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It's entertainment law update. Episode number 154 for February 2023.

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Music.

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Hello and welcome to entertainment law update. I'm Gordon Firemark from Los Angeles, California.

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Hey and from the Dallas Fort Worth Texas area I'm Tamara Bennett thank you so much for joining us for this episode this is as you know our podcast about entertainment law,

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Or each month we pull together a round up of legal and business news stories and share our opinions and commentary and analysis and and have a good time to.

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Oh

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Well, I have the air conditioner on. That's my update. Oh, it's 90°. 90° in Texas yesterday and,

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Well, that's interesting here in California. We are experiencing cold. It is not expected to go above about 45° today in my hometown here,

1:10

Which is pretty unusual for this time of year so.

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Yes I think we will be back to more normal average starting today I I'm in my upstairs office slash studio slash.

1:27

Wow, It is really hot about

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Brother-in-law and sister-in-law come in to stay with us for the for the a few days so,

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My world on the on the home front and then just you know works kinda been work it's it's I can't believe we're recording this on February 22 so,

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Gosh does that mean we're already a good 6 weeks into.

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It's 46 weeks.

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Client service work done in that amount of time

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Took me I I think I'm I mentioned I've been in three states in the last 4 or 5 days so you know a trip to Kentucky and a trip to Tennessee for some family matters and which were.

2:35

Wish for great fun,

2:43

Yeah, you know you're in trouble when you get to that point where you're looking forward to going back to work

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I I do thrive on my routine but I I love that are routine is that once a month we get together we we get to chat and get to go over these cases and.

3:02

Well, let's get started. Open him.

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Please believe it. Hey, I've known gosh,

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Does some music and entertainment law anyway I talked to him a couple of weeks ago and he was just sharing with me

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I was like, hey, so, alright, Lou, I don't know what you're cooking tonight, but I hope it's tasty.

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Didn't see you. He doesn't go to sleep. So, I thought that was the ultimate endorsement,

3:47

Maybe we should revisit our CLE strategy for the the show which you know in our first season or two we were doing CLE offering CLA and we didn't have a lot of takers but

3:58

Maybe things have changed in the last.

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Sometimes makes it easy and sometimes makes it hard but but we'll talk about it hey so just to say you can always claim us for your independent study that's right,

4:17

That's right. Alright. Well, let us get started with our show for this,

4:21

This month we have a couple of,

4:30

Said earlier before the show you said.

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Yeah we're probably gonna be talking about AI every every episode this year. I think you probably write about that. So,

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Graphic illustrated novel,

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Zaria of the dawn by chris crash to note,

5:05

Still waiting on the USCO to respond but they've allegedly informed council that it's an error in the new system and may not actually be cancelled,

5:14

And listener of the show Franklin Graves and a few other people on Twitter.

5:22

Cover it office.

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And.

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No, I'm a human generated work and what's the threshold of human involvement in order to have a copyright? So, could be an interesting.

5:54

You're watching this check out,

5:59

As soon as we finish this episode. Yeah, this afternoon. We won't.

6:12

The Supreme Court is expected to hear a rid of the case of Thailand versus Vidal.

6:20

Where the plaintiff had developed an AI capable of creating patentable inventions.

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The system is known as Dave's device for the autonomous bootstrapping of unified science.

6:36

Hey what do you call it? An acronym for the sake of acronyms. I don't know what it is.

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Anyway, back in 2019, Taylor had issued various patent applications listing debuts as the inventor and disclosing that it was an artificial intelligence. He then assigned the rights to those inventions to himself.

6:56

And the patent dreadmark office then denied the applications because they're incomplete failing to identify and inventor which has to be a natural person

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So in 2022 the federal court of appeals affirmed the lower court ruling that an inventor does need to be a natural person.

7:12

Referring to a variety of presidential rulings and so on saying an inventor cannot be a corporation or sovereign entity

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So fellas of course has litigation in the district of Columbia so you can enforce the registration of the work and we're now waiting to see if the Supreme Court.

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On this.

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Because he has a parallel copyright case going on. Mm hmm. And and the

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DC circuit

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From last month which is where do those cases go.

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On the copyright cases when they've been denied a registration so he has a pending case there that's in the motion for summary judgment stage.

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Invention. Yeah. That in which he's seeking a patent on the invention? No, interesting. So, maybe those cases can get consolidated at some point and.

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Somewhat definitive

8:36

Consolidate cases so,

8:38

Okay, well, the supreme court is in our news a little later on. We'll get there but let's continue talking about AI here,

8:51

Robot lawyers are coming

8:58

It delayed for a bit. Joshua Browder is the creator of an AI powered chatbot called do not pay which can use form letters and chat bots to secure refunds lower your bills and dispute parking tickets,

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And he planned on having it participated in an actual trial letting the bot,

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Dictate what to say in exchange for a one 1 million dollars

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This week basically but there were threats of litigation and threats of jail.

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The time may come but it's not here yet.

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Lack of knowledge. Mm hmm.

9:52

Are there lots of different ones? You know, I think you and I have talked to before about the chat, G.

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GBT GPT.

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And and that I had tested it out to try and write the summaries.

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Hilarious.

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My understanding is updated legal data after 2021 so that means it's not it's not real time so it's not gonna be accurate,

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Yeah that I think is is the prompt I think there are a lot of different.

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The data sets that they use may be different depending on the intended use of the.

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Of the tool and I think for a law.

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You know a lawyer

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When additional data set and you're right it would have to be very up to date it would have to be constantly ingesting new case law new statutory changes.

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Close to the mark.

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Yeah, and I have not. Play it around. Don't do not pay and I don't know if you can freely use tonight, okay? And maybe you can based on the

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Game

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Draft me a.

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Argumentative response for co-parenting.

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Interesting.

11:58

So you don't maybe there are.

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And it's not us anymore.

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Last week on a podcast for voice artists, voice actors.

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I guess I'll call it deep fake. Replacements for their voices and so, you know, if you give an AI system enough input of a person's voice you can create audio that sounds just like the person.

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Inflection.

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So

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And I played with it the other day and I had it read the Gettysburg address in my voice,

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Man, it sounded better than my voice. At the moment,

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Yeah, the day is coming when someone could type AA simple query into a chat GPT and pipe the output to 11 labs or one of these systems and outcomes and audio recording of of the answers

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No human ever touched it other than you know.

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The monkey selfie.

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We have a lot of audio recordings of us

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Well, where do you think I got the stuff I fed it to

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I don't know if we need to be worried that the human touch will always be valuable,

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Component of things and I was talking to somebody yesterday. They were saying, you know,

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When you when you look at these deep fakes it's harder to distinguish a fake video than it is an audio because something in the brain triggers when there's an audio.

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That just isn't quite right and you can't put your finger on what it is,

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But it's there. So, we'll see.

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I think our other topic, you know, we picked it as a hot topic, I think for 2022 and it didn't end up being such a hot topic for 2022.

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It was non-fungeable tokens. We we really thought we would have a depth of.

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Cases in law last year and maybe this is the year for NFTs.

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We we talked about the board ape.

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Hey,

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Right and and the market has slowed down since we first started talking about things from early 2021 2022 but

15:27

Trademark dispute over the famous NFT collections Yuga Labs created the NFT collection titled Board Ape Yacht Club

15:37

Where each NFT contains a profile of a cartoon monkey head adorned by various algorithm generated accessories

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Of the NFTs eclipse one. 5 million in a sale price.

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I don't even understand that. Okay,

16:12

Okay

16:17

Trademark application somehow they they were advised hey we probably have a brand here that needs to be protected they they actually related to the board a yacht club.

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Whether it's a design market it's a word mark or it's initials they they have 30 pending live applications.

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Within that though 10 of those have the ape skull.

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There's 30 in all 10 of these though have been opposed.

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I'll say it Cam. Yeah.

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He's an artist and a creator of who would have guessed competing in a cheese.

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Hey and he has filed as an individual opposing these 10 applications not.

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And or any kind of corporate name.

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Not that there's a likelihood of consumer confusion but on the basis that there was no bonafide intent to use.

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As trademarks.

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I thought this was an interesting argument to do that. I'm also gonna.

17:46

Fast forward to say

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The two parties are in litigation already outside of the trademark office. So, you know, we'll see what happens. Ugalabs has until March 21 to file their

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Response to the filing at the TTAB.

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This question of.

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That there was a loss of control on some of these because they were included as part of the NFT and there weren't restrictions.

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Ape is generic or merely descriptive. I.

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Completely disagree with that assertion because how is ape.

18:39

For a piece of art or for a digital file

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So you know I'll be interested to see if they follow and answer this to me was just something to spend money and make people spend money.

18:58

One of the interesting things for me they they.

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For a lawful use of the marks because NFTs are securities and they never filed any registration paperwork with the SEC. So,

19:17

I don't know.

19:27

You know and I don't know how the TTA be would respond to that.

19:35

I don't know if there's an ad analogy we can draw to,

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You know if it's used on an edible it's not gonna be allowed but if it's used something that's a topical you know so there could be I I don't know if there have been any security type issues.

19:57

Raise or if the TTAB just punched that and says that's outside the scope of our.

20:03

I wonder if you can register a trademark for a security instrument the name of a kind of instrument,

20:13

Is it a brand a dinner fire I don't know why it couldn't be if they use it yeah.

20:25

Interesting.

20:34

Litigation tactic that.

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Going through 2 or 3 years of TTAB proceedings. They're all gonna settle something. So, how does the TTAB handle it when there's a

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In parallel litigation going on do they stay the proceedings until the court case is done or do they do their thing and let the court pork it out or I think.

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Federal court proceeding is done each other.

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Actually cancel a mark. Only the TTA.

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I suspect they will stay at,

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Yeah. Oh, it's it's gonna be interesting to watch this case as a as it progresses. There's you know, we've had competing anti-slap motions and and first amendment arguments and

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Questions about whether it's hate speech involved in their there's all kinds of interesting stuff going on so

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The big news this last month of course if you've been following NFTs and art and those kinds of things.

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Of Mason Rothchild.

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Luxury handbag. So, he created and sold these metaburkans as NFTs through his website, ran a major marketing campaign

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And initially they were priced at $450 each

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But they soon rose in price on the secondary market up to his tens of thousands of dollars. Again, tens of thousands of dollars for.

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What is basically a picture

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The use of the Birkin trademark in connection with the minting of these NFTs and they filed suit against him raw child under trademark infringement claims a nine person jury was in paneled in New York

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I think it was New York City and ultimately after

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Someone lengthy trial they found in favor of Hermes awarding the the luxury brand $133 thousand now

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Is protected under the first amendment because it's artistic expression and his expert witness.

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Apparently it wasn't allowed to testify before the jury drew an analogy to the Andy Warhol soup cans and things like that he said the metabolic and NFTs are no different than the famous Campbell soup can silk screens

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And that any other position would be inconsistent with freedom of expression guaranteed by the first amendment his attorneys.

23:30

Going back to 1989 murders versus crimality which allows

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Artist to use a trademark without permission if it meets a minimum level of artistic relevance and isn't explicitly misleading

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This case brings up the novel issue of law that can be implicated with.

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You know all kinds of things but specifically when it examines how NFTs and other digital assets.

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Should be viewed in context of these intellectual property laws. So,

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You know, murky stuff going on here and NFT's is this area that's sort of straddling this line.

24:15

This is a trial court decision. I have someone asked me to predict the outcome and I said I think the jury is gonna go with.

24:22

With MS but I think it'll be appealed,

24:32

Hey I do wonder though.

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Why an ick i think you could see it would be a.

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Burke and the owner of the Birkin Mark my also decide to issue NFTs for this.

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And that the consumers would be confused. So,

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Before we go there, I just wanna take a you know, yes, I think that this question of misleading is a is a valid issue but.

25:18

Make a commentary poke fun of a brand,

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Camel soup cans prints so and and that was really Rochelle's argument was hey

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I'm an artist. This was a commentary on the Birkenbags and by the way, the jury was presented evidence that nobody's gonna confuse a $450

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NFT picture of a bag with a $4000 handbag.

25:52

About the jury didn't buy it. They said, no, you're, you're ripping them off

25:59

Purchase the handbag and then.

26:12

I don't get it. Yeah. But who knows? I've been I've been wrong before but I was just going to say it. It's this to me. It's also this split in the circus which is some circuit say,

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When we have this question regarding a trademark,

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The first thing we need to do is determine likelihood of consumer confusion which is a trademark standard.

26:40

Other circuits say the first thing we need to do is apply Roger's Veg Remaldi.

26:46

Which is.

26:51

And are the decisions do they reach different decisions based on the application of which comes first or is there even a likelihood of confusion question that needs to be.

27:04

Yeah. So it's question of even if there's a confusion a likelihood of confusion then be I mean yeah so which order do you do parts the analysis

27:15

So and I think that gets us to this Jack Daniel's. Yes

27:22

Yeah once you fill us in this Jack Daniel's properties versus VIP products LLC.

27:29

Yeah so it is VIP products produced in marketed a dog toy feel like we talked about this last month or the month of before many times

27:43

Jack Daniels Tennessee Whiskey

27:50

Contained a smooth on the widely recognized Jack Daniel's black and white bottled label

28:00

And there was a bench trial at the district court.

28:09

And this was from 2020 the ninth circuit reversed the lower chord.

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The question is one whether the allegedly in virgin use of the mark was artistically relevant to the expressive cat character of the underlying work and two.

28:29

Weather it the infringing alleged infringing use miss leads consumers as to source.

28:36

Hey,

28:45

So on appeal Jack Daniel's appeals the S

28:51

Appeals the ruling excuse me that the dog toy wasn't expressive work protected against trademark infringement liability by the first amendment the case has been docketed under the supreme court 16 Amika's briefs have been filed

29:05

Most of which support Jack Daniels in reversal of the ninth circuit decision others,

29:11

Filing what might be considered a neutral brief.

29:18

I I like this notably the US government chimed in with a brief on the solicitor general arguing the appropriate test.

29:27

Is the traditional likelihood of confusion not Roger V gramaldi

29:34

Former judges filed a brief saying the ninth circuits decision undermines the purpose of trademark law which is to secure goodwill in the interest of consumers and trademark owners.

29:49

Marketing to children.

29:52

That's not what we wanna do as far as alcohol use

30:01

Define what is considered an expressive

30:03

Work. You know, is it a dog toy? Is it a book? Is it a movie? Is it a video game

30:15

I think we may see this a decision on a split in the circuit. Maybe we get clarity as to when.

30:23

When do you apply Roger's vehicle mall date in the analysis.

30:37

Really just use the name.

30:45

Commercial product.

30:55

That.

31:04

Distinguish things.

31:07

And and then you get into the meta burkins is that is that a commercial product or is it an artistic expression and that's where the what is an NFT question really comes in.

31:20

Yeah and I'm kinda going backtracking to the.

31:29

Eat part of what I think saves the Andy Warhall type. Campbell soup argument is.

31:39

But isn't that what an NFT is? A limited edition,

31:49

It's my understanding that the the artist in in the Burking case had one.

31:58

Artwork that in which in NFT was minted. Yeah

32:04

First amendment free expression and.

32:18

It's turning out to be a big year for the Supreme Court isn't it,

32:22

It is. It really is. We're gonna have a lot to talk about as these decisions start coming down over the next few months. Yeah

32:32

Six circuit court of appeals has

32:40

And back in episode 121 in May of 2020 we talked about the case it was everly versus everly at the time that case now is Garza versus Everly and

32:51

But it involved was the brothers Don and Phil Everly.

32:54

Who recorded and released among many the song Cathy's Clown in 1960 and they granted the copyrights to a cafros.

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Music. They were both listed as authors. They received credit as authors in 1961 and 1975 when receiving awards. They both received royalty payments and then

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In 1980 Phil agreed at agreed to and signed a release to Dawn of all his rights in the compositions including quote,

33:23

Every claim of every nature

33:31

Licenses and credits for Kathy's clown and a in AA 1988 copyright renewal.

33:40

So both brothers nonetheless made public statements continuing to credit fill as a co author.

33:46

So Phil's Airs interpret this 1980 release as only a transfer of the rights to profits,

33:52

And public recognition for the compositions.

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Disclaim his claim as co composer.

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And in 2011.

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So, after Phil died in 2014, his children filed notices of termination as to the 1960 grant

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Seeking to regain Phil's rights to Cathy's clown and in 2016 they served that notice notice of termination

34:38

As to Phil's 1980 assignment to Don.

34:45

2017 Don files a complaint for declarator relief seeking an order declaring that Phil Everly is not an author of Cathy's clown that

34:53

The 1980 release is not a grand subject determination under sections 304 C in 203 A of the copper attack and that Donna really owns 100% of the copperette termination rights in Kathy's clown and 100% of songwriters royalties to the compositions.

35:09

Phil's a state fountain answer including various affirmative defenses and counter claims.

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And there was a summary judgement argument that the counter claims filed by Phil were barred by the statute limitations and that meant that Don should excuse me if Phil should get some rejuvenate,

35:25

And the district court granted Don,

35:35

Termination,

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Transfer ship only the ownership rights that arise from authorship

35:58

And it was undisputed that Phil had transferred ownership.

36:03

The evidence what was disputed as to whether he had expressly excuse me whether Dawn had expressly reputed it Phil's authorship,

36:12

Reverse the trial court of summer judgment and.

36:23

For further proceeding, On Ramand. The district record found that Don had reputated Phil's authorship,

36:39

So the district court also rejected Phil's estates argument that the limitations period shouldn't apply to the defense that fill as a co-author.

36:47

So back up to the six circuit we go,

36:54

Authors can transfer ownership of a copyright.

37:04

Copyright authorship cannot be transferred.

37:07

When someone makes an adverse claim against that authorship right like and repeatiation the copperad act gives that person 3 years within which to bring a cause of action to protect the right.

37:18

Authors who fail to do this in a timely manner.

37:25

Hmm.

37:34

Of Cathy's clown by letter and then by a telephone call in 1980 and at the 1980 release was intended to be a memorialization of that repeatiation.

37:45

The court says that's not clearly erroneous and therefore feels a state is barred from bringing an affirmative co-authorship claim.

37:53

So it sounds like we need something and it'd be helpful.

38:03

To have them sign off and say I hereby reputate my claim to authorship.

38:08

Well in this case it was the other the the co-author was saying you're not an author anymore,

38:13

Oh, yeah, okay. I hear by agree that you say I'm not an author. Right. Right

38:19

Yeah, I mean, you know, those signed releases that specify not just ownership but authorship also seem to be a pretty clear reputation. I think that that's what the court sort of hanging its head on,

38:30

So

38:33

Hey successors have no claims or or any right to.

38:45

You know, terminate or anything like that and so the the judgement of the district being affirmed now by the six circuit. Wow.

38:55

It was I I think.

39:03

To really figure out is this gonna hold.

39:13

It feels like there's all kinds of back story and and we'll have to wait for the movie of the week to come out to explain what was going on between brothers that led to this

39:26

I still see this issue.

39:29

Similar issue as to authorship today. I have these conversations with songwriters.

39:36

You know, everybody in the band, should they get any cool share.

39:44

To which I default to if there's two names on the copyright application the assumption is they each contributed 50% yeah.

39:53

And.

40:00

Putting that in writing as to what that different split is or don't be putting people on a copyright application.

40:07

Right.

40:20

As co authors.

40:29

Video on the credit and and these other things and she seems to be

40:39

Authorship, Claim.

40:52

Versus.

40:56

All do you do a permanent reputation and if for some reason this is not a permanent reviewation you hereby a sign.

41:10

Right and if we had done an assignment.

41:13

There may be a termination claim if it's a reputation that's why they can't file that truck be successful in a termination filing.

41:23

The tone of that original agreement may have been what created the ambiguity is it an assignment or is it a.

41:35

And perhaps the facts we don't know is the only way to get the deal done was the language that was. Yeah. Agreed to. That's awesome. The case, isn't it? Yeah,

41:45

Well you know the belt and suspenders approach you know doing assignment and reputation just in case

41:54

Because you don't have anything to assign.

42:07

Appropriate jurisdiction finds there was no validation

42:19

Work for higher stuff all the time, right? Back up assignment language. So.

42:23

Same idea.

42:31

I hear Gip Gibson guitars has had a crazy kind of history over the last,

42:37

Well, over their whole lifetime but really the last few years is.

42:50

After Gibson were located to Tennessee in 1976 and had ceased using a Kalamazoo.

42:58

I'm guessing that's Michigan, right? Factory. Heritage purchase that Kalamazoo building and some of the equipment that was

43:06

Left behind and began to craft and sell instruments under the heritage brand in 1990 gibson sued them for alleged trademark infringement over to the design and appearance,

43:21

They settled in 1991

43:25

Ed and Gibson for nearly three decades went their separate ways this is a quote went there separate ways each selling its own well known guitars into the market with no problems or issues,

43:38

Send the investor gets involved.

43:47

Or which is the investment company that I guess helped get them out of bankruptcy. Yeah. And that company explicitly explicitly threatened to sue heritage.

43:57

And quote presumably because of a prior unfavorable trade emergency,

44:08

More 12 for the last three decades. Right.

44:23

So Gibson's intellectual property rights and upholding gibson's longest established and well recognized trademarks in a 2022 victory that Gibson had over

44:38

Dan Guitars which we discussed back in episode 146

44:42

Heritage have put their dispute to rest. We do not have a copy of that settlement agreement. It's not been publicly revealed.

44:53

With this another lawsuits out of the way Gibson made the statement Gibson can move forward and focus on innovation with confidence

45:01

So Gibson also has a variety of trademark registrations online for their brand name but the distinctive shape of their guitars so

45:16

You know, but it's interesting. So, they left,

45:22

Things behind in this factory and they may have left behind fabrication devices. Sure.

45:28

Babe we're set up to produce a shape of a guitar.

45:35

Yeah I mean,

45:42

But yeah, well, yeah, yeah, I mean, for me, you've a take away from this is, hey, even if you settle a lawsuit, 30 years can go by and somebody could come along and say, hmm. We're gonna sue you again.

45:53

And.

45:59

Stop all or issue preclusion

46:13

But maybe not so much here and I mean the list there was a breach of that settlement which I think was the argument here but

46:21

Hey,

46:30

Somebody wanted another bite at the apple. Yeah.

46:34

Yeah.

46:41

Weight versus UMG recordings an attempt at a class action lawsuit against UMG has been knocked down in the southern district of New York the court.

46:51

Took the defendant side that's UMG and Sony deciding that plaintiffs do not qualify for class action on several different standards most importantly to qualify for their claim to section 203 in the copy of Act

47:04

Each planet must pass a fact intensive inquiry based on several tests specific to their contracts,

47:10

The employment relationship under the CCMB versus Reid

47:15

Specific is it especially commissioned work and validity of the termination notices on. So, the back story here is that in 2019, David Johansson John Wade and.

47:26

Other prominent 1970's musicians sued the record labels from not honoring their notices of termination to transfers of copyright

47:35

Each of the musicians that are six of them total entered what are fairly standard recording agreements with these labels that gave the the labels the lions share of profits along with exclusive reproduction distribution and

47:49

The planets argued that they're entitled to reclaim their copyrights person to section 203.

47:54

4304 depending on the situation which permits authors at or heirs.

48:00

Under certain circumstances to terminate the exclusive or non-exclusive grant of a transfer

48:04

But the defendants contended that they work fell under work for hire to which section 203 does not apply

48:13

You know the that applies to either work especially prepared. Excuse me, prepared by an employee within the scope of employment or.

48:28

The defendants are looking at the original transfers of the copyrights all of which contain the language quote employee for hire.

48:38

Language alone not spicing they also argue that the sound recordings were made for higher because.

48:43

Planets produced recordings as employees acting within the scope of their employment.

48:52

As one of the enumerated categories in that in that code section,

48:58

Plane of smooth for an order certifying two proposed classes one.

49:08

Describing an effective date for the recording terminations occurring after January 2013 and no later than the date the court branch certification and class B is artists who have served defense with notices trans

49:21

Describing a effective date.

49:29

December 31 to 2031.

49:39

203 and 30455 putting in those 2 days.

49:43

And they were looking for an injunction against defendants from infringing copyrights of artists who had served termination notices,

49:57

Regardless of the effective dates of termination whether there was been reached.

50:08

And so each point if now needs to show individualized proof,

50:19

I mean this is a hard blow for the.

50:28

Yeah the the smaller artist that may be more as successful and may not have the resources to pursue these termination lawsuits you know that which have become pretty.

50:39

Carmen.

50:49

You know, unless you are a substantial artist. Yeah. It's a fight, fight, fight, fight, fight.

50:58

Yeah the labels are basically saying what are you gonna do about it

51:03

Right.

51:13

Unlike with a song.

51:16

Where we will assume for purposes of this conversation we know exactly who the songwriters were and nobody's reputed anything.

51:24

It's much more straight forward with the publishers. I mean, I have in the past running to some small independent publishers. They were very confused via termination notice.

51:39

So it was all on that note I thought I would just say.

51:44

Let's see what am I gonna say,

51:56

So

52:03

No I will give credit to John Way I I can't help it the whole conversation I'm singing that song is like on my head and I was like.

52:15

Hey, missing them at all. So, since you've been gone away.

52:28

Has not been sitting quietly in the sidelines.

52:36

For the amount of 49. 98 million why not 50 1 million just round it up

52:41

For releasing audio tape interviews without Trump's consent Trump gave these interviews during Woodward's writing of rage the New York Times best seller list topping book the issue.

52:52

Is the audiobook the Trump tapes

52:55

Bob Woodward's 20 interviews with President Donald Trump which was released in October of 2022.

53:09

Trump is arguing that he is entitled to a copyright for these interviews as well as recovery of damages.

53:15

And the complaint asserts that the audio recordings were protected material subject to various limitations on use and distribution.

53:21

As a matter of copyright license contract basic principles of the publishing industry and core values of fairness and consent.

53:29

They also claim that the defendant's systematically blatantly and unlawfully engaged in user patient manipulation and exploitation.

53:36

Of Trump's copyright interest his contractual rights,

53:40

And the rights he holds as an interviewee.

53:52

Claim also states that Paramount SSI in Woodward deviated from industry standard practices didn't obtain the opposite releases misappropriated Trump's copyright interest manipulated the recordings to benefit Woodward's desired narrative while pedaling the story that the recordings are raw and deprived President Trump of the opportunity to publish on

54:14

Red in his voice. So Trump took to Twitter on January 30 to post a bunch of tweets where he describe the book as quote an open and blatant attempt to make me look as bad as possible

54:26

So what would Simon choose to have released a joint statement saying that the lawsuit is without merit

54:33

All these interviews were on the record recorded with Trump's knowledge and agreement more over it's in the public interest to have this historical record in Trump's own words.

54:47

A celebrity has sued for use of their speech.

54:51

In situations like this and we have, you know, in fallwell versus penthouse. It's funny. I I just had my students brief the case fall over his pen house limit international.

55:02

The evangelical fundamentalist minister objected when interviews of him were published.

55:09

And the court ruled against him saying.

55:23

Are you in that there that celebrities expressions should be afforded the extraordinary protection of copyright

55:28

That's just not the case. The state of Hemingwavers is random house where the estates ought to claim rights in a book.

55:39

Hemingway and the books author and that court also rejected this contention saying any attempt to quantify or otherwise analyzer a portion these elements.

55:48

Demonstrates both the futility of the endeavor and unworthiness of the idea,

55:57

$49. 98 million

56:11

Either wood word or Simon and Shuster have a copyright registration.

56:16

Which must not list,

56:24

And also he's it looks like he may be asking for punitive damages which.

56:30

While there are willful infringement damages which one could consider our punitive in nature that's what localness is.

56:40

It's unclear how they they've calculated. It's also. Yeah.

56:53

Asking the questions.

57:01

They could be potentially protected by copyright. Mm hmm,

57:05

Hey

57:19

Because it's fixed.

57:24

Part of what I think is gonna be come out and this is that President Trump wasn't the person operating the recording device

57:32

It was Woodward. So, who fixed it into a tangible meaning tangible medium? I think the argument's gonna be

57:40

The Woodward and to me it's analyst to a bootleg recording.

57:47

The Rolling Stones are on stage and I record it. I record the concert. Mm hmm. Rolling Stones don't have a copyright in my recording of the concert.

57:59

True,

58:12

They were okay with the audience recording their concerts.

58:28

Well, and even, you know, when you sit down with the reporter, you and you watch the reporter press the record button, you know it's being recorded. They're that level of consent as a given. It's really what was the full scope

58:39

Of of the of the consent what did Trump what should Trump have known.

58:49

Disengenuous for somebody in.

58:53

In such a position of.

59:02

So I think I I think it will help the the everybody see the commentators all seem to think this case is gonna get thrown out I think for one thing that might stick around is.

59:16

Either material was left out or they were ordered in a sequence that was not those sequence they were made.

59:24

Maybe there's some argument that there was a manipulation of the message and that that would be,

59:29

Some kind of a misrepresentation by Woodward but Woodward's a well respected journalist I think that's gonna be hard to persuaded but judge and jury but that's the case so.

59:43

To know if it is truly just,

59:48

Or if they talked about you know something in interview one that then got circled back to an interview five and so then for purposes of the audio book.

59:58

Hey Facebook.

1:00:10

From the five or six different times we talked about it or something like that but.

1:00:14

You know I think it's gonna be a the burden proof is gonna be on Trump to show that there was some.

1:00:23

In the way that was done.

1:00:30

Tie in to our next case and that is this idea that buy.

1:00:39

Is there some liability for that? Just yesterday, the Supreme Court heard it's arguments in the case of Gonzales versus Google

1:00:50

Section 230 of the communications decency act is interpreted and applied,

1:00:55

As we move forward this is a case involving the parents of Naomi Gonzalez and American student who was killed

1:01:03

In an Isis attack in Paris back in 2015.

1:01:13

Under the anti terrorism act because they supported ISIS recruitment,

1:01:20

And then the algorithm of YouTube would then suggest videos to people as recommended viewing,

1:01:32

They were supporting terrorism. Hey

1:01:43

But if they apply it the algorithm is applied evenly then it is protected under section 230.

1:01:51

So the court the Supreme Court granted sir in this and a

1:01:54

Sister case that that is being heard today as we speak actually,

1:02:11

A number of all the rest almost and Eric Goldman among them.

1:02:16

I had filed there and make his briefs in support of google's position

1:02:30

This is what the Biden administration are used elaborating at the algorithm and YouTube

1:02:34

Automatically play what's next in its sequence. It's the recommendation so that is a creation of some kind of publication. It's the argument

1:02:42

Now the related case I mentioned is Twitter versus Taminate

1:02:46

It's also in front of the Supreme Court substantially similar kinds of claims where the night circuit found Twitter

1:02:53

For violating anti-terrorism act because it aided and embedded terrorist communications so Twitter is taking it up on appeal arguing that it hadn't substantially assisted terrorists for a specific act of international terrorism and that,

1:03:08

Even if they knew terrorists might have used the platform for terrorism it that did not meet the knowledge requirement they

1:03:15

You know, told them accountable unless they were aware of specific terrorist and accounts that were involved. So, a lot of the amichi in the gonzales case.

1:03:24

Had argued that. A reversal in the tamni case would render the gonzalez case mode

1:03:34

You know, substantially together, So just a little background for those who aren't too familiar section 230 of the communications decentiac was enacted in 1996 this is the infancy of the internet and it was the a reaction.

1:03:48

To a decision that held an online message board liable for what a user had posted because the service had engaged in a degree of content moderation. I think that was the case of.

1:04:03

The point of but anyway.

1:04:15

Of any information provided by another information content provider,

1:04:21

You know make it possible for the big social networks like Facebook and Twitter and YouTube for that matter to rise and grow because it insured that they were not facing any legal liability for the user generated content.

1:04:35

In the oral arguments.

1:04:37

The the gun in the Gonzales case. The the justices were a little dubious about all this. They they were very cautious also. Just as Cagan expressed out about whether the court's members.

1:04:48

We're confident to find a middle ground that made any sense she said these are not the nine greatest dinner experts on the internet

1:05:02

Crash the digital economy. And justice clearance Thomas expressed his view that the recommendations provided by these internet platforms is precisely what makes them useful.

1:05:15

You don't want thumbnails on light jazz.

1:05:25

Professor Goldman wrote a blog post today

1:05:32

Argument so much.

1:05:41

He says he's unclear why the court even granted sir.

1:05:52

So, you know, it's gonna come down here anyway. He's he's cautiously optimistic. That the court will uphold the section 230 protections for google in this case and I,

1:06:03

Reverse the tablet case as well and I think I I lean that way also. So, I listened to most of the argument yesterday and it was really hard to figure who was on which side. This is not a,

1:06:14

Partisan thing because we had.

1:06:19

Progressive and conservative justices asking the same kinds of hard hitting questions and and seeming to have the same concerns in mind so.

1:06:31

Will that's encouraging yeah yeah.

1:06:40

The law and the facts and you know, does it? Listening to various commentaries yesterday while I was in the car on the radio, on the news.

1:06:50

You know.

1:06:59

Has out,

1:07:04

Oh gosh that's just like a whole lot like the copyright act.

1:07:15

There was.

1:07:22

Sex and previous to that of of this ability to have the algorithm. Yeah.

1:07:28

Just invented the thing, right? Here, there we go. It also makes me look a little bit at the prints, purple rain, dancing, baby, case of.

1:07:40

The court saying, you can't just have the computer make the decision on fair use. There needs to be a human making it decision. Well.

1:07:48

Yeah and yeah I mean it raises all kinds of issues about.

1:08:02

To

1:08:11

It's almost like a products liability. Kind of a claim.

1:08:19

And,

1:08:23

I think we could all sue the internet at the end.

1:08:38

And we'll have this flood of the gate as he's as.

1:08:42

As Kavanaugh said, you know, I could blow up the internet. Oh, okay. And I have to sound good. Disagree with just as Thomas. If I'm interested in cooking, I might also be interested in light jazz. For while I'm cooking.

1:08:55

Well, and that's where some fuzzy logic and and AI come in, right? That's right.

1:09:13

If you like pasta, I'll diablo then it's gonna be hard rock.

1:09:19

And if you like Alfredo, it's gonna be smooth jazz.

1:09:24

Hey I was super excited that I saw that there's gonna be a six saxophone,

1:09:30

Jazz, presentation, concert at the Dallas Symphony and I'm like, oh my gosh, sign me up. So, there you go. Oh, that sounds really cool. Hope it tours

1:09:39

I will I will send you the link and see if they are touring.

1:09:55

Rulings. So, we'll see

1:10:02

Listeners we appreciate and are grateful for you for spending your time with us.

1:10:13

And we welcome your feet back if you have anything you'd like to tell us you can leave it for us using a voice

1:10:25

Click on that little red flag on the right side of the screen or email us at Entertainment Law update@Gmail. Com or

1:10:32

Tweet us at law at excuse me at in-law update,

1:10:36

And Tamara tell folks how to read you. Sure, they can find me online tee Benette Law. Com or create protect

1:10:44

Dot com. We'll take you to my website

1:10:50

T A M E R A B E N N E T T and yeah we we love to feedback I I know both of us love talking to our listeners or Emailing with folks.

1:11:02

Whether you just have questions you know if you want my

1:11:05

Smooth jazz recommendations for my pasta sauce I'm happy to share all of the above with you so Gordon where folks finding you these days well I'm in Los Angeles and you can find my website Firemark. Com,

1:11:18

My email address is G Fire Market Firemark. Com and on most social media G firemark is the way to find me and I'm just gonna add since we're talking about.

1:11:27

Food and music pairings.

1:11:35

The team and I had talked about John's famous tamale recipes.

1:11:44

Different varieties of of tamales that apparently he's.

1:11:49

He's very proud of. So, if you're interested in hearing about that, send us a little feedback there and we'll we'll see if we can get that published and out to the folks though. Oh, I I'm bracing my hand right now. Alright, I love tamales

1:12:01

So anyway a big thanks to John our managing editor John Janiceek and Charlestone Mark Lindeman

1:12:09

Malhar Oza and Alexis Allen who have.

1:12:13

Stepped up in the absence of some of our other team members who've made their departures recently and I would just say we've got openings if you're interested in joining the fun and being a part of this,

1:12:24

Old entertainment law update family of contributors please reach out to the email address entertainment law update@Gmail. Com,

1:12:31

Is the way to do that? And that's gonna wrap up this episode. I've entertain the law update. Thank you again for listening and until next time.

1:12:39

Music.