Transcript
[0:00] It's entertainment law update episode 146 to vape or not to vape.
[0:07] Music.
[0:13] Hello and welcome to entertainment law update from Los Angeles California I am Gordon Firemark,
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
[0:30] Beagle and business news stories and share opinions and commentary and analysis and try to have a good time with it. So, what's new with you, Tara?
Oh, gosh. Just fall on into summertime. We had a cool front. It's only gonna be 95 today.
[0:48] You know if anybody hears any out of the ordinary random noises I'm in my home quote
On either side studio today. So, I will try and mute when the neighbor's dogs park and the airplanes fly over.
As opposed to all of the construction sounds at my regular office. So, I I had to go with the Les R of Ebels but glad to glad to be here and and glad to hear your voice this week.
Well, I'm glad to hear my voice too. I've been a little sick under the weather not COVID. I was fearful that it was cuz it,
Felt like that very bad, cold. Everybody says that it feels like.
You know, fully vaccinated, whatever, go went and got the the PCR test a couple times and it's testing negative but I'm still it's lingering in my chest and so that's why we are running a little late on our
Month we would have put it out last week but I couldn't talk at all
I have lost my voice multiple times over the years as well and that that's a tough one for lawyers. I mean
Well and and as one who.
[2:05] But here we are back in the swing of things. So, if I sound a little rough, that's what's going on.
Month or so,
Conversation.
Entertainment law. So, we're gonna cover some of that stuff and and leave some of it out and
And we'll just. Okay.
[2:48] Oh, anyway, is that yeah, I know. How to how to oversell it, right?
And I'll be there a few days ahead of that too cuz I enjoy the conference so much and I think we'll plan to record our next episode while I'm there we'll find a place to sit down and do it,
In person,
In person in front of a studio audience of sorts. We'll
But that would be something I'm really looking forward to and seeing your face in person is always a pleasure so that'll be fun. Yeah and I'm actually just sorry you can I'm looking at the calendar because we may.
[3:42] We may reach out to our friends at the Dallas Bar Association and see if perhaps we could use the balo.
You're speaking on the 25th
26 is the problem. Okay, so that's the day I'm speaking. So, maybe we do it on the the Wednesday of that week or something like that where there's a little breathing room. I'm either side and
From there.
At the pod fest as well so
The technotainment program put on by practicing law institute that's up in San Francisco and I think it's live and streaming I'm not exactly sure,
That should be fun too. I'm excited to be invited by PLI to do that.
That's awesome and and then just add which I don't have anything really upcoming on my speaking calendar but Gordon and I are available
To do virtual conferences and in-person conferences if you're if your group's doing that. So, keep this keep us in mind. We.
[4:59] It it's kinda fun when you've been presenting with somebody for over 10 years. Yeah.
I'm not gonna get into who's who and that equation.
Well, listen, let's get into our stories. First off, we've been talking for months now about the upcoming opening of the copyright claims board. They have started taking claims
And as of last week June 16 2 weeks ago June 16.
They have started taking small claims cases into the CCB they're providing an accessible and efficient option for resolving copyright disputes,
Claims up to $30 thousand we've got a link to the CCB website
With CCB. Gov is pretty easy to remember and I popped over there this morning just to look at what's happened in that last couple of weeks and it looks like there's a docket now of,
34 cases on there,
Okay good cuz I was trying to peruse it and I couldn't easily somehow I missed where the dock it was so I wanted to go see what been filed
But what is it search the.
[6:14] Hey files or something and
By clicking an empty search field. I got the whole list
Six of them I think from
Photographer named Julie some Damanski,
Websites and publications using photos without permission or it might actually be sculpture that photographs of a sculpture in any event,
We'll hear more about those as they come out and.
We'll be talking about it as it becomes issues. And then I would, you know, love to hear from attorneys who are.
[7:04] Filing on behalf of clients. I mean, you know, how's the process working? I haven't filed anything yet. I'm assuming you haven't either. I have not.
Just kinda love to get the feedback and chitchat about it with some with some lawyers as well. So,
Good stuff. Glad glad it's finally happened. I don't know in the 10 years or more again that we've been doing this that we ever really thought it would happen. We're so waiting on the major revision of the copyright law but which we do have the claims board.
That major vision may or may not happen before you and I are both ready to retire.
Well, aren't our our first case that I wanna talk about is sketchworks industrial strength comedy versus jacobs jacobs being the author of,
The famous stage musical Greece and the movie as well.
[7:55] Courtney tell me more tell me more.
They describe it as using a millennial slang and pop culture.
A modern lens and exaggeration to comment on the plot structure issues and themes of the musical grease
The play reexamines grease from the female perspective in the Me Too era
And it exposes how the humor and rape culture elements of grease have an aged dwell
Which controls that original musical,
By Jim Jacobs and Warren Casey sent the comedy group a season desist letter claiming that Concord's permission was necessary in order to perform the play
Seeking declaratory judgement that vape doesn't infringe on any copyright because it's fair use and count card encounter suit for infringement and trademark infringement and write a publicity violations
Both both parties filed motions for judgement on the pleadings and here we are.
[9:11] The court says that vape is protected from copper i claims under fair use they weighed the four factors and help that it's a fair use the purpose and character factor they said despite concords argument that vape was not
A transformative parody that was instead just commenting on society generally the court said no plenty of evidence to show that it was a parody commenting on,
The underlying musical. The characters, the setting, the general plot arc of vape were all the same as the musical grease.
To emphasize a particular plot hole or misogynistic undertone and those kinds of things.
I'm the nature of the copyrighted work the court help this factor cut and favored of concord grease is a creative expression which falls within the core of copyrights
Protections and so on
Copies a publicly known expressive work.
[10:13] The court discussed how a parody will likely use a larger portion of a
Original work due to the need to draw on those memorable moments or aspects of the original.
And excessive appropriation vape needed to use some of the character settings and elements of the original in order to demonstrate what it was being parodied
Lots of the minor details from the original the court said the elements could hardly be considered minor as they help to identify the parody work so the court said
Sketchbooks have made significant alterations to the script to portray these elements from this new original critical light.
And so they said this this factor ways in favor of of sketch works.
And finally on the effect of the use on the potential market for or value of the cop-rated work vape does very little if any harm
To Greece's market value for derivatives as the court they can't be seen as a sequel or updated version of Greece because of its mocking nature the court noted,
There is no protectable derivative market for criticism that's interesting,
And help that even vape even if vape did hurt demand for grease due to its critical nature.
Oh that's interesting. I know I just kinda wanna point out for.
[11:42] It's funny.
So I think that's really important to understand is that the court started with the concept of were they making fun of society in general or were they making fun poking at commenting on
The word grease because concord also made an argument the work was a quote transformative.
[12:13] Notes correctly you know that wasn't really we talk a lot about transformative but the court wasn't even going there on transformative they were really looking at,
On the underlying work and it was a parody clearly commenting on the underlying work. Well, I think that the court doesn't really get into it so much but,
The the very nature of the fact that it's if you find that it is a parody it's by that very nature transformative in a way you've transformed the original into this party.
I think it is. You wrote your right. It's important to know that not all comedic takes on a preexisting works. Our parody often times it's either it's just for the sake of comedy.
Or it's at the expense of something other than the original work. I have this conversation a lot with potential clients.
You know, they wanna make a music video of famous song and change all the lyrics and well, okay, but.
[13:11] Are you saying something about the original song?
Parody seems to be nah not exactly a shortcut but a short hand four fair use was that a fair way of saying it.
I don't know. I I just always tell people weird about Yankovich gets a license.
Any we've talked about weird album multiple tons on
Over the years, as he comes out with new and and again, I think people would dub them as parody songs. Yeah. But
I don't know that they fit the legal definition of parody in many of the situations because he actually.
To do what he's doing. Almost every time there have been a couple of lawsuits as I understand it but.
[14:03] Portraits or or challenges and that he's you know stop using the thing but yeah I mean that's being I think it's partly being careful and also I think weird I was just being.
[14:16] Are contributing member of the music industry in his way so,
Artist writes because he is an artist.
And so he sees the value in that not saying that
And it is hysterical. Yeah.
There there were trademark claims that Concord Broad saying
The likelihood that an ordinary consumer would be misled,
By sketch works use of of greases is minimal,
The the use of grease brand was really limited to an opening credit slide and material stating that it's a live music announced it's a live musical parody of Greece based on Greece and so that was sort of the basis for.
[15:38] Without argument and then they also looked at,
Statutory write a privacy claim related to
Protected parody of work by Jacob's.
Sketch worksmotion for judgement on the pleadings was granted in its entirety and vape is fair use.
[16:12] Yeah and I think it's probably good. Now, I did not look to see if there was any.
Was the opinion if the opinion was published or not if it's president but I mean it gives I think I'm really good outline to be looking at as people are considering,
Yeah and some parameters in current you know current,
Current case law that's relative and irrelevant to to what we may be doing today. Yeah and and this,
I think this analysis really did follow the Supreme Court's guidance from the pretty woman case going back what 30 years.
And yeah it it's a nice outline of how to do this kind of analysis so.
Well done to the disrecord of New York I guess the sudden easter
Supreme court will be revisiting fair use a little bit in the war hall Goldsmith case.
[17:21] So we'll you know we'll be reporting on this and and I doubt it'll change the parody analysis but you never know.
You don't. Anyway, the reason I brought up about the night published was it published? Was it President?
President is because the
And then I got all the way through it and I was like wait.
Is this published? Does it precedent? How can we use this case? That all said. Yeah, well, let's talk about it. Let's,
It is. It's it's an unpublished.
I always wanna say presidential instead of yes
She is in fact the sole owner of the recording copywriting her song. Well, I don't think it's breaking any particularly new ground from.
[18:28] Well that mean there's a night circuit appeals court so there was something to be addressed.
Basically what's going on is that Tony Basil the real the singer who's real name is Antonio Basil Lata.
Is the soul owner of the recording operating her
Song Mickey she saw to exercise her termination rights to the record deal and to reclaim the rights to the song from the label that currently controls that recording still water limited into UK company.
She said that the I'm sorry they said that the producer on the track Greg Mathison should be treated as a co-author of the record.
And as a result by terminating the old recorder she can only claim a share of the record at the rights in the master recording and the label retained what had originally been matheson share,
So they filed an action against her for declare to her judgement following her exercise of the termination rights.
As a producer, he was a co-author alongside her and.
[19:32] I'm sorry that that the other share
Would belong to them.
And the issue on appeal was whether the track was a creative collaboration between the performer and producer or something else in the court concluded,
That in.
First that the author's superintends the work by exercising control,
And third that the audience appeal of the work turns on both contributions and the share of each in its success
Can't be a person. It's sort of indivisible. Answer that but why don't you take the analysis from here?
Exercising control. The court noted that mathis sends rolling producing the recordings and this was
Testimony from the head of the record company said.
[20:41] He arranged and scheduled meetings and recording sessions. He ensured the musicians and vocalist appeared you know.
He booked the musicians and vocalist to come in and his goal was to obtain the best possible performance from all of those
Involved. He did have some,
Satisfactory and commercially suitable. So, okay.
Is is what the evidence was that went into the record. So, this is where I kinda go, okay? That's a good little practice pointer. Did he do something more? Was it actually more creative but they didn't get the evidence into the record or was he really?
[21:31] Scheduling my session and pushing the buttons.
How does a recording a record producer make a record that they I mean establish evident evidence that they were using their ears and their know how and their their musical talent.
In that process. Other than by saying I was the record producer.
You would have to even go so far to say this is what I do in sessions when I'm a producer and this is what I do in sessions when I'm just tired to be an engineer or this in,
Not just an engineer but what I'm hired to serve in a different role.
The court said that the testimony was merely quote a vague description of his role as a producer and inadequate to prove he was a creative mastermind
So, you know, you've gotta put something in there that says, they created. Here's the other part that was just really interesting to me. Was that the.
[22:34] Record company struck the language from its contract.
[22:42] Well, let's see. The court also said that because the company has drug language from its contract with basil. So, this is the record company with basil.
Giving the record company control of the artistic standards. So, she had complete control over the artistic standard between her and the record label.
The record label and he didn't have that creative control.
Part of it.
[23:21] Removal.
[23:28] Setting setting out any of his creative relevant. So
Still water made one final argument that the relationship between a two-strond performer of a sound recording as a for
Additional form of collaboration. They should have just been treated as joined authors. As long as they both contribute and complete their traditional duties and the court said
Because he didn't produce expert testimony detailing his duties or that he performed such duties they just
Maybe there was no evidence to put into the record. It sounds like Matherson wasn't available to testify and so the witness whoever, you know.
[24:07] Maybe that was it. Yeah, it was a record company witness but not necessarily the actual guy who was in the room. Well, and then the record company witnessed he,
Pointing out that these rights of termination are only for the rights in the United States so she has not reclaimed.
[24:27] Via this via this action rights outside of the US for the copyrights. Sure.
But yeah I thought this was a good examination of what you need to get into the record then I went back and saw that it's gonna be an unpublished opinion. But I don't think it changes. I think there's some good tips to pull out of this. If you need to prove it up,
Yeah, well, again, you know, make sure you got the evidence.
The big one that's hard for a lot of people to produce.
[25:09] Not without the proof of the intent to be joined authors and I would say where there's a contract between an artist and a producer.
You know is the is the artist hiring the producer or are they agreeing to collaborate?
[25:24] Significant factor.
So,
In my mind though it's this is the producer artist.
[25:47] I'm gonna use the word collaboration.
Then songwriter A and songwriter B collaboration where we're looking at the songwriters which I realized we've had cases about joining authorship on songwriters too.
[26:05] Again said talking about songs not this case. I think that's pretty factual.
With a essentially a lead sheet and and the lyric.
And sometimes the the songwriter is much more of a composer.
[26:36] Yes and so that that in that situation it's like say we go into the studio and you're right you've got the lyrics and you've got a general maybe melody but you don't have.
Everything.
[26:51] Producer is actually producing and adding, adding in these other elements and yeah, probably is a joint work, but we could also have the situation where I write the lyrics, and you write some music, but we don't write them together
But then we wanna put them together. Or we're in the same room writing together. A bows are all questions of is there an intent to combine this into one work,
Oh I think that's probably a good reason why something like this might not be published so that you know we we do rely on factual analysis in each instance rather than,
Yeah.
Prevailed in the 11th circuit and suffered in the fifth circuit to a certain extent the Texas
That has been blocked now by the Supreme Court at the end of the last month the Supreme Court blocked a Texas law.
[27:51] Aimed at social media companies which were punished those platforms that remove political speech. The idea was to prohibit
Large social media companies like Facebook and Twitter and those kinds from blocking content based on viewpoint.
And Governor Abit of Texas maintained it was a justified response to
Likely violations at the first Amendment but then the fifth circuit group of heels allowed the law to move forward.
[28:27] And then the Supreme Court in a the narrow five four margin vote.
[28:36] With a little bit of surprise that just
Joined in the descent along with the conservatives that wanted to let the law take effect. That law would essentially required posts from hate groups like neon nazis and the KKK to be left in place.
It's opponents of course pointed out that the constitution protects the social media companies rights to manage the content on their own
Stories to publish in which not to.
And the Texas Attorney General would have been,
Able to enforce those violations,
And each platforms internal policies on policing their content,
Have long been seen as the kinds of speech that's protected by the first amendment. So, Texas is trying to change all that with this law
Disagree at least for the moment though I think that this was a sort of temporary ruling while they wait for.
Locate to ripen and come there.
[29:58] Any way, every other year.
[30:07] 2020 end of 2021 midsep to easily round September 2021 is when most of the walls go into effect after the end of the session so you know it's funny why I went and read I can't tell you a red word for word all of the bill.
And I will say there's parts of it that I might.
[30:25] Oh, that kinda seems like good common sense as far as yes, you should have a way on your website for people to
You know or or a public disclosure of some some additional information but then I totally understand this is a private company,
That are we.
[30:52] Infringing upon those first amendment. Right. Or I feel like there was parts of that senate bill.
That probably could be enforceable. As as.
[31:05] Consumer protection lawyer but I feel like they're reports that would just kinda fall under consumer protection law. Sure.
It's okay to take down which makes me think if you're putting,
Truly hates beach up isn't that against the wall and that would be taken down but somebody's still making a subjective.
Decision on what goes up in what stays down.
[31:38] Yeah, I mean. So, it's interesting. I didn't, there wasn't a discussion of preemption but there is also
You know section 230 of the communication season see act,
Completely different ruling on basically the same issue I I forget which states law that was.
Oh, I don't know. 11 stars, Florida, the 11th circuit. I don't think so.
Anyway, it doesn't really matter. So inevitably, we will see a the split of authority becoming a bigger issue as other.
Other war is going to affect.
And so that as well is that.
Can I just do that? I was gonna say if that's the case doesn't BFCC have jurisdiction?
[32:47] And sometimes I wonder do we just,
Get something ripe to figure it out. I don't know. Well, I sometimes think we create laws to make up.
[33:01] An image in public happened, you know, some sort of grandstanding and and lately in particular, I think that in the political
Arena there's been a lot of that kind of grand standing to
Whether it's really constitutional or not I think a lot of the legislation is coming through that it you know they know going in it's not constitutional but it's makes the right statement to the public to the voters so.
Maybe I'm being cynical but I don't think I'm I'm justified.
Missed it on this but I even remember hearing this in the news. Oh, really? Well, I do,
Hit me well.
Well, I mean, you know, and I think Governor Rabbit knows who his continuum his constituency are.
On a broad strokes level and,
You may be silencing yourself. Yeah.
So yeah give it a couple of years and it'll turn around and come back at you. That's right. Yup. It will it will wash and it may be set up and I have not gone and read the.
[34:30] The supreme court portion of it just to kinda be interested there to reach the descent and see what just taken had to say
That's not gonna be enforceable.
Awesome.
Yeah. Well, it sounds,
Verdict in in the southern district court in the eastern district of Texas let's just get all these Texas cases in okay.
The court found Dan Guilty.
[35:26] And it's funny. Where are they guilty? I don't think they are because this is a similar level.
Been fringing Gibson's flying V explorer ES and SG body shape trademarks I always think it's really cool to search the USPTO for design marks like that on the body shape as well as for their dove
Wing headstock design.
Gibson waited a long time to start sueing people. Yeah. So they found Sutan May 2019, seven 1 million dollars in damages alleged against it,
Armadillo
Enterprise the parent company of Ding guitar and Luna guitars accusing them infringing those seven different trademarks.
[36:15] And the claim being, you know, sometimes are just too common. These are basic designs. Many other companies have been using these very similar generic cheat.
[36:29] Gibson you've been selling some of these guitars since 1976.
[36:35] And you waited and waited and waited and waited
Have been prominently used for years and years.
So, anyway, the court looked at it Eastern District of Texas Sherman, which if we any patent lawyers listing us or tons of pat litigation happens.
The juror jurors get a jury trial rejected armadillo's claim that the Gibson Designs and Questions were generic and unprotectable
They found Armadillo guilty of infringing the body-shaped trademarks. However.
[37:21] Gibson waited too long and it was inexcusable and caused undo prejudice so the big.
[37:35] So, that didn't even come over. The lawyer going to court that day. That's winning the war and winning the battle and losing the war.
Plenty of other ongoing disputes at Gibson has. I mean, obviously, at some point, they decided, they had to start.
Protecting the brand I think that a few years ago Gibson was acquired and so this may be new company managements new approach to some of this.
[38:01] Yeah and I'm not a guitar person. I mean, even though I know,
There would be guitar shapes that I would look at in and I think no you know that's a gibson.
[38:14] Or you know it's a PV.
I saw I don't know. I mean, did they, did they even win the war or win the battle or if they going to keep fighting these because heritage guitars has alleged that Gibson is using its trademarks
And threading
And suing what the threat of litigation monopolising the guitar market so I guess this is another case there previously been a confidential settlement between Gibson and Heritage
But Gibson has recently cancelled similar deals with heritage sisters companies and made threats of litigation against heritage so we probably haven't seen the end of Gibson's litigation over there.
Their design trademarks.
[39:09] Accusation was allowed to stand so far the the court in that motion to dismiss.
Ruled against Gibson so the case is gonna go forward about whether or not this
Use of trademark lawn and threats of litigation constitutes a monopolistic behavior in those kinds of things. So, yeah, and that's the heritage case. Right.
So, not the armadillo case but the heritage case, yeah, threats of a monopoly in the guitar market.
Hey photos designs so we will be watching that
Yeah. See what see what happens.
The week that the verdict came down so I my students and I actually sat in class and watched them hand down the verdict which was
Actually slow moving it his
And it was a great way to teach defamation you know.
[40:26] You know,
We talked about the case earlier on in in episode 127 the case was heard in.
Fairfax Virginia.
I'm not gonna repeat the whole accusation but basically she referred to herself as a survivor of abuse in
You know, definitely suggesting that it was him.
Plus some.
Punitive damages weren't there. I.
[41:28] No it's 10. 3 hours 10 something in his favor and then there was a counter suit by her she was awarded two 1 million dollars in damages for some statements I guess were made by his lawyers,
So herds, allegations included that there was punching, headbutting, and dragging by the hair, several instances of sexual assault.
He was suing mainly about this this op ad from 2018 which never mentioned him by name.
But referred to their marriage during the period of 2015 to 2017 the jury found
He had he had defamed her when his lawyer accused her of damaging their pet out of damage to their home.
There was a trial on the same roughly the same fact in London.
But that was never brought up in the US case. So,
She prevailed he did not succeed in his claims for defamation but the jury here found definition.
Against her primarily. Hey, do you think?
[42:37] In the UK case it was a trial it was a bench trial only a judge no jury.
It sounds like that from yeah so I I just wonder I mean I'm just trying to think of things that are different between between the two of them and that to me seems like one of the
Biggest
In an article in 2018,
Regarding a particular incident in 2015 I accept her evidence of the nature of the assault he committed against her
So
[43:34] You know not defamatory in England but defamatory in the US,
The elements of publication of an actionable statement
So, in order to successfully revail, they have to prove all those helmets. In England, the elements of definition are.
The publication of a statement statements of or about the complaint the claimant
That the statement was defamatory to the claimant and that the statement met the threshold of serious harm that is a publication has caused or is likely to cause serious harm to the reputation of the claimant so
I guess in the in the UK case the judge was saying it wasn't to famatory,
And hear the jury well you know they vapors nice to get a second crack at presenting your case right yeah his his team obviously.
[44:34] So what had gone wrong in that UK trial and.
While I was having made a false statement and.
[44:52] You know accusers sometimes actually being the wrongdoer.
And you know, he was able to, as a good actor, what it would, he was able to play victim in this case. So,
Yeah it was it was a pretty sensational trial,
You know just what might have been coming up on entertainment tonight after the yeah after the after that it's 6 o'clock news went off or access Hollywood whatever it is that comes on.
I also let you know it might be on during the day and if I was in the house or something I might you know,
Taking my lunch break on my turn it on or whatever but really not a whole lot. I just I get beat down by it to be honest with you. It's not it's just not,
Legally exciting to me. Right. Right. Right. So, that's just that's just me personally. Hi, I would have paid very little attention to it as it was going on. But for the opportunity to use it to teach this,
Hey Facebook,
One of my sister-in-law's was just glued to the TV. I mean, she knew way more about,
I don't have time for this.
[46:14] But but you're right and it kinda at first I was like how are they getting a second bite at the apple well it was two different claims of defamation one published in the sun and one published in the
Washington post I think the US
Yeah the US 2018 opioid in the Washington post so I mean that's why there's a suit in both countries because it was two separate acts.
Alleged and or actual
Fraser. And and you know I I caught a bit of it on YouTube and so mostly the YouTube clips were you know pointing out how one side or the other had either done a great job or a terrible job on a particular
Part of the examination of a witness or something like that and I don't want to make any judgements about the quality of the legal,
Teams on both sides and I think they're both really good lawyers but yeah you know his team.
[47:04] Definitely won the day.
Doesn't seem like it's a couple of years back talking about this litigation over,
Special effects software,
DreamWorks movies and things like that.
Is that right? Yeah. In LLC is the owner.
After their own in litigation. Is that right? Yep.
So Mova was used by a bunch of different studios Disney,
20 century paramount lots you know all the studio when they put on animation stuff they were using or and,
Live action with animation or CGI they were using this stuff but they had done it under a license with a party that didn't have a proper license to the software.
[48:12] So
Was that there was this contributory infringement that it's program called contour originally.
Is an original literary work of authorship fixed in intangible medium of expression when it's stored on a computer's hard drive and so they wanted to hold the studios vicariously libel for that infringement,
By the the design house using pirate copies of the software.
The studios wearing a position to police and or had the right ability to supervise the control.
And control the performance of the the vendor which was digital domain was the.
Weirdon had Juana lawsuit against digital domain over,
The over the piracy but now they were coming at the studios. So, back in 2021, Reardon had successfully argued,
To the court that some films by Disney and Fox had benefited from Mova.
Those films being.
[49:24] Guardians of the Galaxy Deadpool Beauty and the Beast and so on.
Regarding the causal nexus causal nexus between Mova and the films.
Successes based on scam evidence that rearden had presented mainly that just feature at some press releases. Those releases and featureettes were largely incidental the courts had,
And that the main exception here was Beauty and the Beast which was more extensively tied,
To the Mova software in press and feature us so because of that theme next is the judge now reversed himself as to Deadpool and guardians of the galaxy but not
Beauty and the beast.
Something more there.
[50:17] So
[50:22] I think it still has to go to trial on damages. Okay.
[50:29] Yeah so I mean that's super interesting.
[50:34] I mean you have technology that makes life easier.
In a very simplistic terms. It makes the job easier.
Departments that would use it.
[51:05] Compensated aside if they had a
Secure all of the rights I needed to use the software.
[51:22] Which you know the represent that representation is gonna be in the contract between digital domain and Disney or,
Between whichever companies and I presume some indemnities as well.
[51:34] But,
That vendor that didn't have the license already it seems like AA real stretch and I guess that's what the court saying here in most instances.
[51:58] But even with beauty and the beast isn't the reason for the success the story and the design work done by Disney before it was ever handed to.
[52:07] Digital domain or whichever company I.
[52:18] Yeah. That's like saying I have.
And because it made my life better.
[52:33] Well, I mean.
[52:45] Well, I mean, it's not creating a copper edible work because it's a computer.
Software doing it and we've had those other rulings about non-human.
That is not copyright if you're not human authorships copperight companions so.
Yeah we'll see and I think it's maybe we're gonna dig into the mid of reading. Yeah. Reading everything. It really understand cuz I'm still uncleron exactly.
[53:13] How does this still pending for beauty and the base? Contributory infringement cases have always neck inventory vicarious liability cases in cooperate of always been
Kinda hard to follow the the reason but
Yeah we can go that do a deeper dive anybody's interested can go do a deeper dive and I'm sure we'll hear more about this when there's a final ruling against Disney on.
On the.
[53:42] Oh, yeah. So, we're all there. There will be an appeal. Yeah. Yes, we are long ways from over. Yeah. Okay, so I have to know Gordon, have you been to see Talk Gun Maverick?
It was the first trip to a movie theater in since the pandemic began we took my,
The weekend opened and,
If you look at it now it it is sort of a,
Pace of things in the original movie in some ways. Obviously, the action scenes are very full of action.
[54:26] He didn't love the new movie it's very interesting generally those of us that loved the first movie and who didn't,
He may also just be a teenager trying to be aloof,
When did the first one come out? 1986, I think so. Okay, so I was in the high school, start a college when it came out.
[54:52] We were talking about this weekend and she's a few years older than me. She goes,
It was as good as the first one it just didn't have all the sex and I said yeah well that's that
That's true.
His age to be doing a steamy scene in a movie I've maybe
Before disagree with you. Oh, yeah. I'm just saying that thinking I'm thinking like the studios people might have been, I don't know. You know, he, yeah,
I loved it. I loved it. I highly recommend it. Go see it on the big screen with good sound. Yeah.
It will not disappoint. Right, so we saw it in a theater that has this new what do they call it? X four, technology, or or,
We went to one that has something but I wanna go see it again with an even better sound system. It had some kind of upgraded. I mean, we could kinda feel it in the seeds but it. But there was like this visual thing, you know, it wasn't, we didn't see it in an Imax.
Studio. Theater.
There was projection on the sidewalls of the theater as well.
[56:21] Okay, I I definitely go see again. I mean, we went where it was like a wider screen and it has some other kind of sound improved but
I'm I'm going back again to see it. Yeah. Yeah. So.
You know what I mean? Hey,
Teenagers and early 20s I'm like well the i thought they did a really good job of bringing in that new generation of talent that would appeal to that market.
[57:05] I'm not with us. Oh, okay. So,
I don't know if you've seen it or not. I have to ask him. Yeah.
It was basically the same movie plot point by plot point.
I don't wanna do any spoiler alerts for anybody but I I thought they did a really good job with the extended character development of of Maverick and one of the other key people from the original one.
Cuz it kinda all made sense.
Was based on an article. Yeah. Written by someone else and that's what we're that's why we're talking today not just because we went back. Right.
So there's original magazine story from 1983 from California Magazine was written by a hood unae it was entitled top guns and was about the naval training base and focused on certain of the pilots and their experiences Paramount
Snapped up the rights to the the article.
[58:25] Is by the airs of that author,
They claim that the rights to the article reverted back to them in January 2020 when they sent a notice of termination.
And they claim that paramount ignored deliberately ignored their notice of termination and consciously failed to reacquire the necessary rights.
Now they're claiming that the movie was
They claiming the movie was completed on May 8 2021 more than a year after the rights to the story had expired but Paramount claims no this the sequel was basically done
Prior to determination date prior to the beginning of the pandemic really,
Is so they should take into account the top gun maverick had several delays due to COVID-19.
And they will pursue their defenses aggressively of course. They will assert that the facts in the cop write article or not subject to coppery protection.
Question with the original movie was actually derivative of the article or whether it was just purchased to sort of you know take it off the market,
And they actually gave the writer only a suggested by credit in the original film.
[59:48] And even if it was a derivative work they say there's a question whether top gun maverick could be considered derivative.
If paramount didn't rely on the article to create original elements of the sequel then it would likely not be derivative of the article that I'm a little hard, you know, like I said, it's the same movie. Yeah, I mean, it's, there's no question that,
Top gun maverick is in my mind riviev of.
[1:00:17] Can you be derivative of one source and not gravitate.
[1:00:30] That's more general and one's better very specific mission.
Wow yes and if my recollection I have not come back and watch the original top gun which I I need to,
Pretty much,
Anyway.
There, what was recorded? In course, I can't see the actual.
Document that's recorded with office but I can see the summary which is at the airs did file their notice,
Day there January 23 2018 and it was recorded with the copyright office on January 29 2018
23rd 2020,
Then there's there's not anything I can do about it. Well, so that could lead to an interesting trial on the facts of when is a movie completed?
[1:01:55] If we go there, you know, is having filmed everything but not finished editing. Is that complete? Is how far into the editing do you have to be? Is it
Like you could screen it for audiences tomorrow is that what you have to have you know so we could end up into this really sort of factual.
Weather or not.
It's only been published for a month. So, we'll see. Yeah, I mean, who knows?
We know we'll have something to talk about.
Oh, okay. Interesting.
[1:02:51] Wow, that guy filed and registered really quick. How do you push that through?
Maybe they paid the extra money for.
[1:03:14] Oh they had a preregistration hold please.
[1:03:19] They did file pre-educate your.
Five 2018.
Projected publication.
[1:03:40] Oh, interesting. So, they did. Let's support your registration. Here we go. Description of work. Maverick.
The naval aviator returns to top gun to train a new class of all star pilots for mission to blow up a nuclear enrichment facility sorry I'm giving it all white that is guarded by the next generation of Russian plane starring sewn and so forth
Album that's wow,
The termination
That's what it supports. Yeah, I mean, of course, there'll be production reports and things like that.
Yeah. Well, yeah. Anyways, lots of fun. Hey, if you like to go look at the copyright office, go to go to the US Capitol office and google Top Gun Maverick and you can see all the stuff they filed. They've actually filed all kinds of things. One sheet, teasers,
So, anyway, just a little educational lesson. Alright, you heard it here. Real-time research from Tamara.
Well, we've we've been to the danger zone. Yeah. Any air you've told me more?
[1:05:01] And that's another episode of Entertainment Law update under in the cam
Time with us. Thank you listeners. And if you have feedback for us, we would love it if you would leave it for us. Use our website Voice Widget at Entertainment Law update. Com
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T Bennett Law. Com or create Protect. Com. I will take you to my website at Tamara Bennett on most social media handles in Gordon, you'd see him.
[1:05:44] You made it through. I'm so glad we could get together this time. I made a lot of use of that cough button on the on the mixer.
From Los Angeles California I am I am Gordon Firemark and my website Firemark. Com the email address G Firemark@Firemark. Com and on social media you'll find me as G firemark so let's also say thank you big shout out to our crack team of volunteer contributors managing editor John Janiceek
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[1:06:33] Music.