WEBVTT - Netflix Sues Over Bridgerton Musical 0:00:03.160 --> 0:00:07.960 This is Bloombird Law with June Brasso from Bloomberg Radio, 0:00:09.880 --> 0:00:18.640 All is fair in love and war ms Staphnip Bridgeton 0:00:20.200 --> 0:00:24.200 the time has come for the social season, which young 0:00:24.320 --> 0:00:28.160 ladies might succeed at securing a match before was amuse Me, 0:00:28.200 --> 0:00:32.520 Miss Bridgeton. The bridget In series shattered records for Netflix 0:00:32.640 --> 0:00:36.720 and inspired fans to create and post Bridgertain inspired works. 0:00:36.960 --> 0:00:40.000 Abigail Barlow and Emily Bear started out as two of 0:00:40.040 --> 0:00:44.159 those fans, posting bridget In themed TikTok's, which got millions 0:00:44.159 --> 0:00:47.440 of views, leading the pair to create the fifteen song 0:00:47.760 --> 0:00:57.440 unofficial bridget In musical, This is Honeymoon from our Elaborate 0:00:57.640 --> 0:01:03.560 Rooms when Please Forgive Me Your Grace, and at this 0:01:03.640 --> 0:01:07.360 year's Grammys it won the Best Musical Theater Album. But 0:01:07.440 --> 0:01:10.600 when Barlow and Bear staged a sold out performance of 0:01:10.600 --> 0:01:14.520 the musical at the Kennedy Center, Netflix discided that enough 0:01:14.640 --> 0:01:19.240 was enough, and, after repeated objections, sued them for copyright 0:01:19.280 --> 0:01:24.119 and trademark infringement. My guest is intellectual property litigator Terence Ross, 0:01:24.200 --> 0:01:27.440 a partner at Captain Uten Rosenman. So, Terry, is this 0:01:27.520 --> 0:01:30.760 considered a parody? I don't think so not. Even in 0:01:30.800 --> 0:01:35.440 the broadest definition of parody. It is clear that actual 0:01:35.880 --> 0:01:39.880 dialogue from the bridgt In television show is used as lyrics. 0:01:39.959 --> 0:01:44.280 The characters on the stage were apparently dressed in costumes 0:01:44.360 --> 0:01:46.880 that were similar to the ones used intelligence show, the 0:01:46.920 --> 0:01:50.600 settings were similar to the television show, and the parent 0:01:50.680 --> 0:01:54.000 intent and effect upon the audience was to recreate the 0:01:54.200 --> 0:01:57.720 brit In television experience in a live performance with music. 0:01:58.280 --> 0:02:00.920 So I've been learning a lot about on fiction with 0:02:00.960 --> 0:02:04.520 this lawsuit. So this would be a form of fan fiction. 0:02:05.080 --> 0:02:10.080 So yes, this is clearly a fan fiction work. Fan 0:02:10.200 --> 0:02:14.320 Fiction has been with us for decades now, and the 0:02:14.400 --> 0:02:19.040 legal standards relating to it are both crystal clear and 0:02:19.480 --> 0:02:24.000 sort of opaque. There's this complete agreement and clarity with 0:02:24.080 --> 0:02:27.720 respect to the fact that fan fiction is a derivative work, 0:02:28.040 --> 0:02:31.480 and the Copyright Act of nineteen seventy six, amongst the 0:02:31.560 --> 0:02:35.440 exclusive rights that conveys the copyright owners is the exclusive 0:02:35.560 --> 0:02:39.080 right to produce derivative works. And there is no doubt 0:02:39.160 --> 0:02:42.960 whatsoever that this fan fiction is typically a derivative work 0:02:43.240 --> 0:02:47.880 and therefore constitutes copyright infringement absent one of two things happening. 0:02:47.919 --> 0:02:49.919 And again the law is clear on this. Either there 0:02:49.919 --> 0:02:52.799 has to be permission from the copyright owner to engage 0:02:52.919 --> 0:02:55.240 in producing the derivative work, or there has to be 0:02:55.560 --> 0:02:58.160 colorable claim of fair use under Section one on seven 0:02:58.160 --> 0:03:01.399 of the Copyright Act. Now that's the clarity we have here. 0:03:01.480 --> 0:03:04.080 Where things get a little bit opaque is with respect 0:03:04.160 --> 0:03:10.000 to how producers of original content engage with producers of 0:03:10.040 --> 0:03:12.400 fan fiction. And you see that here in this bridget 0:03:12.480 --> 0:03:16.240 In lawsuit in its most dramatic form. Over the years, 0:03:16.240 --> 0:03:19.600 producers of content have to a certain extent welcome fan 0:03:19.760 --> 0:03:22.600 fiction in the sense that it creates a buzz about 0:03:22.600 --> 0:03:25.880 a work. There's no more powerful advertising marketing than word 0:03:25.880 --> 0:03:29.800 of mouth, and this is all free advertising for the 0:03:29.840 --> 0:03:34.360 original work fan fiction. The problem arises when the creators 0:03:34.360 --> 0:03:38.839 of the fan fiction either engage in disparagement of the 0:03:38.920 --> 0:03:43.640 original work or they attempt to profit off the original work. 0:03:44.040 --> 0:03:47.720 And so there's this tension between the original producers of 0:03:47.720 --> 0:03:50.760 the content and the persons producing the fan fiction. And 0:03:50.800 --> 0:03:54.080 you see different producers original content coming down different places 0:03:54.080 --> 0:03:57.800 on this. Paramount Pictures has always been a supporter of 0:03:58.200 --> 0:04:01.240 fan fiction with respected Star Trek series. You look at 0:04:01.240 --> 0:04:04.240 the other side and there are many producers of original content. 0:04:04.560 --> 0:04:08.160 J K rolling with the Harry Potter series in particular, 0:04:08.280 --> 0:04:10.920 has been fairly aggressive and attempt to stop it. Now, 0:04:11.120 --> 0:04:15.240 in that instance, there has been this adult or sexually 0:04:15.240 --> 0:04:19.560 explicit form of derivative works coming out of Harry Potter 0:04:19.680 --> 0:04:23.279 series that, as they said, disparaging, and original content owners 0:04:23.360 --> 0:04:25.800 tend to be pretty harsh on that. But you see 0:04:26.000 --> 0:04:29.279 the original producers content on both sides of this fan fiction, 0:04:29.440 --> 0:04:32.520 and that is where the opaqueness comes. We're pretty clear 0:04:32.560 --> 0:04:34.440 what the law should be, but then we get into 0:04:34.480 --> 0:04:39.920 this range of quasi supporting it, quase I not supporting it, 0:04:40.040 --> 0:04:42.480 and it's hard to draw lines there. So then does 0:04:42.480 --> 0:04:46.160 it appear that Barlow and there are using the intellectual 0:04:46.200 --> 0:04:51.200 property of Netflix without permission, constituting copyright infringement. So there's 0:04:51.240 --> 0:04:54.360 no doubt in my mind whatsoever that the plainist here 0:04:54.760 --> 0:04:58.160 Netflix have established on the face of the complaint of Prime, 0:04:58.160 --> 0:05:01.560 a fashion case of copyright infringement as well as trademark infringement. 0:05:01.680 --> 0:05:04.080 The question we should be asking, well, what's the defense 0:05:04.160 --> 0:05:06.880 that we're going to see from miss Barlow and miss 0:05:06.880 --> 0:05:11.520 bear and based on path cases in which fan fiction 0:05:11.600 --> 0:05:15.120 has been charged with copyright infringement. We typically see two defenses, 0:05:15.240 --> 0:05:18.920 one that we had the implied authorization to do this, 0:05:19.360 --> 0:05:21.920 or to that our use of the original work was 0:05:21.960 --> 0:05:24.920 a fair use and therefore protected from copyright infringement. Go 0:05:25.040 --> 0:05:27.920 through what a fair use analysis might look like here. 0:05:28.440 --> 0:05:31.920 So the fair use analysis and the context of fan 0:05:32.040 --> 0:05:35.960 fiction probably traces itself back to an old case involving 0:05:36.080 --> 0:05:39.360 Gone with the Wind, the epic book and motion picture, 0:05:39.680 --> 0:05:44.159 a true parody was done called The Wind Done Gone 0:05:44.600 --> 0:05:47.679 and The Wind Done Gone, took the story of Gone 0:05:47.680 --> 0:05:49.960 with the Wind and looked at it from the point 0:05:49.960 --> 0:05:54.160 of view of the slaves who were involved in that novel, 0:05:54.440 --> 0:05:58.000 and in a very real sense it was a social commentary. 0:05:58.240 --> 0:06:02.440 And therefore the eleven circuit, when faced with a copyright 0:06:02.480 --> 0:06:05.600 infringement action against The Wind, Dungan held that it was 0:06:05.640 --> 0:06:07.960 a fair use, that it was a transformative work, which 0:06:07.960 --> 0:06:10.400 is the key for fair use analysis. It transformed the 0:06:10.400 --> 0:06:14.080 original work in such way that it contributed to societal good, 0:06:14.480 --> 0:06:19.160 essentially a commentary on the treatment of enslaved peoples during 0:06:19.160 --> 0:06:22.560 the Civil War, and therefore it was allowed. So that 0:06:22.760 --> 0:06:25.359 is essentially the approach that has to be taken in 0:06:25.400 --> 0:06:28.200 these fan fiction cases with respect the fair used defense 0:06:28.520 --> 0:06:33.080 is the work sufficiently transformative that it accomplishes some sort 0:06:33.120 --> 0:06:36.039 of societal good is recognized in the Copyright Act, and 0:06:36.080 --> 0:06:37.960 I think you could be hard pressed to see that here. 0:06:38.000 --> 0:06:40.520 This is not a parody. This is very much taking 0:06:40.520 --> 0:06:45.560 advantage of the original Netflix television series Britain in attempting 0:06:45.560 --> 0:06:48.240 to exploit it. It is very different from this word 0:06:48.279 --> 0:06:51.120 transformative works that have been approved by the courts in 0:06:51.120 --> 0:06:53.600 the past, and I think this will be a very 0:06:53.720 --> 0:06:56.839 hard road for the defendants to pursue a fair used 0:06:56.920 --> 0:06:59.599 defense here. I think it's far more likely that they're 0:06:59.600 --> 0:07:03.159 going to have to pursue some sort of implied license defense. 0:07:03.320 --> 0:07:07.560 So how would it applied license defense work? So you 0:07:07.600 --> 0:07:11.360 see the elements of the implied license defense in this case. 0:07:11.560 --> 0:07:15.320 In the actual complaint, the lawyers for Netflix have anticipated 0:07:15.400 --> 0:07:17.680 that that's the way the defendants will attempt to go 0:07:17.960 --> 0:07:20.920 In defending this quote unquote unofficial musical of bridget It. 0:07:21.160 --> 0:07:25.200 They repeatedly point out that yes, there were discussion with 0:07:25.520 --> 0:07:28.440 Miss Barlow and Miss Bear about the fans fiction that 0:07:28.480 --> 0:07:31.880 they were producing, but in each instance they carefully preserve 0:07:31.960 --> 0:07:34.680 the right and saying we're not authorizing this, we're not 0:07:34.720 --> 0:07:37.480 going to do anything about it right now, And they 0:07:37.560 --> 0:07:40.120 always stopped short. So they wanted a little bit of 0:07:40.160 --> 0:07:43.080 this frans fiction without it going to the point of 0:07:43.360 --> 0:07:47.200 displacing their potential marketplace. And that's the tension that I 0:07:47.200 --> 0:07:50.200 talked about before, that original producers of content have with 0:07:50.280 --> 0:07:52.440 producers of fan fiction. They want to have their cake 0:07:52.480 --> 0:07:55.360 and eat it too. Now Here. I think Netflix made 0:07:55.360 --> 0:07:58.840 it clear throughout the discussions with Miss Barlow and Miss 0:07:58.840 --> 0:08:02.200 Bear that they were not authorized, and indeed, I assume 0:08:02.280 --> 0:08:04.480 that one of the things defendants will say as part 0:08:04.520 --> 0:08:06.480 of the defense is that, well, gosh, this has been 0:08:06.480 --> 0:08:09.960 going on for a year now and they haven't done anything, 0:08:10.160 --> 0:08:14.520 And that is sort of facially attractive, legally difficult to 0:08:14.640 --> 0:08:18.320 make defense because there is no obligation on the part 0:08:18.400 --> 0:08:21.360 of a copyright planiff to sue you at a specific time. 0:08:21.600 --> 0:08:24.080 The mere fact that you wait six months the year 0:08:24.120 --> 0:08:28.880 to file the lawsuit does not really matter in this context, 0:08:29.040 --> 0:08:31.680 where you're constantly sending out signals we don't approve of this, 0:08:31.760 --> 0:08:36.040 we don't authorize that. Which particularly problematic here is that 0:08:36.280 --> 0:08:39.640 the unofficial bridge and musical and the merchandise associated with 0:08:39.800 --> 0:08:42.160 came out about the same time that Netflix and the 0:08:42.160 --> 0:08:45.000 bridget and television people were thinking of moving in that direction, 0:08:45.200 --> 0:08:49.080 and therefore it was displacing a legitimate market opportunity for 0:08:49.080 --> 0:08:51.720 the copyright hold I know that a lot of these cases, 0:08:51.800 --> 0:08:54.520 or maybe even most of them, settle, but is there 0:08:54.559 --> 0:08:58.160 any impetus for Netflix to settle here? Hard to see 0:08:58.240 --> 0:09:01.800 unless the defendants simply cave in and say we give 0:09:01.880 --> 0:09:03.800 up what do you want, which, by the way, is 0:09:03.840 --> 0:09:06.319 not a scenario that I would discount. I think their 0:09:06.360 --> 0:09:11.240 legal position is very difficult. Copyright infringement lawsuits are expensive 0:09:11.440 --> 0:09:14.480 because they require special counsel. On the other hand, if 0:09:14.520 --> 0:09:18.720 I'm Netflix, I'm hard pressed to see why I would 0:09:18.760 --> 0:09:22.319 settle for anything less than a complete surrender. Their legal 0:09:22.360 --> 0:09:26.960 position is very strong and in my view, a pretty 0:09:27.040 --> 0:09:30.400 good case of willfulness on the part of the defense. 0:09:30.400 --> 0:09:34.600 In other wise, they commit willful copyright infringement, which would entitle, 0:09:34.720 --> 0:09:38.760 if found, the Netflix folks to recover their attorneys fees. 0:09:39.000 --> 0:09:41.960 So the plainists aren't really even going to be out 0:09:42.080 --> 0:09:44.400 their lawyers fees because those are gonna be paid for 0:09:44.480 --> 0:09:46.880 by the defendants. Now, the one thing that could force 0:09:46.960 --> 0:09:49.960 a settlement here is if Netflix comes to the conclusion 0:09:50.000 --> 0:09:53.760 that Ms barlams Bear are for all practical purposes judgment 0:09:53.800 --> 0:09:57.320 proof um, in which case they won't be able to 0:09:57.400 --> 0:10:00.480 recover their attorneys fees and probably will one limit their 0:10:00.480 --> 0:10:03.320 own attorney's fees and and just settle with them going 0:10:03.360 --> 0:10:06.840 away and giving up on this project. The amount of 0:10:06.880 --> 0:10:10.880 fan fiction out there is astounding and TikTok. I mean, 0:10:10.920 --> 0:10:13.080 that's how they got started on TikTok, and I saw 0:10:13.160 --> 0:10:16.520 that the author, the Bridgetain author Julia Quinn, in a 0:10:16.559 --> 0:10:20.839 statement said there's a difference between a TikTok composition and 0:10:20.920 --> 0:10:24.360 performing for commercial gain. So I guess once the money 0:10:24.360 --> 0:10:27.679 starts rolling in, that's where the line is drawn. That's 0:10:27.720 --> 0:10:30.640 absolutely true to But here in particular, they not just 0:10:30.800 --> 0:10:33.920 moved from the TikTok around, but they were moving directly 0:10:34.080 --> 0:10:38.800 into a market that was targeted by Britain and Netflix. 0:10:39.160 --> 0:10:42.720 It is very common for movies and television shows in 0:10:42.760 --> 0:10:45.720 the current environment to become broadway shows. I mean, we 0:10:45.720 --> 0:10:48.240 see this all the time. Lion King is a great 0:10:48.280 --> 0:10:51.280 example of that. There's sort of this three sixty view, 0:10:51.720 --> 0:10:54.360 as dis thing would put it, of content, where you 0:10:54.760 --> 0:10:58.160 repurpose it into different media. I mean Star Trek was 0:10:58.160 --> 0:11:02.920 originally television show was repurposed into the movies and became 0:11:02.960 --> 0:11:05.720 even bigger. And so the threat that was posed here 0:11:05.920 --> 0:11:09.920 by the defendants to Netflix was taking away one element 0:11:10.000 --> 0:11:13.559 of that three sixty view of entertainment content, i e. 0:11:13.720 --> 0:11:18.000 The opportunity to do Broadway musical as well as the 0:11:18.000 --> 0:11:21.760 merchandizing that comes from that. And that's that's why at 0:11:21.800 --> 0:11:24.560 bottom Netflix had to act. At this point they were 0:11:24.640 --> 0:11:29.200 losing a critical market component if they didn't act. Netflix 0:11:29.240 --> 0:11:33.480 is also claiming trademark infringement. What is the trademark? The 0:11:33.520 --> 0:11:38.839 trademark is Britain, and the defendants have captioned their show 0:11:39.120 --> 0:11:40.800 that they put on at the Kennedy Center and planned 0:11:40.840 --> 0:11:43.120 put on the Royal Albert Hall in London later this 0:11:43.200 --> 0:11:47.400 year as the Unofficial Bridgetain Musical. So the Brilluton name, 0:11:47.480 --> 0:11:50.719 which is trademark, has just taken. Indeed, in the advertising 0:11:50.960 --> 0:11:54.600 they actually put after the word bridgertain the capital are 0:11:54.720 --> 0:11:58.680 in a circle indicating it's a registered trademark. Not to them, 0:11:58.720 --> 0:12:02.840 but netflike was kind of shocking. Thus they acknowledge that 0:12:02.880 --> 0:12:06.959 they were taking a registered trademark. The argument that defense 0:12:07.000 --> 0:12:08.840 that they would make is actually a little bit better 0:12:08.920 --> 0:12:10.920 though than the copyright defense. They will say that by 0:12:10.960 --> 0:12:16.120 putting in front of the word Bridgeted the unofficial Bridgeted Musical, 0:12:16.360 --> 0:12:19.679 they were indicating the people that it had no association 0:12:19.760 --> 0:12:23.400 or relationship with the Netflix bridget In television show. This 0:12:23.480 --> 0:12:26.719 is very common in trademark law. We see this all 0:12:26.760 --> 0:12:31.120 the time. The actual word usually uses unauthorized, and that 0:12:31.160 --> 0:12:33.200 may matter here. The fact that they went with the 0:12:33.360 --> 0:12:37.440 word unofficial instead of unauthorized may come back to haunt them. 0:12:37.880 --> 0:12:41.640 But trademark law is different than copyright law, and copyright 0:12:41.760 --> 0:12:44.240 laws intended to protect the creator of the original work. 0:12:44.520 --> 0:12:48.720 Trademark laws intended to protect consumers against being misled as 0:12:48.760 --> 0:12:51.800 to what they're buying, and so there's a different standard here. 0:12:51.880 --> 0:12:54.800 And the question is will the people who bought tickets 0:12:54.920 --> 0:12:58.600 to the Unofficial bridge Of Musical understand that they were 0:12:58.679 --> 0:13:01.960 not buying something that was associated with the related to 0:13:02.200 --> 0:13:05.000 bridget and the television show. And if they can show 0:13:05.080 --> 0:13:08.920 that use of the word unofficial meant that people knew 0:13:09.200 --> 0:13:11.880 that it wasn't being put on by Netflix, then they 0:13:11.960 --> 0:13:15.560 might have it out from the trademark cause of action. Interesting, 0:13:15.880 --> 0:13:18.240 it's sort of brazen. But you know what, they got 0:13:18.320 --> 0:13:21.640 famous with this, so that's a big step. No matter 0:13:21.679 --> 0:13:24.439 what happens, they got the Ramians, they move ahead with 0:13:24.600 --> 0:13:27.400 the Heck, there's no question that there's some talent here. 0:13:27.640 --> 0:13:34.360 Marlosba demonstrated the dack producing content that people are interested in, 0:13:34.760 --> 0:13:38.480 and perhaps they can parlay that into something in the 0:13:38.480 --> 0:13:42.880 future that does not involve taking the hard work of 0:13:43.200 --> 0:13:45.680 copyright owners. The problem there are a lot of people 0:13:45.720 --> 0:13:50.720 out there who are capable of writing music and lyrics 0:13:51.120 --> 0:13:54.360 putting it to other work. The trouble is coming up 0:13:54.400 --> 0:13:59.160 with your own idea exactly and dilogue exactly. We'll see 0:13:59.160 --> 0:14:03.160 what happens with them and with the lawsuit. Thanks so much, Terry. 0:14:03.240 --> 0:14:07.760 As always, that's intellectual property litigator Terence Frost, a partner 0:14:07.760 --> 0:14:12.520 at Captain uten Rosenman. Hair Love is an animated short 0:14:12.600 --> 0:14:16.320 film about an African American dad who's attempting to style 0:14:16.440 --> 0:14:19.600 his young daughter's hair for the first time. When the 0:14:19.600 --> 0:14:24.480 film won an Academy Award in filmmaker Matthew Cherry used 0:14:24.520 --> 0:14:27.680 his time to talk about new legislation known as the 0:14:27.720 --> 0:14:30.000 Crown Act. Hair in Love was done because we wanted 0:14:30.000 --> 0:14:33.040 to see more representation and animation. We wanted to normalize 0:14:33.040 --> 0:14:36.400 black hair. There's a very important issue that's out There's 0:14:36.440 --> 0:14:40.200 the Crown Act that stands for creating a respectful and 0:14:40.320 --> 0:14:44.800 open world for natural hair. The law prohibiting discrimination against 0:14:44.800 --> 0:14:49.480 hairstyles and textures historically affiliated with race passed the US 0:14:49.560 --> 0:14:52.280 House in March, but the bill has not yet been 0:14:52.320 --> 0:14:56.160 considered by the Senate. Still, eighteen states have passed their 0:14:56.200 --> 0:14:59.400 own Crown Acts in the last three years, including some 0:14:59.480 --> 0:15:03.080 red state. California and New York were the first states 0:15:03.120 --> 0:15:06.840 to pass the measure only three years ago, and Massachusetts 0:15:06.920 --> 0:15:10.680 became the latest state on July. Joining me is. Chris 0:15:10.880 --> 0:15:14.680 mar senior correspondent for Bloomberg Law, tell us a little 0:15:14.720 --> 0:15:19.920 about these black hair bias laws called Crown x sure. 0:15:20.160 --> 0:15:25.440 So these laws banned race related hair discrimination. So we're 0:15:25.440 --> 0:15:30.440 talking about bias in the workplace or in schools most 0:15:30.480 --> 0:15:36.120 of the time against traditionally black hairstyles or textures. And 0:15:36.160 --> 0:15:39.440 so these are these are laws that forbid employers and 0:15:39.600 --> 0:15:46.240 or public schools from discriminating against things like dreadlocks and 0:15:46.360 --> 0:15:50.680 bantu knots and braids and and other hairstyles and textures 0:15:50.680 --> 0:15:55.080 that would be commonly worn by black students or black workers. 0:15:55.120 --> 0:16:00.000 So one of the co sponsors of the Massachusetts measure, Democrats, 0:16:00.120 --> 0:16:04.320 the state representative Brandy Fluker Oakley, called the law game 0:16:04.400 --> 0:16:07.960 changer for black women. Can you explain what she meant? So, 0:16:08.320 --> 0:16:11.760 her comments and I've heard a lot of particularly black 0:16:11.800 --> 0:16:15.320 women make similar comments about these laws being passed in 0:16:15.360 --> 0:16:20.920 the States, point to this sort of pressure for for 0:16:21.440 --> 0:16:25.520 black workers and women in particular to do things like 0:16:25.680 --> 0:16:30.320 chemically straighten their hair or or otherwise alter their hair 0:16:30.920 --> 0:16:35.640 from its natural texture to look what some employers would 0:16:35.640 --> 0:16:39.080 consider to be more professional. But it's you know, it's 0:16:39.080 --> 0:16:42.320 a it's a biased expectation, right that if you have 0:16:42.440 --> 0:16:47.800 naturally black hair, are naturally black hair texture, um to 0:16:47.880 --> 0:16:49.960 think of that as unprofessional. And so that's kind of 0:16:50.000 --> 0:16:53.680 the underlying bias that these laws are trying to root out, 0:16:54.160 --> 0:16:57.880 to say, you know, black workers and black students should 0:16:57.880 --> 0:17:01.280 be able to wear their hair and natural texture or 0:17:01.480 --> 0:17:07.080 or in these traditionally sort of protective hairstyles without facing 0:17:07.359 --> 0:17:11.560 negative consequences at work or school. So does that mean 0:17:11.560 --> 0:17:17.280 that employers with let's say sales staff can't require employees 0:17:17.560 --> 0:17:21.560 to tie their hair back or you know, if they're 0:17:21.600 --> 0:17:25.320 working in a in a restaurant wear a hairnet. So 0:17:25.440 --> 0:17:29.199 the details of each state law vary somewhat, but in 0:17:29.240 --> 0:17:32.919 a lot of cases they do allow for health and 0:17:33.000 --> 0:17:36.600 safety related requirements such as tying the hair back or 0:17:36.640 --> 0:17:44.520 wearing hairnet. Um. These protections are against really specifically race 0:17:44.640 --> 0:17:50.320 related hair policies um, and so if it's health and 0:17:50.320 --> 0:17:54.639 safety related or it or it's neutral and not race specific, 0:17:54.960 --> 0:18:00.280 then generally employers could still enforced hair policy is within 0:18:00.280 --> 0:18:03.920 their dress code. One employment lawyer I talked with gave 0:18:03.960 --> 0:18:06.560 the example of, you know, this doesn't mean you have 0:18:06.600 --> 0:18:09.159 to hire a person with blue hair, you know, because 0:18:09.200 --> 0:18:12.560 that's not related to race. Right? Is it mainly blue 0:18:12.560 --> 0:18:15.560 states that are enacting these laws. So blue states have 0:18:15.640 --> 0:18:19.199 really led the charge. California and New York were the 0:18:19.320 --> 0:18:23.720 first to enact a version of the Crown Act back 0:18:23.720 --> 0:18:27.200 in twent nineteen, and so the majority of the states 0:18:27.280 --> 0:18:31.560 are those with Democratic majority legislatures, but we have begun 0:18:31.680 --> 0:18:36.439 to see some Republican majority legislatures get in on the 0:18:36.480 --> 0:18:40.840 Act as well. So uh Louisiana, for example, has a 0:18:40.880 --> 0:18:44.600 new law that that just took effect August one. Tennessee 0:18:45.320 --> 0:18:49.760 and Alaska also have passed versions of this, although you 0:18:49.800 --> 0:18:52.840 know sometimes in a in a narrower way of the 0:18:52.880 --> 0:18:56.640 Alaska bill, which is awaiting the governor's signature, there would 0:18:56.680 --> 0:19:01.720 only deal with discrimination at school, not placed discrimination. And 0:19:01.800 --> 0:19:04.720 the House passed a national version of the Crown Act 0:19:04.880 --> 0:19:08.119 in March. So Chris tell us about the Crown Act 0:19:08.320 --> 0:19:11.639 and how it came about. So, the Crown Act, the 0:19:11.960 --> 0:19:15.359 Crown stands for creating a respectful and open world for 0:19:15.520 --> 0:19:19.440 natural hair and and this is something that really a 0:19:19.480 --> 0:19:23.600 coalition of of advocacy groups came up with and and 0:19:23.600 --> 0:19:27.639 I've been pushing for in states and at the federal level, 0:19:28.440 --> 0:19:30.960 UM and and have and have had, you know, pretty 0:19:31.119 --> 0:19:34.280 pretty good success in my opinion. You know, within just 0:19:34.320 --> 0:19:37.440 a matter of three years now we've got eighteen states 0:19:37.800 --> 0:19:41.280 that have adopted this. Alaska will make nineteen if if 0:19:41.280 --> 0:19:44.359 the governor signs the bill. There is there a real 0:19:44.520 --> 0:19:46.919 push to get this through in the Senate because I 0:19:46.920 --> 0:19:50.399 haven't heard much about it, right, And I'll confess I 0:19:50.400 --> 0:19:54.480 don't cover Congress closely. I focus more on the states. UM. 0:19:54.520 --> 0:19:56.159 I talked for the colleague of mine while I was 0:19:56.160 --> 0:19:59.000 working on this, and who does cover Congress and her 0:19:59.080 --> 0:20:01.840 sense was that it's it's just sort of on ice. 0:20:02.080 --> 0:20:05.119 You know, there's so many other priorities in the Senate. No, 0:20:05.320 --> 0:20:08.840 it's not easy to get anything through the Senate these days. Now, 0:20:08.880 --> 0:20:13.120 what about the possible impact on employers? Are they expected 0:20:13.119 --> 0:20:16.680 to see more lawsuits than based on this right? So, 0:20:16.960 --> 0:20:23.119 so it does create another category of potential discrimination lawsuits 0:20:23.160 --> 0:20:28.000 against employers. Um well, I should say, in state laws vary. 0:20:28.040 --> 0:20:32.040 In some states, employees could bring a lawsuit. In other states, 0:20:32.040 --> 0:20:35.640 they would bring a complaint through the state labor commissioner 0:20:35.760 --> 0:20:38.959 or some other state agency, which would then, you know, 0:20:39.000 --> 0:20:42.560 handle some sort of resolution process. But yes, it does 0:20:42.600 --> 0:20:46.560 create the potential for more discrimination claims against employers, and 0:20:46.640 --> 0:20:49.720 so you know, they will need to review their policies 0:20:49.760 --> 0:20:51.720 and and think about how they want to train their 0:20:52.560 --> 0:20:57.160 their managers who handle hiring and firing discipline. I want 0:20:57.160 --> 0:21:00.680 to turn to another issue involving labor law, and that's 0:21:00.760 --> 0:21:06.200 non competes. Businesses often require employees to sign non compete 0:21:06.200 --> 0:21:10.920 agreements which prevent them from leaving and going to a competitor. 0:21:11.480 --> 0:21:13.960 And you write about a trend in states to ban 0:21:14.119 --> 0:21:19.280 non competes for lower and middle income employees and hourly workers. 0:21:19.960 --> 0:21:22.240 D C has just passed a law which is going 0:21:22.320 --> 0:21:27.919 to go into effect on October one. Tell us about that, right, So, 0:21:28.000 --> 0:21:30.680 the District of Columbia has has passed a law now 0:21:31.440 --> 0:21:37.479 that will ban almost all employee noncompete contracts for workers 0:21:37.520 --> 0:21:39.960 who make less than a hundred and fifty thousand dollars 0:21:40.040 --> 0:21:44.119 per year. UH. And there are a few narrow exceptions 0:21:44.119 --> 0:21:48.639 in there, for example, relates to the broadcast industry, but 0:21:48.720 --> 0:21:51.320 by and large that means employers won't be able to 0:21:51.840 --> 0:21:56.399 have their workers sign a contract saying they can't go 0:21:56.520 --> 0:22:00.000 to work for a competing company unless they make more 0:22:00.000 --> 0:22:02.119 and a hundred and fifty thousand dollars a year. And 0:22:02.160 --> 0:22:04.440 that's that's kind of the starting threshold, and it will 0:22:04.480 --> 0:22:08.680 be increased each year based on inflation after the law 0:22:08.720 --> 0:22:12.440 takes effect. Do you know how they reached that, because 0:22:12.480 --> 0:22:15.800 that is pretty substantial, right, It's a it's a higher 0:22:15.840 --> 0:22:18.840 figure than most states have gone with. It may be 0:22:19.000 --> 0:22:23.080 the highest. I think Washington State went higher for independent 0:22:23.200 --> 0:22:27.080 contractors who are not considered employees. But other than that, 0:22:27.160 --> 0:22:29.399 I do believe the hundred and fifty thousand is the 0:22:29.480 --> 0:22:33.439 highest threshold UH that any state has set I'm not 0:22:33.480 --> 0:22:36.000 sure how they came up with that number, but I 0:22:36.040 --> 0:22:38.119 think it was intended as a little bit of a 0:22:38.119 --> 0:22:42.959 compromise because the Council originally passed the law back at 0:22:42.960 --> 0:22:46.840 the end of and it never took effect. They delayed 0:22:46.880 --> 0:22:50.080 it sort of indefinitely. But but that law would have 0:22:50.119 --> 0:22:55.280 banned virtually all noncompete regardless of the employee's income level. 0:22:56.320 --> 0:23:01.320 Explain the trend in these laws, why states are passing them? Sure? So, 0:23:02.880 --> 0:23:06.280 I guess the theory with with having employees signed noncompete 0:23:06.440 --> 0:23:10.199 is that the employer is trying to protect uh, some 0:23:10.280 --> 0:23:14.480 sort of trade secret or or confidential company information. They 0:23:14.480 --> 0:23:18.000 don't want an employee to leave the company and go 0:23:18.080 --> 0:23:21.960 work for a competitor and take that sort of sensitive 0:23:22.440 --> 0:23:27.040 competitive information to the competing company. You know. Within the 0:23:27.080 --> 0:23:31.160 last few years, it's become sort of better understood that 0:23:32.320 --> 0:23:34.480 a lot of the workers being asked to sign these 0:23:34.480 --> 0:23:38.919 noncompetes really don't have access to trade secrets or or 0:23:39.000 --> 0:23:42.760 confidential information. There were reports going around a few years ago, 0:23:43.320 --> 0:23:47.240 for example, that, uh, you know, sandwich chains like Jimmy John's, 0:23:47.240 --> 0:23:50.600 we're asking their you know, their restaurant workers to sign 0:23:50.640 --> 0:23:53.719 these noncompete and you know, you kind of scratch your 0:23:53.720 --> 0:23:55.840 head and think, well, what's what's the reason for that, 0:23:57.160 --> 0:24:00.919 Although companies still sometimes argue, well, we we invested money 0:24:01.000 --> 0:24:04.160 in in training the employees, and so we don't want 0:24:04.200 --> 0:24:06.880 them to take that those sort of skills and training 0:24:07.440 --> 0:24:11.560 that we've spent money on and take it to another company. Um. 0:24:11.680 --> 0:24:15.280 But so so there's kind of a movement amongst states. 0:24:15.320 --> 0:24:18.480 It's a I think eleven at least eleven states now 0:24:18.840 --> 0:24:23.640 plus the District of Columbia have passed law that bans 0:24:23.800 --> 0:24:28.600 noncompetes based on some income level. And those originally started 0:24:28.600 --> 0:24:32.480 with the idea of protecting low income workers. But of course, 0:24:32.640 --> 0:24:35.239 you know, we can see with DC that has you know, 0:24:35.320 --> 0:24:39.120 moved up beyond just low income workers. Uh. And now 0:24:39.320 --> 0:24:42.280 and with d C and also Colorado, which passed new 0:24:42.320 --> 0:24:45.400 law this year, the thinking is more in line with 0:24:46.400 --> 0:24:51.000 we're only going to allow noncompetes for highly compensated employees. 0:24:51.680 --> 0:24:55.080 Colorado set the threshold at a hundred thousand, and now 0:24:55.200 --> 0:24:58.760 DC has said a fifty thousand. Thanks so much, Chris. 0:24:59.040 --> 0:25:03.040 That's Chris Mars, senior correspondent for Bloomberg Law. And that's 0:25:03.040 --> 0:25:05.680 it for this edition of the Bloomberg Law Show. Remember 0:25:05.720 --> 0:25:07.760 you can always get the latest legal news on our 0:25:07.800 --> 0:25:11.960 Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 0:25:12.160 --> 0:25:17.160