It's entertainable update episode number 158 for June of 2023 although recording on.
Music.
Hello, everybody and welcome to entertainment law update from Los Angeles California. I am Gordon Firemark and my co-host
The esteemed tamara bennett is not with us this time around she had some stuff come up that has just made it impossible for us to come
And and make AA good recording for you.
So she has graciously agreed to let me record this one.
Best of get it done and get this squared away
So, that we can move forward. So, this is our podcast about entertainment law where each month we pull together around above legal and business news stories and share our opinions and commentary and analysis and I'm really grateful to you for being here with us.
All these episodes where at 158 episodes we've been going strong since April 2 1009.
I think we've only missed a couple of months in there. So really proud of that and want to keep the tradition going. We're going to start off with a callback to a case we talked about a few months ago. We had a guest on. We were talking about,
This is the,
First circuit decision the first movement did not protect commercial filming and government parks you may remember Gordon Price the independent documentary filmmaker,
Who brought the case well what the news is that the Supreme Court has denied sir to that filmmaker
Price and that leaves the first circuits decision in place so Gordon Price was the Santa documentary filmmaker who began filming a project called Crawford Road it was about a stretch of road in York County Virginia that is.
According to the first circuit opinion that is. So, some of the filming occurred inside Yorkfield Battlefield in Colonial National Historic Park.
National Park here in the US and the crew of four people.
The movie open to an audience of about 250 people in Newport News Virginia Restaurant and a few months later price received a visit and notices of violations for failing to obtain a permit
Fork commercial filming on national
Park service land. Those violations have criminal penalties. He filed emotion dismiss the charges on grounds that the permanent and few regime and the law enacting at constituted and uncomstitutional
Prior restraint on speech the government dropped the criminal prosecution but then
Price raised his constitutional claims in a separate civil case and in that case the trial court agreed with price that the law issue didn't meet the heightened scrutiny of speech in a public forum,
However, the DC circuit court appeals reverse that decision to the DC circuit. I guess it is and that decision and help that
Film making was subject only to a reasonableness standard and this law met the standard,
Seeking review of that DC circuit decision and on May 1 the court denied sir leaving in place the DC circuits ruling we didn't report on it last month like we should have,
We're telling you now. So, the DC circuit has effectively said that filmmaking is not
As protected as other forms of express activity doesn't seem to make much sense to me.
In the National Park and then later decides to you know,
Monetize it somehow you take your photos.
So making a speech expressive activity it's protected by the first amendment and any regulation of such activities should be subject to elevated scrutiny to make sure
It's not an undo burden on our fundamental freedoms.
But the Supreme Court has not seen fit to address the question so we're stuck
With fat lower court opinion and I do have some conflict between whether it's the first circuit,
Either way.
The trademark registration for taco Tuesday you've probably heard about this and you've certainly unless you've been living,
In Iraq under a rock whatever you've heard the expression taco Tuesday and that phrase although it is trademark and that the trademark is owned by two companies one a wyoming based fast food restaurant chain
Called Taco John's and another Gregory's restaurant and bar taco John's owns the trademark nationwide
Since 1989 except for New Jersey where it's owned by Gregory's restaurant and bar since 1982 but Taco Bell wants to give Taco Bell a taco Tuesday back
To the world and now LeBron James is on board with that as well in late May Taco Bell filed a petition to cancel the trademark,
At the USPTO and I guess that's the trademark trials on the I don't know. Anyway, filed to cancel the trademark.
Being able to say taco Tuesday,
To the part of the the pursuit of happiness. They're briefs as the registration potentially subjects Taco Bell and anyone else wants to share tacos with the world.
To the possibility of legal action or angry letters if they say the words taco Tuesday without express permission from the registrant simply for pursuing happiness on a Tuesday at violates an American ideal the pursuit of happiness but the crux of the claim,
Taco Tuesday has become so widespread widely used,
Because it's informational nature the public doesn't use or understand the term as they source identifier.
Taco Bell refers to a survey they conducted finding the 86% of consumers believed taco Tuesday to be non affiliated as a term
So they have a celebrity on their side. LeBron James, the famous basketball player is the highest scoring player of all time and a huge fan of taco Tuesday and a part of his collaboration he is starring in an ad
Entitled Taco Blip that is intended to highlight the absurdity of taco Tuesday being trademarked so he himself actually tried to obtain,
In that 2019 denial the patent trademark office said the phrase can't be trademarked because it's a common place term message or expression
Widely used by a variety of sources merely to convey an ordinary familiar well recognized concept or sentiment,
Their parent companies actually called spicy seasonings LLC they denied that there was a familiar concept,
Or custom of consuming tacos on Tuesday's prior to their trademark
License and they say Taco Bell's brought the petition in an effort to some more tacos and cause their licenses to sell less tacos that taught the taco seasons and some licency.
To my my team for this little pun. We have to ask what LeBron James's
Hands on this thing and with Taco Bell will this be a slam duck,
Alright. It's not as funny when I'm alone,
So you probably heard the Supreme Court has ruled in the case of Jack Daniel's properties versus VIP products Jack Daniels
Is the distiller of whiskey of course and holds trademarks over old number seven the stylist label the shape of its bottle.
VIP products is a creator of silly squeaker toys including,
Reference to dust equis smell arpa like stellar artois.
And doggy walker johnny walker parody and they've sought registration for all of these toys. Now, they did not apply for a mark under bad spaniels.
But they didn't indicate that they on the mark and they're complaint. The court put a lot of weight on that fact that they include that they claim they own bad spaniels.
So, Jack Daniels wrote to see some desist letter to VIP because the toy looks like a bottle of Jack Daniel's and has a black label and and says, you know,
What does it say? It will I'll get to it again, eventually. Anyway, they issued this cease into sis letter. They it would response was a declaratory relief action from VIP.
Confirming or asking for the court to confirm that there were no issues with its use of bad spaniels as its trademark.
Daniel's countersuit for trademark dilution and the district,
Ruled against VIP determining at its work was a somewhat non-expressive commercial product and found that when a Marcus used as a trademark.
Like a source identify the Rogers test does not apply and the parody mark argument didn't apply due to it being used as a source identified
Well the ninth circuit reversed and reminded the district finding for VIP under the Rogers case Roger's test and stating that the bad spaniels toy deserved heightened protection under the first amendment
As a parody essentially it's a fair use exception and under Rogers.
On Ramand the District Court ruled that Jack Daniels could not overcome Rogers Jack Daniel's appealed the ninth circuit affirmed and then the supreme court granted sir,
To
VIP products Jack Daniels has a registration for the labor on its bottles the bottle shape and old number seven,
VIP is of course in the business of creating these parody dog toys that look like spoofs. But making them look like something that would appeal to dogs.
For the Bad Spaniels toy it was a squeaky bottle
Looks like a bottle of Jack Daniel's with a similar label appearance and shape and the words old number two on the Tennessee carpet with a statement on the label that it is 43% poop by volume nothing like a good poop joke,
The Supreme Court focused on the Rogers test in its progeny first focusing on these cases where a mark was used but not as a trademark
For example, Barbie girl, the song by Aqua. The court clarified that Rogers had not been held to apply when a mark was being used as a source identifier. In a similar but unrelated case, the court had found that Timmy Holdigger Pet perfume
Parodying Tommy Hilfiger,
Also was not protected by parity even if it was commenting on a prior product,
Anything can be expressive and and expanded Rogers could essentially create a blanket protection.
For which the court ruled parody would influence that process and the instructed a remand
To the lower courts. On the case for dilution by tarnishment. That's the Jack Daniel's claim.
The court looked at it right after reviewing Rogers they addressed this dilution claim,
Because of the comparison of whiskey to water down dog poop which presumably dogs would enjoy us and the court
Differed from the night circuit finding that the parody defense only works when it is not serving as a source identifier.
I'll be at not a registered trademark
That's what really cost them the case here. Police should be arguing. So, Rogers, the conclusions, Rogers does not apply when a mark is being used as a source identifier.
And the parody defenses to dilution don't apply when the parody is being is being used as a source identify and but parody can still be used to tilt,
Boobscales in a likelihood of confusion analysis
So, if we want to take a guess at where this is going to wind up, I think the Timmy Hold Digger case is likely to be a guiding principle. That's right, John. I I agree with you. Namely, that delusion,
The delusion is unlikely to be found despite the association with watered down old number two on the Tennessee carpet. So, back down to lower cords and we will hear a little more when the when the court has,
Finally ruled on on the rematch.
In another Jack Daniel's case we have a Scottish comedy duo.
Jack Daniels the case involves two comedians who named their scotch whiskey brand Jack and Victor after two characters in a BBC Scotland sitcom still game The American Distillery has now been ordered to pay about 4000
Dollars for the cost of the hearing in the courts in in the UK the UK and electrical property office ruled in favor of the trademark and said that the application could proceed to registration that's the trademark for Jack and Victor
Jack Daniels is so commonly referred to as Jack like Jack and Coke or Jack and
Water and they hit a post that registration but this UK electric property office has ruled in favor of those other folks
So Jack Daniel's will have coexist with Jack and Victor in the whiskey market place,
They are going to have to participate in a case.
The Jack Daniel's dispute and now the Supreme Court has reopened the lawsuit against Disney regarding the character lots of hugging bear
Which appears in the movie Toy Story three,
Disney in 2012 claiming that the stories that toy stories lots of hugging bear infringed on the trademark rights of its owned stuffed animal toy lots of hugs,
Des Lisa Patented it's stuff toy registering lots of hugs in 1997 and again in 2007.
Citing first Amendment protection for freedom of speech as did the ninth circuit court of appeals back in 2022,
Both courts sided the Rogers test which allows the application of federal trademark protection to an expressive work only if the defendants use to the mark is not artistically relevant to the work and or I mean or explicitly misleads consumers as to the sources,
Or content of the work,
Because Disney's use of lots of hugs Mark was relevant to the plot of a work of artistic expression that being filmed and used to the mark was not explicitly misleading within the meaning of the Rogers test both of the lower courts barred the,
The toy makers claims but the difference between the Jack Daniel case and the Disney case at least one difference is that Jack Daniels is a clear trademark use case while the Disney case involves merch in a movie,
Lots of hugging is only mentioned once in the movie and doesn't appear on merchandise packaging. So, but Disney's going to have to defend the case.
And,
And that's going to be interesting. So, we'll report more on that when we have more news. The ninth circuit has overturned an attorney fee award in a class action case kind of a big situation. This is David Lowery, Victor Crunature,
Greg Lasher, David Farriger versus Rhapsody International.
Before the passage of the music modernization act of 2018 Rhapsody had two paths to get a license to play or copy and distribute copyrighted music it could directly negotiate a voluntary license,
From the cop radio or it could obtain a compulsory license through the procedures in the copyright act,
But this compulsory licensing system became unworkable in the digital music streaming era
They thus struggled to serve or file a notice of intention for everyone of the millions of works available on their services,
Who's compositions were played on the streaming service and the plans asserted that Rhapsody had infringed all those copyrights by reproducing and distributing
Their musical compositions without obtaining a voluntary or compulsory license to do so now
Since then the MMA the music modernization act has been enacted and it allows digital music writers to obtain a blanket license one blanket license allows them to,
Copy and distribute all musical compositions available for compulsory licensing but by the time the plane appears here to sued.
Copyright conundrum and by April 2018.
Meant that this lawsuit wouldn't yield much compensation even if the planet's prevailed,
Despite the significant hours and resources spent by the council in the case focused on reaching settlement rather than substancely litigating the claims,
That settlement between the parties was executed in January of 2019 with Rhapsody denying liability.
Butter green to pay class members from for some competitions but
Probably because the NMPA celemet had sort of gutted that potential class very few class members submitted claims and in the end Rhapsody,
Agreed to pay up to 20 1 million dollars but ended up only paying out about 52
Almost (53100) 052-8841 and ¢5 so the settlement agreement required wraps you just establish an artist advisory board with an annual budget of $30 thousand,
And did not require Rhapsody to make any other changes to its licensing practices,
Point of planners council calculated their fee.
Formula and arrived at an approximately $two. 1 million figure and under that load star method the court multiplies the number of hours reasonably spent on the case by a reasonable hourly rate,
Attorneys then requested a 287. Multiplier claiming that they achieved exceptional results in a difficult and complex case.
In all the planets counts lastly court to award them over six 1 million dollars in attorney's fees.
Magistrate judge recommended a warning about $860 thousand in fees and the district court then awarded over one. 7 million,
So the ninth circuit takes the case and there the court of appeals held that the touchdown for determining reasonableness of attorney's fees in class action,
Is the benefit to the class and hear that benefit was minimal
The panel held that the disrecord heard in failing to calculate the settlements actual benefit to the class members who submitted those settlement claims the court noted even though the damages in civil rights cases are often small it has held the
Those lawsuits can provide considerable benefit to society
Through a non-monitor relief such as ending institutional civil rights abuses and so on. But that rational does not necessarily apply. They said in copyright cases because the goals and objectives of the statutes are not completely similar.
Supreme Court has similarly rejected technology.
Two civil rights fee shifting statues when interpreting the copyright act in the case of fogerty versus fantasy from 1994.
The proportion between the award and the benefit of the class to ensure that it is a reasonable award and recognize that the F word might exceed the monetary benefit,
Leads to a substantial non monitor relief or a meaningful benefit society but that was not the case here so they
Reverse the district court's attorney's fees award of $one.
7 million and on a man the district court shall determine the class action settlements actual value to the class members and then award Attorney's fees accordingly so that'll be interesting
To to watch.
And now it's encroached into the legal space in a way in a couple of ways we weren't really expecting.
First off it's clear to know that we're not a point yet where these robots are going to take over our jobs as lawyers.
And the judges words quote with citations to non-existent cases close quote,
Who alleged that he was injured when a metal serving cart struck his left knee during a flight from El Salvador to JFK airport
Shorts who reportedly was doing the substantive legal work claimed that they consulted the artificial intelligence website chat GPT,
In order to supplement the legal research performed this led to citations of six nonexistent cases invented
By the artificial intelligence tool. The computer sciences are calling this hallucination by the way, the inventing of things. According to the ABA journal, the prompts entered in the chat cheap.
Looked like something like show me specific holdings in federal cases where the statute of limitations was told due to bankruptcy of the airline,
The findings included not only names of made up cases but also exhibits with excerpts from the bogus decisions one bogus case the
Vargasi versus China southern airlines opinion sided several presidency don't exist as well as including internal citations and quotes from other
Nonexistent cases. Shorts is after David said that he had never utilized a source for legal research prior to this occurrence and therefore was unaware of the possibility that it's content could be false.
It replied that they were.
From which they're associated nor any legal data. Sort of like asking a 5 year old who's lied to you. Did you lie to me? Of course he's going to say no.
With their conduct.
After the defendant of Bianca brought up that they could not find any of the plain sided cases and they were asked to provide copies of nine sided opinions to Lucas affidavit said the excerpts what
What is made available by the online database and that wasn't identified until later as chatchy pt
Will the court found both Daluka and Schwartz who acted in bad faith based upon action.
Active conscious avoidance and false and misleading statements to the court and if the matter had ended with respondence coming clean about their actions
Shortly after they received March 15 brief questioning the existence of their cases or or after they reviewed the court's orders of April 11 and 12th,
Requiring that production of those cases, the record would be quite different. So, the court issued an order to show cause why one of the respondents are not be sanctioned.
Am the lawyers in their firm now must pay $5000 fine and we'll have send letters to each judge
Who had been falsely identified as the author of the six non-existent opinions the letter will include a copy of Castel's opinion and posing the sanctions
The fake opinion attributed to the judge and a copy of an April 25 affirmation,
Continued to cite the cases and since that summary was written I also saw that the judge and several judges have now started issuing orders,
You know the rule making orders about if you use AI tools in the making of your.
Conspicuous disclosure of that in the brief itself so that's kind of interesting,
Alright in more AI news a little bit of guidance for works containing AI copyright came out of last week's copyright office
Webinar.
Basically what they're saying is that you know AI generated content is not eligible for copyright but if it is combined with human generated material then,
Then that human generated material is. So, it's necessary to make a disclosure or disclaimer.
If an appreciable amount of the content you are registering was AI generated and not,
If the AI generated content would be considered diminimous if it was created by human you know like
Hey, I remove all of red eye from photographs. So, retouching in those kinds of things. Maybe even spell checking.
In the presentation they use an example of removing mud,
Consecutive frames of a motion picture just for the out cleaning up the imagery that would not require a disclaimer,
Hey, I generated content does not mean automatic refusal.
The disclaimer need to get what you need to do is check
Be excluded material box in the disclaimers field of the application,
Created by machine disclosures of unclamable material in the works of always been required. This is not a new requirement. So,
Previously published material previously registered material public domain or third party copyright ownership has always been required to be disclosed and this does include versions of works prior versions you know if you have.
That
If you had a earlier draft of your screenplay that you're now registering then you would need to record register you know disclaim the earlier version as a separate couple of work,
Now, if AI is used for ideation and those kinds of things, hey, create an outline, give me
Topics or something but the AI generated material isn't actually in the work you're registering then there's no disclosure required,
Another example was the
The book with human generated text you disclaim the artwork that was AI generated or vice versa another example the copper it offs used was a sound recording of an old
In this case they used an elvis presley vocal performance that used an AI machine to
AI tool to isolate the vocal performance,
Tracks, effects, and mastering. Well, you can claim ownership of the new sound recording and you don't need to disclaim
The removal of effect to isolation and stuff,
No need to remove the excluded material from the deposit.
The United States corporate office has a page over@copyright. Gov slash AI.
The Grammy's have banned AI generated work. In April of 2023, Canadian musician songwriter and producer Clair Lee Bouche, who goes by Grimes.
Invited people to use her voice in AI generated songs stating that she likes the idea of,
She said she'd split 50% of royalties on any successful AI generated track that included her voice.
Canadian musicians Drake and the weekend,
The song was initially released on Apple Music Spotify and YouTube but was automat almost mean immediately taken down by spotify at universal music groups and systems but no.
Before the song had received over half a one 1 million plays and in early June of 2023 Paul McCartney announced that a new and final Beatles recording using it
Artificial intelligence will be released later this year he has since explained that what he's actually doing is using the technology to isolate and clean up,
Blenon vocals from an unreleased demo recording. So, that's an interesting news case. The interesting, the increase in the use of AI generated content and music is presenting a lots of challenges.
In the areas of copyright royalties copyright authorship just to name a few.
And the recording at Academy has now issued new guidelines of eligibility for consideration,
And it excludes works that are created solely by AI. According to the new rule, only human creators are eligible to be submitted for consideration, nominated for or win a Grammy.
Will not be eligible in any category.
Now the academy has stated that works that feature elements of a IR eligible and may still be commit submitted as long as they also contain meaningful contributions of human,
Elements.
Who have contributed creatively in the proper categories. So, for example, where an AI voice is singing the song or instrumentation, it will be considered but the songwriting based category it would in that songwriting based category.
It would have to be mostly written by a human. Same goes for performance categories, only human performer will be considered for Grammy.
And for album of the year a music creator must account for at least 20% of all the work on the album,
Including artists, credited, featured, songwriters, producers, engineers, and more. Previously, anyone who worked on the album was eligible to receive a nomination but
Anyone means a human person, not a machine. It seems to be what the
Grammy's are saying.
Are used in ways that support human culture and artistry and not to replace or erode it. The collective already has more than 40 members including major unions, trade associations, creators, industry insiders, rights holders, and more from various,
All of whom agree on a seven core principal,
As long empowered expression and AI will be no different. Number two, human created works will continue to play an essential role in our lives.
Number three the use of copyrighted works and the use of voices and likenesses of professional performers.
Exemptions that allow AI developers to exploit creators without permission or compensation
Number five copyright should only protect the unique value of human intellectual creativity
Number six trustworthiness and transparency are essential to the success of AI and protection of creators and number seven creators interests must be presented in policy making
I think that sounds pretty good. We'll be keeping an eye on that. That's called the human artistry campaign and they can be founded human artistry campaign. Com.
Next question is a reporter's shield law coming at the federal level.
Legal protections that are given to reporters to protect them and their sources they would basically prevent the reporter from having to produce documents or identify their sources and give protection to reporters from potential finds or jail times
Associated with not giving up there.
Think for example of Judith Miller or William Farr both of them who went to jail rather than reveal a source at one point or another
Well, the first amendment has been the basis for many protections to the press but it wasn't until 19 seventy-two's brandsburg versus haze in which the Supreme Court held the newsperson's could be subpoenaed.
But just as Paul in a concurrence as the fifth vote in Bransburg I'm just a steward's descent prompted a sort of balancing testing test and that became the guiding principles of state shield laws as well as federal attempts
Since 1972 states have implemented their own shield laws
Set for Wyoming and attempts for federal shield law have been made there's been a free flow of information act in 2007 and again in 2013,
And in the Biden administration it's been a revealed that the prior administration had secretly seized information from various reporting outlets from
Prompting the Department of Justice to adopt regulations against those kinds of actions except in the most exceptional circumstances. So, the new proposed legislation is designed to formalize the regulations.
As they can be otherwise be reversed by the subsequent administration.
So, what's in this one? Well, it's essentially protections to reporters against having to identify or provide sources or source material.
Extraordinary circumstances like terrorism or imminent bodily harm and it protects reporters from having requests directed to service providers like internet or telephone companies as an end run. So,
If you're interested in that check out our show notes we've got a bunch of links the congress is a bill 4330 excuse me the bill is in congress it's house bill 4330.
Your congress people know that you support or if you don't support it. And,
Well, that brings us to the end of this episode of Entertainment Law update as always a big big thank you to
You are loyal listeners for spending your time with us and if you have feedback we would love to hear it from you you can shoot us a
Voice message by visiting entertainment law update. Com and clicking on the little voice widget on the side or you can just email us entertainment law update at Gmail
Dot com,
Camera is not here with us. This time around but I'll say thank you to her anyway. She makes this possible as a team effort and I always am grateful.
For her participation in the show. She'll be back with us next month. No problem.
Excuse me, G firemark@Firemark. Com and on most social media websites, you'll find me as G
Firemark and with that I'll just say a quick shout out to our crack team of volunteer contributors managing editor John Janiceek Charles Thorn Mark Lindaman Malhar Oza Alexis Allen and Violet Zhang.
And if you're interested in joining the fun as part of our team of contributors.
Join us. Reach out to us at Entertainment Law update at Gmail,
Tom. Is that wraps up this episode of Entertainable Update? Thanks again for listening and until next time.
Music.