Transcript

Introduction: Entertainment Law Update Episode 166

[0:04] Over the AI rainbow it's entertainment law update episode 166 from March 2020.

[0:12] Music.

[0:18] Hello, hello, welcome to entertainment law update from Los Angeles, California. I am Gordon Firemark.
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
And we thank you so much for joining us again for another episode. This is our podcast about entertainment law where each month we pull together a round up of legal in business news stories and share our opinions and commentary in analysis and, And enjoy each other's company a little bit. So, Tamara, what's new with you?
I think last time we spoke I was headed to New Zealand or had I already come home. Oh okay. There you go. So so it's been AA blur of catching up since last.

[1:03] It's hard to believe yeah So that's about all that's new with me. Just work with work. Now and it's been a sort of quiet month around here for For our family as well and for work too which is not always the best thing but you know, it comes and goes. So, Nah, nothing big to report here. I'm getting ready next week to, Speak at the podcast movement evolutions conference here in LA and then going off on a little family trip out to the desert for a few days just to Spend a little time with family and well some of the family because some of us have other obligations and my wife and daughter are both going to be scattered to the winds while the boys and I go enjoy Family time. Yeah. Yeah. Well, I mean my mom and her husband and and my sisters and their families will be with us but anyway it's going to be great. So looking forward to that and then.

[2:00] Back to it after spring break and, And off we go. Yeah, so you guys, you're, I guess your kids are out closer to the Easter holiday for spring break then. Yeah, our trip next week is actually the week before they're official spring break from school but it's when they could get the timeshares and everything arranged. So, Thank you. Yes, so I I think ours are sun will is making a quasi surprise visit for his spring break. So.

[2:28] Hey Facebook oh it's not a bit surprising to me. Oh yeah. Oh no he he's in on it but surprise my mom I think so. Oh nice. Okay. Lots of that would be icy. Yeah.

Sponsorship Announcement: JD Supra

[2:40] Well, let's take care of some business and we'll get to the subject matter of the show. First off, we'll Let you know that this episode of Entertainment update is sponsored by JD Supra A leading platform and professional services content marketing helping lawyers turn their expertise into networking opportunities meeting visibility and new business JD super publishes and distributes blog posts, articles, podcasts, including our podcast, videos, and other thought leadership to hundreds of thousands of subscribers each day.

Plagiarism in Music: Over the Rainbow

[3:11] And that includes business leaders in house council media members the sea suite and others who have a need to know interest in legal regulatory and compliance matters JD Supra clients not only enjoy wide readership of their thought leadership they are also provided with the data and tools to turn visibility into marketing and business development success you can find out more about JD Super by going to resources dot JD Supra. Com, And we thought we'd start off the show with not exactly illegal story but a an entertaining and interesting story about, The very famous song over the rainbow A March 6 article in the Hollywood reporter has this fascinating story that we just wanted to share with you and I think it's worth the read.

[3:57] But we'll give you the short version right now. The academy award winning ballot over the rainbow from the Wizard of Oz of course.
Is perhaps one of the most enduring melodies ever to come out of Hollywood but it has an uncanny similarity to a long forgotten piece By nazi era compose.

[4:15] And that has some people questioning the authorship of the song. So, what happened is this Norwegian pianist Roon Alver happened upon some sheet music written, In 1910 in the US by composer named Synia Lund who was travelling around the US performing. She was very very popular at the time. The song was called concert a two top 38.
And it was written in 1910. On when she performed this in a number of American cities. It was one of the most popular pieces in her, Repertoire during her lifetime according to this alpha.
So the similarities between that song opus 38 and composer hell Arlen and Yip Harborg's over the rainbow are Kinda hard to miss and so the article in the Hollywood reporter goes into some depth on the background and the similarities and the differences between the songs and it's very interesting piece.
About American film Music history and music generally and you know but the group the question big question I ever respond is hey was that song plagiarized Back in the day and then of course you know it came just before World War two when.

[5:32] AA European composer might have had a pretty hard time dealing with You know, being a planet American chord and those kinds of things. So, nothing ever came of it and here we are. What is it about 90 years later with, Nobody's left around who knows all the details from personal experience so it's not going to be a lawsuit but it's an interesting story nonetheless Yeah no no claims that I don't think can be brought or arise from that and it was she can post it nicely yeah statue limitations they 10 10, Her work is well would be public.

[6:09] 1938 was when, There was a laws came out and you know, anyway, a little bit of history. It's always fun.

Plagiarism Allegations in Film: The Holdovers

[6:19] Plagiarism is in the headlines now also real relating to a film The Academy Award nominated holdovers, Has been accused of being plagiarized Alexander Payne's Oscar nominated film the holdovers is caught in this contentious dispute with the Writer of the film Luca Simon Stevenson I should say Luca's is one of his most famous songs Stevenson has accused the drama, And pain of being a line by line copy of the unproduced screenplay frisco And that has led to a lot of controversy during the award season and so on with the scripts share similar premises focusing on a world weary middle-aged man a couple of world weird middle-aged man and a 15 year old under hair care, But there's different contacts. So, it's really captivated the attention of the public and the community and, Something for the evidence is is damning and others say no little little in common other than some structural similarity but It is what it is and so the writers guild has been brought into look at the dispute nothing is yet happened but.

[7:31] Stevenson is considering legal action against pain and and the producers of the holdovers and so if that comes past we will keep you posted, Yeah so they've all aged he's alleged similarity but he's also alleged access so shopping or passing of things around in 2013 and 2019 so it'll be interesting to see where that Where that goes? I have to tell you, I loved the holdovers.
Hey Facebook oh I I yeah I encourage everyone to to watch it it was really really it did not disappoint It was really good. Yeah. Well, in our last episode, episode 165, we talked about the eighth circuit upholding a district court ruling over that.

[8:18] That sort of guest sheet intake form and the the blank form doctrine I remember we joked about the name of the planet from that case was wrong and they're suing Berkshire Hathaway Automotive over there use of a very similar or identical form and according that case held that the, It was a simple document basic questions prompts and check boxes with fewer than 100 words altogether and so it was a collection for me tool for collecting information and didn't really have the Requisite level of creativity but we have a new case you want to take this one, Yeah and maybe what makes the difference here is there's more than 100 words but I don't think that's what the the core brought out but.

Copyright Protection for Document: Premier Dealer Services v. Allegiance Administrators

[9:05] No, that's kind of like the oh if it's, yeah, anyway. Yeah. But how much you can change to Be protected but this is the six circuit different decision and this was a document, That looks a whole lot like just a lot of terms and conditions that we might receive in any, Contract we enter into but in related to it was a loyalty certificate for a lifetime powertrain loyalty program by automobilers aftermarket Products. So, it's premier dealer services versus Allegiance Administrators six circuit 2024.
The premiere dealer services at Development Administrator of automobile dealers aftermarket, Aftermarket products suit allegiance administrators for infringing its copyright in this document That is the loyalty program and it goes through what each person who would buy this loyalty program what they would receive in exchange.

[10:09] Hey to repair defects in the car's engine so and so forth two page document provided to you know if I was the car owner and I purchased it I would get this certificate and these terms and conditions were on there and amazingly enough the The plan if in this case actually filed a copyright application and received a registration for this document, And premiere argued in the court said originality and a copyright Only requires the author to independently create a work with minimal modest degree of creativity in the court concluded that the certificate Had that enough original expression for protection. The court said the customized expression and organization of which places the certificates beyond the kinds of highly Abstract descriptions.
Typically of uncopyrightable facts and ideas so it did talk about the feisty rule telephone case saying it was more than just Organizing a facts and ideas. Different categories of maintenance were included that had to be expressed.

[11:21] I'm still going hmm anyway defending argues that there should be an exception going kind of what we talk about often in these filming TV cases of scenes affair that There's only so many ways for an author to express facts and how many different ways can you express the facts of how we're going to repair your automobile and that they're just What's minimal creativity? But the court disagreed and actually made them discourage the defendants discouraged.
Profits. Can you believe that? It noted that premier had successfully shown a reasonable relationship between allegiances and fringement and it's gross revenues.
And withheld an award of attorneys fees Finding the lower court did not abuses discretion and characterizing allegiance arguments as unreasonable and contrary to settle law.
Wow. What do you think? I mean, we've attached the complaint. I'm sorry, we've actually opinion in the exhibit to the opinion includes the certificate that's registered for copyright. So, folks can go Take a look at that well is this a split of authority now or do we have enough distinguishing factors that we don't expect I mean not not that I really expect the supreme court to rule on a case like this anyway at least not The current court but.

[12:46] Is it a split of authority or is there enough difference do you think? I don't know. I mean, I made some notes to myself. I'm like.

[12:55] Well maybe our very creatively written a contract and I don't want people, Those are all your help.

[13:08] I mean I suppose there's, You know, there's always in line to be drawn but this, I don't know which one, which one I like better.
And and I don't know for the fact that attorney's fees were awarded or they're just there were some facts there as far as the person being a Prior either employee or independent contractor or there was a relationship and then they took the document and started using it at a competitor To me this sounds in unfair competition but I guess how nice for them that, So the point of that that it was so maybe the distinction is the facts in the case rather than the.

[13:51] So, okay. Erase some issues with me. I mean, I'm not going to probably start copywriting my contracts but, You know, the real question is if for those of us that are in neither the eighth or the fifth circuit, what do we tell our clients when they come and ask us about these kinds of things?
Is it fifth or sixth? I think it was six. We've got another case where we're going to talk about out of the fist. Okay. But, You know, order we say, hey, do you want to spend this money to File copyright application and see what happens. Well, you know, yeah, what do you do? You register the copyright at least and and and hope nobody infringes and you never have to test it in court Or you don't have to until it's more settled log yes I don't know right and and I think I still argue that.

[14:44] Today I think these carpet applications would be denied for minimal originality. It could be wrong. Could be wrong.
Yeah and you know it sends a fair but also that sort of useful article you know the contractor a form like this really serves a functional purpose that That's the other court set. Gathering the information. It's not about communicating information. It's about gathering it. So that the, It will but I think this maybe that's the distinction. Hey, this document communicated information Yeah. So it communicated if X happened you could expect why?
It was a customer facing document versus it wasn't internal so it did express what I could anticipate if I was the Consumer purchase take this product but but I do think of many Form documents I've drafted for clients that were customer facing where you know if you you could choose between AB and C on the services and if you picked Be when you got one, two, and three. So, I mean, there were options and I'm thinking.
The word Chinese number 23. And if they had pictures.

[16:07] Couldn't be copyright bullying expression on that Chinese menu. Anyway, right.
Well, that's really, you know, interesting is something I guess we keep watching and see what other circuits do. You would, it's sort of surprising to see two of these happen and within months of each other like this. So, I I suspect it'll be a while before we see another form. Yeah.

[16:33] Related to this. Let us know because we're really interested in how this is playing out or if you've had Cases where you've had something denied recently.
For not being sufficient originality that's a quote form document. And that's public record. Let us know. Yeah.

AI and Copyright Infringement: OpenAI and Microsoft Lawsuits

[16:52] Well, let's move on. Let's go on over into our AI corner. We have a handful of stories in here this time around. We've been covering the stories about copyright infringement claims against the AI companies, the authors.

[17:06] Class action for using their published works that pub journalists claims a violation of Of their rights and last month we we covered the story of Sarah Soverman's case and and, And they're setbacks and and loss of a number of the their claims and so on.

[17:24] But there are two nearly identical lawsuits that have been filed now by the same firm one for the intercept and the other for raw story and alternate they are going slightly different Root. They're looking at the copyright management Tools that are, you know, in in their in their content. So, these are both in New York federal courts at the end of February. They're filed. They accuse the AI companies of taking steps to conceal.

[17:53] Copyright infringement by removing certain information the authors and the titles of the articles they claim that open AI and Microsoft knew, That Chatchy PT would be less popular and would generate less revenue if users believe that the tool was violating copyrights and that Could lead to liability for distributing responses that the tools I generate it. So according to the complaints provides responses to users that regurgitate significant amounts of material From copyright objective works, Without providing information relating to that author title terms of use and so on and if the user asks the chatbot about a current event for example it provides answers that mimic articles covering those events from those media, So, this is that you quote, this is at least because the defendants were aware that they were That they derived revenue from user subscriptions that at least some likely uses of chat GPT respect the copyrights of others or fear liability for copyright and fringe And that such users would not pay to use a product.

[18:58] That might result in corporate liability or did not respect the copyrights of others. So, tricky, tricky stuff.

[19:08] The suits are coming off the heels of a shift of How AI does its thing and just last year they decided no longer to disclose the source material that they used to train this thing and so on so this is really a DMCA Removal of copyright management information kinds of claim and intercepts claims as opening I use this articles as source materials but it stops short of claiming infringement, They're really focusing on that removal of information. So, DMCA, go ahead. Well, I should say this doesn't surprise me because I think we're there.
The content owners are going to try every route possible, To stop this but the argument at someone would be less likely to and friends if they were aware that it's more likely they are in Frenching. Right.
I wish.

[20:03] Right. Well, you know, I mean, that's, well, I guess that's along the lines of what's on the internet so I can use it. It must be, it must be free for me to use if it's on the internet. I mean, Well. Yeah. So but maybe if it's on the internet and it's but you know that's I think the.
Portion of the DMCA about removing that copyright management information is to put people on notice and you can if I were to use something and it has copyright management information on there I can't be an innocent infringer. Right.
Hey Facebook remove if it's removed then I could potentially argue but I was innocent there was no Copyright management information. Yeah.
Well, you know, what's interesting is DMCA actually carries a $2500 statue damages for this kind of violation for each, Instance of a removal of copper management information. So, if the companies are found liable, that could Really add up considering the the vastness of the catalog of stuff that's been ingested by these tools too train the systems so.

[21:17] Vaping AI tools spit out the copyright management information I mean when they, Spit it out. They're going to attach a source to it. Well, I mean, We expect college students to put footnote in and and lawyers to put citations right I mean I suppose it's possible to.

[21:37] You know the whole point of these AI tools is that they're not just spitting out a quote, But there interpreting a lot of information and giving a new if not original, Sentence or statement, right? So, yeah, it's an interesting question. How would you do it?
Could you could you design the tools that if you click on a particular sentence it point it it gives you the Sources that were used for that. Who knows? Right, you've got a little virtual footnote up there if you can click it and say, oh yeah, this goes to that source and then I can verify the information. Technological technology Tools could do, you know, okay? It may require technology tools to do it. If this becomes AA point of liability for the AI.
Don't forget to get great for the college student who had AI write their whole report because then they got all their citations. Well, it's interesting, you know, I I teach A couple of college classes and and a couple weeks ago I had an assignment with students they had to turn in some written work and I after they turned it in I said hey did anybody use AI to, To help write this and you know, none of the hands went up and I said, well, First off, I don't believe you and secondly, why not? Because I think it's a really important tool. You know, you can use it effectively and, You know I would have been okay with it and later found out that some of the other professors at the same school take completely opposite position absolutely not that's cheating. No. Yeah. So I.

[23:06] Right in the last year who they actually is one of their research projects the professor asked them to use AI Cuz I I think they wanted to do kind of a compare and contrast of You know, and help them use that tool and see, you know, nice, pointed out many times in the legal front, it's often wrong. Absolutely, that's the risk, but I, you know, I really think in the academic environment, in the nature of, Patagoji nowadays. This is asking students not to use these tools as a little like asking a photography student not to use Photoshop. You know, or, These are the tools that they're going to have at their disposal when they're out in the real world and we need as educators to be training them and or at least allowing them to use the available tools within reason obviously.
Anyway, yeah. Enough about the theory of teaching but, Another AI story and video the chip maker who you know they've been making the graphics chips and and graphic processing Devices for a number of years now. They I heard an article on the news the other day. They apparently invested in the AI very very early on. 10, 12 years ago, they started sort of pointing their nose in that direction and, And they are now facing a lawsuit from a group of authors who say that.

AI and Copyright Infringement: NVIDIA Lawsuit

[24:33] Nema.

[24:38] Said that their works were included in a data set of.

[24:44] 196640 books that were used to train nemo to simulate ordinary written language, Before it was removed in October due to reported copyright infringement. Oh wow. So but yeah the authors proposed class action lawsuit was filed just a few weeks ago Couple of weeks ago now in San Francisco Federal Court and claims that in video admitted it trained Nemo on the data set And in French the and therefore in French copyright so that's a brand new case we'll we'll be seeing more about that one I'm sure.

[25:16] Interesting though that if if it was used to simulate ordinary written language then I guess we're talking about the ingestion side of infringement which we've already seen a number of records sort of throwing that out and saying it's I think we talked about the maybe it's covered by some of those transient recording ephemeral recording, Kinds of inches software kinds of things. So, we'll see. We'll see. I wonder what would happen if they ingested a powertrain engine, Limited warranty. Warranty. Yeah. Sorry. Tell Chef. Give me a certificate of warranty. Oh, yeah. Let's say, it's somebody, let's just see what that happens.
Yeah. It's going to probably be yeah. Most I'm I'm sure chat GP.
He probably if we had it trained and we were saying that it could probably spit spit that out for us while we're.

[26:17] We it's only a few ways to say these things, you know, who knows?
The the machine that I took. If if only I had time to do that. I would be all over it. So some AI computer technology and law student will, Jump into that I'm sure. Yeah. Yeah. One of our loyal listeners. You guys jumping into that for us and send it to us for the next for the next episode and there will be a shout out. Available. So, our next topic, you had me at Roadhouse.

Copyright Dispute: Road House Remake

[26:48] Yeah. Have you seen the new road house movie? No. Okay.
And is this what it's based on? Is it? So, you know, the original Roadhouse was the film starring Patrick Swayze and you know, hey, And Sam Elliott and Laura Durn and yeah anyways enjoyable movie.
The original screenwriter that go ahead but you can do this. Well, yeah.
The original screen from one I guess I don't know maybe we're dating ourselves again but I love me some roadhouse so anyway Lance or Lance Hill was the original screenwriter of Roadhouse and, Yeah that's to say what I don't know remember what year Roadhouse actually released the movie.

[27:37] Anyway he's initiate a lawsuit against Amazon studios and MGM in California citing copyright infringement Hill a search that he reclaimed the right to his 1986 screenplay so obviously sometime after that and accuses the studio proceeding with remaking.

[27:56] Without securing a license from him and he's seeking a court order to halt this movie's release so, The allegations being that the screenwriter filed a copyright grant termination to reclaim his rights And that he would have reclaimed those rights in 2021 in the US for purposes of this termination but in the interim, These allegations are being made that Amazon was trying to make remake this film during the writer strike. They then used AI to replicate actress voices and In addition to this copyright grant termination claim he's got going there's a claim that it's violated the collective bargaining agreements with Sagatra and the directors guild because of this use of AI course Amazon and MGM are saying This should be dismissed. It's baseless, emphasizing that no AI was used to substitute actor's voices.
So, we've got this AI issue going on. Plus, we've got his copyright grant termination claim going on and whether or not The screenplay that he wrote was classified as a work made for hire which undersection.

[29:11] 17 USC 203 and all of the surrounding sections of the copyright act if it was a work for hire then he's unable to effectively terminate this grant and reclaim the rights.

[29:26] There was also some concern over this being released exclusively on streaming platforms and again it does underscore this.
Claim between content creators and trying to reclaim their rights and we talked about it in 2022 when paramount was also sued over top gun by the errors of the author of the 1983 California magazine story Upon which the top gun first movie was originally based on and That case is still pending. It's Yanny versus Paramount pictures and according to pace or the parties have tried mediation and it's set to go to trial sometime later this year.

[30:07] And I'm just putting in a practice pointer. So, if you represent clients or I know we have non lawyers who who listen and watch.
Our podcast if you convey grants between 1986 and 1999 copyright transfers assignments.

[30:24] You are in the window to try and reclaim those. For anything for 1986, you are cool.
Running out of time. To do that, under 17 USC section 203. So, talk to a legal professional to see if you're within the window to try and terminate those grants just for the US only.
And talk about this whole work for hire concern that's been right.

[30:50] Yeah that the work for her concern is sort of there's a couple of different facets to it. One is obviously if the writer was writing the screenplay Under contract with a studio or production company as a work for hire. That's one thing. But lots of writers especially writers who work in television or or are working under those contracts. They have loan out companies that they use to Hey boys I'm sorry to collect to collect their the revenue and and distribute you know and handle some tax benefits and And other things. The issue is when a screenwriter is Writing a spec but they do it under and through their loan out company then it is still a work made for hire. Hello now Yeah and yeah for the loan out and then not eligible for that treatment under you just said 203 Yeah and so we've got two cases to go look at it the one is John White and this deal with sound recordings but in court Rule that John wait for anything that he created under his loan out that was then transferred to the pulp to the record label he can't terminate those grants and then I know months ago we talked about pending litigation On the proposed termination screenplay issue on Bad Boys. And that one is still 10 thing as well.

[32:10] Oh I don't think we talked about it.
I think we talked about the Friday the 13th so there's quite a few related to these loan outs that are not working the way the authors had hoped Yeah. Well, so that story was it was in our AI corner because of those allegations that the the studio Amazon in this can and jam used, AI to finish the film even though there was a strike, Going on. I'm not sure that really has that much bearing on the coppery termination, part of it, but anyway, so, It's still we're still in the AI corner. One more thing to talk about there is that you know, look, this latest filing against end video, there are now 18 different active lawsuits against the AI companies and, There's a blog called Chat GPT is eating the world. Com. And they have compiled a useful table to chart the status of all of these cases and so we've got the link in the show notes. It's Chat Chippee is eating the world. You know.

AI Lawsuit Compilation: Chat GPT is Eating the World

[33:14] So you can go to entertainment law update. Com slash AI cases all one word AI cases, And it'll take you to this table, That has the status of all these cases and I'm bookmarking it and I'm just going to keep checking in on that because it's like, I think that's a great service. So, thanks to the folks that chat you pity is eating the world, Yeah and and I think that's great and that if as I kind of peruse that it's focusing on Really what I would call intellectual property content AI cases. I feel like a year or so ago, we talked about a different link in Maybe I can find that about other AI cases and it is what I recall was it was interesting that most of them were criminal cases where AI had been used. So, it it our focus is obviously the IP but.

AI in Podcasting Space

[34:05] Crosses over all genres of law in all areas to be aware of so Something I think we're all paying attention. I'm actually going to be speaking at a pod fest AI, Masterclass sessions they're having a special course just on AI stuff in the podcasting space and they've asked me Come and address some of the legal issues. So, that's yeah. And I talked to songwriters and musicians about it a couple of weeks ago. I mean, it's really, you know, It's just interesting and it's scary. It's scary for them as they feel like the machine is going to overtake. So, yeah. Yeah, it's interesting. I've heard a lot of arguments about the creativity and and they the human factor.
Actor is always a thing and and somehow audiences will always into it that The there was a machine rather than a person behind it and I don't know whether that's really true but I've never written a song before AI. Okay.
But I wrote one with a Y.

[35:09] Well, I've been advocating for some kind of a certification mark or some kind of a seal of approval that says, you know, This this.
Episode or this song was entirely human generated.
Just as a way of sort of putting a brand on it. And hey, there's still humans involved. Yeah, well, I don't think we can do entirely human generated. Just because of the fact of plugins and all of the things that go into making, Yeah. Music. And sound recordings. Even if they're not quote AI. So.

Nickelback Case Analysis

[35:42] Well, speaking of music, let's talk about this nickelback case. Yeah, out of Texas out of his circuit. Well, that's your home turf so you can take. So, Johnson V.
Kroger.
That's what I'm going with. Okay. A R oh E G E R out of the fifth circuit. Just recent opinion. The fifth circuit court of appeals upheld a lower courts decision that the the rock Group nickelbacks billboard topping 2000 hit vote rock star is not in French man of the Austin based rock band snow blind revivals, Predating song also entitled Rockstar citing mirror cliches, Johnston who's the planner in this case sued in May of 2020 claiming that nickelbacks hit song had stolen substantial portions of his own song entitled rock star including Tempo.

[36:39] Don't think that's a factor. Okay. Song form melodic structure, harmonic structure, and lyrical.
Themes. I think that's an interesting way to stop.
Couch that. He particularly sided similar lyrics about the rock star lifestyle making huge amounts of money and having famous friends. Well, you know, that's me.
Just right there. I live the rock star lifestyle. Anyway, in March 2023, US districts judge Pittman decided that Johnston's case at times quote Orders on the absurd.

[37:15] The judge wrote that any similarities between the two songs were quote outlandish stereotypes and images associated with being a huge Famous rock star and they do not sound alike. So, that made me go, okay, where are their expert witnesses? Yes, both sides had expert witnesses. On appeal to a three judge panel.
The court rule Johnston's expert categorizes the lyrics into common themes Johnson being in Planet such as making lots of money connections to famous people and references to sports, But these are cliches. Of being a rock star. So and or not unique to the rock genre. Singing about being a rock star is not limited to the planet.
Hey.
Let's see one lyric johnston had was might buy the cowboys and that'll that's how I'll spend my Sunday's and nickelbacks was and the bathroom I can play baseball in.

[38:12] Similarities.
These lyrics reference different tour.
Yeah they reference sports they don't even reference the same sports. Right. There was no copying. So that there was oh evidence that nickelback had had access or Hold the plan of song which is a key aspect to it. There was claims that maybe UMG executives had had access.
But the court just said there was no direct evidence of copying. There was no access. There was no, Substantial or striking similarity and just discounted Johnson's expert witness and said this is not infringement.
So, yeah, it's, yeah. It's always interesting when the judges are sort of, Well John likes to use the term bench slapping.

[39:13] You know. We love John. John keeps us rolling every month. So thank you. Yeah.
Stories and team and all that and anyway, thank you John for that. There's another one coming up later on in the in the rundown that we'll we'll share with you as well but It was a big bench slap. Let's put it that way. But.

Earth, Wind, and Fire Trademark Victory

[39:35] Let us move on to our next story which comes from a billboard reporting on this. Earth, wind, and fire, the iconic R&B group. Recently emerged with a victory and a trademark lawsuit, Against a tribute act that had used their name. Federal judge in Miami ruled overwhelmingly in favor of the original band stating that the tribute Group known as earth wind and fire legacy reunion infringed on earth when and fires intellectual property rights by using the bands Property including the well known Phoenix logo wordmark Egyptian iconography and even photos of the real members of earthland and fire thereby miss leading fans into thinking that the shows were for the actual earth women fire the lawsuit accused the legacy reunion of Attempting to deceive consumers into believing that they were the authentic Band and the defendants allegedly heard musicians who had previously played with the real band along with others who had never played with the band. They also falsely implied an advertising that this new group was the authentic Earth wind and fire using the band's trademarks to boost their ticket sales so the judge condemned the tribute bands marketing tactics as deceptive and misleading, And pointed to evidence like angry social media posts and emails from friends who had attended the shows under that false impression that they were seeing the real thing.

[40:57] Even though Maurice White, the founder of the group had died in 2016. The original earth wind and fire continues to tour, Where for long time members Philip Bailey Ralph Johnson and White's brother Verdene operating under a license from earthwind and fire IP the the company that is owned by, Maurice White's sons. So, Tribute acts are legally permitted to cover specific bands music but they do have to indicate their status as a tribute band and avoid implying Any affiliation with the original group and the judge merino in this case he said that the legacy reunion crossed the line he the using the term reunion and claims of former earth wind and fire members involvement, The judge emphasize the deceptive nature of all the marketing regardless of the tribute pen members roles in the original group lots of complaints from fans who felt in this lead wasn't worse sided and supported that ruling, And damages will be a separate trial coming up in May of this year. So, meanwhile, Legacy Reunion is prohibited from any further infringement of earth wind and fires trademarks.

Legacy Reunion Prohibited

[42:07] So, there we go. We'll we'll be back when we know what the money amount is.
And I know when multiple states they have these tribute band statutes. Yeah. That limit, How you can or so many members of the band and variety of things but yeah I mean this really was intended to deceive.
Yeah. Yeah. Consumer.

[42:30] You know, tribute bands that play around. Area, all the time and I know last year at a very small little outdoor park venue. My husband was like, oh, look who's going to be there and I'm like, They're not going to be playing there. Yeah. And come to find out it wasn't the the tribute acts fault at all. I think the event, the programmer, either.
Didn't need I probably didn't actually know who they're they were.

[42:59] Hey and they just advertised it inappropriately and I actually don't think it was anybody trying to fool anybody. It was Just a mistake and and when we showed up the the singer songwriters that were there were like hey sorry we we really did not want you to try and angry or this other prey but Some ads went out. Interesting. Yeah, you know that they had nothing to do if so. What makes me wonder if if shows like Beetle Mania would still fly with that title nowadays. I mean, you know, that's 50, 40 years ago. I, And, You know what I am and what happens when you know the whole world knows that most of the original members in the band are dead. Does that change the analysis of these situations? Yeah. I mean, hard to say you were deceived if you knew that That John and George have passed on and Paul's doing his own thing nowadays, right? So, all-star band. But I I think there's, you know, Something to to take away from this is just looking you know being deceitful is never going to work it's never going to be Be smart. Yeah. Well, we hope.

Band Name Ownership Dispute

[44:10] Story we're going to talk about is make sure it's clear amongst The individuals or the band members who actually controls the band name, the trademarks, the logos, and what happens when people die or leave the band.
Super important. So, there were multiple trademark registrations for earth, wind, and fire, and again, I think we talked about they were in an entity, this earth wind, and fire, IP.
Which are record say more race white son owns I haven't verified.
That. So, but takes us into split decision. Which is a band name that actually went all the way up to the trademark trial and appeals board in part of the registration process. A in 1990 split decision.
Also a cover band but it's we know who they covered.
Was a two member part-time Christian Zayak and Scott Kinka over time and evolved into a five member full-time band, Performing at venues around the East Coast clubs, casinos, corporate events, the band's name was chosen by the two founding members in 1993 additional members joined the lineup.
And then Billy Stott comes into the picture he became.

[45:31] Involved with split decision to kind of manage the group and he gradually he was Let's see while the band initially performed about twice a month in small bars. It expanded. It's reaching. It's performances and then starts involvement in the band's operation from 1991 until they're separation in 28.
Teen is what really triggered this dispute because he claims Scott this is a new one for me, That let's see how does he worded that he was the most Active, non-active member of the band. What was his wording of how funny? John, performing member of the band and because he was a non-performing member of the band and did all these quote managerial roles.
Somehow, that rose to him having some ownership in the trademark.

[46:29] Anyway so split decision music LLC files and application, And the I'm sorry and this LLC handled payments for performances and manage the business affairs, Start in the band separated in 2018 initiated by an email by band member And start has not used the split decision mark since 2018.
The band continued to perform under the same name and the LLC filed an application to register the mark. So then we have the dispute start opposes this application.
And start claims prior ownership due to his management role while the band argues for collective ownership based on their long standing use of the mark, Hey and so the on appeal to the tech trademark trial and appeals board they.

[47:24] I guess the board. I reviewed actually Stott's claims from two different perspectives. I thought this was interesting. Yeah. They looked at it as manager versus group.
And departing member versus remaining member which is a long lines of what we've talked about with earth wind and fire, Hey Mace said well what are the functions of a manager Does he act simply as an agent for the group does he do things like a producer and a theatrical company did he arrange studio time schedule performances responsible for decisions.

[47:59] And where the band members where the band members are not replaceable as actors and a play and they existed and performed as a band long before the manager became affiliated with him. Then they looked at this departing member, Generally there are three main factors to be considered an ownership dispute surrounding service marks as between a departing member and the remaining group. The parties objected, objective, intentions are expectations, Who the public associates with the mark and to whom the public looks to hand behind stand behind the quality of the goods and services offered and the TTAB looked at the case of Bill versus Streetwise records And said the band controls the name.
And Scott fell to establish that he did control the band name. There it existed before he was ever involved with the band. There was no assignment to him.
And they said that just because he had a management agreement that didn't alter the historical ownership.
In his self-proclaimed title sorry here it is as the primary non performing member was rejected, So, I actually think to try TTAB got this right. How did the manager? He didn't use the mark. That's use.
His ownership is right.

[49:24] Transferred the ownership to him or to an entity other than the partnership of the two guys originally I guess.
You know, maybe maybe the three new members also became partners. So, you know, but I mean we've we've all heard about scenarios where the managers in for a band member share in the you know A bandshare but it doesn't sound like he was.
Right and and I think they could have gotten to it just by saying dude you haven't used this mark in the last 5 years since the since you left the, You know you don't have any claim of ownership anyway. You've abandoned your rights to the top. Yeah. But that doesn't seem to have been a part of this case. But I think then you they never assigned it to you. How can you possibly claim full ownership?
And I think you said the band claimed that it was a, Shared ownership among all members in this other there may be still an issue of what was he entitled to some portion of it because of that but we don't know, I don't know. I mean, We often hear over and I suspect it probably still happens where there are managers or record labels who control the trademark of demand, And they own those rights. Trust me, if you, if you were to copy one of my documents where I'm representing an artist, we don't do that. And I really, I don't do that in record label agreements either.

[50:53] Yeah.
I think there is a practice pointer here is that you know we do need to be mindful of the intellectual property that, Goes along with the group from it's earliest days when there are changes and structure in the formation of an LLC or something like that we need to transfer that IP into the company if that's the intention The parties have or in the case of earth wind and fire it looks like, What was his name weight? You know, he was the sort of solo owner of the branding there. Right. So, you know, we need to ask the right questions. And have those conversations, I, Those are the uncomfortable conversations to have over the years that I've had with, Quote band members were really there's a front man and everybody else's, Along for the ride was should they all own it? You know, and, We get into the tricky questions of who's the client and and do we have a conflict of interest when these issues come up and yeah it's.

[51:58] Representing the music industry, boy. So much fun. Yeah. So much fun.
Yeah. Well, let's move on and talk about this. You know, here we are. It's 2024. The pandemic the COVID-19 pandemic began in 2020 and extended through most of 2021, And we're now starting to see the cases coming up that had to do with the force major clauses and contracts and how did the pandemic, Operate.

Force Majeure Clauses in Contracts

[52:30] With those those force measure clauses. So, we have a California case, a VFLA eventco LLC versus William Morris and Dever Entertainment.
In Los Angeles County Superior Court involves a music festival organizer.
Eventco sewing star US touring Kali Uchi's touring big girl big touring and William Morris over the return of deposits they paid to secure performances by Ellie Golding Kali Uchas and Lizzo at the VFLA music festival they had scheduled in June of 2020 Well along comes the pandemic and government restrictions and they had to cancel the festival so they demanded that William Morris return those deposits because way more was the agent for the artist so they claimed that the force measure provision.

[53:23] Was in the invoked it and claimed that they were entitled to the return of those deposits but the artists refused the demand And they say that the FLA board the risk of cancelled cancellation due to the pandemic and the trial court agreed with the artists Granted summer judgment and now the California Court of Appeal, For the second has affirmed that judgement they held that the trial court properly granted some rejuvenate in favor of the artist and will you Morris the court interpreted the force measure provision as Not reasonably susceptible to VFLA's interpretation and held that the artisan interpretation.

[54:04] I'm sorry the court also had the artisan interpretation did not work invalid forfeiture or make the performance contracts on lawful so I don't think we need to read the whole force measure clause, But really what it came down to is the artists claiming that the the Right for the deposit is conditioned on them demonstrating that they were ready willing and able to perform but for the occurrence of the force measure VFLA's argument was that it's ready willing and perform Ready while unable to perform.
In spite of the occurrence of the force major very subtle differences in language the judge said no the artisan interpretation is right that otherwise it would make the force measure provision indefinite and incapable of being carried into effect, And they would take out you know the the take away the meaning of the sentence following it so there you go the judge said Hey I'm interested to talk to some promoters and venues and agents to see how they revised language, Because I suspect, The promoter didn't think this is how this would come out that if there was a force mature that made it where they could not put on the event then.

[55:23] Why would they have liability to the talent who didn't show up and perform?
Yeah I mean there is a sentence in that force mature clause that we didn't redo that I'm going to read now it says in the event of cancellation due to force measure, Then all parties will be fully excused And there should be no claim for damages and subject to the terms set forth here in producer shall return any deposit amounts to, Producer. Okay, so producer is the the artist in this place. I want the producer is the event producer. Right, right. Thank you. Well. Oh, producer shower turning your deposit amounts previously received.
Yeah so I think that in this case it's the promoter hiring the producer of the act Got it. Yeah. However, if the artist is otherwise ready willing and able to perform, purchase or will pay, producer, the full guarantee, Unless the cancellation is a result of the artist death illness or injury or that of it immediate family In which case producers will return such applicable parada portion of the guaranteed privacy. So, yeah, I mean, this this is not, What I would call typical.

[56:42] They're getting out of, Hey or or getting back the the partial payment is if, The artist can't perform because of death illness or of a close love one. That sounds like no matter what the force measure event was.
If the other wise if the artist was ready willing and able there are a, The event planner event code is out a lot. So, anyway, I think folks who are in that part of the business need to read that closely Or even other any type of horse major language this needs to be read closely just until night 2020, You know, force major language was something you at least most of the time. I think we glossed over it. Oh yeah, there's a force. Move on. You know, and we didn't catch George.

[57:35] An actual disaster of course. Right, but that actually there are tornadoes and earthquakes and floods and things like that that act as force measure as well. Yeah. But, Yeah typically Well, anyway, then, it is something we need to pay closer attention to. I think this case is evidence of that. There was actually a dispute that arose because of the force insurance. So, Right well earlier I mentioned the bench slap reference and and this next case really really, It was a good example. So, we talked about this. I think in a previous episode sometime ago, maybe a year or so ago.

Livingston Family Song Dispute

[58:17] It's the fight involving travelling livingston the daughter of the songwriter Jay Livingston who wrote the famous song Quesara and the song Silver Bells the Christmas tune her daughter Tammy Livingston is suing her, Because if we declare toy relief seeking to invalidate terminations, That traveling the daughter had otherwise.

[58:45] Submitted these determination notices regarding the song Caseras Rah and in doing so apparently it's stopped to the royalty payments that we're going to the granddaughter Yes. So, it's it's Go in.

[59:06] Stating that the termination doesn't affect her right to receive royalties.
That complaint was met with emotion to dismiss the court granted it and they were now under the second amendment complaint in 19 page opinion regarding Tammy's complaint, The court basically said there was no reason those termination should be invalidated and there's no dispute regarding the obligations to pay the judge these are quotes now from the the judge's opinion First the second amendment verified complaint is a morass of argument and legally's however the party's briefing does not Much to reveal. I've seen it doesn't do much to reveal the actual dispute.
Another one. Each of Tammy's five arguments that travel and lacks the authority to terminate the grants collapse under their own weight.
Either they expressly contradict documents Tammy Place squarely before the court or they are entirely unmored from the law.

[1:00:01] Another one Tammy fails to articulate or even gesture at how the relevant notice feels to satisfy the provision without reference to her prior duplicative arguments, In her brief Tammy makes no attempt to explain why the case were also a termination notice Or companion termination notice do not reasonably identify the grants being terminated instead electing to focus on notices relating to a different composition, And therefore for the reasons previously stated Tammy's not entitled to relief and this remedy is not okay. Yeah. So before Jay Livingston did during his lifetime was he actually liked I believe we advise many clients or estate planning and financial planners advice many clients is to set up, Hey perhaps transferring a trust and transferring your intellectual property your copyrights and your revenue streams into the trash well what we are now finding out is that transfer is a contract to the contrary, In in is an attempt to cut off the rights of the ears listed in the copyright act to terminate these grants, This one I don't know if this one was a 203 or a 304 so basically the Livingston Trust was set up and away in which the granddaughter was receiving a benefit from these copyrights her mother.

[1:01:25] Who was the correct air under the copywriter act to file the termination notice filed him, Hey the granddaughter So, this sounds like a chapter in a bad reality show, doesn't it? It does, but but I look at it as a teaching moment just right, I tell and I just, Did talked about this case 2 weeks ago at an estate planning conference.
And I said okay I know all of your estate planning attorneys are going to come include when we talk about this.
But if you have clients with copyrights we you need to come talk to me before you think Be be appropriate vehicle is putting them all into a trust during their lifetime because it may not be or having them If there during their living have them assign all their rights to an LLC as a loanout company.
We talked about that one today too or maybe there may be reasons why we really need to weigh the cost.

[1:02:28] Of structuring the deals those ways. They need to be advised and I think that's the issue we're having is The estate planners in the corporate lawyers, Just aren't briefed to advise their clients of what the risks are and putting those structures into place. So, I wonder if anybody has figured out the right mechanism to avoid this scenario. Is it Is it the the only way to affect the purposes of grandpa's will you know in a state plan is to make it transfer, In the milk it has to transfer in the wheel. Next setting up the trust for Tax and other benefit reasons during your lifetime does it have to dump to the estate and then you know on death Hey Facebook yeah and I don't know and I think part of the reason we don't know the answer is those don't get litigated. Yeah.
So it's like if you put a pour over will in AA trustful will into a trust.

[1:03:32] And those assets remain the assets of the individual author until they're death and then upon death they pour into the trust I don't think I think that Superseeds the termination because the axe is they can transfer by will.

[1:03:49] Well maybe we have a listener who is really good at this having with a state planners and the conversation I had with two state plannings last week was well if you think you're Clients are always all your family members are going to always get along.
Here's an example. And then let's do it this way. A bigger because the the divider issue I see in the reality is it's a blended family.

[1:04:15] And so they've maybe always raised their spouse's children as their own children. The third author biological children and they want all of the children to share equally.

Estate Planning for Copyrights

[1:04:27] Well they're non biological non adopted children do not have a right of termination so you got a plan for that.
Well, interesting stuff. If any of our listeners has insights on this, we'd love to hear from you. Maybe we'll have to come on the show as a guest to talk about these things and you know, best practices in these areas are still developing. I guess, that's the answer. So, yeah.

Congress Study on NFTs

[1:04:50] Well, we have talked a lot about a lot. We talked in some depth about the NFT and nonfungeable tokens, Over the last few years as they've I think we predicted it was going to be the biggest issue last year or something.
And it was a dad. But congress has been paying attention to it as well. In, In 2021 there was AA call from the congress to study.

[1:05:19] The issue of NFTs and do the cop red office in the trademark office need to do something to address them and after 2 years of study there there are bunch of round tables held in January of last year 2023 that study is now complete and it was released on March 12, The officers the the corporate office on the trademark office both submitted their joint study to congress and concluded, That current applications of NFT technology don't require changes to in electro property law Both officers determine that they don't need to make any changes in their registration recreation practices not necessary or advisable at this time. Sounds like it's sort of a let's take a wait and see a approach because we're not there yet, Partly because last year's dud status.

[1:06:10] Figured out is that right now.
As to the law we have in place copyright law trademark law and a patchwork of right of publicity state law, It does cover the issues. Related to the inlatural property side. I I don't know that. I don't believe the Patterned office was involved or I don't know if the USPTO gave an opinion from both the patent perspective and the trademark perspective on that report but yeah.
It's going to work. Right.
I mean, you know, it's it can be applied. The existing law can be applied to the new facts. It's working so far. We haven't seen any crazy outcomes or splits of authority that are, you know, trouble enough that Congress needs to intervene at this stage. So, Let's leave it alone. Got bigger fish to fry.
What those fish are I don't know but I don't know a more user friendly process with cockroad form but maybe maybe not.
We're bigger and smaller but we almost made it to the end, Anyway, that's for those who are watching on YouTube. By the way, we're on YouTube now. So, yeah, come check us out on YouTube for better or worse.

[1:07:27] Anyway, that does it for this episode of Entertainment Law update and as always, we want to say thank you to you, our loyal listeners for spending your time with us and to our sponsor JD Supra that leading platform and professional services content marketing that helps lawyers Turn their expertise into networking and marketing opportunity media visibility and new business find out more about JD Supra by visiting a resources. JD Supra. Com and of course we welcome your feedback if you have something you'd like to share with us or That we've asked you for like the information about the estate planning stuff and we hope that you do please leave it for us using the voice widget on our website at entertainment law update. Com.
Tom or send us an email the address is entertainment law update@Gmail. Com, Twitter handle X handle is ant law update ENT L A W U P D A T E and Tamara how can folks find you directly, Yeah you can find me most social media at Tamara Bennett that's also where I'm at on LinkedIn that tends to be where I am more days on social media.

[1:08:33] If if I'm there so website T Ben@Law. Com or create Protect. Com either of those will Get you to me and Gordon thank you so much for another great episode and I know you are going to think are, Crack team of volunteer contributors but I also want to say thank you guys for making us helping us Put this all together and I'll let you give give the big shout out to him. Yeah, well, I'm Gordon Farmer from Los Angeles where you can find me on my website is Firemark. Com. Email address G Fire Market Firemark. Com.
And G firemark is the handle on most of the social media sites. So, that's it. So, and yes, let's give a shout out to our team. We've got managing editor John Janiceek and Charles Thorn and Mark Lindeman.
And Alexis Allen And violet genre all helping us out and making us look in sound good on these episodes so we appreciate their help and and, Loyalty and all these things that's been it's been wonderful work with you all and we look hope that continues and if you are interested in joining our team There's always room for more. Wow. You can reach out to us. Use that email address and entertainment law update@Gmail. Com. Send us, Recover note and a little resume or something and let us know.
That you want to be a part of it and we'll we'll figure out a way to get in touch and see if it's a good fit. And that is about it for this episode. We're going to.

[1:10:00] Say thanks again for listening and until next time. That's showbiz.

[1:10:05] Music.

Over the AI Rainbow: Diving Deep into Copyright Infringement, Trademark Disputes, AI, and NFTs

In episode 166 of Entertainment Law Update, hosts Gordon Firemark and Tamara Bennett discuss plagiarism claims, copyright disputes, trademark issues, and the importance of clear contractual terms for production team members in the entertainment industry.

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