It's entertainment law update episode 173 for October 30.
Music.
Hi everybody and welcome to another episode of Entertainment Law update where each month we pull together our round up of
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,
And aloha calling in and videoing in from Hawaii today I'm Tamara Benette
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.
That other meaning of Maui while here.
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.
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.
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
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
So
Well, I am super fun.
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.
Isn't that one of the deadly sounds?
I shall tempt tonight. So,
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
I will be at the UTCLE conference the entertainment law institute for the Texas bar.
Sioli program yo are you not going to make it or are you going to be there,
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,
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,
There is a
Preapproved CLA credit in more than a handful of states including Texas Tennessee, Georgia.
Mm hmm. Several others. So,
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
I haven't done a virtual through this CLE provider before but I think they have online chat and communication so,
You know if we do I'll try and pop in and
Chat with folks if they want to or whatever.
Strike sort of shake out of last year's strikes and that'll be interesting. I,
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.
I think it's Friday afternoon not Thursday afternoon.
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
Wow
Yeah so they just had their big this is their 50th year of Austin City limits on on CBS
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
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
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.
Or that week of November so I just finally cancelled my hotel and said it's it's just not going to happen so
Well I'll be there to to wave the entertainment law update fly. There you go. Thank you. Alright.
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.
Reclaiming their masters from the record label,
This is little joe records versus Ross and they they were reclaiming their sound recordings from the 1990 deal they had,
Made a section 203,
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,
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.
Issue this notice of termination and,
They've been fighting over it. The the master recordings were transferred well the yeah they were transferred to Luke records
And that's a record label owned by the tax lawyer who represented the the label back in in.
In those early days. Anyway, he had bought the recordings out of bankruptcy after the band had gone bankrupt
I guess in the early 2000's and he bought him for $800 thousand so they filed their notice and,
Wineburger contested the validity of the notice saying that the bankruptcy,
Ended their right to terminate that they had forfeited the termination right by declaring bankruptcy oh in the 90s
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
That might be benefiting from their creative work and he said these rights are inherently personal,
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.
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
Campbell Russell won did not they were not employees it was not work made for hire
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.
I think this is.
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.
Not related to terminations but related to bankruptcy and ability to get the actual physical master recordings out of bankruptcy,
And and Cindy Lazari who's who is passed away and we actually
Sports entertainment law section state bar awards gives an award,
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
All kind of this ongoing
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
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,
I don't think that
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.
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,
Partnership agreement kind of thing.
And it specifically listed all three,
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.
And the drawers are all selected no on all three tick boxes. Okay. Yeah. So. So, it was not a question of.
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.
Or just been recording under the,
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,
Hey Facebook we would see a difference because that was the weights case right? Right. Yeah. Because he record John I
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,
If these services were provided through your loan out then the
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
We already know most of the time they don't do publishing under under a group entity.
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,
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.
Until we got these decisions that. Yeah. This was going to be an issue.
When the courts did their interpretation and application of the termination provisions under
203 and and I suspect also intersection 304 it would be the,
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,
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,
You know just wondering,
As well you know we don't know what all the testimony was in front of the jury if.
If he was a good witness he just because of there all of their relationships over the years well and they'd actually may
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.
So we have one more to add to the the list of where we are
Finally getting a body of case law related to calculate grant terminations that it's they've been again these
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.
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,
Okay so I don't. Okay. You know, I just wasn't a big
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,
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
6 seconds of advertisement.
Excuse me is Atari interactive inc versus State Farm Mutual Auto Insurance Company
Out of the northern district of Texas from the end of September 27 of 2024 so,
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,
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,
Yeah they were sued for copywriter fringe and a legend that they
The use of a toys iconic crystal castles arcade cabinet design in a state for advertisement was more than a diminimous used.
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
Center of the screen to which is brooms on the cabinets more key but left portions of the games original
Artwork that was on the cabinet box visible.
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.
Reviews and then a Tory had failed to state claims for unjust enrichment business asparagement unfair competition and violations of the Texas insurance code
That was a unique one to put in there but anyway we'll see.
On the DominumSU Satari argue that the arcade cabinet design featured prominently in the advertisement was recognizable,
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,
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.
Therefore the court ruled that the use was not diminimous allowing the claim to proceed,
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
Clearly it was part of an advertisement even though it was only 6 seconds long there was no transformation.
To the use and so that way in factor of state sorry of a torry nature
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.
Even though the marquee was altered that wasn't enough it was still a deniable as crystal castles.
So again going against,
State Farm affect on the market. Hm. At Tari's allegations that it has a robust licensing licensing business made it possible.
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
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.
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.
But the defense moved to dismissatories unjust enrichment claim arguing that Texas law does not recognize unjust enrichment as an independent cause of action.
The court agreed sighting several presidents so it's gotta be,
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.
Didn't show specifics sufficient facts for that.
Nor did they find that they were lost profits and damage damage to the reputation because that occurred. Huh.
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.
Misleading statements in an ad for insurance. Okay. I sort of see the
Thinking by bringing that claim but to me it seems like the court is just saying look you got your copyright remedy
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,
It is,
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,
The ad. And I suspect.
The design and now it's not the design of how the cabinets the artwork on the arcade cattle and the arcade game cabinet,
Is there for the whole 6 seconds?
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,
Group summary judgement. Yeah. I get I think so but was it really does the fair used defense?
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
The poster of the quilt in the background of the TV show Rock,
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
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
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,
Hey to me too and I guess they could state form perhaps could have achieved the exact same purpose,
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.
Convey the exact same thing
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
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.
Films TV shows where there in an arcade. Right.
Exactly. Showing all of the different games. I mean, Anatari probably had half of them at the time, you know. Hi. So.
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,
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,
Yeah. That would have been the opening scene of war games has meant about playing,
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
The modern era.
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.
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.
War games came out when 84 maybe. Okay. So, watch it.
When Brock was maybe 10, 11, 12.
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.
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
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
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,
Anyway but maybe that is more transformative because it's a evoking.
Yeah it's nostalgia factor. Yeah. Yeah. I don't know.
Well I think it is something that we who do clearance work to start thinking about them and you know by analogy other things
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,
Do we have to clear that you know whatever a thing that is an iconic symbol of a time,
From anybody thought Atari was going to come out of the woodwork over there
Forget the the squiggles and design on the side of the crystal caves box and.
Had this been an ad that was running on broadcast TV cable yeah
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
Oh I don't know. I'm just we're just speculating because that's what we do. Yeah. Okay. Yeah.
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.
It's an app held decision in a case we'd first talked about
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
For recreating tattoos that she made on recipe Randy Orton,
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
Denial of fair use finding stands where we have here is,
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
Purpose and character. It's a create a superstar feature that allows users to take
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.
Orton's likeness accurately. Next up the nature of the work obviously the art of creating a tattoo entails creative and expressive efforts.
She testified and you know, about all the creative process that went into it. The amount taken, it was the whole tattoo.
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.
And the market impact that the court says this factor ways and favor of the defense because,
She had never licensed her tattoos for video games or any other medium.
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
You know it it wasn't a fair use but I'm damages the court said.
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.
The the expert from the the tattoo artist
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,
The other I'm sorry but didn't conduct an analysis of how much of that would be the appropriate amount the,
Another expert didn't offer an opinion on damages so basically you know they said nope you you're not getting any
Any meaningful damages and the court held that depicting tattoos and video games should could be infringing,
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,
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.
If not a registered copyright.
That's right so I I guess the practice where I have I I understand that tattoo artists.
Depending on how prolific you are you probably aren't going to follow a cooperate application for every design right,
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,
Buy all those. Yeah, or when you're past clients become famous.
And I also wonder if,
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
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
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,
And infringement. So, yeah, I think it's keeping up with if you're actually putting,
Designing tattoos on people who are athletes, entertainers, performers, and maybe those need to really need to think about filing a copperhead application form.
I just have the bizarre thought that is it possible a hairstylist who comes up with a really creative hairstyle for
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,
I mean that's interesting.
Let's fix it.
Well, in in theater, we, you know, wardrobe designers and wig designers and makeup designers, they all
Date sometimes do copyright there
Designs. So, that's for me.
Unique. Obviously, you have to get it away from the usefulness. Right.
Well I don't know,
Would cover up temperature head but I think if you have a very unique yeah.
I'm thinking of that flight of seagulls haircut you know from from that artist those kinds of things that's really kind of,
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.
Hours and hours of 80s music reunion a couple years ago. Yup. He has no hair now.
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.
Why don't we talk about UMG recordings versus Grande? We did it or we are okay.
Gigi yeah.
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,
Over an Instagram post so what's going on here is one of those many cases where a celebrity,
Grabs a photograph that appears on social media republishes and I'm there feed and get sued by the photographer in this case,
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,
Without the permission of the copright owners typically the paparazzi,
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,
She was sued for posting a the photographer in this case is Ulis Ramales it's a picture of Bella her sister
On social media. So, she posted this picture taken by Romales. On social media without permission and,
When he sued her she just defaulted on the case didn't show up for court didn't respond nothing
Let the judgement default the court awarded Roma's $3000 in damages which is a fraction of the 30 grand he was asking for.
$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
In the neighborhood with five grand? Yeah. So the new question is why did she do that? Did she really?
Not know she was sued clearly there was there must not have been any question on service because the court ruled.
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
Troubles damages or whatever but,
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
Or get then it would pay me to fight and either win or lose. So, this is interesting that judge awarded.
The judge did not award statue or damages.
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,
Sessions minimum is $750. Oh, that's right, 750. You're right. It is they can if they can show,
750 in there. Right. Willfulness.
Which is the maximum under statue damages. But the court decided no you know it's,
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,
Hey wasting our time here,
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.
Make this go away you know something like that,
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,
Right and and you know when it's hard as the copyright representing the copyright owner stance is to say,
Why am I working so hard if the artist can just go take my image and use it,
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?
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.
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,
Big, you know, trouble damages from from the willful infringer side. So, yeah, you approve what you can prove, I guess. Right, right.
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
Infringement claiming the
ISP internet service provider knowingly allowed subscribers to use the ISP services for infringement despite over one point.
Three 1 million notices,
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
Grinday's motions
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,
Not a per song right because the copyright act treats all parts of a compilation as one word for statue damage is purposes
That's the court vacated the damages award in remanded for a new trial on damages now
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,
This is a pur album not a,
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.
Singles again. Yeah. Yeah, right. I mean,
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,
Image
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,
So you may have to file more than one to get everything captured so maybe that's beneficial but you're still filing a
Hey you know I bundle a group of tracks that were published together on one recording,
Yeah, I don't know. I, I, it's definitely going to make me rethink my recommendations.
For clients on how we should do that.
If it was one song on an album, it's one 10th of the whole work.
For the amount and substantiality analysis. So, I think that
At least for me I think it was in favor of individual registrations if you have the resources to make that.
Registering. Yeah, you can still register the album as a compilation also. I don't know what the value really might be.
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.
Okay because you can yeah maybe that's it because that seems pretty severe if you published every,
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,
Yeah. I mean, what are the odds that someone's going to infringe on three or four from one? Same
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
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.
Any of the single compiled works should be fully protected. Hey, right to congress. For all the good that's going to do. But.
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
This is an issue. Yeah. We we need you lobbying for us.
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.
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,
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,
I'm sorry if 10 of them get in French somebody's circulates the whole book,
You know, same issue. It's a 10 or is it one? So, 25 is one. So, what you had a,
Just a book and we took one chapter
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,
Yeah so the nature of the work is a factor,
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.
Let's move on. Let's talk about this Lanimac case involving who would you have ever thought we'd be talking about?
Rubber shoes on this show. So, the case is a false designation of origin.
Case involving crocs it's the court of appeals for the federal circuit from October 3 a
Presidential opinion regarding application of section 43 A of Valanamac the case starts as a patented infringement lawsuit brought by crocs against double diamond
Distribution and it's affiliates including dogs and DAWGS Inc and Mojave Desert Holdings
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,
That dogs contended that crocs claims were about the products material marketed as crosslight
And describing it as patented proprietary and exclusive misled consumers regarding the nature and qualities of crocs footwear
Dogs argue that these representations,
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,
Croc said no this doesn't warrant those 43 A kind of an action because there are presidents in the day star case and.
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,
Well they took it up on an appeal and the the the court
The the peels panel for patterns I think, right? They scrutinize the disrecords interpretation particularly focused on the notion,
That crocs claims were fundamentally about false designation of authorship rather than a misrepresentation of the products qualities and they concluded,
That dogs allegations directly related to the nature characteristics and qualities of the shoes,
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.
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,
Lower record edit in the dismissal of the claim claims and a dog gets to proceed,
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
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,
Do you when you look at a pair of crocs do you care whether it's patented
Material or a patented design for the ship,
I don't know who in Crocs came out. Yeah. More than 10 years ago. At least yeah. 15 years ago. Probably.
I kind of feel like we were told they were patented and unique and there was nothing else out there like a croc. Okay.
I don't personally own any Crocs. I I remember.
My young child at the time just that first pair of crocs was like a huge deal. Yeah. So, you know,
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,
Hey Facebook Joe consumer on the design of the shoe,
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
Product. Yeah, I don't think it said it was cross patented cross light.
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,
Weather the material is patented or not affect any buyers decision is that really a material misrepresentation of the nature of the product,
Hear the critics say, well, let's take it to the jury and see what they say.
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
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,
Hey right and will they have to do surveys to see if people actually were misled.
Maybe they already have you know I'm we'll see. Yeah. We'll see.
So talking about miss leading or potential misleading we've got a little bit of legal,
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
Primarily running those good old google ads and Edwards. Learner and Rose a prominent Arizona law firm.
I'll shoot because,
The similarity to the the Broadway writing team of learner and low catches me.
There you go. It does kind of sound like a group of,
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,
Which operates under the name quote the accident law group the disputer rose when ALG for accident log used,
Learner and role.
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
Under learner and rap.
Learner and reclaimed this practice violated the landamax trademark protections and amount to unfair competition and unjust enrichment the district required
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.
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
They looked a trademark in instrument. Is the use of ALG? These the use of by a competitor.
Of learner and row going to show a likelihood of confusion while the court acknowledge that the strength of
The learner and road trademark weighed in the plainest favor it noted several other factors worked against the claim.
I don't know that I agree with this consumer searching for legal services or generally cautious and discerning,
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,
Again,
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.
Evidence of actual confusion was minimal.
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,
And I'm going to plug in here a reported consumer confusion the court noting that is less than. 25% yeah,
So the court sided certain president that sophisticated consumers are less likely to be confused by keyword advertising I again don't know.
Night circuit uphill to summary judgement for ALG on the claims of uncure unfair competition since the trademark claim failed lactic consumer
What cause of the lack of consumer confusion rap kind of busted the unfair competition claim as well,
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,
So the ninth circuit of form the district affirmed the district court summary judgement in favor of ALG on all of the claims,
No I remember
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
So targeting people who are searching for that phrase
That was a form of infringement. It seems that that is gone by the wayside. Under the sleep. I think it has.
Which is and you know, there was. I haven't done this for a client in a long time. There was a way,
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.
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,
So that. And it maybe as long as it comes up as a sponsored ad.
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,
On the return search results and I tell Google every time somebody searches for for Coca Cola show them our ad,
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.
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.
Put your head in front of him. It doesn't stop you from showing Coca Cola's results also.
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,
So, I don't know. I, it is what it is.
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,
Anyway yeah.
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.
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.
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.
I'm going to sit down to Google and type car accident lawyer. Los Angeles.
Yeah. You know.
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,
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
Who's your big accident and injury lawyer in LA? I couldn't tell you.
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.
Yeah.
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.
Without it being. Well, but I think they were searching for were they searching for accident law group or were they searching
Learner. They were searching for learner, learner, and row. Oh, okay.
Hey yeah they were searching for that or it's funny that I can't think of the one in
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
To see I assume I'm going to get their ads first but,
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,
You know but in this is why I.
I never I always scroll down no matter what I'm searching for.
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,
Anyway. Alright, can you believe we've had over 2 years of the copyright claims board?
Reviewing these small claims. Yeah, I mean it doesn't. Infringements.
Right, right? So, the CCB, the copper eye claims what we mentioned in the world earlier on the show. Is this voluntary virtual tribunal?
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.
They started accepting claims in June of 2022. And now the board.
Has issued AA report. I guess you could say. Analyzing the first 1000 or so claims in the,
In the in the board. So, two and a half years,
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
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,
About 39% of all the claims involve pictorial works,
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,
In Texas was in second was it,
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.
391 cases where the where the board found something was out of compliance and they rejected the claim. Or sent it back for
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,
Ask to participate. 79 settlements, 89 voluntary withdrawals, which also mean settlements,
So only 23 cases were taken all the way through to a final determination,
And I think it was even less than that. Sorry, I'm jumping over to the,
Contested proceedings were nine out of final determinations and default proceedings were 14 so really is I look at that nine only nine,
Hey sis went through with a plan of in a defendant all the way through out of the whole time this,
Should I say this project? This is not a project. This court has been,
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.
Yeah 391 dismissed for compliance issues did not get filed in the federal court system. Yeah.
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,
Yeah. So, again, that kept another,
153 out of the process of moving forward.
Okay, I better hire a lawyer or
No I don't know or maybe they got that's what I don't know and I don't know if you could
Burst this out either how many of these that did not go forward or refilled again. Yeah. You know, yeah. Yeah.
Another interesting thing to be would be how many of all of those cases were filed by the same planners? How many people,
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,
The majority of them probably come from the same 25.
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
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,
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.
Kind of a summary here from Bailee I can't play tourism today I can't his first name is blanking on me,
He's been going in and digging around and taking a look at him is just to,
Hey this this the one's getting dismissed for non compliance I mean if you do go in and read any of them.
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
Letters are communications or clients have where it is not a fully thought out vetted,
All the elements of a cause of action. Clearly on display. So, I I don't know how,
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,
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.
Probably could make a difference in that arena,
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,
Days of the judges clerk or the court clerk saying,
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.
And you need to read it and you need to,
Yeah. So, this is a situation where a lot of it is just interpreting the statute or interpreting,
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,
To do or do they need to have someone who's familiar with illegal language? Par set for them.
Because I think the ideas they should have to and sports have got this,
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,
Plaintiffs distinct plaintiffs are there,
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,
So but I'm wondering just even,
Small to midsize or even larger businesses that are legitimately using the system to file these claims.
Or photographers who are savvy,
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.
Maybe I'll sit on the beach and do that today.
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,
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.
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
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,
And and maybe we'll have some maybe or maybe not we could have some real life. Experience with it.
It still seems to fall under the litigation category for sure.
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
Spending your time with us we do appreciate we're grateful for you you're here year after all why we do this
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,
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
At Gmail
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,
And mahalo. Hey folks can find me online T Ben@Law. Com create protect. Com. That'll get you to,
My blog, my website, everything I've got going on and create Protect. Com. T Bennette.
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,
That kind of little bit of a time change for you and I but same day same channel so glad to
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.
You can email me G firemark@Firemark. Com and G Firemark is the handle on
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
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,
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
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
At Gmail. Com and that brings us to the end of this episode.
Music.