It's entertainment law update episode 177 for February 26 2025 get real.
Music.
Hello everybody and welcome to entertainment law update from Los Angeles California I'm Gordon Firemark,
And from the Dallas Fort Worth Metroplex I'm Tamara Bennett.
We thank you so much for being here with us today. It is,
This is our show where we
Cover the things that have happened in entertainment law for the month and and do a little analysis and commentary and chitchat and have a little fun. So, we're glad you're here with us. So, what's new with you, Tara?
You know, it was not a whole lot. Did have a good trip down to Austin to the state capital of Texas and did some music advocacy last week. So, that was always a,
Always a great day happy to participate in that as part of the recording academy so looking at some legislation for,
Protecting individuals from digital replicas unauthorized digital replicas so hopefully we will see some movement on that in Texas have you been like
Yeah have you been like traveling and speaking since last week recorded
Since the last time we talked I don't think so in mid January I was in North Florida for the pod fest conference and coming up in March I've got
A couple of things planned. I'm going to be going to Atlanta for the Georgia State
Bars, entertainment love boot camp program where I'll be speaking about podcast law with the panels.
Prestigious experts in the field and that's exciting and then I'll be conducting a round table discussion in Chicago at the podcast moment evolutions
At the end of March 1 actually my my talk is on April 1 I guess that's appropriate April Fool's Day so I'm looking forward to that and then,
Then things may be quite down for a few weeks anyway. We'll see what I would see what's coming in in May and June. I'm sure there will be something. But.
You know I love that travelling and speaking at conferences and things it's it's a lot of fun for me. It is fun and I did just see AA email come across this morning that I haven't.
Dug into but we have are starting the planning committee for the 2025 entertainment law institute. Great. So set for
I'm thinking September this year but we'll have more details to come so always a fantastic 2 day,
Yeah. Well, really two and a half day silly. So, anyway, you and I have had fun presenting. You have received the Star War Texas Star Wars 2 years ago. So, anyway, I'll keep folks posted and if you are an attorney,
And you have an amazing idea for CLE presentation reach out to me,
You know I'd love to hear what's your proposal is and propose the proposal to the rest of the committee to see if it fits in with the planning for the upcoming event this fall
And there have been some interesting and groundbreaking entertainment law decisions coming out of Texas and and,
Louisiana the last few months here too so.
If you've worked on any of those or you have something to say about how those things that's especially if interest I'm sure. So yeah.
Well we we love it's Texas specific things but obviously like our podcast that conferences updating across the board on
Entertainment world. Oh yeah, no, I'm just saying. Anyway, hometown heroes on the stages are is awesome. Oh, yeah. That's that's always nice. If we can have an attorney who worked on the case, come and speak about the case. So, I love that. I love it.
Well, let's jump into our cases and controversies for the for the month of February here. We'll start off in the corner where we talk about AI and and since it's Texas, I'm going to give you this one
Cover. Yeah, so this is a kind of our public service announcements.
For attorneys but the taxes state bars professional ethics committee has released an opinion on AI and the implications of using generative AI within our legal practices it
The opinion highlights the rapid rise of AI tools such as chat GPT and their potential uses in law such as contract review, research, drafting,
but it also gives us that fair warning we need to we need to understand hallucinations and false information.
It looked at some kind of key concerns we've put a link in there if you're Texas attorney
I suggest you go read the full opinion for yourself but you have to be competent.
As a lawyer before you jump off and use the AI tools,
I confidentiality, you know, have you read the terms and conditions? Is it really going to keep your client information confidential? You may.
May, this was a May. You may need to get your clients consent before you use certain AI tools. Obviously, we as attorneys remain,
Responsible for oversight and supervision of anything generated by the AI work,
Fees so what do you think Gordon if using an AI tool shaves an hour off of your time,
No I think you charge for the real time you spend doing the work I think I think this issue was actually first addressed and they well
Probably not first but it was addressed in the era of when Westlaw and Lexus came into play when you and I were baby attorneys right?
I bet you're right because we have and so here's what the opinions that we we won't leave it up for folks to guess but if you're charging hourly if that is what your fee agreement is with your client.
Bill hourly if it cut an hour off your time and what would have taken 3 hours now takes two you charge hourly what it did not specifically say,
Is flat fee so if you have a flat fee agreement you have a flat fee agreement
Yeah. I mean, your body, by your contract and. That's right. So, I would say read it for for Texas attorneys and for others. I know there have been.
Ethics opinions released in Florida as well as I think California is that correct? Are you? Most states have done it now but yeah California definitely has one. I I actually haven't gone and look too carefully at it. I've chosen
To really try not to use AI directly in my law practice I use it another
Aspects of things and generating outbound marketing material and and things like that but I'm I'm not putting client information into an AI. I think that that. No.
I'm not either. I will say what I did today in preparation for our recording. I was looking for a
Case citation for one of the cases we're going to talk about so I did go into chat cheap PT uploaded the link to the case site,
And said you're a law student,
Expertise in law review I need a blue book citation put this site in okay verify what you get spit back out,
Advocates it wanted to put in it did actually do the style of the case correct the case case number was correct but then it plugged in a what would have been like
I guess a Westlaw reference. Oh, interesting. Or or West Law, what do you call those sheets? The the.
Had notes in or the no just. Sorry. Yeah. Anyway, I'm looking. I was like,
What is this WL 123456789
So it did a hallucinate a little bit. Oh interesting. Yeah. Yeah I I used it for some preliminary research and a trademark,
Response I was preparing on an area that I just hadn't had much dealing with before and then as I was going through checking all the citations I realized that.
You know
Two of the actual cases that it had mentioned they were real cases but they didn't say what the what the quote seemed to be saying it was just not an accurate
You know. So I really have to think if you're going to use these tools. I think we have to treat it like,
Supervising and a non law educated,
Assistant or helper you really have to first be confident yourself to be able to identify what's right and what's wrong and then you know really go line by line and verify things and
Make sure that it's it's accurate and on point and and,
Taking your argument in the direction you actually want it to go. Right. Well, I would say though using it to do blue books. Yeah.
Is pretty nice. I mean, yeah, she need to confirm it but just to get it in the right. Well, actually any citation as I work on a variety of projects on a variety of things, legal related. Not legal related.
Man and you're talking about using AA one of the generic
Multipurpose all purpose AI is not a specifically yeah so I I kind of run things like that I when you know in my spare time I'll run it through chat GBT I'll run it through call I'll run it through Gemini and see you know
Compare what what kind of spits out for whether it's,
Genealogy research I'm doing on my own to come up with an appropriate which is not a blue book citation but inappropriate citation or if it's a,
Something we're doing for the podcast or illegal article I'm reading and I need a blue book site I know there are some legal specific AI tools out there that
Oh yeah there's a lot hallucinating and and I haven't really taken a good look at him but you know hey if if you are an affiliated with one of those and thank you it might be a great sponsor for the show we would love to talk to them and and,
Yeah and I know Cleo has some kind of AI now. I haven't looked into that as part of it.
I don't think there's anything out there that isn't implementing some component that has some kind of,
What? I mean, the bottom line is when we hit search, that's a little bit of AI. It sure is. And within our word document or.
Whatever it might be. Anyway, so it's so so moving on for
We could talk all day on legal practice.
Views around AI. The couple of officers put out the second part of its cop redibility report regarding the use of AI.
While they did not recommend any new legislation in fact they sort of came out and said we don't need anything new,
They did provide some clarification similar to what we've talked about before in short they're saying that works using AI can be registered at least in part
When the AI is used and and as a tool to help guide the expression but not when it's a substitute,
For the human authorship of things the so using an AI to help smooth out a voice recording or to
Direct elements and placement or something like that but a base prompt that isn't really giving a lot of guidance for that expression is going to result in a non-copyrightable work.
And,
The covering officer uses an interesting and little explanation involving a cat with a pipe so go have a have a read of that we've got AA link in the show notes for that and I I actually,
It's an really interesting read. I mean, I think the copyright office did a good job in what they put together.
So the bottom line is there could be some a I involved,
But you have to be able to show the human originality and creativity.
I I also read so we we've talked a lot about Zara of the dawn and the artwork created by the input is it.
I'm sorry I don't remember their name. Hey, but but this person has also now received a registration for it's called DeRozan Enigma.
And they submitted with their copyright application near original drawing,
Of a face with roses coming out and around the hair and then submitted,
The proms and what the AI software generate it submitted all of that to the copyright office oh interesting
For review and there was a limited registration issued for the part created,
Buy the human and and we've got and then we've got another one as well that we're talking about today related to the,
And I have to tell you I I can't really understand what was in this case generated by humans and was generated,
By the machine on this invoke generative AI platform do you,
No you know my understanding my reading of it is essentially that,
This guy showed the entire sequence of prompts that he used in order to generate this
This piece of art. Using this tool invoke which I believe he is the creator of also. So, it's this generative AI platform for studios to create visual media and.
You know the CEO created this AI artwork it's called I think it's called a single piece of American cheese and you know start it out,
Creating this thing in the news the tools that he had built this in painting feature to iterate the reiterate the image a number of times and,
Select from multiple options that ended up creating this composite work it was eventually 35 edits using the AI tool to,
Achieve the final outcome that he wanted to register and the comfort office.
Well he he submitted it to register the piece claiming rights for the selection coordination and arrangement of the in painted components of the composite image but not the individual AI generated segments in it,
And invoke was built to use the office's own guidelines to,
To make sure that the protection would only be afforded to works that have the human authorship stuff in there and so,
Here there's enough evidence of the humans creative choices to still qualify for the protection and the CEO said his name I don't have in front of me I'm apologized he said in a statement that,
This is not just a simple text to image generator but a much more detailed tool more like a photo shop
Kind of a so initially the application was denied and then then they submitted the entire workflow video showing how they developed the image and that,
By recording every decision and direction and use of the features and demonstrating the transformations that were going on from prompt to prompt,
He was able to demonstrate to the copperhead officer satisfaction that the work is in fact a work of human authorship.
So in I have looked because we've discussed before the copyright office does post their decisions when there's been a request for reconsideration. Yeah.
The database is not current. So I was unable to find this one related to the a single piece of American cheese or the one related to
The rose and nigma to
To actually read. Now, on the rose enigma one I have put into our show notes a link to the letter from the copyright office because the artist
Had put that up on their website but we I have not seen the letter related to or the opinion related to the single piece of American cheese to really,
What was protected and what was not protected what came out of this.
Part two of the copyright office is that
AI cannot produce joint work. So, this was a foot note. Always read the foot note. AI cannot produce joint copyright works or work for hire.
Because AI is not an author.
So I thought that was really interesting to come back with as well. You were not going to be having copyright registrations that say Tamara Bennett and,
AI
It's either Tamara Bennett created the purposes that's a what's original and is protectable with a disclaimer of what
Was created by the artificial intelligence tool. Yeah. Well, you know, it's interesting. I don't think photographers and and graphic artists have generally,
Bothered to submit a disclaimer.
Disclaimer excuse me something kicked me under the desk they haven't included the disclaimer of material that they've used you know other software tools like Photoshop for example or illustrator to generate these things,
I I guess mainly because you're still your hand on the mouse making the thing happen but,
I wonder if we're going to get to that point with these AI tools where it's just going to be sort of assumed that there were AI assists in the creation of things. Right now, you're supposed to disclaim it.
Yeah what many of you.
In in some of our reading one of the examples we had internally was you know if the artist is in the studio and records and,
They use something to auto auto tune I,
I have never read anything that would lead me to believe that use of those tools should be disclaimed in filing a sound recording copyright application. Right.
So, you know, I mean, AI is a different.
In it in a lot of ways because it it can sort of autonomously create the thing that you don't have to have your hand on the mouse or I guess I I guess so I mean we're talking generative AI versus artificial intelligence
Yeah or fuzzy logic tools and then yeah exhaust cancer. But yeah well I think that is the difference. Yeah. Well.
Yeah and what's the saying? May you live an interesting times? The curse and the blessing and we definitely do. I think we're right in the middle of that smack in the middle of that. Interesting in big air quotes.
Well anyway and that while we stay in the AI corner let's talk about some of the AI litigation the I think this is the first
Case in which an a plane which has gone all the way through and and achieved a
An outcome a Thompson Reuters has sued the AI firm Ross Intelligence which reproduced materials from.
The Thompson Raiders database west law.
Specifically it had over 2000 of Westlaw's head notes that were used to train,
Ross's AI powered legal research platform. So, in this last, what a couple weeks ago, February 11,
The judge in the case in the in the trial court ruled in,
Thompson Reuters favor finding that it was not a fair use when they,
Ingested and trained the system on that and the company's copyright was indeed infringed by the intelligences actions,
And this is coming out of the district of Delaware
So the summary judgement comes from Judge Stefano's Bebus sitting he's a he's a court of appeals judge for the circuit court.
There but he's sitting in the district court for this case and finds the Ross copy to significant number of the head notes
That the head notes do constitute original work of course the opinions themselves are,
Works of the federal government so they're not protected but the head notes the pagination the key numbers all that stuff is so they ease of that the head notes do constitute original work and that Ross used those to create a directly competing project,
Product. And focused really heavily on the fair use nowisis. Looked at the four factors.
Two factors did seem to favor Ross the court found the two most important factors though the purpose and character of the use and the effect on the potential market really favored
Thompson Raiders. So, because you know, Ross's use his commercial and stands to profit from exploiting the material. Ross's use his not transformative versus in any way substantially different from what Thompson Royters provides.
Using those head notes as data to create a legal research tool to compete
With West Lob and you know, the court looked at the likely effect of the copying being a direct impact on the market. So, Ross didn't put afford an effect to show that the markets,
Don't exist or wouldn't be affected, said the judge. So he found that the head notes met the threshold for originality.
Which is actually a reversal of an earlier his earlier opinion.
Saying that the originality was a factual question for the jury.
I didn't get into the weeds on on how he what his rational for changing is his opinion on that was but anyway so the court rejected all of the other defenses in a sentencing fringement copper I misuse merger sends a fair and the judge
Basically has left one significant issue for trial and that is whether some of the copyrights might have expired or or,
On timely what registered or created you know published without notice or who knows what.
So the cases in fully addressed yet there are some issues we decided at the trial but,
It's a it's certainly a first time I'm aware of of a court ruling saying no what you did was not fair use,
I think so too and anybody can jump in and give us more information if we've got that wrong. We've also discussed this case, the early stages of it in detail and episodes 156, 162,
168 169 and whichever one of those I know we did it live in Austin,
Would have been maybe September, October, November, November of,
23 I guess yeah we we went into a lot of detail and had some really good conversation about
The legal issues surrounding. Yeah, one other side.
Now,
Cease doing business,
I don't know what they've done with their database and and model and whatever but they stopped in business and the site they cited this litigation as the reason
That it has basically bankrupted them and and put them in not a actually that's an overstatement that it has put them in a position of not being able to operate effectively and economically so they've
Hey Facebook shut down. Wow. The litigation continues and and we'll have to be decided but I guess mission accomplished for West Long at this point.
Right well that's interesting it'll also be interesting to follow if they were to file bankruptcy and then where are those assets end up in,
What goes from there? Yeah, it's interesting. Yeah, if it was in bankruptcy, then, this litigation would be stayed at presume. So.
Yeah well well we'll keep an eye on that. I did not realize that they had
Hey Facebook shut the doors from the from the litigation. Okay so we haven't interesting CCB.
Decision came out. Yeah. On on your favorite topic.
Podcasting. That is right. That is right. I think it is your favorite. Certainly the focus of a lot of my attention these days. The copper airplanes were dismissed a case. It was filed by attorney and dismissal at this point after
I'll link the consideration on the merits of the you know,
Right they reached a decision they reached a final rule right so Attorney Jeanette Braun had filed the suit against Jessica Vasquez and Lily Marston who are the producers and hosts of the show do we know them,
And a podcast. It's a podcast. Yeah, do we know that? So she was representing herself and her law firm and she claimed that the podcasters had used coprodiment material from one of her tiktok
Videos that she posted and was used in a in a criticism of her and her client Lauren Propson who is a TikTok personality who is known as Lauren the Mortician on TikTok.
So
Props and had made some statements about child car seats that I'm in a TikTok video and a,
A fellow named Jamie Grayson a child passenger safety technician criticized her publicly and there was a harsh response and it turned into a little bit of a used call flame more back and forth.
And ticktock users then started accusing props and of some other kinds of wrong doing and and miss statements and things and so her attorney Jim at Braun
Started filing take down notices against these videos created by other TikTokers,
And then she went further than just sending notices but then I'm December of 2023 she posted her own video,
Titled Becca Day False Accusations in which she addressed the criticisms
Including those from this user TikTok this TikTok or Becca Day who had been very vocal as part of the controversy so a few days later Vasquez and Marsen Marston in their show,
They put out an episode discussing this controversy,
And in part of the the discussion they used 1 minute from this TikTok video that the lawyer Braun had submitted had put up she posted an eight and a half minute long video they used about a minute of it,
So
In response to the criticism brought on props and file defamation case against against them for defendants in total including Dave Vasquez and Marston,
But not against Grayson. Interestingly. And Braun also filed a claim with the CCB.
For use of the video and props and was not involved in any way in the CCB climb. So.
The case consider both sides the the the board ruled in favor of the podcasters finding that their video they're use of the bronze video was in fact fair use,
Board found at the primary purpose was commentary and criticism.
That weight obviously in favor of fair use and they concluded that the amount used was minimal.
There was no evidence of an impact on the market for the original work. So, 3 out of 4 factors weighing in favor of their use at least and the case was dismissed with prejudice
And that leads bronze, you know, having to decide how and when to appeal if at all. Still took over a year,
To get to the decision which has been one of the big contracts complaints about the CCB but compared to what it would have taken in federal district court
I think that's oh my god. It's amazing. So, I did because the CCB also, you know, publishes all of their case files. Just. Yeah. Anything that would get filed at the,
In federal litigation. You know, you can go see it on pacer with the CCB. You have to go look at it on their website. I was going down the path of looking at it in the closed,
Files.
And it wasn't there and then I needed to move along. So, which makes me think it must still be showing up in the open files at the CCB.
Yeah, there must be something so.
If I find that and I'll put it into the show notes when we're finished recording because I did want to read the analysis just to kind of
Just I just was curious to read that and and see specifically what the judges had to say on that if anyone,
Can tell me what the trick is to more easily search the CCB database for opening closed files,
I'm struggling, folks. I'm struggling. So, you think you could just put in a party name and hit search and it would work but I must be missing a step. So, anyway,
I confess I haven't tried to search for opinions. I finally looked for the case number which I unfortunately did not write down at my notes. Found the case number then could not search by case number so I just had to start going by date to find it. Got it.
Hey anyway if somebody has that information and would share with me that what user error
I am useful.
Send us feedback folks. You can do that.
We'll give you the email addresses at the end of the show but,
Yeah, please do. We always appreciate. Please help. So, we talked about spotify and the music licensing collective. A few.
Episodes again.
Judge Torres of the US district.
For their southern district of New York.
Actually ruled on a motion to dismiss a 12 B six in granted this in favor of Spotify dismissing the MLC's lawsuit with prejudice on January 29 2025.
So you know backstory and we've talked about this before is that spotify reclassified it's premium subscription plans to include 15 hours of audiobook access monthly and designating this is a quote
Bundled subscription offering
In this reclassification allowed Spotify to reduce the mechanical royalty rates it pays the songwriters and publishers as bundles are subject to a different lower rate under the 2022.
Photo records for settlement.
The MLC challenge this so the MLC is the statutory created body,
That collects mechanical royalties from digital service providers Spotify being a digital service provider,
Email see filed this lawsuit in May of 24 a legend that these actions by Spotify led to significant underpayment of the royalties for music publishers,
Earlier this year the court concluded that Spotify's premium service by incorporating the audiobook streaming was a legitimate bundle of distinct products music and
An audio books each offering more than token value I'm guessing two S is the subscribers if you subscribe to premium level of Spotify,
In the Spotify's classication of the premium plans into this bundled subscription offering was deemed
Under the existing regulations for Spotify this dismissal is likely linked
To Spotify's well so there's opinion is this dismissal likely linked to Spotify's move just signed direct deals with major labels
I don't know. That had not happened since the music modernization act.
Was passed in 2018 a spokesperson from Spotify Express says faction
Of course they did. Stating the decision affirms the company's approach to offering diverse content within its premium service.
The MLC voice concerns regarding the court's decision suggesting it may not align with factual and legal foundations of the case so we'll see
We know, what is the next step? It's interesting to me. They ruled on a 12 B six.
My recollection from law school and I went and wrote it down. That is a failure to alleged a claim for which relief can be granted. I mean, that's just like. Yeah. Outta here.
Yeah so let me know you'll see if I understand the,
The concern basically by by adding these audio books into this bundle,
Then these audio books are not royalty bearing material right so they've added 15 hours of content they're not,
Hey it doesn't bare me camera but basically that reduces because it's a,
Some proportion of the overall revenue derived from these bundles,
So that reduces the size of that portion for that's allocated to the mechanical royalties is that
Roughly right? And again, I'm I'm making up numbers here people. Do not quote me on this. Tamara is making up numbers. So, if if I, as a music publisher would have gotten.
00000000003 on the cannabis royalty will now change that number to,
Two. Seven at the end so it has reduced the amount per stream yeah
For mechanical royalties by this because they're the rate they pay for these audio books is somehow,
More favorable to Mary or maybe it's actually tied to usage so that if if nobody's actually using audiobooks on Spotify then they don't pay that who knows,
They've increased their subscription fee. It made their one that's it's a the maybe the subscription fee went up.
And did they got more subscribers because I would like to listen to my 15 hours of audio books a month and I'm not and I'm listening to podcast
But I don't care anything about streaming music. Yeah. Yeah. Well, if that's interesting,
So there's this theory that maybe it has something to do with direct negotiations with labels and publishers sometime in the future.
Would that direct negotiation with ladies?
For the artist side royalty as opposed to the mechanical streaming royalties which are dictated so got it,
Alright. Well, while Spotify remains in the spotlight, let's talk about this other,
Music industry complaint or or concern the national music publishers association is demanded to take down of
A whole bunch of unlicensed songs that have been posted on the service as podcasts. So, you know, basically, anybody who wants to can create a podcast by,
Uploading MPthree files typically to AA server and then pointing
The podcast hosted the podcast distribution services like Spotify like Apple iTunes and there's many others at the RSS feed the the syndication feed for the
For the show and a number of folks have been posting music as though it were a podcast episode,
So you want to this is not,
We include a clip within our this edition of the entertainment law update this is people going oh hoo hoo I'm going to get around this deal I'm going to upload it as a podcast,
Okay. Alright, proceed. Thank you.
Oh, that's a podcast. We don't worry about those,
Unless somebody makes a DMCA complaint that it contains, you know, material, whatever. And,
As I read this basically the complaint or the the argument that the muse posture association and you know it's 19 major music publishers
Sony music universal warner and other major players all involved in this and Spotify the argument is hey wait a minute you know they're doing this and you're doing nothing about it and,
You know you know you're supposed to pay for music but if someone posts the latest what Taylor Swift's song and just makes it episode nine of their you know favorite playlist podcast,
The you know the industry is getting deprived of those royalties. So Spotify says no they this is a reactionary move following the dismissal of the MLC
Case we just talked about and the spokesperson also accused NMP of delaying its complaint for months,
Despite multiple written requests from Spotify for details what do you mean what about these mean alleged infringements the fact that they waited months to report these episode only
Further emphasizes that it's oppressed as the company well. So this is you know these companies shouldn't have to do individual,
Take down notices.
Spotify knows that it sounds like that red flag knowledge thing that we I was about to say YouTube red flag where where is it when we need it yeah so going back to last May
in 2024 the NMPA had won Spotify that it was displaying lyrics reproducing music videos and distributing podcasts
Using copyrighted musical works without proper licensing or conversation. Things escalated after the audiobook bundling thing and and especially presentably after it was dismissed. And,
Yeah so the.
That as we said was dismissed with prejudice and then in 2016 we also just historical Spotify had been sued in two class action lawsuits over
Unpaid or miscalculated mechanical royalties and that was a,
30 1 million dollars settlement they joined Amazon music in 2019 to challenge the,
The final records three ruling from the royalty board that had him
Mandated a big increase in mechanical royalties Spotify helps me lost that appeal in 2022 so you know this is this is an ongoing thing,
CEO and president of NMPA is David Israel like he made it clear that they will not back down they're accusing Spotify of prioritizing it's financial interests over fair compensation
For songwriters.
And emphasized also the podcast had become an essential revenue stream for songwriters and publishers and called on podcast hosts to demand better licensing practices,
Not hard to do he says on Spotify knows and has known how to fix this problem for their user well
Calling on podcast hosts for better licensing practices it actually is pretty hard to do,
And that's my clearing house no clearing house for clearing the song,
The the sound recording and the underlying musical composition there is no one stop clearing house in relationship to
Broadcasting.
You know, an individual creator of a show who wants to use music in the show. They they can't offer enough money,
Mostly time there are not offering any money but they can't offer enough money to make it worth the time and energy for the label and publisher to even respond to the inquiry,
That's right and this is let's put this in the scenario of the podcast creator acting in best efforts. Yeah. You know, they're this is not someone who's just uploading,
Taylor Swift. Yeah. Or whatever it might be. You know, they really want to use music within their podcast. One, are they really going to figure out and get an opinion on if they're used of music is fair use?
Probably not. Right. And then two, if they really want a license it, it's exactly what you said.
You could send submit your request. You could do everything right and still not get it clearance back.
Or or it takes a year or you get it or it takes a year or you just get a flat out denial and that is
Yeah. So, that is where the system is a little broken. Yeah, I mean, certainly with podcast becoming the the medium of choice for.
Lot of consumers podcast and and YouTube earlier sort of taking over the world of entertainment media these days at least among the younger viewers and listeners and,
Yeah I think something's going to have to change if if the publishing and the other music industry wants to.
Tap into that
That stuff but the the revenue streams aren't as significant as as you know when you're doing with Spotify it's one entity that has a lot of listeners and you're dealing with individual podcasts
They're they're small. A few 1000 you know even a few 10 thousands. Doesn't add up to a lot of revenue on the music side. So
Hey but this is not just,
Dealing with podcasts when it comes to clearing music whether it's the song or the sound recording.
You know, yes, there's a process. You want to use this in your small budget film and your documentary. Whatever it is.
There's so many requests those just
Yeah and the trouble in the podcasting space it was it's it's multi pronged but one is look what we're doing things on a fast schedule and recording it on Monday I want to release it on Thursday and.
And the the revenue, the numbers, the dollar numbers just don't make a lot of sense and the process is the same as if you were doing the clearance on music for a,
10 1 million dollars or 100 1 million dollars movie,
Right but now we also and we've talked about there are lots of great legitimate music librarys out there. That you can use.
Yes.
Unfortunately, those the kinds of things that a lot of podcasters want to
To use and they think you know,
And until we have the conversation lot of podcast creators think oh I'm making a radio show I'll just do it like the radio does and they play the music and think there's nothing to it well they ask Kevin BMI licenses don't
Work in podcasting
That's right. Take two of the four licenses you made. It's it's not linear. I can download it. I can listen to it. Anytime I want to. So, it's not a radio
It's not
AM FM terrestrial radio or webcasting radio so it doesn't apply. So listen, if we have listeners who are in the music industry and the licensing and of things.
Who can affect some change or or start stirring up the the notion of creating some kind of a either a standardized type of podcast license with a royalty
Payment structure that might make sense for those small creators. They want to do this. Or some kind of clearing house to centralize the licensing sort of
I don't know maybe it's Harry Fox and MPA maybe maybe I learnt to not ask Abraby and my PRO
Kind of stuff but you know, those those might be a model for making something work. Right, but we're still dealing with somebody else on the sound recording. Yeah.
Right yeah everybody would have to get on board and that's as we've seen it's totally it's a tough call yeah it's very very tough well let's move on let's let's get into.
Talking about dog toys some more. Yes, so what? What is going on? There's been so much happening with Jack Daniels. We might need some Jack Daniel's or a dog
Something. Do you understand it?
Over a decade,
Wow meeting up to a pivotal ruling in 2023. This is the bad spaniels. Jack Daniels versus VIP products.
There was a 2023 Supreme Court ruling but the trademark dispute is not yet over this time there's been another ruling this time favoring the the whiskey maker,
It's VIP products versus Jack Daniel's actually.
Starting in 2014 VIP released the bad spaniels dog toy rubber chew toy looked like a iconic Jack Daniel's bottle and had you know instead of old number two it would be it was sort of old number
I don't remember what the actual number is but the wording on the toy says old number two on your Tennessee carpet. Things like that, you know, very fun and and originally, there was a claim that it was a parody in there for not
Respond they didn't have to worry about licensing and 2018 a district court initially ruled in Jack Daniel's favor finding trademark infringement of delusion the ninth circuit reverse that a couple years later and,
Holding that the toy was protected as an expressive work under Rogers versus Gramaldi test,
In 2023 this Supreme Court said no they vacated the ninth circuit decision ruling that Rogers doesn't apply for purely artistic expression.
It doesn't supply in this situation except for purely artistic expression and the case was reminded for cancer reconsideration on trademark
Tradition trademark principles. So, the district court now applied the ninth circuits sleep craft
Test for consumer confusion and incorporated parody as a factor and determine that while beds manuals did mimic the trade dress of the Jack Daniel's bottle it's humorous elements help consumers recognize it
As a parody.
Rather than an actual Jack Daniel's product and as a result the court found no likelihood of confusion and ruled for VIP on the infringement claim but came to a different conclusion on delusion by tarnishment
So Jack Daniel's successfully argue that the parodies association with dog feces could harm its brands reputation,
And the court looked at expert testimony showing that consumers could perceive this as a negative connection. Ultimately found that the toy diluted Jack Daniel's famous trade dress. So there's still time for an appeal but for now
That's a win for Jack Daniels. So, yeah.
And I would have never thought that been going on for 10 years. Yeah, well, you know, we start talking about them after we see a trial court ruler. Right. Some kind of ruling, yeah. So, even so, that's a long time ago.
In this game today, what is that? 8 years ago. 7 years ago. So, well, you know, we never lack.
For topics of discussion.
Hey.
Circuit and now we've got some new
Rulings coming out of this. It's
Better and better communications core versus Robert Resnick and individually and resnick music group all surrounding the song musical composition double shot of my baby's love that was written 1966
By better and co-auth
Don Smith in our previous episode 171 we go through a long history of of all of that to say that
After the song was renewed in 1994 there was some transfer and ownership timing was right for a copyright grant termination notice to be filed in 2019 by Vetter
Hey we issue to termination notice to the current publisher's win song and lyric song liar song seeking to recapture rights,
He initially granted in 1963 so that's that's the back story so in 2022 the termination date
Appears shows up that are supposed to recapture his interest at that time fast forward there's a law state,
So a Louisiana judge Shelly Dick made a significant ruling.
I don't know if significant is the word I want to use. They made a ruling.
Stating that better the songwriter when he filed his copyright grant termination notice under section 304 of the US copyright act
That not only did it terminate his rights within the US but it also terminated his global,
Rights in the 1962 song double shot of my baby's love. I,
So, traditionally, not traditionally, when anyone, whether it's a songwriter, a book offer any author of a copyrightable work
Files a corporate grant termination notice under US copyright law to my knowledge prior to this opinion it is only been for purposes of reclaiming the US
Copyright.
That the party in this case would have been a music publisher who controlled the worldwide rights continues to control the rights X the US.
So the judge argued that that your the party argued that better's termination right should only apply in the US that was the publisher but the judge rejected that.
And there was a case that there was a case that held that the rights only the termination only applied to,
Domestic rights that was the the Superman case with Jerry Siegel versus one of the yeah and we're talking again it can be anything beyond music this is just happens to be what we're talking about in this case so that's a early 2000 so 20 years ago
25 years old. Yeah, this single versus Warner Brothers case. This judge in the Louisiana case rejected the reasoning and ruled and better's favor, challenging the principal of totality,
In copyright law that are argued that territoriality applies to copyright enforcement but not to copyright ownership.
So, we could go and force our rights outside of the US. Meaning, a copyright ownership question should be answered by the law of the country where the work.
Was created.
The judge also addressed whether the burn convention creates multiple copyrights and different countries or one single copyright under US law.
The US is a signatory to the burn convention,
Convention as well as many other countries. The 1976 copyright act says that termination of a grant of transfer quote
Effects Aphex only those rights covered by the grant that arise under this title
And then no way affects rights arising under any other federal state or foreign laws.
So does this does this mean that the burn convention affects effectively creates multiple copyrights around the world?
This is Tamara asking because I don't think it does. I'm I'm somewhat persuaded by this position from the.
Are you somewhat persuaded that the judge that the judge ruled correctly that this should terminate the rights? Well, beyond the US. I find it interesting that he
This judge asked for maybe the inquiry about whether or not there are multiple copyrights. Rather than,
Are there rights in a in a domestic US copyright that are actually arising under other federal state or foreign laws.
Which is you know part of the,
The yeah so so resonate claimed the first situation while better argue there's a single copyright,
Yeah. Under US law protected globally. The judge sided with that argument concluding that US copyright law governs and writes in foreign countries are recognized through the burn convention. I agree with
That statement as to my understanding of copyright law. Then then you take that one step further then go does that,
Mean that if a copyright grant termination effective date,
Comes and goes there's no other challenges to why that may or may not have been a valid termination that all rights are reclaimed for that work.
For the world not just for the United States and
I believe that's what the judges said. And so when it is a global recapture. Yeah. It's interesting. I can make me wonder you know if a foreign
Author, a work created by a foreign author uniform country and if they were rights granted here in the US,
Would that be a terminable grant?
Does it depend where the contract was made? Which or those? Trusted hands on where the contract is made because,
And we didn't plug it in here. I don't think for this round up or maybe we can do it for next month.
There's there are changes of foot under carporate term protection in the UK. Right. And.
And in the flip side is if you if you're in a US author and you make any creative copyrightable work and then you grant 100% of the worldwide rights to a foreign publisher,
Is that a terminable transfer?
Under this analysis and say yeah it's terminable for the at least for the US rights I mean you can imagine my brain is going a 1000 different directions because I have clients on both sides
Right? For this equation as well as clients.
Who a client could you know who who could own multiple cargo rates in different things in,
So I I did it was on the phone with a colleague ask this question and they're response was well
We haven't started sending emails to you or no desist to the UK yet or wherever. Yeah. Saying, oh, yeah, by the way, hand us over. Hand it over. And how could you even enforce that if the, if there was a,
Separate third party foreign deal it's one thing when you grant your rights to one brothers worldwide and they then distribute him in the foreign countries well you terminating the rights is that global termination you know what if I
If I grant the US rights to one company and then I grant the the french rights to some company in France can I just,
Under US cooperate law reclaim my rights to the,
Under the contract I made with the French I don't know. And how far does it how far does it go back?
Is it only four termination notices with an effective date as of the data this ruling termination notice is I
Sent as of the date of this ruling.
I I think it's going to have to be you know something tied to the finalization of this because otherwise what isn't that an exposed factory kind of thing.
I don't know. Maybe some of the folks that no procedure on these kinds of things is better than we do. Can can chime in and and help us but it seems like there's a lot to wrestle with here and and I guess it's,
We're setting up for a possible supreme court decision on this,
Has it been people? I don't know the current status. I can't imagine.
I can't imagine the publishers. Yeah, exactly. So, alright, well, we will keep you posted as we learn more. Yeah.
Yeah. So, wanted to tell everybody about an article that I saw that just that caught my interest into Aaron Moss from cooperate lately who I read pretty frequently and and have a lot of respect for him and I think he's,
He's commented on episodes of the show from time to time things like that he he wrote an article outlining the trend in public domain works
Carrying a zombie copyright as the students of those works are trying to maintain control and demand licenses. Examples like with the French,
Character of 10 10 or I think it's 10 10 in in the French pronunciation where they basically saying that look it doesn't fall into the public domain until 95 years after the first publication in the US.
They're trying to basically claim that the US cooperate term is triggered by public by the you know the the acquisition of copyright rights here,
Charlie Chaplain is another state that is is trying these kinds of tactics as well as of course the Sherlock Holmes from Arthur Connon Doyles Estate,
You know a lot of the higher profile works are entering the public domain in the next few years and decades and and,
You know, these tactics and arguments are going to come into play. We'll, again, we're doing sort of foreign law versus American law versus the the burn convention and and those kind of things. Which law applies?
Superman is scheduled to go into the public domain in about 10 years.
A number of other Marvel comic in DC comic characters. Yeah. So, anyway, the article is called their copyrights expired but the legal threats keep coming. It's on copyright lately. Com and.
A good read. I recommend. Yeah. It's a good read. It's a good read. We also have some breaking news. This just in. I while I said last week but in
Related to the corporate transparency act and the reporting for business entities that we've been discussing February 18 2025 decision by the US district,
The eastern district of Texas has ruled that beneficial ownership information reporting requirements under the corporate transit
Transparency act or once again on there is a 30 day,
Period for which to get those filed so 30 days from February 19 to 2025 is when those reports need to be submitted so that would make the new deadline for most companies March 21 2025
Interesting there was a group of people who did sue on this who.
If you fit into those categories, there's some folks you may not have to report. So, take a look at that. Back story January 7 2025 that the US district judge for the Eastern District issued app.
Order staying the implementation February 18 the quarter degree to the stay and then obviously we've got this this
Well obviously the change on February 18 saying that is no longer stayed and we've gotta get those reports in by March 21 I I don't know if that'll change again but if you're a corporation limited liability company or certain other entities you need to
Take a look to see if you need to file a report yeah
There are supposedly penalties if you don't. Significant penalties. Yeah. It's $500 a day for late reports. I think that will.
Maybe be.
Enforce loosely at the beginning and more tightly as things go on but yeah, I mean this finsen BOI reporting battle has has really been the thing.
I have my questions about whether the current administration is going to continue to support enforcement of this as well so,
We may see the the whole law gets shelved at some point. Who knows if the agency is still there to
To do anything about it.
Right. But anyway.
Red on. Well, that is the end of this episode of Entertainment Law update and as always, I want to say
Thank you so much to you are loyal listeners. We know this, you know, this thing doesn't happen. If not for you, you spend your time with us and and we appreciate your attention.
And your support. And listen, if you have feedback, we welcome it. We hope that you do. You can leave it for us. We have a little voice widget on our website at entertainment law
Dot com or you can Email entertainment law update@Gmail. Com and Tamara tell folks how to read you.
Yeah and Gordon we couldn't. I couldn't do this without you. Right. And so thank you for always letting me be a part of the part of the fun here. Two ways you're opening also. So thank you so much.
You're welcome. So, folks can find me most social media at Tamara Bennett. If you have not listened to the podcast for the last couple of episodes, I as of January 1, I joined the law firm of
Harper and Bates LLP I am coming soon to Harper Paids. Com you can still find my information at T Ben@Law. Com and create
Protect. Com. Don't forget to send me the full details on that so I can
I can update your bio on the website for the show and those kinds of things. I will do that yes. I will get you all out. And from Los Angeles, I'm Gordon Firemark. You can find my website@Firemark. Com. The Email address is
G Firemark@Firemark. Com and G firemark is the handle on most social media
If you're an Instagrammer it's my full name Gordon Firemark but other than that it's G firemark so let's say thanks also to our correct team of volunteers who contribute to each of these episodes they without them we could not,
Deliver to you the summaries and the kind of show that we do. So, managing editor John Janiceek, Charles Thorn, Alexis Allen, Violet Jang
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And oh that reminds me I wanted to let everybody know our march episode is going to come a little sooner than the end of March where we're moving it up to.
March 19 will be I expected to publish on March 19 because we're participating in a worldwide charitable.
Charitable effort. It's called podcast fawn and we will be supporting a
A charity that is of interest with hope to you as well as us and we'll tell you more about that and hopefully have an interview with somebody from the organization to
To share on our next episode as well. So, hey, if you are interested in joining the fun as part of our family of contributors.
Please reach out entertainment law update@Gmail. Com send a quick cover note and resume and let us know you're interested and we'll get in touch and figure out how to make that happen so anything else you want to add today,
No I'm good. Thanks everybody. I appreciate again. I never get to say thank you to our contributors. Thank you to our loyal contributors who help us with this together. We
Could not do it well.
So and enter John Janiceek for sticking with us for a decade. I think so. You're right. Yeah. It probably has been a decade. So, thank you John and the wonderful team.
Alright. Well, that's going to do it for this episode of entertainment.
Music.