WEBVTT 00:00:01.717 --> 00:00:07.517 It's entertainment law update episode number 160 for September 2023. 00:00:07.760 --> 00:00:13.200 Music. 00:00:13.560 --> 00:00:19.380 Hello, everybody. Actually, it's early September 2023. We usually record our show late in the month, 00:00:21.401 --> 00:00:31.001 Personal conflicts and things. So, we made an adjustment and here we are. It's September 5 as we record this. So, this is the August episode. Let me record it in September. Hello, Tamara. How are you? 00:00:31.024 --> 00:00:35.944 Hi, I'm fantastic and thank you. I, for allowing us to push back a week. 00:00:36.012 --> 00:00:37.872 Had a wonderful trip to. 00:00:42.286 --> 00:00:55.966 Well, two our listeners, thank you for being with us. This is our podcast about entertainment law up where each month we pull together, round up, and update you on the legal and business news stories and share some opinions and commentary and analysis and, 00:00:57.461 --> 00:01:02.681 And and we're pleased to do it again for you. We also have a little bit of an announcement. We have a new sponsor. 00:01:03.009 --> 00:01:05.799 For our show and we're very proud to welcome J. 00:01:05.799 --> 00:01:18.549 D. Supra. So, JD Supra is a leading platform in professional services content marketing, helping lawyers to turn their expertise into networking opportunities media visibility and new business 00:01:18.567 --> 00:01:26.407 JD Super Publishers and Distributes Blot blog posts articles podcast videos and other thought leadership content to hundreds 00:01:26.766 --> 00:01:32.886 Of thousands of subscribers on a daily basis that includes business leaders and house council media members the sea suit 00:01:33.113 --> 00:01:42.113 And others who haven't need to know interest in legal regulatory in compliance matters. So that's all of you folks. The folks listening to the show. JD super clients. 00:01:42.412 --> 00:01:51.652 Not only enjoy wide readership of their thought leadership material but they're also provided with the data and tools to turn visibility into marketing and business development success. 00:01:52.252 --> 00:01:57.412 And you can find out more by visiting resources. JD Supra. Com. 00:02:00.147 --> 00:02:06.807 Our show on JD Supra as well as in the usual podcast places. So, hopefully we'll have more people finding us and, 00:02:07.484 --> 00:02:09.104 Stand up on entertainment law. 00:02:20.006 --> 00:02:20.966 Who's this person? 00:02:25.083 --> 00:02:27.243 From Los Angeles I'm Gordon Fireman, 00:02:32.861 --> 00:02:35.141 We're so excited to have JD Super. We just skipped. 00:02:40.742 --> 00:02:42.222 Episode. Anyway, 00:02:43.889 --> 00:02:58.589 Always here for a good time. Well, yeah. So, I I you went to Calgary and Bamp with your family which sounds like a lovely, lovely trip. I am just back from Denver, Colorado where I spoke at the podcast movement conference and had a wonderful visit and, 00:02:59.076 --> 00:03:01.356 Denver seems like a really nice area and, 00:03:02.952 --> 00:03:06.072 It was great to get away and even better to come home. So, 00:03:10.364 --> 00:03:11.684 I don't know 50°. 00:03:20.042 --> 00:03:25.922 So, it was it was a very good thing. That's amazing. Part of the world I haven't visited yet. So, I'll have to get up there at some point. 00:03:32.440 --> 00:03:37.700 Anyway, let's jump into the content of our show and and start talking about some of the 00:03:37.902 --> 00:03:43.002 Legal news and although it almost feels like it's not news this first case we're going to talk about. 00:03:50.064 --> 00:03:59.124 This story over the years and most recently it looks like it was episode 137 that's quite some time ago the case is finally really really really, 00:04:01.272 --> 00:04:03.012 I want you jump in and fill us in on what's going on 00:04:03.378 --> 00:04:12.718 Well, give you a little bit of background. Under federal copyright law, a sound recording copyright does not grant a general performing right? 00:04:12.885 --> 00:04:22.245 So that means am and and FM radio stations do not need a license or need to pay royalties when they play a recording 00:04:22.518 --> 00:04:31.038 On terrestrial radio. But we do have a digital public performance right. Which came into effect in, 00:04:31.898 --> 00:04:38.618 Thousands I can't remember exactly when that passed but I applicate satellite online radio 0:06 AM: Pandora, 00:04:43.502 --> 00:04:50.882 But then we've got this other little mix in the law that prior to the music modernization act passing, 00:04:52.783 --> 00:04:56.383 There was no sound recording copyright protection. 00:05:03.469 --> 00:05:07.669 Under federal law. So, there's a mishmash of state law that protected. 00:05:07.502 --> 00:05:18.962 Did those pre 72 sound recordings there's been this whole question of whether or not a public performance right attached to those understate law so Flo and Eddie 00:05:19.025 --> 00:05:30.125 The original founding members of the the turtles happy together was one of the big songs spearheaded these copyright claims to their recordings for the sound recordings, 00:05:31.565 --> 00:05:40.505 First filed in 2014 was their first lawsuit and we've been through a lot of different lawsuits and a lot of different states. Yeah. Trying to determine, 00:05:42.224 --> 00:05:47.684 State law allowed a public performance right in 00:05:48.102 --> 00:06:02.442 The sound recordings. And also class actions, settlements that were part of these claims against series XM in in pandora. So, we're down to the last case with Pandora. 00:06:05.623 --> 00:06:12.743 Enduring while this is all been going on we've also had the music modernization act of 2018 pass, 00:06:13.444 --> 00:06:22.504 Which actually then granted the rights to collect these royalties but we're looking at this gap in time when there was no right to collect the royalties. 00:06:24.093 --> 00:06:33.633 So, ultimately, in the ninth circuit, Flo and Eddie versus SiriusXM radio, we covered this one in 137 and September 2021. 00:06:37.255 --> 00:06:41.695 They're looking at in 2022 Flo and Eddie filed this case. 00:06:46.275 --> 00:06:51.735 All the way back to 2014 lawsuit violation of a California civil code 00:06:52.099 --> 00:06:59.719 Under state law misappropriation, violation of California business and professions code section and then conversion, 00:07:01.818 --> 00:07:10.978 Pandora's this is just against pandora's unauthorized reproduction of pre 1972 sound recordings for financial gain, 00:07:11.868 --> 00:07:20.328 Saying that Pandora creates creates many copies of the recordings including one for their permanent server, backup, cash, 00:07:20.754 --> 00:07:28.734 All of these allowed or allowed to make their site operate appropriately. So hanging their hat not on public, 00:07:30.773 --> 00:07:33.053 But this reproduction right? 00:07:34.680 --> 00:07:35.460 And. 00:07:43.691 --> 00:07:51.671 It is commonly understood that one infringe is a copyright owner's reproduction right by making one or more unauthorized copies, 00:07:52.162 --> 00:07:56.302 Even if they are solely for their private purposes of the reproducer, 00:08:03.370 --> 00:08:09.730 Finding instead that Flo and Eddie's copying claims rise and fall with public performance rights, 00:08:14.034 --> 00:08:22.474 Yeah so the ruling is determined relying on states rulings to essentially make the point that flow in 80s claims are nonviable 00:08:22.914 --> 00:08:24.294 The ninth circuit, 00:08:31.997 --> 00:08:34.337 So even if the court wanted to end, 00:08:37.831 --> 00:08:39.631 Because they're saying there's. 00:08:47.823 --> 00:08:49.863 Related state law claims fail, 00:08:50.506 --> 00:08:57.646 Pandora this was a competing motions for some judgement pandora wins and his entitled December judgement, 00:08:59.265 --> 00:09:02.145 The last action is I think finally, 00:09:02.749 --> 00:09:04.009 Finally ending. 00:09:15.388 --> 00:09:17.188 I mean and this is brought in it. 00:09:17.873 --> 00:09:22.913 In the California state line of of court violence I'm not sure which, 00:09:31.746 --> 00:09:34.746 Trial courts summer judgement ruling but. 00:09:48.463 --> 00:09:50.143 That the settlement, 00:09:54.503 --> 00:09:57.983 Wasn't everything contention on the outcome of other cases kind of, 00:10:03.973 --> 00:10:10.813 For anyone who who's signed up for the class and met the class requirements, verified so on and so forth. 00:10:11.624 --> 00:10:16.044 And there were a couple of different payouts that came about. 00:10:16.415 --> 00:10:24.035 And then, it was contingent on how these various state law claims in Florida, California, New York, 00:10:25.165 --> 00:10:32.965 Maybe there were two cases in Florida, two cases in California. I'm guessing we had cases against Pandora. They had cases against pandora and serious, 00:10:33.492 --> 00:10:35.292 So all of those, 00:10:43.863 --> 00:10:50.883 I feel like I had clients that maybe got three payouts, four payouts, two substantial, then some, 00:10:51.634 --> 00:10:54.914 Drips and drops and that was it because, 00:11:01.111 --> 00:11:01.651 Yeah. 00:11:11.437 --> 00:11:17.257 So, okay. So, the path is is clearer. Ahead of us then. Yes, yes. 00:11:17.972 --> 00:11:25.592 In a case that deals with some entities that I've never heard of before now and I don't know about you Tamara but Coco Melan and Baby Bus, 00:11:27.132 --> 00:11:29.452 Maybe our kids are too old. 00:11:34.554 --> 00:11:39.114 It's moonbag entertainment versus baby bus network technology company, 00:11:44.637 --> 00:11:52.917 For children and it includes children, adults, and animals that interact with each other in daily life. Originally was created in 2006 by j jon, 00:11:57.105 --> 00:12:01.005 To provide free education and entertainment for him his wife and his children, 00:12:03.317 --> 00:12:12.557 It reaches a one 1 million subscribers and a one 1 billion total views and in 2020 the UK based moonbug acquired cocoa melon 00:12:12.697 --> 00:12:19.297 And the next year two former Disney executives bought moon bug which also owns a variety of other YouTube kids programming, 00:12:20.808 --> 00:12:22.668 Blippy and little baby bum. 00:12:29.738 --> 00:12:40.058 Companies with 164 1 million YouTube channel subscribers to date it's the second most viewed YouTube channel with over 165 1 billion views as of August 00:12:40.217 --> 00:12:47.237 Of this year and by way of perspective Justin Bieber Ed Sheeran and Taylor Swift rank number 38 39 and 40 00:12:47.599 --> 00:12:56.719 Respectively with just over 30 1 billion views each so that's huge so baby bus is a Chinese YouTube channel founded in 2009, 00:12:57.753 --> 00:13:03.633 It started it's super jojo channel in 2019 and it now has 24 1 million subscribers, 00:13:04.361 --> 00:13:10.421 Baby bus and coco melons channels feature both feature animated families of five including a baby 00:13:10.861 --> 00:13:19.981 It's JJ and Koko Melan and Jojo in Super Jojo and an array of nursery rhymes and songs for toddlers moonbug and coke melon creator treasure studio, 00:13:23.851 --> 00:13:26.311 In the US federal district court here in California, 00:13:27.326 --> 00:13:39.926 Alleging that baby bus was infringing coca melons copyright with its animated series super jojo and that super jojo was built by blatantly copying coco melon and sided striking similarity in the 00:13:40.073 --> 00:13:46.073 Free writing channels character settings and song titles lyrics and or images and other things. 00:13:54.645 --> 00:14:01.845 We have some pictures of them side by side. They look very similar although cartoon babies are going to look similar but, 00:14:02.723 --> 00:14:10.943 Baby busted concede that an infringed seven of coco melons works before trial but then they contested the alleged infringement of 35 others, 00:14:18.933 --> 00:14:23.793 17. 6 million in actual damages and discord profits and five. Eight millions in, 00:14:26.435 --> 00:14:28.175 Electable in the alternative, 00:14:29.924 --> 00:14:43.424 TYZ Law Group which represented Moonbug in the case made a statement after the verdict and they said that artistic expression and content creators are always worth protecting and the owners and creators of valuable property must stand firm against flagrant 00:14:43.334 --> 00:14:44.334 Plagiarists. 00:14:52.721 --> 00:14:55.241 The jury saw through the other stuff anyway so, 00:14:59.257 --> 00:15:07.417 I guess felt confident that the defendant I guess felt confident enough that they could overcome. Yeah. To take it all the way, 00:15:08.853 --> 00:15:11.373 To a to a jury verdict versus, 00:15:12.346 --> 00:15:16.546 Thinking it was looking bad enough to perhaps need to settle I I don't know, 00:15:21.952 --> 00:15:22.852 Striking. 00:15:34.510 --> 00:15:35.050 Well, 00:15:35.752 --> 00:15:48.832 And said yes, this is in French man. Yeah, so it's it's interesting. I mean, I do think that the similarities are are striking as you said. The question is, how much of those are similarities on on protectable things, themes, ideas, concepts. 00:16:03.574 --> 00:16:09.554 Hey most likely will. What did you think about this next story? The the case of, 00:16:12.261 --> 00:16:14.281 Copyright ID fraud. 00:16:17.199 --> 00:16:23.319 Crazy to me. Okay. I could see a movie being made out of this. Yeah. So, 00:16:30.738 --> 00:16:31.458 I 00:16:32.070 --> 00:16:38.730 Oh he used the word mastermind loosely. The alleged mastermind of a copyright criminal copyright fraud screen, 00:16:45.169 --> 00:16:50.629 There were two gentlemen Webster but Fernandez and. 00:16:51.263 --> 00:16:51.923 Terren, 00:16:57.709 --> 00:17:02.929 In two basically manipulating YouTube's content ID system. 00:17:15.311 --> 00:17:16.331 75 1000 songs, 00:17:24.130 --> 00:17:30.610 By google to help content owners fight copyright infringement. So, once you, you know, you can upload if 00:17:30.954 --> 00:17:33.654 You have to click a button that says you own the copyright. 00:17:43.990 --> 00:17:46.570 When they get part of that add revenue but the 00:17:46.627 --> 00:17:50.827 The two defendants in their company media move LLC, 00:17:54.900 --> 00:18:02.940 By instead using a third party that had access to the content at ID to make the claims on their behalf, 00:18:10.129 --> 00:18:11.629 23 1 million in revenue. 00:18:20.260 --> 00:18:23.560 And the big one is pay rest to tuition. Yeah, 00:18:25.472 --> 00:18:34.712 I actually went out and I think I the link we have if you kind of click through it it has a link to the song titles that they were falsely claiming, 00:18:37.904 --> 00:18:41.804 File a claim for restitution if one of your songs shows up, 00:18:43.702 --> 00:18:47.602 A lot of the song titles were in Spanish. 00:18:52.199 --> 00:19:01.839 So so on a gap in the market that nobody was claiming these titles and that's why they went after him so yeah be be aware if she 00:19:01.994 --> 00:19:12.434 You know you may want to take a look at the list on behalf of your clients just to see if anything pops and I would say especially if you represent clients in a Spanish music in the Latin music market, 00:19:13.733 --> 00:19:14.333 Yeah. 00:19:23.060 --> 00:19:24.500 Deceived in this way. 00:19:25.570 --> 00:19:30.170 Yeah, I wonder if we're going to see some civil suits. 00:19:30.420 --> 00:19:32.760 Wouldn't be surprised. Yeah. I think we should. 00:19:35.428 --> 00:19:36.748 Certainly that third party 00:19:36.986 --> 00:19:40.886 Company would have taken a piece of the action wouldn't it so, 00:19:46.790 --> 00:19:55.070 And I guess their weather was some interesting arguments to you know regarding pleading, pleading down, they're sentenced, their criminal sentence, but, 00:19:57.367 --> 00:20:00.187 Yeah that's a whole they were living a life. 00:20:07.657 --> 00:20:12.637 Relinquish all their ill gotten gains. So. 75 1000 songs. 00:20:17.469 --> 00:20:20.109 Makes you wonder I mean you know that that's, 00:20:20.755 --> 00:20:24.835 Well, I just don't it's hard to believe anybody just said, yeah, yeah, okay. We'll put it through. 00:20:29.415 --> 00:20:32.475 How could even this like you said the third party, 00:20:34.263 --> 00:20:41.983 Pick a major music publishing company or a major record label. They're not going to have 75 1000 songs, 00:20:42.671 --> 00:20:48.351 But you know you're going to have to be a universal music. I was going to say Sonia TV Warner. 00:20:56.215 --> 00:20:58.315 Youtube content ideas sister. 00:21:07.053 --> 00:21:10.773 Most of those songs probably land under some of those big publishers. So, 00:21:15.480 --> 00:21:19.860 This Saturday I think there's lots of lots of finger pointing to be done so, 00:21:23.798 --> 00:21:26.858 No, you represent clients in music business and I would say, 00:21:29.826 --> 00:21:30.786 Area. 00:21:35.492 --> 00:21:36.752 Good point. 00:21:38.226 --> 00:21:44.766 In the area of contributory copyright and friends when we have some interesting new developments in a case involving red bubble, 00:21:45.412 --> 00:21:48.832 Red Bubble is an online marketplace for print on demand, 00:21:52.848 --> 00:22:00.348 Can you know manufacture with what they do is they buy product and then you can create designs and upload them and have them print 00:22:00.635 --> 00:22:01.595 You know, sort of. 00:22:09.466 --> 00:22:13.846 You know, coffee cozies and all those kinds of things. And, 00:22:18.136 --> 00:22:29.416 Versus red bubble is the case. Why would jam owns a couple of trademarks? Brandy Melville Hart and the Brandy Melville LA lightning trademarks. So, why would y'am Sue's Red Bubble, 00:22:30.009 --> 00:22:31.149 For trademark infringement 00:22:31.198 --> 00:22:37.138 Violations with YYGM are doing that red bubble the online marketing place was willfully blind 00:22:37.262 --> 00:22:45.722 To its users infringing on YY jams and electrical property the jury found that red bubble had willfully contributorally in 00:22:45.781 --> 00:22:49.801 A counterfeited and committed contributory trademark infringement. 00:22:50.319 --> 00:23:05.559 The judge after the trial reversed one of those contributory counterfeiting claims and upheld the remaining ones also denied why we're jam a permanent injunction and attorney's fees and prejudgement interests so it goes up on appeal to the ninth circuit which 00:23:05.740 --> 00:23:18.940 Has overturned much of that lower court resolution on the contributory infringement claim according to the panel willful blindness requires number one a subjective belief that infringement is likely happening and too 00:23:19.270 --> 00:23:21.910 Delivered actions to avoid learning about it 00:23:21.908 --> 00:23:29.828 But the panel emphasizes that this this standard is actually quite narrow and it requires the defendant to be aware of specific instances of infringement 00:23:30.199 --> 00:23:31.939 Or specific infringers. 00:23:37.292 --> 00:23:39.272 You know, going back to the YouTube days. 00:23:52.191 --> 00:23:56.931 Violations once the defendant knows about specific instances I'm infringement. 00:23:57.170 --> 00:24:03.050 Bonafide efforts to root out infringement could support a verdict finding no liability even if the defendant 00:24:03.318 --> 00:24:10.398 Was not fully successful in stopping infringement. So, they vacated the the the trial courts, 00:24:11.015 --> 00:24:14.555 Ruling on willfulness and sending it back for reconsideration. 00:24:22.007 --> 00:24:28.667 Under the correct legal standard the disrecord had initially ruled that counterfeiting could only occur among similar product 00:24:28.812 --> 00:24:37.872 And they peels panel disagreed stating that consumer confusion could still occur even if the counterfeit items were not identical to the trademark products sold by brandy melville, 00:24:38.526 --> 00:24:46.866 They said confusion could have resulted because the products on red bubbles website bearing the heart mark are the kinds of trademarked goods brandy mellville cells, 00:24:50.139 --> 00:24:56.679 I guess, you know, if if you could look at Brandy Melvin, say, well, yeah, they sell T shirts and this is on, 00:24:58.619 --> 00:25:05.639 Other kind of sportswear. Doesn't, you know, the the trunk or the sounds like said, well, not the same kinds of goods. So, 00:25:05.809 --> 00:25:06.829 It can't be counterfeit. 00:25:13.842 --> 00:25:15.762 If you're on one kind of clothing 00:25:16.134 --> 00:25:22.194 Even if you're registration only extends to T shirts caps and hats but then it shows up on, 00:25:24.177 --> 00:25:27.957 Pants and some pants smell like it's medical devices versus t-shirts, 00:25:34.430 --> 00:25:37.490 Expansion. A reasonable consumer could conclude that 00:25:37.455 --> 00:25:40.755 Brandy Melvo was now making tote bags. Yeah. That's right. 00:25:44.288 --> 00:25:47.768 Thoughtful post by our colleague Eric Goldman. 00:25:56.161 --> 00:25:58.561 When it comes to trademark infringement. So, 00:26:01.392 --> 00:26:13.392 Is is this what it's going to have to be? There's how how well obviously the court is saying what the standard is. General knowledge that infringement trademark infringement happening on your website isn't sufficient anymore. 00:26:14.240 --> 00:26:15.720 Specifically know, 00:26:19.108 --> 00:26:21.808 Yeah you've gotta be put on notice, 00:26:22.445 --> 00:26:29.045 That sounds very consistent with as you said the copyright cases involving you know was a via converses YouTube all those years ago, 00:26:32.454 --> 00:26:34.294 Trademark infringement but, 00:26:40.291 --> 00:26:43.231 Seek out an identifying screen for infringement, 00:26:45.674 --> 00:26:59.774 What's interesting? Yeah, there's also a companion case, a Tori versus Red Bubble out of the ninth circuit. I kind of landing the same way. If it red bubble was notified as specific instances, they remedy the situation, 00:27:00.645 --> 00:27:03.585 Yeah no contribution no contributory infringement. 00:27:14.364 --> 00:27:16.104 Comment briefly. 00:27:17.029 --> 00:27:21.109 We do not have a fast, easy take down method in the copyrights this time. 00:27:30.343 --> 00:27:34.723 Under the DMCA put fast and easy may not be, 00:27:35.237 --> 00:27:37.397 I respectfully retract my adjectives. 00:27:40.855 --> 00:27:44.755 I I will say though over the years I have, 00:27:46.907 --> 00:27:56.387 Send such notices to use to services that might be equal to or similar to red bubble and they've always been responsive. Yeah, 00:27:57.314 --> 00:28:02.834 When when it goes through the DMCA actual take down process for copyrights. 00:28:10.093 --> 00:28:17.033 They have built out their platform to which copyright claims are submitted very similarly 00:28:17.443 --> 00:28:24.703 I'm sorry in which trademark claims are submitted very similarly to the DMCA take down but there's no requirement for them to do that. Yeah. 00:28:31.226 --> 00:28:34.226 Adhere to DMCA procedures either, 00:28:36.564 --> 00:28:41.544 Or again, this is anecdotal and not even anecdotal. It's just word of mouth. 00:28:42.163 --> 00:28:42.763 Broomer. 00:28:48.294 --> 00:28:51.294 I don't know what their current policies are or how they work. 00:29:01.239 --> 00:29:03.939 I don't think so. I I just think it, 00:29:08.441 --> 00:29:16.241 Practice pointers if you're aware of infringement, you know, notify them and tell them to take it down and that's how you preserve your claims against them anyway. 00:29:18.316 --> 00:29:19.396 Okay. Well, 00:29:21.557 --> 00:29:34.637 In early August zoom that tell communication the video chat service updated its terms of service which set off alarm bells among accusers those new terms included language suggesting that Zoom might be allowed to use some data it gathers 00:29:34.827 --> 00:29:36.507 To train artificial intelligence, 00:29:40.831 --> 00:29:49.471 But I'm such terms often are they're pretty vague about exactly how and when and what data and so on the the provision stated 00:29:49.770 --> 00:29:56.850 You agree to grant and hereby grant zoom a perpetual worldwide non exclusive royalty free sub licensible and transferable license 00:29:57.014 --> 00:30:00.674 To perform all acts with respect to the consumer content 00:30:01.014 --> 00:30:04.914 Including for the purpose of machine learning and artificial intelligence, 00:30:05.623 --> 00:30:13.963 So, a lot of users immediately interpreted. Oh, they're going to take all the transcripts of all my calls and give it to chat GPT and. 00:30:17.443 --> 00:30:30.223 Kinds of things. Lots of online discussions about are they stealing customers content to train its own AI models or others more than a few folks I've encountered have been swearing off of Zoom as a result of the news about this. 00:30:30.181 --> 00:30:34.561 Change in the terms of service and real sort of PR nightmare 00:30:34.575 --> 00:30:46.335 For Zoom. So, as of last week, they updated their provision again and they specifically added a disclaimer saying that Zoom does not use any of your audio video chats, screen sharing, attachments, or other communications 00:30:46.719 --> 00:30:55.839 Like commuter customer content like poll results, whiteboards, reactions, those kinds of things to train zoom or third party artificial intelligence models. 00:30:56.702 --> 00:31:04.322 Unfortunately, I think some of the damage is done and we've seen this over and over and over again when companies in the online space change their, 00:31:04.777 --> 00:31:08.377 Terms of use for their privacy policies we had you know big, 00:31:08.933 --> 00:31:11.393 Uproar when Facebook did it a few times. 00:31:14.122 --> 00:31:19.162 Reason for mentioning adhere is a practice pointer if you write terms and service and privacy policies for 00:31:19.109 --> 00:31:31.109 Your clients. Try to be aware of these kind of unintended consequences and how easily these things can be misinterpreted by lay people or honestly by journalists. Who are reading these things? 00:31:31.802 --> 00:31:45.422 And do your best to insert this kind of clarifying narrowing language and things like that in in the early days. So, you can avoid the PR nightmare. Maybe even you know, run these things by up the flagpole with people before you go live with them to, 00:31:45.882 --> 00:31:48.162 Just sort of get a sense of hey what are we missing here. 00:31:54.965 --> 00:31:58.685 I use it I I do use Zoom because it's, 00:32:00.582 --> 00:32:09.942 You know, I I used teams. This is Microsoft Product and then I use it another product that just got bought out by dial pad, 00:32:13.915 --> 00:32:15.475 Yeah. Audio. 00:32:16.714 --> 00:32:18.214 Clip to that button yet. 00:32:22.869 --> 00:32:25.809 I really need to go read their terms of service. 00:32:26.644 --> 00:32:32.404 Because i don't know what they are allowed to do if they transcribe my audio. 00:32:39.823 --> 00:32:47.323 The audio let's just say it's not a zoom meeting for the nonprofit you work with but it's a client meeting, 00:32:52.345 --> 00:32:57.325 Bird confidentiality of those calls is pretty important for lawyers. That's right. 00:33:04.300 --> 00:33:05.200 This call. 00:33:05.417 --> 00:33:17.477 What's happening with that? No matter what the service is. I think as as attorneys we really need to think about that. With the confidentiality as well as. Yeah. You know it just where is it going? 00:33:17.786 --> 00:33:18.326 Well. 00:33:18.398 --> 00:33:32.678 And even if it's not a transcription that is customer facing you may not even know it but you know they could transcribe it in the background and never even tell you about it I think they probably need to disclose that they're doing it and that's why these changes to terms of use are happening, 00:33:33.297 --> 00:33:35.937 But that's another, you know, another concern. 00:33:36.120 --> 00:33:38.220 What if i don't even know it's being transcribed? 00:33:40.922 --> 00:33:41.582 Or what? 00:33:57.522 --> 00:34:02.802 Hmm I don't know now I'm going to go read everything again so we just made more work for ourselves, 00:34:04.310 --> 00:34:09.710 And it sounds like more non billable work. So, I really appreciate that too. Oh, you're welcome. I'm glad I could help out. 00:34:19.415 --> 00:34:21.155 Well deals with, 00:34:29.453 --> 00:34:31.793 Neither of them is allowed to own copyrights. 00:34:43.630 --> 00:34:55.070 Technology I will call him who has previously mentioned in episodes 155 and 154 of our show he's the creator of Dabas DAB US and AI designed to invent 00:34:55.253 --> 00:35:01.793 Patentable content and the creativity machine which has been designed to create visual artistic works. 00:35:02.311 --> 00:35:07.891 From some interviews Taylor has argued that his AI is autonomous and potentially sentient which is why he's 00:35:08.204 --> 00:35:10.904 Pushing litigation in this area. So in the 00:35:10.971 --> 00:35:19.011 Disrecord of DC he saw to register the visual artwork a recent entrance to paradise naming himself as the claimant, 00:35:20.324 --> 00:35:26.624 As a work for hire due to ownership of the author and the creativity machine as the author so he says 00:35:26.941 --> 00:35:36.661 I own it because my machine made it at my best essentially and the creativity machine is the author. So, claiming that it was autonomously generated by AI and it lacked 00:35:36.601 --> 00:35:38.341 Traditional human authorship. 00:35:48.187 --> 00:35:49.507 So he appealed that, 00:35:51.022 --> 00:35:54.322 Basis that the rejection was arbitrary, abusive, discretion. 00:36:05.309 --> 00:36:09.149 The US corporate law only protects works of human creation, 00:36:15.220 --> 00:36:16.540 Versus Sarani, 00:36:20.550 --> 00:36:25.350 Despite the camera being only a generating only a mechanical reproduction. 00:36:34.053 --> 00:36:36.393 It's not the Oscar Wild photograph case. 00:36:43.416 --> 00:36:48.636 The requirement of human involvement is the court has been a consistent element even when books include, 00:36:55.043 --> 00:36:56.843 Something authored by god, 00:37:03.490 --> 00:37:04.510 Of discussions. 00:37:11.701 --> 00:37:15.361 Then the cart also mentioned the Naruto versus Slater case, 00:37:19.650 --> 00:37:22.770 Mucky selfie case that only humans had standing to 00:37:22.927 --> 00:37:36.187 To Sue and those kinds of situations. The court did acknowledge that questions about necessary human inputs for AI generated works as well as other legal questions raised by AI like originality and how the systems are trained. 00:37:36.700 --> 00:37:42.280 Leave openings for a qualification or justification as done in serenity but 00:37:42.371 --> 00:37:47.111 Acknowledge that it wasn't the case here and deemed that since the work has, 00:37:48.169 --> 00:37:52.069 No human involvement the answer is simple not copyrightable as a result, 00:37:54.281 --> 00:37:54.881 Ah 00:38:08.955 --> 00:38:13.935 Not going to be able to replace writers completely using AI if you want to claim ownership of the output, 00:38:16.103 --> 00:38:18.863 So, human authorship will still be necessary. 00:38:23.367 --> 00:38:26.947 You know, I don't know. Do you think it will? 00:38:27.770 --> 00:38:37.730 I think it'll be an argument raised by the studios hey what are you so worried about the loss as pretty clearly we can't own what AI creates so why would we use AI to make things, 00:38:40.226 --> 00:38:43.586 You know, I don't think that's going to be persuasive for either writers or actors. 00:38:45.558 --> 00:38:45.858 Hey. 00:38:51.635 --> 00:38:57.335 We've we've talked about that before. You and I on occasion use AI as tool in our tool belt. 00:38:59.494 --> 00:39:04.354 Hey we use AI to to do noise reduction on the episodes we make so that that sounds nicer, 00:39:04.796 --> 00:39:09.176 There we go and sometimes we stop and I go turn the air conditioner off. So, you know. 00:39:14.724 --> 00:39:24.004 Hey, hey, you know, that will be part of it. I did also put into the show notes a link to the copyright, alliance, who has resources specifically 00:39:23.899 --> 00:39:31.639 Quickly for copyright cases related to AI. I know in a previous episode, I'm pretty sure we put a link in for 00:39:31.650 --> 00:39:41.370 Add thorough kind of just blog cases on AI where we discuss that a lot of those were criminal cases not specifically into what intellectual 00:39:41.444 --> 00:39:43.424 Property driven cases so, 00:39:43.866 --> 00:39:53.766 Well, I don't think it's too early to make a prediction for the next year too that we'll be seeing an awful lot of AI litigation in the copyright the trademark Patton Space as well as other arenas, 00:39:54.272 --> 00:39:57.692 Hey Facebook I do want to kind of point out so what, 00:39:58.666 --> 00:40:02.746 Failure was part of what he was saying it's had on was claiming, 00:40:06.678 --> 00:40:08.478 The work was, 00:40:10.747 --> 00:40:20.647 He's not claiming an individual authorship he was claiming it was at the direction of and it would fit into a work for hire and the court 00:40:20.892 --> 00:40:24.192 I guess the copyright office stated as well as the court said. 00:40:30.534 --> 00:40:44.814 Within the course and scope of their employment or it needs to fit within these other categories. Now, that that's an interesting one. Could you have a machine make it fit within the other categories? I don't think so. Because it's still has to be a human 00:40:45.217 --> 00:40:46.477 Doing it. So, 00:40:52.427 --> 00:40:58.967 They could go on up and again so but we'll keep watching and you know you can look at the, 00:40:59.827 --> 00:41:06.427 Copyright reconsideration decisions based on human authorship and there's a there's a quite a few of them. 00:41:06.876 --> 00:41:18.756 Yeah. Where they've been refused. So. What do you think the odds are that the congress will step in and add a definition to the copyright act that says that authorship and then an author must be a human or something along those lines? 00:41:21.406 --> 00:41:21.946 Ah 00:41:34.801 --> 00:41:39.601 Congress isn't going to get anything much done in any any of these arenas for any period of time 00:41:39.761 --> 00:41:40.841 In in our, 00:41:49.060 --> 00:41:55.840 And in local property as well as I'm sure as we discussed on criminal I'm not following it down that path. Yeah. They have to be. Oh yeah. 00:41:58.135 --> 00:42:00.655 There are conversations being had, 00:42:08.630 --> 00:42:10.050 And honestly, 00:42:21.586 --> 00:42:24.346 So what about this ruling. 00:42:37.349 --> 00:42:38.969 Feed of a crime scene, 00:42:39.725 --> 00:42:50.105 At the argument was the reasoning behind the statute was that police activity is too dangerous for people to get up close and record law enforcement doing their jobs, 00:42:51.104 --> 00:42:54.344 So the ACLU various media. 00:43:00.340 --> 00:43:04.060 For this and they won on July 21 00:43:04.140 --> 00:43:16.860 Judge Tuchi issued a permanent injunction and declaritory judgement ruling that Arizona's law limiting how close people can get while recording law enforcement is unconstitutional, 00:43:17.480 --> 00:43:19.680 Yeah, this is really interesting. 00:43:21.262 --> 00:43:32.602 You know, as you know, in first amendment jurisdiction, one of the things we look at is is there a valid time place or manner restriction that can be made and I think the 8 foot 00:43:32.857 --> 00:43:35.557 Thing was trying to make that place part of at work, 00:43:38.042 --> 00:43:46.862 But I'm when I heard about the law of my first thought was well anybody who's being pulled over and turns on their camera phone while they're interacting with the officer is violating this law, 00:43:48.907 --> 00:43:52.787 Yeah you know and is that really a 00:43:52.923 --> 00:44:00.963 Is that a safety issue? I mean, I get it if I just, if I'm a bystander, maybe I don't need to be within 8 feet of a crime scene. 00:44:05.697 --> 00:44:12.417 Well, but you know, think about it. How far away was the person who caught the incriminating footage of the George Floyd situation, 00:44:13.196 --> 00:44:17.096 Yeah, I don't know. Were they within 8 feet they may have been further a while. 00:44:24.862 --> 00:44:34.502 Well, I think there's nothing wrong with police officers saying, hey, step back, you're interfering with me doing my job but an arbitrary number of feet isn't the right. 00:44:34.702 --> 00:44:45.442 Approach. I think that's what the courts sort of doing here. It says that there's a clearly established right to record law enforcement officers engaged in the exercise that their official duties in public places. 00:44:49.636 --> 00:44:56.216 Narrowly tailored to serve a compelling government interest and here they single out a specific subject matter, 00:44:56.920 --> 00:45:02.080 Law enforcement activities and it's giving it different treatment than other kinds of, 00:45:02.780 --> 00:45:10.040 Of speech-related activity. So, it prohibits her chills a substantial amount of first men and protected activity, 00:45:13.358 --> 00:45:14.198 No dice. 00:45:22.910 --> 00:45:24.470 These are media planners, 00:45:33.055 --> 00:45:34.555 And so I am, 00:45:35.170 --> 00:45:42.730 Dinner put it into that context of saying I'm a reporter on the job I'm not at the individual who's filming this, 00:45:44.056 --> 00:45:50.836 I think that does even heighten it further to a real first amendment. Oh, yeah. Well, when it, yeah, the media is the obvious. 00:45:52.806 --> 00:45:55.146 Flag waiver for this kind of shirt. 00:46:00.359 --> 00:46:03.959 Statues, laws, and place procedures that could 00:46:04.266 --> 00:46:11.706 It'd be enforced which I think is, you know, we have a perimeter on the, on the scene. We, you know, various different things or like you said, 00:46:19.498 --> 00:46:28.138 You know you're you're going to have to step back. Yeah that cameraman is in between the officer and the alleged perpetrator or whatever. You know that's your 00:46:28.365 --> 00:46:33.105 You're violating other laws. Obstructing the officer and performances duties or whatever. 00:46:43.345 --> 00:46:45.385 Past trying past these. I don't know. 00:46:53.904 --> 00:46:59.904 Who was very it was a touchdown for issues like this and I I have a feeling this all started with, 00:47:03.708 --> 00:47:07.368 Okay. I just want to know who I know which you're just talking about that team. 00:47:13.610 --> 00:47:15.230 To this happening so, 00:47:15.933 --> 00:47:22.833 Well, we have some sort of public service messages than things we want to share. We're just going to go through them real sort of quickly. 00:47:25.619 --> 00:47:38.099 Cooperate claims board is allowed to hear contract issues so a quick notice to those who are working on CCB cases or or advising clients about them new rules allow for counter claims related to contract 00:47:38.250 --> 00:47:41.790 Spewed. So, the CCB now can hear sort of the whole case, 00:47:46.369 --> 00:47:49.849 An infringement claim in the CCB. So that's Jack is good news. 00:47:50.106 --> 00:47:55.026 I think so. I think it I don't know. Will it slow things down or speed things up? Well, we'll have to wait and see. 00:48:00.755 --> 00:48:13.475 Item for Tony's. Yeah. We've got a couple of public listening sessions or a public listening session coming up on September 26. You may want to tune in to that or it probably will be recorded to listen later. 00:48:15.211 --> 00:48:18.731 Relates to when as the attorney of record, 00:48:20.281 --> 00:48:28.561 Status and obligations as the attorney of record and representation actually comes to an end. Currently, attorney recognition. 00:48:34.388 --> 00:48:38.708 When ownership changes or when an application is abandoned, 00:48:43.534 --> 00:48:52.294 Ends when our registration is cancelled or expired ownership changes are acceptance of a final rejection of a post registration maintenance 00:48:52.284 --> 00:48:59.424 Filing. The UP, USPTO has never inquired as to when an actual engagement agreement 00:48:59.702 --> 00:49:06.542 Ends between an attorney and an applicant or registrant. So, I mean, there is the possibility that your, 00:49:12.359 --> 00:49:18.839 As you may know we've had this change under the trademark modernization act where Nail 00:49:19.237 --> 00:49:23.977 Clients the applicant are registered are receiving emails from the USPTO, 00:49:26.871 --> 00:49:35.871 Actually, when does registration, when does our representation end? So, the USPTO is seeking additional feedback regarding possible changes. 00:49:46.541 --> 00:49:52.181 Or a party trip proceeding actually files and withdrawals the representation so, 00:49:54.301 --> 00:49:58.321 Stakeholders are being asked to provide comments on whether or not 00:49:58.451 --> 00:50:09.071 This new proposal will make it easier to withdraw. How should they implement this? Go read it. There's a lot of meat there that I think impacts us and I've just hit 00:50:09.210 --> 00:50:10.630 Highlights. Yeah. 00:50:12.287 --> 00:50:12.827 Hey. 00:50:24.630 --> 00:50:38.910 When we think our representation has ended and and what also if I tell my client my representation has ended and we agree it ending but I don't go in in affirmatively withdraw myself, 00:50:39.537 --> 00:50:46.257 Hey Tony of record engagement. 00:50:48.710 --> 00:50:50.690 Goes beyond the the, 00:50:51.429 --> 00:51:03.309 The termination that the trademark office says you could have liability to a client because you didn't get a notice from the USPTO and then didn't act on it because the USP Theater wouldn't have sent the notice. 00:51:05.788 --> 00:51:11.368 Highlights the importance of doing our own calendaring a reminders and being all those kinds of things and, 00:51:15.312 --> 00:51:18.072 To the client that hey when the registration issues, 00:51:23.348 --> 00:51:33.908 Yeah and and do we need to put that in the engagement letter? Or do we put that in the letter that goes out with the actual registration certificate that says your mark is registered 00:51:34.190 --> 00:51:35.990 My representation ends. 00:51:41.959 --> 00:51:47.239 Yeah, I mean, I, you know, I think what it's, it's actually something I think a lot of attorneys don't do well is the, 00:51:51.330 --> 00:51:53.670 Notification or letter call what you want, 00:51:55.444 --> 00:52:02.764 You know, especially those of us that do transactional work, right? Sure, and especially if we have a client where we might have a portfolio. Yeah. 00:52:06.265 --> 00:52:11.425 But you know you're suddenly bound to something that might happen 5 or 10 years down the road. 00:52:12.827 --> 00:52:15.687 I think this is important. I I don't, 00:52:20.804 --> 00:52:31.964 Because I can I can hear the very large law firm saying our representation never ends we want to always but then I kind of feel it from my end going oh my gosh I don't want to be on the hook forever, 00:52:32.631 --> 00:52:33.631 Yeah. 00:52:39.374 --> 00:52:46.854 Yeah. Maybe it is. I don't know. Right. I don't know. Anyway, that's that's our you have an exciting public service announcement. 00:52:46.973 --> 00:52:50.033 Yeah, well, first off, let's just finish this. So, if you can. 00:53:04.096 --> 00:53:10.396 And you can find out you know sending the email on what's needed to to participate in that 00:53:10.640 --> 00:53:15.620 In that listening session and the big announcement that Tamara just teased is of course, 00:53:23.693 --> 00:53:28.973 Tyranny ended with relinquishment of the mark by the owner taco johns the Mexican chain with, 00:53:29.689 --> 00:53:37.009 400 locations around the country the term is now free to be used in every state except for New Jersey where there's a third party who has a 00:53:37.044 --> 00:53:38.244 Unrelated taco, 00:53:39.006 --> 00:53:40.266 Taco Tuesday trademark. 00:53:50.043 --> 00:53:50.763 On 00:53:52.528 --> 00:54:05.068 Something's not right there. Anyway, it doesn't only cover tacos from Taco Bell. The company will reimburse patrons for tacos from any restaurant store or street vendor. In addition every Taco Bell location has been offering free 00:54:05.320 --> 00:54:16.540 Doritos locos tacos every tuesday since August 15 and will continue to do so every Tuesday leading up to the first ever nationwide taco Tuesday on September 12, 00:54:17.806 --> 00:54:19.846 So as of this recording there's only one 00:54:20.066 --> 00:54:24.926 One of those taco days left that's September 5 that happens speed today that they were recording, 00:54:32.111 --> 00:54:33.071 Get your taco. 00:54:46.802 --> 00:54:54.962 There you go. But on September 12, the second deal celebrating Taco Bell's legal victory will be unleashed. I think that's the, 00:54:56.228 --> 00:54:57.728 DoorDash. Yes. 00:55:04.618 --> 00:55:08.038 Day on September 5 and then if you listen to this, 00:55:18.570 --> 00:55:21.610 I'm excited about AA law that 00:55:21.551 --> 00:55:29.711 Past actually 2 years ago in Texas but got funded this year in Texas this is the Texas music 00:55:29.725 --> 00:55:31.825 Incubator rebate program. 00:55:57.452 --> 00:56:03.632 Gross receipt taxes and sales taxes paid in the prior fiscal year, 00:56:04.942 --> 00:56:09.142 Texas is the first state to legislatively define music venue. 00:56:17.987 --> 00:56:23.087 What was going on with COVID and COVID reopening restrictions and so, 00:56:23.892 --> 00:56:37.632 The Texas music office which is part of the governor's office was able to work with the legislators the legislature to get music venues defined the first round of applications open September 1 00:56:37.918 --> 00:56:42.358 And closes November 30 and this is for small 00:56:42.752 --> 00:56:48.872 The news you either have to have a venue that only has a 3000 person capacity or 00:56:48.729 --> 00:56:59.889 Or music festival promoter held an accounting with a population less of 100 1000 so it's really to help these small venues small festivals recoup, 00:57:00.369 --> 00:57:08.829 Some of these expenses. So super excited about this new program in Texas. I think it's a great approach to stimulating the arts a little bit and, 00:57:09.299 --> 00:57:11.099 And allowing these, 00:57:11.928 --> 00:57:19.848 Industries that were hit especially hard by lockdowns things like that to bounce back a little more easily and I'm really excited to see that I hope some other states will follow soon 00:57:19.895 --> 00:57:34.835 Yeah, I I knew too. I mean, really, I had the opportunity to speak with Brenda, Anthony, who's our director of the music office from Texas 2 weeks ago, I guess and he was kind of feeling me in on it and and hopefully other states will because they are really looking at 00:57:34.803 --> 00:57:36.063 Texas as the, 00:57:36.576 --> 00:57:37.236 You know. 00:57:46.929 --> 00:57:49.989 Actually make as much money from things like selling liquor and, 00:57:54.022 --> 00:57:56.782 Severely hit by lockdowns but, 00:57:57.623 --> 00:58:08.423 Why not my lockdowns but having a harder time bouncing back so it could be a bouncing back. So anyway, we've got the link in there to both of an article as well as directly to the governor's Texas Music Office website. 00:58:12.513 --> 00:58:16.353 To apply during this window of time that's open, 00:58:20.489 --> 00:58:24.629 Do you have any upcoming speaking engagements or appearances you're going to be making, 00:58:34.155 --> 00:58:36.855 Yes, so we're going to be part of the, 00:58:37.648 --> 00:58:42.088 Entertainment Law Institute sponsored by UT Law CLE in Austin. 00:58:52.006 --> 00:58:54.886 Regarding states when you 00:58:55.049 --> 00:58:55.589 Planned, 00:59:04.555 --> 00:59:08.035 And those kinds of things. So, that'll be super fun. 00:59:11.595 --> 00:59:19.755 Nine and 10. There you go. Eight, ninth, and 10th is the conference. Yup. Check that out, folks. Come join us. It's always a great Seeley 00:59:19.913 --> 00:59:33.173 Yeah I'm also going to be down in New Orleans for the Fin con event coming up there and looking forward to being a part of that and and sharing some ideas about podcasting and the law in that arena as well so 00:59:33.498 --> 00:59:40.218 Yeah and maybe you can we plug in the links the registration links for both of those. Make sure we do that. Great. That sounds great. 00:59:43.517 --> 00:59:52.997 That's great. So, that is the end of this episode of Entertainment Law update and as always, big thank you to you, the loyal listeners for spending your time with us. 00:59:52.997 --> 01:00:00.197 Also, want to say a big thanks to our new sponsor JD Supra, the leading platform for professional services content marketing. 01:00:00.460 --> 01:00:03.520 Where you can reach out to and connect with. 01:00:07.661 --> 01:00:11.081 Cease sweet folks and others who haven't need to know interest in legal. 01:00:11.145 --> 01:00:17.865 Regulatory and compliance matters. Clients not only enjoy wide leadership of their thought leader material. 01:00:18.185 --> 01:00:32.165 But they get data and tools that help them turn visibility into marketing and business development success. So, resources. JD Supra. Com is the place to go for more about that and if you have feedback for us, we love it when we hear from you 01:00:32.192 --> 01:00:33.632 You can visit the website 01:00:33.822 --> 01:00:41.922 Entertainment law update. Com and we have a little voice widget. You can just record your message or send us an email, entertainment or update@Gmail. Com. 01:00:48.379 --> 01:00:57.439 And Tamara how can folks get a hold of you? Hey, thank you Gordon. So, online, T Bennett Law. Com is my website or create, protect 01:00:57.705 --> 01:01:08.085 Both of those will get you to my website and my blog and a new a new version of that. I hopefully soon to come in the next month. That'll be exciting for me. 01:01:08.850 --> 01:01:14.190 At Tamara Bennett T A M E R A B E N N E T T we'll get you 01:01:14.332 --> 01:01:23.932 To most social media sites and I do want to say a shout out obviously you can contact us through the way that Gordon just said some of you guys 01:01:24.010 --> 01:01:35.650 That no was personally Lou Levi. I don't know what you're cooking for supper tonight but he answers one of the questions we had asked a month ago or so. So, he's always great to follow up with us. So, you know, if you. 01:01:35.532 --> 01:01:40.572 If we ask a question or we get something wrong or we don't get it exactly right. 01:01:42.131 --> 01:01:50.171 Yeah or we can't remember a case that was it Lucy sent me he's like is this the case you're talking about and I'm like no that's not it but I'll add that into the list there you go. 01:01:51.836 --> 01:02:04.256 Awesome. Well, from Los Angeles, California, I'm Gordon Firemark and you can find me@Firemark. Com. Email address is G Fire Market Firemark. Com and G firemark is the handle on almost all the social media websites. 01:02:04.619 --> 01:02:13.739 And want to say thank you to our team. We have managing editor John Janiceek. We have Charles Thorn, Mark Lindaman, Malhar Oza, Alexis Allen, 01:02:14.842 --> 01:02:18.742 And violet jang who have all joined us to help 01:02:18.761 --> 01:02:26.981 Put this episode together and we are always open and looking for folks to join the team so if you're interested in becoming a part of the ELU family, 01:02:31.707 --> 01:02:32.427 Tom. 01:02:39.120 --> 01:03:02.353 Music.