Transcript
[0:00] It's entertainment law update episode number 147 for July 27 2022.
[0:09] Music.
[0:15] Hello, hello, welcome to entertainment law update from Los Angeles, California. I am Gordon Firemark.
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
Business news stories and share opinions and commentary and analysis and try to have a little good time with it as well. It's nice to hear your voice timer. What's new?
Oh, not too much. Just making it through the summer, enjoying, you know, the death valley baking temperatures. Of Texas and,
You know, there you go.
High temperatures in but it's a dry heat.
For fires you you guys know and the homes that burned were.
[1:17] An hour or so east of where I live but you know that's not something we're used to
Spark would catch a
Grass on fire and take homes so.
Being, you know, the way the planet is busy evolving.
[1:48] And be worried about our homes in our neighborhoods and things like that.
[1:55] Really cross my mind and and so but yet it is so I'm I'm thankful that no one was,
Inch or well. I'm sure there were some sliding. Didn't really know dads and no serious injuries but not not something that normally happens in this protest. Right.
Well, speaking of that part of Texas, we have a little bit of a calendar note. I will be in Dallas for the podcast movement conference at the end of August. I'm giving a talk on the state of podcast law.
I think it's on the Friday the 20 whatever it is of Texas.
Of text of August.
In person face to face,
A little announcement in the feed so stay tuned and we'll let you know we what we work out.
[3:03] Yeah that sounds great unless everybody wants to come to the metropolis of Lewisville but they probably don't
Well, depending on traffic, it probably not 20 minutes, a hour an hour, north of Dallas, so.
But we we will have a great fun spot to to get together and hang out.
[3:29] I'm looking forward to it. I'm looking forward to the trip. Although, from everything I'm hearing, traveling has become a real.
[3:38] Problem.
Her flight that was expected to arrive back in Los Angeles you know,
Best connections and the whole routine.
Flights getting cancel left and right it's really challenging so we'll we'll see what happens.
You just gave me a perfect use case for air tags. I've been wondering what are these things for? So that you know.
Okay sold. Well.
The Ed Sheeran situation as you may recall he and his collaborators have been accused,
When they wrote shape of you back in 2016 the earlier track was oh why,
And this is a UK based case the allegation was based on a musical segment shared in the two songs in which chuckries lyrics said oh Y oh Y oh Y.
[5:07] You know how it goes. Anyway,
Chakras song oh why and in any event did not deliberately copy that OI phrase.
From the OY hook in in creating the song so,
In UK lawsuits as in many suits in the US the losers generally do have to pay the costs incurred by the winners in pursuing litigation but Chaux team argued that their client shouldn't have to pay Sharon and his lawyers because.
[5:45] Despite losing the case.
Yeah, they had their, they're very compliance but the judge rejected those arguments saying, no obligation.
For Sharon to have gone that far because Chuckry was positively asserting infringement and had given,
No disclosure at all in support of the assertion that chair and had access so you know no evidence of access
Allow us to discover that evidence but anyway the judge has said no jokery needs to pay insurance sides legal fees and costs,
Ordering him to pay 916200 lb that's about one. 1 million US dollars so.
So, that's interesting. So, the the argument was.
[6:42] Well I've I've I've.
[6:50] Well, yeah, I mean, I guess, it sounds like a part of me that's kinda like, oh,
You didn't give us the discovery we would have needed to make our prime facial case and now because you didn't give it to us.
We're supposed to pay your fees.
[7:20] Sharon was supposed to fry that but you know.
We didn't have a way to give that evidence cuz the material we needed was,
Not revealed and discovery. Now, I don't know whether they asked for it properly or.
I guess.
[7:55] Yeah, sure though. You're in hate. You know, what's your process when you're sitting down to write? Do you have a tape recorder running or do you make voice notes or or whatever and if so, let's see him.
Yeah. We don't have enough information to know. Yeah.
It is. It was a mitigating effect that may be attorneys. These would have been less. They wouldn't have gone this far in the trial if perhaps if they'd known this information.
[8:24] We might have been able to save everybody a big,
Big asshole if we knew. Yeah. So, yeah. Interesting. Yeah.
I think it's a day. I think so too.
Yeah so the Ohio State has,
I register June 21 2022. They had applied the University of Ohio State, had applied for TAG in 2019.
Fashion brand has also a registration for THE.
With what I think is really interesting a channels of trade,
Description as part of how the mark is used because the in relation to shipped Ohio State clothing is only gonna be used in the channels of trade for
Collegiate and sportswear something along that line.
[9:36] Versus fashion which is the Jacob's brand,
Because they're doing all the things that I tell clients to do.
The in the neck in the collar of their t-shirts it says in big capital letters the.
[9:59] Instead of saying, hey, is your beefy tea? They're using it as a brand in a fire. On their website, you can go purchase the clothing where it's got the,
Brand of so and so and
And T shirts and caps or whatever it might be. So, in addition to, we just think this is this is an interesting topic. I also put into the show notes article from my from my blog about how to use a trademark on clothing item. Yeah.
Because it is more than just putting big bold capital letters on the front of a T shirt that says THC,
Yeah, that ornamental or or. That's right.
And decorative and you've got to use it as a branded dinner fire and and the Ohio State has done that,
Walked them through precisely how to set this brand up. So, kudos to them.
Trademark Jane. It does seem like this has become a bigger issue in you know the last decade or so as the trademark office has.
Made more of these failure to function as a trademark.
[11:18] Refusals and so yeah good smart brands are doing just what you said and,
The is a smart brand.
[11:37] The full mark STHG. I don't know. Maybe if you wanna put out dishwashers under TAG you could,
Because that's not.
I think a related product or service.
You know, university branded merchandising. So.
Come in the same market,
So they figured out a way. Yeah, they figured out a way to coexist for sure. So,
Oh yeah.
And plan if real is a porn company and it's been using the mark fire FYRETV in commerce since about 2008
Conventional spelling FIRETV,
In Commerce since 2012 and connection with their television,
And real filed suit against Amazon saying that Amazon's allegedly similar mark is causing confused consumers cashmark.
[13:05] Working with rented lips today or something.
[13:15] After discovery the district court granted summer judgement to Amazon and real appealed it's the in the 11th circuit where the court explained.
[13:23] That the case addresses the application of the seven likelihood of confusion factors
In these reverse confusion cases those factors just as reminder are one that distinctiveness of the marco ledge tube and infringed to the similarity of the infringed and infringing marks three the similarity between the goods and services offered under the two marks
For the similarity of the actual sales methods used by the parties like their sales outlets and customer base five is the similarity of those advertising methods
Six is the intent of the alleged infringer to misappropriate the proprietors goodwill and number seven the existence and extent of actual confusion
In the consuming public,
Familiar forward confusion cases but there are important differences in how some of the other marks are analyzed and applied and that stems from the fact the the harm and the theory is a little different. So,
And I think this was a case of first impression for the district court and maybe even for the appellate court applying that the Dupont factors in the,
In the reverse confusion. So, just a little more back history, fire, FYRE,
Hey.
[14:47] Similar related,
What is on the Amazon Fire TV for for their services. So, but both sides have trademark registration. So, that wasn't really brought up in in,
And the case are in the summary but.
[15:12] That makes sense. So,
In the typical forward confusion case the factor focuses only on the conceptual strength of the plaintiff but in these reverse confusion cases
Arguing that the defendant is attempting to profit off the planet's goodwill rather
The planet is asserting that the defendant in this case the junior but more powerful mark user has been able to commercially overwhelm the market and saturate the public conscience,
Through its use of the mark and that weekends and diminishes the value of the senior users now sounds like that sort of a dilution kind of an argument there,
Pushes this factor firmly in real's favor.
[16:02] Yeah and then they also looked at the similarity of the marks and I think this is really important for attorneys to understand as well as brand management folks to understand is.
Marks are compared by their appearance sound and meaning and the manner in which they are displayed so the different spelling of fire,
Doesn't matter.
They they sound the same. So anyway, after reviewing the record, the court said the marks are nearly identical.
If there's a if there was a little bit difference in the font doesn't make a difference
Amazon Fire TV.
[17:05] Similarity of the marks weighs in ways in favor of real. I must have rented my lips from the same.
To keep my house at 77° the air conditioner may kick on. Yeah.
Okay. Well, on the similarity of the product, the court said that the analysis on this factor is the same regardless of the
Theory of confusion and it looks to weather the products are the kind that the public attributes to a single source,
Two parties.
In which it's direct competitors offer those products streaming,
Hardcore pornography directly on the setup boxes as well. So, the court said a reasonable jury could conclude that Amazon
Decided to quote bridge the gap and offer a standalone set top box dedicated to streaming hardcore pornography so that factor ways heavily in favor of real networks.
[18:14] Yeah and then they looked at similarity of sales outlets and customer bases which is a little bit about what I was talking with the
Ohio State in Mark Jacobs is this kinda channels a trade and and sales outlet,
Of this factor is the same in forward confusion and,
What we have here reverse confusion amazon's fire TV is available everywhere on multiple internet sites as well as in brick and mortar stores around the world
Fire FYRE TV on the other hand is available only in one place and can only be purchased one way I can see her must make his way to fire TV. Com
And then the court concluded that this factor actually weighs in favor of Amazon.
[19:02] And then we get to the similarity of the advertising,
Here we look to each party's method of advertising and it's concerned with whether there is a likely to be significant enough overlap in the readership of the publications in which the parties advertise that
That a possibility of confusion could result interesting that it talks about publications and leadership just sign the times that do pond factors came from a an older.
An earlier time period. Anyway, this inquiry is the same in both forward and reverse confusion cases. Amazon advertises on their home page on television, print media, in store displays, and and all the times relevant in the lawsuit real advertised
The fire TV and fire box only on.
The internet or the other media dedicated to similarly purient content,
Therefore the court said this one ways in Amazon's favor,
Everything they also look at intent reverse confusion cases are different from forward confusion cases so.
[20:09] Fire TV FYRE is the senior user of the market. Amazon is the ginger. They're the second one to pop in line. So, in reverse confusion, the concern is that
Will purchase the senior user's goods.
Under the mistaken impression that they are getting the goods of the junior user.
[20:34] Fire TV with a Y they're services thinking I'm getting amazon via TV that's a concern
Real is not suggesting that Ammonson chose the Fire TV mark with the intention of siphoning off reals goodwill
Real claims by amazon's use of the fire TV mark,
Real lost control over its own.
[21:01] And make the courts have you know they could this court basically did a survey of what other circuits have done on this particular problem.
Reverse confusion cases the third circuit
Of the intent factor in reverse confusion cases but has continued to use it
In both sides of both kinds of cases and the ninth circuit modifies the intent factor,
Standing at the rule of is that evidence of a specific intent to deceive is not a prerequisite to a show intent in these reverse confusion cases
That initiative in 10 can come from a wide variety of sources more generalized intent to obtain market saturation or to proceed with the adoption of the mark under circumstances where there was constructive knowledge of the plaintiff mark and the record evidence in this case established at Amazon,
When it launched the fire TV it was aware of the fire TV the the plant of trademark registration and specifically
Tried to flood the market with advertising to lower awareness.
[22:21] Of reals similarly named Mark so the court said this in 10 factor ways are heavily in favor of real,
And you don't have to show actual confusion in in
Forward or backwards looking at cases of confusion but there was evidence that went into the record on this there were some confusion on Twitter
From a real customer as well as from an Amazon customer thinking that somehow these were related or purchased
Entities
Reverse confusion and look at the fact.
[23:08] It concluded they weighed heavily in favor of real so the court reversed the district court's order granning summary judgement to Amazon and reminded the case to proceed with the trial.
So there will be more to come and really kind of a case of like I said case of first impression in this,
District in this appellate court as to what is reverse confusion look like and
Could we would there be a rebranding.
[23:36] Wow.
[23:47] Yeah, good question.
I guess is at some point there will be a settlement of fires to your Amazon will. You know, pay fire. Excuse me, pay real.
To maybe that maybe it'll be the other side but changes the name you know
Yeah. I think so. Well, assuming that there's a trial or whatever, yeah, exactly. I mean, I guess that trial, anything could happen in the jury could come back and say, yeah, you know, Amazon.
[24:31] I don't know. Yeah,
Yeah.
And increase for publishers and songwriters. Back in 2018, the copyright royalty board raised the headline royalty rate
Paid by streaming services to music publishers from 11. Four% to 15. One%,
For the period from 2018 to 2022.
Four of the streaming services, Spotify, Amazon Music, YouTube, Google, and Pandora. Appeal that decision claiming that that increase would be catastrophic to their businesses.
Notily Apple Music was not involved in these proceedings. The copper royalty board has recently affirmed that prior decision to raise the royalty rate to 15. One%,
And a similar decision will soon be made with respect to the next period 2023 to 2027.
[25:28] The NMPA the National Music Publishers Association is trying for an increase as high as 20%.
[25:41] And I'm still I I tried to find but couldn't find it,
Hey you know it's 11. Four to 15. One of the headline royalty rate.
I couldn't find the definition of headline royalty, right? So, I'm still not exactly sure what that percentage comes from.
Obviously, if you've looked at any of these statements, it's still not a whole lot of money. Yeah. But it was a 44% increase. So, that is a good thing.
[26:10] Hey it's still way behind on what needs to be paid but we will we will keep our fingers crossed for an increase,
So Sasha Barron Cohen.
What or episode number it was but,
Actor comedy commented well I don't even know what to call him exactly
Borat.
All of the above. Really? Yeah. So, he's this is Borat and Dolly G show and in this case, the his
2018 series called Who is America is the subject matter of of the,
Situation. Here that we have a lawsuit that started,
When Cohen made light of the sexual misconduct allegations against Roy Moore,
Who was Alabama? Is that right? And Senator Vermelo?
And during that campaign multiple women came forward and accused him of sexual assault he denied those allegations that were never any criminal charges brought against him.
[27:33] But Colin still took the opportunity to make fun of it on the show in the segment
Terrorism expert general
And while interviewing more he pulled out a fake piece of technology and when she claimed it could text pedophiles,
No more cut the interview short attempted to sue cohen claiming that the disclosure agreement I guess it's a non disclosure agreement he signed before appearing on the show,
Was unenforceable
Because it was obtained under false pretenses
And the district court there in southern district of New York dismissed the lawsuit last year more now appealed this is the second circuit.
[28:23] First off more couldn't claim that the standard consent agreement he signed before appearing on the show was unenforceable in that release waiver release agreement that more signed there was a clause in which he,
Disclaim the existence or reliance on any specified representations and agreed that he's not allowed to claim that he was defrauded in entering the contract
In reliance on those representations. Boy, if I saw that release and was asked to sign it, I'd say, well, wait a minute. What are you telling me?
This pointer then I'm going
I just don't know that it's appropriate in every release you have somebody,
And maybe that sorry maybe that's the wrong terminology but but yet that is what he's,
Setting a pretense for the interview and then using it differently.
If you sign a release, blood worded like that. Well, I guess you.
[29:31] Get out of that release. You're a competent adult. You should have read it. These are confident.
If he's not reading these things or he's reading and then signing him anyway then that's on him
The court said the pedophile detector was obviously a fake thing and if the segment was clearly comedy and then no reasonable person viewing this could possibly believe that it was an actual functioning piece of technology. So, in a defamation case, you know,
Truth is a defense but comedy and a you know it has to be factual in nature that people are gonna perceive as real.
[30:12] So more says he's gonna appeal yet again we'll see. I don't know where to go from there. The Supreme Court.
[30:20] Oh, sorry. I had my microphone. It's there. Yeah, I I.
I guess we could maybe there's a split of authority somewhere that some states say well there's some jurisdictions say.
[30:38] We don't care if it's comedy if it's harmful to reputation. You know, but I don't think so. So,
You know,
You know, it it rubs me the wrong way but it's free speech. It's, you know, what he's doing is certainly within the bounds as I see it,
You know, this is.
Let the buyer be working on tour if you're signing a release read it first same thing happen with the borrower movies.
I mean, doesn't he still look like Sasha Barron coin in these? I mean, would you not?
Recognize him even if he's in for costume,
Go over the top with the makeup and the costuming so
I guess it's feasible but again, you know, if if a producer calls you up and says, hey, mister Moore, we wanna have an interview with you with this Israeli.
General or whatever and you know we please agree to sit down for this.
Israeli TV show or whatever,
And who knows maybe Roy more just isn't familiar with Sasha American parent calling a wooden surprise me.
[32:03] I think.
Set him up for embarrassing moments and,
You know this is the pattern.
Do you watch that? No. Shirley, you and your kids watch that.
Poor lifehood friends.
Who play jokes on themselves and others? No, I mean, there was that whole, I guess it's still around the movie and and there was a series of
It's a very similar. Alright, well. Alright. So, moving along.
[33:04] Jackass. Oh,
PG 15. Alright. Okay. Yeah.
You said you weren't gonna sing.
Having changed their term of copyright protection.
[33:37] You know, going back a long ways. They've opted now to 70 years life plus 70 years which brings them in line with their major trading. Partners
The current term or the the previous term of 50 years wasn't compliance as I said but
When Canada entered into the Canada United States Mexico agreement.
Back in,
July of 2020 Canada agreed to extend its term to be consistent with what's going on in the US and I guess Mexico and it was given a couple of years to implement the,
On June 23,
As I think it was July 1 it went into effect the amendments provide for no revival of copyright so works that have already entered the public to main will stay there.
While those that are under protection will get the extra 20 years that extension,
No it's not yet enforced it will be implemented on a fourthcoming date set in an order from the governor in council on
Government in Canada has some interesting names for for the offices. I think the goal is January 1 2023.
[34:49] I think it's a good thing. You said a burn conventional long time ago. It was 1989. Is that really such a long time ago that.
Or at least,
Burn convention meets when you're making me feel old.
Yeah I was just when I was finishing up college so yeah so I think it's a good thing I I mean I don't know why there are opponents always just like when I'm when the US they,
Did this and had the Sony Sunny Bono extension of carpoolite protection is that,
Anybody who listens know that I disagree with that. So,
12 years we've been doing this. Right. I think it's a good thing that it's been extended.
Making,
I'm embarrassed to say I did not realize that the US has also had many discussion on this topic. Did you know that?
I have seen it pop up and i've never really gotten a clear answer to how the US handles this.
[36:13] Exactly I think that the approach is similar to what Canada's Supreme Court is now saying,
Well so so this is the making available right in relationship to copyright came out,
As part of the WIPO whippo or wipo ever how you say it thee or the
Treaty in the US back in 2016 the register of copyrights wrote an opinion after being requested to do so saying
We don't need a separate.
We'll talk about what this making available right is in copyright law because our exclusive rights under section 106.
Encompasses
Recent decision by their supreme court between their system society of composers authors and music publishers so can,
Which is the single.
In the entertainment software association where the court confirmed that Canada fully implemented its,
Quote making available in quote obligations through a combination of the communication to the public.
Reproduction and authorization rights,
Which are under their copyright act and doing so the court hill that any unauthorized act of making a work available online.
[37:41] And any subsequent unauthorized streaming or downloading of the work are infringing.
[37:50] So the the court does a whole lot of discussion of the legislative history behind things and and how the copyright board of Canada works the copy board had concluded that the
Of making works available is a separately protected and compensable activity. That means the users might need to pay two royalties when they're accessing a work online. One for making the works available and the second when it's actually downloaded and the board reasoned,
This is the only interpretation that would fulfill Canada's obligation under the white boat copyright treaty,
Which requires that member countries give authors the exclusive right to control the active making available.
[38:32] And that decision was an overturned by the Canadian federal court of appeal which said that the board placed too much weight on article at eight of Wipo instead of focusing on what the section in the.
Canadian law says and they said that the board focused on had the board focused on that section two. Four.
One. One they would have seen that the parliament did not intend to create a new royalty for the making available right.
So
They said that the make him available right has two effects one it applies to on demand streams.
And two workers performed as soon as it's made available for in demand streaming,
So
Stream it if I don't download it under this interpretation it would still be.
Yeah so to hear the act of offering to make infringing copies is the infringing act even if no actual copies are made.
[39:59] That's kind of an interesting interpretation.
[40:02] No. I mean, it seems to me if you, if you make it available, you have to, in order to do it in the digital area, you have to make it, you know, put a copy of the thing on a server somewhere or something. So, you have made a copy.
[40:15] Pot.
[40:16] Is that the infringement you know,
Problem that you're just talking about by extending infringement to offering.
To make infringing copies before they are made.
They may not get double royalties so they're not gonna say it triggers a new royalty stream.
But it gives them kind of a leg up or better position to combat on-demand creation of infringing copies or streams. I guess as soon as you see.
[40:57] It's available you you have an action but yet do we not already have an,
I guess in the US I think we would already have an app. If it was available.
On a streaming service we know it's somewhere.
And infringing actors already been happened.
And I think that's where the librarian of Congress was saying that for the US in 2016.
[41:26] The exclusive rights intersection 106 of 17 USC 106 for the US copyright act.
Already in covers this. Yeah. It's already in in,
Included in these exclusive rates that you have a cost of action.
And I think that you know the the act of,
Posting it where people can access it is is the copy that I was referring to you know on the server.
We in the US would look at well how many times has it been downloaded as a result of your putting it there making it available and so,
Canada was sort of concerned about this double royalty thing I think.
When you're talking about damages, you're just looking at how serious was the impact?
[42:16] Complied with the carbon application filing so that you could secure statue damages,
Once is enough.
If you're looking for a remedy like an injunction.
Make him take it down off that server make him stop making it available,
Something that comes to my mind though is if I as a as a blogger for example.
[42:42] Include a link to someone else's server where this file already resides so I'm not actually making any kind of a copy.
But I'm pointing people in the direction of hey go get that file over here.
Hmm.
[43:06] Potentially. Yeah.
[43:09] Well, interesting. I mean, again, if it's
You know, issues like the perfect tens, chases, and the thumbnails and then, 19 verses in bedding versus.
[43:31] May we live in interesting times and we certainly do.
Well, our next story involves,
Stars entertainment to LLC and MGM domestic television distribution.
This is a ninth circuit case.
That which allows copper and holders to recover damages for infringing accent that occurred before they knew or reasonably should have known
Of the infringing incidents and the 3 year limitations period
These things run from the time the claim recruit when the cooperate holder knew or should have known about the infringement you may recall what years ago the the
Petrella case came out
So stars enters into a licensing agreement with MGM domestic television in 2013 July 2013 and again in May of 2015
And under these two agreements MGM gave stars the exclusive right to exhibit.
Episodes in exchange for 70 1 million dollars,
That license agreement had a term that varied from title resulted over a 1000 different license periods.
MGM also provided contractual warranties that it wouldn't exhibit or license to third parties any of that license content.
[44:56] And then the stars employee found a copy of not a copy found the bill and Ted's excellent adventure one of those license titles streaming on Amazon in 2019,
So stars brings this to the attention of MGM they admitted fault and they tried to remedy the situation.
MGM didn't mention any other violations with other titles but stars started to do its own research and they found 22 other movies still covered by license agreements and exclusivity terms that were available on Amazon Prime,
MGM acknowledge those violations in late in 2019 stars solicited additional insurances that there were no other violations,
NMGM said right in November 2019 they said that in actuality,
They had violated the arrangements of exclusivity for 136 movies and 108 television series episodes,
Stars did more digging and found an another 100 movies not in
Included in MGM's list that had been licensed out to other services,
During that exclusively period so stars MGM in May of 2020
Legend 340 claims of copyright infringement 340 claims of contributory copyright infringement and 340 claims of vicarious copyright infringement one claim,
For breach of contract and one for breach of the covenant of good faith and fair dealing.
[46:19] MGM moves for dismissal under 12 B six,
Fail you to stay to claim they assert that the discovery rule had been aggregated in the Skoda the Supreme Court case of patrella versus MGM which they claim stood for the notion of a strict bar to collecting damages for cooperating infringements,
That occur prior to the 3 years before the filing of the complaint.
Well the district court held that Patrella didn't affect the discovery role and that the copyright act provides for 3 year damages bar except when the plain of
Reasonably wasn't aware of the infringements at the time they didn't go they occurred,
The circuit court then took,
To reviewing weather not this was a proper denial of the of the 12 Bsix motion,
And they said although the portraya
It also noted that nine of the circuits back in between the 2009 used the discovery rule and that was an alternative
To the incident of injury rule
The rule of a cruel allows copper holders to recover damages for all infringing acts that occurred before the claim accrued.
[47:38] Because you know when the plan of new or should have known of the infringing incidents and that the 3 year time limitation for filing the claim.
So they said the the district correctly applied the discovery rule correctly concluded that stars timely filed its covered infringement claims and stars couldn't have reasonably known its rights were being violated until 2019
When that employee discovered Bill and Ted on Amazon.
[48:07] And the court, you know, sort of bolstered it's decision by pointing out that stars did the father suit.
Very soon after discovering the full magnitude of the issue and it did so for all of the enfringments it it claimed to found so,
Wow.
Think you get to go back forever and ever and ever. Yeah.
[48:32] I think the discovery rule is it's a reasonable standard. No.
No am I correct that MGM was the defendant in the patrella suit as well.
[48:45] That I believe is correct. So, if your MGM now, do you go to the, do you complain to the Supreme Court? Hey, we're getting different outcomes here.
I understand why they brought claims for copyright infringement contributory infringement by carries infringement breach of contract reach of I understand their causes of action.
[49:09] Is this a corporate infringement case?
[49:12] I don't think so. I think it's a violation of that exclusive. Well, it's an exclusive route.
Yeah but I think it's a contract breach.
[49:23] Yeah.
Well that may have not been the reason for which the summer judgment was issued.
Say hey wait there's no claim here that's not copyright infringement.
[49:50] I don't know but I question.
[49:55] Well I think undercover law if you are the the owner of an exclusive right under license and someone else infringes.
You know the copper it does confirm you the right to sue for that infringement but here it's the actual owner of the copyrights.
[50:19] Amazon or wherever they found it posted.
Now obviously Amazon is gonna be.
[50:32] Well and and again the owner has the authority to grab a license except under the contract.
Promising not to. So, yeah, you're right. I think you're right. This is AA questionable case of cooperate in front of the I think the the breach of contract and fair dealing cases are a much clearer.
You know, but
I don't follow those three of them.
I think if I met MGM we're we're looking hard at whether or not to.
[51:21] Sounds like something you have to file petition just to see.
[51:30] How long ago did Picasso die.
I think so. Yeah.
Sorry.
There's too many French words. So, I'm gonna pass this one off to you.
So this is a case of what's the name of the case? It's it's fountain defont brun versus
It's a ninth circuit case involving
And the defendant is Alan Wolfsey and Alan Wassie and Associates who are blump together as well. So, in France, fountain had succeeded.
In obtaining a judgement against wifey based on the copying of a compendium
Of Picasso works which foam bruin had gained ownership over.
[52:42] That award was deemed repugnant to the first amendment in the US courts now the ninth circuit is looking at it and here's what they looked at so owns this catalog companion of photographs of Picasso's works
Permission from the Picasso State to publish a work illustrating and describing works by Picasso
Which is this particular catalog in question.
[53:15] But then in 2001 the French Court of Appeal deemed that.
Creative features were added the lighting filters framing of the view and so on and that therefore was he was liable for infringing copper I want it.
Used copies of those photos in the catalog for its illustrations.
Australia Day I think I'm gonna well that sounds Italian but that's my pronunciation
$1558 in the US for each proven infraction of French copyright law,
That he was unserved of the that particular proceeding,
And so he didn't appear
Which fountain attempted to enforce in the US,
The ninth circuit takes a look at this and the court says enforceability of judgements of other countries is generally governed by the law of the state.
In which enforcement is sought.
Something really happened on my screen here.
[54:28] The French court lacked whether the okay here's what they said five issues the the ruling is repugnant to US public policy free expression first amendment,
Regarding summary judgment in this case the French court liked personal jurisdiction over Waffy,
Inadequate notice was provided to YFC and fontruns judgement was obtained by frauds that's pretty strong
So was the ruling repugnant to the night circuit looks at this under fair use and says no it's not while France doesn't have fair use to court believe that it wouldn't
Cover offs these use here either,
Reproduce in a book offered for sale and that was
Commercial even though the end user is utilization might be different they said that was irrelevant.
[55:26] Thumbnails to get interest in a search that's not the same kind of situation,
On the nature of the work the court said this doesn't weigh in favor of fair use because while there are some bear creativity as the French court ruled it's still largely a thing of just documenting Picasso's works I'm gonna take issue I don't agree on that one,
But fair enough,
They said it was roughly 1500 of about 16 1000 photographs that were reproduced for the Woffsy work taking the entirety of each photograph used because of this they said this found against fair use I guess there was an argument that while it was only
You know.
[56:04] What 1516000 so it's very small percentage of the whole work the catalog and here the nights are just saying no we look at each individual photograph as a work,
And so that found against fair use and then the effect on the potential market factor the compendium made by Wozi was commercial and non transformative and is such we presume market harm.
On jurisdiction the court found.
That, you know, no subject managers take an existed overlapsy.
On the insufficient notice Imma call that a due process argument,
And where they didn't and on fraud the court states,
Once he was unable to demonstrate that this fraud existed while she indicates that the copyrights were transferred to a business entity the court indicated that whether or not fraud could have been discovered during the French proceedings is unresolved so,
The conclusion is hey do you do diligence but the ninth circuit is reversing and remanding,
To the district court.
It's always interesting that you.
You could actually get a judgement against you. You know, we always say, oh, it'd be so hard to get judgement outside the US. Yeah.
[57:33] But then, you know, they can bring it back in and try and enforce it.
[57:43] Procedural I guess this is what they had to do with the French company but.
Yeah it's a it's an interesting ruling I guess the the answer or the or the practice pointer.
Is if you are suing AA foreign.
[58:02] Do your due diligence and make sure your your gonna have an enforceable judgement on on.
You know something no point if you're not gonna be able to collect it I guess so.
If you're gonna make a book about Picasso's work go take pictures,
Publish it as your own.
[58:35] Paintings. Right.
[58:46] That's probably why he wanted to use those photographs.
Logistics of just getting to where all the different Picasso paintings now reside to make the photographs yourself getting permission some of them are in private collections in all that so it was expedient.
To use the photos but as you can see costly.
[59:17] Anyway, that's it. That's the the wrap up on this story. Do your due diligence as the the court.
Get it right.
Leave it for us using the voice widget on the website at entertainment lobdate. Com or send us an email entertainment update@Gmail. Com,
The Twitter handle is at in law update.
Yeah so you can find me online my website is T Bennet Law. Com
T Bennett. I'm sorry. Is that right? No, Tamara Bennett is most of my social media handles.
And create Protect. Com. That will take you to both my website, my blog, and where I I also have some of our podcast.
Listings up there as well. So Gordon, thanks again for a fun recording. I can't wait to see you in about 30 days. Yes.
Yes, yes, yes. I am Gordon Firemark from Los Angeles, California. My website is Firemark. Com. My email address is G Firemark@Firemark. Com.
And on most of the social media out there you can find me as G firemark.
[1:00:37] Now let's just say a big shout out to our crack team of volunteer contributors managing editor John Janice Eck his been with us a good long time and he does a fantastic job thank you to John Malhar Oza Charles Thorn Mark Lindaman,
Brenna Arbuckle and Carnell Wilson are both they took this month off cuz they're studying for the bar.
Which I believe starts this week. Yes. So,
Of course hopefully they won't be listening until after they've taken the bar but hope you hope you had a good experience
Yeah
And David Tobis from Canada who was a largely responsible for our Canada stories this episode so thank you David.
And that's gonna do it. That wraps up this episode of Entertainment Law update.
[1:01:33] Music.