Speaker 1: This is Bloomberg Law, with June Brussel from Bloomberg Radio
Speaker 1: in two oral arguments this week the Supreme Court struggle
Speaker 1: to determine when social media companies can be held responsible
Speaker 1: for aiding terrorism At risk was section two thirty of
Speaker 1: the Communications Decency Act, the controversial law that protects online
Speaker 1: companies from being sued over the comments, ads, pictures, and
Speaker 1: videos on their platforms. Congress has been unsuccessful in efforts
Speaker 1: to reform section to thirty, and the Supreme Court is
Speaker 1: being asked to step into the controversy and change the
Speaker 1: status quo, something most of the justices seemed reluctant to do.
Speaker 1: Here are Justices Elena Kagan and Brett Kavanaugh. I mean,
Speaker 1: we're a court. We really don't know about these things.
Speaker 1: You know, these are not like the nine greatest experts
Speaker 1: on the internet. Congress draft today broad text, and that
Speaker 1: text has been unanimously read by courts of appeals over
Speaker 1: the years to provide protection in this sort of situation,
Speaker 1: and that you now want to challenge that consensus. In
Speaker 1: the first case argued on Wednesday, the family of a
Speaker 1: US citizen killed by Islamic State in a twenty fifteen
Speaker 1: Paris Attack argued that Google should be held liable for
Speaker 1: software algorithms that recommended terrorist videos to YouTube users, but
Speaker 1: in the first question, Justice Clarence Thomas suggested that companies
Speaker 1: can't be sued if their recommendation algorithms are neutral about
Speaker 1: the kind of content they promote. The same algorithm to
Speaker 1: present cooking videos to people who are interested in cooking,
Speaker 1: and isis videos to people who are interested in isis
Speaker 1: racing videos, So people who are interested in racing. Then
Speaker 1: I think you're going to have to explain more clearly
Speaker 1: if it's neutral in that way, how your claim is set.
Speaker 1: Apart from that. Joining me is Eric Goleman, a professor
Speaker 1: at Santa Clara University School of Law and co director
Speaker 1: of the High Tech Law Institute. Before the Oral arguments
Speaker 1: this week, there was a lot of gloom and doom
Speaker 1: concerns about the future of Section two thirty. Do you
Speaker 1: think the cases sort of fizzled out and the concerns
Speaker 1: are not as great anymore. I was certainly one of
Speaker 1: the people who was spreading doom and gloom. I was
Speaker 1: and remained fearful about the future of the Internet. I
Speaker 1: do think that the oral arguments exposed just how weak
Speaker 1: the cases are, that at the core they aren't meritorious,
Speaker 1: and they never were. And to be clear, lots of
Speaker 1: other courts that said that. It was only the Ninth
Speaker 1: Circuit that opened up the door to these cases that
Speaker 1: all the other judges had shut down. And I think
Speaker 1: that the justice is we're more on the side of
Speaker 1: the judges who had rejected these cases in the beginning
Speaker 1: than the end. So I think that seeing how weak
Speaker 1: the cases are gives us some comfort that the justices
Speaker 1: are going to reach a good conclusion. However, they're going
Speaker 1: to do so in a way that I still fear
Speaker 1: is going to be in strategic loss for the Internet.
Speaker 1: Before we get to that, let's discuss the plaintiff targeting
Speaker 1: the algorithms used by YouTube. The first question from Clarence
Speaker 1: Thomas was that the algorithm is neutral, so you know,
Speaker 1: show us your case here. Well, they definitely got the
Speaker 1: point that the plaintiffs are trying to ask social media
Speaker 1: services to perhaps be something that they're not, and that
Speaker 1: troubled them and that gave them some pause. They recognize
Speaker 1: both the speech implications of changing the social media services algorithms,
Speaker 1: and they also recognize the potential economic consequences, that there's
Speaker 1: a lot of businesses that are built on the premise
Speaker 1: that they can decide what's fit for their audience or not.
Speaker 1: So I think that the Justices recognized the big strategic
Speaker 1: issues in the case, and it was great to hear
Speaker 1: Justice Thomas bring that up as the very first question.
Speaker 1: It's set the tone for the rest of their arguments
Speaker 1: that we need the plaintifts to be very specific why
Speaker 1: they think liabilities should be post here and in the
Speaker 1: Gonzales case, I honestly think they never met that challenge.
Speaker 1: Across the ideological spectrum. They seem to have problems with
Speaker 1: the plaintiffs arguments, even saying, you know, I'm confused. I'm
Speaker 1: so confused. Several the Justices said that it should be
Speaker 1: Congress who changes Section two thirty. So I'm wondering why
Speaker 1: they even took the case. It's a great question and
Speaker 1: one that has vexed me and I think many others
Speaker 1: from the moment that Supreme Court agreed to hear it.
Speaker 1: This wasn't the right case for the Supreme Court to
Speaker 1: take to understand Section two thirty. I felt that was
Speaker 1: obvious even from the request to the Supreme court to
Speaker 1: hear it, and I have to feel like whoever voted
Speaker 1: in favor of hearing these cases kind of regretted it
Speaker 1: that they thought the cases were going to be a
Speaker 1: better vehicle for judicial analysis than they ended up being.
Speaker 1: So I don't exactly know why they took the cases.
Speaker 1: That was always a mystery, and I think that that
Speaker 1: got exposed during the oral arguments that this was not
Speaker 1: the right case for the court to really dig into
Speaker 1: some hard questions. Give us some background on these cases.
Speaker 1: These two cases were part of actually a larger litigation
Speaker 1: enterprise that was initiated. It was about twenty lasses filed
Speaker 1: across the country on behalf of victims of terrorist attacks,
Speaker 1: all claiming that social media services should be held accountable
Speaker 1: for their role in those terrorist attacks. Those lawsuits have
Speaker 1: uniformly failed across the country except for the one exception
Speaker 1: in the Ninth Circuit that led to this appeal. And
Speaker 1: it's so heartbreaking because on the one hand, everyone is
Speaker 1: sympathetic to the victims. All of them want to see
Speaker 1: justice for the victims and efforts taken to curb terrorism.
Speaker 1: But it was so fortunate that they chose these defendants.
Speaker 1: These are not the right defendants. This is not the
Speaker 1: right way to curb terrorism or to provide justice for
Speaker 1: the victims of terrorist attacks. And so the courts have
Speaker 1: been clear about that the plaintiffs reach too far in
Speaker 1: the list of possible defendants, and I felt like that
Speaker 1: message really came through at the Supreme Court. They understood
Speaker 1: that there are trade offs that need to be made
Speaker 1: in any decision about speech policy online, and that they're
Speaker 1: not the right ones to make that decision congresses, and
Speaker 1: that if they overweight the concerns and the victims here,
Speaker 1: they're going to create other problems for people who are
Speaker 1: not in court, and those people also have interests and
Speaker 1: need to be considered. So you said that even if
Speaker 1: the justices dismissed the plaintiff's claims here, you're worried about
Speaker 1: how they come to that decision. Yeah, I am. So.
Speaker 1: The court usually will write an opinion that says, here's
Speaker 1: who wins, and here's why they win. And in a
Speaker 1: clean opinion, they will say, in very few words, these
Speaker 1: are the elements of the test. The plaintiffs are the
Speaker 1: defense method right elements that resolves the case over. But
Speaker 1: the more modern trend in the Supreme Court has been
Speaker 1: to say more than they have to, and they start
Speaker 1: musing or speculating or caveating their statements. So it would
Speaker 1: be easy for them to say something like Google wins
Speaker 1: because of Section two thirty, and if they stop right there,
Speaker 1: that could actually be an okay opinion. But what they're
Speaker 1: likely to do is then say, because of the following facts,
Speaker 1: and if those facts were different, we might reach a
Speaker 1: different outcome. Well, as you can imagine, every single plaintiff
Speaker 1: is going to pick up on the caveat and say, well,
Speaker 1: I think I can make a claim where I can
Speaker 1: allege the facts that they said might make a difference.
Speaker 1: And so we're going to just initiate this huge ground
Speaker 1: swell of new litigation to explore any caveat or qualification
Speaker 1: of the Supreme Court puts in. And I don't think
Speaker 1: they can help themselves to do that. Let's talk about
Speaker 1: the Twitter case for a moment. That was not about
Speaker 1: Section two thirty. That was about the boundaries of the
Speaker 1: federal anti terrorism law. You heard a lot about aiding
Speaker 1: and abetting, as you did in the Google case. Correct,
Speaker 1: And just to be clear, so the Gonzals case involves
Speaker 1: Section two thirty, which is a defense immunity from liability
Speaker 1: that covers a wide range of potential claims. The Twitter
Speaker 1: case only evolved the Anti Terrorism Act one of the
Speaker 1: many possible claims I might be covered by Section two thirty.
Speaker 1: That's why there's been so much interest in the Gonzales
Speaker 1: case over the Twitter case, because of the fact that
Speaker 1: the Gonzals case could change the law across hundreds or
Speaker 1: thousands of other laws. Now in the Anti Terrorism Act,
Speaker 1: the question is what constitutes aiding and abetting a terrorist organization,
Speaker 1: and that kind of inquiries exactly the kind of thing
Speaker 1: that section two thirty has mooted. In the past, plaintiffs
Speaker 1: have alleged that they could get around Section two thirty
Speaker 1: in other legal doctrines by saying, I'm not suing them
Speaker 1: because they were the bad actor. I'm suing them because
Speaker 1: they helped the bad actor. And Section two thirty simply
Speaker 1: says you can't do that. So we haven't seen the
Speaker 1: kind of cases like the oral arguments we heard in
Speaker 1: the Twitter case because of the fact that Section two
Speaker 1: thirty has made those inquiries moot. So every plaintiff can
Speaker 1: allege that social media or other websites help some bad actor.
Speaker 1: That's the whole nature of talking to each other online,
Speaker 1: and section two there has taken away. When we open
Speaker 1: up that door and look at it like we did
Speaker 1: with a Twitter case, the justices don't know what to do.
Speaker 1: That's just judicial anarchy. Eric. So section two thirty is
Speaker 1: a defense that Google raised in the Gonzales case on Tuesday.
Speaker 1: Why didn't Twitter raise it in the case on Wednesday?
Speaker 1: So my understand is that the court shows to decide
Speaker 1: the case on the Anti Terrorism Act grounds only, which
Speaker 1: is of course prerogatives. They don't have to rule on
Speaker 1: every single basis on which the plaintiff might lose. And
Speaker 1: so my understanding is that section two therey could in
Speaker 1: fact be playing in the case if the case is
Speaker 1: still open. It's just that the judge put the Anti
Speaker 1: Terrorism Act in quired first. So in the Twitter case,
Speaker 1: there were lots of hypotheticals. Banks and restaurants that serve terrorists,
Speaker 1: people give guns to known criminals, and Justice Alito said,
Speaker 1: let's say j Edgar Hoover tells Bell Telephone Company that
Speaker 1: Dutch Schulz is a gangster and he's using his phone
Speaker 1: to carry out mob activities. The phone company says, we
Speaker 1: don't deprive people of service based on that that makes
Speaker 1: him an aider and a better he was expecting. I
Speaker 1: think a different response from the lawyer. The aidan embedding
Speaker 1: question is just a morass of confusion and ambiguity. And
Speaker 1: in particular, I didn't love the hypotheticals where law enforcement
Speaker 1: is telling a service that one of their customers is
Speaker 1: doing illegal activity, because as we know, law enforcement isn't
Speaker 1: always credible on that front, and sometimes they can use
Speaker 1: or weaponize their status to achieve things that the law
Speaker 1: wouldn't otherwise permit them. And while that happens sometime in
Speaker 1: the US, that happens all the time in some other countries,
Speaker 1: and so cheating the government source as an authoritative provider
Speaker 1: of identifying a criminal or a terrorist or a bad
Speaker 1: actor is actually just a road to ruin. And so
Speaker 1: I think the correct answer should be that we can't
Speaker 1: rely on the government's claims alone. However, if the court
Speaker 1: has adjudicated that someone is a criminal or terrorist, maybe
Speaker 1: we would feel differently. Did the more liberal justices seem
Speaker 1: to be more open to the idea that Twitter should
Speaker 1: bear some responsibility for indirectly supporting ISIS. I didn't get
Speaker 1: a clear partisan divide on any of the oral arguments.
Speaker 1: It really did seem that each justice was in their
Speaker 1: own space. And so I think that a lot of
Speaker 1: the speech related cases, basically put the partisan alignments in
Speaker 1: a blender, are a lot of conflicting considerations pointing in
Speaker 1: different directions. So I didn't see the partisan divide obviously.
Speaker 1: Could the justices use the Twitter case as a potential
Speaker 1: off ramp to sidestep any tricky Section two thirty issues?
Speaker 1: Justice Amy Coney Barrett suggested that in the Google arguments
Speaker 1: on Tuesday. So they're both relying on the same aiding
Speaker 1: and ebtting theory. So if you lose tomorrow, do we
Speaker 1: even have to reach the Section two thirty question here?
Speaker 1: Would you can see that you would lose on that
Speaker 1: ground here? So if the Supreme Court decides that social
Speaker 1: media companies can't be held responsible for aiding and abetting
Speaker 1: terrorism in the Twitter case, the justices could up not
Speaker 1: to decide whether Section to thirty protects the online companies
Speaker 1: from those claims. Yeah, that is a possibility for the
Speaker 1: Court to decide that the decision and Twitter could affect
Speaker 1: the decision in the Gozzals case. I don't know if
Speaker 1: they want to do that. They've geared up to hear
Speaker 1: the cases and do all the analysis, and then they
Speaker 1: would be basically putting all that work into the garbage.
Speaker 1: So I would be surprised if they want to go
Speaker 1: that route. But on the other hand, I could see
Speaker 1: why they would choose through that because in the end,
Speaker 1: they know that whatever they say about sexually too there
Speaker 1: is going to have huge consequences, and if they feel
Speaker 1: like they're not ready to pine upon it, they do
Speaker 1: have that potential eggs around. So listening to the arguments,
Speaker 1: your best guess is that the justices are going to
Speaker 1: rule against both the plaintiffs. No, I don't really have
Speaker 1: a prediction about the Twitter case. It was just too
Speaker 1: confusing to see where all the justices stood, and I
Speaker 1: don't have a prediction. And especially in cases like that
Speaker 1: where they're trying to figure out what is the culpable
Speaker 1: mental state of a defendant, there's so many considerations that
Speaker 1: I don't know that the oral argument questions really preview
Speaker 1: where the justices stand. They may be stress testing alternative arguments,
Speaker 1: they may be making statements to their peers, they may
Speaker 1: be trying to figure out how they're going to keep
Speaker 1: a coherent line the next time the coupable mental state
Speaker 1: issue comes up. Because it comes up all the time
Speaker 1: in the Supreme Court, that's like a standard issue for
Speaker 1: them to deal with, and they want to try and
Speaker 1: be coherent. I do think that Google is likely to
Speaker 1: prevail on the Gonzales case. I just did not hear
Speaker 1: enough support for the plaintiff's arguments. But even in that case,
Speaker 1: depending on how the court phrases opinion, I still am
Speaker 1: not sure that Google will get a net strategic win.
Speaker 1: They might get the votes, but the opinion might take
Speaker 1: it all back. And just to be clear, these cases
Speaker 1: are just about whether or not the suits can go forward.
Speaker 1: So even if the court, let's say said okay, the
Speaker 1: Twitter suit can go forward, that would still have to
Speaker 1: go to trial and they would still have to prove
Speaker 1: that yes. But that actually sidesteps one of the primary
Speaker 1: battles taking place in these cases, whether a judge can
Speaker 1: provide the early off ramp that Section two thirty is
Speaker 1: best known for, or if they have to spend more
Speaker 1: money to persuade a judge that they should prevail, and
Speaker 1: so having to defend a case in court over the
Speaker 1: course of the standard litigation process is a strategic loss
Speaker 1: in many circumstances for defendants, they simply don't want to
Speaker 1: spend the time or money that way, and they'll do
Speaker 1: a lot to avoid having to do that. So even
Speaker 1: if Google or Twitter could prevail at some later stage
Speaker 1: in the case, if they can't prevail early, it might
Speaker 1: not matter. They might it might change their decision making
Speaker 1: just having to defend the case that far. Thanks so
Speaker 1: much for those insights, Eric, that's Professor Eric Goleman of
Speaker 1: the Santa Clara University School of Law. Never Gonna Give
Speaker 1: You Up was not only a huge hit for Rick
Speaker 1: Astley in nineteen eighty seven, its popularity has been revived
Speaker 1: with the Rick Roll Internet memes. So it's no surprise
Speaker 1: that rapper Young Gravy used part of that song in
Speaker 1: his twenty twenty two breakout hit Betty Get Money. Did
Speaker 1: that sound to you like it was Rick Astley who
Speaker 1: was singing well. Astley says it's a deliberate and nearly
Speaker 1: indistinguishable imitation of his voice, and he's suing Young Gravy
Speaker 1: for stealing his voice. Joining me as intellectual property litigator
Speaker 1: Terrence Ross, a partner at Captain Yuchen Rosenman. So Terry
Speaker 1: Young Gravy, whose real name is Matthew Warie, did get
Speaker 1: the rights to use the music and lyrics from Never
Speaker 1: Going to Give You Up? So what's the problem here.
Speaker 1: So the problem with the egal approach Young Gravy or
Speaker 1: his lawyers took is that they obtained what is known
Speaker 1: as a mechanical rights license, which is a license with
Speaker 1: respect to the copyright in the music and the lyrics.
Speaker 1: What they did not do was obtain a master license,
Speaker 1: which is a license to the copyright in the actual
Speaker 1: recording of the song. So they were licensed up to
Speaker 1: go out and do a cover using the music and
Speaker 1: lyrics of the nineteen eighty seventh song, but they were
Speaker 1: not licensed to actually play the nineteen eighty seven recording.
Speaker 1: And the mistake, arguably made by Young Gravy is to
Speaker 1: set out to purposefully imitate the voice of Rick Astley
Speaker 1: from the song Never Going to Give You Up? And
Speaker 1: that is what this lawsuit is all about, not about
Speaker 1: the copyrights, but about what cal point is known as
Speaker 1: a violational right of publicity for using somebody else's identity.
Speaker 1: Have you heard this kind of you stole my voice
Speaker 1: claim before believe it? Or not June. This is not
Speaker 1: an unusual cause of action in the courts. There are
Speaker 1: at least two cases I know of in the Ninth Circuit.
Speaker 1: There's a nineteen eighty eight case by Bette Midler. There's
Speaker 1: a nineteen ninety two case by Tom Waits. Going back
Speaker 1: further in time, Nancy Sinatra sued Goodyear in nineteen seventy
Speaker 1: over her these boots are made for walking song, And
Speaker 1: even further back in time, nineteen sixty two. Bert Lair,
Speaker 1: the actor who portrayed the Cowardly Lion and the Wizard
Speaker 1: of Oz and did a lot of other great acting work,
Speaker 1: sued for the use of his voice back in nineteen
Speaker 1: sixty two. So, believe it or not, this is not
Speaker 1: the first time someone has dreamed up a cause of
Speaker 1: action relating to the imitation of someone else's voice. I
Speaker 1: wonder if young Gravy knew what the limits of the
Speaker 1: rights he had purchased, because he said, at one point
Speaker 1: we had a different singer and instruments, but it was
Speaker 1: all really close because it makes it easier legally. So
Speaker 1: I don't know what advice he got from his lawyers.
Speaker 1: I don't even know to what extent that he consulted
Speaker 1: his lawyers. The problem practiced lawyers like myself face in
Speaker 1: this area with artists that often they don't explain the
Speaker 1: entirety of the project that they're setting out upon. They
Speaker 1: will say, oh, I want to do a cover of
Speaker 1: Rick Astley's song never going to give you Up, but
Speaker 1: don't give you any other information. So I'm not in
Speaker 1: a position to criticize the lawyers or to even criticize
Speaker 1: Young Gravy here. The problem with a project like this
Speaker 1: is both the lawyers and the artists and the producers
Speaker 1: have to sit down and really explore all the possible outcomes.
Speaker 1: And it doesn't seem like that happened here. So does
Speaker 1: Astley have a good case? So, June, We've talked enough
Speaker 1: about different laws see Seed, that I'm reluctant to ever
Speaker 1: say one party score win or lose, or give odds.
Speaker 1: I'm reminded of the famous episode back during the Apollo
Speaker 1: program when Apollo thirteen had its disastrous incident and was
Speaker 1: on the way back to Earth and President Nixon called
Speaker 1: the flight director and asked him, one are the chances
Speaker 1: of these guys getting back alive and demanded that he
Speaker 1: actually put odds on it. You just can't do that
Speaker 1: either in space missions or lossess. And so I'm going
Speaker 1: to refrain from giving you some sort of a set
Speaker 1: of odds here. Maybe Las Vegas can do that for you.
Speaker 1: But I will say this, on its face, this is
Speaker 1: a colorable claim that Rick Astley has brought. On the
Speaker 1: other side of the ledger, there are some strong defenses
Speaker 1: to be made here by Young Gravy, and so to
Speaker 1: a certain extent, this will be an interesting case to
Speaker 1: follow to see how the court works out both a
Speaker 1: strong and interesting cause of action versus some pretty strong defenses.
Speaker 1: So let's talk about some of the defenses that Young
Speaker 1: Gravy may have fair use, which we've discussed a lot.
Speaker 1: So a couple of years ago, the Supreme Court of California,
Speaker 1: and remember this lawsuit is brought in the California state
Speaker 1: court system. It's not a federal lawsuit, and so the
Speaker 1: decisions from the California Supreme Court apply. And back in
Speaker 1: two thousand and one, the California Supreme Court, in a
Speaker 1: case that involved the same sort of right of publicity claim,
Speaker 1: incorporate it into California state law. Right of publicity a
Speaker 1: transformative use defense, which it stole out of the copyright cases.
Speaker 1: And transformative use is an element of a fair use defense,
Speaker 1: but it's not the complete fair used defense, and the
Speaker 1: Supreme Court California soft it just to pull out this
Speaker 1: one part of the copyright fair used defense, the transformative
Speaker 1: use element, and that is available to Young Gravy here
Speaker 1: in this lawsuit. The problem might have with that defense
Speaker 1: is not quite sure how the song that Young Gravy
Speaker 1: did Betty Get Money transforms the Rick Astley song Never
Speaker 1: Going to Give You Up. I don't consider it to
Speaker 1: be a parody. Indeed, Young Gravy said a number of
Speaker 1: things prior to the lawsuit in which he praised the
Speaker 1: song and referred to as being think iconic or just famous,
Speaker 1: and generally was positive about it. Whereas a parody is
Speaker 1: a criticism. It makes fun of a work by way
Speaker 1: of criticizing it, typically to make some sort of social commentary.
Speaker 1: And I don't think that's what's going on here. And
Speaker 1: so that's going to be a challenging defense for Young
Speaker 1: Gravy to make in this lawsuit. So what defenses might
Speaker 1: he have? So amongst the other defenses are just a
Speaker 1: straight up sort of First Amendment freedom of speech defense.
Speaker 1: The Ninth Circuit has said, if use has some sort
Speaker 1: of informative or cultural usefulness, then it's immune from this
Speaker 1: sort of state court challenge. Not sure that the informative
Speaker 1: prong has anything to do with it, but I think
Speaker 1: an argument could be made that they're using this in
Speaker 1: purely an entertainment manner, So they're not trying to sell
Speaker 1: a product using Rick Astley saw. They're simply trying to
Speaker 1: entertain the public. And this is a really important distinction
Speaker 1: here because in the Bette Midler case, Ford Motor Company
Speaker 1: had used a person imitating her voice to sell Forward cars,
Speaker 1: and she brought a lawsuit and claimed that they couldn't
Speaker 1: do that, that it was a violation of her right
Speaker 1: of publicity, and the Ninth Circuit said, yeah, she's right.
Speaker 1: They are trying to sell a product, a motor car,
Speaker 1: using her iconic and recognizable voice. And so here this
Speaker 1: is not being used by young gravy in the sense
Speaker 1: of trying to sell a product, whether it's entertainment. Most
Speaker 1: of the successful right of publicity cases come in the
Speaker 1: context of advertising, whether it be a commercial on television
Speaker 1: or radio or a print ad of some sort, and
Speaker 1: it's typically advertising trying to sell a product or service,
Speaker 1: and this is a song, and so I think that
Speaker 1: there is an argument to be made by Young Gravy
Speaker 1: that the First Amendment protects him in this context. Are
Speaker 1: the circuit courts united on these issues, so they've been
Speaker 1: very little of this sort of lawsuit outside of the
Speaker 1: Ninth Circuit, So it is it's hard to explain or
Speaker 1: discuss whether or not there's some sort of difference amongst
Speaker 1: circuit courds. Now in the Second Circuit, I think they
Speaker 1: would just instinctively jump to the Rogers v. Gravaldi test,
Speaker 1: which we've talked about before, which provides protection to use
Speaker 1: to somebody else's trademark in connection with expressive works. I'm
Speaker 1: not sure that that would apply here. I mean, young
Speaker 1: Baby may well make that defense, but this is not
Speaker 1: that classic use of a trademark. And in particularly, the
Speaker 1: Ninth Circuit has distinguished these voice imitation cases from copyright
Speaker 1: and trademark. They've said things along the lines of your
Speaker 1: voice is part of your identity. It's like your name,
Speaker 1: it's like your persona, and when somebody else takes it,
Speaker 1: it's not the same as taking authorship of work or
Speaker 1: a trademark. It is something that is so uniquely personal
Speaker 1: that it deserves and receives a common law special protection
Speaker 1: in the form of the sport called a rite of publicity.
Speaker 1: So I'm not sure that the Rogers v. Grimaldi test
Speaker 1: would apply here, although you might see it get made. Indeed,
Speaker 1: I think the traditional trademark sort of defense is nominative
Speaker 1: fair use for example, are unlikely to apply because the
Speaker 1: Ninth Circuit at least has said writes a publicity cases,
Speaker 1: whether it's name, likeness, image, voice, they're all unique to
Speaker 1: that individual's identity, and therefore they stand separate and apart
Speaker 1: from the various federal causes of action. Terry doesn't matter
Speaker 1: how much this clip sounds like Rick Astley. I think
Speaker 1: it does. And I played the video of the song,
Speaker 1: which may be slightly different than the actual song of
Speaker 1: the recording, but I played it, and I had trouble
Speaker 1: associating the alleged imitation of Rick Astley's voice with his
Speaker 1: actual original song never Gonna Give You Up. I just
Speaker 1: didn't see it. Now that may be me, maybe my
Speaker 1: personal impression reaction to the song, and that'll be a
Speaker 1: factual issue for a jury to decide, and that's important
Speaker 1: here because as a defendant, you want to get rid
Speaker 1: of these cases early on, either in motion to dismiss
Speaker 1: stage or some may judgments. Really don't want to let
Speaker 1: the case go to the jury because unusual and challenging
Speaker 1: things can happen when the case gets the jury. We
Speaker 1: saw this in the Blurred Lines case, where the Marvin
Speaker 1: Gay Is State sued Farrell and a number of other
Speaker 1: people over the song Blurred Lines and alleged copyright infringement,
Speaker 1: and the jury returned a verdict in favor of the plaintiff,
Speaker 1: finding copyright infringement and I think awarding over four million
Speaker 1: dollars in damages, even though I struggled to see the
Speaker 1: substantial similarity between the two songs. And that's why you
Speaker 1: don't want to defend let these cases get to jury.
Speaker 1: And the interesting thing here, June, is that the lawyer
Speaker 1: for the Marvin Gay estate and heirs who brought the
Speaker 1: Blurred Lines case, a gentleman by the name of Richard Bush,
Speaker 1: is the lawyer for Rick Ashley in this lawsuit. That
Speaker 1: should prove interesting. Thanks so much, Terry. That's intellectual property
Speaker 1: litigator Terence Ross of Captain Yuchen Rosenman and that's it
Speaker 1: for this edition of The Bloomberg Law Show. Remember you
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