Music.
Hello everybody and welcome back to another episode of Entertainment Law update from Los Angeles California I'm Gordon Firemark,
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett and we are grateful to you for joining us for this episode of Entertainment Law update hour podcast buy entertainment lawyers four,
Lawyers and law students about entertainment law where each month we round up notable cases and news and information,
Keep you informed and hopefully a little bit entertained and we do want to say we welcome your feedback so if you've got something to share with us please do send it over suggestions any kind of input all
Visit entertainment law update. Com and use the little voice widget there on the side of the screen
Or you can just email us entertainment law update@Gmail. Com. Tamara what's new in your neck of the woods
Oh, not too much. Ready for a fall to get here?
Happy college football is here. Had a great trip to Austin for the entertainment linestitute, CLE, want to say a big thank you and shout out to the folks who listen to our podcast.
Who came up and spoke to me so thank you so much Edith Tom.
Joe and I've got one more who's escaping me. I'm sorry. I meant to made a mental note in write it down. So, forgive me. I'll have it by I'll have it by the end of the show to give everybody a good shout out. Well, that was a little earlier in the year than it's been in the past few years.
It is. I think kind of switching it up. So, I moved it to mid September, early, September versus late, October, November 0, that's great. That's great. Well, since you and I last spoke, I have been running around the country like
A mad man and and finally back at the desk and in the house and able to do my work and,
And stay focused a little bit better but had a great time speaking at podcast movement when we saw each other last and then I went on to vid fest and then an a an authorship.
Conference and then Fin con up in Portland Oregon so,
Yeah Dallas Atlanta and Oregon and now back to LA so wow I'm glad to just be able to
Sleep in my own bed. Yeah, be home. What is Fincon?
It's a financial influencers conference a lot a lot okay bloggers and and podcasters in the financial services financial advice space and it was in a town that I love where my sister lives so I
Took the opportunity to go and and visit and it wasn't on the stage for that one but yeah was it in band no no it was in Portland,
Hey portal.
Complain about a thing. So, anyway, that sounds super fun. Well, enough chit chats. One of the things we talk about the podcasting conferences is people hate the shows where there's lots of chit chat upfront.
Yes. Let's let's proceed because I've seen feedback on other podcast where it says, can you time stamp this for when you stop talking about to each other? Right. Well, we'll jump right into our AI area in the news,
Big big settlement proposed in the anthropic lawsuit although not nearly as big as a potential judgement could have been largest copyright settlement
Ever involving generative AI and tropic the leading company in that space a leading company in that space has agreed to pay.
$One. 5 billion to settle that infringement suit brought by a group of authors what that means is about $3000 for each of the estimated half one 1 million books covered in the settlement,
So, back in June, the district court had ruled that anthropics use of books by the planets to train their AI model was fair use,
And that it was exceedingly transformative and that authors don't have a right to exclude the company from using their works to train the technology as long as I'm thought I could purchase the books
And the ruling also stated that digitizing the books that were purchased in print form was considered fair use. But,
With respect to the pirate material which was this the number starting at around seven 1 million,
Titles that were pirated copies that were to be treated as training copies are building a library of this training material and that the high big scale illegal downloading was,
Not okay and and probably not fair use. So,
They the judge had set a trial to start in early December for the privacy and damages.
Actual unstatued damages involved in that and now we may never see the day for that trial to actually happen nor any appeals that might
Help us better define and and we articulate what is the fair you what are the boundaries in these kinds of cases but the settlement is anything but finalize because the judge has,
Said that he's disappointed with it
He says it leaves many many issues on resolved. He's his council has left important questions to be answered in the future including respecting the works,
List the class list to the claim form and particularly for works with multiple payments,
The process for notifying and opt out and reinclusion all those things that you have to deal with in in class action cases,
So the judge wrote all of these points must be proposed and approved by the court before October 10 so that's about 2 weeks from today I think.
2 weeks ago? Maybe a little longer. Yes and they have something a hearing.
Tomorrow if our date's still correct today September 24.
Yeah, I'm supposed to be hearing on September 25 with the judge. Yeah, to discuss the settlement and deadlines for those additional details and then, and the judge said and this is you know, we don't hear judges.
Talk this way very often but he said well we'll see if I can hold my nose and approve the settlement,
So, I think he means it stinks is that what? Is that what he's getting after there? And you know what's kind of,
Mind blowing to me of
The seven 1 million books downloaded only 500 1000 will probably meet the requirements to
Benefit from the settlement and that was they have to have an ISBN or
As iron number they have to have had a copyright registration within 3 months of publication or before the
Download a card so that's the qualify under the statue regime for attorney's fees and statue images and then they also required that the copy guide
Copyright be registered within 5 years of publication and that goes to the validity of what's in that registration but
I don't think that requirement is a standard requirement for statue damages and attorneys visit can't be but it just goes to the the presumption that what's in the registration is.
Is valid so.
So that was ever that was interesting. So of the seven 1 million books that were apparently illegally copied only,
One in six. Was that what it is? Oh yeah. Only half of a one 1 million. Yeah. I mean
We're actually eligible in that. Yeah. Settlement thing. So,
Yeah, I mean, it makes you wonder if if they're a lot of authors that are just going to be left out in the cold here or how much of that is public domain work and you know, those kinds of things. That's right. Yeah, I mean, and you know, you think there'd be enough in the public domain but
I guess not. Yeah. Yeah. To train on.
Don't we have a lot of great classics that are probably domain that you could train on.
You would think so but you would think. Well, but the other thing is these language models do have to be sort of modern in their language. So, anything more than about 100 years old is going to have sort of archaic.
Constructions of sentences and things like that that might be not ideal to train. AI would. Yes, I'll I'll give that point to the
But tech companies but even so they probably have. There's still plenty. Yeah. If it hadn't been trained on Shakespeare and and Joyce and you know some of the older,
Material that really kind of sets the tone for the way we we operate these days. So, right, okay. We need the pooch.
That's right. Recent public domain. So, no, it's interesting. So,
The issue of fair use at least seems to be resolt while there are some boundaries that have been set up so the settlement's not going to address all these other big issues and,
The judge now seems to be focused on on sort of details,
About what books are eligible and which authors and how how they're going to be paid in those kind of way because that's what you do in a class action, I guess. So,
It's interesting. We're going to be watching. There's lots more AI law to come. This is. Oh my gosh.
This is merely change the title of the show to AI law update but eww or somebody else can do that shows. Entertainment. Oh there's probably
Plenty of those happening.
Yeah. But on the flip side of AI is there's you know as useful a tool as these these AIs can be and some of my very
You know, specifically aimed at lawyers and and have some guardrails set up. I think for the use by lawyers but the Texas Bar has published a tool kit. Yeah. To give guidance,
They have and I
We've put a link in there I think it would be beneficial no matter what state bar you're in to take a look because it also references the ABA clearly you need to be checking with the state bar for the states in which your licensed to see what their guidance is I am
Sure the tool kit references the most recent ethics opinion related AI I don't have that number on there.
A couple of points that just kind of make
Sense is we have a duty to understand technology and this is a new technology so we need to understand that before we stop implementing it as you and I have discussed mini cases it's always the horror story of where the
The information was it verified we would do you to verify that AI tools
You know not all of them are created equal as well as you know part of that is reading their privacy policies they're confidentiality policies in Texas
We have a I don't know if this is unique to Texas or not but,
It's something I think is really important. If your licensed in Texas, we need to obtain written consent from our clients for using AI tools. Oh, interesting. And.
The question that raises for me,
Do we not already use AI tools all the time that are not generative large language model AI models I mean what really is that definition of artificial intelligence and I'm not,
Sure if that's defined in toolkit because there are many things we use that help generate,
Dock you I mean there's ways within just good old fashion like we're soft word without copilot to generate documents that are automated so I don't know how broad that is clearly it's going to cover if you're using,
Like westlaw counsel which is there AI product chat GBT Claude and Thropic the other
Thing about the Texas.
Really need to include a
Disclose they do not say hey you know in order to streamline our processes and keep cost down we're going to implement you're going to use whatever tools including AI that that will enhance our ability to do our job
Efficiently. Yeah. And so you hit on this point number two. Keep the cost down. So,
You have to have fair and ethical billing practices related to the use of AI and only Bill clients for time worked,
So if AI makes it faster now at this point AI is making it slower sometimes so can I can i can I build for my learning curve I don't think so,
and you need to clearly communicate in agree on the dinner today I and your feast structure I
Hey sharps the ability to flat females if you offer a flat fee,
No you you do if if your billing hourly and it cuts your time to write a.
Send to sis letter from 2 hours to 1 hour,
2 hours to 10 minutes hey yeah I mean yeah flat feet or if you did the you know the
Allocated a certain amount of time for each task rather than task based billing rather than hourly billing if the tasks are taking you less time than they used to maybe you gotta look at your pricing on those tasks and,
Right in you know I've had some interesting conversations with,
Professionals in in the legal services industry not not just attorneys and so I'm just going to ask you this question is,
Do you think AI is going to take the take the job of the legal assistant the parallel these staff person who supports us as attorneys.
I think that that job is going to be replaced by NAI technician who can do the same and get the same outputs out of the machines but
Do a faster and more efficiently. Okay. Yeah. I think we'll see. I think it's a skill that legal assistance need to develop if they're going to keep their jobs
That's right. That's kind of my thought process on that. Is it not?
Don't take away somebody's job but if you're going to be in the workforce for the next 510-1520, years, and as attorneys to,
I I think we do have to learn it because that's yeah that is just it's like going from the typewriter in carbon paper
To the work processor.
Yes. Oh my gosh. Yes. I I don't know the facts. I'm sorry folks. You can fast forward. I'm going to tell a quick story about that machine,
So this was the Nashville when I worked in the music business before I was in a dirty I work with songwriters very sensitive people do not want to let folks see their lyrics until they're really ready get it
It's their creative work
We had just got a fax machine that I went and bought for the office. Had to go like to the actual printer store and get it. Anyway, one of the songwriters was going to facts her draft lyrics over to the co-writer.
And she said put camera can we put it in the envelope before we put it in the machine?
Sorry.
I thought that was first break. No, that's great. That's great. Anyway, we're not going to be able to stuff the AI back in the envelope folks.
That's all I got on AI. Moving along. Well, just back to on the billing subject, you know, the other thing I'll say is that
Even though the the initial briefing or writing of a draft or brief or something it may be very quick using a iTunes,
This double checking and verifying and and you know the shepherd they still call it shepherdizing the the cases and making sure they're still
Relevant and real in the citation. Yeah, I guess that's still the word juice. Yeah. But yeah, you gotta check side check. Yeah, and I think that all of that is going to take, you know, I think that's where a lot of the time went anyway,
In a lot of litigation posture kinds of cases anyway you know the the motion might be the same from case to cave from you know
Year to year but as cases updating things you you would have to update and
Yeah, you're working from templates in a lot of these things anyway. So, the customization in the towering and the other thing that I think, hey, I will never replace is intuition and judgement and.
You know they're just a voice of experience the wisdom,
The AI may be very smart but it's not very wise. So, oh, that's a great, very smart but not very wise and and I think so even though you can say, well,
Right with an upbeat town write it with a trustworthy town write it aggressively write you know I'm also like
Yeah but the intuition of just knowing of that sentence is going to trigger my client or or those kinds of things. Those are the things that the AIs are nowhere near ready to replace. Maybe someday but for now I think that's what
Protects at least the older lawyers with who have the experience and the wisdom to,
To pedal we we can we can trust some that we'll still have something to do for the near future. Well, nothing is going to replace 10, 2030, 40, 5060 years, of,
Linkal practice and experience. Yup. And the younger lawyers that are coming into the space with, you know, who are getting the training, they're going to be AI Savvy and they'll be able to, again, be more efficient with their use of technology and yeah, as long as the.
And i said you've got to learn it. If you know while you've got free access to this,
Absolutely. Absolutely. Alright. Well, let's move on. We have this is a big story. I'll let you sort of take the lead with this but the
Band members from Super Tramp have been in court super tramps that's a long time ago but this case just came down so you don't take this one
I will and so,
Talk about a long time ago why it's an interpretation of a contract from 1977 that was then amended in 1983 1984
Four in 1991 so isn't that a good time by all the key two key songwriters of the band Super Train
To keep the band happy which is powerful was disclosed I guess in the discovery or depositions are where it might be. Decided that in 1977 they would include all of the band members played.
Plus they're manager in a publishing agreement that
That allocated specific percentages of their songwriter and publishing royalty so they did not make them co-authors or,
Copyright climates. Owners they just allowed an allocation of royalties. I revenue share a rev share deal as we would call it today. And
Again over time that was amended to add another person into the rapture reality the percentages and so on and so forth and this was all rocking and rolling.
Pun intended until 2018 when Hodgeson and Davies who are the two lead songwriters actually stopped paying the planes,
Historical publishing shares these playups suit for Bridget contracts seeking a continuation of what was been happening for decades and really this this centers around this 1977 agreement and
And weather because it wasn't when did it terminate
It was silent it didn't say it lasted in perpetuity nor did it say it terminated after a certain number of years or a certain triggering event it was silence so I guess under California law if it's silent
And this is similar in Texas it can be terminated after reasonable amount of time but
California looks at it in two factors and we'll talk about those in just a second. Case was filed in the US district court.
For the Central District of California actually remove to there
and it was by furcated on certain contract issues you know some preach trial motions and others but then what we really are talking about now is the single question of whether defendance royalty sharing obligation was terminable at will
Meaning terminable after reasonable time or instead persisted in perpetuity.
Which was based on at least until the song stopped
Generating royalties. The trial court determined as a matter of law without a jury that the 1977 agreement contained no express duration and no implied duration had been shown and so the court frame the remaining question for the jury as whether the defendants
Terminated the contractor for a quote reasonable time after 6 day jury trial the jury found for the defendants concluding
The contract had been terminated after a reasonable time. This appeal follows the plaintiffs continue to argue the agreement created an ongoing covenant to share publishing royalties for as long as these
It's super tramp compositions continue to generate publishing income.
Hey again to finish maintain the 77 agreement contain no express duration and that no implied duration can be in
Bird for being great from the agreements text for circumstances so on appeal we're looking at two principal issues that went to the ninth circuit,
Under California contract law did the district court air in concluding
That no implied term of duration existed in the 77 agreement and therefore in sending the next question was that a reasonable time to the jury,
Or if we sent this another way could a contract situation be implied from its nature and surrounding circumstances such as the contract could remain enforcing dental until an ascertainable event.
If an applied duration existed which is this factor one,
Is it the proper next question to ask the jury to measure reasonable time under which it could be,
Terminated. And here's what the ninth circuit had to say in there analysis that the 1977 agreement contained no express contract duration. But
The duration could be implied from the contracts nature so there was this continuing application
And basically the court voted down to really the contract was tied to the life of the copyrights,
And that's how long this revenue share should continue. It it triggered in me thinking about the share versus the bono trust state. So it was her marital
Distribution agreement. She again didn't matter.
If they terminated the original grant which is what happened in the in the bono. Yeah. Issue. She still got her revenue shared. Those actions did not defeat the share.
Anyway the ninth circuit reverse the district court judgement for defendant and remained with instruction to interjudgment for the plaintiffs online ability the court instructed that were contracts obligation is tied to an ascertainable event connected to the subject matter
I sessation of publishing revenue when the work center the public domain a duration may be implyed.
So
Hey it's interesting I mean,
This feels like one of those case law decisions that could that could be reinterpreted with the same outcome by saying rather than saying there was an implied,
Duration just saying that the implication is that the expiration of the cooperate is the reasonable time and it doesn't sound like they actually
Tried that question to the jury of what what was the time I don't know what how they phrased or what evidence was presented to determine what was the reasonable time so but the jury could have
Come to the same conclusion. Huh. Yeah.
Yeah they could've just said well keep as long as the copyright exists or that is the measure and so they could have reached the same outcome but maybe it would have still been challenged in the,
And,
Okay so now we have a nice circuit president on this particular kind of a question and I don't know I don't know what other circuits have have said or done about this when we may find out at some point but it seems like a pretty.
Logical. Approach to the case. I think so. I mean, I know I've looked at this.
In Texas related to trademarks and other matters I still you know if there is no term,
What is it different when you're not getting a revenue share but you're getting access so let's say it wasn't,
Well I edo if it was a licensed to use one of the super tramp,
Sound recordings or musical compositions and it didn't say in perpetuity,
And it was literally silent. Then, what is a reasonable time in that lesson? That's right. And then, you know, can you really,
Cut off a derude. Right, I don't know. I'm kind of changing the fact pattern too much there.
That would not have an implied end
It's transfer property that's right you know it's well I think it's it's there we need to keep it in mind I I think it
Yeah I think it's a nail like this or supportive of the decision related to the,
Bono matter that it that even a copyright grant termination was is not going to cut off the rights of somebody that's under it contractual obligation to receive those,
So,
Well I I guess this means there won't be a happy reunion concert tour of Super Trap anytime soon I know I've got I'm not going to sing
I've got songs going in my head. No, you know, as we, as we contemplate our breakfast in America, as we walk on the way home. Yeah.
Yeah, I know. They're all in there. Yeah, yeah, anyway. Well, interestingly,
In Canada we have we had an interesting decision relating to privacy and information,
Carried hosted in index by Google,
So we're going to shift into this privacy law here the the office of the Canadian privacy commissioner the OPC officer the prime commissioner has issued a report of findings in a case called number 20
25 5002.
Where they were investigating googles compliance with the law called Pepeda the personal information
Protection and electronic documents act there's a mouthful for you over undelisted news articles so the concern was an individual who had been,
Charged with some kind of crimes but the charges were later dropped. And the fact of those criminal charges
Remained in search results many many years later and caused him some harm to reputation embarrassment job loss and even,
Let him to be physically assaulted. The complainant claimed that by continuing to index and display these articles.
Google was collecting using and disclosing his personal information in a way that was no longer reasonable
Google of course resisted having to take this kind of stuff down they said freedom of expression the public has a right to access lawful news reports it's factual information you know those kinds of things well the OPC assessed weather showing these articles in name based searches
Met the laws test of purposes reasonable person would consider appropriate. So, search for John Smith. You're going to get results about John Smith and is there at some point.
Does it come some point where
It was no longer appropriate to present all the information about a person. They OPC found the Google met the Acura Accuracy requirements. Because they weren't responsible for the article content.
But they failed in their duty to avoid using or disclosing personal information in ways that cause undo harm,
Boy there's a general,
Hey Morphis on definable phrase right? So the OPC concluded that harms to safety and dignity outweighed public interest in keeping the articles searchable by name.
They said this is one of those rare situations where the harm to the individual outweighed the public interest and keeping the search results linked to his name,
And the OPC emphasize that the underlying news stories could remain published and accessible online that the decision did not call to delete them but it recommended that Google the list them
When the search results were for the particular person's name. Okay. Factoring in factors favoring the deal listing was that he was not a public figure.
The case, the original case had been stayed with no ongoing risk that he was going to be charged. Articles were incomplete, outdated, and
Potentially misleading and the passage of time had reduced the public interest in this kind of stuff maybe if he was running for office or something it would make sense to
You know.
Pull that back out. Yeah. Right. Balancing privacy rights with the freedom of expression they cited the Supreme Court of Canada saying charter rights don't permit damaging another,
Reputation merely to express myself so fundamentally the.
You know the item that we would make in a definition cases you're allowed to say anything you want right up to the point that it causes somebody's reputation harm if it's false you know although here this is true information so anyway,
So this ruling seems to establish a limited rate of deal listing
Under this law from non-publican visuals facing undo harm from misleading or outdated search results,
That aligns with GDPR and Quebec law etcetera so Google,
Has refused so far arguing that these decisions should be court defined and balance with media freedom and those kinds of things and the OPC is now considering what enforcement options are.
And you know, there we are. So, Google's. Yeah, so how are they going to enforce that? Are they going to just say?
People were turning you off in Canada I mean,
does that serve the Canadian public interest I doubt it yeah I don't know I think some lawmakers might be jumping up and down if they step closer to this sort of European style right to be forgotten,
Kind of regime and that's unlikely to happen in the US because of the first Amendment. Although,
The first amendment. Let's talk about the first amendment. Let's talk about the first amendment. For a minute. Yeah.
Late night television, right? This is the elephant in the room. We didn't have this in the rundown until he last night but,
It's about Jimmy Kimmel right he has been at the center of a real fire storm lately suspended briefly after some of his remarks drew some public denunciation
From the FCC chairman Brandon Carr who spoke out on a podcast basically threatening ABC affiliates with.
Risking their law broadcast licenses if they camel show was continued to near continues we broadcast I think,
No matter what you think about the words spoken about camel and this old you know his his the jokes and questions or the centered around Charlie Kirk and his funeral and the president's reaction to Charlie Kirk's assassination and so on. But regardless of what you think about the the
Tone or the actual words that he spoke with or the jokes that he made I think we all really should be concerned when a government official who swarmed uphold the constitution,
Wade's indoor situation like this and threatens,
Broadcasters threatens to use their office in in this way to intimidate or manipulate or or strong arm arm twisting kind of action against against speech. Here it's not,
It's not so much about muslin camel. I mean, there can be consequences for what you say. For what you say, but what they did was they threatened the broadcasters that then,
Went up the chain and threatened ABC in Disney and then ABC Disney made this choice. It was under dress. It wasn't an independent business decision. It was,
If not dictated by government it was at least prompted by government action seems to me that's a real violation of the first amendment.
Hey finish your thought on that because we're going to move on,
Oh well it just it's it's interesting I I mentioned to you that I'm in Tennessee. Mm hmm. This week. Yeah. And,
It's so the local affiliate here is not airing,
I suspect my ABC affiliate in the Dallas area is not airing and the reason for that is there one there owned by one of the company
That's another thing so corporate corporate companies that's trying to mergencies that were threatening or that were making noise with ABC and and,
And Disney are Sinclair which is a very conservatively owned chain of radio or network of of TV and radio stations and also,
Tegna and that's that's who is our affiliate in Dallas.
I want to say it's like next star or something like that. That's I think. Two station groups that are that are looking to merge and they're going to need FCC approval. So, when Brennan Car, the FCC chair made these remarks. It could certainly be implied or understood that,
He could stand in the way of that,
FCC approval of that murder. So, and that's a strategy that government has used recently in,
The Paramount merger or acquisition by Sky Danson and that lid I think to.
Stephen Colbears. Termination and,
And also AA large payout in a in a civil suit against ABC. Again, CBS excuse me by the president. So.
You know, anyway, that's not the story that we were planning to cover in this episode. But we felt like because we cover entertainment law and first Amendment, we needed to talk about it. Yeah, we need to talk about it. But but
Jimmy Kim will be Jimmy Kimmel talk to us about our next story recording well,
You may remember a while back I don't remember exactly when there's a couple of years back now,
George Santos the now discredited Republican Congress member had sued Jimmy Kimmel after Kimmel,
Made fun of the fact that Santos has a cam and account with cameo can we was that web service where you can,
Basically hire a celebrity to create a personalized message you know greeting card kind of a message or whatever and I think Kim will just sort of made fun of the sort of I don't know the indignity of of a
Now disgraced public official getting on there and having to do this to make a living or whatever anyway. So Santos had sued Kimmel over that on copyright infringement grounds and other things.
And now the second circuit so I'm sorry so the district court had initially dismissed the case on fair use grams,
So the second circuit now has.
Has addressed the question affirming that dismissal and holding at the fair used defense could in fact be used they looked at the factors first factor purpose and character of the use the cameo clips were sold as sincere personalized greetings,
Kim will use them to ridiculous to to ridicule
Santos is willingness to say almost anything for money. So that shift and meaning was the transformativeness that you're looking for on factor one.
What else the character,
Characterization of court was explicit that copying the entire videos was necessary for the joke to land and therefore didn't weigh against defining of fair use on the fact
Actor three and on the fourth factor san jose's claim of market harm failed because there was no
Cognizable licensing market for cameo videos to reused in parody or satire and camels use couldn't possibly substitute
For the purchase of a cameo. The question that wasn't addressed apparently that I'm wondering is
How did George Santos have standing under copyright law to sue when this was a I mean I'm I don't who knows what contract says with cameo but,
Strikes to me that it's sort of work made for higher,
At least argue that he wasn't. Yeah, I don't deserve. I haven't read the cameo terms reviews. To see.
I've only I have I'm not a user of Gameo. I've been out there because I've had clients who are in,
The entertainment space. Who have came your accounts and and you know they provide you. So,
But I don't know you're recording them on your maybe you're just giving cameos
A license to use that those videos but I also just want to point out it
About parody I just think it's a good reminder for all of us that what,
Many people think fits in the definition of parody just isn't purity. Right.
Jimmy Kim all the the show ever how you want to say whether yeah obviously it's going to be somebody behind Kim while he's back in this up but the the bit was written,
That it was,
Commenting on, making fun of, making a parody out of the original work. So, the new work,
Was,
Basing this on the original verses you know I have often heard people say let's in the well it's funny.
He gets a license people
So, anyway, I just always busy time. Well, he does now open. Who knows in the beginning? So, you know, just always a reminder, just because it's funny or you think it's funny
It may not be a parody. No. And qualify for fair use.
Parody and satire and just rock comedy and really it's it's parody is the shortcut to a fair use finding the others it's not a shortcut you still have to go through the sort of full analysis and to their credit the court
In this case did do the full analysis and didn't yeah just concludes orally say oh it's parody it's very use so that's great that's great,
Well,
Maybe the TTAB did not do a full now. We'll get to that at the end of this one. You know, this is another case involving a variant while not that variant. This one is actually the F word.
So this case is in red brunette from the federal circuit this year and attempted registration of the F word as a trademark,
I'm going to say the F word rather than the whole word because we have a clean rating and I don't want to change that. So, that's right.
It has four letters. Yes. In case anybody's confused. Yes, yes. So, Eric Brunetti,
Is the same designer who had previously litigated the case of Ianco versus Burnetti in 2019 over the market fuct,
May remember that was there in that case there had been a finding that the the trademark of Zack did out of order because it was a it this whole question of whether scandalous mark was a vagina.
Reason to deny,
Went for a registration. So, he had sought to register the word the F word across multiple classes of goods and services, clothing, jewelry,
Bags, beverages, and so on. And it was refused registration under section two A immoral and scandalous marks.
No, not under. That's right. It was actually not under there. Yeah. But on the ground of failure to function as a trademark.
Because the word is a common place term used in lots and different contexts consumers would perceive it as expression not a source identifier
Hey so I'm just going to,
The trademark applications were filed under one B which means they were filed with an intent to use,
So there were no specimen submitted to see exactly how the mark was going to be used okay
So I I just think that's part of the conversation. And maybe if the word was on the tag of the garment that might still be a trademark use,
That maybe. Okay. We didn't have that. Instead of just being expressing right for it.
Hey Facebook take video.
Trial on the peel board which affirmed and held that the mark failed function as a trademark and the board emphasized the widespread use of the word on merchandise media and expressive context and concluded that the public wouldn't see it as a brand
Okay maybe that's a valid interpretation but Brunette didn't like that he took it to the federal circuit and argued that it was an arbitrary,
Ruling inconsistent with other registrations including others that used that word as part of the mark.
And including the one that uses the word love as a standalone registration. And
Basically there was no principal standard behind this ruling he also raised some constitutionality and and retaliation arguments accordingly didn't resolve because it vacated on on marior grounds
So, in a majority opinion, the the dude, excuse me, the federal circuit, vacated and remanded, the refusal
Finding that they had failed to articulate a clear and rational standard excuse me for when a ubiquitous all purpose word can or cannot function as a mark they criticize the TTAB reasoning as opaque and add hawk,
Resembling me I know it when I see it approach which I get a kick out of and they stress that under the administrative procedures act,
Agencies have to provide reason decision making that connects evidence to their conclusions,
So basically follow the law and and explain yourself and directed the TTAB to remind on ran to adopt a more coherent methodology for a valuating failure to function refusals involving common place words
So, okay, I have to thoroughly support that. Yeah. The trademark practitioner. Yeah. Because.
You know, what's happening in my brain? Is Apple, is that not a comma in every day word but yet we know there are many strong trademarks related to the common advert term.
Yeah I think it was just an empathy to that kind of language that that motivated it at some point.
So, there was a descent in the case. The the judge Lori would have affirmed the dismissal. He said the yes the word is too ubiquitous and multipurpose to serve as a trademark.
Consumers see it as vulgar not as a source identically identification identification which I think is true.
I need distinguished it from those other marks like love or f cancer which are more contact specific in this capable of being perceived as I brand identifies. But,
Anyway he warned that ignoring real world perception,
That no reasonable consumer would view this word as a trademark it was a slippery slup
Dangerous thing. Yeah. I think there's truth in that too. I think. I think it was a rightly decided case but that that descent is a
Beautiful applications just for the F word. He filed one application for F it
Friday and another application for just Fit so seven applications in total,
You know made the choice to file this because he wanted,
Controversy. Yeah. Why in the world did he spend all those filing fees?
I mean one application could've probably got you where he wanted to go Eric yeah well,
You know, crusaders do what they do for reasons of. There you go. Yeah, yeah. So, anyway, that was, that was my real world. The action is like,
Did this really require seven applications to trigger a refusal and a TDAB,
Decision and an appeal. I don't know. But you know, cover all your basis. You take the next one
Yeah so the DC circuit reinstates the copyright that's kind of one one I think that's beautiful news they've weighed in on a consequential copyright administration fight,
I am involving Sharia Pearl murdered what was the
Existing current register of copyrights who is abruptly fired by the president and the Trump administration in May of this year,
Timing wise seems interesting it was only a day after the cooperate office released a report warning
Warning that the use of copyrighted works to train generative AI race serious legal concerns the report.
She challenged this promoter the removal her removal and a divided panel not the full panel but
A panel of the DC circuit has reinstated her at least temporarily for
Finding that her termination was likely unlawful it really is a separation of powers decision and who does she report to who has the authority to change her employment status,
The is the register and executive branch officer who can be removed at the pleasure and serves at the pleasure of the president.
Or a legislative branch officer who's insulated from direct executive control,
The majority in this case lean toward the view that it was legislated
Emphasizing that the registrar advises congress and you know reports the congress and is appointed by the library and a
Congress knight by the executive branch. Sure sounds like there was legislative officer to me but
Yeah and then the descent took the opposite view warning that the register exercises executive functions and it administering the copyright system and therefore,
Fall under a presidential removal authority.
President Trump has asked for a full DC circuit to rehear the panels decision of reinstatement.
His lawyers argue that the panel aired by treating the registrar as a legislator of officer pointing at the role involves executive functions like issuing regulations and overseeing copyright. So what do you
Opinions on if there isn't bonk review what is that trigger what do you think that's going to signal to us,
Well I I think because it was a divided panel that made this decision the request for on bunk review just says well okay maybe there's more maybe there is a majority of the judges on the whole panel
That will disagree with his ruling. You know, instead of just 2 out of 3, maybe,
However many it is on the total family will get 7 out of 13 you know right whatever it is so all I think all would signals to me is is that,
The White House and President Trump are,
Firm in their convictions about the about its authority there of their 32 take these kinds of actions I'm pretty sounds like sort of almost whatever action they want,
You work for the government, you work for the president, he can fire you as sort of that attitude. I find myself just at as you were talking about the facts. I I found myself wondering.
Which where does this register of copyright salary come on the budget?
You know, which department is it there? Is it, it doesn't come. It's your library of congress. Well, I think it has to be presumably comes out of the congressional budget overall.
You know I mean it's all allocated by congress anyway right I guess they could shift it around to to look like it's an executive branch office if they wanted to but being seen as I mean it sure strikes me that this is a legislative,
Branch office and we talked about this when it happened she was terminated,
Was the is the librarian of Congress and executive branch.
I think they may be presidential appointment I think you're right that's right,
But the light but the library and of congress reports points the registry of copyrights who reports,
To congress,
Yeah I mean it really is a interesting separation of powers and. Yeah. And questions of you know independence generally.
A various offices in the government.
Yeah, so, you know, look, if the register can be removed for issuing reports of displeased the White House, then,
Makes copyright policy yet another political football and.
You know, that can be troublesome. So, is the judiciary willing to check executive interference in copyright policy making. So far, that's the signal but we'll have to see what an on bank,
It has to say about it. The stakes are pretty significant here,
Yeah. Well, speaking of big steaks again and and coppery lawn, big reversals. Walt Disney Studios,
Also in the news for reasons other than the camel suspension from last week. There's a back in June of 2022 episode 146.
We talked about this case rearden lc versus Walt Disney studios motion pictures the case is now in the ninth circuit,
Decided September 11. This center's on the film Beauty and the Beast and the,
Hey facial motion capture system software known as Mova that was used in the making of that,
Live action Beauty and the Beast Reardon is the owner of that software and,
Disney's visual effects contractor digital domain used that software during production but didn't have a license for the software
So rearden claimed that Disney was on the hook for both contributory and vicarious copred infringement the jury agreed with written on that vicarious and fringement claim but the district court set the verdict aside.
With a judgement as a matter of law for Disney saying that Reardon hadn't shown Disney had the practical ability to control or stop the infringement,
We're in the field. So, I guess basically it saying digital to Amazon independent contractor in at least some regards. So, now the ninth circuit has reversed the that ruling, the panel said that there was enough indeed enough evidence
For a jury to conclude that Disney had the practical ability to supervise or limit its contractors infringing conduct and the court pointed to its contractual rights to oversee the work
To terminate if infringement occurred and the fact that Disney personnel actually attended the Mova capture capture sessions all of that the court said was more than enough to send the issue back to the jury,
But the night
Didn't give rear in a total win. They said that they did uphold the trial court findings that there's no available remedy of discouragement of profits,
Not under the cooperate act and certain expert testimony and indemnification evidence were properly excluded
So still big picture Disney is once again facing liability for this infringement and the case goes back to disrecord and resume another jury
Trial on some of those issues. Wow. These things do go on, don't they?
Again, this is because they, I mean, I guess they had, well, they had knowledge, probably a level of control that they're not wanting to
Yeah, you know, express. Over how the production company used this mova technology. Well, I'm how would Disney have known even if it's employees were in attendance? At the capture sessions and things like that. How would they have known whether the software was licensed or not?
I find that a troubling thing. You know if they if you make a contract with an independent contractor,
I think it's an implied covenant in every contract that the parties are going to do their work lawfully,
I'm sure there's a big fat indemnification going back but yeah but I suspect Disney is the one of the deep pockets as we like to say yeah. But,
I don't know. For a jury to conclude why you should you knew or should have known that that was unlicensed software. Unless there's a big red flag that pops up on the screen saying this is unlicensed software and somebody would have seen that. I don't know how they.
I don't know how they
Could be charged with having the ability to supervise or limit something they couldn't tell about. Yeah, that's where we don't know where the testimony were. It could have been,
Oh hey by the way.
We don't have a current license for this or we were beta testers but we never aid for a since you know maybe they just told them. Yeah. And that came out in in discovery. It could be. Could be,
Or maybe it was in the negotiations in the beginning. We don't use that software. We don't have that software in Disney said what we want you to use Mova. You know,
So maybe there's testing on there. Who knows? Well, speaking of cases going on.
I think this may be one of the longest ones single cases we've ever had we first talked about this case,
Episode 28 this is episode 184 so that was 2012 yeah so the case is,
The saga of Kim. Com and his site mega upload. Out of New Zealand,
So when the mega upload take down an extradition fight first began in in the 2012 13 years later now,
New Zealand High Court has now rejected Kim dot com's latest attempt to block being extradited to the United States,
So he's been hanging out on New Zealand in jail presembly for 13 years waiting for his chance to,
Defend himself in court. Well, avoiding his chance to defend. So, the background is this. The US indicted. Com and some colleagues.
Claiming that up the mega upload operated as a global piracy hub prosecutors charged him all of them with criminal copyright infringement racketeering money laundering and wire fraud a legend that mega upload facilitated billions of illegal downloads
It costs right holders over half a one 1 billion dollars in losses and generated hundreds of millions in advertising and subscription revenue for the operators.
Shades of AI in here I think yeah and and I just
Because we haven't talked about this since 2012. The person legally changed their name.
Last name
Dot com DOT COM just in case anybody's wondering what they're saying and why we're saying it that way. Okay. Good point. So, years of appeals.
You know I've gone around in New Zealand and the Supreme Court in New Zealand finally in 2020 cleared the way for extradition,
Then in 2024 the just dismissed minister formally signed off on surrender,
And then. Com files for judicial review are doing that was an unlawful decision political bias bad faith disproportionate punishments discriminatory treatment compared to his code defendants who were able to cut deals in New Zealand,
And the high court didn't buy it. No evidence of political motivation or bad faith and and the minister had properly considered dot com's health.
The long delays, other discretionary factors, and on the punishment argument to judges acknowledge that he might face a stiffer sentence in the US than at home but the vet disparity didn't rise to the level of shocking the conscience,
So now the extradition order is intact. Com is one step closer to facing US justice undercopyright and reciteering charges so,
Go sleep. You think they regret that name change?
I don't know. I would but who knows? Oh, yeah. You know, it just it's just really didn't hold up as right.
It is invited thought. Anyway, so let's talk about another blast from the past. Yeah. Snapster.
Napster you say hey napster yes we're going there so the mechanical licencing collective which
Workers going to call the MLC because that's what they go by formally terminated Napster's blanket license which was under the music modernization act of
2018. The MLC administers these nationwide blanket licenses for mechanical rights and musical competitions used by digital
Music providers.
We should say that instead of that napster is not the napster of the early 90s where the file sharing software was acquired by the service known as Rhapsody,
And then adopted as the replacement for so it's a it's a streaming service. It's a streaming service that
Up until their license just got pulled was was not the final share in Astra like you said
Of the 90s late 90s in 2000 anyway they they licensed platform such as Spotify, Apple Music, Amazon, Napsters in that type of platform.
The digital mechanical world he's our set by those statutory and body
Copyright office and so that or actually type right royalty porch that says and you know it's a matter of
Remitting those pennies and fractions of pennies from those service providers over to the MLC who then processes those in allocates them to the publishing companies but
Decided to stop paying. So the MLC sent that store a notice of default earlier in 2025 alleging they had
Failed to make required royalty playments and request
Recording obligations there's a statue period,
Napster did not remedy that default so effective August 24 2025 the MLC issued a notice of termination of their license so what's the significance of this without a blanket lies
Licensed Napsternal longer has statue authorization to reproduce and distribute musical compositions
In the US I'm going to clarify that to say it's related to the
Digital distribution. That means it could face concrete infringement. Viability if it continues to do this. I
I'm not a subscriber user and app sir but I suspect they're still doing it. It would mean just negotiate direct licences which we know how,
Dad is such a white boy in successful process.
And it the termination and underscores the MLC's willingness to enforce compliance and I think they have to enforce complaints. Yeah. I mean, they were formed.
By statue. They've gotta enforce. That's right. Obviously, the role one of their roles is that ministering these royalty payments, but I think they also have to take care of
The protection of the right city being grounded.
You know, industry observers are noting this could be a warning shot to other platforms,
I think it means that we need to know MLC is doing their job.
Yeah. Anyway, you have to wonder, you know, or other platforms going to be as vulnerable to if you miss your payments, you're going to have consequences. I guess that's what it comes down to. But I wonder if Napster didn't get singled out just because of the,
Negative perception in the industries of that brand Rhapsody obviously thought it was worth adopting the name for its service but
Both of us that are around in the early 90s we thought of napsters
Kind of I don't say evil but you know a lot of us were. Right. Perceived it as this sort of,
Scoff Law operation. Yeah. So, it was,
Free for all. Yeah. If you had that, if you could get to the technology, you could do what you wanted to. Yeah, but I don't think that's a reason that other folks should
Neglect their obligation to pay. Yeah, I I don't either and I mean the Email she is also, you know, they've done her really great job for
For music concert owners as far as getting distributions out and releasing money that was held for a long time by the various platforms and finally got it collected and paid.
So, I think this is I think this to me signals one more step they take their job seriously.
Well in another matter involving napster this one is Lowery versus Rhapsody International.
We had a case involving a group of songwriters who brought a class action against the service.
Then operating under under the name Rhapsody over unpaid royalties for uses of their works,
Well, years of litigation went on and finally a settlement was reached. It was actually a class action benefit to the class turned out to be,
About $52800 distributed to class members council,
Requested Attorney's fees in the neighborhood of $one. 7 million
Arguing that there are time, effort, and the load star ruling just fudge the award even if the class recovery was small.
So the disrecord initially had granted those fees but then they I think they rightly took it up to the ninth circuit and
The night circuit reverse saying few words have to be tied to the actual results the class members receive not just hype political maximum recoveries so on demand,
Judge Jeffrey White in the northern district. California. Reassessed and awarded the
Class council $86 thousand in fees so still more than five% reduction yes
And still more than the than the total payment out to the to the actual parties and interest the class,
Probably kind of normal. I hate to say. I mean, I won. I, yeah, I I realized that
Many of those fees are very much earned based on the work that is done in a class action. I I don't want to say that's not the case but it's kind of like taking something on a contingency. Yeah. You just can't get.
One. 7 million when the total class got,
Who go after these large fees when the classes getting a small so I think that it basically says hey hey lawyers if you're doing this
Keep in mind the amount of the actual award when you start asking for attorney's fees because we're not going to be,
We're not going to be rubber samping.
And the judge said, you know, yes, the lawyers spent their time on this but a lot of the work wasn't that complex and with the class member seeing very little direct benefit, it would be sort of an equitable too award such big attorney fees. It's a trend towards stricter,
Scrutiny of these class action settlements and fear requests. Especially in this copyright and royalty space where damages can be spread out over an awful lot of people and amount to a very small amount. Right.
I've always kind of felt like part of the motivation to get a class settled was because of,
Hit of attorney's fees and now I think this really makes it we'll make it harder for,
Planets with small individual cases to get justice,
Yeah I'm I am a little concerned I mean I I'm not saying no that I disagree with the judges decision but.
I think it's just going to make it hard and it's game may make it hard for people to get the type of representation they need. Yeah. I think,
I mean the good news is it seems like this is an ad hoc you know a fact specific ruling on this case.
But it should also be you know it should inform the thinking about of of potential class council,
But whether I'm going to take on this case if if it really means well your claim mister Planet mister lead plan of is really only going to amount to ¢52 for you,
I shouldn't expect to get thousands of dollars in legal fees for each of each version of you that I'm representing in this case,
So, you know, I guess it's a matter of,
I guess that streamlines doc gets a bit too upset there it could it could it's all in the name of administration of justice I guess so
Anyway, well, that brings us to the end of our episode and,
Wanna say a big thank you to our loyal listeners for being with us and for spending your time with us,
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