WEBVTT 00:00:02.437 --> 00:00:14.117 It's entertainment law update. It's entertainment law update. Episode 189 for the end of March 2026. Here we go, 00:00:19.689 --> 00:00:26.269 Hi everybody welcome back to another episode of Entertainment Law update from Los Angeles California I'm Gordon Firemark, 00:00:27.162 --> 00:00:30.222 Hey Anne from the Dallas Fort Worth Metroplex I'm Tamara Bennett. 00:00:31.952 --> 00:00:44.972 Podcast where we cover entertainment stories where both entertainment lawyers we talk about entertainment law and each month we round up notable cases and news and information keep you informed and hopefully just a little bit entertained 00:00:45.365 --> 00:00:58.505 Hopefully with us not at us but we thank you so much for being here with us and we do welcome your feedback and suggestions and any input you might have. So, please visit Entertainment Law update. Com and 00:00:58.859 --> 00:01:10.919 Drop us a note or a voice message using the little widget on our screen or you can send send us email entertainment law update@Gmail. Com is a great way to reach out so what's new in your end of the world Tamara. 00:01:12.174 --> 00:01:15.054 Gosh I don't even know into March. 00:01:15.712 --> 00:01:22.012 Feels like it should be end of May but I do not want to wish my life away. So, just kind of 00:01:22.301 --> 00:01:30.821 Plug it along. Nothing really new and developing at this point. So, how about you guys? Fortunately, much the same. 00:01:31.898 --> 00:01:38.138 Where gearing up toward the end of the school year and for us that means one's graduating. So, 00:01:39.379 --> 00:01:45.439 That's exciting. He's very excited that he got into all the colleges he applied to and I was just got some hard decisions to make. 00:01:45.581 --> 00:01:52.781 So we don't know if he's going to quack or not. That's right. So that's the 00:01:52.899 --> 00:01:59.539 Yes I understand yes it's just, 00:02:00.129 --> 00:02:06.849 You know, wow. I I remember. And you have two more. 00:02:08.564 --> 00:02:14.504 Yeah. Yes, I'm two more following behind. So, lot to think about and, 00:02:15.136 --> 00:02:19.876 Yeah. Anyway, that's that's what's going on in our world and sounds fun. Yeah. 00:02:19.979 --> 00:02:28.919 Yeah so we have some big news that just broke today the United States Supreme Court has made a ruling in the Cox, 00:02:29.781 --> 00:02:35.041 Communications versus Sony Entertainments on a music entertainment. Drawing a hard line. 00:02:36.138 --> 00:02:50.478 Well, they've they've limited the liability of the ISP and drawn a hard line at things like what we saw in Groxter years ago. So, the decision has real implications for platforms creators. Anyone building a business around content distribution. 00:02:51.595 --> 00:02:58.915 Earlier today Cox Communications were sunny music the court reversed the one 1 billion dollars verdict that we saw a couple years ago against Cox. 00:02:59.940 --> 00:03:05.820 The internet service writer accused of facilitating music piracy by its users The labels argument was, 00:03:06.881 --> 00:03:14.141 That Cox had received over 160 1000 infringement notices tied to its subscriber they knew the infringement was happening 00:03:14.470 --> 00:03:27.190 Kept providing the service anyway and therefore they should be on the hook for contributory copyright infringement a jury agreed in order to one 1 billion dollars based on statue damage figures and so on but the Supreme Court didn't 00:03:27.361 --> 00:03:33.721 They came down on a key principal saying that contributory infringement requires intent to 00:03:34.148 --> 00:03:41.888 Contribute to the infringement and that can only be shown in one of two ways either you're inducing infringement encouraging or promoting it 00:03:42.205 --> 00:03:55.945 Or you provide the service in such way that it appears to be designed for infringement and has no substantial lawful use. So, mere knowledge that red flag knowledge we used to talk about in the bicom and the YouTube case and all that. 00:03:56.735 --> 00:03:57.455 That's not 00:03:57.851 --> 00:04:06.191 That's not it. Even though you know what's happening even widespread infringement isn't enough. So. And that's what the fourth circuit applied correct. 00:04:07.196 --> 00:04:13.856 Hey is my understanding they supply this you know if you had knowledge at the recipient will use it and, 00:04:14.821 --> 00:04:28.561 That's sufficient to meet this standard. So they added I guess a third option to the two ways that in 10 should be shown. Yeah. So the court took a look at this the Supreme Court said that Cox didn't promote piracy. They didn't 00:04:28.729 --> 00:04:29.689 Obviously. 00:04:30.689 --> 00:04:41.189 There are other lawful uses obviously and they even did have some anti infringement measures in place so it wasn't like totally turning a blind eye it was 00:04:41.629 --> 00:04:47.389 Here's this rampant behavior that we can't exactly control and we're doing the what we can and and, 00:04:48.390 --> 00:04:56.370 I guess saying they're doing their best. I guess that's an open tune. Interpretation kind of a thing. But what gets interesting is 00:04:56.528 --> 00:05:06.368 Yes this gives the platforms and service providers out there a lot of you know breathing room and whatnot but it also does reinforce the hard boundary that rockster scenario. 00:05:07.709 --> 00:05:13.889 Which will still trigger liability. That's the MGM versus Groxter case from god what is that 00:05:13.939 --> 00:05:28.819 20 years ago, 18 years ago, something like that. Yeah. File sharing companies got nailed, not because the software could be used for entrenchment because they built and ran their businesses in a way that encouraged it. So, because they marketed directly to users that were going to 00:05:28.783 --> 00:05:30.463 Pirate content in a way that 00:05:30.566 --> 00:05:45.206 Encourage that it was a replacement for the napster service which had been put out of business previously and it built a model that depended on that infringing activity. That is inducement and therefore contributor in Frenchmen. So 00:05:45.591 --> 00:05:47.811 The real take away from today's ruling is 00:05:48.129 --> 00:05:56.709 If you're a passive conduit even if you know you're probably okay but if you're an active participant in the infringing activity then you're exposed to, 00:05:57.429 --> 00:06:02.409 The moment your business starts depending on the infringement or encouraging it you're no longer neutral 00:06:02.614 --> 00:06:11.134 That makes your participant and a contributor in fringe and now the DMCA was an argument in this also the court shut down the argument that 00:06:11.310 --> 00:06:19.590 Because the DMCA provides the safe harbor there's an implication that ISPs must have some kind of liability if they. 00:06:20.807 --> 00:06:29.387 If they're not following the the DMC rules and the court says no the safe harbor's merely a defense but failing to qualify doesn't automatically 00:06:29.702 --> 00:06:36.362 Make your light bulb. Which is I think a pretty interesting point of view. Yeah I I'm kind of trying to wrap my brain. 00:06:37.858 --> 00:06:46.678 Around that but I guess it's the same thing as saying fear use is a defense. And just because. 00:06:48.228 --> 00:06:55.128 Hey is it just because you that defense was unsuccessful it didn't mean you and fringe the copyright. 00:06:56.582 --> 00:07:06.062 I guess there is that well I I from from a contributory standpoint it doesn't work for direct infringement that theory does not work on for direct infringement. 00:07:06.908 --> 00:07:10.928 Do you think? I I think you write about the way that plays out. 00:07:11.802 --> 00:07:24.822 Okay you know I'm I'm not sure I agree with the outcome but it is what we've got. Okay. So there was a concurrence from just a so to my who agrees with the result but not the reasoning and she says this may be too restrictive. 00:07:26.215 --> 00:07:33.775 And it leaves the door open for other theories like an aiding and a bedding kind of liability or something like that. Not the statue doesn't provide for that at all. 00:07:34.248 --> 00:07:43.248 Eating in a bedding but right there she says the majority's opinion excuse me decision thus permits ISPs to sell an internet connection to every single infringement 00:07:43.610 --> 00:07:54.230 Excuse me, infringer who wants one without fear of liability and without lifting a finger to prevent infringement. It also means that Cox's free to abandon its current policy of responding 00:07:54.377 --> 00:08:04.577 To cooperate in fringe mode the DMCA safe harbor provision won't do anything at all 00:08:04.829 --> 00:08:09.449 Going forward. It basically eviscerates. They save harbor because who cares? 00:08:10.167 --> 00:08:15.807 Right? Yeah, we don't have to comply. So, what if we're an ISP? Right. Right. 00:08:23.791 --> 00:08:25.271 I think that's trouble, 00:08:26.107 --> 00:08:35.527 Not the last word on secondary liability but for now we've got a pretty clear rule you're not liable just because your platform is used for infringement even when you know about it. 00:08:36.859 --> 00:08:44.419 But if you encourage design for it, profit from it in any way, then, that's going to be the rockster scenario and you will be like. Right. So, hey, 00:08:44.475 --> 00:08:47.955 In here I've just got a quote here from the RI eight eight from today, 00:08:48.735 --> 00:09:02.355 quote we are disappointed in the court's decision vacating a juries determination that Cox communications contributed to mascale copyright infringement based on overwhelming evidence at the company knowingly facilitated theft 00:09:02.758 --> 00:09:11.998 To be effective copyright law must protect creators and markets from harmful infringement and policy makers should look close at the impact of this ruling 00:09:12.355 --> 00:09:22.975 They go on to say the court's decision is narrow applying only to contributory infringement cases involving defendants like cox that do not themselves copy host 00:09:23.060 --> 00:09:29.460 Distribute or publish infringing material or controller induce such activities. So, 00:09:30.080 --> 00:09:39.200 I I I do agree it's a I believe it's a very narrow ruling which I think brings up the this is not the last time we're going to hear about this so, 00:09:39.983 --> 00:09:47.003 You know this idea that it viscerates the DMCA isn't entirely accurate because they're not coxes and hosting 00:09:47.049 --> 00:10:00.069 The the material. So, they didn't have anything to take down. It does impact, you know, the the three time, the multiple offender kind of a thing. What they call it repeat infringement but. 00:10:01.705 --> 00:10:07.225 You could still go to the where the the content was being hosted and get it taken down if there, 00:10:08.592 --> 00:10:15.732 In the USM subject to the US law. Well, right and that's the whole reason they're suing Cox is because it's too hard to. No. 00:10:16.199 --> 00:10:17.699 Sue the individuals. 00:10:22.039 --> 00:10:25.799 Internet companies in the category where we used to call common carrier, 00:10:26.497 --> 00:10:31.717 Where no liability for what's transmitted over the wires. But, 00:10:32.196 --> 00:10:42.216 You know unless they're encouraging and facilitating that. So. Right. Another supreme court decision that we should talk about. This one is from, 00:10:44.016 --> 00:10:45.576 Siegel versus Salazar. 00:10:46.536 --> 00:10:55.836 The constitutional challenge to California's talent agencies act and I corresponded yesterday with Rick Siegel though the lead, 00:10:56.340 --> 00:11:04.980 Party in the case what it means is that the way California hasn't forced the talent agency's actual stay exactly as it has, 00:11:05.756 --> 00:11:12.116 Raised a pretty sharp question of over the authority of the California Labor Commission to enforce, 00:11:12.751 --> 00:11:18.451 It's enforced the the act by voiding contracts and ordering discouragement of compensation, 00:11:19.527 --> 00:11:30.387 Received by non-licensed talent representatives and that includes managers and lawyers who have been representing and and engaging in procurement of employment. 00:11:31.638 --> 00:11:37.278 The town agency's act itself doesn't actually articulate those remedies. Essentially, 00:11:38.272 --> 00:11:45.112 It's a regulatory statute the legislature didn't include penalties so the agency shouldn't have been inventing them, 00:11:45.816 --> 00:11:51.756 Which no it's a plausible argument but this is a and this is the kind of thing you would expect the, 00:11:52.577 --> 00:12:01.097 You know the Supreme Court to wait into but then they this case they just chose not to. The labor commissioner will continue to treat unlicensed procurement as a violation. It 00:12:01.228 --> 00:12:07.348 Continue to avoid those contracts and order that discouragement and repayment of money and the courts will back it up, 00:12:08.175 --> 00:12:18.315 Which takes us back to the earlier case involving seagulls company marathon entertainment marathon entertainment versus blossom you may recall that that that's going to be 00:12:18.431 --> 00:12:29.891 15 years ago now, two or something. You don't automatically have to void the entire contract if there were legal aspects of what the manager was doing. They could still retain the income 00:12:30.242 --> 00:12:36.182 Tributable to that but to you're severing the illegal activity and the and the 00:12:36.166 --> 00:12:45.526 Call El Gotton Games from that. So only the portions tied to the unlawful performance would have to go. So that softens things a little bit but, 00:12:46.285 --> 00:12:57.325 Here we're really talking about unlicensed procurement making the agreement vulnerable and another case that came up in analysis is wax versus curry. 00:12:58.275 --> 00:13:03.135 Which says the managers can do a lot of things but once they start procuring their acting is unlicensed agents 00:13:03.506 --> 00:13:12.266 And it's just a really kind of fuzzy line now. So, what does procurement mean? Lot of the things that normal management, 00:13:12.768 --> 00:13:27.028 Responsibilities include our sort of right on the razors edge of of what's legal in this case. So the Supreme Court basically saying we're staying out of it. We're not changing anything. If you cross the procurement line without a license, that's an illegal 00:13:27.245 --> 00:13:32.465 Contract since it's illegal from the start or at least when you start the procurement, 00:13:33.204 --> 00:13:37.044 You got essentially no contract. Contract void. 00:13:39.065 --> 00:13:43.205 Hey that's for everything so like you said that's for all of their 00:13:43.107 --> 00:13:54.867 Anything that actually would fall under the management heading. That's going to end that contract too. The way the labor commission has historically approached this is saying, 00:13:55.728 --> 00:14:04.428 You made a contract that called for or allowed you to do this illegal procurement you then did the procurement therefore the contract is void, 00:14:05.054 --> 00:14:13.574 And therefore from at the very beginning that it void Abinitio so you can't enforce the contract against the client, 00:14:14.381 --> 00:14:18.401 All you can do is maybe get quantamaro it sort of for value, 00:14:19.392 --> 00:14:28.032 The value of the services rendered kind of a thing that the legal service is rendered. So, Common Law already handles it is the way the courts are treating it and we don't need to 00:14:28.334 --> 00:14:30.314 Decide that an illegal contract. 00:14:32.295 --> 00:14:41.355 But there has to be a particular remedy. The contract law is pretty clear. No contract. You don't get paid. So, in the real world. 00:14:42.711 --> 00:14:47.931 I'm the talent you're the manager. We like each other. We like working together. Yeah. 00:14:48.643 --> 00:14:56.923 Does the labor commission only find out about this when we're not liking working together or do they go out and police it usually, 00:14:58.672 --> 00:15:02.932 Enforced as a result of talent either deciding 00:15:03.218 --> 00:15:17.558 I'm no longer paying my manager or complaining that you know the managers overstepped it sort of yeah nobody's making a complaint to labor commissioner unless they're unhappy. Okay. Something managers with the artist for years, 00:15:18.054 --> 00:15:22.554 And then the artist get the Rosa Blazzi case it was years and years of management of this 00:15:22.816 --> 00:15:28.876 You know, this young woman performer actor and then she gets cast on the desperate housewives. I think it was. 00:15:29.478 --> 00:15:32.058 Oh, okay. Yeah, I just learned this ad. 00:15:36.738 --> 00:15:42.978 One 1 million dollars a year each or something. Insane amounts of money. And okay, why am I still paying this manager? 00:15:43.737 --> 00:15:48.417 This is going to be my last job or or you know, this is the big pay. You didn't have it. Yeah. 00:15:48.553 --> 00:16:01.273 They didn't have sunset or some kind. Not usually. Something. Yeah. Well and if the manager was still the manager on the day they were cast. They're entitled to the compensation. You know their share of competition. Oh well that's true. Right. 00:16:03.425 --> 00:16:09.845 The out has been oh well you weren't supposed to do that so we don't have a contract so give me my money back, 00:16:10.339 --> 00:16:16.339 Got it. Okay. Yeah. If everybody's happy, this isn't coming into play. Well, 00:16:18.009 --> 00:16:24.309 I don't know if everybody's had an happy and the manager. Well, no, but I'm just saying if the talent in the mail, 00:16:27.406 --> 00:16:35.726 We're not having this conversation even if the actions of the manager might go beyond the scope. Yeah, I'm not falling to the agent 00:16:35.932 --> 00:16:36.352 Yeah. 00:16:42.192 --> 00:16:46.792 Commissioner zone authority. I think. Okay. Wait for complaint. Okay. Yeah. Got it. 00:16:47.068 --> 00:16:51.388 You want to take our next one also a supreme court decision that takes us into our area. 00:16:56.620 --> 00:17:10.420 I didn't I didn't get all my notes in order appropriately but that's okay Taylor be pearl murder I feel like it's going to be the case that goes on forever and it just might be Gordon the Supreme Court 00:17:10.816 --> 00:17:19.756 Had a very quiet refusal to hear Taylor Vermater so we don't have any settlement as to the future of AI and copyright. 00:17:20.226 --> 00:17:29.046 But it didn't close one door. That we've been looking at at the center of the case with Stephen Taylor who sought copyright protection for an artwork, 00:17:29.046 --> 00:17:35.286 generated entirely by the AI system he created then quote creativity machine 00:17:35.707 --> 00:17:40.807 He listed the machine as the machine as the sole author of this work 00:17:40.928 --> 00:17:49.248 And as we know when I've talked about for decades federal courts reject that claim holding the copyright law requires a human creator 00:17:49.481 --> 00:17:56.441 The monkey selfie case. The DC circuit frame to the rule plainly. Copyright protects to quote 00:17:56.521 --> 00:18:02.401 Original works of authorship and that concept is always meant human authorship. 00:18:02.399 --> 00:18:12.659 The court emphasize that the statute is built around human attributes such as lifespan, ownership, transfer ability, and those attributes just don't map 00:18:12.887 --> 00:18:20.147 One to one onto a machine. So in the Supreme Court declined in the review it left. 00:18:20.764 --> 00:18:33.004 That holding intact fully autonomous AI cannot be the author because it's not human so it can't be the author under US current law but I think the issue that 00:18:33.196 --> 00:18:37.876 You and I and many other people are wondering is. 00:18:39.002 --> 00:18:47.342 Art things that are at least partially created by AI now being protected by copyright and we know that at least the human, 00:18:48.093 --> 00:18:55.633 The things the human did so sorry of the dawn. Yeah. Which was the graphic novel where the, 00:18:56.530 --> 00:19:05.530 Artist had created the the text the layout that had gone to an AI generator to create the graphic elements. 00:19:07.873 --> 00:19:14.713 And Alan Allen Vermeter is another test for a hundreds of prompts and iterative refinements. 00:19:15.182 --> 00:19:19.202 Replied and that could per possibly cross into the line of authorship 00:19:19.207 --> 00:19:26.227 And then we're going all the way back to the supreme court in 1884. I love it when we do that. 00:19:27.047 --> 00:19:35.127 We we we actually did this class in copyright long in law school. The bureaus, the giles, liffagraph. 00:19:35.528 --> 00:19:47.048 Photographic Co versus the Supreme Court upheld copyright in a photograph because it reflected the creators intellectual conception that photo, 00:19:47.897 --> 00:19:54.977 I think so. That principal technology has used as a tool. 00:19:57.466 --> 00:20:04.726 Technology used as a tool it means it's not the author it remains with the actual person as the, 00:20:05.226 --> 00:20:18.246 I can't read this sentence. That principal technology as tool, not offer, remains the anchor. Okay. So, I mean, I think we've also had this conversation with Photoshop and other tools no, 00:20:19.351 --> 00:20:24.031 All kinds of digital workstation and production type elements, 00:20:25.193 --> 00:20:32.993 So but we're also looking at AI litigation is looking at fair use cases, author skilled versus Google, from, 00:20:33.556 --> 00:20:44.536 20 years ago that Andy Warhaw Foundation versus Goldsmith from just the last few years as we're looking at this battle over training data and work at home harm, 00:20:45.961 --> 00:20:54.901 I think we are kind of suspended between clarity and uncertainty as to where this is going. Hey, I alone cannot create a copyright. 00:20:56.476 --> 00:21:08.536 What happens when the human guides the machine and how much guiding is necessary how much assistance is necessary for the AI generated works and I feel like we 00:21:08.971 --> 00:21:17.011 Talked about a case in the last 2 years where the author 00:21:17.172 --> 00:21:25.692 The human author submitted all of the prompts that they generated to the US copyright office that was Alan okay. 00:21:28.172 --> 00:21:35.532 Yes okay and and I you know I had a conversation with a non IP lawyer in the last week or two and, 00:21:36.761 --> 00:21:42.281 They're like, well, I just, you know, could this maybe be protected by AI and, 00:21:43.171 --> 00:21:46.291 I'm like do you have any evidence as to, 00:21:47.483 --> 00:21:55.943 How many prompts were made what used it and you know I don't believe you need this evidence exist I might well, 00:21:57.354 --> 00:22:03.814 I think it's a losing argument. I think this really, yeah. I think this really I think what we're 00:22:04.164 --> 00:22:08.964 Headed for is litigating the minutia of, 00:22:10.106 --> 00:22:15.986 How much of this work was created by AI and how much of it was created by the human author and, 00:22:16.461 --> 00:22:24.801 Are often times the evidence won't be there for the the human author to prove that the level of their involvement to the satisfaction of a court 00:22:25.067 --> 00:22:37.007 Or copyright office. And you know, these, these were test cases where the the creators that were doing this were deliberately keeping track of who did what or in the case of the 00:22:37.373 --> 00:22:39.413 American cheese story or or the, 00:22:40.191 --> 00:22:50.151 Fellar actually identifying the author as the machine. You know, was sort of. Which was his machine? Right. I mean, you know, that he went through a whole patent related to his machine. But as well. 00:22:54.370 --> 00:23:00.010 If you and I made something using Photoshop we wouldn't say Photoshop did this we would say I created it 00:22:59.987 --> 00:23:06.347 I used a tool and I created it, right? So, I think he was signal or asking for some guidance or or 00:23:06.577 --> 00:23:14.977 Provoking something out of the course but I'm really worried that if I'm an a copper plaintiff because of something I used AI to create but 00:23:15.354 --> 00:23:22.614 Did my own part of it the defense is well that's AI it's not covered and I've gotta have to now have the burden of proving, 00:23:23.294 --> 00:23:31.214 Every single prompt I did to get there and what i had brought that was original before I started with the prompt and all those kinds of things. I think it's going to be 00:23:31.189 --> 00:23:42.109 Dramatically increase the cost of litigation the difficulty of getting representation in these kinds of cases it's going to have to be really a lot at stake to make that worth doing, 00:23:42.802 --> 00:23:51.442 Right before that we gave the, 00:23:52.713 --> 00:24:05.193 Status report from the copyright small claims court obviously it's small claims you're limited in what your recovery can be but it would be interesting to kind of go through and see if there are any AI, 00:24:07.233 --> 00:24:12.073 Subject matter kind of things showing up in the small claims court. 00:24:15.393 --> 00:24:18.013 It would give me the reason to, 00:24:20.107 --> 00:24:28.867 Opt out of the small claims process because I know that it's going to be too costly to expensive to difficult for that plan of to disprove, 00:24:30.469 --> 00:24:36.709 Or to prove copper at protection exists. Right. Yeah. So. Yeah. Yeah. Again, I think we're. So, 00:24:37.410 --> 00:24:47.550 Yeah so I have fun little tool I found in which I he's an actual agent that is a prompt builder yeah, 00:24:48.761 --> 00:25:01.781 So that I'm thinking you know that to me feels like it's even one more step further review remove because I'm just telling it this is this is what I think I want. Yeah. Or this is what I want. 00:25:02.535 --> 00:25:05.955 You write out the prompt to help me get that. 00:25:10.355 --> 00:25:12.255 And then you use it to prompt 00:25:12.257 --> 00:25:24.677 In Chatchy PT now we have to look at chat logs but both with the chatchy PT and whatever tool you used to make the prompt builder and maybe even the tools that were used to make that you know from a 00:25:24.662 --> 00:25:30.962 Corporate defense standpoint those are going to be the discovery requests that are going to make it really hard for planners to, 00:25:31.450 --> 00:25:39.010 Even comply much less prove you know. Oh gosh. Yeah. So, not being a litigator. I'm not. 00:25:39.687 --> 00:25:50.607 Not sure exactly how that plays out in the real world at what point does it become overly burdened somewhere who knows but and do these some of these services may not keep chat logs or who knows what so 00:25:50.922 --> 00:25:53.742 Yeah, I don't know. I don't know. I do love that prompt. 00:25:59.882 --> 00:26:04.302 They're still getting things wrong from time to time but oh gosh, yes. 00:26:06.172 --> 00:26:16.732 And full disclosure some of the the summaries that you're hearing today have been a helped by AI in the analysis and interpretation of of cases and things so, 00:26:18.855 --> 00:26:24.295 And and also that prompt filter. Yeah. Yeah. It's getting better. 00:26:27.315 --> 00:26:32.035 Oh yeah. I'll talk a little bit about it when I get to the case that I used it on. Well, 00:26:32.270 --> 00:26:35.450 The next story we might have talked about still in the AI arena. 00:26:36.155 --> 00:26:45.755 Is a Canadian court is letting an AI case proceed against open AI this is out of Ontario Canada to put a finer point on something, 00:26:46.313 --> 00:26:54.593 We've sort of suspected for a while. You don't have to have a physical presence in Canada in order to be sued in Canada. So, we have a couple of major 00:26:54.829 --> 00:27:06.589 Canadian news organizations the Toronto Star the Global CBC radio Canada all suing open AI alleging that their copyrighted news content was scraped and used in 00:27:06.919 --> 00:27:18.499 Training open AI systems and that that would and did cause harm in Canada the open AI service they pushed back at the beginning asking the court to dismiss on jurisdictional grounds. 00:27:19.063 --> 00:27:20.203 Straight forward argument 00:27:20.585 --> 00:27:28.565 We're not based there the conductor curt outside the country not a sufficient connection to Ontario to justify the case proceeding there, 00:27:29.029 --> 00:27:37.369 And the court said tough. You're wrong. On the question of whether Canadian copright could even apply to the alleged conduct. 00:27:37.833 --> 00:27:44.073 A court said that's not something we need to decide now that's a merit's question that will work out as the case moves forward, 00:27:44.612 --> 00:27:53.192 No reason to dismiss right now on that basis then on personal jurisdiction they applied the Canada's real and substantial connection test, 00:27:53.731 --> 00:28:01.711 And found that that standard so that sounds like minimum contacts under under Volkswagen. International shoe. Why am I thinking, 00:28:02.166 --> 00:28:04.026 Volkswagen. Thank you. 00:28:07.466 --> 00:28:12.906 Their content was created, monetized there. The alleged harm was felt in Canada and 00:28:13.140 --> 00:28:25.080 The services were also available offered and used in Canada by Canadian users. So they send court said that's enough. So you don't have to have offices employees or corporate footprint there in order to be, 00:28:26.067 --> 00:28:31.347 Amenable to a lawsuit to being what is the term hailed into court? Yeah. 00:28:31.937 --> 00:28:39.137 So the underline principles familiar being applied more aggressively in the digital context your activities have meaningful effects senators diction, 00:28:39.823 --> 00:28:42.523 That then can assert its authority over you, 00:28:43.775 --> 00:28:52.895 I, this is interesting to me. I've had a couple of friends in the podcasting space which is also very international and it's scope of the output can be consumed pretty much anywhere. 00:28:54.124 --> 00:28:58.384 Who have been sued over what I would characterize it not as frivolous but 00:28:58.818 --> 00:29:11.838 Relatively minor infractions of the rules that have, you know, come back to bite them in big ways. Extra territorially in the sense that the plaintiff is located in Ohio and and the defense is located in Ohio. 00:29:12.348 --> 00:29:12.948 But there. 00:29:17.051 --> 00:29:26.871 Jurisdiction because the podcast is distributed there. Everywhere. This could happen overseas too and so we could find ourselves seeing more and more, 00:29:27.634 --> 00:29:34.594 Content related lawsuits with decisions like this saying, okay, yeah, we we can reach you. And. 00:29:36.456 --> 00:29:49.716 I don't know what the outcome of that all is for people who do we no longer have the right to travel to this countries where we've got to say if if you want to be served if you don't want to be served you're not going well but I mean what if they, 00:29:50.329 --> 00:29:55.849 Have an alternative way of serving you know opening obviously found out about the lawsuit and was able to defend it right so, 00:29:56.531 --> 00:30:08.051 What if you don't defend and there's a default judgement in a particular country against you then you go to that country and they grab you up and seize everything you've got with you and demand that you, 00:30:09.044 --> 00:30:16.724 Pay the judgement or or you can't leave. Who knows what? Maybe that's an exaggeration of the possible consequence but anyway, 00:30:18.146 --> 00:30:22.286 Here we have yeah the another AI case in this case showing, 00:30:23.178 --> 00:30:30.618 The AI companies are not going to be immune from these things. One more AI story here. You want to do this one? 00:30:31.820 --> 00:30:46.280 It's a quick question yeah it's no the dictionary the encyclopedia and everyday kind of thing botanica versus open AI encyclopedia botanica and Miriam with Webster 00:30:46.620 --> 00:30:47.520 The dictionary. 00:30:52.160 --> 00:30:55.440 Open AI and federal recorder New York, 00:30:56.231 --> 00:31:03.191 There are legging open AI copied and used nearly 100 1000 in Cyclopedia articles, 00:31:04.026 --> 00:31:16.366 Indictionary entries without permission to train their AI models at the publisher's also claim that Chat GPT can generate outputs that closely resemble or reproduce 00:31:16.453 --> 00:31:22.993 Their content effectively substituting for their reference materials and diverting traffic from the 00:31:23.225 --> 00:31:32.085 Encyclopedia and dictionary platforms. At this case is one of the latest in a rapidly expanding wave of AI copyright litigations that 00:31:32.099 --> 00:31:42.359 Cases that we've been following bringing the total number of such lawsuits to over 90 worldwide that we've been able to track and like the others it sinners on the 00:31:42.317 --> 00:31:44.297 Unresolved question quote 00:31:44.414 --> 00:31:56.954 Or with the question being whether the use of copyrighted works to train AI systems qualifies as infringement or is protected as fair use. Determination that will have significant implants 00:31:56.990 --> 00:32:04.850 Implications for the developers and our content owners as we go forward and I think that is the question 00:32:05.263 --> 00:32:09.643 And we've had the the author's cases came down and said, 00:32:11.619 --> 00:32:13.779 Some mom said no and some of them said yes. 00:32:18.719 --> 00:32:21.699 Yeah. We'll have more to talk about for the next 00:32:21.783 --> 00:32:22.863 20 years probably. 00:32:24.051 --> 00:32:32.811 And I think that's the concern especially if they spit it outward for word and I and we've discussed this but I haven't done it in a while. I will go in and, 00:32:33.297 --> 00:32:43.617 Ask it to generate song lyrics from my clients to see just what it'll do and a lot of the services have put guardrails in to prevent a verbatim output 00:32:43.892 --> 00:32:52.772 Oven original source but and and that sort of eviscerates that potential kind of acclaim 00:32:53.075 --> 00:33:07.655 Accept in the center while maybe there's ways around it and and people will get those exact outputs. And just interestingly I think if ever there was AA business segment that was deeply affected by open AI I think it's the encyclopedia dictionary business, 00:33:08.960 --> 00:33:12.680 These these are the plans. Oh god. You would have thought would be in this in the very beginning because, 00:33:13.366 --> 00:33:20.866 You know, who who goes and opens a book anymore? We all go online. What does this mean? What's the implications of that? And, 00:33:21.342 --> 00:33:30.102 So I think that's I mean I remember being so excited when we got a full set of workbook dictionaries and you know you didn't get, 00:33:30.794 --> 00:33:35.774 Why guest people did get the full set at one time but we just got like a book at a time. 00:33:38.064 --> 00:33:47.584 Yeah. Yeah. Yeah. So, I mean, you know, you kind of got A through C and then, if you had to do research on Z, you might be out a lot. 00:33:47.745 --> 00:33:54.105 You still went to the library. You still went to the library. Well, one more AI story that's been, 00:33:54.668 --> 00:33:59.288 Interesting to note is nip on life insurance company of America. 00:34:00.943 --> 00:34:05.323 Suing open AI over chat GPT giving unlicensed legal help, 00:34:05.840 --> 00:34:11.600 That pushed a former planet to breach a settlement agreement and then flood the court with filings, 00:34:12.420 --> 00:34:21.120 So this this woman Graciela Delatorre was a disability claimant who settled and dismissed her case against the insurance company, 00:34:21.765 --> 00:34:31.305 With prejudice on January 2 of 2024 but then she had second thoughts or just decided to ask Chechi PT for legal help and asking 00:34:31.622 --> 00:34:41.822 If the previous attorney had no negotiated the settlement was gaslighting her and chatty I guess gave her an affirmative on that and so she fired the attorney. 00:34:42.713 --> 00:34:43.793 Then she, 00:34:44.460 --> 00:34:57.780 Use chatchy potatoes suggest arguments and draft filings to try to vacate and reopen the closed case and then allegedly chatty helped her file at least 44 new motions and papers, 00:34:58.287 --> 00:35:03.387 The court eventually denied the motion to reopen and said that the settlement was valid but 00:35:03.643 --> 00:35:18.283 Nip on still had to spend a lot of time and money responding to this flood of filings both before and after. So, nip on says, first torcha interference with contract, it says open AI knew about the settlement and still helped deletory breach it by filing to reopen 00:35:18.452 --> 00:35:27.392 And by adding nip onto a new case on the same issues then abuse of process says that chatchy pity aided a wave of filings and no proper purpose 00:35:27.788 --> 00:35:35.828 That had no proper purpose and the reviews to harass and burden the insurance company and third on licensed practice of law 00:35:36.123 --> 00:35:44.643 There's a good one. Chatchy patiya says allegedly drafted legal papers did legal research and gave legal advice in the Illinois without holding a law license. 00:35:45.279 --> 00:35:50.139 And it points to examples of cha chi pt style filings including fake case citation 00:35:50.563 --> 00:36:02.323 Okay. So, there we are there. So, Nipon wants the court to stop opening eye from giving legal help to Delatorre declare that it practice law that will license permanently enjoying AI 00:36:02.365 --> 00:36:12.625 Opening iPhone practicing law in Illinois and pay $300 thousand in compensatory damages attorneys fees cost 10 1 million in punitives and any other relief the court finds proper 00:36:12.781 --> 00:36:17.881 So this is a relatively new case we don't have much much going but. 00:36:19.001 --> 00:36:27.101 It does really sort of open up that conversation we're having a minute ago about tool or author. Right? 00:36:27.310 --> 00:36:36.670 Is in this case was it a tool or was it the attorney? Okay, it a case that we was in the news but I don't think I tagged a put into the rundown. 00:36:37.942 --> 00:36:49.282 So I I hate that I didn't put it in there because it would fit nicely with this and I just thought about it. You know it's the it was the criminal case where the defendant used 00:36:49.609 --> 00:36:52.189 Chat GBT to generate. 00:36:54.436 --> 00:36:59.276 Documentation and notes and different things that were then, 00:36:59.872 --> 00:37:13.132 Right that were then provided to the attorney and those documents were not considered attorney work product. It is the attorney. Oh did we okay? Because the attorney didn't create them. So I mean 00:37:13.465 --> 00:37:22.525 It is clearly a tool. Yeah. Okay, but hey, so this is the case summary that I I generated a prompt for. 00:37:23.557 --> 00:37:32.377 Add an actually run it through two different AI generators to see what came out and what I like. There were a couple of things that, 00:37:33.108 --> 00:37:40.908 Because the prompt said the prompt did not say that this was illegal audience it was a general audience for the podcast, 00:37:41.894 --> 00:37:46.094 It changed some wording that I believe would have made it incorrect. 00:37:47.890 --> 00:38:00.370 So anyway it it changed permanently enjoying to something else that could could could convey that but didn't use that legal terminology and it screwed up the damages. 00:38:00.574 --> 00:38:09.634 It said it's seeking $300 $300 thousand which is all of its attorney's fees and cost and something else I might know that's not right. 00:38:10.161 --> 00:38:15.981 So anyway I I thought it was interesting to kind of just double check it and see where. 00:38:18.802 --> 00:38:23.942 It just didn't get it right. So, no. No. 00:38:25.915 --> 00:38:33.835 So did you hear about Afroman? Did you you know I feel like maybe we had talked about him before. 00:38:33.955 --> 00:38:40.315 Four. I don't remember if we discussed it when it first came down but then this is. Oh yeah, I I don't either but, 00:38:40.760 --> 00:38:49.280 It's it's fun. Definitely. So Afroman has real name is Joseph Edgar Foreman 00:38:49.483 --> 00:38:51.283 Is a wrapper who had 00:38:51.527 --> 00:39:02.987 Couple of songs because i got high and cold 45 he has now prevailed in the jury trial against him brought by several police officers from the Adams County Police Department, 00:39:03.671 --> 00:39:16.571 They backstory. They're claiming defamation against them. The back story on this is that they rated his home in 2022 on a tip from a confidential informant. They were looking for narcotics and human trafficking evidence, 00:39:17.570 --> 00:39:23.090 Making references some kind of secret basement and so they rated on a basis they had a warrant and they went in rated. 00:39:24.493 --> 00:39:33.073 And when they were done and they found nothing he asked that the police repay him for the damage to the property they broke a gate they broke the front door, 00:39:33.568 --> 00:39:42.028 And $400 in missing cash that never showed back up that was never returned apparently due to accounting error by one of the officers or something 00:39:42.390 --> 00:39:52.170 The police refused to pay for any damages so affirm and sued the police department and that was ultimately dismissed due to the officer's acting in their official capacity 00:39:52.607 --> 00:39:57.527 So he then attempted to get the funds needed to pay for his door by making songs about the incident, 00:39:58.189 --> 00:40:07.969 And came out with an album called Lemon Pound Cake. In 2023. Expressing his thoughts about the raid. Talking about 00:40:07.992 --> 00:40:13.452 The sheriff Randy Walters is a son of a bitch was one of the titles lemon pound cake is another, 00:40:14.464 --> 00:40:18.184 Including various insults and jabs at the at the officers there was there was, 00:40:19.353 --> 00:40:30.453 Home security footage of the cops moving through the house and this one officer barley stopped and took a good long look at the piece of the the cake on the on the counter the lemon pound cake on the counter, 00:40:31.893 --> 00:40:39.333 And so the music videos for these songs feature that footage and call these cops out for their 00:40:39.554 --> 00:40:49.574 Behavior and whatnot and ultimately the officers then sued him for mispropriation of likeness false light invasion of privacy and defamation. 00:40:51.131 --> 00:40:58.571 And the court initially dismissed the claims regarding misappropriation of likeness but a loud the false light invasion of privacy and defamation 00:40:58.945 --> 00:41:11.125 To go forward for a while ultimately it was winnowed down to just false light and defamation and there was a quick 3 day trial short deliberation in the jury found totally in favor of Afferman. 00:41:13.826 --> 00:41:20.726 And there were some notable instances in court of of direct conflict between the the defendant and the 00:41:20.857 --> 00:41:29.437 Witnesses on the stand and all kinds of interesting stuff. So, he still gotta pay his attorney's fees for the case. There's no anti-slap law in place, 00:41:30.498 --> 00:41:39.978 Well, there is now but it wasn't in place at the time he filed the suit. So, he he's been vindicated in what maybe a pair of victory depending on the amount of his 00:41:40.184 --> 00:41:50.024 His attorney's fees but. So, I think when the anti-slap law just came into place in 2025, then, in Ohio. So, 00:41:50.393 --> 00:41:59.093 I I do think we've talked about it before because I remember this lemon pound cake but I don't think I ever went out and listened to any of the songs. To the tune of 00:41:59.512 --> 00:42:01.612 Under the boardwalk. Under the boardwalk. 00:42:05.052 --> 00:42:06.412 Licensed it or not. 00:42:07.002 --> 00:42:11.082 No I did too and I didn't see anything he has registered, 00:42:12.088 --> 00:42:16.948 With BMI. Interesting. Listing himself as the sole author. Wow. 00:42:18.318 --> 00:42:23.118 I mean it's not a sampling and it's not. No, no, no, it is the tune of, 00:42:23.611 --> 00:42:32.011 It is not a parody it is the full on tune of under the boardwalk okay so whoever wrote that of the from the drifters will be in touch I guess. 00:42:32.784 --> 00:42:42.264 Resnick which is one of our other favorite people to talk about. Yeah. Hey, Resident. Very interesting. 00:42:42.750 --> 00:42:49.410 There's two songwriters. I apologize to the other. So, I'm surprised that I that your name did not stick with me like the res nickname did. 00:42:49.943 --> 00:42:54.263 Who knows if he's making any real money from the songs but it certainly seems like, 00:42:55.506 --> 00:42:57.486 Those officers may get the last laugh. 00:43:03.746 --> 00:43:06.666 Unfortunately, yeah, unfortunately, it's not. 00:43:08.038 --> 00:43:10.198 Well, but you know, it it. 00:43:10.540 --> 00:43:18.460 It'll be interesting if if to follow up on that if if and when anything comes up but yeah I mean that is just to me I mean well 00:43:18.876 --> 00:43:21.576 Are we all know that freedom of speech is, 00:43:22.329 --> 00:43:31.789 Balanced again these against these other causes of action. Yeah. But this line's right up with the woody guthrie thing where he didn't like the use of the of the melody from, 00:43:32.803 --> 00:43:39.883 What were those actually the it was a parody video or or a satire video of oh right, 00:43:40.419 --> 00:43:47.019 Yeah sorry I guess I was I was going backwards to the his ability to, 00:43:48.782 --> 00:43:59.942 Make these works to make fun of the off the officers you know that's obviously his first first amendment right but that's balance with these defamation ferry. 00:44:01.889 --> 00:44:11.489 Claim. Yeah. So, anyway, we may see something more about this and talk about a man again on the show. Who would have thought? But anyway, what's the next story we've got to cover? 00:44:12.052 --> 00:44:16.192 Well I say case here's a state has settled with 00:44:16.401 --> 00:44:25.761 The Trump campaign they reached a confidential settlement with Donald Trump and his campaign over the unauthorized use of the song Hold On I'm coming. 00:44:26.123 --> 00:44:31.883 Add campaign events. We did, we've talked about this in episodes 172, 00:44:31.883 --> 00:44:44.003 180 and today, 189, the lawsuit was filed in August 24 alleging that Trump and his campaign used the salmon Dave hit which was written by haze and his long time 00:44:44.001 --> 00:44:47.661 Collaborator David Porter without permission 00:44:47.837 --> 00:44:56.477 Add more than 130 rallies between 2022 and 2024 as well as the 24 Republican National Convention 00:44:56.578 --> 00:44:59.698 The estate claimed copyright infringement and, 00:45:00.197 --> 00:45:08.837 Start to stop for the use of the song the reason they're able to claim this copyright infringement is because the estate up 00:45:09.244 --> 00:45:14.104 Out of the BMI blanket license for political events 00:45:14.528 --> 00:45:23.588 So there was no grant of a public performance license for these type of events and September 2024 US district judge Thomas 00:45:23.855 --> 00:45:27.695 Trash junior issued an emergency in junction in federal court 00:45:27.752 --> 00:45:38.912 In Atlanta ordering Trump to cease using hazes music at the campaign rallies then on February 23 2026 Jesus son Isaac Hays the third. 00:45:39.644 --> 00:45:43.124 Announced that the parties had mutually resolved this dispute. 00:45:44.281 --> 00:45:53.521 After a review of court documents it shows the case was voluntarily dismissed with prejudice each side covering their own legal fees and cost but we don't have any other 00:45:53.913 --> 00:46:06.093 Settlement terms. The family did make a public statement saying they were satisfied with the outcome and emphasize that the case reinforced the importance of protecting and electrical property rights, legacy, 00:46:06.660 --> 00:46:07.440 Improv 00:46:07.426 --> 00:46:21.946 For authorization to use creative works. Hey, the third, had previously stated the family sought to distance the late artist music from the Trump campaign and objected to what they've viewed as an authorized and inappropriate little use. 00:46:23.540 --> 00:46:24.260 Alright, 00:46:25.061 --> 00:46:39.461 Well, this is the case we decided debated whether or not to keep in this in the thing and we're keeping it in. It's involves Tracy Anderson, a celebrity fitness trainer who developed a series of dance based workout programs that she marketed as the Tracy Anderson Method 00:46:39.734 --> 00:46:44.874 It's sequences of movements taught through classes and videos and subscription content. 00:46:45.253 --> 00:46:57.493 Well Megan Rupe was a trainer who worked for Anderson before leaving to start her own fitness platform called The Sculpt Society and her program similarly features dance based workout routines 00:46:57.622 --> 00:47:04.042 Delivered through digital media. So, Anderson sued in the US district record for the central district here in California. 00:47:04.430 --> 00:47:13.770 Alleging that Rupert copied the workout routines and among other claims asserted that sequences of movements in the programs qualified as choreographic works, 00:47:14.268 --> 00:47:22.488 Protected under the copyright act and that group's works were infringements. So, root moves for summary judgment on the copright claim legend, 00:47:23.080 --> 00:47:31.000 Arguing excuse me if the routines were not copyrightful subject matter because they were merely a system or method of exercise rather than protectable expression, 00:47:31.606 --> 00:47:38.686 And the district court agreed and granted her summary judgement holding that the routines were a process system or other methodology, 00:47:39.213 --> 00:47:44.133 Designed to improve physical fitness and therefore fell outside the scope of copyright protection. 00:47:45.843 --> 00:47:52.423 Section 102 B of the copyright act excludes any idea procedure process system or method operation 00:47:52.572 --> 00:48:02.172 So, Anderson Appeals and the ninth circuit has now affirmed the lower court's ruling concluding that although the routines incorporated dance like elements, 00:48:03.051 --> 00:48:11.631 They were functional in nature and organized for the purpose of achieving the fitness result as the and as a result then they were not 00:48:11.864 --> 00:48:18.584 Protectable as artistic choreographic kinds of works they fall in the uncopper edible methods and systems group. 00:48:23.486 --> 00:48:32.006 Those who've been listening to us for a while we'll remember we talked about be crumbs yoga college of India versus evalation yoga back what was that 00:48:32.416 --> 00:48:35.776 13 years ago February of 2013, 00:48:36.797 --> 00:48:48.197 They're the case also night circuit had determined that a fixed sequence of 26 yoga poses and two breathing exercises even when arranged in a specific order and taught as a branded system, 00:48:48.773 --> 00:48:59.993 Constituted an uncopyreadable system or method of operation same analysis section 102 B that we're talking about here so the court emphasize that functional sequences designed to achieve a physical result, 00:49:00.467 --> 00:49:13.607 Improved health are not protected even if they involve some creative selection or arrangement. So the night circuit treats the Tracy Anderson method similarly rules that it is outside the scope of copyright and, 00:49:14.214 --> 00:49:20.094 The court even also went back and looked at the Supreme Court's articulation of idea expression from 00:49:20.533 --> 00:49:24.553 Baker versus seldom there's another law school case we we're both. 00:49:26.000 --> 00:49:34.080 Recalling from all those years ago that that case established a copper it doesn't extend to systems or methods described in a work that was the, 00:49:34.595 --> 00:49:46.055 Wasn't that the mathematic accounting books or something like that? Oh, maybe. Yeah, I'm not remembering. And the authors only to the ex authors expression of the ideas embodied there. So, 00:49:47.297 --> 00:49:53.657 Same also consistent with feist publications versus world telephone and so on and so forth. So. 00:49:55.153 --> 00:50:07.153 Hear the court implicitly distinguished true choreographic works like stage dance performances which are made for expressive purposes and do qualify for protection when they embody original express of authorship 00:50:07.408 --> 00:50:12.508 Rather than just functional instruction. So, here are those routines where fitness. 00:50:13.312 --> 00:50:21.572 So end quote dance fitness for anybody who's into that I am not but. 00:50:23.315 --> 00:50:26.615 I have a girlfriend who loves to dance. I mean, she loves dance fitness. 00:50:27.204 --> 00:50:33.444 So I think the only way you can maybe get this to fit undercopy right is if you don't say, 00:50:34.118 --> 00:50:43.238 Fitness, exercise, health. Right. And you just release these 20 minute segments of dance moves. 00:50:44.263 --> 00:50:44.803 Huh, 00:50:46.207 --> 00:50:55.607 But it's a marketing issue. Well, and and at what point does that marketing not matter? How it's marketed isn't the point? It's what it's actually used for, right? 00:50:56.884 --> 00:51:00.664 Hoping maybe I just want to learn how to dance. So, 00:51:02.276 --> 00:51:11.796 To pick a brand. Yeah, well right. You know I'd rather go to CrossFit than go to Supa. Anyway, that's just me. 00:51:13.332 --> 00:51:27.432 Hey but the rest is whole new rage of these young cute moms who have netly who have just had kids. I don't know why the apps think I'm the target audience for this. Where they're doing dance steps. Mm hmm. 00:51:28.221 --> 00:51:36.861 In the garage. Yeah. Oh. And you can sign up for their program and learn these dance steps which are clearly choreographed dancing. 00:51:38.475 --> 00:51:41.175 But it's for the purpose of fitness. Yeah. I mean. 00:51:41.581 --> 00:51:52.981 So if you took videos of of people doing these dance steps is that artistic expression or is it physical fitness. 00:51:55.878 --> 00:51:58.918 Hey thank you don't call it fitness. 00:52:07.903 --> 00:52:16.963 Okay well somebody try that let us know. Episode 38 is when we spoke about the yoga case. Wow. So a little while ago. 00:52:17.644 --> 00:52:18.904 Yeah. Interesting. 00:52:20.944 --> 00:52:24.964 You want to tell us about BMI and the concert promoters association? 00:52:25.818 --> 00:52:30.138 I will. Okay. I want we've got it up there. Okay. 00:52:31.579 --> 00:52:41.659 So you've probably been hearing this summon the news about the live nation is what we're really talking about is this live nation case the US Court of Appeals for the second circuit has overturned, 00:52:42.685 --> 00:52:50.725 All as part of the Live Nation case. Sorry, that one was ticketing. This is not the ticketing case. Has overturned BMI's recent and dramatic 00:52:50.790 --> 00:52:57.450 Price hike on Live Nation AEG and other concert promoters. According to the ruling, 00:52:57.947 --> 00:53:11.447 There was 138% rating increase approved by the lower court and that was unreasonable and there was no president in the history of the industry for a new approach to concert revenue 00:53:11.720 --> 00:53:20.780 So BMI is one of the I think we have five PROs performance rights organizations in the US, 00:53:21.344 --> 00:53:36.044 Hey Grant just like we were talking about these public performance rights related to Isaac hey songs they actually come up with a blanket license for these large concert promoters allowing them to use all of the works 00:53:36.198 --> 00:53:45.438 In the BMI catalog and they negotiate agreement and they failed to negotiate this agreement with the National Association of Concert Promotors, 00:53:46.244 --> 00:53:55.004 Ian on these rates and revenue for blanket licences. So, this was the first time that BMI actually petitioned. 00:53:56.228 --> 00:54:03.008 And went to the US district court for the southern district of New York to set licensing terms and this is part of their, 00:54:03.780 --> 00:54:13.200 Anti trust consent degree and the promoters association whose members include the two largest promoters AEG and live nation. 00:54:15.520 --> 00:54:18.940 It has historically again secured these blanket licences. 00:54:19.679 --> 00:54:28.139 Add this may just negotiate a rate but they just couldn't come up with a rate because BMI had increased it what 138%, 00:54:29.419 --> 00:54:38.419 In a lower court had approved that but this action overturned previous lower court ruling from 2023 which significantly increase the public performance royalties 00:54:38.746 --> 00:54:46.186 By paid by the members of the North American concert promoters association again including Live Nation and AEG, 00:54:47.415 --> 00:54:55.335 In this ruling release earlier this month in March the federal hills court said that the lower court judge needs to rethink his 2020 through it 00:54:55.427 --> 00:55:06.107 2023 ruling quote the district court adopted a definition of the revenue base that had no president in the history of the industry without a compelling 00:55:06.193 --> 00:55:20.053 Reason. But despite striking down BMI's rate increase the appeals court decision wasn't a complete loss for BMI. The court suggested that BMI would still potentially be owed an increase just not 00:55:20.147 --> 00:55:23.567 That much of an increase and what. 00:55:24.990 --> 00:55:32.250 There are live nation AG these large concert promoters are having to pay for their blanket license 00:55:32.669 --> 00:55:46.169 And a kid and that's for people who just kind of a primer when you go to a concert and you're hearing live music. It's a public performance and somebody should be paying the performance rice organization 00:55:46.361 --> 00:55:53.261 Which that money goes to the music publisher and and goes to the songwriters. Yeah. And venues have 00:55:53.518 --> 00:56:04.858 Sometimes they have like a licenses for all the internal stuff but when it's a package show like a concert tour coming in the venue usually expects the promoter to pay that that's why the promoters here 00:56:04.960 --> 00:56:13.360 Which also owns some of the venues of course but they were in this dispute over the royalty rate to be paid for those things. 00:56:15.097 --> 00:56:25.117 So it's gone back to the lower court that made the big 138% increase happen in the first place saying okay take another try at it be very interesting to see how much, 00:56:26.287 --> 00:56:30.667 How many economists testimony was involved in figuring out you know is it tied to a 00:56:30.643 --> 00:56:43.303 Produce a price index or something like that and if so, maybe I mean, maybe there's a rational relationship that says well, it's been 15 years since there was a meaningful increase and therefore, it should be this big. Sounds like unable to brief that to the court 00:56:43.409 --> 00:56:43.949 So 00:56:44.849 --> 00:56:53.969 I mean it probably was a super low rate to start with. Yeah. Because historically, they've always been a super low rate. So, 00:56:55.166 --> 00:57:06.626 Yeah, yeah. It is what it is. Well, you mentioned it at a moment ago that the live nation case is there's another component of case against live nation. This one was the anti trust, 00:57:07.346 --> 00:57:15.866 Argument the DOJ had been suing Live Nation and Ticketmaster along with 36 different states also suing. 00:57:17.528 --> 00:57:22.148 Over anti trust but the DOJ has now proposed a settlement. 00:57:23.469 --> 00:57:34.149 That the states in the district of Columbia are not interested in so they've essentially reached the settlement live nation reportedly due to pressure from the president to ensure a settlement, 00:57:35.406 --> 00:57:36.306 It has some 00:57:36.378 --> 00:57:48.978 Mild consumer protection measures but relatively weak. It's like a 15% cap on amphitheaters only. Divesting themselves of a total 13 venues and restrictions on exclusivity deals 00:57:49.161 --> 00:57:55.041 The trial judge sort of criticized how the settlement came together as as the judge was left out of the loop 00:57:55.220 --> 00:58:08.480 Until right before it was announced and in the aftermath the states have said we're not on board they've initially moved from this trial and after motion for consideration was held they and gave the parties a week to reach a settlement 00:58:08.876 --> 00:58:14.516 The state's scrambled to prepare for trial with various state attorneys generally placing statements that 00:58:14.854 --> 00:58:25.414 They're going to continue with the ultimate goal of requiring a live nation to divest ticket master. So that's an ongoing case the trial is apparently underway and we'll see, 00:58:26.413 --> 00:58:37.693 Yeah I also so kind of what's come out of that has been the filing of so legislation anti trust accountability and transparency act. 00:58:37.713 --> 00:58:41.773 So we'll see if that goes anywhere. Clover chart. 00:58:41.789 --> 00:58:49.469 Durbin and other democratic leaders have filed that so we'll see what happens. So trying to. 00:58:50.575 --> 00:58:59.095 Restrict the DOJ's authority to sort of unilaterally set all these guns things without sharing. That's interesting. Well, 00:58:59.532 --> 00:59:05.772 Katy Perry and Katy Perry have been going out in court. We've talked about this case before you want to take this one, 00:59:06.284 --> 00:59:09.404 Yeah so we talked about it last time was 00:59:09.461 --> 00:59:19.061 A little over a year ago December 2024 episode 175 it's Taylor versus killer queen LLC killer queen being, 00:59:19.688 --> 00:59:30.308 The Katy Perry we know in the US yeah the high court of Australia ruled in favor of an Australian fashion designer over companies 00:59:30.518 --> 00:59:44.798 Link to pop star Katy Perry this clarifies how court success reputation and consumer confusion at least it Australia as to trademark law the case was brought by Katie Jane Taylor 00:59:45.120 --> 00:59:50.700 Who began selling clothing under the name Katy Perry and 2007 00:59:50.962 --> 01:00:03.922 In 2008 she's secured in Australian registered trademark for Katie spelled with an IE Perry in relation to clothing under the Australian trademark acts, 01:00:04.380 --> 01:00:11.860 Trademarks act 1995 at the same time Katie K A T Y Perry. 01:00:13.071 --> 01:00:24.651 Who's born Catherine Hudson was building her career as an international recording artist and as her famous banded companies associated with her brand which is killer queen LLC the part 01:00:24.496 --> 01:00:30.436 Party in this case begin marketing clothing in Australia bearing the name Katy Perry so 01:00:30.374 --> 01:00:37.154 But I also recall that the US Katy Perry had filed several trademark applications and I think that's what got 01:00:37.243 --> 01:00:40.663 At this started and that according to our notes from 01:00:40.762 --> 01:00:47.482 December of 2024 US Katy Perry had actually maybe abandoned the clothing application but, 01:00:48.360 --> 01:00:52.860 Cap some of the others at anyway. Obviously, she was continuing to sell clothing. 01:00:53.920 --> 01:01:08.560 Taylor sued alleging trademark infringement. She argued that the use of Katy Perry on clothing was deceptively similar to her registered mark and likely to confuse consumers. The respondent companies which relate to the US 01:01:08.642 --> 01:01:14.282 Singer Katy Perry denied infringement and filed a cross claim seeking to cancel 01:01:14.386 --> 01:01:25.126 Australian Taylor's trademark arguing that the singer already had sufficient reputation in Australia at the time of that registration and the mark wasn't here until misleading. 01:01:26.719 --> 01:01:33.739 Okay we're within a 12 months of each other from the time it's filed and and US Katy Perry's career starts to take off, 01:01:34.487 --> 01:01:44.907 At trial the federal court largely sided with Taylor the judge hail that are trademark was valid and that certain uses of Katy Perry on clothing in French did 01:01:45.075 --> 01:01:53.235 The court found the two names deceptively similar when used on identical goods rejected arguments that the trademark should be invalidated. 01:01:53.582 --> 01:02:02.942 It also ruled that corporate entities selling merchandise could not rely on the statue defense allowing a person to use their own name in good faith, 01:02:04.168 --> 01:02:08.008 The full federal court and again this is in Australia took a different view 01:02:08.238 --> 01:02:15.738 On appeal it overturned that trial decision in ordered that Taylor's trademark be removed from the register. 01:02:16.349 --> 01:02:31.229 The appellett court concluded that Katy Perry had established a reputation in Australia by 2008 and that consumers with only a quote imperfect recollection of brand names would likely assume a connection between Katy Perry clothing 01:02:31.652 --> 01:02:33.872 That individual and the celebrity 01:02:34.101 --> 01:02:44.961 On that basis the court held the trademark was likely to deceive or cause confusion and should be cancelled alright fast forward the high court reversed in a unanisment 01:02:45.012 --> 01:02:52.332 Unanimous judgement the court reinstated Australian Taylor Straight Park and credit criticize the appellate courts approach. 01:02:53.906 --> 01:02:55.766 It looks at the river. 01:02:56.076 --> 01:03:08.916 That reputation and likelihood of confusion has to be assessed at the time of the trademark registration. Not in light of subsequent global fame. So, I'm going to put a little question there and say, 01:03:09.309 --> 01:03:14.349 Is it assessed that the time at the trademark registration or assessed that the time, 01:03:15.386 --> 01:03:19.286 Of the application which may remain not make a difference but it could, 01:03:20.841 --> 01:03:33.561 The court also underscore the need for a pellet restraint noting that findings about consumer perception and confusion are fact intensive and should not be overturned absent clear air. 01:03:35.550 --> 01:03:37.530 They were making their own facts. 01:03:37.603 --> 01:03:51.583 The trial judge the court suggested was better position to evaluate those issues and finally the high court reaffirmed a foundational principle of trademark law individuals are generally entitled to trade under their own name 01:03:51.682 --> 01:04:01.322 That right must be balanced against the protection of established reputations but it cannot be displaced merely because another party later becomes more 01:04:01.594 --> 01:04:02.194 Famous. 01:04:03.656 --> 01:04:15.416 Sam the decision I clarifies a few points under the Australian law in Frenchman under section 120 the own name defense which I do not believe we have a, 01:04:16.066 --> 01:04:24.026 Statutory use your own name defense. Well, we have the primarily merely a surname. We do but I. 01:04:25.090 --> 01:04:35.710 Yeah but I mean there was Johnny Carson I think had a trademark for certain things you can so I mean you can have a you can have a trip or a registration for your name and that can't stop somebody else, 01:04:36.172 --> 01:04:43.552 Hey that's their name. Right from using that. But it doesn't mean they can necessarily go get the other trademark, 01:04:44.472 --> 01:04:45.432 Cancel cancel. 01:04:49.306 --> 01:04:58.366 Trademarks are anchored in the circumstances existing at the time of registration, okay? And again, I'm going to say is that the timer registration or the time of application? 01:04:59.830 --> 01:05:00.070 And, 01:05:00.649 --> 01:05:14.569 That earlier rights will not easily yield to a later celebrity branding. That sounds right. Yeah. Let's not forget that you can have a trademark rights that are, 01:05:15.134 --> 01:05:28.874 Essentially create in the US at least created because you first used the market commerce that could be years before you ever apply for a registration. So, all of I think all of those facts are probably relevant in and evaluation. 01:05:29.149 --> 01:05:36.509 If it gets up. Right. So the US is a first to use. I also believe Australia is a first to use. 01:05:37.783 --> 01:05:43.543 Versus a first to file. Country. So, 01:05:44.499 --> 01:05:51.339 Yeah I I mean it's interesting I mean that doesn't mean that the famous singer Katie Perry, 01:05:52.331 --> 01:06:04.271 Can't use her name when she goes to Australia she's just can't get a trademark register well that's yeah that's what I'm wondering is it all tour merchandise is it just clothing, 01:06:05.753 --> 01:06:06.893 Hey now. 01:06:10.750 --> 01:06:18.790 Registration. Right and I I think it's going to also be we're going to see it some kind of there's going to be some kind of settlement come out it is. 01:06:18.888 --> 01:06:26.448 The other thing is interesting is that discussion about the right to use your real name is that if this Katy Perry is not either of these parties real name, 01:06:27.755 --> 01:06:30.035 Oh Katie Taylor, 01:06:31.257 --> 01:06:38.157 Okay I think Katie Taylor may be a married name so she may have started as a single woman named Katy Perry I don't know if the facts there but, 01:06:39.197 --> 01:06:46.517 Oh that's true. Cos because I you know I had some experience. Years and years and years ago I might, 01:06:47.299 --> 01:06:52.939 Seriously it's a gas last name are you telling me he can't run his business right, 01:06:54.266 --> 01:06:58.806 Where are we coming from here because that's a pretty much a good common law. 01:06:59.281 --> 01:07:09.721 I tell that word. No. Interesting. Well, let's just say that that is a wrap for this episode. Thank you very much to you our loyal listeners for 01:07:09.859 --> 01:07:18.199 Spending your time with us and if you have feedback we love it if you would leave it for us you can send it by email to entertainment law update@Gmail. Com or 01:07:18.528 --> 01:07:25.848 Record an audio clip by visiting our website entertainment law update. Com and click on the little red tab on the run against the right side of the screen 01:07:26.180 --> 01:07:31.100 And that'll let you just make a little recording that we can play on the show that's always fun and. 01:07:32.508 --> 01:07:44.328 Yeah, Tamar, how can folks find you if they need to? Yeah, they can find me the firm's website is Harper Bates. Com. You can also find me at Create Project. Com. 01:07:45.148 --> 01:07:52.408 Most social media I am at Tamara Bennett T A M E R A B E N N E T T 01:07:52.818 --> 01:08:00.858 And my name which is not trademarked but is still I'm the only one so there's a truthfulness argument Gordon Firemark from Los Angeles. 01:08:01.817 --> 01:08:15.317 My website is@Firemark. Com. The Email address is G firemark@Firemark. Com and you find me as G firemark on both social media as well. I want to say thank you to our crack and dwindling team of 01:08:15.655 --> 01:08:20.315 Contributors. We have John Janiceek, our managing editor. He's been with us a very good long time. We 01:08:20.527 --> 01:08:26.947 Thank and appreciate you to the ends of the earth John and also Charles Thorn and Alexis Allen 01:08:27.044 --> 01:08:33.164 But we are looking for help so if you are interested in joining our team as part of the family of 01:08:33.291 --> 01:08:40.071 Contributors to the show. Reach out to us. It's entertainment law update@Gmail. Com. And, 01:08:40.809 --> 01:08:45.489 With that I'm going to push this button and the music will start playing I think wait a minute, 01:08:46.057 --> 01:08:52.537 I pushed the wrong button and it didn't so alright you going to say thank you for watching listening and we'll see you again real soon.