Transcript
[0:00] Entertainment law update episode 142 it's February 2022.
[0:08] Music.
[0:13] Welcome, welcome to entertainment law update from Los Angeles, California. I am Gordon Firemark.
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
This is our podcast about entertainment law and each month we pull together a roundup of
Legal and business news stories in the entertainment industry. We share our opinions, our commentary, our analysis, sometimes our puzzlement and our questions,
Get through the.
[0:42] The news of the month and today, this month is is no different. Tamara, how's everything with you? You know what? It is fantastic. I I realized we are not recording on two 2 day. No.
Did you wear your tutu on 222-2022 I actually loaned my tutu
To a school teacher friend, right? I don't know if you know but I actually wore a tutu for Halloween last year. Oh, that's.
Not to say anything disparaging about this particular friend but she's a substitute teacher and,
She came and asked if she could borrow it. So, why not?
But my friend who's an element kindergarten teacher was all excited. Yeah. Two 2 days. So, I I missed an opportunity to wear tutu and I'm I'm sad. Oh, and a tiara. I know a lot of people work tiaras. Oh, sorry. Yes. So,
Well, that's funny. Now, everything on this end is great. The kids are all back in school and we're, they're loving it. We're loving it. Restrictions seem to be starting to be loosened up around California. I'm sure that's the case elsewhere as well.
Everything is looking sunny for the near future. That's nice.
Backward.
[2:11] Here's one if you don't mind jumping in Tamara what's our first story on,
Yeah so the Lady A trademark dispute we've talked about this several times in last 24 plus months I guess,
I
2 years.
Who is professionally known as LaDier filed to have their ongoing trademark battle between the two parties dismissed with
Prejudice. The band Lady A filed their lawsuit first claiming they already owned the registered trademark lady A because it's fans
Well, a common law and register trademark for Lady A because it's fans have been using this nickname or to refer to the band for years. It's
Also my recollection that over a period of time they had started referring to themselves as that name but also miss White,
Operated for over 20 years professionally as the performing artist Lady A claiming common law rights in the trademark and she had filed her own suit against the band.
[3:29] Hey but the parties have agreed to set
There are disputes side both sides filed a joint motion in the
The terms of the settlement are unknown other than it says that each will pay for their own linkal cost and the filing simply stated the band.
[3:53] Being Lady A, the band. This is all claims in the action against white with
Prejudice and she does the same in each party will bear their cost expenses and attorney's fees. So.
[4:10] You know we'll we'll often times prevail I know we we talked about how this all played out in the public eye when it was going on,
I think 18 months ago,
Name in their.
In their marketing their services so we may find out a little more detail about things this time goes on yeah,
Well, this is the case of Hunley versus Instagram and
Sue the Instagram on their own behalf as well as on any other users who have uploaded content to the app.
[5:03] That then was later embedded on other third party websites without their permission,
The planet's claimed that Instagram facilitated third parties to commit this copright infringement through their embedding feature.
So the issue is that this Instagram embed feature let's third party's copy a snippet of HTML code,
Of the Instagram users post and paste it into a third party website it allows for photos or video from Instagram's users accounts
To be displayed on the third party's website but those third parties that use the tool aren't storing the copyrighted content on,
Their servers or devices. So, what?
What they issue in the case really has to do with is the so called server test.
[5:57] This test which is that was established by the ninth circuit court of appeals.
In the perfect 10 case perfect 10 versus Amazon which involve Google image thumbnails from perfect tens,
Adult oriented magazine,
Amended complaint under the server test,
Owner's rights if it hosts and transmits the copyright material from its own server. In other words, that the content is stored on that,
Alleged infringers servers. So, under this test, HTML instructions that direct a user's browser to look at another server to get the image.
So Instagram argued that they host in transmit the content and not the third party websites so those third parties could not themselves be liable for direct copyright infringement and therefore
When you sign up for Instagram you are green to its terms of use which glance them the non exclusive license.
[7:08] Publicly reproduce and display the content that the users uploading.
They made their motion to dismiss it was granted without would leave to amend back in September.
Because the third party's websites didn't actually store the copyrighted content on there
Servers and devices.
[7:46] So
Adding in some additional facts but mostly consisting of arguments the perfect 10 was wrongly decided and the claim that the server test misinterprets the copyright act.
So
Instagram files another motion of dismiss that was granted on February 1 without leave to a man and the court said that the deficiencies in their first two complaints could not be cured,
Because it was undisputed that the third party infringers do not store the photos on their own services.
Motion to dismiss glanted no leave to a man and a take away is that the ninth circuits server test is a still a viable test as a result of this challenge now.
We are seeing more and more cases on similar facts arising in other jurisdictions. So, we, I think we're gonna see a.
[8:46] That's split of authority that makes it.
At least possible that a case becomes ripe for a further appeal and we hope someday we may get a spring court ruling on this.
Yeah and I mean out of the second,
Circuit and this was a case that was I think in the footnotes is Nicola and V Sinclair Southern District New York 2021
Starving polar bear.
He had provided his licensing contact information in the comments section of the of the post sick Sinclair broadcasting Sinclair publishing.
And the court came down differently they said this is embedding versus display.
So at least within the second circuit we are seeing a very different.
Ruling.
A search engine application. So, I think we are going to be ripe to see.
[10:10] Some type of different tests or some type of analysis,
I'd be figuring out how to get in the second circuit if I was to plan up in these cases. No. Well, you know, perfect 10 is is also long enough to go. What is it about 20 years ago now?
That technology has evolved in the way we use technology as evolved enough that we all,
No and understand more about it and maybe a court you know supreme court take me to look at this server test.
[10:41] Controversy for like we better term. Would say, yeah, that really wasn't quite right.
[10:51] Well.
[10:54] Hey, until eight. I I think too. It's a little scary. Aiming the terms of use of Instagram. We've talked about this numerous times.
Do grant them the rights to do as they wish almost,
Yeah. With the images. But they have come out and said yeah but we don't give our you or other users permission to infringe copyrights and so they've sort of hedged on that enough to.
To say that look if.
If what they're doing is infringement.
[11:34] In the Sinclair case so you described although I don't think they helped Instagram liable in that case did they.
Split over weather not the server test is the right approach,
I think it's just a matter of time until somebody some plaintiff thinks that be
Economics make it make sense to take the case all the way maybe this is the case we we don't I don't think so but we'll see. Yeah. So anyway.
We have an interesting defamation case away. We don't talk about definition that much on the show but this one is a big one. Cardi B has one her case against a blogger.
And I never knew her name until now. Cardi B's real name is Belkalis Almanzar.
[12:31] Butchering the pronunciation but anyway she has now.
And her company Kebby Studios LLC I'm probably mispronouncing her name as well
Had sent Kebby multiple season assist letters from 2018 onward into 2020 and in 2019 she filed suit against Kebby
Over the content and allegations Kebby was making on her YouTube channel,
Which is unwind with Tasha Kay unwind with an E and not a D. Kebby originally heard these allegations from another source so she's echoing heresay essentially. That source had claimed two of lived with Cardi B before she became famous.
[13:18] And during the trial, okay, it stated that she purposely published the allegations she
Fought to be false because you know it would increase her business revenue,
Yeah, right? Yeah. And she also admitted that she referred to Cardi B as herpes bee and cold sore B even though she had no information about that.
The YouTube admitted that she told her viewers that Carby Cardibu was up
Prostitute, a user of cocaine,
The slander per se.
Rumor marker and I guess you could say
Practice tip for the lawyers, alright?
[14:32] And the judge in the case instructed that the medical records were in fact authenticated and that determined liability had nothing to do with removing the videos. In other words, that's my business. Not yours.
So the jury sided with Cardi B and said that Kebby had waged a malicious campaign to hurt the rappers reputation.
[14:53] So on January 24 they awarded Cardi B a 1 million dollars in general damages
250 thousand in medical expenses cuz part of our claims were that she had suffered mental anguish and and had sick
Psychological help in those kinds of things. And and so total of $1.25000000.
In the judgement unit of damages and the amount of 1 million Cabi's company also had to pay a half a 1 million dollars,
And so we're coming for a retroactive reduction. Her her.
[15:35] And you know what strikes me is just well the whole thing is sad but just more sad is that.
I I have I'm making an assumption based on the news story that,
Of
You know what I mean? Yeah. Why didn't it what an invasion of.
[16:12] You underseal.
But you know when when the falls allegations are already out there you know sometimes it is,
Hey, wait. Falsity.
To the extent that the medical records do that I guess that's sort of good for her but you're right what a terrible.
What a terrible conundrum to have to do a do I defend my reputation by sharing this very confidential private stuff.
You know, and and in this case, I think Kebby would have kept going and kept doing the stuff. If not for the lawsuit, so,
Better do what you wanna do. Oh well, yes, because she,
Well and and also out of some kind of you know as the jurors said malicious but you know also that she had some kind of an agenda with Cardi B I think of who knows what it is but,
Evidence introduced specifically on that but.
[17:20] And you know it's it's unfortunate and maybe this will be a signal to other YouTubers but there are a number of YouTubers out there who are sort of in the business of going on the attack against a person famous person.
[17:34] Some of them are smarter about it and and you know catch things in terms of they're reporting on allegations from other people I think.
[17:43] You know I'm chair quarterback and if Kebby had been consulting a lawyer about how to go about doing this in a way that wouldn't bring on. Liability. She could have.
Catch herself as more of a journalist and you know relied on a fair report privilege and things like that but you know here she basically admitted that liability right up front,
Yeah, I mean it's sensational. I I mean that's exactly. It's sensational. Yeah.
Hey Sarah Paylon former governor of,
Alaska and then running mate for vice president,
Through her political rhetorics for a mass shooting against Gabby Giffords in Arizona in 2011.
Don't know if I'm using journalists correctly or he's an editor at the New York Times. He's an addict.
[18:56] And there were corrections issued subsequently to the article once it was aware of criticisms and payload filed sued against the times regardless of the retraction or update about 16 days after the editorial was published,
Many commentators have remarked that the case was one to push back against the malice required which we just talked about in times be sullivan.
Which, you know, that malice requirement has. Arguably, adversely affected, famous, and pursuing defamation claims in cases.
After it was initially dismissed at the trial level and appeal ensuring that Palen quote got her day in court.
She had alleged that James been a
Been at the editor. Had put it forward due to a personal distain for her and political retribution against Payland endorsing a competitor,
Hey brother and a senatorial race so but there was something kinda quirky for me to get to the quirk I wanna add one thing that isn't in our notes and that is that I was reading up on this as the case was going cuz I'm really thinking hard about what.
[20:06] Podcasters journalists need to be thinking about,
When they do these stories about famous people and and you know and in particular I'm concerned about the actual malice standard but she also didn't do much of a job of proving any real damages in fact after,
After the statements and question were published in in the times she still was hired to be on a television show she still was getting the the you know in the public eye and a number of ways she had ample opportunity to.
[20:36] You know to earn money and those kinds of things in it and so she wasn't able to really prove anything and when asked about,
Her, you know, claims that she had suffered some mental anguish and and depression and those kind of things which she never even saw any medical care or any treatment for those things. So, she.
Wasn't the ideal plaintiff to if you wanna take a part that actual milestand,
And and and she was going to appeal this if she lost anyway but this quirk is really
An interesting one and it really sets up an appeal. Only tell us what that's.
Obviously on the record,
Happy what the jury came back with it's a rule 50.
[21:32] Push notifications go out obviously cellphones have not been gathered from the drawers there in the jury room and they see this on the news.
Then the jury renders a verdict against paylon.
But the jury did say, hey, we're self reporting. We saw this notification come out that the judge was gonna set aside the ruling if we ruled in favor of her. Yeah. But that didn't have any impact on what we the jury
Made the decision for the verdict,
You know, practice pointer for judges.
To
[22:20] I can imagine,
At some point after they started deliberating I think he was essentially
Indicating to cancel that I've I've come to a conclusion on the motion so here's what's gonna happen.
That's yeah that's I think in portoon
Speech, you know, talking by the judge who probably should have said something like, I've reached the decision but I'm gonna hold it off and telling you until the jury comes back and here's why and you know, those kinds of things. Cuz I guess it did.
Well I don't know if it was a directed verdict motion originally or what but.
You know.
But if the jury says it didn't affect our verdict we're already going that direction.
[23:17] I don't know is it can we just take them at their word.
You know is there is that enough of a reversible error by the well not even a reverse wire it's a new trial error by the judge.
[23:36] So that's where we're gonna have an appeal.
Well I can't wait to talk to my friends who are on the bench.
It's the point of.
There's something there.
[24:03] We should have to appeal on AA second circuit,
Also not seconds ago a state supreme court ruling all the way to Supreme Court it's not Supreme Court in New York it's the court of appeals right so superior court in the court of appeals
I can't remember. I'm sorry folks. Take a trial court has called the Supreme Court.
[24:29] Sound the theme song for.
[24:33] Hi, Court.
And so the the urine went Sarah Paylin was running as the vice presidential candidate.
Hey,
I I actually had voted on Halloween day. Oh fuck. And and when did Sarah Palin as my husband
Halloween costume. Oh, that's awesome.
I had my full lawyer regalia. My my cost my suit costume on. Thanks.
[25:27] Hey so anyway not nightmaking fun just that was just I was like oh I'm gonna be so repayment,
Alright, trademarks and outer space. Yeah, in the course of preparing our episode, we happen to plan an interesting article from
Believe it or not, there's a wipo magazine. World and electric property organizations, magazine, and in
April of 2021. So, a few, you know, a few months ago, almost a year ago. This article came out.
About trademarks and outer space. Ever since the space race began
That has escaped this early bonds of earth. Thank you Mark for the,
Clever wording we eloquent wording we have the United Nations outer space treaty of 1967 the UN rescue agreement of 68 then liability convention of 72 the UN registration convention of 75
United Nations Moon Agreement of 1979 and the international space station treatment,
As it's treaty of 1998 but the discussion has not gotten around to intellectual property very much and possibly that.
[26:36] You know the the reason is that the black of that discussion is a side effect of which entities were conducting the exploration government agencies mostly
So initial space exploration came from these sovereign nations and governments but now that the paradigm is shifting to
Toward the private sector.
[26:57] We are seeing more. So, this article.
[27:06] And intellectual property space race essentially as we see more and more of these commercial space endeavors.
So it's an interesting article we have a link in the show notes and just wanted to call it to your attention if you're interested in the subject matter it might be something to check out.
Is it support an interesting conversation I had with a with an attorney this this past week.
Mm hmm.
[27:48] Or the universe.
I've been using universe a lot lately and and I am in the I hadn't called it in this document. I hadn't updated it to universe and she caught it. So, I was very thankful for that.
I have actually as a as it was sort of a joke at the time about 10 years ago
Kinda like what's going on with the NFTs isn't it? Well, it is a little bit and I I do think that's an interesting. So, let's set let's
Play this out in what I think might be more realistic.
[28:40] You know, or or.
[28:53] You know, have the rights been granted for the universe. If we argue that the rights had only been granted.
[29:01] For the world, would the license extend again? This is very hypothetical. But I was trying to wrap my brain around how this could actually.
[29:10] PNSU. We need to be thinking about beyond. Well, here's all professor.
Suppose.
A few a couple months ago.
Whichever, you know, company was if you went. So.
[29:39] I think technically under,
If he comes back and post it on his YouTube now somebody wants to make a movie or a documentary or something do they need to clear the rights from,
While he was out in the atmosphere I'd be on the atmosphere.
I would assume he is a resident of him.
It's date of America he is dumb asylum in the United States he's a Canadian citizen but Domson
Create something in Mexico. What country were you over when you push the record button?
Is space.
[30:43] We control.
Another,
New frontier and that is the digital frontier of metaphors.
Yes but attribution where it's due I guess and we'll lay the blame for the.
Bad ones as well. Anyway, an article in fashion law.
Dot com brought this to our attention the creator of a meta burkin.
Has received a seasoned assist letter from my miss.
Marty Schwimmer has written on a post about this case as well.
The cases now are missing international versus Mason Rothchild it's in the US District Court for the Southern District of New York they filed suit against this artist for his newly minted collection of NFT is the meta burkins
Russia created 100 images of the famous burkin bag produced by Airmes,
And meant to them as an FTs for sale on open sea which is a marketplace for an FTs.
Each of the NFT's shows a Birkin bag with its unique pattern.
[32:06] And the bag sometimes appears furry or fuzzy when the artist claims that's his commentary on the animal cruelty.
Is underlying and expensive luxury leather bags and things like that. So, the name and the NFT is the meta burkin name as a play on the famous Birkin bag produced by,
So the fashion brand sends a season assist letter demanding an end to the collection the artist responds that this is
Covered by the first amendment's fair use I have every right to create art based on interpretations the world around me and refuse to give in so they sued.
[32:41] For trademark infringement trademark delusion and cyber squatting.
And the meta burkin.com website,
Rogers versus Gramaldi the second circuit test that sort of establishes a.
In that case Rogers
Or explicitly misleads the consumer as to source or content.
The art is also compares his work to the Andy Warhall Campbell's soup painting and claims that this really is no different,
Finally he's arguing that the MS treadmarks are for leather goods and don't cover NFTs.
So although companies can receive trademark protection for goods that are reasonably related to,
There's listed goods and services. It is unlikely that at crossing over into the metaverse and NFTs and things would be considered reasonably related,
I don't know.
[34:01] With a high end luxury goods.
[34:08] Let you know.
That Warhall had done what he did with his Campbell Soup painting but I wonder if he had titled it Campbell's soup. It went or something like it.
Would they have had a different approach,
Is mostly I think useful article. There there may be a question about are there aesthetic components that he has copied by photographing the bag or whatever.
As a side note there was a
Case a situation involving the Gucci family or a member of the family tried to start a line of E cigarettes and wines here in the US with the name Gucci
Basically on the grounds that the fashion company Gucci which at that point,
Was owned by a large conglomerate and no longer the family made products in such a wide variety of industries including fashion but also keychains while it's watches etcetera that it was conceivable that the Gucci fashion brand could eventually cross over,
Into the east or the wine market and therefore they should be protected against these newcomers adopting,
Similar or exactly identical brands there.
[35:37] Meta burkin situation the NFT's were taken off the open sea marketplace
Buy open sea sort of on its own accord,
They want required by law to do so so the artist is now writing letters condemning
Both are missed and open sea
Well and I wonder so if.
[36:16] What's step back and say mr Ross Child created this art?
Hmm it was.
[36:36] Hey, you know, he made commentary.
[36:49] But he didn't he did not meant them into an NFT.
[36:54] Are we having the same conversation is Gucci I'm sorry not Gucci but it is the.
Is it only the NFT,
You know. Well, I think.
It might not be a trademark use if it's just this is the title of a single work.
So, I think it's the the unknown,
Of the NFTs that has really triggered.
[37:52] But you better I'm also trying to remember the.
[38:00] Were they Louis Vuitton where they used the they they made like an everyday kind of grocery sack. Yeah.
Logo or similar looking logo and design.
[38:16] And it wasn't just the LV all over the bag. It was the image of the expensive LV handbag. Right.
[38:25] On the tote bag. So, it was your other bag, something like that. And I think that ruled in favor of.
[38:34] No confusion. But yeah.
Yeah, yeah. So, so yeah, I I'm interested to watch this as we.
In, you know, old and intellectual properties. So,
You know someone create for your brand can I tying into the trademarks conversation and artwork or but in January of this year Sweetwater Brewing Company
Filed a lawsuit requesting a federal court declares or declaratory judgement action that it owns or in the alternative has an implied and irrevocable license.
In the copyright of a fame of the famous rainbow trout design that is also on their,
There are packaging for their beer.
Fast. So, according to the complaint, Sweetwater paid $500 to the designer to create this design in 1996. The design's been incorporated and it's logo and other branding ever since.
[39:44] Sweet water was acquired in 2020 by another
Unrelated entity.
He also sued Frederick.
Bench Sweetwater's founder and state court making similar claims in demanding the company pay him
A long shot from a 500 bucks he was paid upfront
Can continue to use these trademarks so it had registered or trademark in this piece of original
Work of art.
But then can also be attached to a product or service such that it is a branded dinner fire. Yeah. And so this is the case.
[40:48] Right there. So, what do we need to be.
A logo or they see an existing piece of artwork that they want to incorporate into their logo. Well, the outcome of this case which is and it's very early stages will give us a lot of a lot better information on that but you know, it it is really true. You know,
The graphic artist to create your logo,
We as lawyers ought to be thinking about making sure that the the,
Hey, thanks for the payment. Here's your logo. You know, unfortunately, a lot of companies, especially startups do things that way. Very informally, hiking
Give us a logo. So, we gotta get them on board but the other thing is that graphic designers often.
Images that they find from stock sources or from libraries that they have access to for one reason another.
[41:52] They are,
In its entirety.
Maybe different than what's contemplated so.
More experience that I wanna have
Graphic designers who really ethical ought to be aware of where copyright boundaries are for the material they incorporate into their designs
Sweetwater is no longer this little startup.
This image that I created is design that I created as being used.
You know, I'm obviously, time for another payout but.
Yeah.
Oh, I should get another payday. It's the question of was it documented? Is there sufficient implied license?
[43:21] Yeah.
Revokeability is a possibility. Again, there's reliance and all kinds of other,
Would have a strong argument that because they've,
Invested so heavily and relied upon it and made it there.
As an irrevocable license if nothing else,
So
So did you hear about what's going on with YouTube and and the anime copyright strikes and and all of that.
Well, it is the article has kinda been, you know, us talking about it today. I did not know this was going on with anime. What's what's interesting is one of my.
[44:33] Better at drawing I'm not drawing anime but I definitely am going to YouTube,
To find resources, you know, how to draw an Apple, how to draw, you know, whatever you put it in and there's a YouTube video to watch.
And so
Really focus I guess on anime and how to draw videos have been receiving lots of strikes and take down,
Hundreds and even thousands of strikes coming from mostly Japanese companies that control the anime that's being incorporated into these YouTube videos.
Sometimes they would constitute fair use under American law,
But beyond this this what there's more to it there's AA broader canvas that we should talk about and that is the the Spotify Joe Rogan situation comes into play as well the take downs.
[45:37] And the corporate officer has a new strategic plan out also. So, it's not a strictly legal discussion but
But there's a lot of movement in this digital platform rule making kinda space and how the rules are being enforced against content creators so we have the two examples the spotify joe rogan situation is,
Sort of the elephant in the room this last month or so Rogan is this podcast or comedian former UFC color commenting host and
He was also on news radio as a as an actor.
People from all across the spectrum of of humanity
He started the show in 2003, shifted to YouTube format in 2013, and in 2021, he signed an exclusive deal with Spotify for 100 million dollars. Actually was 2020 when
Exclusive.
On Spotify in 2021
Missing but what most people think is COVID-19 miss information,
Talking about taking ivormectin and things like that and he's had other racist sounding remarks.
[46:53] Use of of certain words that are sort of off limits for for people not a member of the particular race being reflected
And as a result of his comments a number of artists have now started to pull their music off of Spotify as a protest
Again spotify for not taking any action not giving any guidance or or exercising any sort of,
Editorial controller supervision just sort of letting him have free rain to cover what he wants and in fact he had a.
Anti mask kind of advocate on the show and again lots of misinformation.
App his request at Rogan's request because of those racial remarks.
[47:45] Lip service if nothing else to guidelines regarding harmful content but they're fairly vague and discretionary. So, a lot of music artists are saying, hey, you know, you make
You made your money on the backs of folks like us and you know, no more. We don't want our songs on your
Platform. People wanna listen to to me, Neil Young, or who else was in that list?
[48:14] You know, commentary from the
Peanut gallery is, oh, well, you know, how many people are listening to Neil Young but
The platform also understand,
That unless for many people, many artists, they don't own the copyright in their sound recording. So,
Yeah it's not the big record label saying take our stuff down us,
Because they also have signed deals and and have money in advances,
Deals with spotify. Did they receive as much money? I don't know but you know, what are they to do because they're in breach of contract? Yeah.
Hey notifications on.
You know it doesn't change that I I.
[49:29] Not related to COVID-19 but related to commentary on racism
And spotify has the first amendment right to let him or not to do anything about it as well or to do or could or to go as far as they want to
To restrict things and actually I just they call out to a friend of the show. I'm not gonna give his name but recently was promoted to
Global head of content legal for Spotify I think that's the original content legal and I have deliberately not had a conversation with him about this cuz I didn't wanna yeah put him out in a tough position but it maybe sort of interesting to know maybe he'll
He'll give us a comment you know who I'm talking about if if you're listening
But the the contrast to this is kind of what's interesting with relation to these anime and Japanese copyrights in music as well,
Has taken a different approach from what Spotify is done they they have had to deal with their content creators and specifically this,
Situation coming up with mainly Japanese content owners.
[50:44] Genres primarily aimed at a western audience have been hit with these copperette infringement strikes under youtube's system,
One of those creators totally not mark was hit with 150 copy right strikes from toy animation,
And.
[51:10] They they they broke YouTube's rules because after they tried to remove the videos.
Using the proper systems and YouTube indicated that they needed more detail.
After some back and forth between toy youtube and totally not Mark
Toy reduce the list to 86 videos although still no real logic in what they're doing and why they're doing it. They're just, you know, insisting on these take downs. So, in order to satisfy the claims of the parties, YouTube is now created a,
New policy that permits a region blocking of content based on.
[51:49] I guess regional copyright law and the availability of weather fair use is a defense,
In that territory. So, this was a tool that was accessible to some of the larger creators already.
But doesn't seem to be available for everybody,
A second content creator who also covers anime's name is suede but focuses specifically on Pokemon.
Pokemon anime which is called Shopro. They issued a demand for a sizable but not impossible amount of money.
Based on the number of views of his videos suede describing his efforts to fight and reason out the demands noted that the efforts were similar to a slap suit,
Something put forward to be a nuisance and faster to settle than fight,
Rather than his where he's located in New Zealand he would probably lose and so.
[52:50] It seems to be settling anywhere as an aside even if geo blocking could occur that wouldn't have an impact on the prior views and exposure.
For for that liability in Japan up until the date of the blocking.
[53:09] Again while that sort of admirable.
You know a lot of questions about whether it's gonna be effective and and what does it do for an American based content creator who's operating under fair use here in America those kinds of things now this would have been covered by the transpacific partnership.
By the administration the previous administration cuz it did talk about recognizing fair use on a broader scale.
[53:44] What else we got here? Youtube has been relaxing. It's real. It's enforcement. I'm sorry. It's not been relaxing. Enforcement actions. They've issued strikes to other channels focusing on archiving the soundtracks to Nintendo games.
There was to preserve those soundtracks and permitted the music to be streamed online without buying the game,
That's an interesting one. I talked to a lot of lot of game enthusiasts to say, you know, the music from some of these games is so great. I wish I could just listen to it.
And so this channel was actually making an alternate listening experience. You don't have to own the game. Oh, yeah. To just listen to it and I will say my experience is the.
The publishing companies are very,
I soundtrack.
Hey John I think right unless you.
Negotiate and get a mechanical license separately in their to do that,
Oh so that's the original composed for the game yeah
Hey message same thing too I mean Nintendo then controls the ride or their publishing music publishing arm to release that.
[55:08] As an audio only work. And I think.
Get to just put that up. Yeah, I think that the,
The entirety of the song. You know, I think that pretty much kills a fair use argument. Yeah, I think so. It's not game play, music happening in the back.
Background which has been, you know, lots of conversations related to twitch and and YouTube and licensing for that but,
Hey Facebook.
[55:53] I mean it maybe they issue an audio on like,
Youtube track when then they collect all the publishing moneys from that. Yeah, or put it on Spotify, have them Nintendo, Spotify channel. I bet they already have it. Maybe.
But I don't know but but yeah but okay so we had this note about this strategic plan from the copyright office the whole plan is a.
[56:16] PDF of 12 pages which is kind of a fancy looking graphic.
Was this a 12 page document that really didn't say much? It was a 12 page document that really didn't say much.
Other than we're trying to move into the new century.
And and these are the constraints we've had and this is what we're trying to overcome. I can't say it really set a whole lot about,
Motivation. I actually typed in DMCA. Yeah. As a word search, it didn't come out, come up.
I put in digital it didn't come up in relationship to provision to the DMCA so we we've linked to the document I I think it's a
It's a high level, strategic plan on maybe four different items. The copyright office wishes to address one of it being
We the carpet be right office recognize we need to provide more legal information.
[57:23] Rights holders are stakeholders. And so that was good. I don't know how relevant it is to the topic of the.
DMCA take downs. Boom. Yeah, yeah, I mean, just a release to the idea that.
We have a new this new frontier that the of things that are happening in the office and the laws gonna have to catch up,
That's right that's right.
I guess I wanna call it a mini series. I don't know if that's that. That's appropriate term on Netflix these days. I'm dating myself. Aging myself but.
Queen's game it was a very fascinating series on Netflix still on Netflix
I cannot remember the name of the book I don't know if it was called The Queen's Get Gambit or not.
[58:22] The original book I knew nothing about,
Anyone in this book other than they do reference bobby fisher who is not subject to this dispute I know who Bobby Fisher was,
You know, but beyond that, I didn't have any personal exposure
You know in the 50s and 60s. But anyway in the final episode called the endgame. The fictional chess commentator.
Who's the lead in the in the in the show two.
There's Nona. Nona G.
So then there's like a pan out into the audience and the scene and you assume this is sorry Nona.
The allegation is you would know it was a reference to known a G. So Nona claims the allegation that she quote has never faced me in his false sexist and belittleing.
[59:41] She's obviously still living in factor complaint claims that by 1968 the year that the episode was said
She had competed against at least 59 male chess players,
Netflix filed a motion to strike the complaint under California's anti-slap law arguing that no reasonable viewer would have understood the line taken vague a statement of objective fact
Because the series is fictional.
[1:00:12] Were you surprised? Okay, people. I was surprised. The court
Did not buy Netflix arguments. The district judge found quote the fact that the series was a fictional work does not insulate Netflix from liability for defamation,
All the elements of defamation or otherwise present.
[1:00:33] Yeah.
You know, and that that particular line identifies a real person by name. So, it satisfies the of our concerning.
Very clearly references her real career shows and actors sitting in the audience at resembles her.
To say that you know viewers might reasonably have believed the comment be one of the historical details that's part of the series.
[1:01:07] I buy it. I I mean I agree with the judge.
[1:01:16] Well if you're gonna fictionalize.
[1:01:19] Don't use the real person's name and don't make it too similar to the real facts of the person so they're not recognizable. You could say, you know,
Yeah you could've had this essentially the same line just,
Not naming Nona G and the last majority people would never connected the dots but then well who knows maybe it still could have been her but.
[1:01:44] Yeah.
[1:01:47] I think this is an interesting one to watch to see how it continues to play.
Yeah.
Does it really hurt her reputation in a way that is actually harmful
What do you call it? Dignity component to it of course.
[1:02:25] I wonder if we'll just see more and more of this.
[1:02:30] And again, there are clearly if you, I guess if you were in the chest world.
[1:02:39] You know more of this information.
Maybe she's not such a great player. I usually see both sides of it. Yeah.
[1:02:59] Yeah. Well, I I I think this one is fun and I and I do actually highly recommend the the show. I don't think it.
[1:03:06] My recollection is I wouldn't have young children watching it. There was a lot of adult themes. Mm hmm. But it was very well done. Very entertaining.
I I thoroughly enjoyed it. So
That was used in the poster artwork for pulp fiction. I think we might have mentioned this previously that the image in question has a picture of the character Mia Wallace. I think that's played by Uma Thurman if I'm correct.
In a sort of a pose on on a bed looking up at the camera ankles cross behind her
And there's been a recent copyright dispute,
Try to bring a claim for copyright infringement.
[1:03:59] But MiraMax prevailed on the basis that he had reputated his ownership of the image. Originally, the picture the photo, excuse me, the poster was originally depicted back in late 93 by the then art director at Merrimax.
Once the sketches were approved Mermax approached Zahiti to execute its vision and offered him $10000 for the photo shoot,
Which he accepted he photographed Thurman in the studio where he selected several props including the shoes,
And so MiraMax made a motion for some rejment stating that he didn't execute any.
Identifying which rights each party had in the photo and that Mermax made some edits to the photo applying an aging effect making it look more classic,
Paperback pulp fiction looking.
So he filed an amended complaint stating that Miramax inconsistently credited him for the work.
[1:04:55] But when the image appeared on the sleeve of the VHS and merchandise they identified themselves as the copright owner and then in 2003 they applied for an obtained,
Registration of their own that didn't mention there's that.
You know, is that a fraudulent kind of a filing? Who knows? Anyway, in 2015, he received an action figure of the character as a gift and found that the figure.
Was also stamped crediting MiraMax with the copyright and he got some socks from 2019. So, he eventually files his lawsuit and the district court,
You're in California.
[1:05:31] You know some cross motions for some rejument last September.
[1:05:43] Of the the statue of limitations,
A 3 year statue limitations and he just the court distinguished two different types of claims here. One is infringement of claims that occur every time the work is published and the other is a claims that a crew only
When playing in express reputation of cone or ship is,
Communicated to the climate,
The court then analyzes the various moments in time it says that in 2003 there was no reputation when Miramax registered the copyright that was not enough of an express reputation
Because the photo and the poster are different works likewise they didn't check off the,
Photograph box when they registered the copright the court was skeptical of the idea that mere registration of copyright would amount to an express reputation.
But they said that but the court said that
Reputation did occur in 2015 when he received this action figure and seeing the credit for Meramax and they found that was undisputed evidence of his actual knowledge of Miramax's plane and express
Reputation of his ownership.
[1:06:51] Regardless of Miramex's change in position on the copper acclaim from 94 is a heady eight by 2015 knew that Merrimack was claiming rights in the photograph.
And that that he, you know, that he thought was his. So, since the action figured.
Arrived in 2015 he should have filed his claims by 2018 so the statue of limitations had passed and the copyright infringement claim
Made in 2020 was barred does this sound like adverse possession argument to you?
[1:07:28] Weighing on her chest in the,
You know I think.
And the character was sort of in in a window of the of the box but I don't remember for sure. So, don't hold me to that. Okay, because I'm getting my brain is trying to process,
You know was it every image and the photo shoot just this one particular image that Miramax had access to.
If they made a standing action an action figure in a different pose how would that.
[1:08:07] A reputiation copyright. I mean, Uma Thurman looks like Uma, Thurman, anybody. Hey, you know, so, sorry. I'm just maybe her makeup and hair design and wardrobe and things like that but even then, it's pretty thin. I I think it really has to come down to the
Image.
Thing and I'm pretty sure that's what it was but okay. Anyway,
In a copyright. Yeah.
[1:08:39] Yeah, you don't get to just wait around forever and then finally say, well, actually,
I was sort of kidding about adverse possession but it's not that sort of the open and as long as it's an open and notorious use of the property with without the consent of the owner.
[1:08:59] At some point.
So I guess I'm I'm glad they said that following a copyright application that is not notice
Over mediation because you've done no even though it is public record I I just don't think that's a standard
I mean barely putting a copyright notice on a work as you distribute the product or something like that here I think he had to prove that he well the proof was when he actually knew.
[1:09:33] Or should have known. You know, so, anyway, very interesting.
Markum concepts versus hasbro that the game of life.
So, one, I had no idea that one quote, the America's first polar game, I'm sorry, quote, the checker game of life know now as simply as life was launched in 1860,
By Milton Bradley.
Yes but they commemorate Bradley's company's centennial
Ask Bill Markham in 1959
Milton Bradley and turn bought the concept in the 1960 game took off,
Hasborough later acquired Milton Bradley.
[1:10:35] Who's the artist who created.
Claymore and Art Link letter.
Lots of fun pop trivia in this
Attempting to terminate the copyright assignment that was made.
At which is allowed we've discussed it numerous times under the 1976 copyright act,
Argument works for higher cannot be terminated that grant cannot be terminated the issue we have is.
This work was created under the 19 oh nine copyright act and there was no.
So anyway Judge William Smith found that because Markham was hired to design the game the game was work for higher under the so called instance and expense test.
[1:11:47] Which was crafted by circuit court decisions from the 60s and the rule holds the entity that provides the impetus and funding for an independent contractors creative work owns the copyright act.
[1:12:01] The 19 oh nine actors define author which shall include an employer in the case of worksmaker for hire but again never to find employer or works for hire.
That was overhauled in 1976 where we do have definitions of what is a work for hire.
So but Ken Markham's airs will they be successful in this challenge and the.
They've challenged the district court's conclusion that the game was a work for higher and appeal to the first circuit.
They argued the district court aired and using the instance inexpense test.
[1:12:37] In in the circuit court's opinion the panel sided binding,
Where they had to apply that test for commissioned works under the 19 oh nine act. The court relied on a 1993 first circuit ruling in forward vs historic good and reiterated the test supplies to work scavern before the 19 oh nine
Govern by the 19 oh nine act mark I'm Zayers have appealed to the US Supreme Court.
The instance and expense rule was developed through a process of judicial improvation and improvisation and president drift.
Hey
FM.
Improvise and president drift. I love it. That's a great argument. They explained the second circuits 1939 decision in yardly huffington mifflinco,
Been a factor and implied license but not authorship they go on to a 1965 decision so forth and so on,
And and and so we're right for a split. The 11th circuit has dismissed the rule. The first circuit along with the second and ninth circuits have maintained the rule for these works governed by the 19 oh nine act and so.
[1:14:00] Sag.
[1:14:08] I make us briefs to the supreme court saying the group says the rule wrongly assumes the funding party bears all the risk in a work,
Success, disregarding time and resources put in by the creator who often likes bargaining power. So, it's my understanding has pro I should have filed a response yesterday,
On February 22 unless there's been some change in the time it wasn't on pacer as of early this morning,
So we'll watch and see that this could be an interesting,
There are so many works governed. Yeah. By the 19 oh nine act.
I think we are I think there are at the petition for surge
And and even more I mean we've also got then you know talking about older works this Jimmy Hendrix experience and musicians that played with him in the 60s and what rights there
Families.
And it's 55 years since the original assignment that they're claiming they that they don't think is is valid any any more or those work fryer so even if it was an independent contractor under an assignment,
You know the the only thing we would have to go on is that.
[1:15:36] 35 to 40 year termination window which probably doesn't play again
So it's 56 years so they're right in the they're in the spot for timely filing that.
Provision to reclaim. So,
Yeah. But the Hendrix situation we have a similar.
[1:16:11] So yeah in in the 60s,
Hendrix of course sword to his fame and the Hendrix Estate and Sony
Signed away all of their rights to the music in the early 70s after Hendrix died at 27 years old,
Classic electric ladyland album and they filed the lawsuit against Sony music in the UK alleging copyright infringement but not before,
The Hendrix Hendrix experience on Sony.
[1:16:58] Contracts are copyrights. So, we have these competing lawsuits. The the.
The UK claim is that they're asking for declaration of copyright ownership in the musical works the sound recordings and the performers rights as well as the declaration as to whether or not there's been infringement and if there has damages as well as an accounting a profi
The the New York case which was filed first by a couple of weeks I believe. Is asking the judge to declare no breach of copyright. They claim,
They stress that redding in Mitchell basically gave up any copyright or royalty claims in relation to recordings made by the Jimi Hendrix experience in return for significant monetary compensation consideration,
The so called release agreements include a commitment to never sue the Hendrix Estate
Estate or it's successors need a redding nor Mitchell ever raised any issues with those agreements prior to they.with their deaths in 2003 and 2008 respectively and indeed at various points they collaborated with the companies run by the Hend
On different projects. It is suggesting the word of them, no grievances between the musicians and the estate.
[1:18:05] The errors are saying the contracts are not a bar to their claims because Sony wasn't a party to the contract and that any previous contracts and releases signed do not operate as an assignment of rights in the music.
But are related to royalties and compensation from that time and if they apply it all they cover only North American exploitation of the music.
They further add that none of the sign documents are contracts extends to streaming rights or digital media revenue which none of the parties could have foreseen or contemplate it at the time.
A lot of lack of clarity here that UK lawsuit the New York suit to restriction.
International law components I'm at choice of law those kinds of things.
You know it's hard to comment without saying,
I I'm not seeing anything that screams they're trying to do a termination I mean they are suing Sony music UK yeah,
Saying you always.
[1:19:17] Writing in Mitchell contributed as authors of of these works.
[1:19:23] I mean I just find it hard to believe that lawyers in 1970.
Bin.
[1:19:33] Thinking at least but you know about hey this has to last forever.
So it's I guess.
Yeah. Technology wise. Yes, I mean we we have seen the move.
[1:20:01] I don't know when the actual cassette.
[1:20:06] Became a household item. But it would have been LP's singles and eight tracks and.
World real. Yeah. 1970 right? Copyright protection until 72.
In the US.
[1:20:28] Well, so yeah, they would have been thinking about Corey. I'm just thinking in the time frame
Didn't cover, didn't mention sound recordings.
The litigation surrounding that for digital and streaming rights.
[1:20:56] At night for this matter but Peggy's case with VHS you know.
It's happened over and over again.
Actual facts.
[1:21:19] Is this a case that ought to be,
I I think as these two cases proceed and you know it's entirely possible one of the courts will stay it's to sit you know it's it's proceedings until the other is ruled or who knows what so.
We will keep people posted on that and we have a few other cases that were sort of watching for the future. We'll talk about it the very end of the show but we've got a couple one more thing to to sort of cover.
[1:21:48] And it's talk it has to do with the retirement of justice Stephen Briar.
You announces retirement last month and and now we're gonna take a look he has actually quite a bit of a legacy in the entertainment world specifically his opinions relating to copyright law.
While he is generally considered to be left leaning these copyright opinions are
They reflect a fairly neutral kind of jurisdicence on things. He's been on both sides of things with starting with Eldrid versus Ashcrofton. 2003, he wrote a descenting opinion,
Taking the position that the Sunny Bono copyright term extension act gave copyright holders near a perpetual term in violation of the constitution's copyright clause.
[1:22:29] Yeah and then we fast forward to 2005 and Briar's opinion in MGM versus Groxter while Groxter hadn't heard that in a while. The Justice joined the rest of his colleagues holding.
Quote that distributor of a dual use technology may be libel for the infringing activities of third parties where he or she actively seeks to advance the infringement,
Here Briar also concurred with an opinion explaining why the court's decision did not undermine Sony versus universal city studios which is
Video tape recorders the betamax gate case,
Would have been the curtsy versus Wiley.
Did apply to works outside the United States.
[1:23:36] And then we come up to two cases in 2014 portray versus MGM just as prior to scented,
And argued that the latches doctor and shouldn't deed apply to copyright cases he actually chastise the supreme court's decision to deny a basic equitable principal in copyright cases
Hey Facebook,
Which was the streaming service for over the air television broadcasts and and the opinion held but be
Those broadcasts infringe the public performance right in those broadcast he carefully crafted that decision marrily so that it would only apply in the context of over the air television not
Have broader implications for things like cloud computing and that kind of thing.
[1:24:25] Add and then in the design space or visual artwork in,
And argue that the design of a cheerleading uniform did not qualify for copyright protection you know reminder that it was kind of.
Geographic designs on the front of the uniform or arrows his descent asserted the specific design features varsity softball
Protect for not capable of existing independently of the utilitarian aspect of the uniform and then therefore did not qualify for copyright protection,
And in the black beards revenge case Allen versus Cooper in 2020 Briar concurred joining the majority and finding that the copper at remedy clarification act
Didn't meet the constitution's requirements for the obligation of state sovereign immunity. His current opinion stated that while he concurred, he did so only because he felt bound by an earlier decision. Also, one that he felt was wrongly decided.
But he felt that a state should not be able to escape liability for copper and refringment.
And then at 2021 the really kind of I guess a landmark case or one that
I know my patent colleagues and copyright colleagues waited a long time to hear about Google versus article.
[1:25:53] Replication of Java declaring code in the Android API Chava declaring code let me
Yeah, I got the word. Yeah.
Anyway, we thank Justice Briar for his George Prudence. In the field of copyright and entertainment and.
I'm sure everybody wishes him well as he moves on,
To the next phase of things,
Some of the stories that we're watching coming up where just things we wanted to mention but that war we didn't think were quite ready for a full analysis.
[1:26:35] In in one case a an artist by the name of Darger who was a bit of a hermit and recluse died,
During that time he died sort of without
The landlords who saved all of his art that was in his apartment at the time of his death and have been exploiting it and and administering things and now he's become a well recognized artist with galleries and museums and so on.
The the airs are cleaning the landlords didn't have the right to do that and while they might have had the right to throw everything away,
Bear share of the pie I guess you could say so that's an interesting one.
Yeah and then you and I have just did a all we recorded a.
[1:27:36] Rulings on.
Compensation for college athletes. We did that with the first of February. It aired last week.
And here's what came out last week after we aired. Yup. For a while, we were airing. Mini states are rethinking. They're in IL policies.
Potential violation of recruiting rules representation of athletes broken deals booster involvements I I think.
[1:28:07] It's also becoming an issue of we were concerned you'd go to a particular state because they had a,
Hey they had an NC double A NIL legislation and now the argument is folks are going to states where they don't have one because then they're not restricted.
By the state laws. So we are going to see a real revision I think to the NIL laws now that we've had.
6 months 9 months underneath the the
The states got up and you know did their thing in force the
The NCAA's hand and then the NCAA said oh yeah
I think it's growing pains. Yeah. That, you know, again, my argument has always been we have to protect the student athlete.
[1:29:10] I think what they're finding is there's lots of ways of student athletes are not being protected. So, it's not just improvisation and president shift.
Maybe, maybe not, but I, I, I.
[1:29:25] I I think there's a lot of there anyway. I love the NILT conversation but we will save that for another day. Yeah.
Well, that's it for what I think maybe our longest episode ever.
Let let's just say thank you to you our loyal listeners for spending your time with us if you have some feedback we'd love to hear it,
You can visit the website entertainment law update.com and use the little widget there to leave us a voice message or you can email us at entertainment law update@Gmail.com on Twitter it's aunt Law update
Thank you Tamara as always tell us where you can be found.
[1:30:05] Thank you for having me. I am online at Tamara Bennett T Bennet Law.com or create protect.com
And I'm Gordon Farm.
G firemark is the handle on most social media and I look forward to hearing from you. Let's give a big shout out to our crack team of volunteer contributors managing editor John Janiceek.
Malharosa.
John Rappold Charlestorne Mark Lindaman Brenna Arbuckle Carney Wilson and David Tobis all helped contribute to this episode and if you would like to join our family of contributors reach out the entertainment
Law update@Gmail.com Email addresses the way send a resume cover note and
Tell us why you went while you're interested and and we'll get in touch and that wraps up this episode of Entertainment Law update. Thanks again for listening and.
[1:30:58] Music.