Transcript
[0:00] It's entertainment law update episode number 143 for March 2022.
[0:09] Music.
[0:14] Hi, everybody. It's me Gordon Firemark from Los Angeles, California. Welcome to.
And hello it's Tamara Bennett from the Dallas Fort Worth Metroplex
And we are so glad that you're here with us for this episode. This is our podcast about entertainment law. Where each month, we pull together a roundup of legal and business news stories and share our opinions and commentary and analysis
And all that kind of good stuff. What's new with you?
I don't know.
[0:58] Ready ready to march on glad glad that spring is here as we're recording this on March 23 2022
Well, they're in in Dallas forth. I I gather the tornado situation wasn't to.
[1:15] For us the tornadoes that hit closes were probably 60 mi west. Okay. And then.
[1:24] 3 hours south. Yeah. So, you know, an hour, 30 to,
Minutes to an hour west of us and then about 3 hours south of us. So, very very fortunate. You know, that I don't.
Know that any there were any deaths associated with the ones that came through area the other night it was
Yeah, I don't know. I I grew up in Tennessee which has a lot of tornadoes. Texas has a lot of tornadoes. It's it's a very weird sky. We'll just say that.
[1:58] In in the Midwest the last few days. We hope everything's good and hopefully the this episode will get your mind off for you. Yeah, that's right. Anyway, we have a few calendar notes of things that
Are coming up actually right after we finish recording this episode I'm headed
Into downtown Los Angeles for the podcast movement evolutions conference where I'll be speaking on Friday on the subject of.
[2:23] Podcast to television or film the paths and structures of adaptation deals in that arena and then in late May I'll be speaking at the Podcast Media Expo in Orlando.
And in late August we'll be in Dallas and we'll get back to you with more information but I think we'll try to plan a meet up and maybe do a our
Episode recording live in front of a studio audience
Do you have any other appearances coming up in the near future?
I I was looking at all you've got going and I'm like no I you know we did a couple of things in the first first quarter and I I don't have anything set
Coming up for the second or third quarter but that could change and I'll update folks if it does.
A ruling from the copyright.
[3:34] It's it's to the copyright office making making the review itself the register of copyrights and.
No. Those in line.
Yeah. Well, at the office. You know, this shouldn't come as a surprise to listeners of our show. Who are familiar with our discussions about
The monkey selfie case from a few years ago and and similar rollings the review board of the copyright office has sent Stephen Fowler a letter
Affirming denial of his registration for work back in 2018 he first applied to protect a two dimensional,
Artwork, a painting called a recent entrance to paradise.
[4:20] Named creativity machine and the AI software tool
Computer generated work as a work for hire to the owner of the machine.
[4:39] The registration program rejected the application on the ground said it lacked human authorship and the board of firmed the decision from
That decision from 2018
Again, affirming that decision. So, this information that Taylor had given the office was taken as a factual statement that a human
Did not create the work
In the creative powers of the
Brackets, human mind. So,
The the authorship requirement and then we have the copyright claimment requirement but,
But we can't get there. We can't get to copyright claimant with there's not human authorship. I also put a link in the show notes to.
[5:52] Rulings the decisions the copyright office makes
I I can't remember how many years back it goes but their public record their refusals and you can sort them by I don't know 10 15 different categories and one of those being human authorships so you could narrow down your sort,
To just see
The handful of opinions they've issued on him or not authorship and so anyway always a great resource if you get a refusal on a copyright application to go to this and take a look at
Other
Cases, especially this one. I mean, it seems like the machine is the tool, you know,
A smart paintbrush.
Deciding to initiate the process but how different is that from the decision to.
Snap the shutter on the camera.
[7:01] I think his application may have been motivated by sort of trying to get some clarification on this very kind of issue,
Get a copyright on this particular painting having applied for it
In a different way.
Ties us into our next.
You know can we put things on copyright applications just so they'll slip by what you know right,
I don't think that's a good practice pointer. No, no, no, no, no, yeah, I understand. I mean, no, no, and I think there would be a good faith that because I chose the tool and chose to.
Didn't I create the work.
[8:02] You know, that that sort of the. Yeah. Yeah. So, there's a good at least take good an argument that could be made in pretty good faith. Although, with a ruling like this now, maybe we can't make it in good faith anymore.
But anyway
Well I
In Arts and the Adam Holder. But but there's any number of tools that can be used that are beyond a piece of paper and and a paintbrush and a pencil.
You know, digital tools.
That's the difference I'm making a human choice that I wanna use the fat brush versus the skinny brush versus the okra versus the,
Does
To take the background out of a photo so just the person is the subject.
[9:20] Does that now take us out of copyrightability just because you use that particular tool I think these are the kinds of questions that
The office and and we as lawyers are gonna be grappling with for the next couple of decades probably. But but let's reverse that. Let's say we take the,
And and it wasn't a very.
Human looking work the the recent entrance to paradise there's a picture of it within the opinion.
So the machine generates it.
[9:59] Yeah so do I have to disclaim.
As a preexisting work the portions that the machine created.
Add or take away to create a derivative is then protected.
[10:20] As I said, these are the issues we will be grappling with.
Well.
So the cases unicolors inc versus HM,
The court has basically determined that.
Applicant.
[11:02] Makes a false,
Cover the facts it's it's unicolus versus H and M from the Supreme Court it was an appeal from the ninth circuit.
The Supreme Court vacating in demanding that night circuit ruling and.
Here's the background the the copper act has this safe harbor provision stating that a registration is valid
Unless a that inaccurate information was included on the application.
B the inaccuracy of the information if known would have caused the register of copyrights to refuse registration that's from section 411 B one
So the question that the court had to grapple with is what does knowledge that it was inaccurate mean.
[12:02] The night circuit headset the copper head holder can't save its registration if the lack of knowledge stems from a failure to understand the law
Rather than a failure to understand the facts there's the ninth circuit going in bifocating.
By vacation I suppose. Anyway, so unicolors owns copyrights in various fabric designs.
Against H and M but H and M moved for a judgement as a matter of law claiming that unicolor certificate was invalid the registration was valid they had filed a single application seeking registration for 31 separate
Under the corporate office regulation that allows for.
The problem is that didn't happen because some of the fabrics were already available exclusively to some customers while others were available to
The general public. So H and M claimed that they knew that this was not a single publication and that therefore the registration wasn't inaccurate.
[13:15] Following this the court should have inquired if the register would have refused registration had it been aware of that inaccuracy.
The district refuse them that motion on the basis that unicolors was unaware that there was a defect in the application.
Even though it was an unknown defect in the legal requirement not a factual thing,
Found that the safe harbor replied to good faith mistakes in fact only and not in law.
Would have knowingly submitted a defective registration. So, up we go to the Supreme Court.
Which says, unicolors made a mistaken labeling having been aware of the facts but not of law. And to that extent, unicolors needed to rely on judges and lawyers.
For that question the court determined that the fact that a mistake was made in good faith doesn't change that it was a good faith mistake.
That the the statue only saying the invalidation of a registration would be based on knowledge that it was inaccurate.
31 designs wouldn't satisfy the single unit of publication provision since they weren't aware it had no knowledge that it was inaccurate and that the statute.
Refers to knowledge of law as well as fact whether a work was made for higher whether it was.
Published whether it was a compilation or derivative work are all questions of law.
[14:45] You know a lay or or non.
What else? Further cases before.
Had found that inadvertent mistakes on registrations do non-validate the copyright and many of those cases involve on the matter involved on that.
[15:05] Centered on a mistake of law and congress showed no indication that it intended to alter the rule so.
This is all unicolor. So, looking at the legislative history, this section 411 B was meant
To make it easier for non lawyers to register copyrights with the focus being to deny infringers the ability to exploit this loophole exactly what H and M was trying to do,
So H and MR use it it makes it too easy.
The court stated that will full blindness can support a finding of actual knowledge and that circumstantial evidence like the significance of the air, the complexity of the rule,
Applicants experience and other such things could be shown to demonstrate that awareness. They also, you know, raise the,
Long standings argument that ignorance of the law is not an excuse.
So
The question of knowledge they address the question of fraud in the copyright registration.
[16:23] The the knowledge
Ultimate ruling or holding is that a defect incorporate application caused by an error in knowledge whether legal or factual can be excused under this safe harbor of 411 being.
[16:40] Now just as just as Thomas wrote a descent and gorsuch and a lido joined in that
Saying that the court should have dismissed the rit as improvently granted because of the change in the argument from fraud to this question of actual knowledge. Thomas Art used a unicolors made a late argument different from the initial question post and therefore it should have been dismissed.
And it was undisputed that there is no circuit split on this particular issue.
And then in part two of his descent Thomas are used that the requirement to know the law is ordinarily satisfied by constructive knowledge.
[17:24] That is.
[17:26] Pretty substantial. Anyway,
Her statement is he thinks it's unfair as the musing about actual knowledge can be considered dictator,
Less rule making and more apothecating how it could be evaluated moving forward.
Framed to the question. Yeah. Even if it wasn't how the question was framed on a pill. Well,
Yeah I I don't think you can have fraud if you don't have knowledge that what you of the misrepresentation is happening without that knowledge it's merely a mistake isn't it?
Do you based on this opinion,
Our lawyers held to a higher standard in filing a copyright application.
[18:27] Hey.
About is this really a single unit of publication if the client says hey here are 31 works they're all.
I think, you know, we wanna register them together. However, if the lawyer knows.
From other information at his disposal then yeah I think there is a higher standard but it's it's just AA standard of.
Well I guess it's it's natural that because we have a different level of knowledge we're gonna be held to account for having that knowledge.
And I think maybe it requires a deeper query on our client.
I made a statement to an to a non lawyer who was helping me.
And and I.
Narrators.
[19:39] One they don't know what they don't know,
Publishers a single unit what the heck who.
If you're if the person providing you the information is an unreliable narrator.
Well and we know that that knowledge triggers some duty to,
Explore further and make sure I guess, right? I mean, I think so. I mean, I can ask the.
Questions multiple different ways
And get multiple different answers and,
I hope so and for trademark applications too but yet.
We can't I don't feel like I can always trust the information told to me. Trust but verify that that that may be it. But I also wonder.
[20:53] Again I think this ties to it what if we are very aware of the law so perhaps I know hey.
[21:00] You know, a single unit of publication and here's the, you know, if if these five different songs or five different fabric designs were.
Provided separately. It's not gonna fit. So, I so I know the law. Yeah. But I can't get the facts. For whatever reason, I cannot gather the factual information.
The the people are no longer at the company. They don't have the records to support it. What do we do in that situation?
Need to sue someone for an infringement we've gotta have a registration they're starting presumptions related to having a registration obviously if you can do it within 90 days of publication and there's other
What happens when the people with the knowledge of the facts are no more? I mean, what?
I I'm just throwing that out there. And I think it's gonna be more likely to come up in the context of it. Is it a work made for hire? Or is it a compilation or is it a, you know, derivative based on something else, you know, the.
Even the the claim that it's an original work, you know.
[22:16] Incorrect information filed because of either a lack of knowledge or lack of understanding of of what those terms mean.
More likely to come up when it's AA filing by a lay person.
So yeah and I'm I mean I'm I'm really curious so if people have thoughts wanna talk about it let us know let me know.
[22:41] Your your,
It seems like a heavy burden has now been placed on hey you know we want to have the benefits of a copyright registration nobody let's nobody's intent is to to defraud.
[22:54] If we're feel like we're lacking.
[23:06] Well, you know, that's interesting. I mean, in this case, the motion was about,
On the grounds that the application was fraudulent,
In this case there was no question of ownership but in many instances the fact that the application was was.
Granted and registered on the basis of some incorrect information could affect.
Hey yeah I think so. So take a listen to complete bar to,
These defenses. It's just that one. Yeah. So
Interesting,
In maybe that is dicta in the.
Opinion regarding we don't I forget exactly how it was worded but basically we don't wanna hold.
[24:19] Just saying any applicant or any.
Yeah. You know.
[24:34] It doesn't matter. Hey, you want.
The topic that's falling under. Yeah, well, speaking of that, we do have some information and and practice pointer new guidance from the United States Patent and Trademark office that comes up
Two trademark stories here to talk about the first one deals with the,
Trademark. So, back in 2018, Steve Elster
Hard believe that's 4 years ago he saw it mark the phrase to trademark the phrase Trump too small for use on clothing
Like T shirts and things. The phrase came from an infamous exchange between Marco Rubio and Donald Trump during the 2016
Presidential primary debates now the examiner initially denied the mark under both sections to see and two A of Lanimac
Two A remember bars registration of a mark that falsely suggests a connection with a person,
Living or dead and section two C bars registration of a mark that comprises a name identifying a particular living individual
Without that person's consent
So after that denial Elster appeals to the TTAB and they affirm his rejection solely on the,
Section two C ground.
[25:59] The the circuit has determined Elster's right to criticize a public figure supersedes any interest that the government has in protecting Trump's privacy and publicity rights.
So the federal circuit found that public figures subject themselves to a greater public scrutiny and have a lesser interest in privacy.
[26:21] Big quote. You know.
[26:37] Which I think is.
[26:47] Yeah. So, right, I mean, again, Trump is a,
A word having meaning outside of the name of the person,
Higher,
And the federal court did note though that section two C does raise concerns under the first amendment overbread doctrine that might warrant overturning it in a future case so they did not say that two C is itself on constitutional merely that the.
[27:28] The.
Of the application on the basis of two C was unconstitutional. So, sporting a little hair is there. Yeah, and I guess this is a.
Extension of the slants case,
I'm interested if this point is actually mood which it which intrigues me because one this was filed by an individual in 2000.
[27:59] 1818,
Now we are 4 years later it was filed as a intent to use so it's there's been no use shown or file yet obviously it's been in.
It's beautiful so it's been so it's been suspended as far as I need to ever have to show use because it has not been approved yet and it still within the GTAB and the USPTO records as of this morning it's still,
Not showing having moved forward. Well, I don't know that you could file AA statement of use.
Wants the rejection happen, right? The the system's not gonna accept your statement. Yes. So, it's not gonna accept it. So, no statement of use has been filed. Probably.
For for those reasons it's been suspended once they've filed all these appeals they can't file it.
Does this person still wanna even try and use this trademark and again it has to be more than a simple.
Trump too small.
[29:08] So so that's a whole interesting we may have reached a decision.
[29:23] To the named party.
This basis for rejection was thrown out. We still may see a failure to function kind of a rejection or you know, like you said, maybe we don't we don't know whether it's been used or not. So,
Yeah, interesting. Hey, hey, but yeah, I just, I don't know this opens up way.
[29:45] I understand we have ability to commentary and first Amendment free speech
Creative works in film and TV shows and song titles.
[30:07] Camera is offer soap box.
The enemy is so we have provided and we will continue to provide updates from the PTO on
Implementation for the trademark modernization act. There's a link for the new
Party expungement and reexaminations slash cancellation proceedings those are designed to provide a faster more fit
Efficient, less expensive, alternative to a contested dinner parties proceeding with the TTAB. There are deadlines, timelines, and fees that need to be met so to take a look at those and an update.
Those updates are coming out. I mean, almost weekly. Well, that. So.
[31:03] There is a way for entities to be able to designate service agents,
If they might be subject to a claim from the copyright claims board. So the partial final rule will establish requirements for designating and service agent
Agent directories public available content,
Going before the TTA I'm sorry not the TTAB this
CCB the copyright office claims board take a look at that you may need to get information updated for service providers or receiving service on behalf of your,
And we just wanna shout out I did receive a.
[31:50] A request, a comment on a Facebook post that ask us to keep folks informed of what's going on with this new copperite claims board, the the small claims.
Process and so on. And we will do that. We don't have a lot to talk about yet because the cases haven't really started happening in the news.
In their as far as I know. They haven't I know at one point I had heard,
Pushed out to June but i'm not sure when they're gonna start accepting filings. I just know I I feel like I am getting weekly email updates on we've made this.
Implemented a new rule. We now have a procedure for this. There's a procedure for that.
I don't know.
Access that information as well. Yeah, it really isn't illustration of.
Court or a new board or something like that. It is more than just okay congress said we have to do it. We're up and running now. We've gotta make all the rules. Yeah. Establish all the processes and procedures and forms and all kinds of you know. It's a big job.
It's a huge job I mean it's a it's an administrative proceeding and obviously they can look at many other areas of administrative law I would suspect they're looking at.
Yeah there's a lot to be done because.
[33:18] Law that formed it doesn't tell you how to implement it.
[33:29] Make it happen and that's all they say. Anyway,
We'll we'll keep you folks posted as as we know more and as we start to see cases coming through there to the extent that they're reported and to the extent that they're.
Breaking any new ground in in the legal principles you know we will
Now who would have thought that an entertainment law podcast would be talking about a war between
Russia and Ukraine
The intellectual property community and the law relating to properties. So, we have just a few quick.
Tidbits to report on to give to keep you folks up to date. First off, the the United States patented trademark office has issued a statement on engagement with Russia and the Eurasian patent organization and the nation of Bellarus.
Due to the war the USPTO has decided to come,
Ties with the Russian and Bellarishian,
The two organizations Russia and Bella.
[34:48] And they did Menard saying how long this policy would last they've notified also the Japan patent office secretary of the global patent prosecution highway eh that the USPTO does not intend to grant any requests related to that.
[35:03] Pattern prosecution highway if the request was the result of work completed by Russian or Bella Russian,
Intellectual property offices. So, got a bunch of links about that,
Russia has done it on.
[35:27] You know dozens and dozens of countries around the world Russia has turned economic warfare in the form of permanent permitting in actual property infringement the Russian Gaffer government has issued
Decree under which patent holders,
However, Russia defines that. No longer enjoy the protection of Russian IP laws
Russian media also claims that a similar degree is on the rise in horizon with respect to trademarks the Russian government claims that this move mitigates the impact of supply chain breaks,
So you know any then how do we connect that I'm guessing if.
They can go out and use patentable supply chain processes. This degree combined with the fact that it's
Some global retail businesses have already begun suspending operations or stopping operations all together in Russia
That is open for in Frenchman opportunities
Companies could be.
[36:44] McDonald's restaurants is that what I'm reading it remains to be seen but some speculate again that the franchise owners may select to operate those,
In the show notes.
[37:05] Anybody who has kids will know the character of Peppa Pig and that TV series.
Lifting of intellectual property protections is really become an issue it's claimed Peppa Pig as one of its first victims
The the character and the show is owned by entertainment one.
And that company I think it's a UK based company they brought claims in Russian court seeking damages and injunctive relief against a man who had been drawing and creating his own version of that cartoon,
Prior to the last three and a half weeks. Okay.
But that ruling said the unfriendly actions of the United States and affiliate countries noted those things and dismissed the case entirely so here we have a Russian judge issuing a ruling under these retaliatory
Measures lifting in which your property protection that the Kremlin has implemented. So, we will probably see much more of this kind of thing at least in panding cases involving IP and I, you know, I don't know if anybody's.
Looking to to,
Secret course in the Russian courts on something new right now but we'll see what happens and how long this conflict goes on and and.
[38:25] I think more importantly, what happens with these laws after this conflict is over. I think it a lot of depend on how it ends. So.
[38:39] The destruction of art. Yeah. And and Ukraine and you know what will be the long term impact
Of that and
You've probably watched and others have the the movie, The Monument Me in. Yeah. I haven't read the book. A friend of mine, a colleague of mine, who is,
Both a lawyer and then a PHD and
In art and into technology said there's actually a book that the monument in monuments man is based upon so anyway I think that will be some of my light reading in in light of everything that
Yes.
You know and and how do we restore and protect art which is which ties into this you know when when they're when there's no law related to it anymore so.
[39:26] Maybe it's time that art,
Destruction, willful destruction of art in the course of combat situation should be considered some kind of a work run. And I think they're hey people. They're probably as a treaty. I don't have that knowledge but yeah. One more listeners is an art.
Law expert and can tell us well that's right and we could perhaps invite my colleague Susan on at some point if we wanted to cuz she is she is the expert
Let's do that soon. Alright, well, let's talk about the finally the dark horse case. Katy Perry is not liable.
In the lawsuit brought against her by.
[40:09] The case is called the grave versus oh right Katie is Hudson so Marcus Tyron Gray also known as Flame as an artist he claimed that a repeating instrumental figure,
Known in musical terminology as an astronaut,
So after a trial sending on the testimony of musical experts the jury found Perry liable.
For infringement and awarded grade $two. 79 million in damages the district court vacated the jury award granted a judgement as a matter of law that that to the defense concluding that the evidence of trial was it
Legally insufficient to show that the joyful noise astonauto was a copy edible original expression.
[40:59] Now it's undisputed that both of them have similar features the length of each and not escenatos eight beats the rhythm is similar as well as the melodic content I'm gonna call it the note progression and the scaled degrees
So the question of the issue is is there anything about the joyful noise asana that qualifies as an original expression that would serve as the basis for a copyright claim and
The court has said no.
Because the use of similar pitch sequences in the two astonatos result only from the use of common place unoriginal musical principles it can't be a basis for copper and fringement on its own according to the court.
The court noted that the signature elements of the eight note astronaut enjoyful noise is not particularly unique or rare.
[41:44] Combination even in its deployment as an instanado and therefore shouldn't be protected undercover law.
And the court stated some reasons for that they said the characterist it's characteristic for musical phrases playing a role similar to asana as it is here to last eight beats
In other words, nothing unusual about an eight beat phrase. The rhythm of each just another was relatively simple, no composer should be entitled to monopolize.
You know
Even though the Osmos have a similar scale degrees and the same melodic content and shape
More needs to be done for it to qualify for copyright protection. A melody is more than just writing down a sequence of pitches. At,
A minimum the sequence has to be rhythmically organized so is to form an aesthetic hole,
And while an eight note melody may be copyrightable the abstract eight note pitch sequence that is the component of the melody is not,
Similar to how chord progressions
Can't be individually protected because their musical basic building blocks.
[42:59] So the court reaches its conclusion that the als notes are not original.
And found that they they were built using these standard tools these building blocks
Could fail to meet the originality threshold so.
Grace said in a report from the associated press he says he plans to appeal the latest ruling so we'll keep an eye out for it you think this will go to the Supreme Court.
[43:29] Well do we have a circuit split.
[43:36] Or is this somehow.
[43:40] Hey circuit split in relationship to blurred lines.
[43:49] Oh yeah.
And we'll have to wait and see how I'm at. I don't think that's been finalized as it.
No, I don't think so. I mean, the core did say, you know, there was no evidence of direct copying, so then they had to go to the.
Access and substantial similarity and I just skipped right over the access evaluation and said we're gonna go straight to substantial similarity and make a decision on that which is the.
Question of there was no copyrighted copyrightable no originality subject to copyright protection.
In the elements. So, it's interesting. I mean, that went to trial rather. Well, I guess the trial court.
Must have been ruling in in in the plainest favor and I mean but you know that that this wasn't.
Addressed earlier on.
Nothing to copy right there. How can you infringe something that isn't protected? You know? And I think that would be great. But you know it was a lot of noise. Obviously it's a big ruling. Yeah.
When the trial court came down I remember a.
Friend of mine, you know, texting me. Oh, yay, big win and I'm like, yeah, this isn't gonna last. So.
[45:16] Perhaps pull back in the law,
Yeah. Yeah.
[45:33] Measure, you know, phrase, could it have been, it may have been very fact specific that just in this instance,
So an awesome auto is one of these basic building blocks of of music but.
To unoriginal to be protected or was it specific to these facts so.
Actively played music. Yeah.
[46:05] Am I just lacking in my musical education? I know, I never played piano. So, I, I had heard the phrase and I don't think I ever.
Fully grocked what it meant
That might yeah my music teachers might have thrown it out there but but never,
Fully explained it or something. I don't know. Okay.
Why don't you bring us up to date on this stolen lyrics case the the genius media versus Google
Hey, I I feel like this has been a conversation. If we haven't, you and I have not been having it. I I've been following for some time.
You know about lyrics being just freely available on the internet and how that is.
[47:01] Most likely an active copyright infringement unless you have permission to reprint the lyrics because that is one of the exclusive rights but,
Site genius provides a platform for music enthusiast to transcribe music lyrics to obtain and obtain their lyrics through licenses and partnership with artists
On their website but what they noticed was that the lyrics were showing up in google search result box
Catch this happening they put in some watermark variations related to a pal dub apostrophes were styled in the lyrics.
[47:58] Their version of the lyric you would know where it came from.
The different apostrophes were ordered in a such a way that it in Morse code it spells out red handed,
I didn't know that. Oh, I love it.
So, in April 2019, Genius contacts Google who reassure genius, the lyrics on their in there, in the Google lyric information boxes were obtained through,
Various licence stores not through scrapping of google,
Google subsequently identified lyric find as the source of the lyrics for the examples that Genius provided to Google and in December 2019 Genius Sue's google and lyric find alleging breach of contract.
[48:50] Saying breach of contact track alleging they would have had to agree Google lyric find to geniuses terms of service
On their site to be able to
Everything is a state law claim.
Man we're we're starting and ending on on tough cases preemption stay contract claims can survive so long as there's quote an extra element
At play and that could be contractual obligations that are qualitatively different from a copyright claim
But in August of 2020 the federal district court dismissed the breach of contract claims ledging quote the copyright act preempts plane of spreach of contract claims
Presiding judge saying the plan if it failed to alleged breach of contract claims that are qualitatively different from federal copyright claims.
[50:02] So they're out the case was appealed to the second circuit who affirmed the district courts decision.
Looking at a two part analysis for determining whether a state law claim is preempted
The first prong of the inquiry being subject matter requirement.
As an essential element of preemption that the work come within the subject matter of copyright as specified by sections 102 and 103.
[50:35] So if the work again switched to the plain of claims right is a literary work or musical work a sound recording or any other category that fits under that work of authorship well it fits under the subject matter so we've got that,
Question. Yeah. You know, it is definitely something within the subject matter of copyright.
Looks at the right being asserted.
[51:11] Well I guess of two things of display of copying
And genius is breach of contract claims satisfies the general scope requirement genius is complaint alleges that defendants breach their terms of service regarding the copying and reproduction of the content on their website.
[51:35] So the court says genius is unfair competition claim is preempted because it is based solely on the allegation that defendants wrongfully copied and reproduce lyrics from its website.
Kicked out on any type of state law common law,
That there's a way to save this. I mean, I I feel bad for genius.
And then whoever would you know.
The exclusive rate of reproduction of the lyrics or.
[52:26] Take action.
[52:34] That they would have had a license to reproduce.
Secure the exclusive license to reproduce which they would not have.
[52:53] For breach of did they have an agreement with the publishers at the publisher said they would enforce the rights probably not.
[53:01] Yeah.
That's a tough one. I mean, I, you know, you you they paid something to have the rights to reproduce the lyrics. Now, they can't enforce their,
Online courses I I make online courses myself and in the terms of service on all of these these.
Not to copy the material.
The the court in the early rulings in here.
Contractual promise would be,
That's corporate infringement. So,
That's a troubling.
[54:16] I don't know which publishers they have agreements with. So, I'm just gonna say publish your ABC.
To go and train in force rights of reprinted lyrics on the internet.
[54:31] Unless,
And I believe there were. There was litigation against lyric find over the years. Yeah. But I believe from some major publishers where they were just you know, reproducing.
Yeah, I mean, what's does genius potentially have a cause of action against the license or?
Hey publish your license or for not enforcing its rights.
Well, you know, I think that those license stores would also in order before they decided whether to sue they would have to go back and look at rulings like the perfect 10 case and the National Publisers Association wasn't that one another
Where was.
[55:22] To display,
So it may be that they've concluded we don't have a way of going after Google for something like this.
It will I would say it this incentivizes businesses like.
Genius.
In their entirety as is what's the other one called? They're fine. That's interesting. I mean.
[56:00] Is lyric find operating within the bounds of the law they it sounds like there was some litigation years ago.
[56:08] Yeah I I I.
Let's move on. Let's talk about this Coachella trademark. We've talked about this before.
The there's been a motion to dismiss in this case golden voice which is a subsidiary of AEG has recently sued live nation,
For the Coachella Valley music and arts festival
Often referred to by the public as Coachella or the Coachella Festival.
[56:55] A little festival took place this past New Year's Eve in the California city of Coachella
In a venue called Coachella Crossroads.
[57:16] The casino that they run that the Native American Tribones in runs. So, Golden Voice Sue's live nation rather than the tribe claiming contributory trademark infringement and unfair competition.
Do the live nation selling tickets to the festival through the Ticketmaster platform.
Over a typically would make more sense to take action against the event organizers the tribe,
So Live Nation brings emotion to dismiss the case on the theory that the lawsuit didn't actively involve and indispensable party to the dispute that being the tribe.
Live nation argue that the lawsuit is really a dispute between Golden Voice and the tribe over the name of this ancestral land
So Live Nation identifies five ways in which the tribe had an interest in in the,
In their cast. Which by not including the tribe in legal actions would be threatened. These included the tribes authorized use,
Of the Coachella Crossroads Mark Pursuit to an oral contract,
Golden voices parent company AEG the benefit of its bargain with live nation under an agreement where ticket master is the exclusive ticket seller for events held at this.
[58:44] Coachella Crossroads for 5 years and the tribe's sovereignty ownership of rights to the Coachella Crossroads Mark and the historical and cultural interest in referring to its property as Coachella
Which is actually gonna geographic descriptor of the of the not just the city but the the valley in which this all exists.
By the lawsuit between golden voice and live nation proceeding without the tribe is an actual party
So the case moves forward golden voice has the arguments on consumer confusion claiming that the consumers might have been believe that the organizers of the Coachella Festival,
Also organize the day 122 festival.
It's worthy of note that the the,
The Ticketmaster website already had changed to referring to it as simply day 122.
And the venue itself changed the name of the event to day 122 NYE at Coachella Crossroads so they were.
What do you call that? Mitigating the damages. Yeah, I I think the damages have.
[1:00:05] Yeah I don't know how they're gonna prove damages at this point. I mean there may be a statutory damages that they could obviously bring with a registered trademark.
Would be hard to prove if everything was changed prior to the event occurring but I could be wrong it made me go back and think I mean there have been I think numerous different Coachella
Trademark cases at the most recent one probably that we talked about was film Shala.
Which I went back and logged and that was settled out of court after things had been filed. So, you know.
[1:00:44] Who owns Coachella.
[1:00:50] So they are actively enforcing their rights in a mark.
That's a geographic term. We we talked about that,
Hey big big guns between AG and Live Nation well I think if it wasn't a festival of some sort no I have questions of you what if it was a
Food festival.
[1:01:20] So tied together and maybe consumers Coachella has become so synonymous with the music festival that,
We might think they might have a 1 day event. Yeah. Separate apart from the the bigger festival that occurs. And maybe they already do that. I don't know,
So, anyway.
[1:01:39] That wraps up this episode of Entertainment Law update. We've we've covered all our stories. We wanna take us a moment to thank our loyal listeners for spending your time with us. And if your new listener, thank you as well. And if you have any feedback for us and we hope that you
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And create protect. Com while so get you to my website Gordon thank you for another great episode and thank you to our cracked
Team of contributors I know you will you will thank them as well no I wanna say that
Oh, thank you. Yeah, it's always fun doing this. I'm Gordon Firemark from Los Angeles. My website is at Firemark. Com.
G fire market firemark. Com and G firemark is how you find me on most social media I'm
Fortunate to have a very distinctive name so that makes it easier. Let's say thank you to our crack team of volunteer contributors. We have managing editor John Janiceek. We have
Carnival Wilson and David Tobis all of whom helped him.
[1:03:04] Contributed to this episode.
And that's gonna wrap up this episode of entertainment law update thanks again for listening.
[1:03:20] Music.