WEBVTT 00:00:03.697 --> 00:00:09.017 It's entertainment law update episode 173 for October 30. 00:00:09.360 --> 00:00:15.600 Music. 00:00:15.521 --> 00:00:21.741 Hi everybody and welcome to another episode of Entertainment Law update where each month we pull together our round up of 00:00:22.166 --> 00:00:33.686 Legal and business news stories and share our opinions and commentary in analysis or glad to be here with you. Timer's especially glad and she'll tell you why in a second but from Los Angeles, California, I'm Gordon Firemark, 00:00:34.148 --> 00:00:41.888 And aloha calling in and videoing in from Hawaii today I'm Tamara Benette 00:00:42.205 --> 00:00:53.065 Maui Wowie camera. Maui Wowie, that's right. I the good news is with the time change, we're knocking this out before I lose too much time on the beach today. 00:00:55.961 --> 00:00:57.521 That other meaning of Maui while here. 00:00:57.689 --> 00:01:06.629 By the way. I know not what you discussed. Yeah. Yes. Well, so you've been there for about a week you're enjoying yourself having a good time. You're not sunburned. 00:01:07.186 --> 00:01:20.506 I am not sunburned. I you know, it's kind of like I come back from the beach vacation and nobody goes, did you go to the beach? But you know, what? Enjoying it? It actually has been, I know we hate discussing the weather but. 00:01:20.717 --> 00:01:32.597 You know kind of been cloudy yesterday was we we was a car day not so much a beach day got to go to the surfing goat dairy which was super fun they have all these 00:01:32.654 --> 00:01:46.694 Get there anyway it's a go farm where they make fresh cheeses and all kinds of things and went to the top of Holiakala I we've been multiple times and this is the first time we've we've ever been sucked in with clouds wow okay yeah 00:01:46.751 --> 00:01:47.471 So 00:01:47.661 --> 00:01:49.461 Well, I am super fun. 00:01:54.561 --> 00:02:02.541 Let's just say I was having a text conversation with my pastor and send him a picture yesterday and he's like, please do not provoke your pastor to jealousy. 00:02:04.243 --> 00:02:06.403 Isn't that one of the deadly sounds? 00:02:08.643 --> 00:02:11.143 I shall tempt tonight. So, 00:02:13.191 --> 00:02:25.311 Well, okay. So, let's let's preview. We have a coming event next month. At the end of October. Excuse me, I didn't know November. November 20 through the 21st, 22nd, sorry, we will be at 00:02:25.686 --> 00:02:33.126 I will be at the UTCLE conference the entertainment law institute for the Texas bar. 00:02:34.022 --> 00:02:37.142 Sioli program yo are you not going to make it or are you going to be there, 00:02:37.822 --> 00:02:49.562 not going to make it I will be virtually attending so that's the cool thing I mean we would love everybody to attend in person but please note this has virtual attendance, 00:02:50.451 --> 00:03:04.191 For the Wednesday it's a half day kind of a 101 CLA segment that I believe can be paid for separately and then Thursday and Friday is full day CLE, 00:03:04.981 --> 00:03:06.781 There is a 00:03:07.153 --> 00:03:16.373 Preapproved CLA credit in more than a handful of states including Texas Tennessee, Georgia. 00:03:17.215 --> 00:03:19.375 Mm hmm. Several others. So, 00:03:19.430 --> 00:03:29.930 That to me and holding bar membership in both states makes it really nice because you just don't have to go through the extra hoops to get your credit. So, you know, join us virtually. I 00:03:29.935 --> 00:03:37.615 I haven't done a virtual through this CLE provider before but I think they have online chat and communication so, 00:03:38.497 --> 00:03:41.017 You know if we do I'll try and pop in and 00:03:41.035 --> 00:03:43.735 Chat with folks if they want to or whatever. 00:03:48.195 --> 00:03:53.155 Strike sort of shake out of last year's strikes and that'll be interesting. I, 00:03:53.674 --> 00:04:02.614 Probably ought to get cracking and pulling that presentation together. More than just the outline I'm sitting with now. Lots of really fun topics and I will say. 00:04:04.854 --> 00:04:08.194 I think it's Friday afternoon not Thursday afternoon. 00:04:08.384 --> 00:04:22.724 I'll have to check the schedule but there's going to be an interview with Terry Lacona who has been the production producer behind the full 50 years of Austin City limits television show 00:04:23.085 --> 00:04:23.745 Wow 00:04:24.138 --> 00:04:30.078 Yeah so they just had their big this is their 50th year of Austin City limits on on CBS 00:04:30.398 --> 00:04:39.258 and he's going to be interviewed about that as a segment and super excited I know I know Terry and I've worked with him on other part 00:04:39.181 --> 00:04:46.921 Projects outside of ACL and in addition to all of the legal things we're going to be discussing that's going to be a really cool 00:04:46.968 --> 00:04:58.908 Call conversation travel folks. I know that that often happens to me but yeah, I've just got a lot of moving parts going on that last week. 00:04:59.274 --> 00:05:06.354 Or that week of November so I just finally cancelled my hotel and said it's it's just not going to happen so 00:05:06.755 --> 00:05:12.275 Well I'll be there to to wave the entertainment law update fly. There you go. Thank you. Alright. 00:05:12.408 --> 00:05:24.288 Well we should jump into our our rundown we've got a couple of big cases and some other smaller but interesting ones so let's start off with I think it's pretty big news about Tuesday crew and there. 00:05:26.321 --> 00:05:30.141 Reclaiming their masters from the record label, 00:05:32.141 --> 00:05:42.701 This is little joe records versus Ross and they they were reclaiming their sound recordings from the 1990 deal they had, 00:05:43.628 --> 00:05:45.668 Made a section 203, 00:05:46.203 --> 00:06:00.303 Termination of transfer notification that permits creators to reclaim their works after 35 years and you know it's designed to protect artists exactly the scenario right who had signed away their rights when they were less, 00:06:01.435 --> 00:06:12.295 Had less negotiating power and leverage and so they may have signed some less than favorable deals. So, Luke Campbell, the surviving member of the group along with the errors of Mark Ross and Christopher Wan. 00:06:14.101 --> 00:06:17.341 Issue this notice of termination and, 00:06:18.953 --> 00:06:26.333 They've been fighting over it. The the master recordings were transferred well the yeah they were transferred to Luke records 00:06:26.767 --> 00:06:35.407 And that's a record label owned by the tax lawyer who represented the the label back in in. 00:06:36.831 --> 00:06:44.211 In those early days. Anyway, he had bought the recordings out of bankruptcy after the band had gone bankrupt 00:06:44.636 --> 00:06:51.236 I guess in the early 2000's and he bought him for $800 thousand so they filed their notice and, 00:06:52.348 --> 00:06:56.968 Wineburger contested the validity of the notice saying that the bankruptcy, 00:06:58.199 --> 00:07:04.959 Ended their right to terminate that they had forfeited the termination right by declaring bankruptcy oh in the 90s 00:07:05.297 --> 00:07:14.117 The judge though didn't agree he said no the congressional intent behind termination rights is to protect the artists not to protect corporations or third parties 00:07:14.389 --> 00:07:18.529 That might be benefiting from their creative work and he said these rights are inherently personal, 00:07:18.998 --> 00:07:25.718 To the authors and they can't be transferred laws through bankruptcy. So, that was a big ruling. That was early in October. We saw that. 00:07:26.290 --> 00:07:35.350 And the case then was clear to go to trial and after what sounds like it was a fairly quick short trial the jury came back and found that 00:07:35.769 --> 00:07:41.829 Campbell Russell won did not they were not employees it was not work made for hire 00:07:42.251 --> 00:07:52.751 In the days that they made those contracts. So, they were actual that was the the remaining issue I guess for the trial. So, that it wasn't a work made prior. So, it was susceptible to the section 203 termination. 00:07:53.368 --> 00:07:54.968 I think this is. 00:07:56.349 --> 00:08:07.329 Big case law on on a couple of fronts. You know, on the bankruptcy issue, we see bankruptcy. I need to go back and look. There was a case in Texas. 00:08:08.925 --> 00:08:19.845 Not related to terminations but related to bankruptcy and ability to get the actual physical master recordings out of bankruptcy, 00:08:21.996 --> 00:08:26.736 And and Cindy Lazari who's who is passed away and we actually 00:08:27.037 --> 00:08:31.237 Sports entertainment law section state bar awards gives an award, 00:08:32.257 --> 00:08:42.577 in her name because she was the one that really fought for artists to be able to recover those assets those that in local property asset out of bankruptcy. So, you know, there's 00:08:42.674 --> 00:08:44.354 All kind of this ongoing 00:08:44.547 --> 00:08:54.087 Over the years litigation regarding what happens to these copyrights when they go into a bankruptcy but from a termination of the grant I'm like 00:08:54.373 --> 00:09:04.913 How could that be subjective bankruptcy because the right has not vested yet when the bank when this case with the bankruptcy occurred so I don't even know, 00:09:05.720 --> 00:09:06.500 I don't think that 00:09:06.899 --> 00:09:18.839 Judge discuss that maybe the judge did I mean I agree with the ruling from the judge but I think it revolves around the fact that the right head and vested so I don't think you can cut it off when it's not vested yet. 00:09:20.574 --> 00:09:29.694 Well I wonder if and I don't know I didn't read the case that carefully either but I don't remember was the was two live crew and entity of some sort other than a, 00:09:30.314 --> 00:09:32.294 Partnership agreement kind of thing. 00:09:38.194 --> 00:09:41.294 And it specifically listed all three, 00:09:41.855 --> 00:09:50.795 A band members. Okay. And sad. Yes or no? Did they create this within the scope of their employment as a work for hire? Okay. 00:09:51.361 --> 00:10:00.061 And the drawers are all selected no on all three tick boxes. Okay. Yeah. So. So, it was not a question of. 00:10:02.245 --> 00:10:16.825 Hey an entity when it came down to the jury verdict. So we might see a different outcome in a situation where the members of the band had formed a corporation or no lc or. Yeah. Well or or even well yeah. 00:10:16.712 --> 00:10:19.712 Or just been recording under the, 00:10:20.331 --> 00:10:27.891 LLC at the time that they were you know as employees of the LLC at the time that they were making the record then the record, 00:10:28.712 --> 00:10:37.172 Hey Facebook we would see a difference because that was the weights case right? Right. Yeah. Because he record John I 00:10:37.515 --> 00:10:51.595 Yes forgive me if I've just said the wrong case but I'm pretty sure that's the John White's case where he did everything through his loan out not related to bankruptcy but related to his claim for termination and the court came back and said, 00:10:52.172 --> 00:10:55.292 If these services were provided through your loan out then the 00:10:55.467 --> 00:11:09.747 Termination provisions don't apply. So maybe another argument for artist representatives to think very carefully about how and when to form entities to how is the band certainly for touring you probably want to have an entity that people that aspect of things but 00:11:09.780 --> 00:11:15.360 We already know most of the time they don't do publishing under under a group entity. 00:11:16.801 --> 00:11:24.761 It's recording is another component of this that we need to be thinking about. I think a lot of deals do make the records under the entity. So, 00:11:24.805 --> 00:11:35.185 Oh they they do and I had this conversation with numerous attorneys just because they're not aware and well a lot of people weren't aware. 00:11:35.419 --> 00:11:40.159 Until we got these decisions that. Yeah. This was going to be an issue. 00:11:40.550 --> 00:11:45.470 When the courts did their interpretation and application of the termination provisions under 00:11:45.780 --> 00:11:50.520 203 and and I suspect also intersection 304 it would be the, 00:11:51.281 --> 00:12:03.161 Same analysis so interesting I mean the the other area that is interesting is for bankruptcy attorneys to now be an creditors to be looking at what's the real value of these things that, 00:12:03.668 --> 00:12:13.988 Were created in you know in a record deal or something like that. I don't think wine burger wouldn't want to pay nearly a one 1 million bucks for those masters. If you'd known if this could happen, 00:12:14.552 --> 00:12:17.852 You know just wondering, 00:12:18.522 --> 00:12:24.522 As well you know we don't know what all the testimony was in front of the jury if. 00:12:26.155 --> 00:12:35.035 If he was a good witness he just because of there all of their relationships over the years well and they'd actually may 00:12:35.365 --> 00:12:42.325 You know, sometimes it hurts the case that some of the witnesses are no longer around to testify and sometimes they're not helps. So. 00:12:44.313 --> 00:12:47.913 So we have one more to add to the the list of where we are 00:12:48.237 --> 00:12:55.717 Finally getting a body of case law related to calculate grant terminations that it's they've been again these 00:12:55.872 --> 00:13:07.812 Notices or filed everyday and and deals are struck but very few of these go all the way through the litigation where we get a ruling to rely on. Right. 00:13:08.862 --> 00:13:19.782 Oh let's go on are you are you do you remember what you and I both were I I would say we grew up in the Atari generation right baby yes remember the crystal castles game, 00:13:20.349 --> 00:13:25.149 Okay so I don't. Okay. You know, I just wasn't a big 00:13:25.318 --> 00:13:35.458 Yeah I I remember my cousins coming to visit and bringing this contraction and hooking it up to the TV yeah so we are really dating our, 00:13:36.306 --> 00:13:49.666 Well the crystal cat with crystal pals is actually one of the games that was in arcades you know so it's in arcades that's right so you know it was in arcade it's kind of like we had Pac Man Anarcades and and who knew that 00:13:49.715 --> 00:13:52.235 6 seconds of advertisement. 00:13:58.375 --> 00:14:03.515 Excuse me is Atari interactive inc versus State Farm Mutual Auto Insurance Company 00:14:03.947 --> 00:14:09.947 Out of the northern district of Texas from the end of September 27 of 2024 so, 00:14:10.843 --> 00:14:20.803 You want to fill in on the facts? Yeah, yeah. So, we we've already eluded to this but it's a game over when state pharmaceutical over a six second advertisement, 00:14:21.898 --> 00:14:32.518 Atori interactive suede form as we said in the northern district of Texas which is my normal district but you know I could probably be for the district I've always but that's in a simple, 00:14:33.158 --> 00:14:38.778 Yeah they were sued for copywriter fringe and a legend that they 00:14:38.957 --> 00:14:48.257 The use of a toys iconic crystal castles arcade cabinet design in a state for advertisement was more than a diminimous used. 00:14:49.867 --> 00:14:58.747 Atori claims that the ad featured a modified version of a crystal castle arcade cabinet state farm change to the name of the game that pops up on the 00:14:58.771 --> 00:15:06.331 Center of the screen to which is brooms on the cabinets more key but left portions of the games original 00:15:06.459 --> 00:15:09.399 Artwork that was on the cabinet box visible. 00:15:09.763 --> 00:15:18.763 The defendant state foreign moved yeah stay for moved to dismissatory's claim under a rule 12 be six motion asserting the useless protected by fear. 00:15:18.711 --> 00:15:29.571 Reviews and then a Tory had failed to state claims for unjust enrichment business asparagement unfair competition and violations of the Texas insurance code 00:15:29.928 --> 00:15:34.128 That was a unique one to put in there but anyway we'll see. 00:15:35.167 --> 00:15:43.207 On the DominumSU Satari argue that the arcade cabinet design featured prominently in the advertisement was recognizable, 00:15:43.683 --> 00:15:51.903 So that's interesting when you you ask me if it was recognizable to me you know to how many people is it recognizable and does that matter, 00:15:52.577 --> 00:16:05.657 I don't know. Yeah. The court found that unlike previous cases were the use of artwork in the background was considered diminimous. The cabinet in this instance was central to the scene, Anwas easily identifiable to viewers. 00:16:07.008 --> 00:16:11.808 Therefore the court ruled that the use was not diminimous allowing the claim to proceed, 00:16:13.085 --> 00:16:24.305 The defendants put forth their fear use defense and went through those the court went through the four factors starting with purpose and character finding that it was a commercial use 00:16:24.599 --> 00:16:31.799 Clearly it was part of an advertisement even though it was only 6 seconds long there was no transformation. 00:16:33.212 --> 00:16:39.612 To the use and so that way in factor of state sorry of a torry nature 00:16:39.902 --> 00:16:53.522 Character of the copyright work, atory's work was used for its expressive elements, those visual designs, rather than for any factual content. So, that also wait against where used the amount and substantiality of use. 00:16:53.829 --> 00:17:00.609 Even though the marquee was altered that wasn't enough it was still a deniable as crystal castles. 00:17:01.382 --> 00:17:03.722 So again going against, 00:17:04.299 --> 00:17:13.359 State Farm affect on the market. Hm. At Tari's allegations that it has a robust licensing licensing business made it possible. 00:17:13.634 --> 00:17:24.014 That the unlicensed use of the design could harm its market especially if others did the same thing. So again, ways against fair use. So, none of the factors fail 00:17:23.914 --> 00:17:32.974 Favorite the defendants in the court denied their motion to dismiss on fair use grounds but then they kind of scoop up all the other claims. 00:17:33.259 --> 00:17:42.799 That were broad and said you're out of here. Yeah. So, this is I I don't know if this is the law in every state on unjust enrichment. Hmm. 00:17:42.891 --> 00:17:53.631 But the defense moved to dismissatories unjust enrichment claim arguing that Texas law does not recognize unjust enrichment as an independent cause of action. 00:17:53.855 --> 00:17:57.615 The court agreed sighting several presidents so it's gotta be, 00:17:58.114 --> 00:18:12.514 Related to something else. Business disparagement. Atorical claim that the ad portrayed its products in a negative light when Jake from State Farm. Hit the cabinet. Allegedly suggesting that Charlie's products were unreliable. 00:18:12.914 --> 00:18:17.414 Didn't show specifics sufficient facts for that. 00:18:19.071 --> 00:18:25.431 Nor did they find that they were lost profits and damage damage to the reputation because that occurred. Huh. 00:18:26.795 --> 00:18:35.975 Unfair competition was based on the same facts and that didn't hold up either so that was dismissed as well as this kind of novel textes insurance code claim. 00:18:37.450 --> 00:18:41.630 Misleading statements in an ad for insurance. Okay. I sort of see the 00:18:41.883 --> 00:18:47.583 Thinking by bringing that claim but to me it seems like the court is just saying look you got your copyright remedy 00:18:47.824 --> 00:18:56.264 Take yes for an answer and you know the rest of these are out right we're just going to kick the rest of those out and move forward on a copyright, 00:18:57.115 --> 00:18:58.135 It is, 00:18:59.240 --> 00:19:11.720 I guess kind of interesting made I think about this being a six second audio visual work I I that is Dawn I wave I think both of us have seen a screenshot of, 00:19:12.716 --> 00:19:16.316 The ad. And I suspect. 00:19:17.199 --> 00:19:25.779 The design and now it's not the design of how the cabinets the artwork on the arcade cattle and the arcade game cabinet, 00:19:26.768 --> 00:19:28.388 Is there for the whole 6 seconds? 00:19:30.171 --> 00:19:38.511 Yeah and that's that's it. You know, so I I don't know. What they'll come back with on the, was it enough to survive, 00:19:39.066 --> 00:19:46.146 Group summary judgement. Yeah. I get I think so but was it really does the fair used defense? 00:19:46.977 --> 00:19:55.597 Well you know it's interesting. I mean if you if you think back about the cases dealing with you know artwork in the background there was the the Ringold case involving the 00:19:55.630 --> 00:19:59.530 The poster of the quilt in the background of the TV show Rock, 00:20:00.185 --> 00:20:07.025 For I mean it was like seven scenes but it was you know 2 seconds here 2 seconds there and that one went for the 00:20:07.242 --> 00:20:17.122 Against finding a fair use it was it was a found to be copper and infringement so this one I think we chopped this one up as another lesson for the art directors of the world to 00:20:17.523 --> 00:20:25.983 Know that it's you have to do more than just change the sign or the title on the thing. To me, it feels diminimous but, 00:20:26.903 --> 00:20:35.123 Hey to me too and I guess they could state form perhaps could have achieved the exact same purpose, 00:20:35.969 --> 00:20:45.569 Just by having an arcade game and putting their own artwork on it. Or stripes or just triangles or you know, a geometric shapes that aren't copyright. 00:20:51.906 --> 00:20:54.586 Convey the exact same thing 00:20:54.775 --> 00:21:04.675 So this is a good one I have to add to my checklist because I do film clearance you know where the producers will come saying anything we need to think about here and I hate to think now I've gotta start 00:21:04.893 --> 00:21:16.653 Asking the question. Oh, are they playing a video game in the scene? We better check that the side of the video game. So, you know, yeah, but you know, you look at. I just any number of. 00:21:16.994 --> 00:21:21.534 Films TV shows where there in an arcade. Right. 00:21:21.907 --> 00:21:29.227 Exactly. Showing all of the different games. I mean, Anatari probably had half of them at the time, you know. Hi. So. 00:21:30.594 --> 00:21:39.954 I mean in this case it's very commercial use not an expressive work so that I think that factor weighs differently in in a feature film than it doesn't a TV commercial but, 00:21:41.262 --> 00:21:50.682 It sounds like that was not an important factor in the in the courts thinking here. Yeah. I guess I and I'm actually thinking back to mini movies from the 80s where, 00:21:51.282 --> 00:21:56.862 Yeah. That would have been the opening scene of war games has meant about playing, 00:21:57.628 --> 00:22:07.408 Space invaders and my guesses they probably cleared space because I was there actually showing a gameplay. Yeah. But you know, I mean, it was so ubiquitous. It's interesting is that a movie about 00:22:07.621 --> 00:22:08.521 The modern era. 00:22:08.521 --> 00:22:17.821 Wouldn't have video game. Those kind of video games in it. Everybody be sitting there on their phones. Right. Right or on their couch at home. Yeah. 00:22:17.820 --> 00:22:29.700 I rewatched Fast Times at Ridgemont High the other day and it has lots of those kinds of scenes. It has lots of all of those movies have lots of those scenes where they're at the arcade. I will tell you. 00:22:31.288 --> 00:22:39.748 War games came out when 84 maybe. Okay. So, watch it. 00:22:40.911 --> 00:22:44.991 When Brock was maybe 10, 11, 12. 00:22:46.916 --> 00:22:57.836 It it still kind of held up. Yeah. Maybe even though it's, you know, it was interesting to go back and watch it. Mini decades later. 00:22:58.844 --> 00:23:04.544 To kind of see but you're right. Yeah. It's it's key to to that. It was kind of a long way from 00:23:04.956 --> 00:23:11.976 Yeah so that nowadays you know a filmmaker might use a video game or arcade or something like that as a point of setting the time frame that the 00:23:12.203 --> 00:23:20.423 The movie is supposed to occur. So, it is still something we have to think about. I didn't mean to be dismissive of it as the cellphone thing but, 00:23:20.998 --> 00:23:26.278 Anyway but maybe that is more transformative because it's a evoking. 00:23:26.976 --> 00:23:31.116 Yeah it's nostalgia factor. Yeah. Yeah. I don't know. 00:23:31.531 --> 00:23:38.131 Well I think it is something that we who do clearance work to start thinking about them and you know by analogy other things 00:23:38.544 --> 00:23:47.004 That that may show up you know I don't know if if you're character is holding something sort of a prop kind of a thing does it, 00:23:47.816 --> 00:23:54.536 Do we have to clear that you know whatever a thing that is an iconic symbol of a time, 00:23:55.693 --> 00:24:04.153 From anybody thought Atari was going to come out of the woodwork over there 00:24:04.371 --> 00:24:09.591 Forget the the squiggles and design on the side of the crystal caves box and. 00:24:12.185 --> 00:24:19.505 Had this been an ad that was running on broadcast TV cable yeah 00:24:19.801 --> 00:24:33.601 You know 32nd and 15 second cut down whatever it is they probably have a full clearance procedure I'm wondering because this was a six second campaign digital campaign that it didn't go through it 00:24:33.998 --> 00:24:42.338 Oh I don't know. I'm just we're just speculating because that's what we do. Yeah. Okay. Yeah. 00:24:44.109 --> 00:24:57.109 Okay. So, we have go ahead. A lot. What's the latest on this? Well, we have a new appellate decision. This time it involves take two interactive and the world wrestling entertainment. 00:24:58.754 --> 00:25:01.454 It's an app held decision in a case we'd first talked about 00:25:01.482 --> 00:25:15.942 A month or two ago. I think it was originally decided actually year two. Back in 2022 when the jury said that world wrestling and take to have to pay this tattoo artist Catherine Alexander $3750 in damages 00:25:16.318 --> 00:25:20.878 For recreating tattoos that she made on recipe Randy Orton, 00:25:21.422 --> 00:25:30.302 In the WWE twoK video game series without her permission. So the defendants appealed and tried to overturn the jury verdict and even though the 00:25:30.586 --> 00:25:35.686 Denial of fair use finding stands where we have here is, 00:25:36.879 --> 00:25:47.019 A pair of victory is that the right phrase? Hmm. The the fair use analysis went like this. The court thinks that the defendants used to the tattoos was clearly commercials. There's your 00:25:47.231 --> 00:25:52.151 Purpose and character. It's a create a superstar feature that allows users to take 00:25:52.228 --> 00:26:02.128 The tattoos and apply them to their their player avatar and those kinds of things. So, included for its expressive value not merely to display. 00:26:02.571 --> 00:26:10.791 Orton's likeness accurately. Next up the nature of the work obviously the art of creating a tattoo entails creative and expressive efforts. 00:26:11.249 --> 00:26:17.489 She testified and you know, about all the creative process that went into it. The amount taken, it was the whole tattoo. 00:26:18.712 --> 00:26:27.352 Pretty straightforward there. The evidence that that trial establishes the defense had previously altered other tattoos of wrestlers in order to avoid this very situation. 00:26:28.075 --> 00:26:33.235 And the market impact that the court says this factor ways and favor of the defense because, 00:26:33.719 --> 00:26:37.559 She had never licensed her tattoos for video games or any other medium. 00:26:39.003 --> 00:26:49.143 Her expert I'm sorry the plant the defendance expert also provided unrebutted testimony that the market for that kind of thing really doesn't exist so but on balance they found that 00:26:49.572 --> 00:26:54.372 You know it it wasn't a fair use but I'm damages the court said. 00:26:55.882 --> 00:27:06.202 She presented no evidence a trial that would support that amount of money as the damage award. No evidence of a hypothetical lost license fee or the value of an infringing of the infringing use to the infringer. 00:27:07.603 --> 00:27:10.963 The the expert from the the tattoo artist 00:27:11.015 --> 00:27:24.575 Said he believed a portion of the sales and profits of the video games were a tributable to the tattoos and question because they needed orton as one of these characters in the game and he needed to have his tattoos but, 00:27:25.131 --> 00:27:33.471 The other I'm sorry but didn't conduct an analysis of how much of that would be the appropriate amount the, 00:27:34.223 --> 00:27:40.703 Another expert didn't offer an opinion on damages so basically you know they said nope you you're not getting any 00:27:40.678 --> 00:27:47.278 Any meaningful damages and the court held that depicting tattoos and video games should could be infringing, 00:27:48.006 --> 00:27:57.786 But future planners are really going to have to show that they've registered their copyright so they can get the statue damages or anything prove the market so when I said Parik victory I mean, 00:27:58.259 --> 00:28:06.659 You know, yes, you win and no, you don't get any money. Hi, and all of attorney's fees court fees, all of that. 00:28:07.217 --> 00:28:08.957 If not a registered copyright. 00:28:09.584 --> 00:28:17.204 That's right so I I guess the practice where I have I I understand that tattoo artists. 00:28:18.424 --> 00:28:24.184 Depending on how prolific you are you probably aren't going to follow a cooperate application for every design right, 00:28:25.329 --> 00:28:35.469 You come up with could you potentially you know do a group work I've designed or if you're putting ink on famous people, 00:28:36.447 --> 00:28:41.127 Buy all those. Yeah, or when you're past clients become famous. 00:28:47.319 --> 00:28:49.819 And I also wonder if, 00:28:51.823 --> 00:29:00.583 If they hadn't had the ability where the game play it during game play you could take the tattoo and apply it to somebody else or reply it to yourself or whatever it is 00:29:00.915 --> 00:29:09.135 You know that if that was not going on would she have even won otherwise would it have been fair use because he was portrayed accurately 00:29:09.422 --> 00:29:17.042 And I believe we've had those rulings, correct? Where if the tattoos are part of the accurate portrayal of the person? It's not, 00:29:17.920 --> 00:29:24.280 And infringement. So, yeah, I think it's keeping up with if you're actually putting, 00:29:24.996 --> 00:29:35.196 Designing tattoos on people who are athletes, entertainers, performers, and maybe those need to really need to think about filing a copperhead application form. 00:29:36.195 --> 00:29:42.675 I just have the bizarre thought that is it possible a hairstylist who comes up with a really creative hairstyle for 00:29:43.019 --> 00:29:52.199 Someone who becomes a famous athlete or is a famous athlete could that be another kind of this kind of a case. Hope I didn't give some planes to turn you, 00:29:53.412 --> 00:29:55.732 I mean that's interesting. 00:29:58.313 --> 00:30:00.053 Let's fix it. 00:30:05.593 --> 00:30:12.233 Well, in in theater, we, you know, wardrobe designers and wig designers and makeup designers, they all 00:30:12.249 --> 00:30:14.049 Date sometimes do copyright there 00:30:14.130 --> 00:30:16.410 Designs. So, that's for me. 00:30:19.490 --> 00:30:23.850 Unique. Obviously, you have to get it away from the usefulness. Right. 00:30:28.010 --> 00:30:29.370 Well I don't know, 00:30:31.325 --> 00:30:37.805 Would cover up temperature head but I think if you have a very unique yeah. 00:30:38.842 --> 00:30:45.442 I'm thinking of that flight of seagulls haircut you know from from that artist those kinds of things that's really kind of, 00:30:45.953 --> 00:30:59.573 Almost not wham dish I guess you could say just something that you want. Okay. 11 o'clock. Yeah I know. We went to an 80s reunion. 00:31:01.850 --> 00:31:09.270 Hours and hours of 80s music reunion a couple years ago. Yup. He has no hair now. 00:31:09.791 --> 00:31:16.331 Is that right? Ignore did he pull it out as a wig just to make me feel like it was the 80s. Okay. So, anyway. 00:31:18.946 --> 00:31:27.926 Why don't we talk about UMG recordings versus Grande? We did it or we are okay. 00:31:28.336 --> 00:31:30.016 Gigi yeah. 00:31:32.026 --> 00:31:40.766 Are we skipping a kiss there? Oh, I did. Yes. Well, let's do this. Okay, so let's talk about Gigi Hadid. Defaulting in her copyright lawsuit, 00:31:41.665 --> 00:31:47.605 Over an Instagram post so what's going on here is one of those many cases where a celebrity, 00:31:48.492 --> 00:31:56.472 Grabs a photograph that appears on social media republishes and I'm there feed and get sued by the photographer in this case, 00:31:57.656 --> 00:32:04.556 Gigi Hadid is the celebrity in question and and she's been to court before on these kinds of infringement claims because she's posted pictures of herself, 00:32:05.228 --> 00:32:08.048 Without the permission of the copright owners typically the paparazzi, 00:32:08.711 --> 00:32:20.531 Here, she, in those cases, she won and at least one of those cases and she settled a couple of the others but you know, obviously, you were spending probably hundreds of thousands of dollars on legal fees. So, in August of 2023, 00:32:20.900 --> 00:32:30.020 She was sued for posting a the photographer in this case is Ulis Ramales it's a picture of Bella her sister 00:32:30.380 --> 00:32:38.720 On social media. So, she posted this picture taken by Romales. On social media without permission and, 00:32:39.742 --> 00:32:44.722 When he sued her she just defaulted on the case didn't show up for court didn't respond nothing 00:32:44.792 --> 00:32:52.832 Let the judgement default the court awarded Roma's $3000 in damages which is a fraction of the 30 grand he was asking for. 00:32:54.677 --> 00:33:06.197 $1140 and attorneys fees $440 in cost so for what would have just been a basic retainer just to talk to a lawyer she's out of the case having paid off the judgement 00:33:06.497 --> 00:33:14.537 In the neighborhood with five grand? Yeah. So the new question is why did she do that? Did she really? 00:33:14.986 --> 00:33:21.706 Not know she was sued clearly there was there must not have been any question on service because the court ruled. 00:33:21.819 --> 00:33:33.339 Yeah I mean the court said it was difficult to rule on her recklessness or knowledge of the infringement without her being present so she took the risk of being an what he called a well foreign fringement that 00:33:33.378 --> 00:33:35.418 Troubles damages or whatever but, 00:33:37.213 --> 00:33:44.293 I think it was a calculated risk that she took she just said look it's going to cost me less to pay off whatever damages he could actually prove 00:33:44.603 --> 00:33:53.663 Or get then it would pay me to fight and either win or lose. So, this is interesting that judge awarded. 00:33:56.370 --> 00:33:59.130 The judge did not award statue or damages. 00:34:00.277 --> 00:34:07.597 Even though if he brought a claim for 30 did he bring a claim for 30 1000 which would have been the minimum statue claim no, 00:34:08.549 --> 00:34:16.689 Sessions minimum is $750. Oh, that's right, 750. You're right. It is they can if they can show, 00:34:18.620 --> 00:34:20.240 750 in there. Right. Willfulness. 00:34:22.480 --> 00:34:28.040 Which is the maximum under statue damages. But the court decided no you know it's, 00:34:28.697 --> 00:34:34.877 It's not a maximum damages case it's a it's a pretty minor one I think it's a little bit of a statement by the court too, 00:34:35.646 --> 00:34:38.106 Hey wasting our time here, 00:34:40.453 --> 00:34:47.353 It's well what we're going to talk about this at the end it's almost one of these kinds of claims you think would have gone through this. 00:34:55.460 --> 00:34:58.200 Make this go away you know something like that, 00:35:00.691 --> 00:35:09.151 And and he said no I want 30 grand so he took a torton well okay so he gets something but it's certainly not going to cover his legal fees, 00:35:10.044 --> 00:35:16.704 Right and and you know when it's hard as the copyright representing the copyright owner stance is to say, 00:35:18.218 --> 00:35:25.838 Why am I working so hard if the artist can just go take my image and use it, 00:35:26.968 --> 00:35:38.908 Yeah, I mean, you know, the courts clearly saying, photographer's right. But he's also saying, not going to make anything an example of her with that kind of money damages in this case. Where can I organize? 00:35:41.912 --> 00:35:50.192 Worked out to be. Yeah. Because he was probably able to show this is what I make from licensing these images. That's probably where the judge got it. 00:35:50.770 --> 00:36:01.870 The ideas about the number anyway. Yeah, you have to wonder. I mean, maybe the attorneys didn't do a greatest job in presenting evidence of willfulness or something like that but they weren't asking for, 00:36:02.320 --> 00:36:10.120 Big, you know, trouble damages from from the willful infringer side. So, yeah, you approve what you can prove, I guess. Right, right. 00:36:10.188 --> 00:36:24.048 Okay, now let's talk about UMG versus Grande. So, we, I think, I feel like we've been talking about this case for a while but major record labels including UMG and other suede grande communications for contributory copyright 00:36:24.088 --> 00:36:25.588 Infringement claiming the 00:36:25.636 --> 00:36:36.436 ISP internet service provider knowingly allowed subscribers to use the ISP services for infringement despite over one point. 00:36:37.348 --> 00:36:39.268 Three 1 million notices, 00:36:40.166 --> 00:36:49.706 I guess from rights core who was there service to provide those notices after a jury found Grande liable and awarded 46. 8 million in damages 00:36:50.014 --> 00:36:51.154 Grinday's motions 00:36:51.356 --> 00:37:01.856 For judgement as a matter of law and a new trial were denied but on appeal the fifth circuit uphill the verdict but found the statue damages should be calculated at a per album, 00:37:02.419 --> 00:37:10.519 Not a per song right because the copyright act treats all parts of a compilation as one word for statue damage is purposes 00:37:10.646 --> 00:37:16.566 That's the court vacated the damages award in remanded for a new trial on damages now 00:37:16.607 --> 00:37:28.187 Hey the last time I kind of remember talking about that was years and years and years ago and one of the MPthree. Com cases where the court came back and said, 00:37:28.976 --> 00:37:31.616 This is a pur album not a, 00:37:32.613 --> 00:37:42.033 Per single calculation rate. So, I think this will be one we really need to be watching. Now, that we're in a age of. 00:37:43.713 --> 00:37:48.153 Singles again. Yeah. Yeah, right. I mean, 00:37:48.771 --> 00:38:00.151 Maybe it'll well I think it changes an internal ways of doing business at record labels but it's the Indian artist to you know they don't want to spend 10 times as much to register their copyright so they register the album, 00:38:00.988 --> 00:38:01.708 Image 00:38:01.924 --> 00:38:11.404 Yeah eh but here's the thing here's the other thing now there's certain limitations of how many tracks can be on one registration depending on how you do your registration, 00:38:12.511 --> 00:38:20.551 So you may have to file more than one to get everything captured so maybe that's beneficial but you're still filing a 00:38:20.838 --> 00:38:27.678 Hey you know I bundle a group of tracks that were published together on one recording, 00:38:30.368 --> 00:38:36.608 Yeah, I don't know. I, I, it's definitely going to make me rethink my recommendations. 00:38:37.294 --> 00:38:40.234 For clients on how we should do that. 00:38:44.274 --> 00:38:48.574 If it was one song on an album, it's one 10th of the whole work. 00:38:50.811 --> 00:38:54.451 For the amount and substantiality analysis. So, I think that 00:38:54.750 --> 00:39:00.570 At least for me I think it was in favor of individual registrations if you have the resources to make that. 00:39:02.456 --> 00:39:07.616 Registering. Yeah, you can still register the album as a compilation also. I don't know what the value really might be. 00:39:08.748 --> 00:39:22.848 For me, this is going to podcast episodes. Same question. Do you represent or photograph me? Well, photographs there's that exception that allows for unpublished works. You can do folios. I don't think the same rule applies because it's not true it is a compilation. 00:39:24.142 --> 00:39:32.962 Okay because you can yeah maybe that's it because that seems pretty severe if you published every, 00:39:34.000 --> 00:39:42.640 Your professional photographer, you you file a couple of photos in motion, right? That's right. And you do them everything captured in the month of August. So, 00:39:44.451 --> 00:39:49.251 Yeah. I mean, what are the odds that someone's going to infringe on three or four from one? Same 00:39:49.510 --> 00:39:56.890 Month's worth of work and you know maybe it's a calculated risk again but yeah this seems like well at the end of the look if listeners don't think of this is 00:39:57.117 --> 00:40:05.337 The way it should go if people feel like know the the law isn't fair when this you know if you can give us the right to register as a compilation. 00:40:05.912 --> 00:40:12.812 Any of the single compiled works should be fully protected. Hey, right to congress. For all the good that's going to do. But. 00:40:14.645 --> 00:40:27.305 Nah I guess I'm pretty cynical about Congress accomplishing anything anymore but well I think that's if you remember of trade organizations that have a voice that's that's who you need to be talking to to say 00:40:27.608 --> 00:40:31.868 This is an issue. Yeah. We we need you lobbying for us. 00:40:32.460 --> 00:40:41.520 To get this changed. Yeah and I think that there are organizations in the music industry, the photographers are well ropes in it. Yeah, and you know, the authors get full. Right. 00:40:43.242 --> 00:40:48.942 Yeah I mean I hate to think it you know just if you put if you publish a compilation as a as an art so your poet me right, 00:40:50.069 --> 00:40:57.269 25 poems in a in a book that you put out it was shame if one of them gets infringed and you can only claim, 00:40:58.144 --> 00:41:01.504 I'm sorry if 10 of them get in French somebody's circulates the whole book, 00:41:02.114 --> 00:41:10.454 You know, same issue. It's a 10 or is it one? So, 25 is one. So, what you had a, 00:41:11.692 --> 00:41:15.712 Just a book and we took one chapter 00:41:16.112 --> 00:41:28.532 Bruceton chapters I mean able but that thing goes to the amount of substantiality I guess but I mean some works are are capable of standing alone and some are chapters of individual book may not be, 00:41:29.543 --> 00:41:32.363 Yeah so the nature of the work is a factor, 00:41:32.826 --> 00:41:44.446 Yeah not just for failures. Sorry. Anyway, something to do thinking about and talking about with our clients of course and how to register and those things. 00:41:45.764 --> 00:41:51.744 Let's move on. Let's talk about this Lanimac case involving who would you have ever thought we'd be talking about? 00:41:52.931 --> 00:42:00.911 Rubber shoes on this show. So, the case is a false designation of origin. 00:42:01.231 --> 00:42:08.431 Case involving crocs it's the court of appeals for the federal circuit from October 3 a 00:42:08.532 --> 00:42:19.332 Presidential opinion regarding application of section 43 A of Valanamac the case starts as a patented infringement lawsuit brought by crocs against double diamond 00:42:19.425 --> 00:42:27.285 Distribution and it's affiliates including dogs and DAWGS Inc and Mojave Desert Holdings 00:42:27.599 --> 00:42:39.599 Which is going to be collectively called dogs after crocs Sue's dogs for pen infringement they counterplaimed alleging that Crox engaged in false advertising under the lanimax specifically, 00:42:40.230 --> 00:42:47.070 That dogs contended that crocs claims were about the products material marketed as crosslight 00:42:47.395 --> 00:42:55.255 And describing it as patented proprietary and exclusive misled consumers regarding the nature and qualities of crocs footwear 00:42:55.380 --> 00:42:57.780 Dogs argue that these representations, 00:42:58.288 --> 00:43:09.148 Created the impression that the products were made from a unique material distinct from that used by competitors and thereby implying that other brands offered inferior alternatives, 00:43:09.757 --> 00:43:17.557 Croc said no this doesn't warrant those 43 A kind of an action because there are presidents in the day star case and. 00:43:18.525 --> 00:43:32.205 And bathing sports inc versus molten USA and it's ruling the district court took crock side saying the terms and question were related to claims of inventorship rather than the products of nature or characteristics, 00:43:33.172 --> 00:43:39.112 Well they took it up on an appeal and the the the court 00:43:39.212 --> 00:43:49.352 The the peels panel for patterns I think, right? They scrutinize the disrecords interpretation particularly focused on the notion, 00:43:49.925 --> 00:43:58.805 That crocs claims were fundamentally about false designation of authorship rather than a misrepresentation of the products qualities and they concluded, 00:43:59.611 --> 00:44:06.031 That dogs allegations directly related to the nature characteristics and qualities of the shoes, 00:44:06.561 --> 00:44:15.321 And therefore did fall within 43 A oneB so the court emphasized that the false assertion of a patent couldn't be considered in isolation. 00:44:16.590 --> 00:44:25.710 You have to look at the broader contacts where consumers are misled about attributes of the product. So they reverse the district court summary judgement. Determined, 00:44:26.186 --> 00:44:33.326 Lower record edit in the dismissal of the claim claims and a dog gets to proceed, 00:44:33.964 --> 00:44:43.624 I guess with it's offensive defensive offense so the CEO of Double Diamond Distribution says this is a victory not only for his company but for 00:44:43.704 --> 00:44:58.284 Fair competition and competition and consumers that were adversely affected by crocs alleged deceptive advertising practices and crocs to of course said the opposite but it was a big disagreement and a they are evaluating options for the collection, 00:44:59.196 --> 00:45:03.856 Do you when you look at a pair of crocs do you care whether it's patented 00:45:04.176 --> 00:45:07.416 Material or a patented design for the ship, 00:45:13.988 --> 00:45:20.468 I don't know who in Crocs came out. Yeah. More than 10 years ago. At least yeah. 15 years ago. Probably. 00:45:23.233 --> 00:45:32.533 I kind of feel like we were told they were patented and unique and there was nothing else out there like a croc. Okay. 00:45:35.278 --> 00:45:39.478 I don't personally own any Crocs. I I remember. 00:45:39.960 --> 00:45:47.640 My young child at the time just that first pair of crocs was like a huge deal. Yeah. So, you know, 00:45:48.881 --> 00:46:03.341 So I I do have a real recollection at that time of thinking this is something new and a unique nobody has anything like this and now everything that's come after that is a knock off so maybe we were misled, 00:46:03.834 --> 00:46:10.854 Hey Facebook Joe consumer on the design of the shoe, 00:46:11.648 --> 00:46:23.588 Right so they had a design pack I think that's what this case is really about is you you're calling it a patented shoe or patented you know and your referring to this brand of of material the cross light 00:46:23.801 --> 00:46:28.001 Product. Yeah, I don't think it said it was cross patented cross light. 00:46:28.257 --> 00:46:41.757 Material I think it said patented crock shoes you know or something like that okay I guess it depends on how you worded your your marketing and advertising again maybe I'm just being out of turn here but I don't know that, 00:46:42.787 --> 00:46:51.907 Weather the material is patented or not affect any buyers decision is that really a material misrepresentation of the nature of the product, 00:46:53.085 --> 00:46:56.445 Hear the critics say, well, let's take it to the jury and see what they say. 00:46:58.397 --> 00:47:10.337 Yeah I don't I don't know that it is and maybe it was just kind of that unique design I mean that's in my recollection so it is a tribal issue of fact 00:47:10.720 --> 00:47:19.600 But the jury could come back and say yeah you said it but it you know I will the testimony will come out I'm sure and we'll we'll have more to talk about it some point, 00:47:20.200 --> 00:47:26.800 Hey right and will they have to do surveys to see if people actually were misled. 00:47:28.859 --> 00:47:33.099 Maybe they already have you know I'm we'll see. Yeah. We'll see. 00:47:33.261 --> 00:47:42.121 So talking about miss leading or potential misleading we've got a little bit of legal, 00:47:42.623 --> 00:47:56.163 Lawyers in lawsuits did talk about learner and row PC versus Brown in Strand and Shelly LLC is a legal battle unfolded over trademark rights in the digital market space prior 00:47:56.020 --> 00:48:03.640 Primarily running those good old google ads and Edwards. Learner and Rose a prominent Arizona law firm. 00:48:04.275 --> 00:48:08.055 I'll shoot because, 00:48:08.911 --> 00:48:13.831 The similarity to the the Broadway writing team of learner and low catches me. 00:48:16.431 --> 00:48:21.571 There you go. It does kind of sound like a group of, 00:48:23.017 --> 00:48:36.197 Songwriters and writers all of these running together too anyway so learner and row the law firm vital suit against the law firm of Brown Instrum and Shelly, 00:48:36.728 --> 00:48:46.568 Which operates under the name quote the accident law group the disputer rose when ALG for accident log used, 00:48:47.162 --> 00:48:48.602 Learner and role. 00:48:48.899 --> 00:49:00.239 As keywords in a Google ad marketing Google ad marketing which is a technique called conquesting causing aolgs to appear when users search for the other law firm 00:49:00.476 --> 00:49:01.796 Under learner and rap. 00:49:02.988 --> 00:49:11.748 Learner and reclaimed this practice violated the landamax trademark protections and amount to unfair competition and unjust enrichment the district required 00:49:11.702 --> 00:49:22.682 Court of Arizona sided initially with ALG granting summary judgement on the trademark infringement and unjust enrichment claims but it'll allow the unfair competition claim to proceed. 00:49:23.990 --> 00:49:37.250 ALG later move for reconsideration in the district court ultimately granted summary judgement on all claims learner and row appeals this decision to the ninth circuit and what are we got on a pill they 00:49:37.080 --> 00:49:44.220 They looked a trademark in instrument. Is the use of ALG? These the use of by a competitor. 00:49:44.532 --> 00:49:52.732 Of learner and row going to show a likelihood of confusion while the court acknowledge that the strength of 00:49:52.842 --> 00:49:58.902 The learner and road trademark weighed in the plainest favor it noted several other factors worked against the claim. 00:50:00.853 --> 00:50:07.073 I don't know that I agree with this consumer searching for legal services or generally cautious and discerning, 00:50:07.786 --> 00:50:17.866 I think it depends on what kind of legal service is you're searching for. That's Tamara's opinion. Hey, LG's ads were clearly labeled. Minimizing the chance for confusion. Now, 00:50:18.688 --> 00:50:19.528 Again, 00:50:20.632 --> 00:50:30.772 That's if you are a I think a savvy consumer that you realize that all of those stacked up at the top that say sponsored are really advertisements. 00:50:32.398 --> 00:50:34.858 Evidence of actual confusion was minimal. 00:50:35.027 --> 00:50:48.407 But there was some actual confusion learner and row presented evidence that out of over 100 1000 incidents of the ad showing up on a search of the plain of names there were 236 incidents, 00:50:49.061 --> 00:50:57.761 And I'm going to plug in here a reported consumer confusion the court noting that is less than. 25% yeah, 00:50:59.576 --> 00:51:09.596 So the court sided certain president that sophisticated consumers are less likely to be confused by keyword advertising I again don't know. 00:51:11.792 --> 00:51:19.952 Night circuit uphill to summary judgement for ALG on the claims of uncure unfair competition since the trademark claim failed lactic consumer 00:51:20.309 --> 00:51:27.329 What cause of the lack of consumer confusion rap kind of busted the unfair competition claim as well, 00:51:28.680 --> 00:51:40.440 And then it we get to on Justin Richmond the court affirm the dismissal of the unjust enrichment claim finding no evidence that ALG had unlawfully profited from its use of the keywords, 00:51:41.347 --> 00:51:48.847 So the ninth circuit of form the district affirmed the district court summary judgement in favor of ALG on all of the claims, 00:51:50.655 --> 00:51:51.915 No I remember 00:51:52.104 --> 00:52:05.484 I mean it's a long time ago 15 20 years ago but I remember there was this concept of initial interest confusion and courts were pretty routinely finding that if you used another brand's trademark as a keyword when you were purchasing advertising 00:52:05.599 --> 00:52:09.079 So targeting people who are searching for that phrase 00:52:09.443 --> 00:52:15.383 That was a form of infringement. It seems that that is gone by the wayside. Under the sleep. I think it has. 00:52:17.707 --> 00:52:24.427 Which is and you know, there was. I haven't done this for a client in a long time. There was a way, 00:52:26.313 --> 00:52:37.533 Through the Google system that if you knew your keywords, your name, your trademark were being used. You know, you could report it. No. I'm wondering now if that's even a thing. 00:52:39.078 --> 00:52:47.718 From the sounds of this kind of ruling it sounds like no that's perfectly okay go ahead and bid on your competitors Brandon you know competitor's names, 00:52:48.224 --> 00:52:51.764 So that. And it maybe as long as it comes up as a sponsored ad. 00:52:52.681 --> 00:53:02.521 Maybe that's it but a key factor there. Oh, and why would you not bid on if you're going to pay the money to bid on it? You surely would want to be at the top of the stack as a, you know, 00:53:02.979 --> 00:53:11.979 On the return search results and I tell Google every time somebody searches for for Coca Cola show them our ad, 00:53:13.521 --> 00:53:19.461 Seems to me well I don't know maybe that's because they're famous marks maybe that's going to be a different deal. 00:53:21.634 --> 00:53:28.394 Yeah maybe I mean there's part of me this is what no consumers should be offered the opportunity and if Pepsi's willing to pay for that. 00:53:29.194 --> 00:53:32.794 Put your head in front of him. It doesn't stop you from showing Coca Cola's results also. 00:53:33.965 --> 00:53:42.545 But I think it's the only people it's good for is the googles of the world because they're charging it can drive the cost of the advertising app the price of the advertising, 00:53:44.030 --> 00:53:47.930 So, I don't know. I, it is what it is. 00:53:49.062 --> 00:53:57.522 I thought initial interest confusion was still a thing but I I guess it's good to find out it's not. I don't do litigation in this area. So, 00:53:59.683 --> 00:54:00.923 Anyway yeah. 00:54:01.791 --> 00:54:10.131 Well, it's it will change, I think. It's I I just don't feel like I even have that many questions from clients anymore about. Right. 00:54:10.748 --> 00:54:24.488 Yeah. And this is probably why. Is it as completely on my wild way? I also agree with you that consumer searching for legal services are generally cautious and discerning. I think really over states it. 00:54:25.116 --> 00:54:36.516 I and I don't think the fact that they're labeled makes a difference either I think if I type you know people if I'm in a car accident they need a lawyer and 12 of them haven't already approached me from one avenue or another. 00:54:37.296 --> 00:54:42.336 I'm going to sit down to Google and type car accident lawyer. Los Angeles. 00:54:45.356 --> 00:54:46.836 Yeah. You know. 00:54:47.037 --> 00:54:59.397 Hey Facebook do that. Even if I just or I may just type I was in a car accident. Do I need a lawyer? Yeah. Yeah. So you know so showing them the ads that people who bid on these particular phrases. I mean, 00:55:00.216 --> 00:55:14.616 Maybe it doesn't really matter in this so you show my you know okay they search for these keywords some of those keywords show up in this phrase accident law group so we'll show the man's so 00:55:15.024 --> 00:55:19.824 Who's your big accident and injury lawyer in LA? I couldn't tell you. 00:55:20.345 --> 00:55:29.645 Okay. Well, so that they, yeah, well, yeah, there are here too but if I put in a search that said, I need to hire the Texas hammer. 00:55:30.571 --> 00:55:31.291 Yeah. 00:55:33.386 --> 00:55:45.566 I'm going to give his firms ad but I'm probably going to get help onto other ads too. Well, this is another component that I didn't see disgusting this case is accident law group is as close to descriptive as you get. 00:55:46.028 --> 00:55:53.348 Without it being. Well, but I think they were searching for were they searching for accident law group or were they searching 00:55:53.563 --> 00:55:57.763 Learner. They were searching for learner, learner, and row. Oh, okay. 00:55:58.424 --> 00:56:05.924 Hey yeah they were searching for that or it's funny that I can't think of the one in 00:56:06.283 --> 00:56:19.063 Texas beyond Texas hammer but in Tennessee it's been a habit and Larry H Parker out here in LA law firm and I'm in 00:56:19.265 --> 00:56:23.765 To see I assume I'm going to get their ads first but, 00:56:24.279 --> 00:56:35.619 Now I gotta go look and see who's bidding on Gordon Firemark for entertainment law yeah because I don't think I'm at the top of the stack but, 00:56:36.315 --> 00:56:39.075 You know but in this is why I. 00:56:42.471 --> 00:56:46.951 I never I always scroll down no matter what I'm searching for. 00:56:47.037 --> 00:56:54.657 Yeah I I've gotten the point where I sort of ignore the ads the same way I do on when they're on TV I do that's time for the joke, 00:56:57.669 --> 00:57:05.109 Anyway. Alright, can you believe we've had over 2 years of the copyright claims board? 00:57:06.428 --> 00:57:11.108 Reviewing these small claims. Yeah, I mean it doesn't. Infringements. 00:57:11.154 --> 00:57:18.654 Right, right? So, the CCB, the copper eye claims what we mentioned in the world earlier on the show. Is this voluntary virtual tribunal? 00:57:19.130 --> 00:57:28.790 That is a streamline alternative to going to the full blown federal court over copyrighting infringement disputes. So for claims 30 1000 up to $30 thousand. 00:57:29.140 --> 00:57:35.260 They started accepting claims in June of 2022. And now the board. 00:57:37.656 --> 00:57:46.056 Has issued AA report. I guess you could say. Analyzing the first 1000 or so claims in the, 00:57:47.118 --> 00:57:50.658 In the in the board. So, two and a half years, 00:57:50.872 --> 00:58:02.212 A 1000 just about a 1000. No, just right at a 1000. It was 900 some odds. I think that yeah, yeah, so this report analyzes those claims and tells us 00:58:02.629 --> 00:58:17.329 Some interesting information basically arriving at the conclusion that this CCB works it's doing what it was meant to do but it's interesting about two thirds of the claims are coming from self represented individuals, 00:58:19.211 --> 00:58:23.471 About 39% of all the claims involve pictorial works, 00:58:24.603 --> 00:58:38.163 Artwork, photographs, those kinds of things. Movies, literary, and sound recordings, add up to about 10% for each of those and California has the most claims. 168 of the claims came from California, 00:58:39.142 --> 00:58:41.722 In Texas was in second was it, 00:58:42.472 --> 00:58:55.232 So you know what I didn't check out anymore from New York may have been sick but Texas had a huge number of them as well. So of these 1000 claims most common resolution was. 00:58:57.314 --> 00:59:03.914 391 cases where the where the board found something was out of compliance and they rejected the claim. Or sent it back for 00:59:04.312 --> 00:59:17.512 Try again kind of stuff. Another 153 claimants failed to file a fulfilled to serve proper notices on the other party. 91 respondents opted out which is one of the things you can do if you're, 00:59:18.203 --> 00:59:26.363 Ask to participate. 79 settlements, 89 voluntary withdrawals, which also mean settlements, 00:59:26.907 --> 00:59:32.467 So only 23 cases were taken all the way through to a final determination, 00:59:33.444 --> 00:59:38.004 And I think it was even less than that. Sorry, I'm jumping over to the, 00:59:39.045 --> 00:59:50.665 Contested proceedings were nine out of final determinations and default proceedings were 14 so really is I look at that nine only nine, 00:59:51.763 --> 00:59:59.683 Hey sis went through with a plan of in a defendant all the way through out of the whole time this, 01:00:00.586 --> 01:00:05.386 Should I say this project? This is not a project. This court has been, 01:00:06.203 --> 01:00:18.863 The smart key cynical part of me says well how much we pay in these judges? Two and a half years. But then I also look at it and I say I'm sorry I'm jumping over and I over to. 01:00:21.543 --> 01:00:35.223 Yeah 391 dismissed for compliance issues did not get filed in the federal court system. Yeah. 01:00:35.739 --> 01:00:48.579 It may be that many wouldn't have been filed because of just the barriers to entry that are perceived 153 where they did they couldn't have service, 01:00:49.909 --> 01:00:54.649 Yeah. So, again, that kept another, 01:00:56.006 --> 01:00:59.666 153 out of the process of moving forward. 01:01:03.046 --> 01:01:05.486 Okay, I better hire a lawyer or 01:01:05.816 --> 01:01:10.376 No I don't know or maybe they got that's what I don't know and I don't know if you could 01:01:10.767 --> 01:01:19.647 Burst this out either how many of these that did not go forward or refilled again. Yeah. You know, yeah. Yeah. 01:01:21.558 --> 01:01:29.178 Another interesting thing to be would be how many of all of those cases were filed by the same planners? How many people, 01:01:29.717 --> 01:01:37.517 Rather than the number of cases. I think it would be interesting to see because I would batch it up at those 168 claims in California, 01:01:38.323 --> 01:01:41.023 The majority of them probably come from the same 25. 01:01:42.302 --> 01:01:52.202 10 playlists and I don't know but I'm that would be my guess is that there are some people who are using the system a lot and it's the ones that 01:01:52.475 --> 01:01:58.595 They're probably the ones that have started to figure out how it works and make it work and get the notices thinking of those kind of things. So, 01:01:59.181 --> 01:02:09.561 Add something worth looking at. I didn't think to explore until just now. Yeah, it and I haven't gone in there and dug around in a while. I appreciate. I know we've got. 01:02:12.424 --> 01:02:19.384 Kind of a summary here from Bailee I can't play tourism today I can't his first name is blanking on me, 01:02:21.912 --> 01:02:25.752 He's been going in and digging around and taking a look at him is just to, 01:02:28.097 --> 01:02:34.817 Hey this this the one's getting dismissed for non compliance I mean if you do go in and read any of them. 01:02:36.478 --> 01:02:47.818 I mean it is a lot I suspect for the judges or the paralegals that were how their staff their clerks to weed through because we all have been on the receiving end of 01:02:47.974 --> 01:02:53.974 Letters are communications or clients have where it is not a fully thought out vetted, 01:02:55.446 --> 01:03:03.006 All the elements of a cause of action. Clearly on display. So, I I don't know how, 01:03:04.493 --> 01:03:14.633 There can be an improvement in handling of invalid claims and assisting users. I don't know. Well, if that's can be the report talks about, 01:03:16.159 --> 01:03:28.439 There's room for improvement in the sense of making more resources available for the users of the system and so better explanations of what service process is, how to serve process, those kinds of things. 01:03:29.843 --> 01:03:32.483 Probably could make a difference in that arena, 01:03:33.057 --> 01:03:42.417 To get more people toward a real resolution rather than further frustration with the system you know sure and I and it just makes me think back to the, 01:03:42.897 --> 01:03:48.357 Days of the judges clerk or the court clerk saying, 01:03:49.495 --> 01:03:57.835 I can't advise you I can't tell you how to practice law or I can advise you on this you know this is out you just have to hear the piece of paper yeah. 01:03:59.470 --> 01:04:01.990 And you need to read it and you need to, 01:04:02.863 --> 01:04:09.583 Yeah. So, this is a situation where a lot of it is just interpreting the statute or interpreting, 01:04:10.155 --> 01:04:23.895 The rules of federal procedure or the rules that have been promulgated for this particular court and so you know I think it bears looking at the rule and saying is this stated as clearly and simply as possible for the user, 01:04:24.451 --> 01:04:30.091 To do or do they need to have someone who's familiar with illegal language? Par set for them. 01:04:31.949 --> 01:04:37.629 Because I think the ideas they should have to and sports have got this, 01:04:38.098 --> 01:04:49.918 Worked out for the large part I think. I think they have and I think you raise the interesting question of out of all of these almost a 1000 that have been filed. How many actual, 01:04:51.115 --> 01:04:54.635 Plaintiffs distinct plaintiffs are there, 01:04:55.311 --> 01:05:05.931 It wouldn't surprise me to see your name like Haggy B show up a lot in that list I've searched for that and there's not a lot okay, 01:05:06.807 --> 01:05:10.767 So but I'm wondering just even, 01:05:11.821 --> 01:05:20.221 Small to midsize or even larger businesses that are legitimately using the system to file these claims. 01:05:21.336 --> 01:05:23.796 Or photographers who are savvy, 01:05:24.631 --> 01:05:33.751 You know, other content creators who are savvy, who are using this to proceed. Yeah, now it makes me think, oh, I should do a little more digging myself in my spare time. 01:05:34.011 --> 01:05:37.431 Maybe I'll sit on the beach and do that today. 01:05:39.551 --> 01:05:47.991 Yeah, that's right. Instead, I'm reading, you know, the second book in the Lincoln Lawyer series. So, which I, yeah, which happens to be, 01:05:49.297 --> 01:06:01.117 Series three which just came out on Netflix because you know I'm on vacation. Right. So. That's not Grisham. That's it's Michael. Click the lawyers. Michael Conley. 01:06:01.891 --> 01:06:15.451 Good stuff. Both good stuff. Good stuff. So, anyway, we will continue. I think they come out with this report annually. I recall we did an update about this time last year. We'll see what's changed if 01:06:15.845 --> 01:06:24.725 You know, we see a big jump. If we more than double in the next year, the amount of cases that have been filed. Yes, indeed. Yes, indeed. So, 01:06:25.072 --> 01:06:31.552 And and maybe we'll have some maybe or maybe not we could have some real life. Experience with it. 01:06:32.391 --> 01:06:35.691 It still seems to fall under the litigation category for sure. 01:06:38.583 --> 01:06:48.703 Well, listen. We've we've batted around enough. I think that brings us to the end of this episode of entertainment lofted and as always a big thank you to our loyal listeners for 01:06:48.775 --> 01:06:55.255 Spending your time with us we do appreciate we're grateful for you you're here year after all why we do this 01:06:55.536 --> 01:07:03.636 And if you have feedback for us and we hope that you do please leave it for us go over to entertainment law update. Com and there's a little, 01:07:04.358 --> 01:07:17.378 Website red tag widget on the right side I think it's on the right side and you can you know use that and leave us a little voice message and maybe we'll play it on the air or you can just send us an email the emails entertainment law update 01:07:17.411 --> 01:07:18.311 At Gmail 01:07:18.393 --> 01:07:32.973 Dot com and I'm still going to call it Twitter even though it's ex our handle on that service is app and law update and law update and Tamara aloha thanks as always to you how can listeners reach you, 01:07:33.570 --> 01:07:41.730 And mahalo. Hey folks can find me online T Ben@Law. Com create protect. Com. That'll get you to, 01:07:42.591 --> 01:07:48.591 My blog, my website, everything I've got going on and create Protect. Com. T Bennette. 01:07:49.559 --> 01:08:01.919 Oh sorry at Tamara Bennett on most social media including Twitter slash X and LinkedIn as well so folks can buy me there thanks Gordon and thanks for accommodating, 01:08:02.675 --> 01:08:08.255 That kind of little bit of a time change for you and I but same day same channel so glad to 01:08:08.626 --> 01:08:19.906 Get our recording in for October. Yeah, thank you for making the time while you're on vacation. I appreciate it. So, I am Gordon Firemark from Los Angeles and my website is Firemark. Com. 01:08:19.968 --> 01:08:26.148 You can email me G firemark@Firemark. Com and G Firemark is the handle on 01:08:26.468 --> 01:08:35.228 All but LinkedIn where no I'm LinkedIn as G Farm Mark too so all but Instagram where it's my full name Gordon Firemark but social media is good 01:08:35.461 --> 01:08:44.641 G firemark that'll get you and let's say thank you to our volunteer contributors the managing editor of the show now for quite a long time and we love having him just back from his, 01:08:45.093 --> 01:08:57.093 His honeymoon is John Janasek. They got married a while back but they took the honeymoon last month. Charles Thorn is part of the team as well as Alexis Allen and Violet Jang, Tasha Spear, and Dawson Holder 01:08:57.472 --> 01:09:07.552 Are the newest editions to the team and if you would like to become a part of our entertainment law update family of contributors reach out using that email address it's entertainment law update 01:09:07.869 --> 01:09:13.449 At Gmail. Com and that brings us to the end of this episode. 01:09:13.680 --> 01:09:43.318 Music.