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1:33

You're listening

1:35

to Intuit from Vulture in New York Magazine.

1:37

I'm your host, Sam Sanders. And

1:40

I want talk about a video I

1:42

saw on the internet a few weeks ago.

1:45

It was this video for unicorn

1:47

dolls that poop. in

1:50

the commercial, they're dancing and singing

1:53

about how they poop. What you

1:54

gonna do with all that poop? All that

1:56

poop? Yeah, woo, woo, woo. I'm a poop poop

1:59

poop, oh yeah I'm gonna get loopy like

2:01

my poopy My poop, my poop, that's how I

2:03

poop My poop, my poop, check it out

2:06

And this song that they're singing, it has an uncanny

2:08

resemblance to a Black Eyed Peas

2:10

song You know, my

2:12

humps Whatcha gonna do with all

2:14

that junk, all that junk inside your trunk

2:17

I'ma get, get, get, get you drunk Get

2:19

you low drunk off my hump My

2:21

hump, my hump My hump, my hump,

2:23

my hump My hump,

2:24

my hump I love this unicorn poop song

2:27

But the Black Eyed Peas do not They

2:30

are suing the makers of the unicorn

2:32

poop dolls over this very,

2:34

very catchy bop. And here's

2:37

the thing, this video, it could

2:39

just be fun and giggles for me, but

2:42

this case and a few other cases like it

2:44

working their way through the courts right now, they could

2:47

actually have a big impact on the kinds of

2:49

music we get to hear, the kind of

2:51

art we consume, and the kinds of

2:53

things that get to hang in museums.

2:55

So today we're going to talk unicorns

2:58

and poop, but also another

3:00

fight between Andy Warhol's estate

3:03

and a photographer who took a classic photo

3:05

of Prince. Their argument, their

3:07

case, it's gone all the way up to the Supreme

3:10

Court. To explain all of

3:12

this is Mark Joseph Stern. He works for Slate

3:15

and he's one of my favorite Supreme Court reporters.

3:18

Mark, great to have you here.

3:20

Thank you so much for having me on. It

3:22

is delightful to be with you and to

3:24

be talking about Poopsie's slime

3:27

surprise, which is a really

3:29

great break from my usual beats, but

3:32

still oddly very important

3:34

to freedom of speech in this country. There

3:36

you go. There you go. Before we get into the legalese

3:39

of it all, I have to ask, point blank,

3:42

do you like the Unicorn Poop Song? Be

3:44

honest. I think like is not

3:46

a strong enough word for it. I love the Unicorn

3:49

Poop Song. I

3:50

would like to say that I watched it 10 times

3:53

just to prepare for this recording, but

3:55

I just became infatuated with it. I

3:57

think it is a brilliant work of art.

3:59

I think it is transformative.

4:03

I think it is really, I think, deserving

4:05

of the legal protection that

4:08

its makers insist upon. But, you

4:10

know, I tend to kind of err on

4:12

the side of free speech. I'm

4:14

kind of skeptical of overzealous

4:16

copyright assertions. And

4:19

so it was always inevitable I was gonna

4:21

be on team Poopsie Slime Surprise here.

4:24

Poopsie Slime Surprise, I love

4:26

it. Let's just lay

4:28

out for listeners really quickly who haven't been

4:30

following this case, what are

4:32

the Poopsie Slime Surprise folks

4:35

arguing? And what are the Black Eyed Peas arguing?

4:37

Yeah, so Poopsie

4:40

Slime Surprise is a line of unicorn dolls

4:44

that excrete sparkling

4:46

slime. Stop right there. That

4:48

is their charm. Stop right there. It's

4:50

just amazing. Just for that alone, they

4:52

should win. Anywho, go ahead. Yeah,

4:55

I totally agree. I mean, look, the ingenuity

4:57

that went into making this doll is like,

4:59

what will humans do next? This is like

5:02

just below taking us to the moon to me. But,

5:05

you know, they've made these dolls, they wanna market them,

5:07

right? So they have

5:10

this video that they put out that's designed

5:12

to be a viral video. And as you

5:14

said, it features the Poopsie Slime

5:17

Surprise Dolls animated singing a song

5:19

that sounds a lot like My Humps. So

5:22

of course, not everybody is a fan of

5:24

this. The record label that owns the

5:26

rights to My Humps goes

5:28

to court and files a copyright

5:31

lawsuit and says, you know,

5:33

this is clearly infringing on

5:36

our copyright to My

5:37

Humps, the song by the Black

5:40

Eyed Peas. The lawyers for

5:42

the label claim, and I'm quoting, that the Black

5:44

Eyed Peas are arguably the most popular

5:47

and recognized pop musical group

5:49

in the past 30 years, which

5:52

I think is a contestable statement,

5:55

but we'll just go with that. And

5:57

they say basically that this is...

5:59

really kind of offensive

6:02

to the artistic integrity

6:05

of the Black Eyed Peas and my humps. That's okay,

6:07

okay, okay. The Black Eyed Peas are offensive

6:10

to me as a person. Have

6:12

you heard these songs? Go

6:15

ahead, go ahead, go ahead. I'm

6:17

just telling you what the lawyers say here. I'm

6:19

not stepping up for this label. They say

6:21

that the fans deserve

6:24

better than this, that the millions

6:26

of folks around the world deserve

6:29

to be

6:29

able to listen to my humps and my humps

6:32

alone and not have that experience

6:34

diluted by pooping unicorns.

6:37

And they say that basically this company

6:40

has just ripped a song

6:43

whose rights are fully protected in order

6:45

to sell a product. And that is like

6:48

the quintessential copyright violation. And

6:50

they're asking for more than $10 million in

6:52

damages, plus

6:54

an injunction that takes that video off

6:56

the internet forever.

6:58

Are the unicorn folks just saying, well,

7:01

actually, we didn't make my humps. We made my

7:03

poop. Because they do say my poop. My poop, my poop,

7:05

my poop. Yeah, so I mean, obviously,

7:08

you're right. What the unicorn folks are saying,

7:10

and they haven't mounted a full on defense

7:12

here, but their basic argument

7:15

is, look, there's copyright. Of course,

7:17

you know, people get to hold the rights to their

7:19

intellectual property and their art. But

7:22

there's also this thing called fair use

7:25

that is built into copyright law that has

7:27

really from the founding of this country that

7:30

is designed to kind of create a buffer for freedom

7:32

of expression. And fair

7:35

use is pretty complicated,

7:36

but at its heart it says that if

7:39

you want to take an original

7:41

work and transform

7:43

it into something else by commenting

7:46

on it, by making fun of it by changing

7:48

its meaning or its message, you are

7:50

allowed to do that without paying

7:53

money to the original copyright

7:55

holder. And so what the unicorn folks are

7:57

saying is, you know, we were sort of making

7:59

fun of my humps. We were

8:02

trying to parody the

8:04

original meaning of it by tying

8:06

it into these ridiculous unicorns, by changing

8:08

it from being about butts to the thing that

8:11

butts make, which is poop. And

8:13

in doing so, we really transformed

8:15

it into a different and new work of art

8:18

that falls outside the original copyright.

8:20

And so this is an act of freedom of speech,

8:23

not an act of copyright right infringement.

8:27

Who's gonna win?

8:28

This is a really tough case,

8:30

I have to say. And one of the issues here

8:32

is that as much as I want to just

8:35

stand up for the unicorn poop folks, because

8:37

what a righteous battle, you know, they have

8:39

launched here, truly. They

8:42

have a problem, which is that

8:44

historically, and especially in Supreme

8:46

Court precedent, this idea

8:49

of transforming a piece of art

8:51

through parody, it's usually

8:53

involves something that's not so crassly

8:56

commercial. So the unicorn

8:58

doll people are trying to

9:00

sell a product, right? And

9:02

that is- They're not making art for art's sake. They're

9:05

not making art for art's sake. They're not making

9:07

a song that they want to perform

9:10

for the masses. They're not making some

9:12

kind of short film that they want to submit

9:14

to the Oscars. Like, you

9:16

know, they're just really wanting to

9:19

get these dolls in the hands of young

9:21

children. And, you

9:24

know, it really leads to, I think, a very authority

9:26

question, because

9:28

intuitively that makes sense to me. Like, yeah,

9:30

this is basically an ad, and that's

9:32

different from a traditional work

9:34

of art. But at the same time, like it's 2023, all

9:38

art is commercial on some level.

9:40

Like you make a parody song, you're trying

9:42

to sell downloads, you make a parody

9:45

film, you're trying to get people to

9:47

buy the rights to it. Like this

9:49

is not an easy line to draw

9:51

and this is a problem that's gonna keep

9:54

coming up in all of these cases.

9:56

Alright, time for a quick break, but before we

9:58

get started, I want to thank you for watching. Before

10:00

we go, got a job for you. If

10:02

you like this show and want to support it, we

10:05

could use your help. Subscribe to Intuit

10:07

on your favorite podcast app. Leave

10:10

us a rating and review on Apple Podcasts,

10:12

and most importantly, share the show

10:14

with your friends. Tell your friends about this show

10:16

IRL. Every little

10:18

bit helps.

10:23

It's been three years since the world shut down,

10:26

and things are mostly back to normal-ish,

10:29

But one thing seems forever changed. Office

10:31

workers are not commuting downtown

10:34

five days a week. It's got people worried

10:36

about a vicious cycle. Property values

10:38

will fall further, taxes will have to rise

10:41

further, government spending will have to fall further, more

10:43

people will leave, and so forth and so forth, and we get

10:45

into this urban doom loop. So as today explained,

10:47

we're asking how to break the loop. Maybe

10:50

it's changing the perception of crime. There

10:52

are several visible signs of disorder

10:55

that are not necessarily

10:56

related to crime that are

10:58

causing people to feel that cities have become unsafe.

11:00

Maybe it's making buses and trains

11:03

free.

11:03

Metro bus could soon be a free

11:05

ride. A proposal unveiled today would get rid

11:08

of Metro bus fares in D.C. Maybe

11:10

the solution

11:10

is you. You talking to me? City

11:13

limits from today explained, dropping

11:15

over the next few weeks wherever you listen.

11:24

Here's a question. Can science tell

11:26

us what makes something funny?

11:29

Girl, science, where have you

11:31

been? Comedians like Atsuko Okatsuka

11:34

want to know.

11:34

We've been just flailing

11:38

around, screaming in

11:40

the streets.

11:41

And scientists' best answer might

11:43

actually come from Skittles. Is

11:45

the jelly bean or the Skittles one? A Skittles

11:47

study. I'm supposed to offer you these Skittles.

11:50

Would you like these Skittles?

11:53

There's pretty

11:55

good evidence that laughter is a form of communication.

11:58

So then the question becomes, well, what does as a communicator.

12:03

This week on Unexplainable, the science

12:05

of humor. Follow Unexplainable

12:07

wherever you listen for new episodes every

12:10

Wednesday.

12:12

So if this makes the podcast, people are gonna

12:14

be listening to me like, this is not funny at all.

12:17

So the reason we're doing this episode, I

12:20

see the poop black

12:22

eyed pee story. I tell my editor,

12:24

I'm like, this is interesting. And

12:27

then we do some Googling, turns

12:29

out

12:30

a similar case is

12:32

right in front of the Supreme Court,

12:35

same kind of issues at play, but

12:37

this one involves the estate of

12:39

Andy Warhol and

12:41

a photographer who took a classic photo

12:44

of Prince.

12:45

What's that case? So this

12:47

is an amazing case. I was lucky enough to

12:50

be in the Supreme Court for

12:52

oral arguments when it went down. And

12:55

it's another pretty difficult one to

12:57

my mind because there are legitimate

13:00

free speech arguments on both sides.

13:02

So here's the background. There's

13:04

this photographer named Lynn Goldsmith who

13:06

took this iconic photo of

13:08

Prince. If you Google Lynn Goldsmith Prince, you'll

13:10

see the picture, you'll recognize it. In 1984,

13:14

Vanity Fair commissions Andy

13:16

Warhol to use that picture as the

13:18

basis of a new work of art. Vanity

13:21

Fair pays Goldsmith a paltry $400

13:26

to license the photograph as

13:27

the basis of this painting. And

13:29

Andy Warhol produces a work that I think most people

13:32

would also be very familiar with. It's

13:34

this silk screen painting of

13:36

prints that has a kind of hollowed out

13:39

feeling. It's very flat, his

13:41

face looks mask-like. It is different

13:43

from the original picture, but obviously

13:46

based upon it. So Vanity

13:48

Fair puts that on its cover. Andy Warhol

13:51

actually goes on to create a bunch more

13:53

works, 14 more works in total

13:55

based on that picture.

13:57

and nobody ever pays Goldsmith any-

13:59

like the only money she ever got

14:02

for this was the 400 bucks from Vanity Fair

14:04

upfront for her to basically mail

14:06

them that photograph. 2016, Prince Dies,

14:08

Vanity Fair puts that

14:10

Andy Warhol painting on

14:14

the cover of its magazine as

14:16

a tribute to Prince. And

14:18

Lynn Goldsmith comes out of the woodwork and says, hey,

14:21

what are you doing? You know, I licensed

14:23

my photograph for this one painting this one time,

14:26

and you are putting it on the cover cover

14:29

of your magazine

14:29

all these years later to try to

14:32

sell copies. You owe me

14:34

money. You need to settle this. And

14:36

instead of actually responding

14:38

to Lynn Goldsmith, basically

14:40

the Andy Warhol estate

14:43

decides, Oh, you know, we have a problem

14:45

here because we now own 15 Andy

14:49

Warhol works that are all based on this

14:51

photograph. Uh, Vanity Fair is

14:53

sort of caught in the middle, like, Oh, we don't

14:55

know what to do. So the Andy Warhol estate

14:58

goes to court and says, you know what, Lynn

14:59

Goldsmith, we're going to sue you. Wait,

15:02

wait, stop. They sued Lynn? They're

15:04

going to say, how are they going to sue Lynn? We need

15:06

this court to tell the world that

15:09

we own the rights to these works, that

15:11

all these paintings and drawings are ours,

15:14

and that you do not have any copyright

15:16

claim over this. So Lynn is the one who gets

15:18

sued, and that is how this case makes

15:20

its way up to SCOTUS. Wow. Is

15:22

there a scenario in which Lynn or

15:25

the Warhol estate could have just been like, here's

15:27

a little bitty check, go away. They didn't wanna do

15:29

that?

15:29

So I think

15:32

the problem here, and this is

15:34

me like editorializing, go

15:37

back to 1984 when all this begins. Vanity

15:40

Fair tells Goldsmith, like we

15:42

want your photograph for a painting.

15:45

It doesn't tell her that it's gonna

15:47

be an Andy Warhol painting. So

15:50

she's probably thinking they're gonna get

15:52

some like low rent artist in a Brooklyn

15:54

loft which at the time was probably like $20 a month

15:57

in rent to just do

15:59

some quick

15:59

brushstrokes and touch it up and put

16:02

it on the cover. And then she finds

16:04

out, oh my God, it was Andy

16:06

Warhol. Not some random. Yeah,

16:10

he's gonna turn my prints photo into like 18 Campbell's

16:12

soup cans

16:13

of different colors. Yeah, yeah, exactly

16:15

right. And I think, and if you read

16:17

the briefing, this kind of comes through. Like, I

16:20

think she still holds a grudge about that, that

16:22

she only ever got 400 bucks to

16:25

provide the inspiration for this famous

16:27

series. And so I don't think she was

16:29

ever really gonna settle because she has

16:32

held this grudge for decades and this

16:34

was like her time to shine.

16:36

I love anybody who holds

16:38

onto a grudge all the way to the Supreme Court.

16:41

Sign me up, sign me up. You

16:43

told me when I chatted with you last week about this

16:45

case that it was going to be a quote, atomic

16:48

bomb in the art world. Why?

16:52

So there's really

16:54

two sides. I'm not gonna try to take

16:56

a side here, but both of them have a

16:59

whole lot to lose from this case. Start

17:02

with the photographers. Every photographer

17:04

you've ever heard of has weighed in in this case

17:06

and said, like this is an existential

17:09

threat to our profession because photographers

17:12

need to be able to get paid for their work. And

17:14

if you can just take a picture and

17:17

touch it up and make it look a little different

17:19

and say, oh, I don't know anybody anything, then

17:22

photographers are all gonna be penniless

17:23

and out on the street and their profession will

17:26

go away. That's what they say at least. But

17:28

then look on the other side. So on the other side,

17:30

you've got all of these artists,

17:32

all of these museums, all

17:35

of these lawyers who do art law. You've

17:37

got the Met, you've got MoMA, you've

17:39

got the Art Institute of Chicago, you've got the Robert

17:41

Rauschenberg Foundation, the Roy Lichtenstein Foundation

17:44

saying, if this is really

17:46

infringement, and if the lower court's

17:49

decisions are upheld here, because

17:51

the lower court ruled in favor of the photographer,

17:53

then we are terrified,

17:56

absolutely terrified, that we're gonna

17:58

get slapped with.

17:59

suit after suit based on what is

18:02

hanging on our walls, because

18:04

we have a lot of modern and postmodern art. And

18:07

the reality is that a lot of that stuff is

18:09

derivative. A lot of that stuff is based

18:11

on previous works by previous

18:13

artists. You know, it has all kinds of

18:15

components from other works that

18:18

are sort of incorporated and transformed.

18:20

And they're like, we think we are

18:22

gonna have to shut our doors or make our walls

18:25

bare, because we are gonna

18:27

be terrified of Lynn Goldsmiths

18:29

of the world,

18:29

all crawling out of the woodwork and

18:32

forcing us to either pay a huge amount

18:34

of money or take down the paintings that we

18:36

thought we owned all the rights to.

18:39

So you were there for oral arguments.

18:42

I'm very jealous. What was the mood like

18:44

in the room? And can you make any predictions

18:46

about how the justices will rule

18:48

based on what you heard and saw?

18:50

So the mood was alternately kind

18:52

of goofy and tense. The

18:56

lawyers there arguing for both sides

18:58

did a really good job, I think, and

19:01

the justices were seemingly

19:03

groping toward a solution in

19:05

good faith without any partisan

19:08

valence. And I think that's important to note because

19:10

look, most of the cases I cover, there's some

19:12

kind of political angle, whether we're talking about

19:14

elections or race or

19:17

even free speech, a lot of that stuff

19:19

does play into politics. This

19:20

is not so clearly political.

19:23

This is a case that is all

19:26

about art and what

19:27

constitutes art, and when

19:30

a new kind of art gains

19:32

its own kind of independent existence.

19:35

And I think that the justices

19:37

really probably leaned away from

19:41

Lynn Goldsmith and toward

19:43

Andy Warhol for much

19:45

of the argument. You could tell that

19:48

these justices were worried about

19:50

the free speech issue here, that

19:52

if Lynn Goldsmith wins, that these museums

19:54

are gonna have to shut their doors and all of these artworks

19:56

will disappear or

19:57

get sued into oblivion. But

19:59

And I thought this was a really

20:02

interesting and kind of notable shift

20:04

in the room. You started hearing

20:06

concerns about technology and you

20:09

started hearing concerns about how

20:11

the rise of phones

20:14

and AI apps and cameras

20:16

that everybody has and

20:18

can use to manipulate pictures

20:21

and all that stuff, how that could affect

20:23

the analysis here. Because the

20:25

court hasn't considered one of these cases in a long

20:27

time. people didn't even have flip phones the

20:29

last

20:29

time the court took up a case like this. And

20:32

now they're having to deal with the fact

20:35

that you don't have to be Andy Warhol to transform

20:37

a photograph. You can have an AI

20:40

app that transforms a picture. Yeah,

20:43

exactly. You can have an AI app that makes you look like

20:45

a sexy villain or like

20:47

a buff superhero in a hundred

20:49

different photos. And you

20:52

know, if somebody else took that picture of you, you could

20:54

say, well, you know, you don't own that. through the AI

20:56

app and now I own all these pictures. Or

20:59

you just airbrush

20:59

it and suddenly your face looks nicer.

21:02

You say, well, I own this picture because I

21:04

made it original.

21:05

Well, that's the thing. We've seen

21:08

this struggle play out in court cases for as

21:10

long as people have owned art or ideas about

21:12

art. But is it really, really fundamentally

21:15

different now with the AI of it all

21:17

and the speed at which computers and programs

21:20

can generate

21:22

a thousand Prince Warhols in

21:24

two minutes?

21:25

Yeah, I think it is. And I

21:27

don't admit that lightly, but I

21:30

really think this is a challenge to this entire

21:32

area of law, because the way it

21:34

was built up before was like,

21:37

people really put their blood, sweat and tears

21:39

into transforming these works. There's

21:41

a famous case where there is a parody of

21:43

the song Pretty Woman, the Roy

21:46

Orbison song. This group

21:48

called Two Live Crew decided to do their

21:50

own. Oh, I was hoping you'd get to Two Live Crew. I was

21:52

hoping you'd get to it.

21:54

I had to say that, smile

21:56

my face is okayö The

21:58

ladder of pornographic

21:59

That goes up to the Supreme Court. The question

22:02

is, well, is that fair use? Is it transformative?

22:05

And the court says yes. And one of the big

22:07

reasons is because they say, well, look, two-life

22:09

crew put a lot of thought and

22:11

care into devising

22:14

this parody of the original and

22:17

really made sure to kind of take the

22:19

ideas that were expressed in the original

22:22

and turn them on their head. I could

22:24

read you a quote. This is

22:26

Justice Souter, who is famously

22:29

not a guy with

22:29

a good sense of humor, though I love

22:32

him. He says, two live crew

22:34

juxtaposes the romantic musings

22:37

of a man whose fantasy comes true

22:40

with the degrading taunts, a

22:42

body demand for sex, and

22:44

a sigh of relief from paternal

22:47

responsibility. Oh, my God. Like,

22:49

I mean, he's really getting into it. And,

22:51

like, that was back in the 90s. Okay,

22:55

today, I can go onto Chat

22:57

GPT and ask it to write

22:59

a hundred

22:59

parodies of Pretty

23:02

Woman. And they all might be better

23:04

than the first one. And I didn't

23:06

put anything into that. And I really

23:09

don't know whether it's still

23:11

transformative when I outsource the work

23:13

to a robot. And I think that's one of the big

23:15

issues that this court has to decide.

23:19

Pizza woman, pretzel woman, pretend

23:21

woman, party woman, pregnant

23:24

woman, plastic woman, pandemic

23:27

woman,

23:27

hustle woman, pineapple woman,

23:32

the

23:32

general woman. Well folks, here we are.

23:35

Former president Donald Trump appears

23:37

on the brink of being indicted by a Manhattan grand

23:39

jury. I'm Preet Bharara, the

23:41

former US attorney in Manhattan. My

23:44

podcast, Stay Tuned, is about law,

23:46

justice, power, and democracy. This

23:49

week I discuss the latest news with a group of former federal

23:51

prosecutors who understand how the justice

23:54

system really works. Joyce

23:56

Vance, Barb McQuaid, and

23:58

Ellie Honig. We discussed the

23:59

questions on everyone's mind, like,

24:02

can you directly tie Donald Trump

24:05

to the way these payments were booked and

24:07

logged?

24:08

Are prosecutors considering additional

24:10

defendants or additional charges? Is

24:12

this the kind of conduct that merits a charge

24:15

of a former president of the United States? I think

24:17

this is a serious crime prete, and I think it's one that

24:19

I would charge. And where do we go from

24:21

here? The presidency from prison,

24:24

right? I mean, add to the crazy. Add

24:26

to the crazy. To listen, just

24:29

search Stay Tuned wherever you get your podcasts.

24:31

New episodes drop every Thursday.

24:35

Stay tuned.

24:37

From New York Magazine and

24:39

the Vox Media Podcast Network, this is

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24:47

Or is it the Don Lemon Show with 100% more understanding

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24:53

Just kidding. This is On with Kara Swisher

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25:02

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Swisher, listen wherever you get your podcasts.

25:09

It is it.

25:15

I wanna talk more about how

25:18

this ruling, these rulings will affect

25:21

how we consume pop culture, entertainment

25:23

media, all of it, because I have been

25:25

thinking about, I have been thinking a lot

25:27

about rights and licensing and who owns

25:30

what in terms of audio and

25:32

song use and podcasting. When

25:35

I started out in audio, we

25:38

basically had free reign to use whatever

25:40

song we wanted to and we just said fair use. And

25:43

if we were discussing this song in

25:46

a manner that offered commentary or analysis or

25:49

education about it, we could use as much of the

25:51

song as we wanted to. And something

25:54

happened. Oh, I want

25:56

to say around the rise of the streaming

25:58

era, These r-

25:59

record labels began cracking down a lot.

26:03

And now if you listen to podcasts,

26:06

you will just hear less popular songs

26:08

in podcasts than you did 10 years

26:11

ago. And there are even some podcasters

26:14

who've had to pull down episodes

26:16

they've already published because the

26:18

labels changed their mind later about how

26:20

much they could use. And so as

26:23

a podcaster who was experiencing that in the

26:25

music licensing world, my

26:27

general default stance on this kind of stuff is

26:29

like, make it as open as possible.

26:33

How is that struggle in that world different

26:35

from what we're seeing with these

26:37

cases here? And is it fair

26:40

for someone like me to say, open it

26:42

all up, even with the AI, because it's better

26:44

open than closed?

26:46

So I think that's perfectly fair. And I

26:48

don't think that struggle is meaningfully

26:50

different from everything we've been discussing

26:52

up till now. It's the same issue

26:55

of when you are transforming

26:57

original work into something

26:59

that's new and novel and changing its

27:01

meaning or message. And that's true

27:04

of whether it's parody of whether it's Andy Warhol's

27:06

Silk Screen or whether you're playing a clip of

27:08

a song in a podcast about pop music

27:10

so you can deconstruct it and talk

27:12

about what it means. It's true of even

27:15

interspersing

27:16

your podcast with music

27:18

to try to tie together the segments.

27:21

Like that stuff is really common

27:23

and it really, it was not until recently that

27:25

record labels started cracking down. I think a good

27:27

analogy here is sampling in popular

27:30

music, especially rap and hip hop. You

27:32

know, for a long time, creators

27:35

who sampled previous works didn't even credit

27:37

or pay royalties for it. They just took

27:39

it. Now, I dare you

27:41

to go look at the credits for a

27:43

single song on Beyonce's Renaissance.

27:46

Okay, there are like 10,000 people credited on each song each

27:51

song because like just

27:54

any snippet of a previous

27:56

work that she used her label

27:59

understandably

27:59

felt like they had to credit it.

28:02

And that's what we're facing now in the media

28:04

world as well. It's the same issue where

28:06

we're all afraid of these suits. And I think

28:09

one of the problems here is actually built into

28:11

copyright law. So fair use

28:13

is what we call an affirmative defense. And

28:16

that means that you can only raise

28:19

it as a defense when somebody else has

28:21

accused you of stealing their work. And

28:24

that means that you are already

28:26

in trial facing

28:28

a jury over

28:29

your alleged infringement on somebody's

28:32

copyright, trials cost a lot of money.

28:34

Nobody wants to go through an entire trial.

28:37

Like you might pay your lawyer for that trial

28:39

more than it would have cost to just settle early

28:42

on. And so what a lot of rights

28:44

owners have realized, and that includes music

28:47

labels, is that if they just threaten

28:49

to sue, you're not gonna be like,

28:51

oh, this is fair use. How dare you assault

28:53

me with this? It's my free speech. You're gonna say, oh

28:56

my God, how can I pay you? to make

28:58

this go away. Yeah.

29:00

Yeah. How much of

29:02

all of this, the music industry

29:04

stuff, the poop stuff, the

29:07

war health print stuff, how

29:09

much does the whole public

29:11

domain of it all play into this? From my

29:13

understanding, once anything is a hundred years

29:15

old, anybody can do whatever they want

29:17

to do with it, right?

29:19

So it's a great question. And I actually

29:22

think that the shrinking

29:24

of the public domain has led

29:26

to a lot of the disorders and

29:29

pathologies that we see in copyright

29:31

law today. So back at

29:33

the founding, when the framers

29:35

wrote the constitution, they envisioned a

29:38

very large and robust public domain

29:40

and really did not expect copyrights

29:42

to last for very long. The

29:45

whole point of copyrights was

29:47

to protect your work for like a

29:49

short amount of time so you could get some money

29:51

off of it and then release it into

29:54

the wild like a young whale

29:56

who has been rehabilitated to go find

29:58

its home and family.

29:59

live its own life. Like Thomas Jefferson

30:02

would not have wanted the Black

30:04

Eyed Peas label to sue the My Poops

30:06

people. I promise you that. But question,

30:09

would Thomas Jefferson think

30:12

my humps and even my poop is

30:14

a bop?

30:15

Oh, 100%. He

30:17

was a freaky guy. Like we don't need to get

30:19

into it, but that man was twisted.

30:23

So the problem is that, you know, people

30:25

own the rights to their work. They make a

30:28

lot of money off of it. what happens in the United

30:30

States when you make money, you spend

30:32

it on elections and

30:34

on politicians. And so what has

30:37

happened over the centuries is

30:39

that corporations that own a ton

30:41

of copyrights have periodically

30:43

gone to Congress and asked Congress

30:46

to extend the length of copyrights

30:48

by decades and decades and decades. And

30:51

that is how we're in this position today when

30:54

stuff is only entering the public domain

30:56

a century after it has been published. There's

30:58

actually this complicated formula that involves

31:01

the time since the creator's death, but like a century

31:03

is kind of a good shortcut

31:05

here. And so the most recent

31:07

time this happened, it was because Mickey Mouse was

31:09

gonna enter the public domain. So Disney went

31:11

to Congress and said, hello,

31:14

like give us a couple more decades on this gravy

31:16

train. And people called that the

31:18

Mickey Mouse Copyright Act. And the Supreme

31:20

court actually upheld it seven to two

31:23

and said, in short, like we

31:25

don't care about the free speech concerns. We

31:27

don't care about the public domain.

31:30

Like if corporations and Congress

31:32

wanna give the rights holders just

31:34

an endless gravy train off this stuff, it

31:36

is not the court's business.

31:39

So

31:41

then I wanna know

31:44

what would change for me as a consumer

31:46

of entertainment and pop culture based

31:49

on the Supreme Court's ruling. But

31:51

I also feel like hearing this conversation,

31:54

It's hard to know because this fight's

31:57

not going to die. they'll be a ruling

31:59

on the war Prince thing, but as AI

32:02

continues to change the whole cultural landscape,

32:04

there'll be more stuff about that. Is

32:06

this just going to be an ongoing fight? And

32:09

if so,

32:10

what does it look like? Yeah,

32:13

I think this fight's going to go on forever as long

32:15

as there's a lot of money on both sides.

32:18

I think it's really notable that here, both

32:20

Lynn Goldsmith and the Andy Warhol Foundation

32:22

were able to hire two of the most prominent

32:24

and expensive Supreme Court litigators to

32:27

argue this case. Like, there is big money

32:30

here, and it is because copyright

32:32

still produces a whole lot of moolah for

32:35

the people who own them. And so, yeah,

32:37

I wish I could predict exactly

32:40

how this plays out in the future. I

32:42

can't for the reasons you just laid out.

32:44

Like, it's a really big unknown, and

32:47

however the court rules here, it's

32:49

gonna

32:50

end up

32:51

producing some new controversy that comes

32:53

back in a couple of years and they have to do it all over again.

32:56

What I would say is that in the end, Congress

32:59

really has to come in here and set

33:01

some ground rules. And I know that's

33:03

a big LOL because Congress doesn't

33:06

do anything. And that is generally

33:08

true. But I think when you're dealing

33:11

with stuff like AI, where

33:13

somebody can take a copyrighted work and

33:15

transform it a hundred times over in

33:17

a second and then try to say that's fair

33:19

use, the courts are

33:21

not competent to deal with that, just

33:23

as they aren't competent to decide what's

33:26

art and what's not. And that's sort of the

33:28

fundamental question in this case, you know, is

33:30

the Andy Warhol work like a different piece of

33:32

art or is it just a crass copy? The

33:35

courts have long said like, we don't want to do that.

33:37

We are bad art critics. We do

33:39

not have good taste in this stuff. Well,

33:41

they might personally think they do, but

33:44

most of them are humble enough to understand

33:46

that like they cannot be the tastemakers

33:48

for the country. And I think the task

33:50

really does fall on

33:51

Congress to decide how

33:53

you write a new copyright law

33:56

that does respect the rights of people who

33:58

own this intellectual property.

33:59

while allowing creators,

34:02

podcast hosts, painters, interesting

34:05

and thoughtful people to work

34:08

off that original and develop something

34:10

new without getting slapped with

34:12

a multi-million dollar lawsuit.

34:15

Yeah,

34:16

yeah. You know, the majority of listeners

34:18

to this show are not coming

34:20

for Supreme Court commentary, although they're gonna

34:23

love this, but they're just like, you know, pop

34:25

culture fiends like me. They're Vulture fans,

34:28

and they're really concerned and want to know more about

34:30

the stuff they watch and read and the celebrities

34:32

who make it, for just

34:34

like a devoted pop culture junkie, hearing

34:37

this conversation, saying to themselves,

34:40

well, I want to know how to be on the right side of this. What

34:43

should our North Star be as we follow these

34:45

fights in these cases? How

34:47

should I consume art differently or better

34:49

knowing that all of these fights are happening?

34:52

What's your advice to viewers like me?

34:56

I mean, look, I think I fall in the same

34:58

bucket as you where

35:01

more freedom is better.

35:04

And one of the defining

35:06

moments here for me was when

35:09

Olivia Rodrigo's album came

35:11

out, obviously loved it, you

35:13

know, I am homosexual, I love her,

35:15

Joshua Bassett,

35:17

Rotten Hell, et cetera.

35:19

I'd prefer you, you look happy

35:21

and healthy Not me if you ever

35:23

cared to ask And

35:25

that album

35:26

came out, had a lot of bops And then

35:28

the rights holders started

35:30

coming out Like sneaking out of

35:32

the bushes and saying, hey This song

35:35

sounds a lot like a Taylor Swift song

35:37

This song or a Paramore song Sounds

35:39

a lot like a Paramore

35:40

song Whoa,

35:42

I never meant to break But

35:45

I got it where I want it now Now, whoa,

35:47

it was never my intention to break

35:51

Just to get all the way from you now

35:52

And you better lay down some

35:55

money and give some credit

35:57

if you want these songs to stay on the radio

35:59

And I think that was just

36:02

total BS. Like Olivia

36:05

Rodrigo was not doing anything different

36:07

from Michelangelo or Leonardo da Vinci,

36:09

honestly. Like those dudes- Wait, stop, stop, stop, stop. I

36:12

wanna say those words. We're

36:15

putting Olivia Rodrigo up there

36:17

and I love it. I love it, go ahead. Yeah. I

36:20

would say she's like below Michelangelo,

36:23

but above Raphael. That would be

36:25

sort of my ordering.

36:26

But

36:29

look, like those guys were looking around,

36:31

seeing what other people did at the

36:33

time in Florence and Rome and wherever,

36:36

and copying some of it. Like the

36:38

Renaissance artists from top

36:40

to bottom were absolutely incorporating

36:43

other people's ideas and other people's work, and

36:45

that has held true throughout all of history.

36:48

And this idea that just because the bridge

36:52

of one particular song kind

36:54

of sounds like the bridge of another, that if you

36:56

put them side by side, you sort of hear

36:59

the resemblance. Like that

37:01

is not to me a copyright

37:03

violation. It shouldn't be. And

37:07

like that is the quintessential example

37:09

of somebody transforming somebody else's idea

37:11

into something new and fun and expanding

37:14

the universe of art that everybody on this

37:16

planet gets to enjoy. Exactly. Also,

37:18

whenever I hear people fighting over your pop song

37:20

sounds like mine. It's like, if it's on top 40 radio,

37:23

it's only four chords anyway.

37:25

Let's not act like any of you we're doing rocket science

37:28

with this music.

37:29

No, and there's a limited number

37:31

of keys on a piano. Exactly,

37:34

exactly. There's only so much you can do

37:37

to come up with new stuff, and that's fine. Like

37:39

we enjoy hearing people put fresh spins

37:42

on older work. And I think if

37:44

everybody's terrified of these suits, then

37:46

they're not gonna be making as much work

37:49

as they want to, and we're not gonna be enjoying

37:51

as much music and film and art as we

37:53

want to. And so I understand, like,

37:56

look, If you love Paramore and you hate

37:58

Olivia Rodrigo, like

37:59

you're probably gonna come down on Paramore's side

38:02

of this, right? You're gonna be like, screw

38:04

Olivia, like she stole this, like

38:06

I am team Paramore all the way, like

38:08

fork over that copyright money. And I

38:10

get that, I do. But you've got

38:13

to think of the bigger picture, which is that

38:15

like we live in 2023, everything

38:18

that's been done will be done

38:20

again, everything that can be done has already

38:22

been done. We're building off each other's ideas

38:25

and we should just err

38:28

on the side of letting people

38:29

come up with interesting

38:32

new ways to express stuff, even if they're

38:34

building off the works of their

38:37

ancestors. Describing Paramore as an ancestor

38:39

makes me feel very old, but Sam, I think it's the truth.

38:41

It's the truth. It's the truth.

38:44

So what I hear you saying is, justice for

38:46

Olivia Rodrigo,

38:48

justice for Warhol, justice

38:50

for the My Poop unicorns.

38:53

Let it all be free.

38:54

I could not agree more, thank you. You

38:56

know, you could do my job. You've summarized it beautifully.

39:00

When should we expect to know something about

39:02

this Warhol Prince case from SCOTUS?

39:05

So this was one of the first cases that the

39:07

court heard this term back in October.

39:09

And I think a decision is likely to come

39:12

down probably by April,

39:14

if not by May. It

39:17

won't be one of the big blockbusters to come

39:19

down in June, I suspect. They'll want to clear their

39:21

plate. But the fact that we haven't

39:23

gotten a decision yet suggests that the court

39:25

is divided. If it takes this long, it usually

39:27

means somebody's got the majority, somebody's writing

39:29

a dissent, there might be some concurrences,

39:32

and there's a chance that the court could divide so

39:35

badly

39:35

that they don't end up really solving anything.

39:37

This happens all the time at the Supreme Court.

39:40

Like you get four justices saying one thing,

39:42

three saying another thing, two saying another thing, and

39:45

then nobody actually really

39:47

wins. And that is a possibility

39:49

in this case. So as much as the entire

39:52

artistic industry just wants a clear

39:54

answer here, the court might not give

39:57

one and that means we will all be in the same

39:59

place perhaps

39:59

in the My Poops case, trying

40:02

to figure out what is original art,

40:04

what is copyright infringement, and what falls

40:06

in the vast chasm in between.

40:09

There we go. Well, I'll be

40:11

staying tuned and I will be

40:13

watching for your feedback on whatever this

40:15

ruling is.

40:16

I'll be listening and paying very

40:18

close attention to which samples you use

40:21

so I can notify Sony that

40:23

you are infringing. I

40:26

just need Olivia Rodrigo

40:28

to make an acoustic tearjerker ballad

40:30

rendition of my poop, my poop, my poop. That's

40:33

what I want.

40:35

I would gladly play the piano

40:37

in the background of that. Sign me up. Yes.

40:41

Mark Joseph Stern, find his Supreme Court

40:43

reporting over at Slate. Please

40:45

come back anytime. Always a pleasure, thanks

40:48

so much.

40:51

Listeners, if you liked what we discussed

40:53

in this episode, go check out an

40:55

episode over at Switched on Pop.

40:58

It's called Invasion of the Vibesnatchers.

41:01

It's all about how a lot of pop music really

41:03

does sound the same because so many artists

41:06

are interpolating or incorporating

41:08

musical ideas from songs by

41:10

other artists and re-recording or

41:12

re-imagining them. It's really good. Trust

41:15

me, go listen. It's great.

41:18

All right, Intuit is hosted by

41:20

me, Sam Sanders. The show is produced

41:22

by Janae West, Travis Larchuk, Gabi

41:25

Grossman, Jelani Carter, and Taka

41:27

Zinn. Our fearless editor is Jordana

41:30

Hochman. Our engineer is Daniel Turek.

41:32

Our music is composed by Breakmaster

41:34

Cylinder. And Hannah Rosen is the

41:36

head of audio at New York Magazine. All

41:39

right, listeners, we are back on Friday with a

41:41

brand new episode. Till then, be good

41:43

to yourselves.

41:44

Bye. Phantom woman, pumpkin

41:47

woman, perfume woman, pancake

41:49

woman, penguin woman, pillow

41:52

woman, popcorn woman, Pop-pop-sicle

41:54

woman, pomegranate woman, polaroid

41:57

woman,

41:57

pankong woman, porcelain woman. Peekaboo

42:00

woman