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Speaker 1: This is Bloomberg Law, with June Brussel from Bloomberg Radio

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Speaker 1: in two oral arguments this week the Supreme Court struggle

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Speaker 1: to determine when social media companies can be held responsible

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Speaker 1: for aiding terrorism At risk was section two thirty of

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Speaker 1: the Communications Decency Act, the controversial law that protects online

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Speaker 1: companies from being sued over the comments, ads, pictures, and

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Speaker 1: videos on their platforms. Congress has been unsuccessful in efforts

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Speaker 1: to reform section to thirty, and the Supreme Court is

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Speaker 1: being asked to step into the controversy and change the

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Speaker 1: status quo, something most of the justices seemed reluctant to do.

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Speaker 1: Here are Justices Elena Kagan and Brett Kavanaugh. I mean,

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Speaker 1: we're a court. We really don't know about these things.

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Speaker 1: You know, these are not like the nine greatest experts

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Speaker 1: on the internet. Congress draft today broad text, and that

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Speaker 1: text has been unanimously read by courts of appeals over

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Speaker 1: the years to provide protection in this sort of situation,

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Speaker 1: and that you now want to challenge that consensus. In

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Speaker 1: the first case argued on Wednesday, the family of a

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Speaker 1: US citizen killed by Islamic State in a twenty fifteen

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Speaker 1: Paris Attack argued that Google should be held liable for

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Speaker 1: software algorithms that recommended terrorist videos to YouTube users, but

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Speaker 1: in the first question, Justice Clarence Thomas suggested that companies

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Speaker 1: can't be sued if their recommendation algorithms are neutral about

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Speaker 1: the kind of content they promote. The same algorithm to

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Speaker 1: present cooking videos to people who are interested in cooking,

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Speaker 1: and isis videos to people who are interested in isis

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Speaker 1: racing videos, So people who are interested in racing. Then

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Speaker 1: I think you're going to have to explain more clearly

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Speaker 1: if it's neutral in that way, how your claim is set.

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Speaker 1: Apart from that. Joining me is Eric Goleman, a professor

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Speaker 1: at Santa Clara University School of Law and co director

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Speaker 1: of the High Tech Law Institute. Before the Oral arguments

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Speaker 1: this week, there was a lot of gloom and doom

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Speaker 1: concerns about the future of Section two thirty. Do you

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Speaker 1: think the cases sort of fizzled out and the concerns

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Speaker 1: are not as great anymore. I was certainly one of

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Speaker 1: the people who was spreading doom and gloom. I was

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Speaker 1: and remained fearful about the future of the Internet. I

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Speaker 1: do think that the oral arguments exposed just how weak

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Speaker 1: the cases are, that at the core they aren't meritorious,

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Speaker 1: and they never were. And to be clear, lots of

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Speaker 1: other courts that said that. It was only the Ninth

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Speaker 1: Circuit that opened up the door to these cases that

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Speaker 1: all the other judges had shut down. And I think

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Speaker 1: that the justice is we're more on the side of

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Speaker 1: the judges who had rejected these cases in the beginning

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Speaker 1: than the end. So I think that seeing how weak

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Speaker 1: the cases are gives us some comfort that the justices

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Speaker 1: are going to reach a good conclusion. However, they're going

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Speaker 1: to do so in a way that I still fear

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Speaker 1: is going to be in strategic loss for the Internet.

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Speaker 1: Before we get to that, let's discuss the plaintiff targeting

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Speaker 1: the algorithms used by YouTube. The first question from Clarence

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Speaker 1: Thomas was that the algorithm is neutral, so you know,

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Speaker 1: show us your case here. Well, they definitely got the

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Speaker 1: point that the plaintiffs are trying to ask social media

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Speaker 1: services to perhaps be something that they're not, and that

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Speaker 1: troubled them and that gave them some pause. They recognize

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Speaker 1: both the speech implications of changing the social media services algorithms,

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Speaker 1: and they also recognize the potential economic consequences, that there's

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Speaker 1: a lot of businesses that are built on the premise

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Speaker 1: that they can decide what's fit for their audience or not.

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Speaker 1: So I think that the Justices recognized the big strategic

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Speaker 1: issues in the case, and it was great to hear

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Speaker 1: Justice Thomas bring that up as the very first question.

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Speaker 1: It's set the tone for the rest of their arguments

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Speaker 1: that we need the plaintifts to be very specific why

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Speaker 1: they think liabilities should be post here and in the

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Speaker 1: Gonzales case, I honestly think they never met that challenge.

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Speaker 1: Across the ideological spectrum. They seem to have problems with

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Speaker 1: the plaintiffs arguments, even saying, you know, I'm confused. I'm

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Speaker 1: so confused. Several the Justices said that it should be

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Speaker 1: Congress who changes Section two thirty. So I'm wondering why

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Speaker 1: they even took the case. It's a great question and

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Speaker 1: one that has vexed me and I think many others

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Speaker 1: from the moment that Supreme Court agreed to hear it.

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Speaker 1: This wasn't the right case for the Supreme Court to

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Speaker 1: take to understand Section two thirty. I felt that was

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Speaker 1: obvious even from the request to the Supreme court to

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Speaker 1: hear it, and I have to feel like whoever voted

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Speaker 1: in favor of hearing these cases kind of regretted it

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Speaker 1: that they thought the cases were going to be a

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Speaker 1: better vehicle for judicial analysis than they ended up being.

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Speaker 1: So I don't exactly know why they took the cases.

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Speaker 1: That was always a mystery, and I think that that

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Speaker 1: got exposed during the oral arguments that this was not

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Speaker 1: the right case for the court to really dig into

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Speaker 1: some hard questions. Give us some background on these cases.

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Speaker 1: These two cases were part of actually a larger litigation

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Speaker 1: enterprise that was initiated. It was about twenty lasses filed

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Speaker 1: across the country on behalf of victims of terrorist attacks,

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Speaker 1: all claiming that social media services should be held accountable

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Speaker 1: for their role in those terrorist attacks. Those lawsuits have

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Speaker 1: uniformly failed across the country except for the one exception

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Speaker 1: in the Ninth Circuit that led to this appeal. And

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Speaker 1: it's so heartbreaking because on the one hand, everyone is

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Speaker 1: sympathetic to the victims. All of them want to see

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Speaker 1: justice for the victims and efforts taken to curb terrorism.

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Speaker 1: But it was so fortunate that they chose these defendants.

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Speaker 1: These are not the right defendants. This is not the

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Speaker 1: right way to curb terrorism or to provide justice for

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Speaker 1: the victims of terrorist attacks. And so the courts have

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Speaker 1: been clear about that the plaintiffs reach too far in

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Speaker 1: the list of possible defendants, and I felt like that

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Speaker 1: message really came through at the Supreme Court. They understood

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Speaker 1: that there are trade offs that need to be made

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Speaker 1: in any decision about speech policy online, and that they're

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Speaker 1: not the right ones to make that decision congresses, and

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Speaker 1: that if they overweight the concerns and the victims here,

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Speaker 1: they're going to create other problems for people who are

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Speaker 1: not in court, and those people also have interests and

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Speaker 1: need to be considered. So you said that even if

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Speaker 1: the justices dismissed the plaintiff's claims here, you're worried about

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Speaker 1: how they come to that decision. Yeah, I am. So.

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Speaker 1: The court usually will write an opinion that says, here's

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Speaker 1: who wins, and here's why they win. And in a

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Speaker 1: clean opinion, they will say, in very few words, these

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Speaker 1: are the elements of the test. The plaintiffs are the

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Speaker 1: defense method right elements that resolves the case over. But

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Speaker 1: the more modern trend in the Supreme Court has been

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Speaker 1: to say more than they have to, and they start

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Speaker 1: musing or speculating or caveating their statements. So it would

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Speaker 1: be easy for them to say something like Google wins

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Speaker 1: because of Section two thirty, and if they stop right there,

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Speaker 1: that could actually be an okay opinion. But what they're

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Speaker 1: likely to do is then say, because of the following facts,

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Speaker 1: and if those facts were different, we might reach a

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Speaker 1: different outcome. Well, as you can imagine, every single plaintiff

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Speaker 1: is going to pick up on the caveat and say, well,

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Speaker 1: I think I can make a claim where I can

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Speaker 1: allege the facts that they said might make a difference.

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Speaker 1: And so we're going to just initiate this huge ground

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Speaker 1: swell of new litigation to explore any caveat or qualification

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Speaker 1: of the Supreme Court puts in. And I don't think

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Speaker 1: they can help themselves to do that. Let's talk about

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Speaker 1: the Twitter case for a moment. That was not about

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Speaker 1: Section two thirty. That was about the boundaries of the

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Speaker 1: federal anti terrorism law. You heard a lot about aiding

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Speaker 1: and abetting, as you did in the Google case. Correct,

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Speaker 1: And just to be clear, so the Gonzals case involves

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Speaker 1: Section two thirty, which is a defense immunity from liability

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Speaker 1: that covers a wide range of potential claims. The Twitter

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Speaker 1: case only evolved the Anti Terrorism Act one of the

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Speaker 1: many possible claims I might be covered by Section two thirty.

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Speaker 1: That's why there's been so much interest in the Gonzales

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Speaker 1: case over the Twitter case, because of the fact that

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Speaker 1: the Gonzals case could change the law across hundreds or

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Speaker 1: thousands of other laws. Now in the Anti Terrorism Act,

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Speaker 1: the question is what constitutes aiding and abetting a terrorist organization,

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Speaker 1: and that kind of inquiries exactly the kind of thing

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Speaker 1: that section two thirty has mooted. In the past, plaintiffs

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Speaker 1: have alleged that they could get around Section two thirty

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Speaker 1: in other legal doctrines by saying, I'm not suing them

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Speaker 1: because they were the bad actor. I'm suing them because

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Speaker 1: they helped the bad actor. And Section two thirty simply

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Speaker 1: says you can't do that. So we haven't seen the

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Speaker 1: kind of cases like the oral arguments we heard in

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Speaker 1: the Twitter case because of the fact that Section two

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Speaker 1: thirty has made those inquiries moot. So every plaintiff can

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Speaker 1: allege that social media or other websites help some bad actor.

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Speaker 1: That's the whole nature of talking to each other online,

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Speaker 1: and section two there has taken away. When we open

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Speaker 1: up that door and look at it like we did

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Speaker 1: with a Twitter case, the justices don't know what to do.

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Speaker 1: That's just judicial anarchy. Eric. So section two thirty is

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Speaker 1: a defense that Google raised in the Gonzales case on Tuesday.

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Speaker 1: Why didn't Twitter raise it in the case on Wednesday?

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Speaker 1: So my understand is that the court shows to decide

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Speaker 1: the case on the Anti Terrorism Act grounds only, which

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Speaker 1: is of course prerogatives. They don't have to rule on

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Speaker 1: every single basis on which the plaintiff might lose. And

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Speaker 1: so my understanding is that section two therey could in

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Speaker 1: fact be playing in the case if the case is

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Speaker 1: still open. It's just that the judge put the Anti

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Speaker 1: Terrorism Act in quired first. So in the Twitter case,

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Speaker 1: there were lots of hypotheticals. Banks and restaurants that serve terrorists,

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Speaker 1: people give guns to known criminals, and Justice Alito said,

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Speaker 1: let's say j Edgar Hoover tells Bell Telephone Company that

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Speaker 1: Dutch Schulz is a gangster and he's using his phone

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Speaker 1: to carry out mob activities. The phone company says, we

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Speaker 1: don't deprive people of service based on that that makes

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Speaker 1: him an aider and a better he was expecting. I

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Speaker 1: think a different response from the lawyer. The aidan embedding

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Speaker 1: question is just a morass of confusion and ambiguity. And

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Speaker 1: in particular, I didn't love the hypotheticals where law enforcement

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Speaker 1: is telling a service that one of their customers is

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Speaker 1: doing illegal activity, because as we know, law enforcement isn't

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Speaker 1: always credible on that front, and sometimes they can use

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Speaker 1: or weaponize their status to achieve things that the law

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Speaker 1: wouldn't otherwise permit them. And while that happens sometime in

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Speaker 1: the US, that happens all the time in some other countries,

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Speaker 1: and so cheating the government source as an authoritative provider

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Speaker 1: of identifying a criminal or a terrorist or a bad

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Speaker 1: actor is actually just a road to ruin. And so

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Speaker 1: I think the correct answer should be that we can't

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Speaker 1: rely on the government's claims alone. However, if the court

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Speaker 1: has adjudicated that someone is a criminal or terrorist, maybe

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Speaker 1: we would feel differently. Did the more liberal justices seem

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Speaker 1: to be more open to the idea that Twitter should

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Speaker 1: bear some responsibility for indirectly supporting ISIS. I didn't get

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Speaker 1: a clear partisan divide on any of the oral arguments.

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Speaker 1: It really did seem that each justice was in their

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Speaker 1: own space. And so I think that a lot of

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Speaker 1: the speech related cases, basically put the partisan alignments in

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Speaker 1: a blender, are a lot of conflicting considerations pointing in

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Speaker 1: different directions. So I didn't see the partisan divide obviously.

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Speaker 1: Could the justices use the Twitter case as a potential

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Speaker 1: off ramp to sidestep any tricky Section two thirty issues?

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Speaker 1: Justice Amy Coney Barrett suggested that in the Google arguments

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Speaker 1: on Tuesday. So they're both relying on the same aiding

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Speaker 1: and ebtting theory. So if you lose tomorrow, do we

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Speaker 1: even have to reach the Section two thirty question here?

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Speaker 1: Would you can see that you would lose on that

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Speaker 1: ground here? So if the Supreme Court decides that social

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Speaker 1: media companies can't be held responsible for aiding and abetting

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Speaker 1: terrorism in the Twitter case, the justices could up not

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Speaker 1: to decide whether Section to thirty protects the online companies

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Speaker 1: from those claims. Yeah, that is a possibility for the

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Speaker 1: Court to decide that the decision and Twitter could affect

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Speaker 1: the decision in the Gozzals case. I don't know if

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Speaker 1: they want to do that. They've geared up to hear

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Speaker 1: the cases and do all the analysis, and then they

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Speaker 1: would be basically putting all that work into the garbage.

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Speaker 1: So I would be surprised if they want to go

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Speaker 1: that route. But on the other hand, I could see

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Speaker 1: why they would choose through that because in the end,

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Speaker 1: they know that whatever they say about sexually too there

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Speaker 1: is going to have huge consequences, and if they feel

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Speaker 1: like they're not ready to pine upon it, they do

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Speaker 1: have that potential eggs around. So listening to the arguments,

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Speaker 1: your best guess is that the justices are going to

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Speaker 1: rule against both the plaintiffs. No, I don't really have

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Speaker 1: a prediction about the Twitter case. It was just too

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Speaker 1: confusing to see where all the justices stood, and I

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Speaker 1: don't have a prediction. And especially in cases like that

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Speaker 1: where they're trying to figure out what is the culpable

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Speaker 1: mental state of a defendant, there's so many considerations that

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Speaker 1: I don't know that the oral argument questions really preview

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Speaker 1: where the justices stand. They may be stress testing alternative arguments,

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Speaker 1: they may be making statements to their peers, they may

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Speaker 1: be trying to figure out how they're going to keep

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Speaker 1: a coherent line the next time the coupable mental state

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Speaker 1: issue comes up. Because it comes up all the time

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Speaker 1: in the Supreme Court, that's like a standard issue for

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Speaker 1: them to deal with, and they want to try and

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Speaker 1: be coherent. I do think that Google is likely to

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Speaker 1: prevail on the Gonzales case. I just did not hear

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Speaker 1: enough support for the plaintiff's arguments. But even in that case,

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Speaker 1: depending on how the court phrases opinion, I still am

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Speaker 1: not sure that Google will get a net strategic win.

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Speaker 1: They might get the votes, but the opinion might take

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Speaker 1: it all back. And just to be clear, these cases

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Speaker 1: are just about whether or not the suits can go forward.

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Speaker 1: So even if the court, let's say said okay, the

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Speaker 1: Twitter suit can go forward, that would still have to

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Speaker 1: go to trial and they would still have to prove

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Speaker 1: that yes. But that actually sidesteps one of the primary

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Speaker 1: battles taking place in these cases, whether a judge can

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Speaker 1: provide the early off ramp that Section two thirty is

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Speaker 1: best known for, or if they have to spend more

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Speaker 1: money to persuade a judge that they should prevail, and

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Speaker 1: so having to defend a case in court over the

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Speaker 1: course of the standard litigation process is a strategic loss

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Speaker 1: in many circumstances for defendants, they simply don't want to

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Speaker 1: spend the time or money that way, and they'll do

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Speaker 1: a lot to avoid having to do that. So even

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Speaker 1: if Google or Twitter could prevail at some later stage

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Speaker 1: in the case, if they can't prevail early, it might

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Speaker 1: not matter. They might it might change their decision making

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Speaker 1: just having to defend the case that far. Thanks so

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Speaker 1: much for those insights, Eric, that's Professor Eric Goleman of

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Speaker 1: the Santa Clara University School of Law. Never Gonna Give

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Speaker 1: You Up was not only a huge hit for Rick

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Speaker 1: Astley in nineteen eighty seven, its popularity has been revived

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Speaker 1: with the Rick Roll Internet memes. So it's no surprise

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Speaker 1: that rapper Young Gravy used part of that song in

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Speaker 1: his twenty twenty two breakout hit Betty Get Money. Did

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Speaker 1: that sound to you like it was Rick Astley who

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Speaker 1: was singing well. Astley says it's a deliberate and nearly

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Speaker 1: indistinguishable imitation of his voice, and he's suing Young Gravy

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Speaker 1: for stealing his voice. Joining me as intellectual property litigator

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Speaker 1: Terrence Ross, a partner at Captain Yuchen Rosenman. So Terry

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Speaker 1: Young Gravy, whose real name is Matthew Warie, did get

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Speaker 1: the rights to use the music and lyrics from Never

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Speaker 1: Going to Give You Up? So what's the problem here.

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Speaker 1: So the problem with the egal approach Young Gravy or

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Speaker 1: his lawyers took is that they obtained what is known

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Speaker 1: as a mechanical rights license, which is a license with

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Speaker 1: respect to the copyright in the music and the lyrics.

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Speaker 1: What they did not do was obtain a master license,

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Speaker 1: which is a license to the copyright in the actual

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Speaker 1: recording of the song. So they were licensed up to

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Speaker 1: go out and do a cover using the music and

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Speaker 1: lyrics of the nineteen eighty seventh song, but they were

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Speaker 1: not licensed to actually play the nineteen eighty seven recording.

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Speaker 1: And the mistake, arguably made by Young Gravy is to

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Speaker 1: set out to purposefully imitate the voice of Rick Astley

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Speaker 1: from the song Never Going to Give You Up? And

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Speaker 1: that is what this lawsuit is all about, not about

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Speaker 1: the copyrights, but about what cal point is known as

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Speaker 1: a violational right of publicity for using somebody else's identity.

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Speaker 1: Have you heard this kind of you stole my voice

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Speaker 1: claim before believe it? Or not June. This is not

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Speaker 1: an unusual cause of action in the courts. There are

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Speaker 1: at least two cases I know of in the Ninth Circuit.

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Speaker 1: There's a nineteen eighty eight case by Bette Midler. There's

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Speaker 1: a nineteen ninety two case by Tom Waits. Going back

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Speaker 1: further in time, Nancy Sinatra sued Goodyear in nineteen seventy

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Speaker 1: over her these boots are made for walking song, And

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Speaker 1: even further back in time, nineteen sixty two. Bert Lair,

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Speaker 1: the actor who portrayed the Cowardly Lion and the Wizard

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Speaker 1: of Oz and did a lot of other great acting work,

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Speaker 1: sued for the use of his voice back in nineteen

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Speaker 1: sixty two. So, believe it or not, this is not

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Speaker 1: the first time someone has dreamed up a cause of

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Speaker 1: action relating to the imitation of someone else's voice. I

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Speaker 1: wonder if young Gravy knew what the limits of the

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Speaker 1: rights he had purchased, because he said, at one point

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Speaker 1: we had a different singer and instruments, but it was

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Speaker 1: all really close because it makes it easier legally. So

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Speaker 1: I don't know what advice he got from his lawyers.

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Speaker 1: I don't even know to what extent that he consulted

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Speaker 1: his lawyers. The problem practiced lawyers like myself face in

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Speaker 1: this area with artists that often they don't explain the

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Speaker 1: entirety of the project that they're setting out upon. They

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Speaker 1: will say, oh, I want to do a cover of

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Speaker 1: Rick Astley's song never going to give you Up, but

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Speaker 1: don't give you any other information. So I'm not in

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Speaker 1: a position to criticize the lawyers or to even criticize

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Speaker 1: Young Gravy here. The problem with a project like this

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Speaker 1: is both the lawyers and the artists and the producers

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Speaker 1: have to sit down and really explore all the possible outcomes.

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Speaker 1: And it doesn't seem like that happened here. So does

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Speaker 1: Astley have a good case? So, June, We've talked enough

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Speaker 1: about different laws see Seed, that I'm reluctant to ever

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Speaker 1: say one party score win or lose, or give odds.

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Speaker 1: I'm reminded of the famous episode back during the Apollo

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Speaker 1: program when Apollo thirteen had its disastrous incident and was

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Speaker 1: on the way back to Earth and President Nixon called

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Speaker 1: the flight director and asked him, one are the chances

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Speaker 1: of these guys getting back alive and demanded that he

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Speaker 1: actually put odds on it. You just can't do that

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Speaker 1: either in space missions or lossess. And so I'm going

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Speaker 1: to refrain from giving you some sort of a set

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Speaker 1: of odds here. Maybe Las Vegas can do that for you.

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Speaker 1: But I will say this, on its face, this is

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Speaker 1: a colorable claim that Rick Astley has brought. On the

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Speaker 1: other side of the ledger, there are some strong defenses

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Speaker 1: to be made here by Young Gravy, and so to

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Speaker 1: a certain extent, this will be an interesting case to

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Speaker 1: follow to see how the court works out both a

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Speaker 1: strong and interesting cause of action versus some pretty strong defenses.

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Speaker 1: So let's talk about some of the defenses that Young

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Speaker 1: Gravy may have fair use, which we've discussed a lot.

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Speaker 1: So a couple of years ago, the Supreme Court of California,

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Speaker 1: and remember this lawsuit is brought in the California state

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Speaker 1: court system. It's not a federal lawsuit, and so the

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Speaker 1: decisions from the California Supreme Court apply. And back in

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Speaker 1: two thousand and one, the California Supreme Court, in a

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Speaker 1: case that involved the same sort of right of publicity claim,

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Speaker 1: incorporate it into California state law. Right of publicity a

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Speaker 1: transformative use defense, which it stole out of the copyright cases.

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Speaker 1: And transformative use is an element of a fair use defense,

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Speaker 1: but it's not the complete fair used defense, and the

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Speaker 1: Supreme Court California soft it just to pull out this

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Speaker 1: one part of the copyright fair used defense, the transformative

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Speaker 1: use element, and that is available to Young Gravy here

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Speaker 1: in this lawsuit. The problem might have with that defense

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Speaker 1: is not quite sure how the song that Young Gravy

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Speaker 1: did Betty Get Money transforms the Rick Astley song Never

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Speaker 1: Going to Give You Up. I don't consider it to

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Speaker 1: be a parody. Indeed, Young Gravy said a number of

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Speaker 1: things prior to the lawsuit in which he praised the

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Speaker 1: song and referred to as being think iconic or just famous,

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Speaker 1: and generally was positive about it. Whereas a parody is

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Speaker 1: a criticism. It makes fun of a work by way

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Speaker 1: of criticizing it, typically to make some sort of social commentary.

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Speaker 1: And I don't think that's what's going on here. And

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Speaker 1: so that's going to be a challenging defense for Young

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Speaker 1: Gravy to make in this lawsuit. So what defenses might

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Speaker 1: he have? So amongst the other defenses are just a

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Speaker 1: straight up sort of First Amendment freedom of speech defense.

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Speaker 1: The Ninth Circuit has said, if use has some sort

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Speaker 1: of informative or cultural usefulness, then it's immune from this

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Speaker 1: sort of state court challenge. Not sure that the informative

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Speaker 1: prong has anything to do with it, but I think

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Speaker 1: an argument could be made that they're using this in

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Speaker 1: purely an entertainment manner, So they're not trying to sell

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Speaker 1: a product using Rick Astley saw. They're simply trying to

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Speaker 1: entertain the public. And this is a really important distinction

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Speaker 1: here because in the Bette Midler case, Ford Motor Company

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Speaker 1: had used a person imitating her voice to sell Forward cars,

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Speaker 1: and she brought a lawsuit and claimed that they couldn't

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Speaker 1: do that, that it was a violation of her right

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Speaker 1: of publicity, and the Ninth Circuit said, yeah, she's right.

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Speaker 1: They are trying to sell a product, a motor car,

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Speaker 1: using her iconic and recognizable voice. And so here this

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Speaker 1: is not being used by young gravy in the sense

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Speaker 1: of trying to sell a product, whether it's entertainment. Most

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Speaker 1: of the successful right of publicity cases come in the

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Speaker 1: context of advertising, whether it be a commercial on television

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00:24:11,040 --> 00:24:13,600
Speaker 1: or radio or a print ad of some sort, and

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Speaker 1: it's typically advertising trying to sell a product or service,

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Speaker 1: and this is a song, and so I think that

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Speaker 1: there is an argument to be made by Young Gravy

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Speaker 1: that the First Amendment protects him in this context. Are

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Speaker 1: the circuit courts united on these issues, so they've been

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Speaker 1: very little of this sort of lawsuit outside of the

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Speaker 1: Ninth Circuit, So it is it's hard to explain or

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Speaker 1: discuss whether or not there's some sort of difference amongst

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Speaker 1: circuit courds. Now in the Second Circuit, I think they

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Speaker 1: would just instinctively jump to the Rogers v. Gravaldi test,

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Speaker 1: which we've talked about before, which provides protection to use

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Speaker 1: to somebody else's trademark in connection with expressive works. I'm

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Speaker 1: not sure that that would apply here. I mean, young

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Speaker 1: Baby may well make that defense, but this is not

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Speaker 1: that classic use of a trademark. And in particularly, the

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Speaker 1: Ninth Circuit has distinguished these voice imitation cases from copyright

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Speaker 1: and trademark. They've said things along the lines of your

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Speaker 1: voice is part of your identity. It's like your name,

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Speaker 1: it's like your persona, and when somebody else takes it,

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Speaker 1: it's not the same as taking authorship of work or

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Speaker 1: a trademark. It is something that is so uniquely personal

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Speaker 1: that it deserves and receives a common law special protection

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Speaker 1: in the form of the sport called a rite of publicity.

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Speaker 1: So I'm not sure that the Rogers v. Grimaldi test

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Speaker 1: would apply here, although you might see it get made. Indeed,

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Speaker 1: I think the traditional trademark sort of defense is nominative

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Speaker 1: fair use for example, are unlikely to apply because the

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Speaker 1: Ninth Circuit at least has said writes a publicity cases,

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Speaker 1: whether it's name, likeness, image, voice, they're all unique to

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Speaker 1: that individual's identity, and therefore they stand separate and apart

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Speaker 1: from the various federal causes of action. Terry doesn't matter

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Speaker 1: how much this clip sounds like Rick Astley. I think

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Speaker 1: it does. And I played the video of the song,

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00:26:23,000 --> 00:26:26,480
Speaker 1: which may be slightly different than the actual song of

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00:26:26,600 --> 00:26:30,480
Speaker 1: the recording, but I played it, and I had trouble

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00:26:31,000 --> 00:26:37,199
Speaker 1: associating the alleged imitation of Rick Astley's voice with his

439
00:26:37,359 --> 00:26:41,200
Speaker 1: actual original song never Gonna Give You Up. I just

440
00:26:41,760 --> 00:26:45,000
Speaker 1: didn't see it. Now that may be me, maybe my

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00:26:45,080 --> 00:26:48,399
Speaker 1: personal impression reaction to the song, and that'll be a

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00:26:48,400 --> 00:26:51,240
Speaker 1: factual issue for a jury to decide, and that's important

443
00:26:51,240 --> 00:26:53,000
Speaker 1: here because as a defendant, you want to get rid

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00:26:53,040 --> 00:26:55,479
Speaker 1: of these cases early on, either in motion to dismiss

445
00:26:55,480 --> 00:26:58,239
Speaker 1: stage or some may judgments. Really don't want to let

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00:26:58,320 --> 00:27:01,600
Speaker 1: the case go to the jury because unusual and challenging

447
00:27:01,600 --> 00:27:04,000
Speaker 1: things can happen when the case gets the jury. We

448
00:27:04,000 --> 00:27:07,119
Speaker 1: saw this in the Blurred Lines case, where the Marvin

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00:27:07,160 --> 00:27:10,240
Speaker 1: Gay Is State sued Farrell and a number of other

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00:27:10,280 --> 00:27:14,600
Speaker 1: people over the song Blurred Lines and alleged copyright infringement,

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00:27:14,800 --> 00:27:17,800
Speaker 1: and the jury returned a verdict in favor of the plaintiff,

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00:27:17,880 --> 00:27:21,040
Speaker 1: finding copyright infringement and I think awarding over four million

453
00:27:21,040 --> 00:27:24,720
Speaker 1: dollars in damages, even though I struggled to see the

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00:27:24,840 --> 00:27:28,760
Speaker 1: substantial similarity between the two songs. And that's why you

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00:27:28,920 --> 00:27:32,080
Speaker 1: don't want to defend let these cases get to jury.

456
00:27:32,200 --> 00:27:35,359
Speaker 1: And the interesting thing here, June, is that the lawyer

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00:27:35,440 --> 00:27:38,440
Speaker 1: for the Marvin Gay estate and heirs who brought the

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00:27:38,480 --> 00:27:41,680
Speaker 1: Blurred Lines case, a gentleman by the name of Richard Bush,

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00:27:41,800 --> 00:27:44,960
Speaker 1: is the lawyer for Rick Ashley in this lawsuit. That

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00:27:45,000 --> 00:27:48,919
Speaker 1: should prove interesting. Thanks so much, Terry. That's intellectual property

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00:27:48,960 --> 00:27:52,600
Speaker 1: litigator Terence Ross of Captain Yuchen Rosenman and that's it

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Speaker 1: for this edition of The Bloomberg Law Show. Remember you

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00:27:55,280 --> 00:27:57,720
Speaker 1: can always get the latest legal news on our Bloomberg

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00:27:57,840 --> 00:28:01,399
Speaker 1: Law Podcast. You can find them on app podcasts, Spotify,

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00:28:01,600 --> 00:28:06,640
Speaker 1: and at www dot bloomberg dot com slash podcast Slash Law,

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00:28:07,040 --> 00:28:09,679
Speaker 1: And remember to tune into The Bloomberg Law Show every

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00:28:09,720 --> 00:28:13,600
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

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00:28:13,760 --> 00:28:15,359
Speaker 1: and you're listening to Bloomberg