Transcript

Introduction to Entertainment Law Update Episode 163

[0:02] It's entertainment law update episode 163 for December 2020.

[0:07] Music.

Introduction and Year-end Roundup

[0:13] Welcome welcome to entertainment law update from Los Angeles California I'm Gordon Firemark and from the Dallas Fort Worth Metroplex I'm Tamara Benette And we are really grateful that you are here with us for this hour final episode of the year 2023 this is our podcast about entertainment law where each month we pull together a round up of legal and business news stories and share our opinions And commentary and analysis and this being our last episode of the year we're going to do a little round up of some of the Bigger stories that we've covered this year and some predictions into next year as well but first we'll get to the the, The the newest cases. So, what's new with you, Tamara? Gosh, since I saw you in November, which was still always a treat. To be in person at Not a whole lot just you know pushing forward to the end of the year had a wonderful Thanksgiving.

[1:07] My mom was in town so that was great. We got to have FaceTime with Brock as he had a friends giving celebration in Austria, With the other American teaching assistants in his community so that was nice and, You know as as we were chatting before we jumped on trying to get those into the year batters wrapped up for clients as best as possible so yeah, What's new with you Gordon? Well, I had that frenzy month of November because I needed to get things wrapped up.
Basically by, you know, Thanksgiving week or so. Because I knew I was going to be having a little bit of surgery and I had my my shoulder repaired.
Long long ago injury that was made worse a few years ago in a fall I took off a ladder believe it or not and So I got the the rotator cuff surgery done and I've been recovering here at home but pretty much ever since and really taking it easy so December's been nice and slow but, You know all that The headaches that entails when you're self employed so low operator. So, but also good and the recovery is going well. I'm feeling pretty strong and and at least the early parts of the day. I've got all the energy. I can live with.

[2:24] Well, that's great and you know, and as I I texted you a few weeks ago or we could go to follow up. I was like, I I hope the kids are figuratively changing all the TV channels for you which you know, They're at your back and call, That I I understand maybe, maybe not. Well, anybody who has kids knows how how much we can rely on them for that. I mean, you know, actually, they're good kids and they are taking care of chores that are normally sort of the chores I do.

[2:52] They have to be ast multiple times, but at least they're doing them and and without too much complaint, so I, I, I, Got no No no problem with the way it's gone. Well, well, may your recliner always be comfortable. Thank you. Not too comfortable. I want to get out of it soon. So, anyway, Well, let's do our little ad read and then we'll get into the stories for the month. This episode is sponsored by JD Supra.

Sponsorship by JD Supra

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[4:06] So let's just jump right in and start out with the The the sad news that was received last week. When we, the world found out that justice Sandra Day O'Connor retired from the US Supreme Court. Had passed away on December 1.
O'Connor was an American attorney and politician and a justice associate justice of the Supreme Court from 1981 to 2006 she's a Texas gal, I'm sorry. She was born in Texas but Ray born mostly raised in the Arizona. Community, and.

[4:41] Was a magnam loudly graduate from Stanford in 1950, And Stanford Law in 1952 third in her class just two stops two steps below her future colleague William Renquist, And as women are in that time encountered it was very hard finding jobs and so she struggled eventually did land as an assistant attorney general for Arizona moved up into the state senate And then a judge for the Maricopa County Superior Court and then the Arizona State Court of Appeals And then in 1981 she was appointed to the US Supreme Court by President Ronald Reagan as the first woman on the court, And and I remember that very distinct. Yeah. As a young woman. I mean, I was.

[5:30] Junior high. Yeah. And what an impact.
You know then to see that. Mm hmm. Hey. Anyway, just as as we've been, I've been kind of watching the news stories and thinking back to to that as as a young woman and seeing that first woman on the Supreme Court even though at the time I probably Didn't really know what that meant.

[5:56] Until her appointment made it National new, you know, I mean, it's always national news when the Supreme Court When there's a new appointment but it it was a big big deal and it really brought the court to the attention of people men and women boys and girls younger I think then, Most cases would have been before that. So, yeah, because I hate to say that a justice she replaced at the moment I'm not recalling his name.
I don't even recall oh potter stewart yeah, Yeah. So, she was, you know, that she was obviously, appointed by a conservative president and and joined the conservative wing of the court for a while, but as the court Shifted more and more toward the conservative she sort of became more of a centrist and was often the swing vote in in Some pretty big cases. So, some of those cases, significant opinions that she wrote, Harper and Roe versus the nation Enterprises that was a big wasn't that a cooperate in Frenchman case feist publications versus rural telephone service company and Stuart versus Aubend.

[7:07] The Harper and Rowe is a first amendment fair use. Case and she wrote a book Good, great, you know, well respected opinion on that one. Stating that permitting fair used to displace normal copyright channels disrupts the copyright market.
Without a commencer at public benefit and that the doctor that permits extensive pre-publication quotations from an unreleased manuscript Poses potential substantial potential for damage. Yeah, it was leaked portions on President Ford's writing regarding pardoning a president Nixon. I mean that. Yeah.
And then the feist case was.

[7:46] Take a look at that sweat of the brow theory for copyright in basically white pages of a phone book and she you know address the question of originality the very premise of copyright law and, Essentially allowed the copying of the facts that were embodied in that compilation because they're just wasn't enough.
Requisite originality for the copper protection. Yeah.
Go ahead. Well, in Stuart via bend, which is a case I, every time I'm writing something, a paper hunk up your right, talking about it.
Feist and stewart sent in a bin same to come up but O'Connor recognized that when an author dies before the renewal copyright term vest that renewal right passes to the author's statue, Successors. So, those set out in the copyright act. With the result that any advance assignment Renewal rights would be an unfulfilled expectancy.

[8:48] The result being that during the renewal term rivit of works that had been made with permission, Require continuing permission of the party owning the renewal terms. So, a bend anytime you're dealing with when the rights vast on some of these older works.
Yeah you know it's it's where we've gotta go really take a look at it and that's an interesting sort of scenario that I think we're sort of coming to the end of the window of time when those renewal terms, Or even a thing, right? So, yeah, we're out.
Side of that I don't have my little handy dandy chart in front of me other than the fact I that you know the Tom.

[9:35] Hey portal, Yeah, that's going to be the latest case dealing with when those renewal terms best. So, but I mean, she was on, We had somewhere how many opinions she she had authored and how many she was the lead on. I don't see that right in front of me but every subject you can almost, Talk about she was, Issue to prominent opinion on that whether it was election law employment law free speech freedom at the press fifth amendment I'm Miranda Wright there's a large body of juris that we can owe to justice O'Connor That's indeed indeed and there's AA good table of those, Cases that she wrote opinions on. You can find it through the Wikipedia. We'll have a link to that for for you folks, Anyway in fond memory of a great American jurist and the first woman on the Supreme Court Saturday O'Connor.

Legal Battle between Hall and Oates Begins

[10:44] Also in the news in the last few weeks has been the brew ha ha for like a better term between the artists Paul and Oats And their partnership or their mother I guess part time creative partnership the legal battle has been heating up between them and in early I guess it was late November early December, There was a complaint filed by hall against oats daryl hall and john oats they they were the pop duo hall notes eight platinum records six number one hits A number of famous songs that we are all familiar with man need a rich girl privatize you make my dreams come true and I had to add private eyes because I'm not sure who did the summary that Privatize was not initially included. I'm sorry. Well, we all have our favorites, don't we? We all have our favorites. Yep, yes.
Oh, interesting.

[11:45] Was appointed to the bench. They started. Yeah. They started their partnership in the In the mid 70s and really became popular in the 80s and early 90s and they you know they developed a lot of music but, At some point, They they, you know, they've always had their their separate creative lives as well and done solo shows and solo albums and those kinds of things but the disputed question involves, John Oates's, Desire to sell his interest in their I guess it's mainly the publishing catalog but I guess some of their other initial property as well to a company called Primary Wave which has become a big big administrator and and, But the republishing company aren't they? Well they do actually so primary wave on acquired the majority share of prints which includes not only his publishing but also their big on getting the Write a publicity name image and likeness. Huh. So, I think that's what the in the trademarks as well. So.

[12:54] So there are licensing company filing and anyway so backing in 2007.

[13:01] Primary wave announced that he had acquired what it described as a significant interest in the song catalog of Paul and Oates and that was estimated by the, Forgets the New York post setters about a 25 to 50 1 million dollars that's a big range that's a still a lot of money so they you know they took some cash out from their catalog essentially back then and in doing so they must have sold a significant chunk of the Of the holdings to primary wave well, Oats has now decided he needs to sell or wants to sell the rest of his interest apparently and Daryl Hall It feels that that is going to put him in a worse position overall and so he's accused oats of, Breaching violating their their partnership agreement by selling, attempting to sell his share of the partnership to primary wave.

Hall Accuses Oates of Breaching Partnership Agreement

[13:54] And so he saw him and obtained a temporary restraining order blocking the sale Pending an arbitration over the question of whether or not it's a breach of the business agreement between them, And you know the parties have their their points of view of course so it's, Team says he did exactly as he's allowed and and that hall could have done exactly the same thing but you know there there are some open questions here.
When you're in a partnership and you sell your interests to someone else are you not.

[14:28] Compromising the the yeah the the partnership so I went polls what they've got on file at the USPTO at the trademark office so all of their trademarks Are registered in whole oats enterprises LLP which is a Delaware limited liability partnership that in some other recording I read, Hollows enterprises LLP was mentioned as kind of being the holding company.

[14:57] So along with the John W oh T I S A trust the trustees for that have been sued but I believe the court's going to have to look at the Delaware limited partnership act to For some of the answers which says, Under assignment of apartment ownership interests. Yeah. Unless otherwise provided in the partnership agreement.
What partnership interest is a signable and whole or impart.
So, but there is also a duty of partner. A few sure duty of partners toward one another and if you've already sold a minority interest to a, Third party. And then you propose to sell the remainder of your share of the majority interest. Now that takes, That makes this company the majority interest holder in me, In the catalog and so I don't know if it's actual fiduciary duty claim that that's going on here but I think that it sort of depends on whether the agreement includes any provisions about, Anti delusion or or what incorporate law would be called.

[16:06] What's that thing with minority interest right there? Yeah. Minority show holders. Yeah. So, so.
What I want to know is do they have a rent partnership agreement because if they don't it will default to, The state law that controls the partnership it has to I am not licensed to practice law in Delaware but they're chapter 17 under limited partnerships goes on to say that while it's a signable, It doesn't dissolve the partnership. But it also doesn't convey to the assignee.
The shares it just conveys to them the rights to the prophets and losses and distributions etcetera etcetera.

[16:53] Yeah, so, yeah, so, anyway, practice pointer, put it in writing. Yeah, well, this whole oats enterprises. Yeah, it is an LLP so that kind of entity probably does have some formal Agreements and or something in the background so yeah but yeah, Dispute on a lot of levels.
I suspect we'll continue to to watch and talk about to as we talk about how you plan I do a lot of talking about how in the visual artist plan but really important to talk about how, When there's more than one, how you plan? Yes, indeed. Well, I guess that's something if if there is a public, End to this story. We will share with you but and that's a makes our predictions for next year but, This is the kind of thing that likely settles also between them quietly somehow. So, yeah. So, that also is interesting. I don't know who if somebody lives there, why Nashville is the appropriate, Hey Facebook can you.

The use of song lyrics as evidence in trials

[18:09] You know something that I that I've been hearing a lot about my students in my classes are are asking about this from time to time and and there have been a couple of attempts that legislation around the use of, Song lyrics as evidence in criminal trials and I know you've been following this so do you want to take this story.

[18:29] Feels like it's something brand new because there's been a lot of talk in the news the last year but in fact it's it's not really that new.
The use of song larynx lyrics as evidence of character or criminal intent has actually been going on and we have some cases dating back 30 years or more. We're a lyrics representative as evidence and Criminal trials or were attempted to be submitted as evidence and trials of mac dray Snoop Dogg and Boozy Badass to name a few. No. We do have two pieces of legislation, One proposed legislation which is at the federal level the restoring artist protection act I was reintroducing congress earlier in April of 2023 it is designed to limit the use of song lyrics in court and legal cases with the goal of protecting an artist freedom of creative expression, the rap act would limit the use of the lyrics in court which is Arguably a common practice that may disproportionately affect rap and hip hop artists. So basically saying, You wrote this song and it says that you did or you plan to.

[19:45] Participate in the following criminal activities and oh now we have brought a criminal suit against you for those things in Louisiana very recent on August 1 of 2023 the state law Titled restoring artist protection also the rap act did go into effect changing parts of state law to prevent creative art Or artistic expression from being used to establish a dependence character in court California also has a similar law, And I think the reason this is so big in the news is the current trial we are watching which has the lead defendant of the rapper young thug who's name is Jeffrey Williams young thug was arrested in May of 22, 22 charge along with 27 Seven other people in a sprawling criminal complaint alleging violations of Rico and much more many of those defendants have settled out but not all of them are pled I guess out I in November the judge ruled this is in an Atlanta court Georgia court the The judge ruled young thugs rap lyrics could be used as evidence against him and other alleged gang members and their upcoming criminal trial which has now started, and the judge rejected arguments that doing so violated their first amendment rights.

Rapper young thug's trial and the use of his lyrics as evidence

[21:07] The trial is expected to last 6 months with over 400 witnesses at anticipated by the prosecutors. They longest criminal trial in Georgia history, 10 months for jury selection.
And it was put on hold this week after a code defendant was stabbed in prison In the case. Wow. So, there's a lot going on there. We will try and just focus on the first amendment questions and concerns. So, you know, couple things come to mind. I mean, obviously, I'm not a trial lawyer and I haven't.
Thought about, Criminal or civil procedure in a long time but you know, a song is going to be here say, right? It's an ava court statement made and well, I guess it's not being necessary, is it being, Offered to prove the matter itself.

[21:55] It said it was can't be used for character. Oh, okay. Yeah.
It seems like it's very prejudicial. Well, we can get into all the discussion but you know, there's it's a state. Could be a statement against interest but it's it this feels like, You know you're charging a screenwriter who wrote a heist picture because he gave them the criminals the plan to to well or if they Hey maybe the analogy analogy is the screenwriter rights the highest picture and then, His buddies. Oh, okay.

[22:34] A highest happens and he's the one charged. Yeah. The weather he was involved in the actual, Deeds that that well, I mean, there's more to conspiracy. It's all of it's the. Yeah. Well, that's interesting. I think These are lyrics young thug road now whether or not that gets wrapped into being used against another conspirator alleged conspiratory yeah here's the road map or here's that one who knows Yeah. It is troubling to think, you know, that it and I think it does.
Happen more in the rap hip hop arena because that urban vibe that they're and the lifestyle that those these folks are often coming up in, They're more exposed to this kind of stuff so they're talking about their life experience and I mean you can go back Johnny Cash wrote about crime. You know, sang about crimes and and.
Lots of artists abdominal years but yeah you don't you didn't see these things being used against white country artists so much Right. It is something to be watching and you know, make your point of view known to your congress people and if they ever figure out a way to accomplish anything in congress anymore.

[23:49] Well it maybe it's a state lot maybe maybe some of this is a state by state, Process if Louisiana's just passed I'm not familiar with the lawn California so they extend You know how far it extends out that that may be something that what we needed at the federal level too because there's federal reco charges and things too. So. Yeah.
Well the the good news that we reported briefly on at the toward the end of last month is that the strikes Of 2023 have ended the entertainment industry strikes that is the screen actors guild sagatra and the writers guild of America WGA have both now, Concluded their strikes sag after rolled out its new agreement last month and with changes to the agreement approved by 78% of those who Turned out to ratify. That should be noted was only 38% of the membership. So, it's a majority of the minority.

[24:46] Have voted to approve the new contract the actors and writers are all back to work now so here's a quick just overview of what the rules seem to be and some of the bigger changes on the writers guild side which we covered

Rules on AI use in writing scripts and writers room

[24:57] Two episodes ago they have had raised concerns about AI used to Write scripts either in hole or in part which would reduce of course the involvement of professional writers and stripping them of credits so the new rules say that writers are allowed to use AI but, Not as source material and they can't use it to write or rewrite scripts and the companies can't require writers to use AI, They do have to inform the writers if they're using any AI materials that they want incorporated into the materials so if they've started with an outline that came from AI That has to be disclosed and the companies are not allowed to use professional writers work to train AI systems there's also been more guidance on the writers room, Minimum sizes for development rooms of three to six riders per season minimum, Show runners will retain control to select writers for those development rooms based pay amounts of gone up.

[25:57] Minimum agreement set for writers going up five% this year four% next year and three and a half for 2025 and residuals for streaming, Increasing generally higher amounts for foreign streams in particular as well as some success based bonuses and the streamers do have to provide more information on the success on the you know transparency on the Viewership of the films as well as some increased base pay and show runner training and things like that, On the sag after side the actors guidance about the use of AI.

[26:37] The studios are allowed to use background performers to create digital replicas, As long as the performers received a normal days pay for each day that they work but also for the equivalent of a day when when they're, What do you call it? A digital replica performer is being used. Okay, so in that case, the, The replica gets paid and the actual real person gets paid is that right? So, if a real person goes in and they created digital replica and then they use that replica for what would have been three more days of shooting To replace the actor for those 3 days then the actor gets paid for 4 days total. Got it. Yup. Okay. So, Am and if they're going to use those digital replicas there needs to be consent and the right to consent persists to the estate after the person has, The actor has passed. Residuals are required. So there'll be the same as if they had used the real person's, Performance. They're not allowed to do digital alterations. Without consent.
With the exception of some typical dubbing and lip syncing in general sort of post production kinds of things.

[27:55] Independently created digital replicas which are essentially, Completely synthetic. They don't they look like an a real person but they're not a particular real person. And it does not include motion capture acting but where it's it's basically all machine generated, That is allowed essentially it's like an animation where you're drawing a character and when it's Jenner to AI that's these the newest tools in this in the space is being used then again as long as there's not a digital replica involved where it's a scan of a real person then the producers are allowed to do that.

[28:33] And, And and that's that. Now, John correctly pointed out in our notes here. This doesn't impact non-human characters. So, they can use CGI basically to create any kind of non-human character they want.
But he pointed out that the use of nonhuman as the terminology Is troublesome because there are humanoid characters. It should have said non-humanoid because you could see, you know, insert and fantasy stories and sci-fi and things like that. You could Have the systems creating somewhat human looking elves and fairies and orks and things like that and so that it's going to be a question of line drawing at some point in the future. I think it's his point. It's a good point.
Yeah.

Streaming residuals for actors on high-budget shows and films

[29:13] Streaming residuals, the writers like the writers, the actors on high budget streaming shows and films will get success payments. Tied to.

[29:24] The first 90 days of an exhibition year, if the film is viewed by 20% or more of the services, domestic subscribers, there will be extra bonuses and residual bumps.
And there's more data transparency from the for the actors as well. Studios have to report foreign grosses separately from domestic. They report on a man's page to performers.
Up to a one 1 million dollars per picture. What else?
And there's a bunch of rules about casting as well one of the problems that the actors had been addressing was since the pandemic A lot of casting has been doing what's called self tape, And the quality requirements just in order to compete when the self tape was sort of driving the cost of doing that up for actors who Wanna audition for a roll they'd have to get a camera and lights and do it you know set it all up and do their self recorded thing, Without any compensation for that so the the rules have been established to sort of put a ceiling on that so there's no, Race to the expensive. I guess you could say. You know, I saw I saw sorry sidebar. I really interesting.

[30:32] Segment I don't know if it was entertainment tonight or what it was on about the gentleman who was the oldest First time actor on Broadway. Meet. Hey, yeah, I have to send it to you. It was really interesting and so, But the way he he auditioned through through through Apen descend in a tape and I think that's how you know that was the benefit of we've moved to this.

[31:01] But then there's also the burden but I'll find that and send it to you again because of your love of theater. Sure. It was really just that Fascinating. The oldest debut professor but debut performance of the oldest actor. So, yeah, you know, the the the problem has been That, you know, it's fine. Just have to set up a camera or use your phone or something like that but as everybody starts bringing higher and higher production values to their self tape, the one who just has a phone and is in there, you know, they're one bedroom apartment or whatever.
They don't have the ability to compete quite the same way and it's different when you're all going into the same room standing there in the same light in front of the same people it's a very different experience and so they wanted to sort of Even that playing field out a bit and I think that's been accomplished. The actors got some significant increases to base compensation over the next few years, And some other definitions of holidays and and, Terminology like franchise projects and things like that. So, the actors, as you said, it was a majority of the minority of the actors voted in favor and.

[32:08] And so the new contract is in effect. So, there we go. Yeah.
I'm excited for some new yeah it's time for some new television and film yeah yeah it'll be it'll be super excited I I've also been fun to see what projects have kind of taken, Over during this gap. I mean, obviously, the Yellowstone franchise has had a big win. Well, as one of the, The wines during this time period. So, but anyway, Disney, let's talk a little bit more about AI issues.
Disney asked Microsoft to make a change to it to AI tools regarding a concern over trademark infringement.

[32:56] So you could go into the Microsoft Tool To, you know, type in your search terms to have it generated image and the concern was when people typed in Disney and Pixar related things.
The image that the AI tour was generating were the Disney and Pixar logos. So, for a time period, Microsoft actually blocked Disney as a keyword. Now, it sounds sounds like they have restored your ability to put that in as a keyword prop but I guess what gets generated is something that is not infringing. So, Of the Disney trademarks. Yeah, so what what a lot of folks have been able to do is Is going and tell it give me AA you know poster art for a Disney in the Disney style of animation Disney pics our style of animation.
That looks like this and it's about such and such and out outcomes this thing that write on the artwork those generated by the AI it says Disney Pixar in the Disney font and the pixar.

Microsoft's programming tasks for filtering data

[33:56] It seems like it'll be relatively trivial programming tasks to filter that And that seems to be what Microsoft has done so. Yeah. Yeah.
We'll also in the AI front we have the most recent major ruling in the Cadry case this is Cadrie versus Meta Platforms Inc Northern District of California this is the book author's, Claims against, AI tools for the training using book authors Academy it's similar to the Anderson versus mid journey case we talked about last month Filed by the the same law firm the judge for the is following the Anderson decision dismissing most of the claims of the planet in a relatively short form decision.

[34:41] So, you know, look, the three authors, the lead authors, Sarah Silverman, Richard Cadry, and Christopher Golden, filed their claims against Meta because Meta used their copyright books in training, They're met a large language model better move to dismiss all the claims except for one alleged edit, Is copying Planet's books into the training set was itself a direct infringement and the court granted those motions so there's just a one remaining, Claim standing the court denied the planets claim that the large language model itself isn't infringement derivative work Saying there's no way to see the model as an adaptation of any of the blankets books they the court disagreed that the output, Is infringing directive work because there's no plasma claim regarding the content of any output to support that kind of a claim, Similar to the Anderson case the court also says that the planners have to establish that some portion of the original work is included in or substantially similar to, The alleged infringing derivative of work.

[35:45] On the DMCA because there's no ledge facts at the AM. I was distributed the the books. Then that claim fails.
Unfair competition on Justin Richmond negligence claims the court says those are preempted by the copright claims so, I think they have leaved to amend. It looks like they just filed their amended complaint. The other day, Monday the 12th and adding additional facts focusing on the remaining direct infringement claims and looking for class action, Class action certification and a jury trial. So, lots to come on the AI front both for the the images and the the text base material. So.

[36:25] And I assume we probably already talked about this Gordon but my memory fails me is that the actual, Model or machine or code. Whatever it is. The technology part is that not a can, To the VCR, Or the betabacks or the DVR. I mean, just because you created the technology, it doesn't mean the technology itself Hey there's more to it than just making the machine but you also train to the machine so you ingest it all this material, And that ingestion. I mean, you know, there's cases about ephemeral copying and they're lots of discussion about, you know, what's allowed and what's not allowed. If you have to copy something into the computer in order for the computer to be able to create some other output, Isn't the copying it into the computer? A problem. But.

[37:28] Computer is a problem. I just that's it. That's the only thing it looks like in both of these cases that the court is saying.
We really have to to look at. Since I took a look at the specifics of it but I know there are some exceptions made in specifically with respect to recording. If I'm recording and also the yeah the the The the taking something into computer memory for the purposes of doing a next task and, That that was not considered technically an infringing copy. If you had a right to the access the original or something. So there's a lot to to still be unpacked with this and I think that's what we'll be spending a lot of time next year. The next few years. Looking at it.
I'm so glad we used that word because that's the word I need and something else. Oh, come on. So, thank you. Thank you. Yeah, please do that.
Please do that. A femoral. Yeah. What about these vans knock off? See, we've talked about this company mischief before.

[38:32] Yeah so so so vans like I mean I don't know do I have to describe a van we all know what a van van sneaker is old school sneaker so big shoes fancy and VF outdoor LLCs sued mischief MS CHF products studio inc claiming that they're Trademarks and trade dress for the vans old school shoes has been in French the mischief is a Brooklyn based arts collective created in marketed the shoe entitled The Wavy Baby, And it's a concept based upon upon the van's old school sneaker, And they're wavy baby was created in collaboration with the musical artist Tiger, It incorporates and distorts the old school black and white color scheme. It's side stripe, the The perforated soul, the local, and the hill, and the logo, on the footbed, and the packaging, and I'm just going to also put a little editor's note in here. We we have talked about mischief before.
For for the Satan shoes which was that a little nas x. I think so and it was like they they Knocked off on Nike shoe or something but yeah, something like that. So, I mean, they're they're in the, they're in a commercial business here making these shoes. Which might Be important.

First Amendment Defense and Lanamac Interpretation

[40:02] Preliminary injunction. And mister said hey This is a first amendment amendment defense looking at the second circuits decision in Rogers Vegaldi, Which hail that considering the first Amendment concerns and applying the Atlanta Lana Mac to artistic work so the Lanimac being trademark infringement federal trademark adventure The Lanamac should be construed to apply to artistic works. Only where the public interest and avoiding consumer confusion outweighs the public interest in free expression, Quote. But the district court rejected mischief's first amendment defense on the grounds that the wavy Baby product black quote an element of satire Rudicul joking or amusement close quote that would clearly indicate that it was not connected with vans and that it was a parody of bands.

[40:59] So this is where we're going to look at the second circuit held The case and obeyance pending the supreme courts but we do have a supreme court anticipated decision in Jack Daniel's right? Yes. Finally, this case has been going for quite a while. Yeah.
But after the, Jack Daniels please Jack Daniel's case which I know we're talking about is our big cases of the year miss just use of the van's old school marks was source identifying and so heightened first amendment protection did not apply, And applying Jack Daniel's the court reached their decision saying that miss just used bands marks in much the same way, That VIP slash van sorry that VIP used the Jack Daniel's marks, In the little dog toy we'll talk about in a moment as a vocative of the original trademarks and trade dress, Mischief did not include any disclaimers on their products disassociating them and They traded on the goodwill vans so the court affirmed the district court decision and joining the marketing and sale of the wavy baby.

[42:11] Shoes and let's see they had to place into escrow or it's earnings from the sales of the offending shoes I think Mr. Case wasn't as strong as the bad's manuals. Situation because although the shoe is, Odd looking I don't think it's really making fun of, Anything. The way the example if they had made one, Right that would be art. But as soon as you cross over into multiples it becomes commerce.

[42:48] The outcome of this case. So, What are you even think on this Satan shoe it was limited edition I believe we talked about that I don't remember how many it was it was a large number of limited editions but again if you want to make art yes Make one really cool shoe.
Miss Jeff is sort of been in the in the business of this appropriation art crossover into selling a product.

[43:17] Yeah it it's and I guess they're being told there's some boundaries dudes. Yeah. So alright.

Controversial ruling on AI-generated content in China

[43:25] Well, you know, interesting. I was still on the AI front. An interesting tidbit that Violet brought to her attention that.

[43:34] On November 27 at Chinese Court has decided differently than the way the US courts have addressed the question of whether AI generated content can enjoy Protection under copyright law. In that case, the plaintiff had used a US based, Text to image AI service to generate an image of a woman he posted the image to on a Chinese social media platform and the defendant then used this image on his online Blog post without permission the Beijing internet chord found that the ad generated image in at artwork is subject to copyright protection And the court holds that as long as an AI generated image reflects the original intellectual investment of a human being it should be considered a work protected undercopy law So the court thinks that the plane of selection and arrangement of the inputs the choice of what to how to prompt the system and so on was sufficiently original so the output met the intellectual achievements and originality thresholds to enjoy cockroach protection, So this is a controversial ruling that raises intense discussions inside China and everyone is waiting to see Whether there's going to be an appeal to the Beijing intellectual property court and so on. Now, This is one key difference of course between the way US and China address this question and there are others as well. The human authorship requirement under US coppery law, the Chinese court has a more lenient look at that. So.

[44:54] Interesting contrast. I guess you could say and, It'll be fun to watch I think because I mean the question I have and I don't have an answer to it is, How is this in any way shaper form beneficial or could be used to the benefit for, Content creators.
I mean, obviously, it's only going to apply in China which is my understanding that probably didn't matter.
Hey, you know that there's not going. Yeah. There there's not a big extent to protect the intellectual property of someone who is not.
I could see some interesting questions arising in in situations of enforcement of Chinese copyrights in the US and vice versa, And whether or not someone who create something in the US and can't get protection here might still be treated as entitled to protection overseas, Could raise it. We can end up with a weird patchwork. Kind of a, Situation where you can sue in some countries but not others or something like that. So, it could get tricky. It could lead to, A need for some changes in the international treaties.

[46:13] I'm guessing But I don't know this for a fact. I mean, is China a member of the universal copyright convention in the burn convention? I doubt it.
I believe it became so very recently. Okay. But I don't remember the day. I may be speaking out of the wrong end but.

[46:32] Where will look that at? Okay. I know we need time. It's hard enough just trying to enforce a trademark issue In China. Well, let's move on to our our little roundup of the big cases we talked about this year. We've mentioned one of them already in the in here but the The the big one that we finally got final decision and we've been talking about since 2019.

Final decision in Warhol Foundation vs. Goldsmith case

[46:55] I recovered in episodes under 1132 150 and 157, The Warhol Foundation versus Goldstein case Andy Warhol Foundation for the Visual Arts Inc versus Gold Smith Star Goldsmith at all.

[47:09] Lynn Goldsmith, a professional photographer, commissioned by Newsweek in 1981 to photograph the then up and coming musician named Prince Rogers Nelson, After which Newsweek published one of those photos along with an article about the artist later that year I'm sorry later in 1984, Goldsmith granted a limited license to vanity fair to use one of her photos as an artist reference for an illustration, That warhole was going to create as a magazine cover for that magazine vanity fair Or he'll use the photo to create 16 different works now known as the Prince series and after Prince died in 2016 vanity fairs parent company condonest, Asked the Warhall Foundation about reusing the 1984 image for special edition magazine, And that was the first that Goldstein knew about the the whole prince series until, Until she when she saw the orange prints on the cover of the Condi Mast magazine. So she notified the foundation that she believed it had infringed her copyright. They preemptively sued her for declared her judgement of non-infringment, Disreport Looked at fair use and granted the foundation summary judgment she appealed that it made it all the way to the the second circuit ruling.

[48:25] Against fair use that it wasn't transformative and the supreme court ultimately looked at whether or not the the first fair use factor the purpose and character of use, Including whether it's commercial or nonprofit ways in favor of their recent campaign excuse me commercial licensing accounting as and the court said that, It's a relevant factor but not just positive that it's commercial.

[48:50] It also has to be weight against the degree to which the use has a further purpose or different character and the court in this case said you know, They're they're just too close. The the the purpose of the use was so similar that they couldn't be viewed as transformative or or in any way a fair use and yeah so sort of narrow the scope of your use a little bit there Yeah and I I hate that I didn't.
I had an opportunity to see her speak when we were in Austin but my travel plans meant that I had to leave before she spoke at RCLE I did yesterday was catching up with an attorney who was at the CLE as well and.

[49:30] He said, you know, she, she spoke about how she, she never had children and that her images were her children. Oh, they're interested. And just, you know, the passion behind, Pursuing this to to the end. So, I was there for that event also and I I also had to leave, To catch my plane before her speech but I did get a chance to just visit with her for a few minutes Beforehand and she's it's lovely talking to her and and she thanked us for our coverage of things which I you know she only do about because I told her. But yeah she had a lot of interesting you know thoughts on On the whole process and sort of yeah the the being she I think she felt a little bit victimized by the whole scenario and To her credit was able to pursue the thing all the way to Supreme Court. At the cost of millions of dollars in legal fees by the way. Wow. Wow.

The Jack Daniel's vs. VIP Products Lawsuit

[50:27] As well as the bad spaniels the Jack Daniel's case we we mentioned earlier.
Yeah, So yeah Jack Daniel's properties inc versus VIP products LLC we've been keeping an eye on this bad spaniels case it Evaluated purity between the famous whiskey distiller Jack Daniels and the makers of AA dog chew toy From VIP products which was in the shape and style of a Jack Daniel's bottle Get a classic look and The company had salt declaratory relief justifying it's trademark registration of its bad schedules mark Jack Daniel's in response counter sued claiming trademark delusion And we already mentioned early the Rogers Gramaldi case out of the second circuit which was issued in 1989 is really what the court had to look at in coming up with their decision, And the court focusing on Rogers. Now, we have some limits to Rogers to creative works, And it was not expanded to parody when the periodic mark is being treated as a source of fire those stated that parody would be considered still for a likelihood of confusion analysis.

[51:50] Well, you know, since since this case came down, there's been a new new case that came up that sort of brings it into.

[52:00] Into focus a little bit it's the the company liquid death which is a, Beverage company that initially started selling canned water and sparkling water and iced tea products and so on and they came out with, All of their all of their products have brew some Titles and slogans death to plastic mango chainsaw bury it alive convicted melon and they came out with one, Which is an iced tea and lemonade blend called Armless Palmer. And, Obviously a play on the the Arnold Palmer name and, They announced a week or so ago that they have changed the name of their armless palmer product to dead billionaire because they apparently received AA menacing letter or threat of some sort, Relating to the use of that armless palmer branding. There hasn't been any litigation yet but it's an interesting set of facts that comes up and and are editing team brings brings up the point that you know they This might be kind of right of publicity kinds of claims here where it's not so much trademark, A lot of it is that you know Arnold Palmer, Probably his genericized had become generic essentially as a source identifier every restaurant in the country US for an armor you know what you're getting So, it's sort of like a Shirley Temple in that regard. So we're using a famous person's name to identify AA.

[53:27] Kind of beverage but I guess when you make it a product name, it becomes a trademark like you. So, there's there's stuff there. I guess if you're, If you have the famous name or you're representing those famous names, this is something to start thinking about and looking at. How do we protect against these kinds of peculiar uses?
Alright and clearly I I will I'd clearly throw words to my knowledge the brand Arnold Palmer is not used, In the beverage world. Yeah. In the beverage world. So, does it automatically extend or is that truly a writer publicity issue? I don't know when. Yeah.
How far are those rights extend? I I will tell you I was at a luncheon you know a, Corporate working luncheon last week and going through the buffet and there's the drinks on the bar and I'm like, Are they serving us? What are they serving us in these cans? I mean, oh, oh, this brand of of, Water and sparkling water. Oh, interesting. I would like.

Introduction: Liquid Death and Arnold Palmer's Top 10 Earnings

[54:40] Liquid death.
I'll tell you about.
It really they're serving as energy drinks. I mean, we do have iced tea right? Yeah. But it was Flat water in sparkling water. So, interesting. Well, the story a little bit, I did learn that Armold Palmer, who's deceased for a few years now. He is still in the top 10 high most highly paid celebrities.
So. Okay. So, yeah. There's so much.

[55:13] Albert Einstein, I think, you know, it's an interesting list. So, Anyway, Another story another set of stories I guess you could say that we've been following all year has been the AI arena and I think it's something we'll be seeing more of of course as we go, The a number of different angles on the AI story first off we had the copyright ability of AI output, Where the corporate office and the district have made rules that AI generated materials generally not entitled to copyright protection that case being the the one involving missaria of the dawn, Illustrated novel and and that so we last discussed that in in episode 55 with the copper head office refusing to grant protection to the images from that human authorship being the determining factor Unlike China and it does represent some issues for entertainment going forward.
Without these protections some elements of AI generator material may not be protected in In the scope of larger work. So, could be something interesting. I mean, actually, may argue in favor of staying away from the use of AI and generating.

[56:21] Characters for films and things like that because those characters may find their way into other works without Beating any permission. Yeah. Go ahead. We've also talked a couple of different times about it.
Within our practice of law. Yeah. How should we or should we not use AI tools and briefing and briefings and filings for the court switch up pretty much can equal.
Equal sanctionable and malpractice so in episodes 162 and 158 we we quote chatted about this and we would say don't use chat GTP as a search engine and don't use AI as a substitute for due diligence.

[57:02] We've had cases this year with lawyers trying to do both. One mistaking chat GTP is a search engine and assistive technology another using AI to digest transcripts and other data on his The half resulting in frivolous and nonsensical arguments before the jury you know filing, Case sites that don't exist in their pleadings and their briefs on a related note if, Gordon for you and your California license lawyers. This is actually think fantastic.

[57:40] MCLE compliance period ending in January 2025 you must have at least 1 hour of education addressing technology in the practice of law Florida evidently one upped and already has that. It requirement. Yeah.
To be available so I also think it's just really hard these days to not already get that Hey it's you know it just feels like almost every ethics presentation I go to has something to do with technology in the law. Absolutely. And and how will you, Those tours whether it's cloud storage, Or you know it's AI. Yes. Yeah, the trick is getting them certified as meeting the requirements and things like that but that that's something to be watching for and actually our editor John Janiceek has been, Doing presentations on this very subjective use of technology in the, In the practice of loss of maybe we will put together an MCL of our own for our listeners. If that's something you're interested in, please let us know and we will make that happen.

[58:44] So it would something and I'll just say hey throw this out here depending on how your state runs their compliance year if it's your birth In Texas it's our birthday month in Tennessee it's the end of the calendar year is your compliance period, I have never had an issue claiming nor do I think you would claiming listening to our podcast for part of your personal, Independent study. So, if you, if you, if you don't claim that torture independent study.

[59:16] We feel confident you can. So, yes, indeed.
Yeah. So now is the end of the year. It's coming fast approaching. Yeah, right. So, if California lawyers, it's February 1 is our compliance deadline and we certify every 3 years for our, CLE compliance. Yeah. Tennessee is December 31 so.

[59:40] Only because my birthday's in January it may be that by the last day of the year the last day of the month before your birthday month but anyway, So another area we've been looking at the AI we talked about a little bit already where those the cases involving the training of the systems the Anderson versus stability AI limited And also the the Cadri case that we discussed a little earlier in the, In the episode again the issue is the how the training and whether or not it infringes the.

[1:00:14] Copyrights of the underlying material on which the tools are trained and where the boundaries on that kind of stuff that we we've already addressed. So.

[1:00:22] And so I went back Gordon to see what we predicted would be hot topics for the coming Year of 2023 Andy Warhall. Jack Daniel so I think we predicted those because the Supreme Court had already selected to hear those decisions. AI which clearly has been a hot topic.

[1:00:40] And an eye probably predicted NFTs and I'm not sure we've we've had a single Conversation about an NFT the whole year but I did want to add a wrap up on a case we talked a lot about yeah In 2022 and 2021 which is was the board apes NFT the headline artist owes one.
5 million in damages for fake board ape NFTs that's uga labs ink versus rips out of the ninth circuit court and October 2023 the The ninth circuit held board eight yacht club nonfudgeable token maker Ukulele is entitled to more than one. 5 million in damages from a conceptual artist and his business partner who copied the board apes NFTR. So, that's our big roundup of the year on NFTs or has been a recent SEC enforcement act which I think we will look into that for the coming year to just see how much more is going to play out there.
So, I just hated for us not to include something we predicted Hey what happened with the the NFT market places generally.

[1:01:56] Not not performing so well financially and the Cryptocurrency as well. They may have just sort of taken the wind out of the sales of anybody who would have otherwise been pursuing litigation in those kinds of things. So, Let me change. It may change. The SCC may change it for us. There you go.
Well, let's get into predictions for the coming year. I think they're fairly obvious what they will be. I think AI will be in the news for us.
In a big way for at least the next year probably several to follow, And we already saw the the you know governments are starting to wrestle with AI regulation and and copyrights and so on the October 30, Executive order from President Biden on safe secure and trustworthy artificial intelligence is an example of all encompassing attempts to protect and and.

[1:02:50] You know, avoid fraud and deception and those kinds of things. In the AI world. The EU has an AI act as well on December 8 officials.
Of the European Parliament and Council of the EU reached a political agreement on groundbreaking regulation on artificial intelligence that will certainly bleed over into the international community, As well. The text isn't quite yet available yet and then it still has to go through the actual adoption by the European Parliament and so on. But it'll involve things like Transparency reporting requirements facial recognition and privacy issues certain things that are not allowed those kinds of things so we'll be watching that, A lot. And I think governments are going to be working to regulate this.
These tools in other ways as well. We'll have to keep an eye out for it. Yeah, and I mean, if you really are interested in AI and what's happening, The government there are multiple hearings scheduled related to all types of areas.
You know, obviously, we're kind of watching what's happening at the copperhead office and the trademark office. As well as I was told by someone I, Believe would be a reliable source to say that even within the congress, The congress people and their staffers there are guidelines issued as to help they can use AI. So, Yeah we we will continue to see see many changes I think on that front.

[1:04:20] And another area I think will be watching closely is the arena around section 230 and and immunities for service providers under, Bonder section 230 of the communications Decency act of 1996 was it? Anyway, we had two supreme court cases this past year. Twitter versus Tama and Gonzalez versus Google.
That basically threatened to do some significant changes to section 230 but ultimately left it mostly untouched Both involve terrorist attacks where the planet alleged that the terrorist organizations had used these social media tools Twitter in one case and YouTube and another to disseminate their content recruit the the bad actors and and so on and.

[1:05:06] The case is basically raised the bar saying that the in order to you know look to liability for these Service providers they would have to have known about and failed to stop users from specific offending content and that what the level of their knowledge didn't add up to aiding and a bedding terrorism, So the court punted the section 230 challenges in the lower court. In the Gonzales case after ruling on Tamma. So, no guidance from the Supreme Court yet on this.
Leaving the door open, I think for future attacks on these online platforms, and yeah, it was sort of.

[1:05:45] Decide that I'm very narrow grounds. This case, no. So, we'll see there might be other cases. Yeah, better facts. Yeah. For a better case. I, so, I, Free speech regulation and tick tock. Yeah, it's all the social media is really but yeah. So, Yeah Montana has set to a fectuate senate bill 419 which is a ban on TikTok because it is owned by a company incorporated in China, So, you know, ticktock users and fans, seek a preliminary ruling to enjoy the effective date of the bill.

Montana District Court's Motion on First Amendment and Commerce Clause

[1:06:19] The district court for the district of Montana, which that's interesting. They have one district court. Created the motion noting that the first amendment Federal preemption endorment commerce clause are likely to succeed regarding the first amendment Argument the court applies the intermediate scrutiny because it considers the laws or regulation of expressive conduct.
Which hinders the speech of ticktock users as well as the as well as TikToks speech interest, Hey Christine that's interesting I would have thought it would gotten strictly but I guess there's some commercial component to things so they're able to, Bring it in the intermediate. Yeah and as well, I guess we've got the same type situation happening, Down the street in Indiana where Indiana state AG office filed a lawsuit against TikTok Tiktok claiming that it's connection with the Chinese government was harmful to consumers in Indiana the court says the Indian that Indiana fails to establish specific Pictures over TikTok's allegedly deceptive representations And that users in Indiana downloading the app are not sufficient for jurisdiction. Oh, that's an interesting little note.

[1:07:35] Hmm in all the alleged inappropriate content is to users around the nation not specific to residents of Indiana so You know, one of the commentators that I was reading about some of the stuff that really thinks references these kinds of cases as political stunt lawsuits and not Intended to achieve a real Legal outcome. I think that's there's something to that argument. Meaning the legislation. Yeah, you well, in in the Indiana case, yeah, the state AG filed a lawsuit and in the Montana State, yeah, so both of these are you know, let's get some political Capital by being loud about these issues when we know that they're really not going to stand up for long, But they may make some wall depending on this the court says downloading the apps are not sufficient for jurisdiction I bet that's going to be cited and recited yeah come on a lot of different cases yes indeed Any other predictions from you? You know, Hey I did put the one prediction down that I I have made the last few years, And I kind of follow it more than we do maybe as as entertainment law update. We will still be seeing a lot of changes in NIL and student athletes. The the changes that I have happened.

[1:08:57] Since we first the first show, I guess guidelines were issued by the NCAA. Yeah. It has gone alright.

Uncertainty on the Need for Intervention

[1:09:12] And so I don't know what's going to rain at the end does it need to be rained in, Hey don't know.
Well, you know, you throw money at a problem and you add fuel to almost any fire. Yeah. So, we were watching Johnny and I were watching the, The army navy game. Yeah. This this weekend actually we watched it.
Over 2 days because we saw part of it then we had to leave that I think he rewatched the whole game but anyway.

Transfer portal and its impact on college athletes

[1:09:53] Transfer portal from the federal government and I was like yeah You know it's maybe it's not affecting everybody NFL, Any of our our friends who follow that have some insight that yes the the guys playing for army and navy or well that's another NIL deals please let me know.

[1:10:17] That we sort of forgot to mention but you know that another thing that I think is on the agenda.
In the courts and the of the government agencies and everything is this look at whether or not, Student athletes are going to be treated as employees and yeah, so you know, I wrote a paper to years ago, where this whole, Initial term of being a student athlete and actually giving them any scholarship money dates back Decades I'll have to go pull it I'm sorry I don't remember the the case that was involved but the whole issue was they weren't going to play the football player because the university didn't want to treat him as an employee.

[1:11:01] Eh and so now we fast forward decades and here we are well and yeah I I think we talked about an NLRB Matter of some sort. Well, yeah, because Maddie Salemone, I think was involved in intestifying the congress about something related to this as well. That's right, want to work contributors. So, there's something I think will be watching and it wouldn't surprise me if we see some.
Action or answers come up in the next year or so. So, that'd be interesting to watch too.
Yeah. Well, listen, those are our predictions and we would love to hear from you if you think we've missed anything or just missed the boat on some of them.
Let us know you can visit entertain Email us at entertainment law update@Gmail. Com or visit the website entertainment law update. Com Click on that send voice feedback button on the side of the screen and give us your message we'll Bring it back into the discussion in our next episode, And the one thing I'll just also final prediction for me is I think 2024 is bound to be a good year I always like to start off, In gratitude and optimism and so that's where I choose to be right now. I'm excited and looking forward to the next year. So, hope it goes well for everybody.

[1:12:10] And I think that does it. That's our episode. So, that's the app.
End of this episode of Entertainment Law update and as always a big big thank you to our loyal listeners for spending your time with us and to our sponsor JD Supra Get more information about JD Super that leading platform and professional services content marketing by visiting resources. JD Supra. Com, And do send us that feedback. You can find us on on Twitter, X, whatever it's called now, at in law update. Tamara, how can folks get a hold of you Yeah they can find me online website tea Bennett Law. Com or create Protect. Com both will get you to the same spot.

[1:12:52] Add tamara bennett on most social media T A M E R A B E N N E T T and Gordon happiest of holidays to you as well as a very prosperous and joyful 2024 yes indeed back to you as well so you can find me in Los Angeles my name is Gordon Firemark the website is Firemark. Com email address is G firemark@Firemark. Com And on most social media websites G firemark is the handle now big shout out to all of our friends and and our our Crack team of editors.
Managing editors John Janiceek we have Charles Thorn Mark Lindaman Malharoza Alexis Allen and Violet Jang working on the team that helps bring these episodes to you we wish you all a very very happy holiday season and if you're interested in joining the fun as part of our Family of contributing writers and editors. Reach out to us. Entertainment law update@Gmail. Com.
And until next time that's going to wrap up this episode of Entertainment Law update thanks again for this.

[1:13:56] Music.