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It's entertainment law update episode 157 from May of 2023 the prince files.

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Music.

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Hello, hello, and welcome to Entertainment Law update. From Los Angeles, California, I am Gordon Firemark

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And from the Dallas Fort Worth Metroplex I'm Tamara Bennett. And this is our podcast where we talk about entertainment law. Each month we're pulling together a round up of legal and business news stories and we share our opinions and commentary and analysis and,

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Sometimes have a little fun with things and how are things in your end of the world Tamara?

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Our rental unit down on the coast at South Padre Island over the weekend,

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Packing it in ready to sell it was so crowded,

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What has happened the next day on Sunday everybody had laughed it was back to normal,

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But yes, they actually had a very, very rare,

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Tornado. Not on the island but in one of the adjacent communities over the last 2 weeks. Severe storms. Out of the ordinary for that part of,

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South Texas. So, glad to report that our property was not damaged. But there were a lot of people who had property damage and and one death

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In the in the area. So, but video was a nice, nice trip to get away and see the sunshine and the

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The ocean. Very nice. A few little trips out for conferences and things like that. In fact, I was at a conference middle of last weekend.

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And just as I was getting ready to go and give a presentation talking about copyrights and fair use and things like that. We had a big ruling came back.

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And put me in a in a position of having to take time out and read the opinion and then catch up on things that we're going to talk about that in a few minutes.

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Have I kept thinking do they really need to spend all this time talking about that,

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Before we get into that though let's just talk about a couple of sort of headlines of things that we won't spend too much time on but,

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It's no no mystery or no surprise I think to most of our listeners that

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The writers guild of America has gone on a strike against the motion picture in television association of America no is it is the excuse me the alliance of motion picture and television

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Producers, AMPTP is the collector bargaining,

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Organization on behalf of the producers the writers guild is on strike their concerned about,

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Employment for. Television season is no longer,

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Outfits are doing shorter binge watchable seasons and things like that. So, that's a concern. There's concerns about AI. Everybody's worried. AI is going to put them out of jobs in the writers are no different,

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And also how the streamers account for their listenership and then their profits and things like that. So, a lot on the table, the writers are,

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Out there picking I see them when I drive around LA,

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It's always a spirited group out there on the picket lines.

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Television writers screenwriters are are different breed and they wear costumes and there's themes at different studios where it's really big kind of try to have a little fun with it.

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You know, it's serious business underlying it and in fact, just before the strike struck, the WGA sent out a an email message to all of the representatives who represent writers and we got this notice saying that you know,

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This strike is likely to happen and if the strike,

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Happens then you'll receive a notice that you're not all the representatives are not allowed to do any,

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For the writers with the struck companies. Part of what jumped out at me was the,

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Other members of other unions that have stepped up to support the writers. Yeah. So.

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Imagine dragon and weezer showing up. I'm sure that was planned.

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People on the picket line. So, there seems to be a real consensus across the creative

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Yeah. Well, and you know, it it being contract renewal season, the right of the screen actors guild saga has also requested him and there's actually a vote underway right now for,

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That union's membership to authorize a strike vote,

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Looks like that's going to happen the director's guild is also there so that the saga after contract expires at the end of June I believe,

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They have in the past been,

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Supportive of the writers. Let's not say that I'm in sport. I've just not as,

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DGA contract renewal that sort of took the wind out of the sales of the strike in 2007 so there's a lot writing on this one and Labor does seem to be,

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You know, in solidarity with one another for the moment. So.

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Common view among folks in the industry is that this is going to be a long strike.

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Like we're just of the deal at the at the moment and so,

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Race for a long one. I mean there is no deal to work on do you think there will still be some deals kind of trying to make their way through or

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Well, you know, yesterday, I had a call I'm not calling Email from a client who had held an option on some literary material. He's not AA guilt member.

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And he you know wanted he decided that was a good time to renew this option maybe I can sell it,

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You know, he's basically going to scab, Paramount from AM and I will help him.

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Yeah, for me mostly, I mean, I've always often joked that you know, 1988, the writers strike is what basically sent me to law school. I was working on the TV business and and,

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The strike happened and I was going to be out of work for who knows how long. So, I decided, okay, now is that now's the time to revisit that law school idea.

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Of a different sort and then, you know, as time has passed, I've learned that, nope, when the writers are gone strike, I go on vacation.

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Diversity of things that I do that you know working in the theater and working in the podcasting and digital media arenas I'm not,

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I'm out of the lost for things to do but the screenwriter side of my business is definitely quiet for now.

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For reaching ramifications with when these things happen.

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Don't do any work for our varietors or struck companies.

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You know that administration was kind of interesting but.

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Fashion designer named Katie K A T I E perry,

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Spelled K A T Y perry,

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Brandon merchandise on the tour and I'm not just talking about, you know, the usual tour swag but she has a whole line of clothing. So, the dispute,

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Had been going on in Australia, you know, since the about more than a 10 years now, but,

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In in in in that in that tour,

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Be 100 merchandise line and Katy Perry the artist is not allowed to sell merchandise under the Katy Perry brand so,

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Yeah so someday it was kind of couches the David versus Goliath but.

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2000 072 1008, on her fashion design and as well as business name, domain name, and so you know, first

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First users. First use are senior user senior rights in that territory for the mark on clothing. So, you know, all,

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I think Australian tried Mark Law is fairly similar to ours but again this was not decided under US law but interesting one to kind of watch and keep up with to know hey the little guy the first user should

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And oftentimes does when so,

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Yeah, as far as jury trial and assertions regarding,

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His song thinking out loud,

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From 2014 was just a little too close to Marvin Gaye's 1973 hit let's get it on I do always love when I I have my

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I I talked to my assistant more than once a week but we always talk once a week,

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Verbally talked to one another on the phone. Yeah. Different physical locations but couple of weeks ago, she's like, hey.

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I just saw this stuff on the news about it. You know, so I love that my paralegals picking it up and going. What's going on?

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Yeah, what's going on? Mega hit thinking out loud.

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Sharhan had copied quote harmonic progressions melodic and rhythmic elements that are the heart of gays iconic song May 4 a Julie decided in Sharon's favor finding him not liable no,

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Sharhan had gotten on the stand and not just testified but he actually played guitar on the witness stand for the jury and presented the case that you know these these components that

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The town send a state was, Lifted,

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So that seems to persuade the jury and,

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Stairway to heaven case. For the same thing Marvin Kay's let's get it on,

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Those that have been around for a long time.

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Remember the Pullman Bonds, Structured asset is a partial copyright owner and let's get it on so they had brought a separate suit. I'm

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In a separate court I'm surprised they weren't somehow consolidated but yet they weren't.

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In relationship to the sound recording,

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It's still out there. So, we we shall see. Yeah.

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Well, you know, a case we've been following for a really long time. We've talked a number of.

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Richard Prince, the appropriation artist, he does what he calls himself,

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One of the cases that he bought you may remember back in 2013 there was a case involving photographs of,

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Folks that he had you know scratched off a mulchion and done additional,

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Interpretation for a better term of those works and then publish them or sold them as prints or something and and,

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That was, you know, good, long time, 10 years ago now. But for the last few years, we've been watching this case involving the photograph well

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Yeah, the photograph of the artist. I'm sorry, I'm getting it confused.

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Richard Prince has taken gallery his his representative gallery,

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Displaying some images that he had lifted basically from,

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Instagram photos. Which prints reproduced displayed and offered for sale as part of a series of canvases he calls the new portrait series back in 2015

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Didn't get any permission from these Instagram image owners,

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You know, to do anything with these images. What he did was make these canvases enlarging these screenshots of these Instagram posts.

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And then included a couple of his own comments under the posts in the screenshot so comments,

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Like canal zenian dilam lamb or jam or gobble be good or bird talk you know sort of weird little phrases that he testified had some,

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Autobiographical self-referential meaning and he did at least five different

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Number figures reach these canvases and so on. So, the court had to analyze whether or not Prince's use is fair use.

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And it looked at factor number one transformativeness.

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My goodness, my screen just went dark. Oh, well, that's not good. Well, we're good. So, yeah, the court emphasized that,

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Is Often the heart of the fair use inquiry and princess use of the images is not transformative as a matter of law the court used the standard of a reasonable observer looking at the artworks and the photos side by side

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And ask whether the secondary images have some different character due expression and employ new aesthetics with creative and communicative communicative,

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Aesthetic, And character different from the original work.

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Reinstated and they, And not merely use it to make a statement about something else,

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Other than for which it was created. The photographs are all considered creative work in the court didn't have to go much further than that on the third factor the amount substantiality of the portion used,

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Printed argue that the use of the entire photograph is reasonable and necessary to accomplish his transformative

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Purpose or goal but because the court concluded that it isn't transformative that that argument didn't fail

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Either I didn't work either I should say and on factor for the the potential harm to the market,

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The the court said it weighs slightly in favor of fair use because there was no evidence that there's AA real market and that it applies to a different kind of collector

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Of images. So, ultimately, this summer judgment motion that took a good long time to come.

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What do you have to say, I I don't know the answer to this question and I I don't know if you do so I'll I'll preface it with a statement to say a in light of the

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War hall ruling that we're about to discuss. I had gone back and looked at a different Richard Prince

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Case the the, 2013.

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And the second was, Book guy.

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Making one original work.

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You know, if if you make one work and hang it on your wall, it's probably might be okay. We'll talk about that in a little while. Well, yeah. I mean, my my question is in this case, this Richard Prince case, do we know,

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That the infringing act was the gallery displaying them or was there something else going on that was the alleged infringing,

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Well sorry I don't recall what it yeah I mean it was I think in all of these visual artists kinds of cases we're we're dealing with multiple

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Events that can be could be considered the infringement you know the act of making the the derivative work or of copying essentially is one the active distributing or selling those copies is another the active displaying it in the

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Gallery like you know, public display right? You know, all of those things are,

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Legitimate basis for. You know

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We seem to be now distinguishing which of those where it may be fair use as to one of those but not as to others so the making of the derivative work by Prince may not be,

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Infringement because it's very use but the selling of the images in multiples at the gallery maybe

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In order to display could be so it's sort of.

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Thursday which was what the, The Supreme Court came down with its opinion this a case we've been following and discussing for a couple of years now first talked about an episode's 111 and 132 and 150,

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It's been going on for a while. Lynn Goldsmith is a professional photographer. She was commissioned by news week in 1981 to photograph a then up and coming musician named Prince Rogers Nelson,

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Known as Prince. After which news week published one of Goldsmith's photos along with an article about the man,

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Start it to really make his

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Impression in the industry. The term of the license was a one time only license vanity fair then hired Andy Warhall

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The pop artist to create the illustration and warhole used the

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Goldsmith image to create 16 works now known as the prince series one of the one of those works was a purple silk screen portrait of prints

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And that appeared in the vanity fair article in November of 1984,

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Well after Prince died in 2016 vanity fairs parent company condes nest the warhole foundation the,

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The organization that represents the literary stay or the the

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Copyright estate of the artist they asked about using that reusing that 1984 vanity fair image,

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Prince. Until she saw the orange prince image on the cover of the magazine,

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So she notifies the Eddie Warrell Foundation that she believed it had infringed her copyright.

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And they sued her for declared her judgement for non-infringment or in the alternative of finding a fair use.

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She counts claimed for infringement and the district court considered the four fair use factors and granted Andy Worham Foundation summary judgment

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On the fair use defense stating that the images are transformative and that the illustrations

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Washed away the vulnerability and humanity prince expresses in gold's mass photographs so at the trait should be noted that the trial court,

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Concluded that. The the photographer Goldsmith but that the transformativeness in factor number one was enough to,

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Overrule all that, The Prince series by Warhol was not transformative and thus not fair you send

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Putting the two images of Prince side by side the court the appeals court ruled warhouse peace wasn't transformative because it recognizeably derived from and retained the essential elements,

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Of Goldsmith's photograph. Wrestled with one question that question being weather the first fair use factor the purpose and character of the use including whether such uses of a commercial nature or is for nonprofit educational purposes ways in favor of,

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Andy Warhol Foundation's recent commercial licensing to combat nest,

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So as a seven two decision, The that

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The first factor did not weigh in favor of various.

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The court looks at it and says the first fair use factor considers the reasons for and nature of the copiers use of the original work

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So the Central question is whether the use merely superseeds the objects of the original creation or instead add something new,

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Without further purpose and different character,

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But has to be weighed against the degree to which the use has a further purpose or different character,

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Hey, Focuses on. It focuses on the specific use which is what we alluded to with the Richard Prince case. Yeah.

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Of the work, Differently as to the.

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I kind of, The descent and then the,

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Does it matter does the End use matter and the supreme court seven to two opinion majority opinion says yes it does. Yeah it it really seems like the the court was that,

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Descent or wrestling with this issue of which use are we looking at is it the use made by the artist in creating the work or is it the use made by the owner of the art the,

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Of the new work. By the artist eventually.

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The alleged to be infringing in this case was this commercial licensing of the orange prints to contain next now within some.

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Hey. Because I don't think creating one,

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Hanging it on your wall at home is going to be,

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In and of itself and infringing act. It's a one original work protected by freedom of expression which is not a conversation had here. So,

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Anyway, In the context of Continess special edition magazine commemorating prints the purpose of the orange prints image is substantially the same as that of gold smiths original photograph,

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Use also as of a commercial nature,

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Taken together, Yeah so the foundation argued that the purpose and character of its use of the photograph should weigh in favor of fair use because silk the the warhole silk screen image has a different meaning or message and the district

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You know, the district court said it washed away the vulnerability, humanity of the

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Of the prince. Commercial licensing. So, the seeming to say in the

29:49

implied between the lines, I guess is that, you know, if it was just a sale of one print to a gallery or museum or an individual collector, that's not the kind of commercial use that would outweigh the

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Artistic, That I think nobody argues.

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When Warhol created the work that's the use,

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And invocation of the reproduction right in the work isn't it

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Well it is and I think we look at it if if all

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That it happened was he, Of the photograph. 15 different. Oh let's say derivative works. Yeah. Because that's what they are. Licensed or unlicensed. It's a derivative work from the original photograph.

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And those were. We would have a very different opinion.

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You know, but maybe not, maybe the commercial nature is the gallery again. I'm putting some hypotheticals in here. They're on display at a gallery and that

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Brings in how many millions of visitors and millions of dollars because people want to see the Andy Warhall. Maybe that is a commercial nature. Yeah.

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That was a factor that needs to be reviewed but I think it's a very different yes creating that drive of work without a license I would say by definition isn't infringement then we have to analyze,

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Is creating one driven of work that's never reproduced in any other fashion.

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Versus this situation there was reproduction there was commercial licensing and the use is where the majority landed to say where could I value weight how this was used,

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Weather night the use was infringing and they they did a big,

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Before online is when you said there's been a lot of time talking about things I didn't think they need to spend a lot of time talking about it is a long opinion,

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And I will tell you I feel like the opinion the majority opinion,

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Striking is not the right word. I the majority opinion relied on case law. Now, the bulk of that case law is,

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Terrible woman. Read the footnotes folks those are the best they're the most entertaining because there's a big spot going on between the dissent in the majority and the footnotes in the majority opinion,

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The descent obviously.

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Very much, Opinion. I I would be curious. I'm sure there is some supreme court scholar who's already done this or if there's not.

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Source. Presidential source in her opinion,

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It's as if we didn't we the opinion the majority opinion did not recognize just how much transformation and artistic endeavor war hall,

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Made. Or changed and that that alone should be sufficient not the actual use to claim transformation there was a lot of reliance on,

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Supreme Court or even underlying court cases.

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It was sort of the but it was Andy Warhol argument.

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Yeah. Now, she does rely on the Google recent Google decision.

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And she also, you know, this ultimately came down to,

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Where transformativeness fits in the discussion and transformativeness was a you know it was an well.

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A buzzword in the analysis. How much weight does transformativeness get in the overall analysis in particular,

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Actor and you and I have talked about this in the past and I've sort of asked the question, wait a minute, does transformative just swallow up the rest of the fair use analysis?

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I think correctly saying no it's just one component of one component of the analysis,

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Yeah and I guess what is it? The descent is saying, does the work? Okay, she's saying, before today, before this opinion, we,

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The courts assessed quote the purpose and character of a copiers used by asking the following question,

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Does the work quote add something new with a further purpose or different character

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Altering the original with new expression meeting or message close quote.

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When it did so to a significant degree we the court called the work transformative and held that the fair used test first factor,

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Though other factors could outweigh that one.

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All the majorities protest stations not withstanding leaves are first factor inquiry in shambles

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The majority holds that because war hall licenses work to a magazine as goldsmith sometimes also did the first factor goes against him,

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So I don't think it leaves the first factor in shambles. No. I think it gives us,

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To us as lawyers as representative of content creators, content users, content owners,

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Some actual guidance. Automatically go in favor of fair use.

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You know, they did, they did take a lot,

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But they changed the lyrics they changed the rhythm they changed the bee I mean they convert it to hip hop rap hip hop song,

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Use a commentary. It's beyond just changing.

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Transforming adding to or subtracting from,

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They go on to talk about the difference between parody and satire,

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The the majority says, There weren't enough changes to the prince photograph and light of the commercial nature of the use.

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Versus two live crew yes it was a commercial nature of the use but there were enough changes and their work was commentary,

38:30

Isn't this also in the eyes of the beholder? I mean, there's a whole lot of

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Interesting conversation between the descent and the majority about being art critics.

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Hey But are we asking the court to do that to be an art critic to judge the level and amount of creativity in originality and should the court be in the business of doing that or is there another I mean this is the

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Place we have to make these decisions,

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I mean, you know, if you're going to come to a conclusion that there's been some transformation, transformativeness, then, the court does have to be at least a little bit of a

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Art critic or at least you know, bring some subjective judgement to things. I think that's why the commercial, the commercial aspect of it is a good,

39:28

Counter weight, In that first factor analysis to just say okay it it can be transformative but,

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It's not just transformativeness infected more likely,

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Comes into play and I have to say I think that if the same image had been licensed or same images had been licensed to condemn for a different purpose maybe to do an a,

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An illustration piece about war hall,

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It might have been a different outcome. I don't know. I could be wrong about that but it seems to me that what the courts doing is saying, hey, let's not get too hung up on transformative. There's more to it.

40:21

No we have to now analyze and let's not let transformativeness,

40:29

Yeah or let's say it was used in throwing another one out to talk about the nature of how Warhawk creates his art.

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I think the descent or dug into this was,

40:55

Kinda made me fall back to you can put in a whole lot of

40:59

Idea versus expression. Yeah. You know, okay. So, we had all these ideas and this is how we applied the art. I I don't think it

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To me from a copyright,

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Protection standpoint. Does it matter to me how the artwork is created because those are your ideas, the expression is the final fixed work.

41:20

Hey, I mean correct. Yeah. It's.

41:31

Those are the tools you use to create the final one.

41:35

And I feel like Kegan's been a lot of time talking about the effort that Warhall put and I'm please I am not an art critic.

41:51

Is the transformation it's not the effort that is put into it that makes the transformation you gotta look at the final work no matter how you created it,

42:00

Well, you know, as you said, some of the footnotes were the most worthy reading of the whole opinion and and a one of the put notes

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The courts are takes issue with this idea that,

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The fact that it was Andy Warhol was enough to say well that's transformative that's you know that and and,

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It's a whirl or it's transformative. The the court agrees with the court of appeals that the that logic would create a certain kind of privilege.

42:33

That has no basis in copyright law, Code isn't denying that the war hole was a major figure.

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So Yeah, Kagan says, look, if we hold any other way, it would potentially authorize a range of range of commercial coping of photographs to be used for purposes that are substantially the same as those of the original,

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And as long as the user somehow portrays the subject to the photograph differently he could make

43:05

Modest alterations to the original sell it to an outlet to a company a story about the subject and claim transformative use.

43:12

Lots of photographs will be open to very interpreted is also discussion of you know if we if we look if you consider transformativeness the main thing every adaptation of a book into a movie,

43:22

Is transformative because it's a different,

43:26

Right? Yeah. And there's interpretation that goes on.

43:34

And and they did this comparison of the the one place at the word transformative are the root transform shows up in the copyright actis,

43:43

Underrivitive works. And anybody it's very nature war halls prints,

43:53

I decided to make a movie on a John Grisham knob. It would be a derivative work.

43:59

I don't. You know, I probably get sued for infringement if I could such a thing and lose.

44:14

Well, that's right. Unless I'm somehow making a commentary.

44:19

Yeah, that's the another distinction between this case and the Campbell case, the the pretty woman is and the court says, look, because this has no critical bearing on

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Goldsmith's photograph. The song was at least in part,

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Cracking wise are making a commentary about the original pretty woman and how sort of plain vanilla and and,

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You know, pure of thought that it that message of that song was,

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Here, You know, again, it's a very commercial nature of the uses with the court steam stove, the hung it's had on. So,

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My air conditioner clicked on. Oh yeah. The specific use of goldsmith photograph alleged

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To infringe or copyright is AWF's licensing of orange prince to contain nast so that is the alleged use to which the court is applying the fair use,

45:54

Factors. To determine if there was a fair use or not. But a lot of the commentary that you referenced earlier is has been centered around the idea that well wait a minute is that really an infringing use in the first place?

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At least that's the argument that seems to support Kegan's view it is hey,

46:20

And if that was fair use then all use of this new original.

46:33

Okay so let's take a series of Abraham how many princess he has,

46:42

And have a whole collection. Yeah. And maybe I want to have some cool, funky,

46:55

Out of the ordinary. I turn normal way to display coffee modes.

47:00

Would we be having this conversation if they're,

47:11

Any. The parties made the decision to only appeal and apply have the court answered this question on transformation but,

47:34

You can't outweigh the other factors. So, I think the court could say it was transformative and then in my example of mass market coffee mugs or maybe it's not mass market, it's just a high-end collectors.

47:48

The commercial purpose is going to eat it up.

47:56

Yeah, Passages from this opinion that says if if the world foundation must pay goldsmith to use her creation

48:07

To descend claims. This will stifle creativity of every sort. Fort the expression of new ideas in the attainment of new knowledge and make our world poorer. That's from Cagan's opinion.

48:19

Somewhere says these claims will not age well it will not impoverish our world to require a WF to

48:25

Pay goldsmith a fraction of the proceeds from its reuse of her copyrighted work recall payments like these are the incentives for artists to create original works in the first place.

48:39

Snuff out the light of western civilization returning us to the dark ages of a world without teaching Shakespeare and Richard Rogers and the descent goes on it so

48:49

There's a lot of shade throwing in the language of these opinions. Would you agree? Oh, I think my kackle,

49:02

Your kids feisty people. And these are people who typically have you know on ideological issues. They seem to have come down on the same side most of the time.

49:13

Shows us that in actual property questions,

49:17

There's there's not transcend politics.

49:31

Question about transformative used and derivative works in any way it says this is actually footnote five,

49:40

And and the text it says To preserve the right the degree of transformation requires require to make quote transformative youths of an original work,

49:57

That's in the body of the case. The footnote. In theory, the question of transformative,

50:05

Or transfer almighty purpose.

50:15

However in prior impractice however the 2 may over lap,

50:21

So, transformative use or transformative purpose? Well, I think they're probably was a transformative purpose,

50:32

Prince series but was the,

50:40

It it didn't make a standard,

50:45

So the majority was was five of the justices and then just a gorsuch and justice,

50:54

Jackson, Gorsuch is point of view.

51:04

With questions of artistic purposes latent in the two images and their aesthetic character and those kinds of things. He says, instead the first fair use factor requires courts to assess only whether the purpose and character

51:16

Of the challenge to use. Is the same as a protected use.

51:28

Miss Goldsmith's image to know that much is to know the first,

51:38

And even say if the founder says if the foundation had sought to display whirl's image of Prince in a nonprofit museum or a for profit book commenting on 20th century art the purpose and character of that use might well point to fair use but that's not this case

51:53

Here, For her own protected photograph in sales of magazines looking sales to magazines looking for images of prints to accompany articles about the musician,

52:09

I think that's summarizes the, The situation really really well.

52:21

We want to comment on our comments. Yeah. You want to tell 'em how to do that and maybe we'll get some great clips we can play. Our next recording. Well, come on over to entertainment law update

52:33

And on that website there's a little red tab on the side of the screen that allows you to record your own,

52:39

A message to us and we would love that we'd love to have a little tidbits to play but you can also just send us an email at Entertainment Law update@Gmail. Com or tweet,

52:49

And law update and, Reach out to us in any way that feels comfortable. Send us a smoke signal if you can.

53:06

And interestingly our friend Franklin Graves who we often hear from. I don't think we heard from him on this one yet but we we I'm sure we will.

53:19

Yeah. Yeah. And there's also a really just a shout out to really,

53:25

Short article by Jonathan Bailey over at plagiarism today,

53:30

how the war hall ruling could change very use and basically including it's too soon to tell but it'll be years or decades before we really see the the fallout of this case but I think that

53:42

You know, the Richard Prince situation that we talked about a minute ago of a few minutes ago.

53:51

Denial of summary judgment, Just by keeping going with the case,

54:03

It's the use I think they're going to have to really his his team while both parties are on that case are going to have to really analyze what is the infringing use,

54:16

Yeah, yeah and I do feel like in in both these cases, there's a there is a bit of the David and Goliath. You know, here's the big famous artist taking advantage of the little lesser known artist,

54:27

And so you put that in front of a jury now you know I think you take your,

54:36

Richard Prince Yuse is different.

54:43

One thing I wasn't clear on and maybe you know the answer to this is what happens now in the Goldsmith,

54:50

Claim. Share use.

55:04

Concluded not fair use and now the spring court so does it go back to the district court for a disposition in in line with this tight must,

55:13

I I think it has to and sorry I I

55:16

My I had the opinion saved on my candle and now it's in addition to deleting all of my changes. My heart lights it now. I can't get it to open up to see what

55:26

The, Theo. The order was but I bought. This order was just affirming the lower the night circuit so we'd have to go back and look at the night circuit opinion and just I didn't get a chance to do to go do that. So,

55:40

I don't think there was ever a trial on damages or,

55:49

Presembly they go back. We have a couple of other cases the same day as this this opinion came out the court issued two other,

56:08

Rulings that we need to talk about one was the sort of big ruling and the other one was saying hey look that won't we just did pay attention,

56:17

I think we might have talked about this in the previous episode.

56:27

And by not bringing down, Content or song. So, on January 1 of 2017, there was an a terrorist attack on a nightclub in Istanbul Turkey that left 39 people dead and 69 injured,

56:40

And it was a lone gunman who entered the nightclub and shot off 120 rounds into the

56:45

Crowd about 700 people. They released a statement claiming responsibility for that attack. So, in the years leading up to that,

57:00

They had used various forms of social media, Twitter, YouTube, Facebook, and so on for recruiting fundraising and spreading propaganda

57:07

By uploading various videos and messages and as common,

57:13

Different forms of social media. The platforms use algorithms to match users with content based on the the accounts use history and interest.

57:22

Matt included matching users with various forms of ISIS content including these fundraising messages and so on.

57:28

So, the play defs are saying, these social media platforms were crucial in allowing ISIS to grow and spread its message of terror. They ledge that the platforms were complicit in the rise of the organization.

57:40

And because despite having knowledge of the content uploaded,

57:50

Content. In this case. So,

58:12

Algorithm the scheme employed by Google allows the company to profit from,

58:21

Google has reviewed, Mechanism and approved it approve them to carry ads with them so,

58:33

Youtube has profited from the existence of those videos on this platform.

58:40

Section eight section 23 33 of title 18 of the United States code says that parties who've been injured by reason of an active international terrorism may sue for damages against parties who aid and a bet,

58:55

By knowingly providing substantial assistance or who conspire with the person who committed the act.

59:00

So there's position is that these social media companies aided in a better ISIS,

59:04

And, Originally the district court dismissed their complaint for failure to stay to claim but the ninth circuit reversed and they found that planets plausibly alleged that the social media platforms

59:15

Did in fact aid and a bet ISIS end there for the case could proceed.

59:31

That this justice against sponsors of terrorism act that they're invoking did allow for parties to sue anyone who provided assistance to her conspired with terrorists,

59:42

Ultimately the crux of the issue is whether the social media platforms aided in a better and and that,

59:49

That requires a certain level of sort of actual knowledge I guess that the defendant must have consciously and culpably participated in the wrongful act to help the crime succeed and the court failed to resolve this question and said

1:00:03

You know, we we don't have to deal with that. We just also determine, you know, what,

1:00:10

Did the defendant really do plain of said

1:00:13

All they had to do is provide some aiding and a bedding assistance,

1:00:21

That it actually ate and I bet the criminal act itself,

1:00:25

And the court said, well, neither of those is right.

1:00:38

Assistance and the terrorist act. In this situation, the court says an under this set of facts, the key is whether the defendants gave such knowing and substantial assistance to Isis that they culpably participated,

1:00:53

Queer. You know Isis uploading to the platforms that was like any other user the algorithms were doing what they do for every user,

1:01:04

That these specific terrorist to carried out the attack was using these platforms to actually plan the attack.

1:01:19

The algorithms were not were operating the way they always do. The fact that some bad actors took advantage of these platforms is insufficient to state a claim.

1:01:28

That defendants knowingly gave substantial assistance in there by aid in the bed,

1:01:35

With respect to Google and they, Sharing in in revenues the night circuit,

1:01:42

That doesn't give rise to liability and therefore that allegation also fails and and

1:01:47

It refers to this other case that we're going to talk about. Do you have anything you want to bat on that one?

1:01:51

No I mean I think it gonzales be google was handed down.

1:01:56

Did the same day. Yeah. We talked about it. The Scottish case pending in our 154th issue in February of this year. In it.

1:02:07

Kind of similar set of facts and situations but instead of this,

1:02:14

The section, you the section. So, instead of that three, yeah, it's focuses on section 230 of the communication decency act of 1996. That's the basis of the claim.

1:02:27

No he may gonzalez Naomi I'm not sure miss Gonzalez was an American student that was killed in an ISIS attack in Paris in 2015,

1:02:37

That Google was liable for promoting ISIS under the anti-terrorism act.

1:02:49

The algorithm on YouTube with then suggest the videos to people as recommended viewing,

1:02:56

And this would be the part where Google would have been liable for supporting terrorism so you watch one on this topic.

1:03:03

We're going to give you some more on the same topic to watch.

1:03:15

Does not protect Google, And it's active making these recommendations. The Biden administration also brings this up in an amicus brief,

1:03:30

Elaborating that the algorithm and YouTube automatically play the next video it's recommending essentially auto play of terrorist materials shouldn't curliability,

1:03:44

In the infancy of the internet that's an understatement the provision said

1:03:49

Quote no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided

1:03:59

By another, Any social media platform we've got out there. Facebook, Twitter, whatever it might be.

1:04:24

Generated by third party user. So, in a three page, unsigned percurium opinion, the Supreme Court vacated in a recommended case to the ninth circuit

1:04:35

To consider whether the Twitter VTAM,

1:04:39

Case opinion we just discussed,

1:04:43

What impact that's going to have in the outcome in this Google case

1:04:46

So we're the Twitter case focused on the anti-terrorism act Gonzales vote

1:04:51

Focused on this section 230 of the communications decency act but the allegations of secondary liability are materially identical,

1:05:02

The court and Gonzales suggest that in light of Twitter,

1:05:08

Planets are going to fail in this case once it's remanded. So, we we will see. I I assumed, don't you think they'll remain and get an opinion or do you think they'll settle?

1:05:33

Gonzales case went in favor of YouTube.

1:05:41

The the, What did they say they they vacated and reminded it back to the ninth circuit to consider now in light of the Twitter ruling which I think supports what the,

1:05:53

The ninth circuit did and the Gonzales case the first timer on so yeah I think I think the ninth circuits you know

1:05:59

Likely to go ahead and remand it,

1:06:05

I don't remember how it went in the trial. Anyway, you know, the issue a ruling and that's consistent with its prior ruling as well as this Tampa

1:06:12

Decision. So, The defendant,

1:06:32

One one where looking at that decisions of the court and how the laws interpreted we I myself need to I need to remind myself that there were real people

1:06:42

Involved. There will be.

1:07:03

In the courts and you know there's been a lot of call in congress to,

1:07:10

Depthenscope of protection in the in that lawn

1:07:13

So this may be, Create an impetus in congress at a if congress could accomplish anything.

1:07:21

That's the other question. These rulings fall.

1:07:37

I think I think it's these are rightly decided who might have disagree with the Supreme Court, right?

1:07:42

Oh, we do that all the time. Oh, yeah. Don't tell, don't tell,

1:07:49

I do want to put just one little thing in here for folks to be watching for we got an email last week from from attorney Henry Self about the taco Tuesday,

1:08:04

I'm in the kitchen. My husband is watching the horrible beating at the Dallas Stars are taking,

1:08:11

In the playoff game last night for hockey and all of a sudden, I hear and see LeBron James talking about reclaiming tacos, reclaiming Tuesday

1:08:21

So Taco Bell is in AA pending action to cancel a registration for the mark

1:08:28

Trademark taco Tuesday. They have started an end. Add campaign with LeBron James.

1:08:35

So anyway I suspect we'll be talking more about time.

1:08:38

Taco Tuesday next month but I love that Henry pointed it out and I just

1:08:44

My husband is like, what are you mumpling about over there?

1:08:49

Oh, it's the taco Tuesday trademark dispute. This is fantastic.

1:09:01

That has registered for some long time now 20 years or something,

1:09:09

Third party who has a state registration for taco Tuesday and.

1:09:28

Some kind of ruling next month and I I know we had mentioned to Henry we had a lot to talk about on this roof.

1:09:35

Thank you Henry and LeBron James is on board for reclaiming taco Tuesday,

1:09:43

Yes and exactly. By the way, if you are a listener of the show and you hear or see a story in the news,

1:09:49

Or our case opinion that you're aware of that you think we should be covering please do reach out to us the same thing,

1:09:55

As I said before, the voice widget on the website, it entertainment law update. Com, or you can

1:09:59

Email us entertainment law update@Gmail. Com or the Twitter handle is at an awe update or

1:10:06

You know, ping one of us on on LinkedIn or anywhere. Other social media, Facebook, whatever.

1:10:15

That's going to bring us to the end of this episode of entertainment law update and we'll say thank you thank you to you our loyal listeners for spending your time with us,

1:10:27

Find you You know, most social media at Tamara Bennett and that is how you find me on LinkedIn for sure which tends to be where I'm a little more active these days.

1:10:39

Website Tibin@Wall. Com or create protect. Com. We'll get you there

1:10:44

And from Los Angeles I'm Gordon Firemark the website is@Firemark. Com the email address is G Firemark at Firemark

1:10:51

Dot com and on most of those social media websites I am known as G firemark

1:10:56

Let's give a big thank you and shout out to our crack team of volunteer contributors managing editor John,

1:11:02

Who by the way is getting married in a couple of weeks so good luck to you with that John and,

1:11:08

I should say congratulations to you and good luck to your bride is the traditional.

1:11:18

Marco, I didn't get didn't connect with him but he was in town so I was like sharing all my favorite Fort Worth,

1:11:32

Texas hotspots. And I was down at Atlanta where he lives a few weeks ago and I completely missed the boat

1:11:36

Didn't reach out to him for dinner or something like that. So, apologies for that but

1:11:40

also say thanks to Charles Thorn for his contributions, Mel Harza, Alexis Allen, and Violet Jang are all contributors on the show and we really, really appreciate all that they do and if you are interested in joining the fun as part of our team,

1:11:54

Let us know. Send us an email. Entertain a law update@Gmail. Com.

1:12:03

Music.