Transcript
[0:00] It's entertainment law update episode number 144 for April 27 2022.
[0:08] Music.
[0:13] Welcome to entertainment law update from Los Angeles California I am Gordon Firemark and from the Dallas Fort Worth Metroplex I'm Tamara Bennett
And I speak for a spoke when I say we are glad that you are here with us. This is our podcast about entertainment law update. Excuse me about entertainment in law. Where each month we
Pull together a round up of legal and business news stories and share our opinions and commentary and analysis and all that kind of good stuff and and we have a good time. Tamara, what's new with you?
Oh, you know, we've just been kinda crazy, busy, settling into what is the end of the academic school year, and the end of our son's.
Undergrad college academia. So, getting ready for graduation from college, then he's.
In September. So, it is.
[1:08] Just kind of lots of excitement and I'm incomplete denial. So,
I envy him. It's,
Yeah. You know, so there's a part of that that's really really super exciting. Well, and you mentioned that you and your husband are going to be traveling quite a bit along with him at least to get him
Situated in those kinds of things. What a great opportunity for you. Yeah, we're we're making sure kids were there for the first day of school. So, kinda thing, even though he isn't adult.
With kindergarten.
[1:57] You know, all those years ago, I took him in to kindergarten. He's sitting at the table, the little tiny, little kindergarten tables and coloring and doing whatever he looks at me, he goes, mom,
You can leave now
Right,
Other than traveling all over the world. Travel
Yes I'll be speaking on the 20
I think I'm in there on the 25th of of May at or the Podfest Media Expo in Orlando. I'll be joining a panel of a couple other esteemed colleagues and that'll be fun to talk about.
You know, the big question that always comes up is how do I use pop music in my in my podcast?
[3:06] Now you don't have to attend my session
Podcast movement conference and hopefully we can have a meet up and maybe do a live recording of the show for that month there in,
In Dallas while where you are so that'll be fun. Yeah, that will be awesome. It will be delightfully 103° in 2000% humidity. Oh, it'll be great. That's why,
We're doing
Inside.
I don't the information is available. I just haven't. Okay. To look. I haven't booked my flight yet or anything either so
That's kinda like saying it's in LA,
Alright. Well, we have some big news to share that has nothing to do with entertainment a lot except that it relates to certain members of our team. We have two Johns on our team and both of them have big news this month.
John Reppled.
[4:24] I may have missed it when it actually happened but earlier in the in the month we were getting ready for our our weekly meeting and.
He let's slip that he was not able to attend because he was taking care of the baby so
Hey, you got a bundle of joy and in a few years, you can.
Travel around the world to drop your kid off when they moved to Austria too.
[5:02] Breaching any confidences but over the Easter weekend he proposed and she said yes he's engaged and they're gonna be getting married
Yes.
The copyright claims board has issued its final rules and and regulations about how you're gonna start a claim in the board,
Mechanism for coppery claims and the effective April 25, 2022. So, just a couple of days ago, the
The office has established it's various fees and procedures and so on.
To file a claim is a two-tiered payment. First is a $40 payment when you file your initial claim and then another $60 is due when,
The proceeding becomes active I guess once the other side has filed their.
[6:12] The statutes requirement of the Phoebeing somewhere between $10402. I don't know where they get that for. $Two but it is what it is. So,
There were no fees for filing a counter claim and the pleading requirements are much relaxed from what we lawyers are typically,
Claimants have to describe the harm that they have suffered due to the alleged activity and the relief that they seek,
If I can can articulate that and to make the pleading requirements easier the office has removed the requirement that the claim include a caption.
And they've included a provision that enables claiming to a running up against the statute,
Two limitations to file their claims without identifying the respondence address,
Ended ended. But only to the extent that that information is known.
And if the party is represented by council there the council's phone number and email address will be made available that makes it easier for settlements and better communication to happen throughout proceedings and discovery.
[7:23] The new rule also requires certifying parties to affirm that they have confirmed the accuracy of the information with the claimant or in the case of one claimant certifying a claim both would all co-claim it so that's totally eliminate some bad faith in those kinds of things. So,
The system is is.
Waiting with baited breath to see what gets filed first. Right.
[7:55] The law firms that represent.
Photographers not that I've got a issue with photographers protecting their work but they're the ones that tend to send the letters where they don't have then all the supporting evidence. Right.
To support their claim and now they requirement for evidence is so thin.
[8:14] Interesting I was talking about this with my students yesterday the the two they're two different kinds of photography claims,
Well lots of different kinds actually but two that are we're seeing a lot of one is those
Those law firms that you referred to. The other one that we're seeing an awful lot of are the,
Paparazzi photo photographer where the celebrity who's the subject of the photos reposting me and the John the Instagram and then get sued,
Yeah and I think it's well we'll just it'll it will start to flush itself out I look at it from the the the,
Option A which is.
[9:18] And but there's no supporting documentation that comes with a demand letter that actually shows you the copyright registration shows you that that image was part of the right registration so on and so forth we all know that the
Process.
You know.
[9:47] It might not be cost effective for those companies to use this system,
So, I don't know. No, yeah. Well, you know, if the infringement is ongoing, maybe letting it drag out just adds to their
Yeah, that's an interesting thing and I don't know. I think the the these paparazzi and folks we might see more of them.
Scenario but.
Yeah my my students are really up in arms about these cases and well how can they use a picture of so and so you know and and then expect to get paid when that person uses her own image and,
We gotta know the conversation. Well, it's not really her image. It's so. No, it's not her copyright. Yeah. Yeah. Anyway, so interesting stuff.
Yeah any.
CCB as well and now that I think about it, you know, folks like podcasters who wanna use a piece of music. This is gonna make it much easier for the owners of music to.
[10:51] Extract it something when that happens if they take care and if they find out about it
And so I I don't know the answer to this.
Okay Alisa as far as we know so far. Yep,
Well we have some news about the Supreme Court the Supreme Court has accepted Cert in,
Prince painting fair use case,
And now the supreme court has agreed to review the second circuit's decision finding that the prince series was,
Trial court had ruled that it was. So, the story is this, photographer Lynn Goldsmith back in 1981, was working for news week and she shot a full length black and white portrait of Prince Lee iconic,
Start 3 years later he warhol appropriate at the image for a silk screen illustration accompanying a vanity fair article.
And.
[12:17] What he did was he boosted the contrast he altered the color palette including a deep orange and a purple and focused on only on the singer's face and Goldsmith received a
License fee over only $400 for that use. We're all went on to make 15 more related works all under the title prince series.
The basis for this lawsuit,
Oh that's okay.
Contacted the war hall foundation filed a prep suit in New York asking for declare to reruling just what we were talking about that
That war hall did commit copyright infringement in relationship to the works and it all kinda boils down to what we've been discussing the whole time we've been podcasting. Yeah.
[13:19] Is is this very used because it was transformative. Yeah.
The war hall image.
Transformed Goldsmith's image from a vulnerable human being into an iconic larger than life figure.
And so that it's thus it's a fair use. Now, I would say that frankly, it wasn't the image or even more holes.
Portrait in 1981.
[14:05] No but then he had the movie Purple Rain the movie Purple Rain which came
Yeah. Yeah. Yeah. He he transformed himself.
So the trial court says fair use
Goldsmith Appeals to the second circuit and in 2021 a panel of three judges overturned that ruling writing that the warhole works were not a transformative fair use of the original photograph because it retained the essential elements of Coltsman's portrait
Which the panel determined the artist had not altered enough.
To escape a copyright infringement charge I always hate it when courts and and blade people talk about well if you change it enough,
I guess that is what transformative is.
[14:59] So the Warhol Foundation has now filed a petition for rid of sociality in the US Supreme Court
And because there's this conflict with a knife circuit which is held.
Even where a new work makes a few physical changes to the original. It can be transformative if a new expressive content or new message as a parent.
So we haven't now this conflict between second and ninth and the petition urge the court to,
To take it up and apply some of the previous fair used decisions like
Campbell versus Ed Cup Rose that's the pretty woman case Google versus Oracle more recent fair use case and apply it to artistic speech and decide.
[15:41] Yeah. So, it's interesting. They, the sided, the seltzer V Green Day, which is the night, the circuit opinion.
That case revolved around. I mean, I think there's such a different in fact. A difference.
[15:55] It was transformative and fair use on a video screen that Green Day had playing while they're doing a live performance. Yeah. To use the scream icon from the movie illustration.
In the background and that was transformative.
Says precise copying of computer code can be transformative if it quote alters the copyrightable work,
With new expression or meaning or message.
Join.
If work we can see,
I think where I just.
If I looked at the filings with the Supreme Court correctly.
It being copyright infringement.
[17:07] There are multiple omega breeds submitted but they were all in support of it being transformative. And very used.
[17:16] And I'm like is it really or is it just cuz it's Andy Warhall?
[17:21] Well there yeah that's interesting is just the nature of who the artist is enough to be transformed to make it transformative I mean our wall is very.
But yeah it's that's just a weird sort of reflexive.
[17:39] Reaction. Yeah, I mean, I think maybe if it wasn't Warhol, would it be the same outcome? Although you got the Richard Prince.
Get the pressure stories too. The different prints. Right. But Richard Prince who is in a quote.
But I think by his own definition or by the court court definition and appropriation artist.
[18:05] End.
[18:09] I'm seeing a new career in my future.
Well, you know, anyway, we'll find out the Supreme Court will be looking at it in the next term and so I guess next June, we should expect to have a buy next June. We should expect to have an answer.
On this situation.
[18:30] Did the pretty woman decision take a froze decision.
[18:36] Did it really give us lots of clarity we still litigate we're just I mean you know so so.
Or it might answer something very broad we can help out.
Yeah I think the result of the pretty woman case and the litigation is that litigation has changed from whether it's very used to whether it is transformative
Swallowed most of the fair use analysis in many instances. Oh, maybe the Supreme Court would rule that transformative is no longer a factor.
[19:07] Anything's possible. Anything's possible. You can hold your breath.
Now.
[19:24] I'm sorry the second circuit and it's the ninth circuit it's March 30 the ninth circuit court of appeals affirmed in part and reversed in part a judgement of the superior court of.
Oh, what this is strange? Second district. Okay. Our notes are little inaccurate here. The second,
District Court of Appeals here in Los Angeles. Affirmed in part and reversed in part,
A judgement of the superior court here in Los Angeles in the case of foxcroft productions inc versus universal studios,
At Universal City Studios. Excuse me, AA dispute over the definition and lack of a definition.
[20:04] And the interpretation of the word photo plays,
In a contract dealing with rights and accounting for the character and the movie and the TV show Columbo
1960's when the two riders entered into a decades long relationship with Universal the relationship fell into litigation in 2017 when they sued alleging that the studio owed them money
Going back to the 1971 contract
About the right to produce and distribute their work for up to 3 years.
The 1971 negotiations led to a 17 page contract that is 15 pages of attacked body and a two page
Printed attachment writer
Section about definitions it uses the words photo play and or photo plays more than two dozen times
Singular sometimes plural sometimes balloons and a modified like photo play sometimes it says television photo plays and theological
Photo plays episodeic photo plays pilot photo play and feature linked photo play so lots of different variations the writer.
[21:16] Then devotes more than half of its text to definitions but photo play isn't one of them.
For photo play more than 40 times most of them on modified
Jump forward to 1988 Lincoln Levinson negotiate an amendment to that 1971 contract to proclude universal from offsetting losses
From the first cycle against,
Potential profits from the second cycle I didn't know there were two cycles in Columbus.
And and that's you know, you sort of expect that. Hey, you don't get to write off all the expenses against the new show that kind of stuff. So, the amendment also modified the definition of net profits to specify how,
Home video receipts would be accounted for.
[22:15] What's going on in this appeal.
Authorizes universal to act as the distributor of the photo place.
Got bigger distribution fees than the net profits are smaller and so on. So in November of 2016 and January of 2017.
Universal sent accounting statements and checks $two. 3 million each to foxcroft unfair amount
Portions of net profits universal later sends statements for the years 2016 and 2017 along with checks total,
Over $200 thousand each
To Foxcroft and Fairmont for their portions of profits in those years.
Foxcroft and Fairmont Sue Universal alleging that
They bridged that 1971 contract,
Universal had not given the writers the statements and payments they deserve.
So the court holds a trial never defines photo plays for the jures the jury goes out and finds that the studio didn't fact breach its contract.
[23:43] But after the verdict the court came to agree with the studio that definition of the word was an issue.
Which includes episodes of Colombo.
[24:05] So, both sides have taken up an appeal. Universal says the word photo plays includes television episodes of Colombo
Foxcroft says no that determines ambiguous it has many meanings,
So
[24:21] The Court of Appeal says,
In finding it includes television episodes because quote a proper grasp of this contract means the writer allowed universal to take distribution fees when it distributed episodes of Colombo,
Then the corcozando hold that the trial court properly granted a new trial.
Allowing the jury to interpret the contract which was error that,
The trial cord later,
While the trial court improperly rejected that reading of the contract is on tennimal.
Help that the trial court was correct into nying the motion for judgement and I was standing the verdict because,
Having made inferences of its own and favor of the judgment reversing would have been improper,
And then the court appeals did reverse the trial court summer judgement on the fraud claim saying that,
Their work open questions of fact that needed.
[25:28] Relating to me like to the statue of limitations that needed to be addressed,
And finally the court held that the trial court was proper and did not abuse discretion in vacating its precision of the 1988 amendment
Because the memo was based on a mutual mistake of fact,
Which the riders were entitled to resend saying recision is an equitable remedy and given the court's considerable discretion in those things we apply a similarly differential standard for vacating recision so wow.
[25:56] Photo play means the recorded,
The the the actual episode.
[26:09] I would never have thought a photo play included anything other than the written you know the script.
Interesting.
This is a great case for people just to go read to understand the.
Film business. Yeah. It's very well written. It's a very well written opinion. It it's.
[26:29] It's cleverly written. You know, I I I suggest it's one. It's one word reading.
The business but also the fact that the court.
Brought out that.
[26:55] Sophisticated parties all around. They were all sophisticated parties. Yeah. And so I I don't know how much that played into it. But.
[27:03] That was part of what everybody had a lawyer. Everybody did some negotiating.
Everybody should have done a better job but but have you seen as you go back and look at older agreements I I don't know,
Photo play show up in any current agreements as an undefined or define term.
I
No I don't see the word photo play very much at all now it's usually screenplay we we we distinguish it teleplay from a screenplay sometimes when it's meant for television but.
I'm trying to think if it's a defined term or not usually the it's defined as a defined turn you know the referencing the that certain screenplay entitled XYZ.
And we define that as the screenplay.
And that's something in writing. It's I mean, it's a written document. It is not a visual document.
[27:51] Turn audio we would refer to the produced version of it as the production.
[28:01] Yeah I mean that's 1960's 1971 language.
[28:06] Well, you know, so, yeah, they were, I wouldn't expect to see.
This kind of ambiguity showing up in a in a more modern contract although you know stuff happens,
So I guess the argument.
[28:22] Foxcloft and Fairmont,
What they said a team big US we don't know what all definitions they submitted to you over to to show in Baguity but,
Photo play would have meant the written word for each episode or the written word for the.
Awareness of what was going on in this case. I mean, when we talk about a feature length photo play.
Because of the way it was used with modifiers that's what they the the judges hanging by modifying a two feature length photo play refers to a movie or pilot photo play to refer to a pilot,
Yeah it does have these multiple meanings.
But just as a as a casual reader of the contract my,
Assumption would probably but maybe it's faulty would have been we're talking about the scripts not the.
Finished to film but as soon as you bring in that 1988 amendment that talks about the right to distribute the photo please it opens up a can of worms because.
Movie studios don't distribute screenplays. They distribute finished films and television shows.
[29:40] So if they're asking for the right to charge a distribution you know to deduct distribution fees for the distribution of the photo place,
That suggests that they were thinking of the finished episodes,
Well and what would they be distributing besides the finished episodes? Right.
A value to distribute. Is there? I mean, well, I mean, I guess you could publish the,
Literary material.
Of net profits from the distribution of the photo place so if.
The finished product in a episodes are not the photo place then they would not be entitled to any money because nothing would have been distributed.
[30:30] Is Wiley?
That universal made in this case and of course, you know, very very good lawyers on all sides of this particular case. There's a lot.
At stake in there let me see who the who are the lawyers just roll.
Yeah oh Melviny represented.
The studio with Daniel Petricelli who's a pretty famous name and Tim Heffner.
[31:09] It was the
Yeah you know
Here we are. So, hey, I misses what.
Also makes the reading the case so interesting is that they you know put on the stand
Long time employees in the film business to get their take on what was happening what it was just it was an interesting read go go if you're
If you're into filming TV, go read the opinion. I think it's it'll be educational even for purposes beyond what the issue was.
It's indeed. So there's next story. You want you take this one. It's about frozen mechanicals right?
Yeah so the US copyright royalty board who makes the determination on what the mechanical royalty rate will be so what is the mechanical royalty rate that is a rate paid
Two music publishers and songwriters for the underlying musical composition.
[32:21] Record CD vinyl is sold or a digital download occurs.
I think since 2006 at nine. ¢1 per copy which is just,
A teeny tiny amount,
Hi I've I've the value of a of a,
Physical product or vinyl when it sold. I don't even know what a vinyl record is going for these days. Now, they're expecting something dollars. Yeah, they're cool.
But let's say somebody actually still bought a,
Much bigger chunk of that. Mm hmm.
$10 even after they take out all of their expensive so anyway it was presented to the royalty board to freeze that rate at nine. ¢1 it would have frozen the mechanical rate on physical goods as well as downloads,
Obviously there's been a shift in focus from purchasing.
A product to streaming it. And it was rejected. So it was presented by a.
[33:33] Sort of as an agreement. Between,
So, the board didn't have to do its work basically. Hey, we've already worked it out guys. Here's the answer.
Yeah it it was rejected by George Johnson with other songwriting groups including the songwriters guild of America
Following Johnson and requesting the copyright royalty board you know reject this agreed settlement the cause of this phrase
I love this. They rejected the settlement based upon one and understanding that the royalties should not be treated as a quote diminimous throw away item and how generally the way that the freeze was agreed upon was unreasonable.
Quote because it or in brackets because of market changes and increasing inflation,
And there was a subject of conflicts of interest between the vertical integration between publishers and record record companies again and again the overall lack of transparency.
[34:34] The board also then talked about you know how much the record labels getting versus the the underlying songwriter.
Per unit.
That that would be the increased mechanical royalty rate.
You know, performance mechanical rate. Those are adjusted separately but I mean anything is a step forward for publishers and songwriters to be paid more because they've always been paid substantially less. Yeah.
It's kinda like you get a job and you're taking a low rate than when you're trying to get you can never get caught up
You can never get caught up on your pay because you started so low. So, anyway, I'm excited that that's gonna that they're not settling to keep it frozen and that the rate may actually go up.
[35:45] Yeah, yeah, I mean, you know, and it's still within the power of the record labels and and and the owners of the copyrights and the songs to negotiate downward on well, but you know, the,
When there's a cover recording those kinds of things the the and the controlled compositions as well right so.
You know. Alright, so will it get negotiated down? Well, will they still,
So, we're still not getting ¢12. Right. If it depending on again, how many songs are on the album? So,
So just shifts the the artist instead of the label paying some of the some of that royalty if it exceeds that and you know lots of.
Lots of wrangling to be done but it it's sort of interesting. It's essentially the independent.
Music publishing and songwriting community that objected to the settlement that was made between the.
Integrated,
Companies that have both a record label and a publishing. Yeah.
It'll be interesting so we're we're still waiting for the board to actually decide what the rate will be.
[36:57] Yes.
If you represent the songwriters and music publishers and your signing granting drafting mechanical licenses if you have the
Power to control that. You want to include language in the mechanical license that says the mechanical rate at the date of distribution.
[37:30] Night at the date you sign the contract yeah.
Because do you know there's still people getting mechanical royalties at ¢2 and ¢4 and ¢5. 25 because of the way the agreement was drafted
And even if you draft that there's a pretty good chance that the record label is not going to have
Adjusted. They're software to meet the contract.
In in the past there was a case involving the state of Georgia and some laws that were they they basically hired a private company to draft the statue and then that and then they claimed that that was protected by copyright and of course.
[38:13] That was not the case the ruling was that no that material because it was funded by the state essentially was,
Mom entitled to copyright protection. Here we have a slight variation on that. It's the cases American Society for testing in materials.
[38:32] This time that the trial level court in the district of Columbia against the the the plan is here. The the Planet of Sued Public Resource in 2013 on a trademark infringement and copyright infringement,
Involving over about 217 different standards that are published by this organization,
The trademark in French was based on the use of the names the word marks and the logos for i presume for these standards and the organization the standards are broken up into three different classes for the purposes of this litigation
Group one is the exact text from the relevant release that the standard.
That was adapted into law
From what was adopted in the law but basically the same release that was. So, if there was a variation in language,
What the state,
Legislatures actually adopted were the two differences and then group three is about 32 standards that are different from what has been codified which haven't yet been adopted in the law essentially and they're not identified differently on the organization's website.
So the plan of initially won in 2017 and then it was reversed and reminded.
In 2018 and then the Supreme Court ruled in the Georgia case in 2020.
[39:55] On the question of copyright infringement first step is there a valid copyright the court says yes all 217 standards valid copyright exists because.
You know, it does. Public resource didn't contest this, claiming it was not a government edict. So they said, now it is a government edict and therefore, non titled protection but the court said, no.
[40:16] Different from the Georgia case there was no hiring of the organization to draft these things,
So they had a copyright at the at the moment of creation and then you know when it gets incorporated.
You know even incorporated my reference doesn't make the government the author of the work so other arguments made and rejected and so on. Anyway, was it fair used becomes the next question?
And the court looked at the four factor test broken up by class. So, on the purpose and character issue, it it looks at, you know, it's look, these are provided for free to the public by public resource. So,
That's information that's essential to knowing what someone has to do in the case of building codes and things like that, right? So, there was a discussion of whether it's transformative and so on but they're really not cuz they're, you know, publishing.
[41:07] Verbatim for the purpose of.
Informing decision making about how to build or whatever the code relates to.
Anything that is incorporated by reference into law is deemed outside the realm of copyright protection,
And the sort of more nuanced incorporation fair used depends on the classes here but and was conducted on a case by case basis for all 217 standards wow,
I'm I'm pretty sure when we've talked about this before if I've thought about it maybe I've even mentioned it I just remember.
[41:47] Stanley Joanne is a professor here in Texas I actually don't professor Johansson is still living or not but,
And and he literally wrote the book.
But it's all of the codes and then all of his annotations. Now, you could go get the code separately but if you practice wells estate in probate, you don't want the codes separately, you won't Joanneson's version of the cat,
But in my mind that is.
[42:25] Language from
Out in this nature of the copyrighted work here is it really did depend,
Well then moving on so on the account the amount and substantiality for factor the defendants are coping the entire standards but typically only what's required to describe.
[42:53] The legal importance.
The planets needed to show some meaningful likelihood of harm future harm existed plan of attempted to do this by presenting emails,
Two public resource from engineers that could who would be able to repackage and copy the
The relevant standards for sale bus infringing on the planes right but the court didn't buy it. They said that planet really failed to write adequate evidence here that that was a real risk. The Emails and declarations,
You know those kinds of things just didn't didn't add up to enough.
And the court points out that the current standards which were are not copied maybe more desirable than the old standards which have been incorporated in the law.
The economic record also failed to support the idea that there would be any harm at all. So, the short version is as to the majority of the standards in question. It was fair use.
And the exception was those 32 standards that had not yet been incorporated into law. So,
Analysis.
Buy a copy.
[44:11] But it's not gonna be I think the goal is it you don't have to go by a copy. It doesn't have to be access behind to pay walls.
[44:27] That I would think that would be the argument. That's why I'm trying to figure out what the fuck that didn't work. So, I got it. Yeah. But sometimes we like a physical copy now. I wonder if public resource got into the business of printing.
How interesting? Yeah. Would that make a difference?
[44:46] There was also the trademark infringement we should just touch on that that the.
The decision essentially while he came down to a question of nominative fair use,
Issue is handled and chose to follow the second circuit approach,
Requiring consideration of nominative fear use a long side likelihood of confusion so the factors wasn't necessary to use the names and and logos and and hear the court said well you couldn't describe the or identify the standards without,
Naming them has their incorporated in the law.
Perfect. So,
I plan to said yeah because the language and patriotic imagery included in the PD apps but public resource put in disclosures and alerts and you know,
Players didn't think that should matter because no one reads those things anyway.
Probably plenty of evidence out there in the trademark world to show that,
Act disclaimers actually confuse people more and make them more likely to be confused. Yeah.
[46:08] And the court then went on and said, look at that patriotic imagery and stuff, that may give an impression of sponsorship, but it's not.
Sponsorship by the planet organization. It seems to be, hey, this is a government thing. Sponsored by the government. So, not really helpful.
To the standards organization here. So, the court said, generally, with the exception of those logos, fair use supplies. So, the end result is,
Public resource is able to do this except where it made the error with the 32 uncorporated standards the ones that hadn't been adopted yet and with respect to those logos in a few places,
And the court just doesn't wanna prohibit.
Public resource from posting and stuff outside the standards can be later incorporated into law and so.
[46:56] They can't use the logos and.
[47:04] Yeah I know wonder how.
[47:09] Organizations standards and practice organizations could now.
Make the information publicly available but I mean avoid this.
[47:30] I
I don't know what the option is there. Could they say hey, this is our standard and you government. Don't get to adopt it unless we receive a fee of some a number.
You know a dollar amount in the midst after raise the price that the government pays when they want to incorporate it rather than drafting their own.
[47:51] Standards,
Than the government's just gonna take it use it in good luck with that
No that's an interesting issue cuz it's sort of a chilling effect on these organizations doing what they do.
[48:12] If they can't monetize it if there's no way for them to derive value from it other than you know the ultraistic I have let's make a standard.
That sort of counter to the whole purpose of copper eye law.
[48:27] I on the other hand,
Laws need to be accessible. We need to be able to use them and and refer to them without having to pay for a subscription to the darn thing just to know if we're complying with the law. Well, that's right and that's what you and I talked about before. I was trying to locate our building codes. Right?
You wanna remodel your bathroom? You wanna find out what you have to do?
Code enforcement office
Looked at him but that's crazy. That is crazy.
I'm sure they'd get some reason whatever from other organizations who knows but yeah it's just it's sort of an artificial.
[49:20] Marketplace.
The laws should be accessible to everybody,
But.
[49:47] I agree.
Items to talk about. First of all, a practice point, another practice pointer for those who are drafting agreements that include work made for higher language.
This is an appeal of a prior ruling and litigation between the state of Claudia Levy.
[50:18] It's really a bit in the last 24 months. I can't remember exactly when today was
What was involved is that Miss Levi had performed this weather or not. She had done work for hire or whether she had an ownership interest in the copyrights that were transferred to Universal but contract was clear. Dillon would own the copyright but she would have a 35%,
Of any and all income earned by the compositions and actually received by Dylan from Mechanical Rights Electrical Transcriptions.
Reproducing rights motion picture synchronization and TV rights and other rights therein,
That she would be an owner,
Not covered.
So the takeaway here I think is the the the terms are weird but that's why it's you have to use clear unambiguous language the contract will be.
[51:18] Yeah so she co wrote 709 songs on his 1976 album desire so it's also important to note,
Within the contract the term work for higher was used and prior to 1978 we didn't have a definition of work for higher in the copyright act,
According to what I read she she and or her estate always received the appropriate,
35% share paid as a writer's royalty. Yeah. But was not entitled to any underlying ownership or publisher right so she wouldn't be entitled to a,
Portion of the catalog sales. So, yeah, I.
Think it probably was an ambiguous,
A royalty on future uses and licenses from that song because it was an outright was it outright sale?
No, she still will. It said she would still be entitled to her writer share. There's still a duty to account to her of 35% of the writers income. Okay.
Copyright.
In or under this work for higher language. Okay.
[52:36] So, next up, Ed Sheeran. The shape of you lawsuit. He won.
This is the case going on in England in the UK where the court found he did not enfringe with his song Shape of You.
Is similar to switches song.
In which he sings oh why a why oh why.
[53:17] Made us feel well I sue I get a settlement we don't have to do the whole litigation,
Sometimes the artists don't settle and it pays to,
To defend on these kinds of things. Now, Sharon has some other suits going on against him as well and one here in the US at least, right? And,
At least one I can't remember which one that is. I mean he has been involved in in quite a few in the court said that it's I can't really moan handwriting. So anyway but I can't read this part that the court held that he did not deliberately copy
There was another word I can't read but but either
Copper infringement case in the US so that kind of struck me.
[54:08] The review in the language while similar is not identical. When you're outside of the US, when it comes to copyright.
Unrecooked advances for its legacy artist and songwriters specifically this refers to quote eligible creators and their immediate heirs who have not received any royalty payments since January 1 2019
1000. So this would be a situation where there was an advance paid,
Either a recording advanced or a direct payment advance to the artist,
And so they stayed in a negative balance for all these years or at a minimum balance.
You know, a lot of times the agreement says there's gotta be under $100, under $50, under $25 before they're getting cut.
Hey my question is.
[55:19] Well, it's only for artists who haven't received a payment in the last 22 years.
I mean, it sounds good.
[55:44] Are we legacy I'm trying to figure out,
I mean, you're right. That was 22 years ago but I would,
Hey.
[56:12] Caught a lot more of them in the net that they would have been releasing you know so yeah you know this nice I thought BMG had done this also.
Hey pretty sure they have and it's probably Sony BMG.
[56:28] Yeah, well, that's, I mean, I guess if you're an unrecooked artist, it's good and you and if something happens and when your song is all of a sudden, takes off now, you start getting royalties. Well, and here's the other thing, if we.
Anybody listing who represents somebody or a family member or a contact,
So
Send an email or there's contact us formed update your information as an as an artist as a royalty recipient. Especially if you haven't seen a statement in a while.
And then go to sound exchange. Com and make sure you're signed up on there to get your digital public performance royalties cuz there might be money there for you too. So,
Anyway, we're just full of helpful tips today. Oh, right. And be sure to drive. We didn't say it earlier. Be sure to draft those contracts with good definitions when you use words like photo play.
That's exactly right and if you're and if you're an independent songwriter make sure you're all of your works are registered with the MLC that
That's it for my music. Alright. Update. So, we touched on this case. I can't say Emily's last name. Write it,
Jakowski.
[57:49] This is the case you talked with your students about. This is photographs and pop poparazzi.
You know we're we're talking about what they do is I require my students to bring in,
You know the stuff in actual practice
Model Emily Ratchett Rajowski was,
Was sued by the photographer who caught up an image of her not even showing her face that she actually held a bouquet of flowers in front of her so it wouldn't,
Be her face but the photo turned out cool and she thought wow oh great I'll post it on my Instagram hey Sue's they have now settled the case,
We originally talked about this in episode 128 so it's been going on for a while.
But it's now settled. We don't know the details of the terms, but it's just one of many, many, many of these.
Celebrity versus pop star.
[59:02] It almost sounded like it was a proper kind of she had representation but it sounded like proper because the the arguments were made by someone in a way that didn't seem to,
Do much to acknowledge things like the first amendment and the limits on the red privacy and things like that. The big, you know, the court wasn't buying it and so the the settlement happened but
The question that I asked my my classes how is it that all these celebrities don't.
[59:28] Information
LeBron James or someone getting sued because they posted an image on their Instagram.
Hey I don't know and I wonder if.
[59:56] But if you're a social media manager and you work for a celebrity shouldn't you be paying attention to what other celebrities should be doing,
I I would think so but then I wonder could could she have made depending on how it was posted.
[1:00:12] Well and and she argued that in her case because she did. Okay. She had posted it with a caption about.
Something about her mood, you know, this is my mood about being photographed or something like that and and I as far as I can tell the court didn't buy that either.
[1:00:27] So
Or they should have taken another picture of her face to put on top of the bouquet.
Turn it upside down. This is your this is not appropriate. You know, she could have been making any kind of motions with her hands. Well, you know,
But it also would have been a reflection on her, her reputation. But what I'm saying is is she adds the finger when she transforms it? Oh, I switch me, yeah, good point.
[1:01:16] Yeah. Well, better. Maybe, maybe some celebrities will listen to the show and learn.
But we're not guaranteeing that of work
We wanna take a moment to thank you our loyal listeners. You spend your time with us and we really are grateful. And if you have feedback,
Please leave it for us go to the website and entertainment lobdate. Com and drop a comment or send us email at entertainment law update.
[1:01:53] At Gmail. Com or on Twitter at one at law update.
[1:02:02] Where am I these days? Com.
Com will also get you directly to my website and my blog post.
And it always such a fun time. I'm glad we made this work. Yeah. And I'm happy to hear about your new class.
Clash your will. I guess it's not a new class but you're now teaching in person in your class. So, I can't wait to hear what all your students add to our podcast every month but
Because I think they will. They are almost part of the team because they bring in these stories and every once in a while, one of them finds its way into our show. So, that's fun. I'm Gordon Firemark from Los Angeles. My website@Firemark. Com. Email address is G firemark@Firemark. Com and the handle on most social media is G firemark.
And yeah, get in touch. Let us know if you like the show by the way. Please do like, comment, share, and and you know.
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And that's gonna do it. Or this episode.
[1:03:37] Music.