet.
[16:02] If it's I don't know how did the newspaper the cowboy get access to the letter I think of the accusation or the allegation is that the father actually provided it to them,
Then I think it removes the privacy if you're the right isn't that the case if you're the recipient of the letter.
I think you're in the US that probably would be. Well, I'm not sure. Was the author of the letter has an expectation that it's just a letter between two people.
[16:30] Does the recipient have the right to bust that open I'm not sure.
[16:36] Was there a case involving correspondence? I think it was more of a copyright case but wasn't it,
Letters or something. I think so. I feel like we've talked about that in the last couple of years that so I think that's that's true.
So if if I receive the letter I by my receipt I have not I'm no I'm not the owner of the copyright and what is it.
[17:04] So I could not necessarily go publish it from a copyright standpoint but it.
[17:11] I don't think it means i can't go share it. Right.
[17:16] Hey yeah I'm I just don't remember I don't remember the answer to that I'm in the US but.
Anyway, here we have the outcome in a UK case and so I think the tapoids will be thinking hard about it next time they go publishing.
What appears to be private ish correspondence. You know, I wonder if they encountered it somewhere else and I don't know. It it's.
But for us to decide. Yeah. Yeah. I mean, I think those are questions that probably,
In the US would have said that's not gonna their questions are facts that will not survive emotion for some rejectment.
And and then we would get the answers. Those facts would hopefully come out. So,
What's this well this is the ninth circuit court of appeals in this Joham songs publishing versus Loveland the night circuit is rejected,
A bid to change the the test for infringement of sub then substantial similarity and it's gonna continue to use the extrinsic and intrinsic,
Two prong tests so the the background on this is a 1977 song sold called What Soccano Door. That's my best guest. Okay. So.
[18:35] The song you raise me up written by Ralph Loveland and Brennan Graham was released in 2001 by secret garden and then later we recorded by josh grubman in 2003. Is it really 2003? Wow. I know. I know.
In 2018 johan songs publishing filed a copper imprintment claim against the defendants who were involved in publishing and or selling you raise me up,
The defendants move for some rejment on the grounds of the elements claimed to be similar.
In the two were not actually sufficiently similar to sportifying of copyright infringement and that any similarities that did exist
Were derivative of Irish folk songs such as Danny Boy. Which was in the public domain. Now, each side submitted reports by their experts, alleging regarding the alleged similarities between the two songs.
I remember the basic elements of a.
Planet proving a copyright infringement case our ownership of a valid copyright and coping of constituent protected elements of the work that are original
Now there was no dispute about ownership in this instance except as to the lyrics which may have you know been.
[19:39] Drawn from Danny Boy or whatever those kinds of Irish tunes. But the defense focused there attack by claiming there was no tribal issue on the element of copying. So.
The trial court looked at this and said that the element that the copying element contains two separate components copying and unlawful appropriation or otherwise referred to as substantial similarity,
And in looking at this the court applied the two part extrinsic slash intrinsic test which is the ninth circuit,
President on how this is handled the extrinsic test compares the objective similarities of specific expressive elements in the two works
And that usually involves expert analysis.
In the intrinsic portion of the of the analysis tests for similarity of expression.
From the standpoint of the ordinary reasonable observer with no expert assistance. Now, the reason this comes up now.
[20:33] Is that,
The there was an a case in which case was it that came out recently that changed things oh the Andy Warhol Foundation versus for visual arts versus Goldsmith,
In the second circuit where the Warhall case said the two works of substantially similar when,
An average lay observer would recognize the copy is having been appropriated from the copper at work so we have this now split of authority,
And the the ninth circuit using this two prong extremes against transic and the second circuit using,
The ordinary observer test so the.
The point of send the case asked the court to,
Abandon that extra intrinsic test and adopt the ordinary observer test and here the.
[21:27] The night circuit declined to do so and the the night circuit is standing on.
It's use of this two part test which is the president here in the night circuit and there had been no US supreme court decision,
That had undercut that prior analysis so they refuse to disturb the district court summary judgement findings,
As to the reports of the party's experts and they affirm summer judgment in favor of those defendants,
And I think this is an interesting read. If about expert witnesses and expert reports. Yes.
So the,
The district court hung their hat on the fact that the plainus expert,
Or did not analyze the two songs consistently.
With the extremic evidence elements. And so maybe it was an analyze that way because there wasn't a win.
Doing that. Alice's I don't know. Either the expert did a lousy job or the expert did the best of what he had. That's right. Yeah and those were kind of the the two options there. So.
We're going to be in in our.
[22:41] Round it. Well, future round up or future things to come. We are gonna talk a little bit more about the intrinsic extrinsic and the in the in the Google and all that. So, there may be a change. A float,
In the next year. So,
That's a little teaser. Yeah, and just for the record, this split of authority between the circuits has been,
Has stood the test of time where I mean this extrinsic and intrinsic test goes back at least 30 years.
[23:09] I I think wasn't it established in the in the HR puff and stuff case or something. Oh gosh. I don't know. I mean, I remember seeing it discussed there in in some great.
Detail and clarity. So, that's the Citin Mardi Croft Enterprises versus McDonald's case if I recall correctly.
So
That's a fun one to talk about but we we're not gonna spend the time now. So, in any event.
[23:34] Extremic intrinsic still stands in the night circuit
It's still stands in and keep keep listening cuz we're gonna talk about that some more with with our roundup of cases for the year and what we're looking at for next year. So, let's talk a little bit of employment law because when
When doesn't that fit in nicely with entertainment law?
Netflix has been unsuccessful and it's bid to get a California appeals court to lift it in junction preventing the streamer form well some could call poaching toxic executives which are now
I guess Disney executives.
This started back in 2016 after 20 the century fox production executive and marketing executive Marcos Waltenberg left fox to join Netflix.
It's ledge despite knowing that these two executives were on fixed term contracts with Fox Netflix had sent employment officers to.
Of them and hire them during the existing terms of their agreement with Fox.
[24:41] In response to this action in 2016 foxfiled suit against next Netflix alleging tortureous interference with contract.
As well as unfair competition claims. They asked the court for damages and a permanent injunction against Netflix.
And said hey stop interfering with our fix term employment agreements or as we would say in Texas.
You know they they have they are not at well employees there are under employment contract it is fixed term employment agreements a term of art in California.
I I don't think it's it's not a term I'm familiar with really being a determine of art what what part of what.
Netflix is defense I guess you could say argued here is that California does have a law that says that no personal services contract may exceed 7 years in duration.
[25:33] In other words you have to have an opportunity to renegotiate your deal after 70 years so yeah and I I think that's labor code section 28 55 and it it according to Netflix,
At least 127 fox employees had entered into sequential fix term contracts which,
Each individual's been term was longer than 7 years and this goes back to what the 1930s child actors.
I think it goes.
Olivia to have one. Yeah, there we go. That was the, she was the one who I think led who's litigation, led to the seven-year statute here in California and,
The argument in that that that,
Netflix was making is that with the renewal options being unilateral on Netflix on
Fox Disney's side. They amounted to essentially longer than 7 year terms with the kind of the court seem to say, well, yeah, but you are hiring people a waste while they were still in the first term?
So there's no question of whether or not the contract had yet.
Was yet triggered on to that you know extent of going beyond 7 years and I think also more the Netflix didn't really have standing to make that argument that's for the employees to make.
[26:48] Hey Netflix was enjoying from soliciting employees who were subject to,
Valid. You know, that's a question. Thanks, term employment agreements. How do we know what's valid?
Fox dismiss following the ruling Fox dismissed its two remaining tortureous interference claims with without prejudice.
[27:14] Netflix appealed unfortunately they've,
They've lost that appeal on the trial courts judgement was affirmed but.
[27:22] And there's a lot of talk about does this violate public?
Policy so on and so forth but here's my question.
[27:30] Should Netflix be enjoyed from approaching and making the offer.
[27:37] I mean I get there and joined from.
Having someone breach their contract or torture interference with their contract but I can't approach them and offer them a job.
[27:54] So they're sick they're 6 months from their contract right and out well you know that's interesting I think that,
Oh I mean a little bit of of subtext here I think is that,
Netflix was saying, hey, and if you get sued for you know, the breach or the liquidated damages for the, you know, for breaching,
Whatever. We will cover you. So, it was more of an inducement to breach than just saying, hey, there's a job waiting for you when your terms up.
[28:25] And so, you know, the injection probably does go a little further than what.
What might be acceptable for other potential future employers just you know but again what is a solicitation? You know just letting someone know hey when your contract's up.
We'd like to talk to you about it. You know, right. I mean, can we go to lunch? Can I, what can we do? It also feels like there was evidence.
[28:54] On the record that there may have been a pattern.
[28:58] Of actions by Netflix that went beyond just interactions with employees at Fox. Right. So I I think it's,
I'm not sure how to apply this practice pointer but we just need to be aware of it for our clients. If you're gonna be approaching people who are in fixed term contracts, be careful not to get caught.
Well,
Yeah or I mean you just gotta be at what point do you make the approach or at least in California you know when is it okay to approach them because I think if someone's within 6 months of their fix term contract running out,
They're gonna be looking for a job. Yeah. Well, and so what happens when Netflix posts an or makes it a known that there's an opening for a
A vice president of XYZ.
And starts taking applications and one of those fox disney people applies for the job.
[29:54] Or just reaches out to a friend who works at Netflix and says hey you know I see that opening I'm interested can they not have any discussions at all.
[30:02] I I wonder how far the the injunction goes and I wonder what the court would do if confronted with a.
An accusation of a breach of the of the injunction.
Well I think this is me speculating. I think Netflix has to have a really clear.
Clean hands path of.
This was a public posting for an executive position executives are the only ones probably under these fixed storm contracts.
You know, Sally Smith, VP, applied for this position.
[30:41] Our computer responded to her. Right. You know.
What in and I think that if if the employee or future employee applies for the job it's different than a solicitation.
I think so. But what happens after the employee applies?
And and maybe one of their questions has to be. You hear you check the box. You're not under an employment contract. I don't know. Maybe yeah.
[31:10] Interesting questions. Yeah. Well, the players,
Ain't gonna play. Well, Taylor Swift gets to keep playing anyway. So, once again, a US federal judge has refused to dismiss the long running copper infringement lawsuit brought against
Taylor Swift to make a pop star
Regarding her 2014 hit shake it off the song alleged to have been infringed is play as gum play written by shawn hall and Nathan Butler who both originally filed their suit in 2017 that track contained the lyric the players gonna play them haters gonna hate.
[31:46] And in her head.
Swift sings the players gonna play play and the haters gonna hate hate hate hate I'm trying not to work any melody and your first one you had a little bit of Taylor Swift melody
Did I,
Just a smidge but anyway the case was dismissed back in 2018 when the judge judge Fitzgerald found that the
The phrases players gonna play and haters gonna hate warn sufficiently original to be entitled to copyright protection. So,
Holland Butler took their case to the night circuit court of appeals and then 2019 the court criticize the lower court judge for improperly dismissing that case ruling that weather the standard of originality has been met is a question of fact
And that is a jury question not for a judge to decide.
[32:36] That's right and that is the intrinsic portion of the two factor test in the ninth circuit that we talked about earlier,
Yes. So, as a result, the case was sent back down to Judge Fitzgerald who this time refused to dismiss the case in 2020 and again in 2021 after another motion to dismiss from swifts team.
Her case is primarily based on the two arguments first that the generic statements about players playing in haters hating don't contain enough originality to be protected under copyright and therefore our public domain.
Free to use and even if Butler and Hausler were protected by copyright swifts lines are not sufficiently similar to them to constitute copperhead infringement,
So judge Fitzgerald is now said luck given the obligation to look at the,
Look at the the record in the light most favorable to planets
There are genuine issues of tribal fact that remain as to substantial similarity and the Swift's team was not able to change his mind so he's refusing to dismiss the case and ultimately that means that it will be presented to a jury,
If this parties don't settle beforehand so.
[33:44] Yeah and I think that I mean that boils down to what does the what can the judge decide and what can the jury decide in questions of fact go to the jury.
[33:55] So and that still may be a long road ahead we don't have any expert testimony yet you know there there any witnesses I imagine there's a lot of discovery to be done and.
And you know, this process could drag out for quite some time into the future. So, see what happens.
[34:12] Yeah still be talking about this the end of next year and maybe but I'm sure we will I'm sure we will so this is the next case is a really interesting one that I think applies to.
[34:23] Lots of podcasters out there if not all podcasters out there or at least the podcast services maybe the National Association for the Deaf Sue series sexim.
And their subsidiaries, Pandora, and Stitcher for failing to provide captioning and transcares for the vast majority of the podcast available on their platforms.
Yeah so this is the National Association of the Deaf and the Disability Rights Advocates and they're saying that podcasts podcast,
And in this case they're going after podcast distributors claiming that these orga these companies as producers and distributors are like publishers they're like,
Radio and television and they need to provide transcripts and or capture I think they might captions is what they're asking for.
[35:16] And you know, the defined heart of hearing consumers cannot.
Get the entertainment and news sources and educational stuff that podcasts contain any other way they can't hear it so they have to be able to read it,
Transcripts are pretty easy to provide in many instances and some of the services and platforms already have the ability to send either captions or transcripts to their users.
And then you know in the,
In the other media the big media space providers like Netflix and Hulu do have.
Captioning on their content and things like that spotify and pr and slate provide transcripts,
And this is an Americans with disabilities act. So, case I should say. So, that's what's,
At stake here and I've been talking with a lot of people in the podcasting community about this. There's a lot of,
Complaining and whining. It's just not fair. We're not like that. You know, if I write, if I write a book, do I have to provide AA braille version and.
Some people say yes the answer is yes or an audio version of your book.
So that blind people can consume it. So why is it any different from here? They're they're complaining about the cost of transcripts which you know automated electronic transcription can now be done.
[36:36] I think our show we don't pay anything for the transcripts that we provide I don't even know if you knew we'd provide transcripts of the show.
[36:44] Yeah and and I I'm gonna chalk this up to Tamara's southern accent. Sometimes those transcripts are pretty hilarious. Oh yeah.
I will see how it translated hilarious or how it transcribed it. But but there there is a way to do that. I I guess the question I have when it says that Spotify and PR and,
Have transcripts of their podcast that means it is a podcast produced by NPR,
It is a podcast produced by Spotify. It's not just because I listened to a podcast via the Spotify platform. Right.
Because at least on the app on my phone I can't figure out how to see a transcript,
And and some of the apps make it easy or you know play the captioning,
You know, you just click a button in the caption and it starts to show up and it's that captioning is real time showing you what what words are being said in close to real time. Experience. And a transcript is, you know, PDF that you download and you can read along. So,
You know the hearing impaired community seems to think that captions are the best solution but there's more expensive and more technologically challenging than,
Been providing transcripts. So, in what I have found at least for transcripts for some of the podcast that I listen to that are.
[38:09] What I would call scripted podcast. Mm hmm.
[38:12] I mean they have a script it it it's not like us we're we're we have notes but we're talking and it's.
It's it's live. It's real. So those that already have kind of a script that they're recording directly from. It's really easy to upload that.
And improvise.
Yeah, exactly. I mean, again, for captioning, you have to do some extra work to make you, you know, to insert time codes and things like that but it can be done. So, anyway, the dispute is.
[38:44] These platforms aren't doing it but a lot of the individual podcasters are feeling who who you know like we are. We publish our show ourselves. We don't have Spotify behind us or.
Or serious exam or any of these big platforms. Yes, our show is listed on those platforms but they're not,
The ones who are making the show happen. And so it would be incumbent on us to provide this and so I'm a little concerned that all these cases against the big providers are going to start to set some standards.
With their either settlements or or court orders at some point and then the rest of us are gonna have to follow soon and if it's capturing that's gonna make it hard for the little guy,
And you know people complain me as I said about the cost of even transcripts and things like that. It's about a dollar an hour. It's a transcribe things. Machine transcriptions.
Which aren't perfect but they're sufficient I think for for the purpose here. So. It's really easy if you if you go to the website entertainment law update.
[39:41] Dot com. Yeah. What? I was like, is there podcast on the end of that? No, it's just entertainment law update.com. Right.
Hey you can view the transcript. Yeah and I include a link to the transcript on my website as well. So.
[39:59] And we have that available for you and sometimes that is kinda nice to be able to just go in there and you can see the timing on when the topic exchange. So, I I like the service. It works great. Yeah.
Alright. Well, let's move on. Anyway, we'll we'll be keeping our eye on this. I've obviously we're talking about podcast law next month and and
Again and again, we'll be dealing with it. So, we will keep you posted as this case moves forward. The previous case that that had been brought over transcripts or captions,
Was I wanna say the name was Kalima Jones versus Spotify and they did settle the case but relatively quickly after it was filed that was back in 19 and 2019 I think.
Early 2020. So, anyway, let's move on to our next story. The the Association of American Publishers
Is a national trade association for the US publishing industry and on December 9 that organization filed a lawsuit against,
The Maryland attorney general.
The group is trying to enjoy and overturn a Maryland law that forces any publisher domestic or foreign to make their literary works available to the Maryland public libraries in electronic book and audio formats
According to timing pricing and other terms mandated by the state under threat of penalty and that laws later to take effect on January 1 2020 so you gotta give it to us on our terms or else.
[41:21] Now the complaint in the federal court in Maryland argues that this law is preempted by the copyright act unconstitutionally interferes with interstate commerce and violates the constitutions due process clause by mandating vague and unspecified licing requirements.
[41:36] So the laws designed to give Maryland libraries of a leg up to give them control over basic copy of transactions that are under federal law reserved to those who write development best and distributed and make publicly available cooperated works.
So according to complaint that the actor establishes a right by public libraries to demand limitless digital copies of literary works.
On terms the state of Maryland deems reasonable directly against the free market. So, Maria Palante.
Her name is a familiar too. I believe she was a very recent registrar copyright. Correct. Yes. She is currently the president and CEO of the Association of American Publishers, her response was.
Quote Marilyn does not have the constitutional authority to create a shadow copyright act,
Open it. Manipulate the value of intellectual property. Interest.
It is uninbiguous that the US copyright act govers the disposition of literary works in commerce so.
[42:44] I think this is interesting. I'm wondering what the back story is. Was this request maybe similar to the case we just discussed that this was an access issue for those?
That are hearing and visually impaired or is this just Tamara doesn't wanna be number 14.
[43:05] On the wait list to get her electronic copy of a book to download and read.
That's interesting. I mean, I think if it's if there's a wait list that you still have access, you're treated, you're not being discriminated against on the basis of your disability or anything like that. Anybody else who wants the audiobook version or the Ebook version can get it?
They may just have to wait. So, I'm not sure it's it's an access issue but it, well, I mean, access in the sense of, yeah, they want their libraries to have access, but.
It's this strikes me I mean my first thought was preemption preemption all over the place and.
[43:41] You know, I just don't see. I find myself wondering how does a state legislature ever pass this make this law in the first place? Yeah, who? Don't they have lawyers who work there?
And and I imagine many of the legislators themselves are lawyers who studied preemption first amendment,
You know, I mean, pop right in in school. It's staggering to me. So, I I think this just has to be,
You know, it's sort of a political stance. Hey, we're doing what we can to improve our library system and provide more access to everybody for this, you know, that kind of thing and it's it looks great to the legislature. I mean, to the,
The electorate to be able to say we'd look what we did but then.
When it gets thrown out by the courts it'll be kept quieter. Maybe we'll see.
Hey portal ruling in that,
Black beards are revenge case. Can use this stuff as it sees fit.
[44:56] Without.
[44:58] You know being without being charged with copper and infringement without being liable for copper and infringement I I you know again I don't buy it but,
It's out there maybe that's what will be thrown as a defense. Publishing industry has a bigger.
[45:19] Wabby to fight something like that. Yeah, maybe. You know, it's one thing to.
[45:26] Take the footage of the filming of the ship that was discovered it's a whole another thing to to order.
Publishers to provide it. And I think you'd have a lot of librarian say you've lost your mind. Mm hmm.
I hope.
So I mean this case we'll see what happens. I don't even know if there was a restraining order. Well, we have another week before restraining order might be.
Enforcement of this law but I don't know. We'll see.
Well, those are our store our new stories for this month. Let's talk a little bit about the the pay cases that sort of loomed large in 2021.
The one of the big ones were two two big ones were the Andy Warhol foundation.
Dispute with the over the prince pop art,
What war halvers is Goldsmith? Is that her name? Yes. Lynn Goldsmith? Yeah. And another one is Google Resort. Let's talk first about Warhall.
This one was where the estate says there's a cloud of legal uncertainty over an entire genre visual art,
After the appeals court found his image of Prince to be two visually similar to Lynn Goldsmith's photograph.
[46:54] For the difference in their artistic meanings to be legally relevant.
The circuit split now casts a cloud of legal uncertainty over an entire genre of visual art,
So the Warhawk Foundation is argued that the allowing the split to stand would create a sea change in copper it long lead to inconsistent results in form shopping if the second and ninth circuits are using different frameworks to analyze in this case fair use.
The court's president currently the fair use ingredient requires Ashton weather one creative work,
That draws from another conveys a different meaning or message from the original the follow on work that deploys preexisting content in service of saying something new and distinct,
Is much more likely to be fair use.
And the second circuit test for bids ascertaining whether the following work conveys a different message or meaning so that's the split.
[47:48] Box? Well, that's the split and that's why the whirlhaul,
Andy Warhall Foundation filed in.
Either late November or early December to ask the court to review,
Their decision that we talked about this year. Yup. You know, we've always say it's not a year in review without fair use. So, in April, we discussed,
The appeals coordinated war hall versus the Google Veorical and now that foundation is saying.
We've gotta have clarity in which test should apply. Now, we don't know if the Supreme Court's going to take.
Shirt on the case but in in google the oracle the supreme court hill that googles use of the job,
Programming language was fair use they looked at the fair used factors.
[48:45] Let's see they look at the very east factors purpose of the use was determined to be largely transformative and that the use was to maintain functionality again we're talking about,
Permitting programmers to continue to function and expand the market outweighed the economic
Purpose of the use. I looked at economic impact of the use which was deemed uncertain.
The nature of the work was generally utilitarian and that it was bound to non copyrightable ideas and substantiality
Of the work used was found for google as well google use most of the language the call language your programmer I assume you know what that means a part that told the API
And if you're a programmer, you'll know what that means. What to do? In total, it was .4% of the entire API,
Add issue. Ultimately, in in the Google case, this created a ruling her fair use was found in a work or line for line copying.
Let's fair use so the court had made reference to the pretty woman Campbell
Supreme Court decision regarding the famous war hall soup campaignings were ultimately in order I'm sorry the Campbell soup decision regarding the famous world hall soup campaignings were ultimately in order to send a message and make a point about consumerism,
What you took from needed to be recognizable. So.
[50:10] Yeah so anyway here the this is what links the Google and the Warhol suits where there's,
A photographer licensing a photograph to a variety in then more homemades the series of silk screens using that photograph as source material,
Start for only found out about it many years later after Prince died and and.
And you know the second circuit did its thing and so now we have this sort of question big open question and we'll see we'll see if the Supreme Court takes it up.
This next year?
Going to have to at some point. Don't you think? I mean, I, I, we are living with some level of uncertainty and potential forum shopping.
[50:55] Well,
We also have the NFTs and blockchain. These are issues we've talked about.
Couple of times in the past year. NFT's have now achieved a market share about, it's about 22 billion dollars market.
And this is, you know, all about turning digital images into assets that can be,
Treated like like works of fine art I guess you know and NFT is a.
Unfungeable token and as part of this there's a fixed amount of that,
NFT that can be proven to belong to any individual. The NFTs are effectively digital art pieces that collectors can buy, sell, exchange, and there's a documentable chain of ownership using that block blockchain technology.
There are still environmental concerns because minting these NFTs requires an immense amount of computing power to make these sort of unbreakable blockchains and.
[51:53] And there's a number of open questions about it not the least of which should you know we're gonna see coming up in the next year over the.
Pulp fiction there's another one that will be.
The artist who created the the fearless girl
Sculpture. Oh, that's right. We talked about that. That's we are going to continue to talk about this and on the environmental issue which when we discuss this several episodes ago, I had no concept of
Of the environmental issue involved and then
A lot of what's on the news in Texas as we enter into the months where the temperature will be dropping is what
Has been fixed about our electric
Creative anyone recalls that in February of this past year of this year we had Ice McGadden and they interviewed a gentleman who has a hue.
[53:00] Block chain FT Farm in Texas and about how much capacity and electricity is taken and and.
They were kind enough to go offline. But that that raises a very interesting issue and do you want a blockchain NFT farm,
On your grid in your community. So, so yeah, I mean, I think that's maybe that's not an entertainment law, respect of it, but I think it's a fascinating interest and
And now when you see something like that come on the news you you might pay attention a little more and watch it and here's another thing hey we can become certified NFT experts.
[53:42] Through the blockchain council. So, I thought you can. I thought that was kinda cool. It might be an interesting way to
Maybe take a deep dive and learn a lot one be better informed about how this works and how to make them and and how they're sold and you know, all that,
May I know if I'm gonna need to become a certified expert but you know the the you can people can take a look and see if the price fits into their budget but if
The price I saw was the price it was less or equal to AA nice CLE so I didn't think the price was,
Bad and might be worth it just for the information,
So. There's no doubt about it.
Yeah. Well, in the last episode, we talked about the.
[54:41] The night circuits ruling in in the well cases involving the server test,
Professional photographers filed complaint in the northern district of California so you can class action relief against Instagram for inducing copyright and fringement contributory cooperate infringement and vicarious copyright infringement the case is hunley,
At all versus Instagram,
And the plan of the legislative defendants embedding tool enables third party websites to violate plan of exclusive display right under the cop road act,
And that defendants facilitated solicited and induced these violations.
[55:17] By in by misleading third parties and to believing they didn't need to obtain license or permission to embed.
[55:24] That material until public statements in 2020 clarifying things so,
In 2021, September of this year, Judge Briar granted defendants motion to dismiss relying squarely on the perfect 10 ruling from.
Wait some time to go now and in both cases that vented and stored thumbnail versions of pictures and displayed them,
In response to image search queries and so on how many court ruled that the embedding images did not violate the exclusive display rights
Of the carpet holder because under the server test and image is a work fixed in a tangible medium of expression,
That is stored in a computer server hard disc or other storage device and because they do not store the images and videos when they embed them they do not fix the copyrighted work in any tangible so it's not a copy essentially.
And when they embed the images and videos it's not the way who are displaying the copy but the server itself so the court also determined that the Supreme Court's aerial decision,
Which we've talked about many many times did not contradict the perfect 10 ruling in area of the spring court addressed a different exclusive right the cover and owners exclusive right to perform the copperated work so.
[56:40] There you go so perfect 10 server test is a result of the ninth circuit synthesis of various statutory definitions,
Relating to the display right because aerial addressed a different right they're not connected meanwhile in the second circuit.
Without addressing the perfect 10 argument the southern district of New York has allowed two cases to proceed,
And consider copper and infringement against defendants for embedding social media posts at those cases are Sinclair versus if davis LLC which we discussed in.
[57:12] Four at least four episodes in last couple of years and McDuckin versus Newsweek,
Two other cases in the Southern District Goldman versus Bright Barton News Network and Nicklin versus Sinclair Broadcasting group specifically considered and rejected,
A perfect 10 rational on this context,
And and.
There we go. So, in the Sinclair defendance motion to dismiss the judge rule that the server test is contrary to the text and legislative history of the copyright act which defines to display
Has to show a copy of a work and not to make and then show a copy of the copyright work. So, we have this circuit split.
He determined that the perfect time ruling should be limited to two critical facts search engines and where the user actually has to click a link in order to display the work so.
[58:06] Another split on which tests should be applied in these kinds of cases. Again, it's the second and the ninth. The. Yeah. The two big.
Jurisdictions for these things. In the second circuit is a very very narrow interpretation just specific to really the facts of that perfect M case. And I remember having a connection when perfect 10 came out saying.
It is wrong.
But of course, we've, as we've discussed. Well, you know, it's bronze. So, well, historically, the perfect tank is the defendant in the case was Google.
And they were being accused of infringement when they displayed.
Small thumbnails of the images on their image search page that then users could go and click through to see the main image which.
To my viewers sort of what Google's there for and it's a useful thinking of so the resort of some.
Guess you could call a public policy reasons for that decision going the way it went.
And but now we're seeing you know,
When you embed an Instagram post I don't know that it's necessarily a thumbnail.
[59:16] So, you know, it's a different. If actually, it's a little different. It it I think it's different. I also think.
Quality of images. A thumbnail images has greatly improved in the last 10 years. That's true.
So, you know, might that change something I don't know. One of the cases we talked about this year in which a
Probably was very much in the public knowledge was the Nirvana lawsuit. We talked about it back in episode 137. It's the iconic
Album cover from the 1991 never mind album.
Featuring the naked baby swimming after a dollar
Bill watches dangling on a fish hook in front of him Spencer Elden is the is the baby
In that image who's now 30 he has filed suit and we did we
It's been a lot of time in episode 130 cent discussing does he have ballot claims did he wait,
Too long. You know, you can go back and kinda take a listen to that,
What I think is most important on the update is that he's filed an amended complaint and.
In that amended complaint he has raised claims whether or not.
[1:00:28] He won't he's dropped the drum around at the lawsuit but he's added allegations that the photographer also styled him as baby elveton to look like you hefner it was unclear to me if that was in the same photo shoot or a different photo shoot.
And they added into the complaint sections taken directly from Kirk allegedly from Kurtco Baines Journal,
Put in the evidence his writings his thoughts that they say support the climate child pornography that it was intended to be sexually explicit.
[1:01:03] And so, you know, I think we're maybe there's now we're getting more into evidence as we've had this no. This initial filing that might weigh more for the plaintiffs,
Calls vaccine not sure so we'll be watching.
[1:01:19] What the Friday the 13th litigation was finalized and decided this,
There's no 1 month or two ago. Horror versus Miller was in the United States Court of Appeals for the second circuit.
This is the Friday the 13th Victor Miller was the independent contractor writer.
Who had who exercises termination rights for the film in in undersection 203 of the act,
And the court held that was timely filed and a valid termination of the rights and so,
Manny and her had sued Miller and saw the declaration that the screenplay was a work for higher and that determination notices were invalid,
The disrecorded summer judgement in Miller's favor and holding that he was the author of the screenplay and did have the right to terminate the company's rights the second circuit then wade and,
Analyze the read factors for employment and determined he was an independent contractor. So, that one's done.
That one's done he'll get he will I'm not sure exactly what date the termination goes into effect but that would get back his domestic US,
Copyright rights only. So, not the foreign.
Right? So, I would suspect there's gonna be some type of.
[1:02:47] New contract. Yeah. Well, one would think. One would think.
Interesting question that just came to me is would the termination date have been stayed or told?
During the pendency of this litigation which has gone on for several years or would it now reach back?
[1:03:05] You know assuming cuz you have to give 2 years notice right I think it has to revert I think it has to go but,
Back to the effective date of termination. I don't know,
I don't think they, I don't think the defendant, the.
[1:03:20] The horror films.
For while the case was still pending. Hey, well now that's that's interesting. Alright, that seems a little unfair double dipping.
Right I would I would think that there's some tolling or suspension of claims or or something during the pregnancy of the litigation but then.
Practice specifically at some point. Anyway.
[1:03:55] Go ahead I plugged in just a couple of things at the at the
As we're nearing the end of our rundown just things that happened in 2021 that I've almost feel like I've skipped 2020 straight to 2022 I'm I'm not sure why or how but the case act
The copyright alternative in small claims enforcement act of 2020.
We talked about it.
2020 it it has been
Chugging full steam ahead to be implemented during 2021 it's directed by the copyright office the acted to establish the copyright claims board the CCB will be a three member tribunal and those judges have already been up
Ready to go and it's gonna resolve copyright disputes that involve less than $30000.
[1:04:48] Doesn't sound like a small claim to me but yeah so the office is in the process of developing the CCP,
Which should begin hearing claims by spring 2022 initially I think they were supposed to start January 1 but they had some ability to push out that date and it could be extended all the way out to June 25 2022 so,
As a practitioner be thinking about this when your clients might want to be appointed if they get noticed when they might wanna be a defendant to file suit,
You have to have a registration from the copyright office or have filed an application with the copywriter office.
[1:05:28] To be able to file a claim. So, there's many other factors and procedures and things that will.
[1:05:33] Be there but this is important for us to think about as we move into 2022.
We also talked about earlier maybe in last month's episode the trademark office modernization act.
[1:05:45] There's gonna be two different proceedings,
Partake proceedings to cancel unused registered trademarks.
Keep in mind it'll be a year from now but there will be a shorter 3 month response period for office actions there is a revised way to do a letter of protest
And something that I think is really important for you and I Gordon
You can start filing this in January but it happens April 9 2022 you have to go through an identification verify vacation process,
For your USPTO.gov account which is what you have to have to file trademark applications so,
Bar community that aren't also patent practitioners who've already had this kind of an obligation in place but people complaining about having to provide their
Driver's license and their social security number and these two a third party vendor who's going to do this identity verification. It is supposed to be a one time thing but.
I think that.
[1:06:50] For for women who've been practicing first under maiden name and then under married name or then after divorce back on her things like that,
It gets really tricky cuz you've gotta be able to show,
You know the the name you're operating under on some historical kinds of jackets it's it's going to have it's speed bumps along the way.
Okay I I just got the email from my paralegal that said hey I am going to go listen to the to the CLE on this. Right. And and we have to do it and I'm like do I have to do it today? She's like no. So so.
[1:07:25] So, yeah and and it's also interesting too because you know, I don't know how it impacts how your USPTO.gov account is that
Up and so anyway, we're gonna have to look at it. The most exciting news I have.
Is that starting in 2022 I think around April not sure of the date the trademark office is going to stop mailing trademark registrations certificates.
It's just going it's going to be a digital certificate and if you want a paper certificate you gotta pay for it yep.
I am so excited. Okay, it's interesting. It's funny. Oh, I am. I am so excited because it allows us,
One word printing list paper to i don't retain any physical registrations which means I need to get the physical registration to my client.
[1:08:20] See I've been sending my clients a framed version a framed copy oh not the frankly framed original of their certificate so it comes to me I frame it and I send it off to the client and,
Clients love that but hey if it's digital certificate I don't have to do that anymore. So that's it. It's gonna be digital. I apologize to my clients that I do not.
[1:08:41] Have night framed it but they are. They are suitable for framing. The problem is they frame them and then they don't read on the back of them. Of course, we tell our clients, hey, you gotta do something in between the fifth and sixth year. That's good point,
So so anyway that little bit of excitement in in my in my life on copyrights and trademarks,
And we will be talking about and reminding you guys of both of these these changes and I can't wait until we have our first case in front of the KSAT,
Yeah. So that we can talk about it cuz it's all gonna be published in public record. So, anyway,
Good stuff. It will be interesting but there we go. Well, that does bring us to the end of this episode of Entertainment Law update and we wanna take a moment to thank you,
Hour loyal listeners for spending your time with us and we love your feedback so you can send us email,
Or use the voice widget on the website and entertainment law update.com or,
Entertainment law update@Gmail.com is that email address the Twitter handle and law update,
And we'd love to hear from you. Tamara as always, thank you. It's been a great year and a lot of fun and a pleasure. Thanks, how can listeners get a hold of you?
[1:09:54] Sure they can find me. My website is T Benet Law.com or create Protect.com either will take you to the website.
Tamara Bennett is my handle on most social media sites T A M E R A B E N N E T T
And Gordon it has been another wonderful year I can't believe we have actually wrapped up another year of of life and podcasting and so,
Thank you very much for making our podcast happen and working with with our wonderful contributors. My website is@Firemark.com.
Email address G fire market firemark.com and on social media you'll find me as G firemark,
And let's say thank you to our team of volunteer contributors managing editor John Janiceek,
Mark lindman
Brenna Arbuckle Carney Wilson and Anna Collis to whom we bid a fond farewell as she moves across the world from her home in Australia.
To London England where time constraints and time,
Zones will just make it impossible for the participate in in the show on an ongoing basis. So, Anna, has been a wonderful contributor and great help to the show and Anna, we thank you so much and we wish you the best of luck in your new job and
And bright future ahead for you so.
[1:11:21] If you would like to join the EOU family of contributors, you can reach out to us, send us an email, and entertainment law update@Gmail.com is the address.
And that's gonna wrap up this edition of entertainment law update,
Thanks again for listening and have a very very merry Christmas and happy holiday New Year and all that and until next time that's showbiz.
[1:11:43] Music.