1 00:00:02,437 --> 00:00:09,917 It's entertainment law update episode 157 from May of 2023 the prince files. 2 00:00:10,000 --> 00:00:15,120 Music. 3 00:00:14,964 --> 00:00:21,924 Hello, hello, and welcome to Entertainment Law update. From Los Angeles, California, I am Gordon Firemark 4 00:00:22,274 --> 00:00:35,354 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, 5 00:00:35,841 --> 00:00:39,561 Sometimes have a little fun with things and how are things in your end of the world Tamara? 6 00:00:50,658 --> 00:00:54,918 Our rental unit down on the coast at South Padre Island over the weekend, 7 00:00:59,417 --> 00:01:02,237 Packing it in ready to sell it was so crowded, 8 00:01:04,153 --> 00:01:09,253 What has happened the next day on Sunday everybody had laughed it was back to normal, 9 00:01:10,885 --> 00:01:14,645 But yes, they actually had a very, very rare, 10 00:01:16,360 --> 00:01:26,860 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, 11 00:01:27,514 --> 00:01:36,694 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 12 00:01:36,768 --> 00:01:43,068 In the in the area. So, but video was a nice, nice trip to get away and see the sunshine and the 13 00:01:43,448 --> 00:01:44,828 The ocean. Very nice. 14 00:01:49,074 --> 00:01:55,374 A few little trips out for conferences and things like that. In fact, I was at a conference middle of last weekend. 15 00:01:55,952 --> 00:02:03,812 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. 16 00:02:07,790 --> 00:02:15,050 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. 17 00:02:17,881 --> 00:02:21,421 Have I kept thinking do they really need to spend all this time talking about that, 18 00:02:25,124 --> 00:02:32,634 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, 19 00:02:34,199 --> 00:02:39,119 It's no no mystery or no surprise I think to most of our listeners that 20 00:02:39,208 --> 00:02:49,948 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 21 00:02:50,280 --> 00:02:54,120 Producers, AMPTP is the collector bargaining, 22 00:02:55,556 --> 00:03:00,176 Organization on behalf of the producers the writers guild is on strike their concerned about, 23 00:03:03,739 --> 00:03:04,999 Employment for. 24 00:03:15,163 --> 00:03:17,203 Television season is no longer, 25 00:03:19,583 --> 00:03:29,543 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, 26 00:03:31,843 --> 00:03:41,003 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, 27 00:03:41,737 --> 00:03:44,017 Out there picking I see them when I drive around LA, 28 00:03:48,621 --> 00:03:51,741 It's always a spirited group out there on the picket lines. 29 00:03:51,885 --> 00:04:00,565 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. 30 00:04:01,101 --> 00:04:15,741 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, 31 00:04:16,000 --> 00:04:19,000 This strike is likely to happen and if the strike, 32 00:04:19,619 --> 00:04:24,839 Happens then you'll receive a notice that you're not all the representatives are not allowed to do any, 33 00:04:29,233 --> 00:04:31,093 For the writers with the struck companies. 34 00:04:39,937 --> 00:04:42,457 Part of what jumped out at me was the, 35 00:04:43,169 --> 00:04:48,989 Other members of other unions that have stepped up to support the writers. Yeah. So. 36 00:04:54,988 --> 00:04:59,348 Imagine dragon and weezer showing up. I'm sure that was planned. 37 00:05:04,216 --> 00:05:10,456 People on the picket line. So, there seems to be a real consensus across the creative 38 00:05:10,833 --> 00:05:21,933 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, 39 00:05:23,472 --> 00:05:26,592 That union's membership to authorize a strike vote, 40 00:05:28,315 --> 00:05:36,355 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, 41 00:05:41,558 --> 00:05:43,898 They have in the past been, 42 00:05:45,726 --> 00:05:49,566 Supportive of the writers. Let's not say that I'm in sport. I've just not as, 43 00:05:52,270 --> 00:06:03,130 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, 44 00:06:05,656 --> 00:06:08,476 You know, in solidarity with one another for the moment. So. 45 00:06:14,047 --> 00:06:18,607 Common view among folks in the industry is that this is going to be a long strike. 46 00:06:26,308 --> 00:06:30,088 Like we're just of the deal at the at the moment and so, 47 00:06:32,267 --> 00:06:33,407 Race for a long one. 48 00:06:47,018 --> 00:06:54,858 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 49 00:06:55,214 --> 00:07:03,854 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. 50 00:07:05,270 --> 00:07:10,370 And he you know wanted he decided that was a good time to renew this option maybe I can sell it, 51 00:07:10,851 --> 00:07:12,471 You know, he's basically going to scab, 52 00:07:20,799 --> 00:07:23,679 Paramount from AM and I will help him. 53 00:07:34,373 --> 00:07:44,253 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, 54 00:07:45,132 --> 00:07:52,392 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. 55 00:07:57,141 --> 00:08:03,621 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. 56 00:08:08,556 --> 00:08:14,976 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, 57 00:08:16,343 --> 00:08:21,803 I'm out of the lost for things to do but the screenwriter side of my business is definitely quiet for now. 58 00:08:26,191 --> 00:08:30,331 For reaching ramifications with when these things happen. 59 00:08:36,310 --> 00:08:39,250 Don't do any work for our varietors or struck companies. 60 00:08:41,378 --> 00:08:43,898 You know that administration was kind of interesting but. 61 00:09:01,759 --> 00:09:06,379 Fashion designer named Katie K A T I E perry, 62 00:09:14,767 --> 00:09:16,987 Spelled K A T Y perry, 63 00:09:22,599 --> 00:09:30,759 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, 64 00:09:31,610 --> 00:09:36,710 Had been going on in Australia, you know, since the about more than a 10 years now, but, 65 00:09:38,479 --> 00:09:41,599 In in in in that in that tour, 66 00:09:50,470 --> 00:09:51,070 Be 67 00:09:58,500 --> 00:10:04,920 100 merchandise line and Katy Perry the artist is not allowed to sell merchandise under the Katy Perry brand so, 68 00:10:06,512 --> 00:10:11,132 Yeah so someday it was kind of couches the David versus Goliath but. 69 00:10:20,169 --> 00:10:27,669 2000 072 1008, on her fashion design and as well as business name, domain name, and so you know, first 70 00:10:27,839 --> 00:10:36,659 First users. First use are senior user senior rights in that territory for the mark on clothing. So, you know, all, 71 00:10:37,471 --> 00:10:49,831 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 72 00:10:49,912 --> 00:10:52,252 And oftentimes does when so, 73 00:10:56,601 --> 00:11:01,581 Yeah, as far as jury trial and assertions regarding, 74 00:11:04,649 --> 00:11:06,809 His song thinking out loud, 75 00:11:07,260 --> 00:11:17,220 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 76 00:11:17,648 --> 00:11:21,548 I I talked to my assistant more than once a week but we always talk once a week, 77 00:11:22,691 --> 00:11:29,871 Verbally talked to one another on the phone. Yeah. Different physical locations but couple of weeks ago, she's like, hey. 78 00:11:30,080 --> 00:11:36,740 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? 79 00:11:36,688 --> 00:11:38,308 Yeah, what's going on? 80 00:11:49,453 --> 00:11:51,553 Mega hit thinking out loud. 81 00:12:04,046 --> 00:12:17,666 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, 82 00:12:18,116 --> 00:12:27,476 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 83 00:12:27,461 --> 00:12:29,261 The town send a state was, 84 00:12:31,440 --> 00:12:32,220 Lifted, 85 00:12:39,668 --> 00:12:42,008 So that seems to persuade the jury and, 86 00:12:50,390 --> 00:12:51,830 Stairway to heaven case. 87 00:13:02,120 --> 00:13:04,880 For the same thing Marvin Kay's let's get it on, 88 00:13:13,525 --> 00:13:16,045 Those that have been around for a long time. 89 00:13:17,018 --> 00:13:18,878 Remember the Pullman Bonds, 90 00:13:25,012 --> 00:13:30,292 Structured asset is a partial copyright owner and let's get it on so they had brought a separate suit. I'm 91 00:13:30,585 --> 00:13:34,845 In a separate court I'm surprised they weren't somehow consolidated but yet they weren't. 92 00:13:44,619 --> 00:13:47,019 In relationship to the sound recording, 93 00:13:51,241 --> 00:13:55,421 It's still out there. So, we we shall see. Yeah. 94 00:13:56,177 --> 00:14:03,117 Well, you know, a case we've been following for a really long time. We've talked a number of. 95 00:14:08,031 --> 00:14:11,271 Richard Prince, the appropriation artist, he does what he calls himself, 96 00:14:13,201 --> 00:14:20,101 One of the cases that he bought you may remember back in 2013 there was a case involving photographs of, 97 00:14:24,751 --> 00:14:29,371 Folks that he had you know scratched off a mulchion and done additional, 98 00:14:30,218 --> 00:14:37,698 Interpretation for a better term of those works and then publish them or sold them as prints or something and and, 99 00:14:38,264 --> 00:14:46,844 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 100 00:14:46,996 --> 00:14:52,276 Yeah, the photograph of the artist. I'm sorry, I'm getting it confused. 101 00:14:54,036 --> 00:14:59,376 Richard Prince has taken gallery his his representative gallery, 102 00:15:02,057 --> 00:15:05,537 Displaying some images that he had lifted basically from, 103 00:15:06,666 --> 00:15:07,446 Instagram photos. 104 00:15:15,884 --> 00:15:24,344 Which prints reproduced displayed and offered for sale as part of a series of canvases he calls the new portrait series back in 2015 105 00:15:24,463 --> 00:15:27,883 Didn't get any permission from these Instagram image owners, 106 00:15:29,451 --> 00:15:37,311 You know, to do anything with these images. What he did was make these canvases enlarging these screenshots of these Instagram posts. 107 00:15:37,850 --> 00:15:43,430 And then included a couple of his own comments under the posts in the screenshot so comments, 108 00:15:44,728 --> 00:15:54,508 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, 109 00:15:55,163 --> 00:15:59,883 Autobiographical self-referential meaning and he did at least five different 110 00:15:59,941 --> 00:16:06,601 Number figures reach these canvases and so on. So, the court had to analyze whether or not Prince's use is fair use. 111 00:16:07,089 --> 00:16:10,629 And it looked at factor number one transformativeness. 112 00:16:16,352 --> 00:16:23,492 My goodness, my screen just went dark. Oh, well, that's not good. Well, we're good. So, yeah, the court emphasized that, 113 00:16:27,173 --> 00:16:27,893 Is 114 00:16:28,974 --> 00:16:42,834 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 115 00:16:43,251 --> 00:16:52,431 And ask whether the secondary images have some different character due expression and employ new aesthetics with creative and communicative communicative, 116 00:17:02,426 --> 00:17:03,426 Aesthetic, 117 00:17:03,983 --> 00:17:06,443 And character different from the original work. 118 00:17:18,576 --> 00:17:19,836 Reinstated and they, 119 00:17:26,372 --> 00:17:29,852 And not merely use it to make a statement about something else, 120 00:17:39,515 --> 00:17:41,255 Other than for which it was created. 121 00:17:53,262 --> 00:18:02,142 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, 122 00:18:03,110 --> 00:18:08,630 Printed argue that the use of the entire photograph is reasonable and necessary to accomplish his transformative 123 00:18:08,746 --> 00:18:14,686 Purpose or goal but because the court concluded that it isn't transformative that that argument didn't fail 124 00:18:14,975 --> 00:18:20,135 Either I didn't work either I should say and on factor for the the potential harm to the market, 125 00:18:22,195 --> 00:18:32,515 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 126 00:18:32,719 --> 00:18:38,179 Of images. So, ultimately, this summer judgment motion that took a good long time to come. 127 00:18:49,382 --> 00:18:50,702 What do you have to say, 128 00:18:53,811 --> 00:19:01,971 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 129 00:19:02,363 --> 00:19:09,983 War hall ruling that we're about to discuss. I had gone back and looked at a different Richard Prince 130 00:19:10,375 --> 00:19:11,575 Case the the, 131 00:19:14,426 --> 00:19:15,566 2013. 132 00:19:25,742 --> 00:19:27,362 And the second was, 133 00:19:34,303 --> 00:19:35,623 Book guy. 134 00:19:41,045 --> 00:19:43,905 Making one original work. 135 00:19:51,047 --> 00:20:03,387 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, 136 00:20:04,155 --> 00:20:12,375 That the infringing act was the gallery displaying them or was there something else going on that was the alleged infringing, 137 00:20:15,480 --> 00:20:24,420 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 138 00:20:24,590 --> 00:20:39,770 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 139 00:20:39,741 --> 00:20:45,081 Gallery like you know, public display right? You know, all of those things are, 140 00:20:47,357 --> 00:20:48,797 Legitimate basis for. 141 00:20:56,746 --> 00:20:57,526 You know 142 00:20:57,934 --> 00:21:09,694 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, 143 00:21:10,619 --> 00:21:16,859 Infringement because it's very use but the selling of the images in multiples at the gallery maybe 144 00:21:17,226 --> 00:21:19,626 In order to display could be so it's sort of. 145 00:21:29,874 --> 00:21:31,854 Thursday which was what the, 146 00:21:36,212 --> 00:21:47,132 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, 147 00:21:49,112 --> 00:22:00,392 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, 148 00:22:03,795 --> 00:22:04,755 Known as Prince. 149 00:22:05,838 --> 00:22:10,218 After which news week published one of Goldsmith's photos along with an article about the man, 150 00:22:14,472 --> 00:22:16,632 Start it to really make his 151 00:22:16,884 --> 00:22:18,204 Impression in the industry. 152 00:22:26,859 --> 00:22:32,139 The term of the license was a one time only license vanity fair then hired Andy Warhall 153 00:22:32,539 --> 00:22:36,679 The pop artist to create the illustration and warhole used the 154 00:22:36,977 --> 00:22:45,797 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 155 00:22:46,097 --> 00:22:49,997 And that appeared in the vanity fair article in November of 1984, 156 00:22:50,976 --> 00:22:57,516 Well after Prince died in 2016 vanity fairs parent company condes nest the warhole foundation the, 157 00:22:57,989 --> 00:23:01,829 The organization that represents the literary stay or the the 158 00:23:02,049 --> 00:23:08,889 Copyright estate of the artist they asked about using that reusing that 1984 vanity fair image, 159 00:23:12,032 --> 00:23:12,752 Prince. 160 00:23:26,274 --> 00:23:29,994 Until she saw the orange prince image on the cover of the magazine, 161 00:23:30,612 --> 00:23:35,992 So she notifies the Eddie Warrell Foundation that she believed it had infringed her copyright. 162 00:23:36,590 --> 00:23:43,010 And they sued her for declared her judgement for non-infringment or in the alternative of finding a fair use. 163 00:23:43,432 --> 00:23:52,072 She counts claimed for infringement and the district court considered the four fair use factors and granted Andy Worham Foundation summary judgment 164 00:23:52,164 --> 00:23:57,024 On the fair use defense stating that the images are transformative and that the illustrations 165 00:23:57,269 --> 00:24:04,709 Washed away the vulnerability and humanity prince expresses in gold's mass photographs so at the trait should be noted that the trial court, 166 00:24:05,425 --> 00:24:06,745 Concluded that. 167 00:24:14,292 --> 00:24:21,792 The the photographer Goldsmith but that the transformativeness in factor number one was enough to, 168 00:24:22,367 --> 00:24:23,807 Overrule all that, 169 00:24:31,054 --> 00:24:36,454 The Prince series by Warhol was not transformative and thus not fair you send 170 00:24:36,636 --> 00:24:46,836 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, 171 00:24:47,357 --> 00:24:49,097 Of Goldsmith's photograph. 172 00:24:55,603 --> 00:25:09,403 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, 173 00:25:09,998 --> 00:25:15,098 Andy Warhol Foundation's recent commercial licensing to combat nest, 174 00:25:16,101 --> 00:25:17,781 So as a seven two decision, 175 00:25:26,742 --> 00:25:27,642 The that 176 00:25:27,993 --> 00:25:31,593 The first factor did not weigh in favor of various. 177 00:25:42,442 --> 00:25:49,582 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 178 00:25:49,923 --> 00:25:57,543 So the Central question is whether the use merely superseeds the objects of the original creation or instead add something new, 179 00:25:58,061 --> 00:26:00,581 Without further purpose and different character, 180 00:26:05,650 --> 00:26:10,930 But has to be weighed against the degree to which the use has a further purpose or different character, 181 00:26:20,304 --> 00:26:21,304 Hey, 182 00:26:23,632 --> 00:26:32,432 Focuses on. It focuses on the specific use which is what we alluded to with the Richard Prince case. Yeah. 183 00:26:36,041 --> 00:26:37,661 Of the work, 184 00:26:43,431 --> 00:26:45,391 Differently as to the. 185 00:26:54,918 --> 00:26:56,098 I kind of, 186 00:27:04,408 --> 00:27:06,268 The descent and then the, 187 00:27:13,806 --> 00:27:15,786 Does it matter does the 188 00:27:15,787 --> 00:27:26,107 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, 189 00:27:27,732 --> 00:27:38,352 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, 190 00:27:38,805 --> 00:27:40,005 Of the new work. 191 00:27:40,957 --> 00:27:42,577 By the artist eventually. 192 00:27:50,886 --> 00:28:00,066 The alleged to be infringing in this case was this commercial licensing of the orange prints to contain next now within some. 193 00:28:14,445 --> 00:28:14,985 Hey. 194 00:28:23,213 --> 00:28:26,333 Because I don't think creating one, 195 00:28:29,614 --> 00:28:33,814 Hanging it on your wall at home is going to be, 196 00:28:35,988 --> 00:28:43,068 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, 197 00:28:45,314 --> 00:28:46,094 Anyway, 198 00:28:48,537 --> 00:29:00,837 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, 199 00:29:07,523 --> 00:29:10,043 Use also as of a commercial nature, 200 00:29:10,691 --> 00:29:11,831 Taken together, 201 00:29:19,820 --> 00:29:32,480 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 202 00:29:32,801 --> 00:29:36,581 You know, the district court said it washed away the vulnerability, humanity of the 203 00:29:36,654 --> 00:29:37,734 Of the prince. 204 00:29:46,206 --> 00:29:49,686 Commercial licensing. So, the seeming to say in the 205 00:29:49,826 --> 00:30:02,226 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 206 00:30:02,193 --> 00:30:03,153 Artistic, 207 00:30:05,686 --> 00:30:07,246 That I think nobody argues. 208 00:30:19,145 --> 00:30:21,485 When Warhol created the work that's the use, 209 00:30:25,581 --> 00:30:30,141 And invocation of the reproduction right in the work isn't it 210 00:30:30,478 --> 00:30:36,338 Well it is and I think we look at it if if all 211 00:30:36,627 --> 00:30:38,307 That it happened was he, 212 00:30:43,181 --> 00:30:53,441 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. 213 00:30:54,731 --> 00:30:55,871 And those were. 214 00:31:04,620 --> 00:31:07,180 We would have a very different opinion. 215 00:31:09,215 --> 00:31:19,295 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 216 00:31:19,370 --> 00:31:28,850 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. 217 00:31:29,588 --> 00:31:42,608 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, 218 00:31:43,244 --> 00:31:48,224 Is creating one driven of work that's never reproduced in any other fashion. 219 00:31:53,309 --> 00:32:04,649 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, 220 00:32:07,235 --> 00:32:12,635 Weather night the use was infringing and they they did a big, 221 00:32:15,489 --> 00:32:23,449 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, 222 00:32:24,339 --> 00:32:27,939 And I will tell you I feel like the opinion the majority opinion, 223 00:32:36,015 --> 00:32:43,275 Striking is not the right word. I the majority opinion relied on case law. Now, the bulk of that case law is, 224 00:32:44,126 --> 00:32:44,966 Terrible woman. 225 00:32:53,606 --> 00:33:04,946 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, 226 00:33:08,225 --> 00:33:10,385 The descent obviously. 227 00:33:20,476 --> 00:33:22,016 Very much, 228 00:33:26,986 --> 00:33:34,246 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. 229 00:33:41,291 --> 00:33:42,071 Source. 230 00:33:44,344 --> 00:33:47,264 Presidential source in her opinion, 231 00:33:51,994 --> 00:34:02,254 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, 232 00:34:02,743 --> 00:34:03,703 Made. 233 00:34:04,868 --> 00:34:14,708 Or changed and that that alone should be sufficient not the actual use to claim transformation there was a lot of reliance on, 234 00:34:17,435 --> 00:34:21,275 Supreme Court or even underlying court cases. 235 00:34:21,720 --> 00:34:25,020 It was sort of the but it was Andy Warhol argument. 236 00:34:32,631 --> 00:34:36,771 Yeah. Now, she does rely on the Google recent Google decision. 237 00:34:40,318 --> 00:34:43,358 And she also, you know, this ultimately came down to, 238 00:34:48,727 --> 00:34:55,447 Where transformativeness fits in the discussion and transformativeness was a you know it was an well. 239 00:35:03,328 --> 00:35:04,948 A buzzword in the analysis. 240 00:35:11,457 --> 00:35:16,317 How much weight does transformativeness get in the overall analysis in particular, 241 00:35:18,533 --> 00:35:26,813 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? 242 00:35:33,513 --> 00:35:39,333 I think correctly saying no it's just one component of one component of the analysis, 243 00:35:40,447 --> 00:35:49,847 Yeah and I guess what is it? The descent is saying, does the work? Okay, she's saying, before today, before this opinion, we, 244 00:35:50,698 --> 00:35:57,418 The courts assessed quote the purpose and character of a copiers used by asking the following question, 245 00:35:58,125 --> 00:36:03,525 Does the work quote add something new with a further purpose or different character 246 00:36:03,655 --> 00:36:08,855 Altering the original with new expression meeting or message close quote. 247 00:36:09,243 --> 00:36:18,903 When it did so to a significant degree we the court called the work transformative and held that the fair used test first factor, 248 00:36:20,982 --> 00:36:23,802 Though other factors could outweigh that one. 249 00:36:28,265 --> 00:36:34,865 All the majorities protest stations not withstanding leaves are first factor inquiry in shambles 250 00:36:35,188 --> 00:36:44,308 The majority holds that because war hall licenses work to a magazine as goldsmith sometimes also did the first factor goes against him, 251 00:36:46,022 --> 00:36:51,342 So I don't think it leaves the first factor in shambles. No. I think it gives us, 252 00:36:51,833 --> 00:36:59,093 To us as lawyers as representative of content creators, content users, content owners, 253 00:37:00,079 --> 00:37:01,999 Some actual guidance. 254 00:37:10,595 --> 00:37:13,515 Automatically go in favor of fair use. 255 00:37:23,476 --> 00:37:26,896 You know, they did, they did take a lot, 256 00:37:30,606 --> 00:37:39,126 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, 257 00:37:41,093 --> 00:37:45,773 Use a commentary. It's beyond just changing. 258 00:37:47,226 --> 00:37:50,806 Transforming adding to or subtracting from, 259 00:37:58,779 --> 00:38:02,919 They go on to talk about the difference between parody and satire, 260 00:38:06,920 --> 00:38:08,900 The the majority says, 261 00:38:12,709 --> 00:38:19,309 There weren't enough changes to the prince photograph and light of the commercial nature of the use. 262 00:38:20,010 --> 00:38:28,410 Versus two live crew yes it was a commercial nature of the use but there were enough changes and their work was commentary, 263 00:38:30,597 --> 00:38:34,917 Isn't this also in the eyes of the beholder? I mean, there's a whole lot of 264 00:38:34,981 --> 00:38:39,421 Interesting conversation between the descent and the majority about being art critics. 265 00:38:47,746 --> 00:38:48,106 Hey 266 00:38:48,484 --> 00:39:03,244 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 267 00:39:03,410 --> 00:39:06,050 Place we have to make these decisions, 268 00:39:08,433 --> 00:39:18,153 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 269 00:39:18,246 --> 00:39:27,126 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, 270 00:39:28,355 --> 00:39:29,255 Counter weight, 271 00:39:30,318 --> 00:39:36,018 In that first factor analysis to just say okay it it can be transformative but, 272 00:39:39,293 --> 00:39:43,253 It's not just transformativeness infected more likely, 273 00:39:44,883 --> 00:39:55,323 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, 274 00:39:56,145 --> 00:39:58,485 An illustration piece about war hall, 275 00:39:59,917 --> 00:40:01,717 It might have been a different outcome. 276 00:40:11,611 --> 00:40:20,971 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. 277 00:40:21,208 --> 00:40:25,528 No we have to now analyze and let's not let transformativeness, 278 00:40:29,530 --> 00:40:38,510 Yeah or let's say it was used in throwing another one out to talk about the nature of how Warhawk creates his art. 279 00:40:44,937 --> 00:40:47,877 I think the descent or dug into this was, 280 00:40:55,245 --> 00:40:59,205 Kinda made me fall back to you can put in a whole lot of 281 00:40:59,583 --> 00:41:07,123 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 282 00:41:07,317 --> 00:41:09,777 To me from a copyright, 283 00:41:10,513 --> 00:41:20,113 Protection standpoint. Does it matter to me how the artwork is created because those are your ideas, the expression is the final fixed work. 284 00:41:20,920 --> 00:41:23,260 Hey, I mean correct. Yeah. It's. 285 00:41:31,659 --> 00:41:34,479 Those are the tools you use to create the final one. 286 00:41:35,251 --> 00:41:43,171 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. 287 00:41:51,014 --> 00:42:00,134 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, 288 00:42:00,583 --> 00:42:07,843 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 289 00:42:08,226 --> 00:42:11,166 The courts are takes issue with this idea that, 290 00:42:13,213 --> 00:42:18,493 The fact that it was Andy Warhol was enough to say well that's transformative that's you know that and and, 291 00:42:25,529 --> 00:42:33,089 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. 292 00:42:33,622 --> 00:42:35,602 That has no basis in copyright law, 293 00:42:36,260 --> 00:42:39,320 Code isn't denying that the war hole was a major figure. 294 00:42:47,008 --> 00:42:47,548 So 295 00:42:48,313 --> 00:42:59,593 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, 296 00:43:00,079 --> 00:43:04,919 And as long as the user somehow portrays the subject to the photograph differently he could make 297 00:43:05,085 --> 00:43:10,905 Modest alterations to the original sell it to an outlet to a company a story about the subject and claim transformative use. 298 00:43:12,331 --> 00:43:21,991 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, 299 00:43:22,720 --> 00:43:25,000 Is transformative because it's a different, 300 00:43:26,816 --> 00:43:30,056 Right? Yeah. And there's interpretation that goes on. 301 00:43:34,000 --> 00:43:42,460 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, 302 00:43:43,331 --> 00:43:44,571 Underrivitive works. 303 00:43:45,478 --> 00:43:49,198 And anybody it's very nature war halls prints, 304 00:43:53,715 --> 00:43:58,695 I decided to make a movie on a John Grisham knob. It would be a derivative work. 305 00:43:59,927 --> 00:44:01,847 I don't. 306 00:44:06,533 --> 00:44:11,793 You know, I probably get sued for infringement if I could such a thing and lose. 307 00:44:14,924 --> 00:44:18,404 Well, that's right. Unless I'm somehow making a commentary. 308 00:44:19,137 --> 00:44:28,317 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 309 00:44:28,689 --> 00:44:29,949 Goldsmith's photograph. 310 00:44:41,895 --> 00:44:44,115 The song was at least in part, 311 00:44:45,586 --> 00:44:51,706 Cracking wise are making a commentary about the original pretty woman and how sort of plain vanilla and and, 312 00:44:52,230 --> 00:44:55,710 You know, pure of thought that it that message of that song was, 313 00:45:06,138 --> 00:45:06,858 Here, 314 00:45:15,401 --> 00:45:20,681 You know, again, it's a very commercial nature of the uses with the court steam stove, the hung it's had on. So, 315 00:45:25,124 --> 00:45:26,864 My air conditioner clicked on. Oh yeah. 316 00:45:36,638 --> 00:45:40,358 The specific use of goldsmith photograph alleged 317 00:45:40,446 --> 00:45:54,006 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, 318 00:45:54,507 --> 00:45:55,407 Factors. 319 00:45:55,371 --> 00:46:06,111 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? 320 00:46:10,378 --> 00:46:15,538 At least that's the argument that seems to support Kegan's view it is hey, 321 00:46:20,398 --> 00:46:24,418 And if that was fair use then all use of this new original. 322 00:46:33,514 --> 00:46:38,974 Okay so let's take a series of Abraham how many princess he has, 323 00:46:42,660 --> 00:46:46,860 And have a whole collection. Yeah. And maybe I want to have some cool, funky, 324 00:46:55,309 --> 00:46:59,329 Out of the ordinary. I turn normal way to display coffee modes. 325 00:47:00,710 --> 00:47:03,410 Would we be having this conversation if they're, 326 00:47:11,234 --> 00:47:11,954 Any. 327 00:47:25,538 --> 00:47:32,918 The parties made the decision to only appeal and apply have the court answered this question on transformation but, 328 00:47:34,351 --> 00:47:47,851 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. 329 00:47:48,818 --> 00:47:50,978 The commercial purpose is going to eat it up. 330 00:47:56,565 --> 00:47:57,565 Yeah, 331 00:48:01,943 --> 00:48:07,643 Passages from this opinion that says if if the world foundation must pay goldsmith to use her creation 332 00:48:07,894 --> 00:48:17,914 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. 333 00:48:19,894 --> 00:48:24,994 Somewhere says these claims will not age well it will not impoverish our world to require a WF to 334 00:48:25,133 --> 00:48:34,913 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. 335 00:48:39,951 --> 00:48:49,311 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 336 00:48:49,511 --> 00:48:57,551 There's a lot of shade throwing in the language of these opinions. Would you agree? Oh, I think my kackle, 337 00:49:02,277 --> 00:49:11,157 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. 338 00:49:13,667 --> 00:49:17,427 Shows us that in actual property questions, 339 00:49:17,896 --> 00:49:20,356 There's there's not transcend politics. 340 00:49:31,885 --> 00:49:38,725 Question about transformative used and derivative works in any way it says this is actually footnote five, 341 00:49:40,842 --> 00:49:42,822 And and the text it says 342 00:49:43,120 --> 00:49:51,400 To preserve the right the degree of transformation requires require to make quote transformative youths of an original work, 343 00:49:57,227 --> 00:50:03,887 That's in the body of the case. The footnote. In theory, the question of transformative, 344 00:50:05,680 --> 00:50:08,020 Or transfer almighty purpose. 345 00:50:15,816 --> 00:50:20,796 However in prior impractice however the 2 may over lap, 346 00:50:21,250 --> 00:50:29,930 So, transformative use or transformative purpose? Well, I think they're probably was a transformative purpose, 347 00:50:32,615 --> 00:50:35,315 Prince series but was the, 348 00:50:40,546 --> 00:50:42,706 It it didn't make a standard, 349 00:50:45,929 --> 00:50:52,049 So the majority was was five of the justices and then just a gorsuch and justice, 350 00:50:54,391 --> 00:50:55,111 Jackson, 351 00:50:59,576 --> 00:51:01,316 Gorsuch is point of view. 352 00:51:04,915 --> 00:51:15,775 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 353 00:51:16,059 --> 00:51:17,679 Of the challenge to use. 354 00:51:18,040 --> 00:51:20,140 Is the same as a protected use. 355 00:51:28,780 --> 00:51:32,620 Miss Goldsmith's image to know that much is to know the first, 356 00:51:38,664 --> 00:51:53,364 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 357 00:51:53,563 --> 00:51:54,163 Here, 358 00:51:59,567 --> 00:52:07,667 For her own protected photograph in sales of magazines looking sales to magazines looking for images of prints to accompany articles about the musician, 359 00:52:09,362 --> 00:52:10,982 I think that's summarizes the, 360 00:52:12,819 --> 00:52:14,379 The situation really really well. 361 00:52:21,433 --> 00:52:32,753 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 362 00:52:33,046 --> 00:52:38,906 And on that website there's a little red tab on the side of the screen that allows you to record your own, 363 00:52:39,474 --> 00:52:49,134 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, 364 00:52:49,989 --> 00:52:51,849 And law update and, 365 00:52:53,497 --> 00:52:57,157 Reach out to us in any way that feels comfortable. Send us a smoke signal if you can. 366 00:53:06,697 --> 00:53:14,017 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. 367 00:53:19,003 --> 00:53:23,623 Yeah. Yeah. And there's also a really just a shout out to really, 368 00:53:25,989 --> 00:53:30,009 Short article by Jonathan Bailey over at plagiarism today, 369 00:53:30,549 --> 00:53:41,769 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 370 00:53:42,166 --> 00:53:46,486 You know, the Richard Prince situation that we talked about a minute ago of a few minutes ago. 371 00:53:51,628 --> 00:53:53,368 Denial of summary judgment, 372 00:53:58,262 --> 00:54:00,002 Just by keeping going with the case, 373 00:54:03,700 --> 00:54:13,120 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, 374 00:54:16,762 --> 00:54:27,142 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, 375 00:54:27,996 --> 00:54:33,196 And so you put that in front of a jury now you know I think you take your, 376 00:54:36,442 --> 00:54:38,462 Richard Prince Yuse is different. 377 00:54:43,552 --> 00:54:49,492 One thing I wasn't clear on and maybe you know the answer to this is what happens now in the Goldsmith, 378 00:54:50,737 --> 00:54:51,457 Claim. 379 00:54:59,982 --> 00:55:00,882 Share use. 380 00:55:04,861 --> 00:55:13,081 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, 381 00:55:13,845 --> 00:55:16,605 I I think it has to and sorry I I 382 00:55:16,798 --> 00:55:26,158 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 383 00:55:26,259 --> 00:55:26,799 The, 384 00:55:27,709 --> 00:55:38,449 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, 385 00:55:40,249 --> 00:55:43,189 I don't think there was ever a trial on damages or, 386 00:55:49,467 --> 00:55:50,787 Presembly they go back. 387 00:55:59,442 --> 00:56:06,222 We have a couple of other cases the same day as this this opinion came out the court issued two other, 388 00:56:08,426 --> 00:56:14,906 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, 389 00:56:17,878 --> 00:56:20,758 I think we might have talked about this in the previous episode. 390 00:56:27,106 --> 00:56:28,306 And by not bringing down, 391 00:56:29,086 --> 00:56:39,526 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, 392 00:56:40,032 --> 00:56:45,472 And it was a lone gunman who entered the nightclub and shot off 120 rounds into the 393 00:56:45,641 --> 00:56:47,141 Crowd about 700 people. 394 00:56:54,833 --> 00:57:00,533 They released a statement claiming responsibility for that attack. So, in the years leading up to that, 395 00:57:00,666 --> 00:57:07,626 They had used various forms of social media, Twitter, YouTube, Facebook, and so on for recruiting fundraising and spreading propaganda 396 00:57:07,931 --> 00:57:11,531 By uploading various videos and messages and as common, 397 00:57:13,467 --> 00:57:22,047 Different forms of social media. The platforms use algorithms to match users with content based on the the accounts use history and interest. 398 00:57:22,632 --> 00:57:28,872 Matt included matching users with various forms of ISIS content including these fundraising messages and so on. 399 00:57:28,872 --> 00:57:40,452 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. 400 00:57:40,942 --> 00:57:45,022 And because despite having knowledge of the content uploaded, 401 00:57:50,008 --> 00:57:50,668 Content. 402 00:58:02,179 --> 00:58:03,919 In this case. So, 403 00:58:12,099 --> 00:58:17,019 Algorithm the scheme employed by Google allows the company to profit from, 404 00:58:21,470 --> 00:58:22,790 Google has reviewed, 405 00:58:27,097 --> 00:58:31,717 Mechanism and approved it approve them to carry ads with them so, 406 00:58:33,840 --> 00:58:38,040 Youtube has profited from the existence of those videos on this platform. 407 00:58:40,681 --> 00:58:54,481 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, 408 00:58:55,040 --> 00:58:59,720 By knowingly providing substantial assistance or who conspire with the person who committed the act. 409 00:59:00,123 --> 00:59:04,143 So there's position is that these social media companies aided in a better ISIS, 410 00:59:04,924 --> 00:59:05,884 And, 411 00:59:06,455 --> 00:59:15,455 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 412 00:59:15,745 --> 00:59:19,465 Did in fact aid and a bet ISIS end there for the case could proceed. 413 00:59:31,625 --> 00:59:40,985 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, 414 00:59:42,797 --> 00:59:48,737 Ultimately the crux of the issue is whether the social media platforms aided in a better and and that, 415 00:59:49,558 --> 01:00:03,298 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 416 01:00:03,673 --> 01:00:09,853 You know, we we don't have to deal with that. We just also determine, you know, what, 417 01:00:10,713 --> 01:00:13,593 Did the defendant really do plain of said 418 01:00:13,933 --> 01:00:17,173 All they had to do is provide some aiding and a bedding assistance, 419 01:00:21,570 --> 01:00:24,450 That it actually ate and I bet the criminal act itself, 420 01:00:25,657 --> 01:00:27,877 And the court said, well, neither of those is right. 421 01:00:38,089 --> 01:00:50,869 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, 422 01:00:53,141 --> 01:00:53,861 Queer. 423 01:00:54,275 --> 01:01:00,575 You know Isis uploading to the platforms that was like any other user the algorithms were doing what they do for every user, 424 01:01:04,808 --> 01:01:09,908 That these specific terrorist to carried out the attack was using these platforms to actually plan the attack. 425 01:01:19,887 --> 01:01:28,107 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. 426 01:01:28,799 --> 01:01:33,119 That defendants knowingly gave substantial assistance in there by aid in the bed, 427 01:01:35,151 --> 01:01:36,891 With respect to Google and they, 428 01:01:37,834 --> 01:01:40,234 Sharing in in revenues the night circuit, 429 01:01:42,608 --> 01:01:46,748 That doesn't give rise to liability and therefore that allegation also fails and and 430 01:01:47,025 --> 01:01:50,925 It refers to this other case that we're going to talk about. Do you have anything you want to bat on that one? 431 01:01:51,277 --> 01:01:55,357 No I mean I think it gonzales be google was handed down. 432 01:01:56,084 --> 01:02:04,484 Did the same day. Yeah. We talked about it. The Scottish case pending in our 154th issue in February of this year. In it. 433 01:02:07,013 --> 01:02:11,693 Kind of similar set of facts and situations but instead of this, 434 01:02:14,233 --> 01:02:24,313 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. 435 01:02:27,304 --> 01:02:35,104 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, 436 01:02:37,648 --> 01:02:42,868 That Google was liable for promoting ISIS under the anti-terrorism act. 437 01:02:49,882 --> 01:02:56,062 The algorithm on YouTube with then suggest the videos to people as recommended viewing, 438 01:02:56,678 --> 01:03:03,618 And this would be the part where Google would have been liable for supporting terrorism so you watch one on this topic. 439 01:03:03,788 --> 01:03:06,428 We're going to give you some more on the same topic to watch. 440 01:03:15,223 --> 01:03:16,963 Does not protect Google, 441 01:03:21,426 --> 01:03:29,706 And it's active making these recommendations. The Biden administration also brings this up in an amicus brief, 442 01:03:30,388 --> 01:03:40,988 Elaborating that the algorithm and YouTube automatically play the next video it's recommending essentially auto play of terrorist materials shouldn't curliability, 443 01:03:44,472 --> 01:03:49,452 In the infancy of the internet that's an understatement the provision said 444 01:03:49,513 --> 01:03:59,593 Quote no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided 445 01:03:59,848 --> 01:04:01,108 By another, 446 01:04:09,552 --> 01:04:14,112 Any social media platform we've got out there. Facebook, Twitter, whatever it might be. 447 01:04:24,280 --> 01:04:35,140 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 448 01:04:35,317 --> 01:04:38,677 To consider whether the Twitter VTAM, 449 01:04:39,158 --> 01:04:41,438 Case opinion we just discussed, 450 01:04:43,072 --> 01:04:46,412 What impact that's going to have in the outcome in this Google case 451 01:04:46,791 --> 01:04:51,471 So we're the Twitter case focused on the anti-terrorism act Gonzales vote 452 01:04:51,647 --> 01:05:00,887 Focused on this section 230 of the communications decency act but the allegations of secondary liability are materially identical, 453 01:05:02,239 --> 01:05:06,079 The court and Gonzales suggest that in light of Twitter, 454 01:05:08,049 --> 01:05:17,889 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? 455 01:05:33,462 --> 01:05:36,222 Gonzales case went in favor of YouTube. 456 01:05:41,177 --> 01:05:42,197 The the, 457 01:05:44,112 --> 01:05:52,752 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, 458 01:05:53,348 --> 01:05:59,048 The ninth circuit did and the Gonzales case the first timer on so yeah I think I think the ninth circuits you know 459 01:05:59,353 --> 01:06:01,393 Likely to go ahead and remand it, 460 01:06:05,538 --> 01:06:12,678 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 461 01:06:12,883 --> 01:06:14,023 Decision. So, 462 01:06:21,660 --> 01:06:22,440 The defendant, 463 01:06:32,454 --> 01:06:42,354 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 464 01:06:42,780 --> 01:06:43,560 Involved. 465 01:06:49,280 --> 01:06:50,300 There will be. 466 01:07:03,062 --> 01:07:07,022 In the courts and you know there's been a lot of call in congress to, 467 01:07:10,095 --> 01:07:12,895 Depthenscope of protection in the in that lawn 468 01:07:13,042 --> 01:07:14,002 So this may be, 469 01:07:16,844 --> 01:07:20,324 Create an impetus in congress at a if congress could accomplish anything. 470 01:07:21,307 --> 01:07:22,507 That's the other question. 471 01:07:27,386 --> 01:07:28,706 These rulings fall. 472 01:07:37,144 --> 01:07:42,184 I think I think it's these are rightly decided who might have disagree with the Supreme Court, right? 473 01:07:42,762 --> 01:07:47,022 Oh, we do that all the time. Oh, yeah. Don't tell, don't tell, 474 01:07:49,982 --> 01:08:01,202 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, 475 01:08:04,827 --> 01:08:10,227 I'm in the kitchen. My husband is watching the horrible beating at the Dallas Stars are taking, 476 01:08:11,191 --> 01:08:21,451 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 477 01:08:21,696 --> 01:08:28,036 So Taco Bell is in AA pending action to cancel a registration for the mark 478 01:08:28,160 --> 01:08:33,140 Trademark taco Tuesday. They have started an end. Add campaign with LeBron James. 479 01:08:35,322 --> 01:08:38,842 So anyway I suspect we'll be talking more about time. 480 01:08:38,936 --> 01:08:43,856 Taco Tuesday next month but I love that Henry pointed it out and I just 481 01:08:44,022 --> 01:08:47,382 My husband is like, what are you mumpling about over there? 482 01:08:49,810 --> 01:08:53,990 Oh, it's the taco Tuesday trademark dispute. This is fantastic. 483 01:09:01,127 --> 01:09:04,607 That has registered for some long time now 20 years or something, 484 01:09:09,067 --> 01:09:13,207 Third party who has a state registration for taco Tuesday and. 485 01:09:28,197 --> 01:09:35,277 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. 486 01:09:35,458 --> 01:09:42,478 Thank you Henry and LeBron James is on board for reclaiming taco Tuesday, 487 01:09:43,139 --> 01:09:48,519 Yes and exactly. By the way, if you are a listener of the show and you hear or see a story in the news, 488 01:09:49,946 --> 01:09:54,746 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, 489 01:09:55,647 --> 01:09:59,607 As I said before, the voice widget on the website, it entertainment law update. Com, or you can 490 01:09:59,902 --> 01:10:05,962 Email us entertainment law update@Gmail. Com or the Twitter handle is at an awe update or 491 01:10:06,159 --> 01:10:10,899 You know, ping one of us on on LinkedIn or anywhere. Other social media, Facebook, whatever. 492 01:10:15,692 --> 01:10:23,552 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, 493 01:10:27,315 --> 01:10:27,915 Find you 494 01:10:28,197 --> 01:10:37,497 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. 495 01:10:39,233 --> 01:10:44,153 Website Tibin@Wall. Com or create protect. Com. We'll get you there 496 01:10:44,292 --> 01:10:51,552 And from Los Angeles I'm Gordon Firemark the website is@Firemark. Com the email address is G Firemark at Firemark 497 01:10:51,743 --> 01:10:56,243 Dot com and on most of those social media websites I am known as G firemark 498 01:10:56,382 --> 01:11:02,202 Let's give a big thank you and shout out to our crack team of volunteer contributors managing editor John, 499 01:11:02,933 --> 01:11:07,733 Who by the way is getting married in a couple of weeks so good luck to you with that John and, 500 01:11:08,509 --> 01:11:12,229 I should say congratulations to you and good luck to your bride is the traditional. 501 01:11:18,942 --> 01:11:19,662 Marco, 502 01:11:25,217 --> 01:11:31,157 I didn't get didn't connect with him but he was in town so I was like sharing all my favorite Fort Worth, 503 01:11:32,059 --> 01:11:36,859 Texas hotspots. And I was down at Atlanta where he lives a few weeks ago and I completely missed the boat 504 01:11:36,875 --> 01:11:40,355 Didn't reach out to him for dinner or something like that. So, apologies for that but 505 01:11:40,595 --> 01:11:53,915 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, 506 01:11:54,330 --> 01:11:58,830 Let us know. Send us an email. Entertain a law update@Gmail. Com. 507 01:12:03,280 --> 01:12:30,826 Music.