Music.
Hello there, hello there. It's nice to be with you again for this episode of Entertainment Law update. From Los Angeles, California, I am Gordon Firemark.
Hey from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
It's been a little longer than usual since we had our last recording because of various scheduling things but,
Received some good feedback on our
On our podcast thon episode and that interview that was nice yeah. Yeah that was I was so glad you said let's do this. What a great what a great opportunity. So I hope the podcast
Fine I keep saying podcast the phone but I don't think it has in it you know I hope that was
Don't only fantastic for music cares. Org who we highlighted but I'm sure many many other nonprofits that were highlighted over a 1000 week of time apparently and pretty
Pretty exciting to be able to you know give back a little do something for the community and,
And organizations we care about so that's great. Yeah. And then and then we're a little longer because I took vacation and then I I have to kind of shout this from the mountaintops because it doesn't occur.
Ever. I was in trial last week.
So you know that's just such an honor for a non litigation attorney. So we had to push out one more week. Yeah. And that I don't think I'm giving anything away by saying that you told me that the,
The trial team mute you had a jury verdict in your favor which is wonderful.
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April is our anniversary. We began the show in April of 2009. So, here we are in. I can't.
Leave it. Set 17 years, right?
Starting our 17th year. So, okay. Exciting. I'll tell you in the world of podcasting, that is true longevity. So.
Thank you and congratulations and happy part anniversary,
Yeah and right back at you I mean you know I tell people and I actually don't think it's me being,
Doing puffery which is sometimes illegal term that we are the longest continually running entertainment law,
Podcast. Yes. I really think we are. There may be intellectual property ones that have run as long but
I just do not aware of a entertainment law continuously running podcast,
For 16 plus years 15 plus years so.
Definitely in in in a very small group you know good company and,
And I'm I'm very proud of what we've been doing and and thrilled to have had you as a
Partner and teammate in this the whole time? Yeah. And let's keep it going, you know? Yeah, let's let's do so. Folks, we would love your not only would we appreciate your feedback, comments, what can we do different? But
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That encouraging your friends and colleagues to follow the show is how we continue to grow and it would mean the world to us so,
And if you love of what we're doing testimonial or a quick five star review that'd be wonderful. So, thank you
So, we do want to begin the show just by acknowledging someone that I knew a little bit in Tamara, you, you indicated that you were you know, collegial, colleague, type, connection with this fellas, Steve, Weaver.
Who many of our listeners probably know passed away on April 12.
At 76 years old he had a 40 year career as an entertainment attorney mostly in Memphis and then Nashville Tennessee
Representing recording artist songwriters record companies publishers, literary authors, film producers, record producers, and others. He and I, exchange.
Referrals from time to time I interviewed him on another podcast I did a few years ago and and I considered him AA distant but
But a friend nonetheless and we
Extend our condolences to his friends, family, and colleagues and I'd also say the world was better place for Steve having been in it and he'll be missed.
If you knew him the family well we have a link in our show notes to the announcement if you want to
Send something to the family whatever we can do that. Anyway, let's jump into our news stories now for for this month.
The first off is a supreme court denying sir situation so the case is called McGucken versus Valnette and it started,
Well, the history is that in 20 seven 2007 the ninth circuit
Decided the case of perfect 10 versus Google finding that Google's image search thumbnails would not be copyrighting fringement because they were only displaying the pictures from the third party website
As a link as a an embed and didn't have a copy of the pictures on Google servers that was called the the became the server test. Sites like Instagram
Also created similar functionality in order to engage in the same display of pictures without copying and the problem is courts haven't been uniform
And following the server test that came out of this. It's a ninth circuit decision. Different courts of adopted lots of different tests. So, all of the nights are could follow us the test, the the other,
Jurisdictions it's all over the map so this photographer McGucken.
Lost a corporate infringement case in the ninth circuit and ask the supreme court to rule that the server test isn't consistent with the textual interpretation of the copyright act,
But supreme court wasn't interested they denied certain last week or this week I guess it is so we still have this continuing split of authority just something to keep in mind at least in the ninth circuit and a few other jurisdictions the server tests survives but
We'll have to wait for another one to make a supreme court level decision on this one. So,
What is also surprising to me is that perfect 10 actually came out before we started our podcast. So, yeah, 2007 and if my recollection search me part of the,
But what was keto perfect 10 was that these were thumbnail images so you know I don't know has their have there been cases in this,
Ongoing period after perfect 10 because clearly Instagram is not putting up a thumbnail
That have kind of expanded this process of the server test to be more than it's hosted on a third party and you were only pulling over a thumbnail image. Yeah.
I know there have been you know other cases in other places but.
Often it's been sort of AA another an additional claim in in claims against whoever posted the thing in the first place or something like that. So it's right.
But it's definitely a thing the server test I see it being discussed from time to time and certainly when folks want to go sue Google for or in this case found that for,
Hosting those images or carrying those images on their sites then here in the night circuit where most of the terms of use are are set up to,
Apply.
So, yeah, yeah.
Feel bad for the photographer I suppose in this instance but you know server test is a workable test and sometimes pregnantism has to play into things here.
Did you do you watch the white lotus,
Okay so it's a white lotus being AA TV series that when this lasts season season three just just wrapped I think or has been out
My husband said oh we need to watch White Lotus to which I replied why do we need to watch a white lotus it's going to be unhappy dysfunctional people going on vacation in a beautiful location and someone
Will die.
That said i happen to see the episode where he was wearing the yeah.
Lost my,
And enthusiasm for it.
I really haven't spoiled anything.
Episode in question. So, in season three, season three. Full moon party,
Here comes the spoiler so the the episode shows this character played by Jason Isaac the Kim character's name is Timothy Ratliff who is a Duke University alumni wearing a Duke sweatshirt
As he contemplates suicide after learning that he's been accused of financial crimes,
So Duke is not happy about this depiction of the suicidal financial criminal,
And they call their use of their trademark troubling and that and claimed that it undercuts their commitment to mental health awareness.
The university's largely concerned with their brand image and and they haven't yet but they may pursue some kind of a claim.
But we thought it was you know worthwhile to talk about because you know looking in in film and television we are often confronted with wanting our characters to be
Seem like real people so giving them these back stories about where they went to school and and maybe jobs they've held on things like that.
And the question often comes up in the clearance process do I need to can I use that
Harvard or Duke or whatever Yale T shirt or their sweatshirt can we do that?
Often times they actually more often than not they don't ask until it's time to clear the thing and then we sort of have to figure out is there something here is it disparaging is sort of one of my questions and because that's you know
Be careful about that. So, legal claims here in a situation like this. Lanimac, is it really trademark infringement or delusion?
I don't know. I mean, I think that's where it would have to. Yeah. The umbrella, it would have to be housed under would be a
And I'm not saying it's a Bible claim. I'm just saying if these word the claims, how in the world would it be trademark infringement? I don't know. They're not selling a product in my
Setting aside we're going to talk about Duke is,
Sponsoring this show.
That the university who's logo is shown is,
Part of the crime or part of the suicidal ideation and it just happens to be part of this particular character's backstory and,
Maybe it's a little weird exceptional denialism of some sort to suggest while our students don't have those problems or you're alumni don't have those problems.
Bye. And and ultimately this comes down to you know look the Rogers test. This is exactly what it was.
Well, not exactly but it's very close to what it's created about and then under the Rogers test, the first amendment analysis,
Explores the artistic relevance and really bars these kinds of claims so studios generally don't,
Go a long way to and it'll get licenses. They, you know, yeah, if you ask, you get told no, right? So, well, and then the other thing, I mean, is it a nominative fairy use? Before you even get to Rogers, if you could just looking at it.
Is is it,
You know I think part of the fair use arguments is is this the only way you could have conveyed something yeah
Is by using the mark to convey.
You know I don't know was it necessary for him to have on a school jersey or a school emblem or something else and,
Yeah it's or does that really set up the creative story line I again I haven't watched I don't enough to figure out if that really played into the creative story line or not hey I haven't heard anything suggesting that Duke,
The fact that it was Duke was relevant to the story line other than that it was AA well known school you know eh and even that I mean
Yes okay so we know the guys at college graduate.
No, that was what they were telling us. It but you don't put a sweatshirt on a guy that just says college or you. University or something.
But does it tell us he's a college graduate? I mean, I can, I didn't graduate from Duke and I could have a Duke sweatshirt. True enough. True enough and we see, you know, yeah, we do see
These logos showing up another entertainment content
When it's not speaking anything about a connection a brand affiliation a an endorsement or anything yeah I mean I I get why they went public and made some noise about it to sort of disclaim any affiliation or endorsement
maybe that's all they really needed to do
Hey it could be so anyway that what's really making me laugh is do you ever watch Abbott Elementary I think I've seen an episode or two,
Okay I I have a binge watched on the airplane but when it's been on and anyway one of the the administrators maybe,
Elementary school. She went to Harvard over the summer and she keeps talking about how she went to Harvard. Well, she she didn't go to Harvard. She went to some program that happened to be
Hosted on the campus of her yeah yeah something like that I can't remember but it's this it's hysterical and that is
Creative expression that is protected by Rogers because it was really necessary to pull it pull the stick off you know she needed to keep saying she'd gone to Harvard for this right.
You know I mean and you think about it there are all these tele all kinds of television shows and films that
That are built around the concept of someone having gone to Harvard or you familiar with suits you know the little show about the lawyer's law firm that only hires out of Harvard except for this one guy who's more of a congress not a lawyer. Well, I mean it's I.
It's the same thing with the Big Bang Theory. Yeah. You know, they give Walwood such a hard time because he went to MIT, right? Wasn't that it? Versus.
That's right. Yeah. And then for all our, you know, these bumbling, foolish,
Socially inept guys are all from they all go to they all work at what Caltac right so.
Yeah well so that's actually the Big Bang Theory is one of my favorite examples when I talk about Rogers Vegro the now that it's not you know it's not you can watch it in rewritten syndication about how many references to 30
Party trademarks they use. Nice. In that show. Yeah. So, you know, call it nominated views but it's really just that referential knot. Yeah. Not
Connecting anyway so so I I am I am revamping and revising and updating my presentation on all of this for the 2025,
Textes entertainment law institute. Oh wonderful. So, pull in a lot more things since the last big time. It would just been almost 10 years ago. So, there's been a lot to develop in the last 10 years on this. That's great.
I look forward to part for hearing those hearing that. Yeah. Yeah. So, let's talk about Mariah Carey and this.
All I want for Christmas story.
We can still be friends if you don't but,
Let them look on my face I think I did yeah it's the same like my husband has on his face but it
Anyway she wins a summer judgement and the all I want for Christmas case which we've talked about numerous times I don't have the the episode numbers I stone versus carry out of the central district of California.
Andy Stone is also known as Vince Vance I guess Andy Stone and Troy Powers make up events
Vance the the band have sued Mariah Carey Sony ATV and a variety of other publishers claiming copyright infringement.
This is actually the point of second bite at this apple. They filed initially in 2022 in Louisiana. It was dismissed without prejudice. They then refilled in 2023 and they're claiming that dances
Song all I want for Christmas for you is you released in 1989 was I guess the basis for
The 1994 hit in 2024 that defendance filed emotion establishing an expert phase so and they wanted to stipulate and this is what really this decision hinges on is,
This scope.
In the Neroscope of the expert discovery phase and it was to be simply limited to extremic review and reporting by the expert.
So in addition to obviously the claims of copyright infringement that's not what the court was looking at on this part it was just the extremic test comparing objective similarities of specific examples Carrie's export
Expert provided 163 page
Report it was 64 pages of that covering methodology lyric structure harmony rhythm and melody the,
Report deemed the court determined that the plan is report.
That being Vince Vance's team failed to apply the extremes a test while the defendants report on where I carry explained how the works were what was different what was similar what was not protected.
In the court aloud
A rule that there were not admissible as far as Vince Vance is playing us reports. So,
It kind of just came down to following the scope of the order and that there were frivolous and improper actions and arguments brought by Vince Vance's team.
I think I'm I may have the parties backwards or maybe it was on yeah and this stone was the plain if in this part.
Portion of the proceeding. Oh yeah, that's right. He's suing Carrie's Carrie for the song. So,
The the defendants push first rule 11 sanctions claiming the plain was motion for some rejuvenate was sanctionable frivolous prop for an improper purpose the plan of file
Violated the by furcation order that the court had set up limiting
Limiting this motion for some rejuvenate to just those extremics and extremic test arguments. As well as miss stating some legal cases that were outdated for over 30 years.
That's tough. Yeah. So, the court ruled in favor of the defendants.
Sanctions.
That's right. So, what experts matter? I think that is a very true statement and staying within the confines of what you're supposed to be. Briefing
Well I think it matters too I mean citing 30 year old case you know things that are outdated is is just well that's right because isn't the law you're reading I mean obviously the it's the experts report but,
Are you supposed to update the law and if miss stating the
The fundamentals of you know the skid more case for example things like that it just,
Yeah, yeah, you you gotta do better. Although I also,
If I recall correctly the only true identicality of between the two is the title of the song alright there there wasn't a lot of melodic or or,
I guess thematic stuff also but right. They had pulled in. You know, a fair amount of evidence of third parties using at least the same,
Idea which we know is not protected by copyright but as well as the same the same line all I want for Christmas is you are very very close and similar variations on that.
Lawsuits generally but coperating fringement suits of this kind that are not for the faint of heart or the over the limited resources either because it I think one of the big
Issues was the 163 verses eight page report,
Discrepancy and and the experts want
For the kind of experts you want in these cases. You know, I would assume for this type of extreme cabinets you want to use a colleges to just going to be,
Yeah. Being your expert on that. So.
You would think. Anyway, take a look if you're looking to bring in an expert. Read that case. See what it see what it will teach us to to do better. Huh.
Yeah what you'll listen let's move on to our next story this is anybody who's been following the development of AI and and how it relates to operators aware of this case that are versus permuter share permuter having done the copyright
The register of copyrights at the time that failure
Reply to register the cop write in his work or the work I should say created by an AI that he developed the creativity machine back in 2019 he tried to register the work,
And the coprode office rejected that registration and he then sued the copright office in 2022 trying to get that
Registration and.
That litigation among others was part of the push that led to copper out of the issue a report on AI and the conclusion that,
Human authorship is a requirement in order to be registered certainly and also to be
Entitled to protection under the copyright law. So, the copper of us denied the the registration he sued and here we are a few a few years later.
The DC appeals court has decided that human authorship is indeed required to register work for copyright protection. It says the copper deck requires all works to be authored by human being.
Taylor argued that the meaning of author is not limited to human
Beings only but the DC circuit was not convinced. Basically interpreting several provisions of the copper act that show the act intense to grant authorship and ownership to humans and not machines.
And focuses on how the carrot act grants
The copperhead on the rights for the duration of the author's lifespan and that's a concept that can't be applied to machine. So, fair enough machines life measured that way. The copright officer also noted,
Various other aspects into kidding and author is always consider to be the human having a spouse family members domicile signatures the the law is pretty pretty clearly aimed at humans and maybe that's just a sign of the times in which it was written,
Something to think about. As regards corporations and other nonhuman entities, the court did look because there, you know, there are work for higher situations where
Corporate NT might be the owner of the author but again that's they're they actually focused on the wording considered,
In the work for hire claws in the contract in the act the fact that it is considered not our
Is interpreters meaning that a human is always the author just that other legal entities can step into the human author's shoes under the workfire provision or something like that. So.
Court noted this is not new going back to the Uransia foundation versus Mahara,
From a while back and also the Naruto versus later the monkey selfie case that we talked about a lot in the early years of this show,
The court noted that if the human creation was was barring creation of work then that something for congress to address not the courts. So,
Here we are. Yeah.
The court wasn't analyzing how much AI contribution is permissible for work to still be considered authored by a human it's a whole other cattle of fish recently been dealt with in the copper road office a couple of times that,
If the if you're able to show enough human involvement in the process then the fact that it came out of an AI ultimately is not going to borrow,
Protection.
I just could not remember the name of the other case that we've talked about in recent episodes where they submitted to the copyright office,
Actually showing
Them the videos of how they created the prompts. Can you remember I've been to the name of that case? I don't remember the name of that case off the top of my head but,
Okay but but that the those two being very recent examples of,
Where the ability to show what was human contribution versus what was machine,
Allowed for a partial protection of copyright for certain elements of the work but not the work in totality,
Yeah. So, yeah, it's interesting. You know, Taylor did. They really tried. They tried the work for hierarchy saying that the machine wasn't was acting in the role of an employee for hire, I guess, fourth failer, that
Did not fly with the court and he also argued that he was the author because he built the machine.
And supported that with a really only single sentence but the court didn't didn't want to hear that either. So, yeah. If he had been more.
If you had articulated and elaborated on the facts around the creation of how the machine was prompted and those kinds of things maybe then he would have done better.
I don't know if he's going to be able to come back now and and
Claim that well and I think that's where Zoria of the dawn and these other cases have learned from Taylor as to what,
What evidence you're going to have to submit to be able to show some human authorship board,
Original human authorship that's protectable by popularized. So, you know, barring some weird decision out of another jurisdiction and then maybe supreme court acting. This seems to be the law of land. It's you need to have human authorship and
And be able to demonstrate a significant contribution from a human at the very least to,
To claim what to register for sure and to claim the protection I think is is the logical conclusion there so.
So
We have another case here. This one just caught my eye. It was it's just my my youngest son plays Roblox and yeah I haven't asked him about this actually but apparently in the game there is a
Place where there's a piano what is let me say Meep City within the game and there's this piano,
In this I guess it's in a bar or restaurant or something and,
Within the Roblox universe when the players users interact with the piano it plays the maple leaf rag
Right? Musical composition written. Timber.
September 18 1899. I had to look it up because I couldn't yeah. By Scott Joplin. So, first first one 1 million selling sheep music. Is that right?
It is first over first one 1 million selling sheet music Scott Joplin September 18 1899 so the underlying musical composition of the maple leaf rag is public domain
Yeah. So that's not what we're talking about today but specifically this recording of of the maple leaf rag.
Made in 1993 by aaron robert robinson who is a main based composer and musicologist.
He made this recording of Maple Leaf Ragon 93 it was later included in an album of his called rag time in 1999 we released in 2011 and registered for copyright
June of last year 2024. Heel ledges that
In 2020 and 2016 excuse me game developer Alex Bonello uploaded this recording to the Roblox platform to use in this game and apparently
They had occurred without his knowledge or permission and Roblox's moderation team approved the upload assigned an ID a unique asset ID hosting it on their servers and then.
Also apparently users could download the recording to their personal devices and alleges that Roblox profited from these downloads so he filed a suit against Benello and Roblox asserting
Direct tributary and victorious copyright infringement claims.
Roblox move to dismiss under 12 B six alleging failure to state claims and the court got into it on March 24 they judge Carrie excuse me Judge
PKC Pitts these names are select something out of comic books anyway he issued an order,
On March 24 granting in part in denying in part the motion dismiss the direct cooperate infringement,
Claim was survives. The motion was denied. They found that Robinson did sufficiently alleged that the team moderation team had actively reviewed and approved the infringing comb
Tent and that level of involvement
Suggest evolutional conduct necessary for direct liability. On the vicarious infringement court denied the motion to dismiss the claim saying
The complaint alleged robox profited from the activity and had the right ability to supervise.
And failed to do so. So, there's that claim but the contributory infringement claim.
Was dismissed concluding that runs and didn't adequately alleged roblox had knowledge of the infringement or that it materially contributed to the infringing activity.
So there was also a statue of limitations defense that was raised.
And as we know the infringement claim a cruise when the cop rate on a reasonably should have discovered the infringement and the court found that Robinson's allegations didn't conclusively establish that the statute
I had expired. So, allowed the claims to proceed there. So, potential liability.
Yeah I don't know really know what Roblox is so anyone can upload a game there it's all user generated content what is the platform is as I understand and I haven't played with either but it's a it's a
Building and construct you build your own university around world within this established bike
Somewhere tonight Minecraft yeah okay and apparently users I don't know whether this other defendant what was his name.
Lots of interactivity and stuff like that I don't exactly know the how
He fits in there exactly but. Okay. The users can upload assets that will become a part of their product.
Who encountered this piano? So,
Anyway, so, okay.
Online platforms need to be vigilant about these kind of things if they're going to play an active role they're going to moderate and approve this used generated stuff they need to be actually do the job of moderating and approving moderate I think probably what happened here is,
They gave a first blush look and said oh it's a scotch opponent it's in the public domain and they didn't think about the recording so maybe the other message here is you've gotta train your people to understand the two copyrights issue in music recordings
Yep. And this case is the illustration. So hopefully the other platforms will will do better. Going forward.
And we'll see there's still to be a trial so there may be other arguments that will find their way into the defense of the case,
Unless there's just a settlement at this point. So. Right. It'd be interesting to see if we get
You know, if we could ever figure out damages. If that paper gets to that point. So, yeah.
Yeah do you remember a few years ago there was this thing that went around it was like a disease pandemic thing.
Something with a 19 image. Well, our next case deals with Apple Plus, Apple TV Plus, and there,
Decision at the time during the pandemic to initially they had offered a job to an actor Brent Sexton but when he later refused to get the COVID-19 vaccination,
He was terminated from his job. He's a professional actor. He's made many film and TV appearances and in 2020 they were making a series called Manhunt.
About the pursuit of John Wilkes booth and,
So during the course of the pre-production oh this was in 2022 the pre-production work on the show happened and,
They decided to require vaccination to promote safety on the manhunt sets sexton had auditioned in March of 22 and was offered the role of President Andrew Johnson.
And the condition was that he'd be fully vaccinated he asked for medical exemption that was saying that he had history of cytopenia which is blood clotting and deep faint prombosis.
He said the vaccines would increase his risk of clots and claimed he'd already had the disease so antibodies would make him safe. So Apple looked at the situation considered the request in ultimately rejected it and decided that
No vaccination is essential for the actors and withdrew his offer and cast somebody else on the roll
So he sued alleging an invasion of privacy disability discrimination based on desperate treatment a failure to accommodate
His particular situation and failure to engage in the interactive process. Apple
Turned around apple studios turn around and and filed an anti-slap motion asserting that it's casting decision was an act in furtherance of its right to free speech
On matters of public interest namely public health policies and the portrayal of historical figures the LA's county superior court denied that motion finding that while the casting decision was protected activity,
Sexton had a demonstrated probability of prevailing on his claims. So, we go up to an appeal and that appellate court has reversed the trial court's decision concluding,
That the studio's actions were protected under the anti slap statute and sexed and had failed to establish a probability of prevailing on his claims
It's interesting the probability question decided differently by the two courts seems like a factual thing to me but.
But anyway. So, let's do, let's walk through the analysis a little bit.
On the protected activity under the statute the court determined Apple's casting decision wasn't fact in it
Acting further into free speech contributing to public discourse on the two significant issues one the debate about vaccination policies and also the creative portrayal of the historical figure,
And retelling a transforming American disaster.
The court wanted to say this aligns with the anti-slap statutes purpose of preventing lawsuits that chill the exercise of constitutional rights freedom of speech. On the invasion of privacy claim,
Dismissed on grounds that he had no reasonable expectation of privacy concerning his vaccination status
In the context of a public health crisis. Court noted that employers are entitled to implement,
Health and safety measures to protect the workplace especially during a pandemic,
Hmm. So, so let me give a different example. Yeah. Someone comes to the office.
With chicken pox or shingles.
Do you have to send them home can you ask the other people in the office if they've had chicken pox or shingles or if they're vaccinated I mean is this is that a public health
Issue they come to work with the flu I mean I I'm trying to figure out you know there's there's common sense yeah you know what what really is an employers obligation.
You know, I bring that. I bring that up. Only because 25 years ago.
I was actually out on maternity leave one of the ladies I worked with at the firm I was at that time was pregnant,
Somebody in the office came in with either chicken pox or shingles. This is 25 years ago.
So things are probably different. Anyway, she goes home because she's
Pregnant doesn't need to be exposed that makes complaint total sense that that actually both of us being pregnant saved us from being in a building that was hit by a tornado anyway.
On the day of that happen so yeah yeah but but again is I,
I'm kind of like wow this it maybe it was just the difference of what 3 years ago was like,
That they're just wasn't privacy related to our health then
And maybe today again my example was 25 years ago but even more recently you know if somebody showed up would our our we in a position to be asking people if they're vaccinated for any number of things in the workplace.
It's like yeah that's an interesting question we're we're wrestling with this you know that's certainly on this privacy claiming I've always understood that you know employers are not supposed to disclose any well for you
You have privacy with respect to your medical and health status,
And the medicines you take and the treatments you receive and things like that. The employee, you know, the employment with the workplace is an interesting thing because sometimes the employers are are that or the insurance is paying for it. So, the employers have access to some of the information.
I don't think they're supposed to share it with other employees much less the general public,
And a decision to terminate somebody's and offer to somebody because they have a particular health condition,
Is seems like making a very public thing out of something that's essentially a private
Claim but protecting the workplace protecting your other employees matters also so I don't know what you do in a small workplace you send somebody home everybody knows
Right? Alright. Yeah. And the other thing is, you know, at least in in the schools, I'm still getting
A report from once and every once in a while from a school saying your student was exposed to someone who had this,
That's right. I mean. Protecting me. Educational environment. So. Yeah. Certainly there are.
Rational reasons to make these disclosures.
Anyway he didn't prevail on his privacy claim in this case but that 1 may be something we see more about and then the disability discrimination and failure to accommodate claims,
The court found that text was unqualified for the role.
Due to his refusal to comply with the vaccination requirement and that was a limited legitimate excuse me safety measure
And as such those claims were not what they'd had no merit so,
At least for now the appella courts decision underscores this balance between the individual rights and public health considerations,
And basically firms that employers can enforce vaccination policies as a condition of employment particularly in industries where you know, public interaction is inherent. I don't know that that's actually
What's going on here public interaction but enough people on a film set are going to come in close contact with somebody who may or may not be carrying a virus around,
That's something they have adjustable reason to be concerned about and you know let's face it economics here if you have to shut down a production because half your cast is sick and it's weeks and weeks before they're back,
Not not standing the possibilities somebody could die or whatever,
That's a big expense so there's an economic component to this too. So.
You know, I think most everybody knows I live in Texas. We would be the hot bed of the measles outbreak. Right.
Is there going to be the next one we're on a set we do a lot of filming in Texas,
Are we going to start asking have you well one were you born between X year and next year so just for so people know if you were born in the late 60s,
Your measles vaccine may not be active.
I don't know if you knew that or not, Gordon. No, I didn't. I have to go get revaccinated. Yeah. Hey, what it, whatever your personal choice is. Yes. So, there's a window of time in the in the 60s where,
That those best that received our vaccine it probably we don't you don't have antibodies again 25 years ago when I had a child I got they tested me and I had no antibodies so
Well we got all kinds of public health for you so not getting into a conversation about pros and cons of vaccines but you know that to me feels like
Based on the nightly news.
You know is that going to be the next thing that shows up in a studio is not have you been vaccinated for COVID but have you been vaccinated vaccinate for measles and is is that going to become a.
Well, is that going to be in the context of a public health crisis? I don't know. The end, yeah, I mean, really what we're getting at here is that,
The vaccination status of a person is not just the first amendment part of it but it's also that you can designate it as a qualification for the job role,
And,
If you know if you need somebody who who can run and jump to play the basketball player it's not discrimination to
Not hire someone who's in a wheelchair.
Discrimination but it's allowed. You know, it's a legitimate job call qualification. If you need somebody with a particular skin color to play a role because that's what the roll calls for.
Turning away people of other racial backgrounds is is acceptable if not ideal
Right? So, here we're making another one of these woody cog, a classification, I guess you could call it.
It's kind of interesting. I don't know. Maybe we'll see further appeals on this case. Yeah, it kind of just struck me. I know that I
Think well obviously we are no longer in a public health crisis when it comes to COVID-19. So.
But thank you fever is on a huge rise.
Oh I don't know we went through a whole get gang fever yellow fever questions because we
Transit to the Panama Canal and we're in the country of Panama and did we need a vaccine or not I mean,
Anyone. Alright. What was the thing? It was a thing. I'm over it. So, alright. So, Superman.
We I love that we get to talk about Superman litigation. Yes. Randomly, many times over the last,
16 17 years we just had a case out of New York dismissed and it was brought by the estate of Joseph Shuster who's a co-creator of the Superman character this was
Based on really a jurisdictional claim was their subject matter jurisdiction to bring this case.
In federal court in New York and the court looked at obviously the facts of the case and then three different areas to analyze
Weather or not they could even take on the case because of subject manager jurisdiction and I think we immediately think oh well this case was brought because of copyrights which it was but it was broad related to copyrights for.
Claims of British copyrights in territories that fall under British law.
And potential infringements and not collection of royalties in these British territories including
UK Canada, Australia, and others and so the court said, yeah, you're bringing house. It kind of.
Structure and this is like copyright claim but there's no diversity so they looked at the fact that one of the parties one of the corporations that was on the defense side was in California,
Shoester died in California so by that nature the estate is California so they kicked it out for that they said we appreciate your asking for declaratory judgement
But the declare to a judgement act in and of itself is not enough.
To keep you in court and the fact that you're alleging something related to the burn convention is also not enough to keep us in court so there was no substantial
Federal questions. So, if you have questions about how to
Stay in better court when you've got a copyright issue this is a great case to take a look at for those reasons.
Is the court here saying that that?
The US no courts in the US would have jurisdiction over this that it would have to be well it would they have to bring it under UK law in the UK or these other countries Canada is real,
India, Australia, Ireland, or is the car really saying, sorry, there's no case here at all.
Hey I don't think they're saying there's no case here at all I think they're saying you have no federal jurisdiction there is no federal subject matter to your section
Right there's no diversity so,
You can't get it in under that there's no US copyright law claim so there was no subject matter on that just because you want relief under the declaratory judgement act and just because the
I didn't understand the whole burn convention. But,
Big people can go read okay sorry they were arguments under that as well so yes it's interesting
Because it deals with Superman and the the long standing rights related to that but it's really an interesting look at,
How to try and get and stay in federal court. In case you've been refilled in state court in New York. Okay. So, we'll see what state court has to say as to whether or not they have. Subject matter jurisdiction over it or if they're going to have to go file suit in the UK,
Alright, we'll keep you posted if you hear more about it. Yeah.
Yeah. Alright. Well, we have our AI corner now. It's getting to be a habit with us. It's covering me AI stories and this month is no different. We have some winds and some losses in the AI.
Companies in court across the country in this last month. First off, we have Concord Music Group versus Enthropic. This is an order
Denying emotion for preliminary injunction in Northern California Federal Judge has rejected universal music groups and other music publishers request to block the AI company and throw it
From using song lyrics to train it to AI models they say that the publisher failed to demonstrate a reparable harm
And that is of course a correct set for an injunction. So, it says the courses, if other AI developers are obtaining licenses to use copper material for training purposes, then it follows that any harm rising from the emerging,
AI licensing market would be compensible in money damages rather than irreparable harm
Okay. Publishers are essentially asking the court to define the contours of the licensing market for AI training where the threshold question of fair use remains unsettled
Wrote to judge. She also noted that according to publishers own evidence, the market for AI training licenses has grown over the course of the lawsuit rather than diminished.
And I suggest that a commercial licensing framework already exists is growing and that means that.
If they eventually win their suit, there will be a way to calculate monetary damages and we don't need an injunction at this stage. So, there's that.
You want to take this next one,
Yeah just I don't really like that decision but okay.
I disagree with the judge that,
That was probably right. There there is a way besides an injunction to probably come up with images but that's not going to do anything but encourage the use of,
Third party content to train everybody's AI.
Yeah.
That's right. That's right. Okay. So, this one is we've talked about several times. New york times versus open AI and Microsoft. US district judge out of,
I'm guessing we're in New York on this one. I don't have that. Advance the times.
Core claims related to copyright infringement while overall narrowing the scope of the case,
this most recent ruling allows most of the times case against open AIM Microsoft to proceed paving the way for a possible trial key points allowed that are going to
Continue to move forward relate to the copyright claims related to works older than 3 years.
So they're obviously what's the statue of limitations or argument that was going on and then claims that the tech companies were in indirectly liable for copyright infringement,
Other publications that have opted to accept licensing deals including news corp the owner of the Wall St Journal New York post and the New Yorker owner
County Nast.
Dot Dash Mary I don't know what that is so sorry I'm reading I'm feeling these companies reported,
Quarterly earnings of about 16 1 million dollars from AI license open AI licenseing deals I feel a little bit like Ron Burgundy there,
Hey,
Yeah, that's right. So anyway, so again, I think this case supports the previous concord music group case decision that there are licensing frameworks being built out. Yeah.
And whether we like it or not it it can be licensed if there can be a meeting of a mines and an agreement
To the terms. Yeah, but fundamentally, we have to remember that even if there is a licensing marketplace.
And a framework for it. Part of owning a copy rate is having the right to say no. Say no, this is not a mandatory. Statue got a grant you a license. Type situation. We may be heading in but.
Well it's a sure sounds like it isn't it the court saying well I feel like it yeah we're not going to grant you in junction because you could give them a license well okay.
Yeah and then we're going to watch any number there is a statue there is a licensing not statue but there is a licensing scheme,
For synchronization of musical compositions and sound recordings in a film or an audio visual work.
There he is. There is a licensing scheme in place.
But I can still say no I don't care i don't want you to use it.
That's right. So, potentially getting injunction, yes. Yeah.
So it doesn't matter that there is a licensing scheme in a way in which to most likely calculate damages. Doesn't matter. And.
And this issue, this finding that there is no,
Oh no there you know no evidence of irreparable harm is going to hurt on the final outcome damn,
Availability in junction as a remedy to the successful plane of here also. You know, this is a preliminary injunction stuff but eventually, yes, for permanent junction.
And that's not going to happen either. They're given this funding. Right. So, well.
Here we also have a consolidation of the New York and California authors cases after opening eye had proposed consolidating the cases brought by authors from both
Ends of the country in Northern California 12 of the cases against the companies have instead been consolidated in New York,
So we'll give you a consolidation but not in the in the jurisdiction you want I guess that's the result the the judicial panel who looked at this said that centralization allows a single judge to call
Coordinate discovery and streamline in the pre-trial proceedings eliminate inconsistent rulings.
And they stated that Centralization serves the convenience of the parties and the witnesses and promotes the Justin efficient conduct of litigation
Okay, fair enough. Most of the planets, however, had a pose, the consolidation arguing that their cases were too different to be combined but the transfer order states that the cases share factual questions arising from allegations,
That open AI and Microsoft had used cupright at work so that consent compensation in the training of their models. So.
Well, yeah, interesting, interesting that they ended up going with New York instead of California. We'll see what happens.
So yeah I don't know. So another one in the news is Cadri versus Meta Platforms Inc. Focusing on incorporate management cases as related.
To AI as well, correct? Yes. The core assertioning is that the creator of the, I like it,
Acronym is llama. Set a large language models in French operates of authors and journalists including,
Sarah Silverman along with a class of similarly situated authors the court dismissed the I'm going to
I didn't know what the acronym was. It's the California comprehensive computer data access and fraud act claims based on preemption
Yeah so they said you know that the caporite actor's going to preempt that because based on any right that's qualitatively different from right under the copyright act
Making
Let's making such the claim under this big long acronym in applicable in this contacts the court did allow the DMCA act for removal of copyright management
Information to go forward the court found that the argument that Meta intentionally removed cooperate management information from their copyrighted books during the training process of their large language model
Lama. To conceal copyright infringement. So, you know, that's interesting and I wonder if Nail.
Folks are learning from that and they're scanning in the whole book with copyright notice. Oh, interesting.
Or did I just tip somebody off?
Yeah they're they're stripping it off of websites and other digital data where the the copper and management information may or may not be embedded within the
The code of whatever they're grabbing it's not so much scam the copyright notice but the in principal the same idea I want to go back to the the
Are the dismissal based on the what this conference of computer data access and fraud act sounds like,
There's no claim that is qualitatively different from the corporate act claims therefore,
There 4 PM to yes I I did go look at the opinion to make sure the word preemption was in it,
Bumbled my reading of that. No worries snores. Yep. Just want to make sure. So let's just highlight Zach St back is a lawyer who practices in the game
Industry, largely, and is AA valued friend and colleague and and former member of our entertainment law update family of contributors, and,
He has a new article out on AI copyright four game development over at his website
Streamback Law. Com. We have a link in the show notes for that. He.
He has summarized the findings of the courts on the copright office and things like that and a great way. Very helpful for game developers, board games, video games, you name it and has some tips for best practices. So, really glad to be able to highlight that and say
Nice job Zack. Thanks for thank you. Yeah. Zach was one of our very first contributors. Early early on. So, I I
Hey I vow you are relationship with him,
He's good peeps. Yes, indeed. So, yeah. So, I don't know if anybody saw that the copyright office has released a toolkit.
To help with copyright registrations and after I nuggle a deeper they have several different tool kits at the,
On on various things. So, you know, it's part of the copyrights office, copyright for all initiative, the toolkit is a
At PDF and it may come in other forms too. He's a visual breakdown of the essential elements of copyright the process of completing a copyright application.
Eye eyeballed it.
It never fails. They use a whole lot of words to when they didn't have to. Espresso. But something,
Yeah and you know for a work filing an application is not a simple complex but I think on the current corporate office website it is not simple.
Simple deals. So, I think it's a step in the right direction. I would be interested, you know, if I may actually just for fun, the next time I follow it application,
Follow it step by step and just see see what happens and I'll let us know. I'll report back.
Or I'll have my paralegal follow it set my step and report back and we'll go through that so but it's there we've got a link to it and hopefully it will be helpful for some folks. Fantastic. Alright. Well, that brings us to the end.
Of this episode of Entertainment. We want to say thanks again to our loyal listeners.
We appreciate you. We appreciate you spending your time with us and we appreciate your feedback.
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Camera if you see it you can do your thing anyway thank you as always to you Tamara appreciate you for these 16 plus years and looking forward to more episode
How can we? Yeah, you know what folks can find me online, create, protect. Com is going to get you to all the great things you've been seeing for over 16 years.
For me online the the firm I joined my new firm who I love these folks that talk about great peeps they are great peeps at Harper Baits dot
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Tamara Bennett T A M E R A B E N N E T T
Very good. Thank you and I am Gordon Firemark in Los Angeles, California. The website@Firemark. Com is the place.
And you can find my email address G Firemark@Firemark. Com and on social media G firemark
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Dawson Holder all contributed and we have a new contributor to the team Lawa Masetti has joined us and brings a.
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we're really glad to have you on the team level so thank you for being here and let's say if you are interested in joining us and being part of the fun as we create these episodes as a contributor
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And with that I think it's time for me to push this next button and say that wraps up this episode of Entertainment Law update.
Music.