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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: It made him a very good deal and he shucked

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Speaker 2: it up like a hoover belocked.

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Speaker 3: Senator John Kennedy was just one of the Republicans saying

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Speaker 3: Hunter Biden got a sweetheart deal that will likely allow

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Speaker 3: him to avoid time behind bars on tax and gun charges.

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Speaker 3: Although Attorney General Merrick Garland maintains that he kept his

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Speaker 3: promise not to interfere with US Attorney David Weisse's investigation

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Speaker 3: and charging decision for the president's son.

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Speaker 1: So as I said from the moment of my appointment

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Speaker 1: as Attorney General, I would leave this matter in the

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Speaker 1: hands of the United States Attorney who was appointed by

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Speaker 1: the previous president and assigned to this matter by the

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Speaker 1: previous administration, that he would be given full authority to

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Speaker 1: decide the matter as he decided that was appropriate.

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Speaker 3: After a five year investigation. The deal calls for Hunter

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Speaker 3: Biden's son to plead guilty to two misdemeanor counts of

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Speaker 3: failing to pay taxes and accept court imposed conditions that

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Speaker 3: will allow him to avoid prosecution on a felony gun charge.

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Speaker 3: Joining me is former federal prosecutor Robert Mintz, a partner

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Speaker 3: at Macarter and English Weiss's office, said the tax charges

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Speaker 3: each come with a maximum sentence of twelve months and

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Speaker 3: that the gun charge carries up to ten years incarceration.

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Speaker 3: So Republicans have lasted the agreement, saying he's getting away

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Speaker 3: with this slap on the wrist.

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Speaker 4: What do you think, Well, the investigation here has been

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Speaker 4: conducted by David Weiss, who was the US Attorney for

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Speaker 4: the state of Delaware appointed by President Trump, and President

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Speaker 4: Biden allowed him to continue over into his administration, specifically

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Speaker 4: so that he can continue this investigation into the president's son.

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Speaker 4: And according to the Attorney General Merrick Garland, who testified

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Speaker 4: before Congress about this ongoing investigation, he said that he

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Speaker 4: gave mister Weiss full authority and independence to decide whether

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Speaker 4: to bring charges against mister Biden's son on which charges

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Speaker 4: to bring. So there is at least an appearance of

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Speaker 4: independence by this US attorney in these charging decisions. But

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Speaker 4: as you point out, the investigation really boiled down to

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Speaker 4: two issues at the end of the day. Here. One

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Speaker 4: was whether to indict Hunter Biden in connection with his

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Speaker 4: failure to meet filing deadlines for his twenty seventeen at

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Speaker 4: twenty eighteen taxes and whether he didn't properly claimed about

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Speaker 4: thirty thousand dollars in deductions for business expenses. Mister Weiss

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Speaker 4: said that mister Biden had earned more than one point

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Speaker 4: five million in each of those years, but failed to

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Speaker 4: pay income taxes during those years, which amotters to about

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Speaker 4: one hundred thousand dollars each year. Mister Biden subsequently paid

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Speaker 4: that overdue bill in twenty twenty one. The second issue

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Speaker 4: was one having to do with the purchase of a gun.

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Speaker 2: At the time.

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Speaker 4: Biden had filled out a government format every individual has

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Speaker 4: to when purchasing a handgun, stating that he was not

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Speaker 4: using drugs, and it was a parent from his erratic

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Speaker 4: activity that mister Biden did have a drug issue at

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Speaker 4: the time he purchased that weapon. So those are the

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Speaker 4: two issues that ultimately this investigation came down to. But

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Speaker 4: let's bear in mind that the investigation started off with

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Speaker 4: a much broader mandate. Mister Weiss was given authority to

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Speaker 4: investigate mister Biden's activities regarding an array of issues, including

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Speaker 4: his dealings with Chinese investors, his work with Barisma, a

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Speaker 4: Ukrainian energy company on whose board he served while his

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Speaker 4: father was Vice president, and at that time Vice President

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Speaker 4: Biden was overseeing the Obama administration's policy towards Ukraine. So

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Speaker 4: these are large issues that have been within the ambit

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Speaker 4: of mister Weiss's investigation, but at least to date, no

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Speaker 4: charges have been brought in connection with any of those issues,

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Speaker 4: and now we're facing only these two relatively minor issues

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Speaker 4: involving taxes and involving the purchase of a handgun.

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Speaker 3: Some legal experts said that the use of a diversion

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Speaker 3: agreement to resolve the gun charge was creative and fairly unusual,

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Speaker 3: and Republican Senator Mike Lee retweeted criticisms of the agreement

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Speaker 3: and said that pre trial diversion programs normally exclude offenses

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Speaker 3: involving the brandishing of a firearm. Is that diversion agreement unusual?

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Speaker 4: Well, it is unusual for federal prostituts to use diversion

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Speaker 4: agreements at all, and it also is unusual for federal

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Speaker 4: prosecutors to charge misdemeanors. When I was a federal prosecutor

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Speaker 4: for almost ten years, I could probably tell you on

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Speaker 4: a single hand how many times misdemeanors were charged. Generally,

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Speaker 4: if it doesn't amount to a felony, prosecutors on the

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Speaker 4: federal level are not going to bother pursuing it, given

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Speaker 4: the limited resources that they have. But this is a

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Speaker 4: very high profile case that was being watched very closely

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Speaker 4: by the American public and by politicians on Capitol Hill,

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Speaker 4: and so I think there was a lot of pressure

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Speaker 4: for the US Attorney here to bring charges if there

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Speaker 4: were provable charges, and here there definitely were provable charges.

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Speaker 4: The facts regarding the failure to pay taxes were really

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Speaker 4: never in dispute, and the misstatement and the purchase of

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Speaker 4: the handgun was also something that was not disputed. But

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Speaker 4: these are charges that prosecutors will rarely bring because they're frankly,

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Speaker 4: just not that serious, and generally prosecutors are not going

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Speaker 4: to devote resources to something that doesn't amount to at

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Speaker 4: least one felony charge.

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Speaker 3: Now, a judge, you'll have the final say on any sentence.

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Speaker 3: In April, an IRS supervisor who'd been overseeing the Hunter

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Speaker 3: Biden investigation went to Congress and alleged political favoritism in

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Speaker 3: how the investigation was handled. We know that Congressional Republicans

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Speaker 3: are still investigating Hunter Biden, So could the judge wait

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Speaker 3: to decide whether or not to accept the deal until

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Speaker 3: some of these investigations are well.

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Speaker 4: It's possible the judge can really do whatever he or

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Speaker 4: she wants to do here. But typically if the Department

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Speaker 4: of Justice is recommending a particular plea deal, it's rare

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Speaker 4: for judges not to accept it. I will tell you

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Speaker 4: that it does happen. It has happened a handful of

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Speaker 4: times if a judge believes that the government is essentially

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Speaker 4: giving away the store, or there's something improper about the

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Speaker 4: deal that the government has struck with a defendant. But generally,

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Speaker 4: judges rely on the discretion of prosecutors to make the

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Speaker 4: right decision, and there's lots of factors that can ultimately

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Speaker 4: go into a decision about how to charge a particular

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Speaker 4: case or whether to bring charges at all in the

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Speaker 4: first place. So this is going to be something that

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Speaker 4: I think everybody's going to watch carefully to see what

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Speaker 4: the judge does. But I think it's unlikely that the

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Speaker 4: judge is not going to agree to it, particularly since

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Speaker 4: it is being recommended by mister Weiss, who was a

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Speaker 4: Trump appointed US attorney and who by all accounts, had

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Speaker 4: complete independence in terms of whether or not to bring

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Speaker 4: these charges on ultimately what charges to bring.

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Speaker 3: No doubt this is going to continue to be a

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Speaker 3: political issue as the campaigns progress. But do you think

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Speaker 3: it's sort of been a litmus test for the Justice

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Speaker 3: Department about how it would handle this kind of politically

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Speaker 3: explosive case.

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Speaker 4: Well, these kinds of cases historically have been very difficult

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Speaker 4: for the Department of Justice to handle because of the

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Speaker 4: post familiar relationship between the defendant and the president of

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Speaker 4: the United States. We can think back on other presidents

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Speaker 4: who had family members who were subject to criminal prosecutions,

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Speaker 4: and it always is awkward because no matter what you do,

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Speaker 4: it seems like there's something improper. If they give a

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Speaker 4: deal that seems to be too lenient, people are complaining

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Speaker 4: that the president or the White House and political operatives

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Speaker 4: interfered with the Department of Justice decisions.

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Speaker 2: If the Department of Justice.

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Speaker 4: Is aggressive, other people will say that is being done

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Speaker 4: in order to make a political statement. So it's a

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Speaker 4: tough line for prosecutors to walk in this case. But

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Speaker 4: at the end, they have to look at the fact,

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Speaker 4: they have to look at the circumstances that are unique

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Speaker 4: to each case and decide what they think is an

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Speaker 4: appropriate resolution. This was a case that was being negotiated

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Speaker 4: between mister Biden's lawyer and the Department of Justice for many,

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Speaker 4: many months, and there, no doubt was a lot of

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Speaker 4: back and forth here between the Department of Justice and

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Speaker 4: mister Biden's lawyers as to whether or not there should

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Speaker 4: be criminal charges at all, and if so, which ones

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Speaker 4: he should ultimately have to be flead guilty to Bob.

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Speaker 3: I want to turn for a moment to the upcoming

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Speaker 3: criminal trial of former President Donald Trump on the Classified

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Speaker 3: Documents charges. Judge Eileen Cannon issued an order for the

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Speaker 3: trial to begin on August fourteenth. What are the chances

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Speaker 3: it will actually start.

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Speaker 4: On that day, Well, it's unlikely that it will start

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Speaker 4: that day. Typically, judges will set a date that is

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Speaker 4: within what's called the Speedy Trial Act, and that means

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Speaker 4: that once a defendant is indicted, the defendant has a

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Speaker 4: right to a trial within seventy days. In other words,

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Speaker 4: the Department of Justice and the federal prosecutors have to

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Speaker 4: be ready to go once they pull the trigger on

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Speaker 4: an indictment. They can indicted, defend it and then say, oh,

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Speaker 4: we need a year a year and a half to

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Speaker 4: continue to investigate this case before we're ready to go

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Speaker 4: to trial. So the Speedy Trial Act is there to

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Speaker 4: protect defendants right to a speedy trial in the event

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Speaker 4: they want the government to go to trial as soon

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Speaker 4: as possible. But what happens typically and what's undoubtedly going

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Speaker 4: to happen in this case, is that the defense does

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Speaker 4: not want a speedy trial, and the defense wants to

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Speaker 4: delay and draw out the trial. And in this case,

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Speaker 4: there's an ample number of issues that I think we're

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Speaker 4: going to see that will result in a delay of

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Speaker 4: that trial date, perhaps months, perhaps even longer before this

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Speaker 4: case actually.

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Speaker 2: Goes to trial.

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Speaker 3: So the special counsel Jack Smith, appears to be trying

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Speaker 3: to keep to a speedy trial schedule. He started turning

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Speaker 3: over evidence to Trump's legal team, including grand jury testimony

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Speaker 3: of witnesses. How much more complicated is this case because

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Speaker 3: of the classified documents?

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Speaker 4: The fact that there's classified documents in this case does

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Speaker 4: make it more complicated than the vast majority of cases

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Speaker 4: that go to trial in federal court, and for starters,

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Speaker 4: there's going to be delayed built into this trial because

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Speaker 4: although the government is beginning to turn over evidence as

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Speaker 4: it has to in discovery to the Defense Council. The

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Speaker 4: defense lawyers here have to obtain security clearance in order

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Speaker 4: to look at much of this classified evidence, which means

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Speaker 4: they have to undergo a background check, a process to

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Speaker 4: obtain clearances in order to look at these documents. And

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Speaker 4: that's a slow process that easily can take months before

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Speaker 4: the defense lawyers can even begin to look at the

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Speaker 4: classified documents that are evidenced in this trial. So that's

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Speaker 4: one reason this case is going to be delayed second

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Speaker 4: reason it's going to be delayed further is also related

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Speaker 4: to the classified evidence that's at the heart of this case,

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Speaker 4: because there's going to be, in parallel to what we

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Speaker 4: see in open court the public proceedings, there's going to

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Speaker 4: be a secret litigation that goes on in this case

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Speaker 4: where the defense lawyers, the prosecutors, and the judge, out

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Speaker 4: of the public view, are going to discuss how the

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Speaker 4: classified documents are going to be handled a trial. That's

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Speaker 4: going to be something that's handled under what's called the

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Speaker 4: Classified Information Procedures Act, and that is an act which

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Speaker 4: controls how classified information may be given out into the

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Speaker 4: general public, and that's going to be an ongoing negotiation

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Speaker 4: with prosecutors, with the defense counsel, and with the judge.

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Speaker 4: And ultimately, if prosecutors are unhappy with any of the

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Speaker 4: rulings that Judge Canon may hand down in connection with

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Speaker 4: these classified documents, they have the right to appeal that

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Speaker 4: immediately to the US Court of Appeals for the Eleventh

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Speaker 4: Circuit in Atlanta. So if they decide that they want

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Speaker 4: to appeal one of these rulings, they have the right

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Speaker 4: to do it. But that's going to delay the trial

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Speaker 4: even further.

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Speaker 3: Bob. Why do the defense attorneys have to examine all

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Speaker 3: these documents? Why isn't it enough to know that they're

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Speaker 3: MAREK classified mark top secret? I mean, why do they

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Speaker 3: have to go into what's in them?

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Speaker 4: Well, it's just it's the bedrock principle of our judicial

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Speaker 4: system that if the government is going to rely on documents,

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Speaker 4: the defense has a chance to look at them. Now,

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Speaker 4: the government is going to argue, no doubt to the

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Speaker 4: trial judge that those documents can be redacted, so essentially

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Speaker 4: certain classified portions of them can be blocked out because

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Speaker 4: they're going to make the very argument that you just

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Speaker 4: alluded to which is to say, there's enough information in

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Speaker 4: these documents to prove that they're classified. We don't necessarily

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Speaker 4: have to show every detail in open court. But on

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Speaker 4: the other hand, in order to make this a compelling case,

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Speaker 4: prosecutors are going to want the public to know and

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Speaker 4: specifically the jury to know the general type of information

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Speaker 4: that they are alleging was maintained at former presidents Trump's

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Speaker 4: club at Mara a Lago, and they are already alluded to,

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Speaker 4: generally the type of information that is very sensitive to

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Speaker 4: national security. They've alluded to documents that had to do

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Speaker 4: with Iran, They've alluded to documents that had to do

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Speaker 4: with some of our chief allies in the world, and

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Speaker 4: they be alluded to documents that have to do with

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Speaker 4: steps that the US military would take in the event

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Speaker 4: of an attack from somebody outside the country. So this

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Speaker 4: is the kind of stuff that's very important to the

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Speaker 4: prosecution because they have to show jurors that not only

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Speaker 4: did former President Trump willfully violate the law with regard

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Speaker 4: to this classified information, but they also have to convince

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Speaker 4: them why it matters. They have to show them that

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Speaker 4: not only was this information something that he should not

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Speaker 4: have taken out of the White House, that he should

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Speaker 4: have returned when the government asked that he return it,

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Speaker 4: but by not doing so, he placed the national security

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Speaker 4: of the country at risk at risk.

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Speaker 3: What other kinds of motions do you think we'll see,

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Speaker 3: selective prosecution, prosecutorial misconduct, anything like that.

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Speaker 4: Yeah, We're going to see an array of motions coming

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Speaker 4: from the defense, and these are pre trial motions, so

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Speaker 4: these are motions that the judge will have to decide

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Speaker 4: before the trial even began. And we can expect to

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Speaker 4: see some type of motions regarding alleged prosecutoral misconduct where

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Speaker 4: they're going to say prosecutors acted improperly in front of

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Speaker 4: the Grand jurian some way. We're going to certainly see

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Speaker 4: an argument that performer President Trump is the victim of

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Speaker 4: what's called selective prosecution. That essentially is an argument that

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Speaker 4: I'm being prosecuted for conduct that others who committed the

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Speaker 4: very same conduct are not being prosecuted for. This is

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Speaker 4: going to be raised, most likely in connection with the

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Speaker 4: failure of the Department of Justice to prosecute former Secretary

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Speaker 4: of State Hillary Clinton when she had classified information found

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Speaker 4: on a server in her home. That's something that will

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Speaker 4: be raised. It's unlikely, frankly, to succeed. Generally, in order

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Speaker 4: to prevail on a selective prosecution argument, you have to

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Speaker 4: show that you are being singled out for some kind

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Speaker 4: of improper reason. Typically it's because of your race, or

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Speaker 4: your religion, or some kind of protected class, but it

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Speaker 4: will certainly be raised by the defense. I think one

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Speaker 4: of the issues that will be raised that perhaps has

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Speaker 4: the most likelihood of gaining some kind of traction has

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Speaker 4: to do with a motion that the government made before

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Speaker 4: this case was ever indicted, in front of a judge

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Speaker 4: in the District of Columbia to get documents and to

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Speaker 4: get keep recordings made by one of former President's arms

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Speaker 4: prior lawyers. Typically, conversations between a defendant and their lawyer

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Speaker 4: are covered by the attorney client privilege. That that's so

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Speaker 4: that defense lawyers and their clients can discuss their case

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Speaker 4: freely and not fear that those conversations will ultimately be

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Speaker 4: used against a defendant. But there's something called the crime

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Speaker 4: fraud exception, which is something that allows prosecutors to get

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Speaker 4: at those very conversations if they can convince a judge

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Speaker 4: that those conversations were not about defending past conduct but

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Speaker 4: perpetrating a future crime, and they were successful in convincing

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Speaker 4: the district court judge that that is exactly what happening.

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Speaker 4: And so those tapes and those conversations were turned over

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Speaker 4: to prosecutors and now form one of the critical basies

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Speaker 4: for the obstruction charge in the indictment against former President Trump.

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Speaker 4: So I think we're going to see that issue raised again,

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Speaker 4: and the judge in Florida will have a chance to

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Speaker 4: look at that issue and make her own decision about

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Speaker 4: whether or not the crime fraud exception was appropriate and

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Speaker 4: whether prosecutor should have gotten access to those conversations between

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Speaker 4: former President Trump and his former attorney.

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Speaker 3: So, former President Trump gave a lengthy interview with Fox

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Speaker 3: that was broadcast on Monday, and he suggested that he'd

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Speaker 3: been too busy and that he wanted to be sure

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Speaker 3: he retrieved his personal belongings before complying with the federal

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Speaker 3: government's repeated demands and even a subpoena. He said these

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Speaker 3: boxes were interspersed with all sorts of things, golf shirts, clothing, pants, shoes.

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Speaker 3: Isn't he making an admission that he deliberately kept the

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Speaker 3: papers from the government, Well.

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Speaker 4: It's a little hard to understand exactly what the defense

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Speaker 4: that former President Trump was trying to assert during that interview,

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Speaker 4: And it's hard to believe that his lawyers agreed for

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Speaker 4: him to go on and make those statements, because typically,

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Speaker 4: as a defense lawyer, you do not want your client

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Speaker 4: making public statements about the case because prosecutors are watching

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Speaker 4: those statements and all of that can be used against

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Speaker 4: your client at a trial down the road. So it's

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Speaker 4: likely that the decision to appear at that interview was

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Speaker 4: not something that was sanctioned or encouraged by former President

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Speaker 4: Trump's lawyers. On the other hand, we are going to

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Speaker 4: see this case played out on two fronts, inside the

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Speaker 4: courtroom and also in the court of public opinion. And

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Speaker 4: former President Trump was no doubt playing to the court

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Speaker 4: of public opinion. He knows that people are watching this

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Speaker 4: case very carefully and they are listening to every statement

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Speaker 4: he makes regarding his conduct. And of course he has

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Speaker 4: attacked both the special counsel and the indictment as being

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Speaker 4: politically motivated, and I think those interviews are just a

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Speaker 4: further attempt to try to delegitimize both the prosecutor and

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Speaker 4: the prosecution itself. To the extent that he ultimately reaches

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Speaker 4: individuals who might find their way into a jury pool

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Speaker 4: for this case, that could ultimately be a successful defense

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Speaker 4: in the sense that his lawyers may ultimately convince even

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Speaker 4: one juror not to convict on the basis of jury nullification.

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Speaker 4: In other words, if a jury is convinced that, even

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Speaker 4: if everything the prosecution says is true, this is a

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Speaker 4: case that never should have been brought, they may vote

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Speaker 4: against the conviction even though the government may have proven

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Speaker 4: their case beyond a reasonable doubt.

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Speaker 3: Yeah, because he continued to insist that he had every

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Speaker 3: right to have those boxes and that he declassified everything

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Speaker 3: that he had. And I don't think that his defense

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Speaker 3: lawyers have ever used any of those in a courtroom.

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Speaker 3: So do you think that they might still bring it

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Speaker 3: up a try I'll and just try to throw everything

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Speaker 3: out there.

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Speaker 4: Well, you know, one of the big questions for this

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Speaker 4: trial is going to be whether or not former President

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Speaker 4: Trump takes the stand in his own defense. If he does,

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Speaker 4: he certainly will be cross examined by prosecutors as to

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Speaker 4: all of these public statements, and I think it's going

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Speaker 4: to be difficult for him to defend his position and

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Speaker 4: so I think what he's doing is trying to sway

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Speaker 4: public opinion and trying to appeal to the jury pool

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Speaker 4: in South Florida specifically in the hopes that he may

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Speaker 4: convince one or more jurors that this prosecution should never

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Speaker 4: have been brought in the first place, and that's going

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Speaker 4: to make it much more difficult for prosecutors to ultimately

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Speaker 4: get a conviction here. I do think that some of

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Speaker 4: the statements that form President Trump has made publicly and

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Speaker 4: in interviews after his indictment may ultimately be damaging to

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Speaker 4: his case said trial, because remember, this is not a

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Speaker 4: case about which documents former President Trump took with him

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Speaker 4: from the White House. Prosecutors are going to instead focus

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Speaker 4: the jury on the quest of what former President Trump

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Speaker 4: did after prosecutors and after the government demanded the return

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Speaker 4: of those documents. And that's really something that I think

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Speaker 4: is different than the question of whether it's classified or

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Speaker 4: not classified, because regardless of whether it's classified or not,

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Speaker 4: if federal prosecutors issue a subpoena and demand that you

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Speaker 4: return every document that has the classified label affixed to it,

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Speaker 4: you have to return it, regardless of ultimately whether that

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Speaker 4: information was classified.

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Speaker 2: Or not.

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Speaker 4: And so I think former President Trump is trying to

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Speaker 4: convince the public that he did nothing wrong, that he

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Speaker 4: was entitled to keep these documents. The battle lines will

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Speaker 4: be drawn when prosecutors try to refocus the jury not

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Speaker 4: on the question of whether this information was classified or not,

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Speaker 4: not on the question so much as to whether or

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Speaker 4: not President Trump was even committed a crime by removing

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Speaker 4: those documents from the White House in the first place,

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Speaker 4: but whether or not once he was requested to return

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Speaker 4: those documents, he obstructed justice. He got others to lie

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Speaker 4: on his behalf about those documents and whether he actively

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Speaker 4: misled federal prosecutors about the fact that he continued to

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Speaker 4: retain classified and national security sensitive documents at his club

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Speaker 4: in mar A Lago and after a prosecutors first requested

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Speaker 4: it through the National Archives, then requested it through a

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Speaker 4: federal grand jury subpoena, and ultimately resorted to a search

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Speaker 4: word in order to try to recover those documents.

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Speaker 3: Thanks so much for your insides, Bob. That's former federal

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Speaker 3: prosecutor Robert Mens, our partner McCarter and English.

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Speaker 2: Call to me, kalt me.

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Speaker 4: Else have far as to protect dwarfs their minds men

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Speaker 4: their fields of grain, but we harfoots of.

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Speaker 1: Each other, dodness will lot of facius.

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Speaker 2: It would be easy and not just as all people.

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Speaker 3: The sequel The Lord of the Rings, The Rings of

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Speaker 3: Power brought back the Middle Earth of fantasy novelist J. R. R. Tolkien,

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Speaker 3: with its elves, dwarfs, harfoots, and humans to Amazon viewers.

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Speaker 3: It was the most expensive television show ever made, with

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Speaker 3: close to a half a billion dollar budget. But it's

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Speaker 3: now the subject of dueling lawsuits. Joining me to untangled

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Speaker 3: the lawsuits is intellectual property litigator Terence Ross, a partner

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Speaker 3: at catin Yuchen Rosenman. So Terry. This started, and it's

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Speaker 3: sort of amazing to me, But it started with a writer,

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Speaker 3: Demetrius Polychron, suing the Tolkien Estate and Amazon for their

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Speaker 3: production of the Rings of Power, saying they had infringed

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Speaker 3: his sequel to Lord of the Rings, called The Fellowship

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Speaker 3: of the King.

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Speaker 2: He filed a lawsuit back in April of this year

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Speaker 2: after a period of time in which he was exchanging

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Speaker 2: correspondence with the TOLKIENA State and apparently didn't like what

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Speaker 2: he was hearing back from the TOLKIENA State, so he

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Speaker 2: went out and filed his own lawsuit, and a couple

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Speaker 2: months later, after additional attempts on the part of the

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Speaker 2: Tolkiena State to settle the matter, they filed on June first,

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Speaker 2: a copyright lawsuit in the same court against mister Polychrome.

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Speaker 3: Tolkien's estate says it has a policy of not licensing

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Speaker 3: writers to create sequels, so it refused permission. Where does

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Speaker 3: that policy stand in this dispute?

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Speaker 2: So to understand the dispute, you have to understand that

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Speaker 2: the Copyright Act gives authors of work multiple rights. So

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Speaker 2: it's not just the right to sell their book or

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Speaker 2: to display their artwork to the public, or to broadcast

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Speaker 2: their music. It includes the right to derivative works. And

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Speaker 2: derivative works are works that follow on the original work.

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Speaker 2: So Star Trek was followed by Star Trek the Next Generation,

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Speaker 2: and Star Trek the Next Generation would be considered and

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Speaker 2: was a derivative work of the original Star Trek, not

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Speaker 2: to send characters, but sort of the same universe in

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Speaker 2: setting that was used by the original Star Trek. And

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Speaker 2: so the author of Star Trek, Gene ron Berry, had

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Speaker 2: the exclusive right to prepare such a derivative work, and

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Speaker 2: no one could come along and do that if you

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Speaker 2: want to call it a sequel without his permission. So

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Speaker 2: that's where we are here. JR. R. Tolkien's trilogy of

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Speaker 2: Fellowship of the Rings gave him an exclusive right to

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Speaker 2: prepare derivative works, which would certainly include any sequel to

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Speaker 2: the Fellowship of the Rings. And apparently that's exactly what

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Speaker 2: the work issue here is a sequel.

441
00:24:57,800 --> 00:25:01,919
Speaker 3: The Tolkien estate alleges that Pollichron used a lot of

442
00:25:02,040 --> 00:25:07,400
Speaker 3: copyrighted protected elements, such as fifteen poems or other passages,

443
00:25:07,480 --> 00:25:11,199
Speaker 3: copied verbatim, hundreds of the original characters, and recycling of

444
00:25:11,240 --> 00:25:14,359
Speaker 3: the entire plot premise of the trilogy. So it sounds

445
00:25:14,400 --> 00:25:17,159
Speaker 3: like the estate has a good case. What would be

446
00:25:17,200 --> 00:25:18,560
Speaker 3: the writer's defense here.

447
00:25:18,800 --> 00:25:20,679
Speaker 2: I'm not sure what the defense of the writer would be.

448
00:25:20,680 --> 00:25:23,199
Speaker 2: I think the Tolkien state has an excellent case, and

449
00:25:23,280 --> 00:25:26,440
Speaker 2: may be it excellent in part by the communications from

450
00:25:26,480 --> 00:25:29,439
Speaker 2: mister Polychron to the estate in the years leading up

451
00:25:29,440 --> 00:25:33,240
Speaker 2: to litiation. He has repeatedly said that this was a

452
00:25:33,280 --> 00:25:36,320
Speaker 2: sequel and that it was intended to here as closely

453
00:25:36,320 --> 00:25:39,800
Speaker 2: as possible to the Fellowship of the Ring and to

454
00:25:39,920 --> 00:25:43,640
Speaker 2: use similar characters and settings so that readers and fans

455
00:25:43,840 --> 00:25:48,240
Speaker 2: of Fellowship of the Rings would recognize it and believe it.

456
00:25:48,640 --> 00:25:51,479
Speaker 2: He at one point referred to it as a loving

457
00:25:51,600 --> 00:25:55,040
Speaker 2: homage to Professor Tolkien. So he has said a lot

458
00:25:55,040 --> 00:25:58,000
Speaker 2: of things that sort of undermine any of the usual

459
00:25:58,080 --> 00:26:01,240
Speaker 2: defenses such is fair use. At one level, you could

460
00:26:01,240 --> 00:26:05,000
Speaker 2: think of his work as a theme of good trying

461
00:26:05,040 --> 00:26:08,320
Speaker 2: thing over evil, and at the most general, at the

462
00:26:08,359 --> 00:26:11,920
Speaker 2: broadest possible level, that's what there are Tolkien's Fellowship the Rings.

463
00:26:11,960 --> 00:26:14,399
Speaker 2: It's not good trying thing over evil, and certainly no

464
00:26:14,440 --> 00:26:18,400
Speaker 2: one can copyright that a theme that has come down

465
00:26:18,520 --> 00:26:22,200
Speaker 2: through history and simply can't be monopolized by anyone writer.

466
00:26:22,600 --> 00:26:25,800
Speaker 2: The problem is this work was set in the exact

467
00:26:25,920 --> 00:26:30,080
Speaker 2: same fictional universe of Middle Earth that Lord of the

468
00:26:30,160 --> 00:26:33,679
Speaker 2: Rings was set in. It used a very similar plot,

469
00:26:33,880 --> 00:26:38,359
Speaker 2: a fellowship of hobbits and humans who come together, form friendships,

470
00:26:38,400 --> 00:26:41,159
Speaker 2: go on a quest, and then overcome evil, which is

471
00:26:41,240 --> 00:26:44,679
Speaker 2: strikingly similar to the Fellowship of the Rings. It's gotten

472
00:26:45,080 --> 00:26:48,280
Speaker 2: lots of the same scenes and settings. The key character

473
00:26:48,680 --> 00:26:53,320
Speaker 2: in this new work by mister Polypromp is sam wise Ganji,

474
00:26:53,400 --> 00:26:57,119
Speaker 2: who was the companion of Rono during the Fellowship of

475
00:26:57,119 --> 00:26:59,520
Speaker 2: the Rings. He's taking the exact same character, set it

476
00:26:59,520 --> 00:27:03,040
Speaker 2: in exact same place, the shire, and uses many of

477
00:27:03,280 --> 00:27:06,639
Speaker 2: the same places on the journey Rivendelle the Prancing Pony

478
00:27:06,680 --> 00:27:10,040
Speaker 2: in all these places reappear. And on top of that,

479
00:27:10,320 --> 00:27:15,840
Speaker 2: there are numerous passages that are just taken verbatim from Tolkien's.

480
00:27:15,200 --> 00:27:19,639
Speaker 3: Work, And it's sort of stunning that he had enough

481
00:27:19,680 --> 00:27:24,160
Speaker 3: nerve to sue Amazon for the Rings of Power series

482
00:27:24,400 --> 00:27:28,440
Speaker 3: for stealing his plot lines and characters from his book.

483
00:27:28,760 --> 00:27:32,080
Speaker 2: Now, the stunning thing about it is that the lead

484
00:27:32,359 --> 00:27:35,520
Speaker 2: defendant in that lawsuit is Jeff Bee's hope it just

485
00:27:35,560 --> 00:27:38,920
Speaker 2: happens to own the Amazon Studios. I mean, it's exactly

486
00:27:39,000 --> 00:27:42,720
Speaker 2: the sort of overreach that you see with lawsuits that

487
00:27:42,880 --> 00:27:49,639
Speaker 2: have limited validity. I mean, names profession Tolkien's grandson merely

488
00:27:49,720 --> 00:27:52,720
Speaker 2: because he's the executor of the Tolkien estate. I mean,

489
00:27:52,760 --> 00:27:56,119
Speaker 2: this is just inappropriate in many ways. And the ask

490
00:27:56,480 --> 00:28:00,160
Speaker 2: in that lawsuit is two hundred and fifty million dollars.

491
00:28:00,200 --> 00:28:04,040
Speaker 2: Two hundred and fifty million dollars. This is just extraordinary.

492
00:28:04,280 --> 00:28:06,600
Speaker 2: The foots by the fellow, that's the word.

493
00:28:07,320 --> 00:28:11,040
Speaker 3: So the trust said that he plans to release up

494
00:28:11,040 --> 00:28:15,840
Speaker 3: to six additional books, all based on Tolkien's characters. They're

495
00:28:15,880 --> 00:28:19,920
Speaker 3: demanding that his books be taken off the shelves of stores.

496
00:28:20,560 --> 00:28:22,000
Speaker 3: Would a court go that far?

497
00:28:22,840 --> 00:28:26,000
Speaker 2: Oh? Absolutely, But first, they're not being sold on the

498
00:28:26,040 --> 00:28:29,919
Speaker 2: shelves of any bookstores. They're being sold by him online.

499
00:28:30,040 --> 00:28:33,320
Speaker 2: This is a self published work, which probably tells you

500
00:28:33,359 --> 00:28:36,400
Speaker 2: something about it right off for that, and the lawsuit

501
00:28:36,440 --> 00:28:39,120
Speaker 2: by the Tolkien estate goes to great length to point

502
00:28:39,160 --> 00:28:43,120
Speaker 2: out how bad the writing is compared to Professor Tolkien's writing.

503
00:28:43,840 --> 00:28:46,840
Speaker 2: So what the lawsuit wants is to have the court

504
00:28:47,000 --> 00:28:51,640
Speaker 2: enter an injunction stopping him from any future sales by

505
00:28:51,720 --> 00:28:56,840
Speaker 2: himself online, as well as stopping any future works, all

506
00:28:56,880 --> 00:28:59,680
Speaker 2: on the basis that these are derivative works and the

507
00:29:00,080 --> 00:29:03,360
Speaker 2: Keen of State has the exclusive right to prepare directive works.

508
00:29:03,920 --> 00:29:08,200
Speaker 3: And Jerry, we've seen these fan fiction lawsuits before, so.

509
00:29:08,200 --> 00:29:10,520
Speaker 2: Dun you know. We've seen this sort of fan fiction

510
00:29:10,720 --> 00:29:14,600
Speaker 2: before with the Bridgerton lawsuit that was filed last summer

511
00:29:14,960 --> 00:29:17,680
Speaker 2: against these two young ladies in New York who had

512
00:29:17,680 --> 00:29:21,760
Speaker 2: prepared a Bridgerton the Musical using the same characters, of

513
00:29:21,800 --> 00:29:26,440
Speaker 2: the same settings, but adding music to the Netflix original series.

514
00:29:26,560 --> 00:29:29,760
Speaker 2: That lawsuit was debbled within months of coming out. But

515
00:29:29,840 --> 00:29:33,200
Speaker 2: fan fiction is this notion that people who are so

516
00:29:33,400 --> 00:29:38,000
Speaker 2: wrapped up in a fictional work, whether it be a

517
00:29:38,080 --> 00:29:40,360
Speaker 2: literary work such as here with the Fellowship of the

518
00:29:40,400 --> 00:29:43,400
Speaker 2: Races in that case the television series, certain fans get

519
00:29:43,400 --> 00:29:46,240
Speaker 2: so wrapped up and have some talent that they start

520
00:29:46,320 --> 00:29:50,440
Speaker 2: preparing works that feed off of the original, and they

521
00:29:50,480 --> 00:29:53,520
Speaker 2: always portray it, just as mister polychron has here as

522
00:29:53,840 --> 00:29:57,400
Speaker 2: sort of homage to the original. And the problem, as

523
00:29:57,400 --> 00:30:00,840
Speaker 2: we've discussed before, is that, yes, for the most part,

524
00:30:01,200 --> 00:30:04,320
Speaker 2: authors and the owners of intellectual property in that case

525
00:30:04,400 --> 00:30:08,200
Speaker 2: Netflix once word of mouth. They want their theories, their books,

526
00:30:08,240 --> 00:30:10,520
Speaker 2: their movies, They want them talked up, they want them

527
00:30:10,600 --> 00:30:12,840
Speaker 2: to have a buzz about them. They want a really

528
00:30:13,040 --> 00:30:16,720
Speaker 2: positive vibe. And that's done by sort of sub rosa

529
00:30:16,800 --> 00:30:20,040
Speaker 2: encouraging bands to do things like that. It's always drawing

530
00:30:20,080 --> 00:30:23,080
Speaker 2: a line, though what constant is going too far, And

531
00:30:23,400 --> 00:30:26,280
Speaker 2: in the bridget In case, preparing a musical full body

532
00:30:26,280 --> 00:30:28,800
Speaker 2: of musical and putting it on at Kennedy Center here

533
00:30:28,800 --> 00:30:31,800
Speaker 2: in DC was just too much and Netflix had to

534
00:30:31,840 --> 00:30:35,200
Speaker 2: bring them a suit to stop that. Here, the Tolkien

535
00:30:35,800 --> 00:30:40,320
Speaker 2: universe has never needed that sort of fan buzz word

536
00:30:40,360 --> 00:30:43,760
Speaker 2: of mouth. This series came out in fifty four and

537
00:30:44,280 --> 00:30:49,560
Speaker 2: was instantaneously best sellers and became iconic. I mean we

538
00:30:49,600 --> 00:30:52,360
Speaker 2: all had to read them in high school. I mean

539
00:30:52,400 --> 00:30:55,480
Speaker 2: because they were considered more than just science fiction. They

540
00:30:55,480 --> 00:30:58,920
Speaker 2: were considered works of literary art that needed to study.

541
00:30:59,200 --> 00:31:02,000
Speaker 2: And there have been so many academic pieces rated on this.

542
00:31:02,200 --> 00:31:04,000
Speaker 2: And then the movies came out two thousand and three,

543
00:31:04,040 --> 00:31:05,920
Speaker 2: I believe, which just took them to new heights. So

544
00:31:06,040 --> 00:31:08,520
Speaker 2: there was never any need on the part of the

545
00:31:08,560 --> 00:31:11,840
Speaker 2: owners of the intellectual property and fashion theories to have

546
00:31:12,160 --> 00:31:15,200
Speaker 2: fan fiction. They had all the buzz they needed. They

547
00:31:15,200 --> 00:31:18,120
Speaker 2: had a really great five beyond buzz. I mean, these

548
00:31:18,160 --> 00:31:23,000
Speaker 2: are considered some of the greatest novels in English history

549
00:31:23,320 --> 00:31:25,560
Speaker 2: by academics whose you know what they're talking about, and

550
00:31:25,600 --> 00:31:28,200
Speaker 2: so you just didn't need it. And that's why they've

551
00:31:28,360 --> 00:31:31,760
Speaker 2: never encouraged the store of fan fiction and tried to

552
00:31:31,760 --> 00:31:34,720
Speaker 2: shut this guy down as soon as he poked his

553
00:31:34,760 --> 00:31:38,440
Speaker 2: head up unsuccessfully and now finally had to take the

554
00:31:38,800 --> 00:31:40,920
Speaker 2: last step of final lawsuits to shut him down.

555
00:31:41,120 --> 00:31:42,560
Speaker 3: Well, we'll see how long it takes. Do is that

556
00:31:42,640 --> 00:31:45,960
Speaker 3: all this one? Thanks Cherry. That's Terrence Ross of Catain

557
00:31:46,000 --> 00:31:48,600
Speaker 3: Euchen Rosenman, and that's it for this edition of The

558
00:31:48,640 --> 00:31:51,600
Speaker 3: Bloomberg Law Show. Remember you can always get the latest

559
00:31:51,640 --> 00:31:54,760
Speaker 3: legal news on our Bloomberg Law Podcast. You can find

560
00:31:54,800 --> 00:31:59,360
Speaker 3: them on Apple Podcasts, Spotify, and at www dot Bloomberg

561
00:31:59,400 --> 00:32:03,200
Speaker 3: dot com, slash podcast Slash Law, And remember to tune

562
00:32:03,200 --> 00:32:06,440
Speaker 3: into The Bloomberg Law Show every weeknight at ten pm

563
00:32:06,520 --> 00:32:10,080
Speaker 3: Wall Street Time. I'm June Grosso and you're listening to

564
00:32:10,120 --> 00:32:10,680
Speaker 3: Bloomberg