1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,000 --> 00:00:12,760 Speaker 1: Donald Trump is asking the Supreme Court to keep him 3 00:00:12,800 --> 00:00:16,439 Speaker 1: on the presidential ballot in Colorado, setting up a historic 4 00:00:16,520 --> 00:00:19,439 Speaker 1: showdown over whether his role in the January sixth, the 5 00:00:19,480 --> 00:00:23,640 Speaker 1: twenty twenty one assault on the Capitol, disqualifies him from office. 6 00:00:24,120 --> 00:00:28,000 Speaker 1: The former president is asking the justices to overturn a 7 00:00:28,080 --> 00:00:32,519 Speaker 1: Colorado Supreme Court ruling that declared him ineligible to reclaim 8 00:00:32,560 --> 00:00:35,120 Speaker 1: the White House, the first time a court has ever 9 00:00:35,159 --> 00:00:40,639 Speaker 1: invoked the US Constitution's insurrection clause to disqualify an ex president. 10 00:00:41,120 --> 00:00:44,360 Speaker 1: My guest is elections law expert Richard Bruffald, a professor 11 00:00:44,360 --> 00:00:47,680 Speaker 1: at Columbia Law School. Everyone seems to be assuming that 12 00:00:47,760 --> 00:00:50,400 Speaker 1: the Supreme Court will take the case because of the 13 00:00:50,600 --> 00:00:56,560 Speaker 1: novel constitutional questions, the national implications, with challenges to Trump's 14 00:00:56,560 --> 00:01:00,880 Speaker 1: eligibility filed across the country. The Justices aren't obligated to 15 00:01:00,920 --> 00:01:03,600 Speaker 1: take the case. But do you think they will take it? 16 00:01:04,040 --> 00:01:05,880 Speaker 2: That's hard to answer. I think I kind of hope 17 00:01:05,920 --> 00:01:08,679 Speaker 2: they take it because it is an important question. It's 18 00:01:08,720 --> 00:01:11,759 Speaker 2: now gotten different answers from different state courts. A couple 19 00:01:11,760 --> 00:01:14,280 Speaker 2: of state courts rejected the argument that Trump is born 20 00:01:14,319 --> 00:01:18,000 Speaker 2: from the ballot. Colorado recognized it. Influenced in part by 21 00:01:18,000 --> 00:01:20,959 Speaker 2: the Colorado Supreme Court's decision, the main Secretary of State 22 00:01:21,000 --> 00:01:24,800 Speaker 2: has taken in action. She's now being sued. The issue 23 00:01:24,959 --> 00:01:29,240 Speaker 2: is percolating up in multiple states, and it certainly would 24 00:01:29,240 --> 00:01:32,160 Speaker 2: be very useful for the Supreme Court to resolve it 25 00:01:32,240 --> 00:01:33,920 Speaker 2: soon one way or the other. 26 00:01:34,520 --> 00:01:38,880 Speaker 1: Transpetition attacking the Colorado ruling does so on several grounds, 27 00:01:38,920 --> 00:01:41,280 Speaker 1: a lot of grounds. Is there one that you find 28 00:01:41,360 --> 00:01:43,000 Speaker 1: particularly compelling? 29 00:01:43,680 --> 00:01:46,559 Speaker 2: Honestly, I think he is really going out in all directions, 30 00:01:47,000 --> 00:01:50,520 Speaker 2: some of which are purely procedural, and maybe kick the 31 00:01:50,600 --> 00:01:53,440 Speaker 2: can down the road, which is, you know, the amendment 32 00:01:53,800 --> 00:01:56,440 Speaker 2: only prohibits somebody from holding office. It doesn't affects who 33 00:01:56,480 --> 00:01:59,080 Speaker 2: can be on the ballot. He's got some arguments that 34 00:01:59,120 --> 00:02:02,480 Speaker 2: it's something that state courts can't handle, that it's outside 35 00:02:02,640 --> 00:02:05,800 Speaker 2: the state court jurisdiction. So he has some arguments that 36 00:02:05,880 --> 00:02:08,359 Speaker 2: are designed to kind of skirt the merits, which might 37 00:02:08,440 --> 00:02:12,320 Speaker 2: mean that they come back later. He's got some arguments 38 00:02:12,320 --> 00:02:15,840 Speaker 2: that are hyper technical. I think one about whether or 39 00:02:15,840 --> 00:02:18,120 Speaker 2: not the president as an officer of the United States 40 00:02:18,120 --> 00:02:20,720 Speaker 2: within the media of the Constitution. It sounds like a 41 00:02:20,760 --> 00:02:23,640 Speaker 2: really odd argument. Of course, the president is an officer 42 00:02:23,680 --> 00:02:26,040 Speaker 2: of the United States. But Trump's lawyers do have a 43 00:02:26,280 --> 00:02:29,480 Speaker 2: plausible the technical argument based on the language of the Constitution, 44 00:02:29,560 --> 00:02:32,680 Speaker 2: that maybe the president isn't picked up by that language. 45 00:02:32,840 --> 00:02:34,520 Speaker 2: And then there's the ones that really go to what 46 00:02:34,720 --> 00:02:36,600 Speaker 2: we might consider the heart of the fight, which is 47 00:02:37,160 --> 00:02:41,080 Speaker 2: was January sixth in insurrection? And was Trump engaged in it? 48 00:02:41,520 --> 00:02:42,280 Speaker 3: And so we don't know? 49 00:02:42,320 --> 00:02:44,840 Speaker 2: I mean, I think they're really finding on all fronts, 50 00:02:45,040 --> 00:02:48,320 Speaker 2: procedural ones that argue that the Colorado Court sort of 51 00:02:48,320 --> 00:02:53,080 Speaker 2: screwed up Colorado election law, Colorado election procedure, technical ones 52 00:02:53,120 --> 00:02:55,920 Speaker 2: about the meeting of officers of the United States, and 53 00:02:56,000 --> 00:02:58,720 Speaker 2: maybe ones about US January sixth and insurrection and did 54 00:02:58,720 --> 00:03:01,360 Speaker 2: he engage in it? Covers just about everything. 55 00:03:01,720 --> 00:03:04,560 Speaker 1: An argument that's gotten a lot of play is this 56 00:03:04,760 --> 00:03:07,400 Speaker 1: that the fourteenth Amendment doesn't apply to the office of 57 00:03:07,440 --> 00:03:10,200 Speaker 1: the presidency and the oath he took when he was 58 00:03:10,240 --> 00:03:13,400 Speaker 1: sworn in didn't count as one of the oaths mentioned 59 00:03:13,440 --> 00:03:16,080 Speaker 1: in the amendment. And you know, as we've discussed before, 60 00:03:16,680 --> 00:03:18,959 Speaker 1: when you look at the history, that sort of looks 61 00:03:19,080 --> 00:03:22,760 Speaker 1: ridiculous but if you look technically at the words of 62 00:03:22,800 --> 00:03:26,239 Speaker 1: the Constitution, does it seem more plausible. 63 00:03:26,720 --> 00:03:29,160 Speaker 2: You've got it exactly right. The oath one strikes things 64 00:03:29,200 --> 00:03:33,200 Speaker 2: a little silly. The fourteen Amendments, Section three basically says 65 00:03:33,440 --> 00:03:36,880 Speaker 2: that this prohibition on holding office only applies to someone 66 00:03:37,080 --> 00:03:40,160 Speaker 2: who has taken an oath to support the Constitution, and 67 00:03:40,200 --> 00:03:43,840 Speaker 2: of course the president is to preserve protecting descent. You 68 00:03:43,880 --> 00:03:46,680 Speaker 2: could argue that support pretty much picks that up. So 69 00:03:46,760 --> 00:03:50,000 Speaker 2: I find that argument kind of technical support for a percent. 70 00:03:50,400 --> 00:03:53,040 Speaker 2: But whether the president as an officer of the United 71 00:03:53,080 --> 00:03:56,080 Speaker 2: States within the meaning of fourteenth three is a little trickier, 72 00:03:56,320 --> 00:03:58,960 Speaker 2: because remember that provision has written so it mentions the 73 00:03:59,040 --> 00:04:02,119 Speaker 2: center to mention as how representative, and then it mentions 74 00:04:02,320 --> 00:04:05,200 Speaker 2: civil offices in the United States. Do you might think, well, 75 00:04:05,200 --> 00:04:07,720 Speaker 2: maybe the president, if he was mentioned, would have come first, 76 00:04:08,120 --> 00:04:10,160 Speaker 2: And that's a funny way to pick up the president. 77 00:04:10,520 --> 00:04:13,120 Speaker 2: And then the few times that that phrase office of 78 00:04:13,120 --> 00:04:16,240 Speaker 2: the United States appears in the Constitution, at least two 79 00:04:16,279 --> 00:04:18,599 Speaker 2: of them, if heres in the context in which the 80 00:04:18,640 --> 00:04:22,440 Speaker 2: President is making appointments of offices or issuing commissions, So 81 00:04:22,480 --> 00:04:25,360 Speaker 2: where the president is clearly treated as a separate person. 82 00:04:26,279 --> 00:04:28,120 Speaker 2: On the other hand, if you look at the legislative 83 00:04:28,160 --> 00:04:30,400 Speaker 2: history of the Constitutional Amendment, and there's a lot of 84 00:04:30,440 --> 00:04:33,400 Speaker 2: evidence that they meant to include the president. But it 85 00:04:33,480 --> 00:04:36,479 Speaker 2: is even though I think ninety nine out of one 86 00:04:36,520 --> 00:04:39,200 Speaker 2: hundred Americans and ninety ninety nine out of one thousand 87 00:04:39,600 --> 00:04:41,480 Speaker 2: would have staked of course, the president's in course the 88 00:04:41,640 --> 00:04:46,040 Speaker 2: United States, there is this plausible technical argument that now 89 00:04:46,080 --> 00:04:49,320 Speaker 2: the president is the president, and when the Constitution uses 90 00:04:49,360 --> 00:04:52,839 Speaker 2: the phrase officers of the United States, they mean everybody 91 00:04:52,839 --> 00:04:53,600 Speaker 2: but the president. 92 00:04:54,160 --> 00:05:00,320 Speaker 1: One non technical ground that I think might put pressure 93 00:05:00,400 --> 00:05:03,080 Speaker 1: on the Supreme Court to take the case is their 94 00:05:03,200 --> 00:05:07,800 Speaker 1: argument that quote, the Colorado Supreme Court decision would unconstitutionally 95 00:05:07,880 --> 00:05:12,320 Speaker 1: disenfranchise millions of voters in Colorado and likely be used 96 00:05:12,360 --> 00:05:17,080 Speaker 1: as a template to disenfranchise tens of millions of voters nationwide. 97 00:05:18,160 --> 00:05:24,200 Speaker 1: And even his opponents in the Republican presidential primary seem 98 00:05:24,279 --> 00:05:26,000 Speaker 1: to say, let the voters decide this. 99 00:05:27,120 --> 00:05:29,719 Speaker 2: Yeah, I mean, that's a real tension between, you know, 100 00:05:29,800 --> 00:05:33,200 Speaker 2: the notion of democracy as the voters getting decided, the 101 00:05:33,279 --> 00:05:35,799 Speaker 2: notion that we're democracy governed by the rule of law. 102 00:05:36,400 --> 00:05:40,240 Speaker 2: I mean, let's say he wasn't a citizen. I mean, 103 00:05:40,360 --> 00:05:43,680 Speaker 2: if he's not a citizen, he's not eligible. And it's 104 00:05:43,720 --> 00:05:47,760 Speaker 2: not clear to me that voters have a protected right 105 00:05:47,839 --> 00:05:51,240 Speaker 2: to vote for an ineligible person, let's say, a non citizen, 106 00:05:51,680 --> 00:05:54,320 Speaker 2: or somebody's only thirty years old and not thirty five. 107 00:05:54,480 --> 00:05:57,800 Speaker 2: So I think their argument that this is depriving the 108 00:05:57,839 --> 00:06:01,520 Speaker 2: voters of the right to choose he's implicitly saying they 109 00:06:01,520 --> 00:06:04,840 Speaker 2: think he's eligible, that they think that fourteen three doesn't 110 00:06:04,880 --> 00:06:08,599 Speaker 2: bar him. I mean, if the Constitution mean anything, it's 111 00:06:09,040 --> 00:06:11,400 Speaker 2: all of our rights. Provisions of the Constitution are designed 112 00:06:11,400 --> 00:06:13,880 Speaker 2: to put some constraints on what voters can do or 113 00:06:13,920 --> 00:06:17,800 Speaker 2: what elected legislatures can do. In the First Amendment, the 114 00:06:17,800 --> 00:06:21,640 Speaker 2: Second Amendment are all constraints on what voters can accomplish. 115 00:06:21,640 --> 00:06:24,280 Speaker 2: So I mean, I think as a political argument, it's 116 00:06:24,279 --> 00:06:26,640 Speaker 2: a strong one. It has a lot of residents in 117 00:06:26,680 --> 00:06:29,239 Speaker 2: our system where we do believe that the voter should 118 00:06:29,240 --> 00:06:32,440 Speaker 2: decide things. But it is in tension with the idea 119 00:06:32,480 --> 00:06:35,560 Speaker 2: that we're not just the democracy or a constitutional democracy, 120 00:06:36,240 --> 00:06:37,719 Speaker 2: and there are some rules. 121 00:06:37,760 --> 00:06:40,960 Speaker 1: Rich forgetting the legal arguments. I have this sort of 122 00:06:41,120 --> 00:06:45,400 Speaker 1: gut feeling that this isn't a court that wants to 123 00:06:45,440 --> 00:06:48,960 Speaker 1: be the court that stopped the leading Republican candid from 124 00:06:48,960 --> 00:06:52,640 Speaker 1: being on the ballot. I mean echoes of Bush v. Gore, 125 00:06:53,080 --> 00:06:57,560 Speaker 1: which you know is still controversial. So are they going 126 00:06:57,600 --> 00:07:00,960 Speaker 1: to look for a way out of this, a technical 127 00:07:00,960 --> 00:07:01,760 Speaker 1: way perhaps? 128 00:07:02,520 --> 00:07:04,320 Speaker 2: Well, I think at some point they're going to have 129 00:07:04,360 --> 00:07:08,320 Speaker 2: to decide something, and there are ways of deciding this. 130 00:07:08,720 --> 00:07:10,680 Speaker 2: I mean, that's the nice thing about the Trump brief 131 00:07:10,760 --> 00:07:13,520 Speaker 2: is they'd give them many ways to decide this that 132 00:07:13,560 --> 00:07:16,880 Speaker 2: don't involve deciding whether or not January sixth was an insurrection. 133 00:07:17,760 --> 00:07:20,800 Speaker 2: And some of these include The argument that I don't 134 00:07:20,800 --> 00:07:23,880 Speaker 2: find persuasive that some people do is that fourteen three 135 00:07:23,960 --> 00:07:26,960 Speaker 2: is what's called non self executing, that in other words, 136 00:07:26,960 --> 00:07:30,600 Speaker 2: it requires congressional legislation to implement it, and Congress covily 137 00:07:30,600 --> 00:07:33,040 Speaker 2: hasn't passed anything. I don't think that's a very strong 138 00:07:33,120 --> 00:07:36,440 Speaker 2: argument that it's something that people can use. I do 139 00:07:36,480 --> 00:07:38,160 Speaker 2: think the one about officer in the United States is 140 00:07:38,560 --> 00:07:40,280 Speaker 2: a technical way out, though it would be a big 141 00:07:40,280 --> 00:07:43,040 Speaker 2: decision to say the president is not an officer. I 142 00:07:43,080 --> 00:07:46,440 Speaker 2: think there could be arguments about the flawed process that 143 00:07:46,520 --> 00:07:49,880 Speaker 2: the Colorado Supreme Court U of color on court system used, 144 00:07:50,160 --> 00:07:54,000 Speaker 2: Although that would leave this open to possibly another state 145 00:07:54,080 --> 00:07:57,120 Speaker 2: which was a better process doing it. So I do 146 00:07:57,160 --> 00:08:00,360 Speaker 2: think they have a lot of options, But I I 147 00:08:01,120 --> 00:08:03,840 Speaker 2: agree with I think it would be a very bold 148 00:08:03,920 --> 00:08:07,800 Speaker 2: thing for the court to conclude that he's ineligible, and 149 00:08:09,240 --> 00:08:10,920 Speaker 2: you never know what's going to I mean, and I 150 00:08:10,960 --> 00:08:13,600 Speaker 2: do think there are many ways in which the court 151 00:08:13,760 --> 00:08:18,160 Speaker 2: could find ineligible without passing on whether what happened on 152 00:08:18,280 --> 00:08:19,680 Speaker 2: January sixth was an insurrection. 153 00:08:20,360 --> 00:08:24,200 Speaker 1: You mentioned this. The Colorado Court's ruling specifically address the 154 00:08:24,240 --> 00:08:28,520 Speaker 1: Republican primary in the state, So, right, would a Supreme 155 00:08:28,560 --> 00:08:32,360 Speaker 1: Court decision apply just to the primary or is it 156 00:08:32,440 --> 00:08:34,520 Speaker 1: up to them to decide how broad it is? 157 00:08:34,960 --> 00:08:37,480 Speaker 2: Again, it really exactly would depends on the language. I mean, 158 00:08:37,520 --> 00:08:40,920 Speaker 2: I think the argument is, and this is one of 159 00:08:40,920 --> 00:08:44,080 Speaker 2: the arguments that Trump raises, is that the fourteen three 160 00:08:44,120 --> 00:08:49,080 Speaker 2: actually doesn't address elections at all. It addresses eligibility to serve, 161 00:08:49,760 --> 00:08:53,480 Speaker 2: and therefore it might be enforceable only by Congress. I mean, 162 00:08:53,480 --> 00:08:55,439 Speaker 2: that's one of their arguments is that it doesn't say 163 00:08:55,440 --> 00:08:59,000 Speaker 2: who can run for office, It just says who can serve. 164 00:08:59,080 --> 00:09:03,000 Speaker 2: And so maybe the argument is Colorado Supreme Court had 165 00:09:03,040 --> 00:09:07,320 Speaker 2: no role in deciding who gets to be on the ballot, 166 00:09:07,760 --> 00:09:10,720 Speaker 2: other than you know, if they've followed the process for 167 00:09:10,800 --> 00:09:14,000 Speaker 2: getting on the ballot, and that the ultimate decision would 168 00:09:14,000 --> 00:09:15,080 Speaker 2: be up to Congress. 169 00:09:15,120 --> 00:09:19,320 Speaker 1: And that's one possibility because you know, state courts have 170 00:09:19,440 --> 00:09:25,320 Speaker 1: different procedures rules, you know, state law. Would any decision 171 00:09:25,400 --> 00:09:29,560 Speaker 1: by the Supreme Court about Colorado apply to other states? 172 00:09:30,160 --> 00:09:32,240 Speaker 2: Again, it depends on what they decide. I mean, one 173 00:09:32,240 --> 00:09:35,440 Speaker 2: of the arguments Trump has raised is Colorado. The Colorado 174 00:09:35,440 --> 00:09:39,600 Speaker 2: courts violated their own procedures for a litigating disputes about 175 00:09:39,600 --> 00:09:42,000 Speaker 2: who's eligible to be on the ballot. The Supreme Court 176 00:09:42,080 --> 00:09:44,520 Speaker 2: agrees with that, then that's really good only for Colorado. 177 00:09:44,880 --> 00:09:47,760 Speaker 2: But if Supreme Court says fourteen three doesn't apply to 178 00:09:47,800 --> 00:09:50,440 Speaker 2: the president because the president's not an officer, that would 179 00:09:50,440 --> 00:09:51,840 Speaker 2: have presumably applied to every state. 180 00:09:52,840 --> 00:09:55,240 Speaker 1: So all the parties I believe to the case have 181 00:09:55,480 --> 00:09:59,240 Speaker 1: asked for the court to move quickly. But both rulings 182 00:09:59,280 --> 00:10:03,360 Speaker 1: are on whole while the appeals move forward. So he 183 00:10:03,480 --> 00:10:06,640 Speaker 1: is on the ballot in Maine, in Colorado, So that 184 00:10:06,679 --> 00:10:09,280 Speaker 1: gives the court some breathing room. Do you think that 185 00:10:09,360 --> 00:10:13,000 Speaker 1: they can wait until after the primaries? 186 00:10:13,360 --> 00:10:16,120 Speaker 2: Well, I mean that's certainly right. I mean, in some ways, 187 00:10:16,120 --> 00:10:18,920 Speaker 2: the Colorado courts said, we're going to stay our decision 188 00:10:19,000 --> 00:10:22,400 Speaker 2: till January fourth, and then if Trump seeks cert it 189 00:10:22,480 --> 00:10:24,840 Speaker 2: seeks the Supreme Court review, we're going to stay it 190 00:10:24,880 --> 00:10:28,319 Speaker 2: in as long as it's pending. So yeah, conceivably this 191 00:10:28,320 --> 00:10:31,320 Speaker 2: thing could just be indefinitely stayed. But then you get 192 00:10:31,320 --> 00:10:34,240 Speaker 2: the main decision by this main Secretary of State. Now 193 00:10:34,240 --> 00:10:38,439 Speaker 2: that's being challenged in the main courts. But if that sticks, 194 00:10:38,480 --> 00:10:42,960 Speaker 2: if that lasts, I think her position was that company 195 00:10:43,160 --> 00:10:45,679 Speaker 2: a fall filing because he said he was eligible. I mean, 196 00:10:45,679 --> 00:10:49,120 Speaker 2: it's really that eligible eligibility, and that might not be 197 00:10:49,200 --> 00:10:52,280 Speaker 2: limited to the primer. I haven't read her decision that carefully, 198 00:10:52,600 --> 00:10:56,520 Speaker 2: but I think her claim is that he's simply not eligible, 199 00:10:56,840 --> 00:10:58,560 Speaker 2: in which case I think would also apply to the 200 00:10:58,600 --> 00:10:59,200 Speaker 2: general election. 201 00:10:59,640 --> 00:11:04,720 Speaker 1: The court has this possibility of a case. Also, the 202 00:11:05,120 --> 00:11:08,040 Speaker 1: question of presidential immunity is bound to come up to 203 00:11:08,120 --> 00:11:12,160 Speaker 1: the court again, right, And they've also decided that they're 204 00:11:12,200 --> 00:11:14,840 Speaker 1: going to examine the validity of a law used to 205 00:11:15,000 --> 00:11:19,640 Speaker 1: charge people, including Trump, in connection with twenty twenty. I mean, 206 00:11:20,240 --> 00:11:24,839 Speaker 1: it seems like this court is going to be part 207 00:11:25,120 --> 00:11:28,960 Speaker 1: of this presidential election in a way. I'm sure that 208 00:11:29,720 --> 00:11:34,280 Speaker 1: most of the justices, certainly the Chief Justice, wouldn't want, 209 00:11:34,559 --> 00:11:36,240 Speaker 1: but they're sort of forced into it. 210 00:11:36,760 --> 00:11:40,439 Speaker 2: Yeah, I mean some of these things, they really they've chosen. 211 00:11:40,480 --> 00:11:42,439 Speaker 2: Like they're the ones who agree to hear the case 212 00:11:42,960 --> 00:11:46,680 Speaker 2: challenging the use of the particular federal statute about corruptly 213 00:11:46,679 --> 00:11:49,880 Speaker 2: disrupting proceedings, whether or not that applied to what happened 214 00:11:49,920 --> 00:11:52,520 Speaker 2: on January sixth. That one was a choice, but most 215 00:11:52,520 --> 00:11:55,200 Speaker 2: of the others they don't have much choice. That's true, 216 00:11:55,280 --> 00:11:57,720 Speaker 2: So I yem, I mean, I think this is you know, 217 00:11:58,240 --> 00:12:01,760 Speaker 2: the issues that's around Trump are unprecedented, but he is 218 00:12:01,880 --> 00:12:04,640 Speaker 2: active in ways that are unprecedented for a president. So 219 00:12:05,559 --> 00:12:10,160 Speaker 2: it's not surprising that these amazing new cases of coming up, 220 00:12:10,720 --> 00:12:13,840 Speaker 2: the things that he is Donner said to have done 221 00:12:13,880 --> 00:12:16,240 Speaker 2: a really are unique in American history. 222 00:12:16,520 --> 00:12:18,480 Speaker 1: I think it's going to be a long year. Rich 223 00:12:18,679 --> 00:12:21,880 Speaker 1: Thanks so much for your insights. That's Professor Richard Rafault 224 00:12:22,000 --> 00:12:23,240 Speaker 1: of Columbia Law School. 225 00:12:24,200 --> 00:12:27,640 Speaker 4: Everybody HiT's me, Mickey Mouse, say you want to come 226 00:12:27,640 --> 00:12:31,080 Speaker 4: inside my clubhouse. To make the clubhouse up here, I 227 00:12:31,160 --> 00:12:37,360 Speaker 4: get to say the magic words Miska Musca, Mickey Mouse. 228 00:12:39,920 --> 00:12:44,800 Speaker 1: Mickey Mouse, perhaps the most iconic cartoon character of all time, 229 00:12:45,320 --> 00:12:49,040 Speaker 1: is now officially in the public domain, well, at least 230 00:12:49,120 --> 00:12:53,160 Speaker 1: the first iteration of Mickey, introduced in nineteen twenty eight 231 00:12:53,200 --> 00:12:57,640 Speaker 1: in the cartoon short Steamboat Willie. The copyright on Steamboat 232 00:12:57,679 --> 00:13:01,920 Speaker 1: Willie has expired, like thousands of other copyrighted works published 233 00:13:01,920 --> 00:13:05,240 Speaker 1: in nineteen twenty eight. That means that anyone can use 234 00:13:05,360 --> 00:13:09,400 Speaker 1: that version of Mickey without permission. So Mickey Mouse fans 235 00:13:09,679 --> 00:13:13,520 Speaker 1: get ready for the darker version of your favorite friendly mouse. 236 00:13:13,800 --> 00:13:17,160 Speaker 1: He's already being cast as the villain in horror movies 237 00:13:17,640 --> 00:13:28,440 Speaker 1: like Mickey's Mousetrap. Do turn out, please, and there's Mickey lurking. 238 00:13:28,920 --> 00:13:32,720 Speaker 1: It's a fate that befell another beloved children's character, Winnie 239 00:13:32,760 --> 00:13:36,880 Speaker 1: the Pooh, after his copyright expired when he and piglets 240 00:13:36,960 --> 00:13:41,440 Speaker 1: starred in Winnie the Pooh, Blood and Honey. Joining me 241 00:13:41,480 --> 00:13:43,840 Speaker 1: to talk about the implications of Mickey being in the 242 00:13:43,840 --> 00:13:48,680 Speaker 1: public domain is intellectual property litigator Terrence Ross, a partner 243 00:13:48,679 --> 00:13:53,320 Speaker 1: at Katin Newtchen Rosenman. Terry Disney has fought to keep 244 00:13:53,360 --> 00:13:57,760 Speaker 1: its copyright of Mickey as long as possible. It lobbied 245 00:13:57,800 --> 00:13:58,559 Speaker 1: the US. 246 00:13:58,440 --> 00:14:03,839 Speaker 3: Government didn't it, So yes, it did. It's a very 247 00:14:03,920 --> 00:14:08,400 Speaker 3: interesting story the history of durations of copyright in the 248 00:14:08,559 --> 00:14:12,000 Speaker 3: United States. You know, the copyright is actually embedded in 249 00:14:12,040 --> 00:14:15,280 Speaker 3: the Constitution of the United States. It expressly gives power 250 00:14:15,320 --> 00:14:20,320 Speaker 3: to Congress to legislate copyrights for the protection of works, 251 00:14:20,360 --> 00:14:22,680 Speaker 3: but then has a qualifier in the Constitution It says 252 00:14:23,040 --> 00:14:26,920 Speaker 3: four limited times, meaning that it can't be in perpetuity. 253 00:14:27,160 --> 00:14:30,760 Speaker 3: My trademarks potentially could It has to be some set 254 00:14:30,840 --> 00:14:33,400 Speaker 3: number of years. And when it was first an acted 255 00:14:33,400 --> 00:14:36,200 Speaker 3: in the law, the first Copyright Act set copyright will 256 00:14:36,280 --> 00:14:39,960 Speaker 3: last fourteen years, and then over the nineteenth century that 257 00:14:40,080 --> 00:14:42,760 Speaker 3: was expanded to twenty eight years. And then you have 258 00:14:42,880 --> 00:14:46,200 Speaker 3: the famous nineteen oh nine reforms of the copyright laws. 259 00:14:46,320 --> 00:14:48,280 Speaker 3: And one of the big issues was is twenty eight 260 00:14:48,400 --> 00:14:51,560 Speaker 3: years enough because the life of people was getting longer 261 00:14:51,560 --> 00:14:54,760 Speaker 3: and longer as modern health practices were adopted and the 262 00:14:54,760 --> 00:14:57,600 Speaker 3: country became wealthier. And you have the famous episode where 263 00:14:57,720 --> 00:15:03,000 Speaker 3: Samuel Longhorn Clemens I Marked comes and testifies live before 264 00:15:03,120 --> 00:15:06,760 Speaker 3: Congress and when the congressman asked him how long do 265 00:15:06,880 --> 00:15:12,360 Speaker 3: you think the copyright should last? And Mark Twain famously said, well, 266 00:15:12,400 --> 00:15:13,920 Speaker 3: I think it should be long enough to take care 267 00:15:13,960 --> 00:15:17,200 Speaker 3: of my children, but the grandchildren can fend for themselves. 268 00:15:17,600 --> 00:15:21,040 Speaker 3: And that was literally, you'll take an act, holy writ. 269 00:15:21,400 --> 00:15:24,440 Speaker 3: And so in the nineteen oh nine Act, which is 270 00:15:24,480 --> 00:15:27,080 Speaker 3: one that's relevant for a lot of the works today 271 00:15:27,280 --> 00:15:30,200 Speaker 3: that are coming in the public domain, provided for twenty 272 00:15:30,240 --> 00:15:33,280 Speaker 3: eight years plus a single renewal of twenty eight years 273 00:15:33,360 --> 00:15:36,280 Speaker 3: of total fifty six years. When we again reformed the 274 00:15:36,320 --> 00:15:39,200 Speaker 3: Copyright Act in nineteen seventy six, we got rid of 275 00:15:39,240 --> 00:15:42,240 Speaker 3: this concept of a renewal. We went with something different. 276 00:15:42,560 --> 00:15:46,200 Speaker 3: We went with life of the author plus fifty years, 277 00:15:46,560 --> 00:15:49,160 Speaker 3: or if it was a corporate copyright, seventy five years. 278 00:15:49,480 --> 00:15:54,160 Speaker 3: And then Mickey Mouse became exposed, and so we have 279 00:15:54,320 --> 00:15:58,400 Speaker 3: the story of how Disney repeatedly push to have the 280 00:15:59,240 --> 00:16:05,200 Speaker 3: copyright term expanded. And in nineteen ninety eight they got 281 00:16:05,320 --> 00:16:08,400 Speaker 3: Sonny Bono, if you remember Sonny Bono from Sonny and Chare. 282 00:16:08,800 --> 00:16:13,240 Speaker 3: He was chairman of the Intellectual Property Subcommittee the House, 283 00:16:13,320 --> 00:16:16,960 Speaker 3: and so they went to him, along with other content providers, 284 00:16:17,000 --> 00:16:19,680 Speaker 3: the big Hollywood companies, the big recording companies, and they 285 00:16:19,760 --> 00:16:22,360 Speaker 3: convinced him that they needed to extend the term. And 286 00:16:22,520 --> 00:16:25,600 Speaker 3: as you may recall that was sort of moving along, 287 00:16:25,720 --> 00:16:28,960 Speaker 3: but not quickly, and then Sonny Bono tragically was killed 288 00:16:29,000 --> 00:16:33,040 Speaker 3: in a skiing accident, and the legislation was renamed the 289 00:16:33,200 --> 00:16:37,080 Speaker 3: Sonny Bono Copyright Term Extension Act and suddenly got passed, 290 00:16:37,400 --> 00:16:42,200 Speaker 3: and that provided for a bonus of twenty years for 291 00:16:42,400 --> 00:16:47,120 Speaker 3: any work that was still in copyright, and Mickey Mouse's 292 00:16:47,160 --> 00:16:51,360 Speaker 3: copyright ran out if I recall in two thousand and three, 293 00:16:51,720 --> 00:16:54,800 Speaker 3: and therefore it got the benefit of this extra twenty years, 294 00:16:54,960 --> 00:16:57,960 Speaker 3: and that brought the copyright through to December thirty first, 295 00:16:57,960 --> 00:17:02,440 Speaker 3: twenty twenty three, last week, and it has now expired. 296 00:17:03,000 --> 00:17:07,840 Speaker 1: It's the original Mickey Mouse in Steamboat Willie that's entering 297 00:17:07,920 --> 00:17:12,000 Speaker 1: the public domain, right. So he's entirely in black and white. 298 00:17:12,080 --> 00:17:15,320 Speaker 1: He doesn't wear a shirt or those signature white gloves. 299 00:17:15,760 --> 00:17:18,639 Speaker 1: He has no voice, a point of your nose, a 300 00:17:18,640 --> 00:17:22,480 Speaker 1: long tail, and solid black eyes for pupils. It's not 301 00:17:22,560 --> 00:17:24,560 Speaker 1: the version of Mickey Mouse that we know. 302 00:17:25,000 --> 00:17:27,280 Speaker 3: So it's not the version that you run into if 303 00:17:27,280 --> 00:17:29,920 Speaker 3: you go to Disney World. A lot of people forget 304 00:17:29,960 --> 00:17:32,680 Speaker 3: the origins of Mickey Mouse. The first film he appeared 305 00:17:32,720 --> 00:17:36,239 Speaker 3: in was called Steamboat Willie, and it came out, you know, 306 00:17:36,280 --> 00:17:39,520 Speaker 3: shortly after The Jazz Singer, which was the first real 307 00:17:39,680 --> 00:17:42,320 Speaker 3: talking movie, and Walt Disney had seen it and have 308 00:17:42,480 --> 00:17:48,880 Speaker 3: become convinced that the future of moving pictures was in talkies. 309 00:17:49,119 --> 00:17:53,080 Speaker 3: And so Steamboat Willie was the first animated film with 310 00:17:53,440 --> 00:17:59,280 Speaker 3: fully synchronized sound. And this just hit people so strongly 311 00:17:59,640 --> 00:18:03,280 Speaker 3: that proved everything that Walt Disney was thinking of time correct, 312 00:18:03,320 --> 00:18:06,000 Speaker 3: that this was the future of motion pictures. And so 313 00:18:06,280 --> 00:18:08,720 Speaker 3: in preparation for this show, I went back and watched 314 00:18:08,720 --> 00:18:10,359 Speaker 3: it again. It's only seven and a half minutes, and 315 00:18:10,400 --> 00:18:13,439 Speaker 3: it's now obviously available on every YouTube channel that you 316 00:18:13,480 --> 00:18:16,000 Speaker 3: can find, because it's no longer some copyrights in the 317 00:18:16,000 --> 00:18:20,040 Speaker 3: public domain. And you've described it exactly right. The incredible 318 00:18:20,040 --> 00:18:22,960 Speaker 3: thing is he never talks in the movie. You know, 319 00:18:23,000 --> 00:18:27,120 Speaker 3: there's lots of sound, lots of music, including a sort 320 00:18:27,119 --> 00:18:30,000 Speaker 3: of obnoxious rendition of Turkey in the straw, but he 321 00:18:30,080 --> 00:18:34,720 Speaker 3: never talks, and many of his physical characteristics are just different, 322 00:18:34,840 --> 00:18:36,960 Speaker 3: you know. The one you notice immediately is the lack 323 00:18:37,000 --> 00:18:39,240 Speaker 3: of the white gloves. And indeed the name Mickey Mouse 324 00:18:39,320 --> 00:18:43,320 Speaker 3: is not used. It's Steamboat Willie. And so what is 325 00:18:43,359 --> 00:18:47,320 Speaker 3: now in the public domain is that story. That film 326 00:18:47,480 --> 00:18:50,639 Speaker 3: is in the public domain. And you know long time 327 00:18:50,920 --> 00:18:55,440 Speaker 3: court president says that a character in a story or 328 00:18:55,480 --> 00:18:58,240 Speaker 3: a movie or a novel that comes into public domain, 329 00:18:58,280 --> 00:19:00,719 Speaker 3: and then the character also comes into the public domain, 330 00:19:00,840 --> 00:19:03,399 Speaker 3: but it is that character. It's limited to that character. 331 00:19:03,680 --> 00:19:05,360 Speaker 3: In Steamboat Willie. 332 00:19:05,280 --> 00:19:08,240 Speaker 1: Two directors say they're going to release horror films with 333 00:19:08,560 --> 00:19:12,600 Speaker 1: Steamboat Willie. A trailer for one, entitled Mickey's Mousetrap, has 334 00:19:12,680 --> 00:19:15,879 Speaker 1: already been released. In the trailer, I saw Mickey was 335 00:19:15,960 --> 00:19:19,560 Speaker 1: he didn't speak, and he was just in black and white. 336 00:19:19,760 --> 00:19:25,320 Speaker 1: Suppose someone colorized him or used his current voice. 337 00:19:25,800 --> 00:19:28,720 Speaker 3: I think colorization would be fine, or filming it in 338 00:19:28,800 --> 00:19:33,639 Speaker 3: color would be fine. The squeaky voice is something that 339 00:19:34,280 --> 00:19:37,960 Speaker 3: we've for fun argued about within the copyright bar. There 340 00:19:38,080 --> 00:19:42,000 Speaker 3: is one argument that that's not copyrightable the first place, 341 00:19:42,280 --> 00:19:45,600 Speaker 3: it's just a squeak voice. There are others who say, no, no, no, 342 00:19:45,640 --> 00:19:48,920 Speaker 3: that's a character trait that's unique to Mickey and should 343 00:19:48,960 --> 00:19:51,560 Speaker 3: be copyrightable. So that issue is actually up in the air. 344 00:19:51,880 --> 00:19:54,919 Speaker 3: I mean, I saw the article in Variety, as you 345 00:19:54,920 --> 00:19:59,080 Speaker 3: probably did. Steven Lamoret was actually saying in announcing the 346 00:19:59,119 --> 00:20:02,639 Speaker 3: movie that he they carefully lawyered up. Yes, he had 347 00:20:02,680 --> 00:20:05,840 Speaker 3: a team of lawyers already thinking about how they could 348 00:20:05,880 --> 00:20:07,600 Speaker 3: do this, and I think that's going to be one 349 00:20:07,600 --> 00:20:10,720 Speaker 3: of the tricks. Because Disney has always been aggressive about 350 00:20:10,720 --> 00:20:13,439 Speaker 3: protecting his properties, particularly Mickey Mouse. That's one of the 351 00:20:13,440 --> 00:20:16,080 Speaker 3: reasons they went in and got the extension. They were 352 00:20:16,119 --> 00:20:21,680 Speaker 3: actually less afraid of the horror sort of genre portrayal 353 00:20:21,680 --> 00:20:24,800 Speaker 3: of Mickey Mouse as opposed to the pornographic portrayal. And 354 00:20:24,920 --> 00:20:28,920 Speaker 3: there was an unlawfully made movie I think it's called 355 00:20:29,160 --> 00:20:31,920 Speaker 3: Mickey Mouse and the Air Pirates that they sued over 356 00:20:32,040 --> 00:20:35,160 Speaker 3: that was, as we now called the Adult Entertainment Round. 357 00:20:35,280 --> 00:20:37,400 Speaker 3: But those are the sort of concerns that Disney's always had. 358 00:20:37,600 --> 00:20:41,040 Speaker 3: Those are real, and it's going to aggressively protect it now. 359 00:20:41,080 --> 00:20:43,080 Speaker 3: The important thing to remember, too, is that turning away 360 00:20:43,080 --> 00:20:45,960 Speaker 3: from copyright for just a second, the trademark in Mickey 361 00:20:46,040 --> 00:20:50,960 Speaker 3: Mouse continues, and if you do anything that suggests that 362 00:20:51,040 --> 00:20:54,960 Speaker 3: your use of the Mickey Mouse character somehow connects you 363 00:20:55,560 --> 00:20:58,720 Speaker 3: or associates you, or you are somehow affiliated with Disney, 364 00:20:58,720 --> 00:21:01,160 Speaker 3: you're going to get a trademark clause set aside copyright, 365 00:21:01,280 --> 00:21:03,880 Speaker 3: and that will be a very very successful lawsuit. 366 00:21:03,920 --> 00:21:06,679 Speaker 1: I think, going back to the Mickey and the copyright, 367 00:21:07,040 --> 00:21:10,440 Speaker 1: he can be colorized. But suppose they put his shorts 368 00:21:10,440 --> 00:21:15,080 Speaker 1: in the Mickey Mouse red the classic colors of today's 369 00:21:15,080 --> 00:21:17,520 Speaker 1: Mickey Mouse. I mean, would Disney fight over that? 370 00:21:17,880 --> 00:21:20,040 Speaker 3: I don't know if Disney would fight over that. I 371 00:21:20,080 --> 00:21:23,200 Speaker 3: think it would be ill advised to fight over that 372 00:21:23,320 --> 00:21:28,160 Speaker 3: sort of feature. The gloves are actually in a different 373 00:21:28,520 --> 00:21:32,000 Speaker 3: realm in my view, the gloves have been a very significant, 374 00:21:32,040 --> 00:21:35,440 Speaker 3: the white clothes very significant. For quite some time now, 375 00:21:35,800 --> 00:21:39,480 Speaker 3: there have been ad campaigns involving just the gloves. I 376 00:21:39,520 --> 00:21:43,760 Speaker 3: think that's a completely different than the color of the shorts. 377 00:21:43,880 --> 00:21:46,240 Speaker 3: But I think you can see all sorts of attempts 378 00:21:46,240 --> 00:21:50,160 Speaker 3: to try to define what is and what is not allowed, 379 00:21:50,200 --> 00:21:52,879 Speaker 3: what is or what is not in the public debate. 380 00:21:53,000 --> 00:21:55,800 Speaker 3: And keep in mind, this is not the first significant 381 00:21:56,080 --> 00:21:58,840 Speaker 3: animated character to come into the public debate. Winnie the 382 00:21:58,840 --> 00:22:02,840 Speaker 3: Poop came into the public last year and almost immediately 383 00:22:02,880 --> 00:22:04,480 Speaker 3: you saw the same sort of thing happen. There is 384 00:22:04,520 --> 00:22:07,040 Speaker 3: a movie that came out called Winnie the Pooh, Blood 385 00:22:07,160 --> 00:22:10,399 Speaker 3: and Honey, which was also a horror, very bad horror 386 00:22:10,480 --> 00:22:14,360 Speaker 3: movie that used the Winnie the Pooh character, and this year, 387 00:22:14,400 --> 00:22:18,440 Speaker 3: in addition to Mickey Mouse or Steamboat Willie coming to 388 00:22:18,440 --> 00:22:22,119 Speaker 3: the public domain, you get Peter Pan and you get 389 00:22:22,480 --> 00:22:24,879 Speaker 3: Tigger from the Winnie the Pooh series because the House 390 00:22:24,920 --> 00:22:27,240 Speaker 3: on Pooh Corner is now in the public domain. That 391 00:22:27,359 --> 00:22:30,679 Speaker 3: was the first jjmummenbook in which Tiger was introduced to. 392 00:22:30,720 --> 00:22:33,560 Speaker 3: That character is now in the public domain. So you 393 00:22:33,600 --> 00:22:36,399 Speaker 3: just see a lot of this and based as you 394 00:22:36,400 --> 00:22:38,840 Speaker 3: said on that trailer that's already been put out there, 395 00:22:39,440 --> 00:22:42,400 Speaker 3: it just doesn't look like particularly good entertainment. It may 396 00:22:42,480 --> 00:22:46,080 Speaker 3: make for a good news article in Variety or Hollywood Reporter, 397 00:22:46,160 --> 00:22:48,440 Speaker 3: but it just doesn't look like it's make a lot 398 00:22:48,440 --> 00:22:49,320 Speaker 3: of money in my view. 399 00:22:49,760 --> 00:22:54,040 Speaker 1: And perhaps Tiger will be joining Winnie the Pooh and 400 00:22:54,119 --> 00:22:59,800 Speaker 1: Piglet as they slash their way through another movie, a sequel. 401 00:23:00,160 --> 00:23:03,800 Speaker 1: We'll see about that coming up next. What about that title, 402 00:23:04,240 --> 00:23:08,119 Speaker 1: Mickey's Mousetrap. I'm June Gross. When you're listening to Bloomberg, 403 00:23:08,400 --> 00:23:11,560 Speaker 1: I've been talking to intellectual property litigator Terrence Ross of 404 00:23:11,680 --> 00:23:16,080 Speaker 1: Caton Muchen Rosenman about Mickey Mouse coming into the public domain. 405 00:23:17,000 --> 00:23:22,240 Speaker 1: So what about the title of this movie, Mickey's mousetrap. 406 00:23:22,680 --> 00:23:23,679 Speaker 1: Is that a problem? 407 00:23:24,280 --> 00:23:27,520 Speaker 3: I think it's it's certainly questionable. I think if that 408 00:23:27,840 --> 00:23:31,520 Speaker 3: low budget film had hired lawyers, they would have cautioned 409 00:23:31,520 --> 00:23:34,720 Speaker 3: against using that. And I note that the untitled work 410 00:23:34,760 --> 00:23:38,800 Speaker 3: coming out by Steven Lamoret later this year, in their announcement, 411 00:23:38,840 --> 00:23:41,040 Speaker 3: they were really careful to say we're not using the 412 00:23:41,119 --> 00:23:44,640 Speaker 3: name Mickey Mouse. They're going to use Steamboat Willie throughout 413 00:23:44,680 --> 00:23:47,359 Speaker 3: the movie, and that indeed maybe the title, although at 414 00:23:47,359 --> 00:23:49,680 Speaker 3: the moment it doesn't even have a working title. And 415 00:23:49,840 --> 00:23:52,160 Speaker 3: mister Lamore was careful to talk about how the first 416 00:23:52,200 --> 00:23:56,080 Speaker 3: thing he did was hire lawyers who obviously convinced him 417 00:23:56,440 --> 00:24:00,760 Speaker 3: to use the name Steamboat Willing instead to Mickey Mouse. 418 00:24:00,960 --> 00:24:03,800 Speaker 3: And that's again an example of how you have to 419 00:24:03,920 --> 00:24:09,440 Speaker 3: navigate these potential traps to avoid generating a lawsuit by Disney. 420 00:24:09,840 --> 00:24:13,159 Speaker 3: And it's again a sign of how you can be 421 00:24:13,160 --> 00:24:15,480 Speaker 3: as creative as you want with the new product you're 422 00:24:15,480 --> 00:24:17,879 Speaker 3: bringing out, but you got to get advice from the 423 00:24:17,960 --> 00:24:19,879 Speaker 3: lawyers as to how to do this. And it seems 424 00:24:19,880 --> 00:24:21,760 Speaker 3: like there's Bill Moore. It's done a pretty good job 425 00:24:21,840 --> 00:24:24,560 Speaker 3: so far of anticipating some of the traps that might 426 00:24:24,600 --> 00:24:25,360 Speaker 3: be out there. 427 00:24:25,520 --> 00:24:32,280 Speaker 1: The Mickey Mouse traps yr resist and I just couldn't resist. Now, 428 00:24:32,520 --> 00:24:37,240 Speaker 1: some digital editors have edited the footage from Steamboat Willie 429 00:24:37,480 --> 00:24:42,199 Speaker 1: to make it sound as if Mickey's using profanity. Is 430 00:24:42,200 --> 00:24:42,760 Speaker 1: that allowed? 431 00:24:42,800 --> 00:24:43,040 Speaker 2: Now? 432 00:24:43,680 --> 00:24:47,200 Speaker 3: That's arguably not allowed. I mean the film Steamboat Willie 433 00:24:47,520 --> 00:24:50,280 Speaker 3: is out of copyright. It's in the public domain. It 434 00:24:50,320 --> 00:24:54,320 Speaker 3: can be used in that way, and the fundamental rights 435 00:24:54,359 --> 00:24:56,959 Speaker 3: such as the right to derivative works no longer exist, 436 00:24:57,440 --> 00:25:01,200 Speaker 3: so it could be changed in ways like that. As 437 00:25:01,280 --> 00:25:04,240 Speaker 3: much as the creative mind can figure out new things 438 00:25:04,280 --> 00:25:06,600 Speaker 3: to do, it can be done as long as they 439 00:25:06,600 --> 00:25:08,719 Speaker 3: don't tread on a current copyright. 440 00:25:10,000 --> 00:25:13,320 Speaker 1: So Mickey Mouse, you know, as you mentioned, it's the 441 00:25:13,359 --> 00:25:18,240 Speaker 1: Disney logo. He's everywhere in Disneyland. He represents Disney to people. 442 00:25:18,800 --> 00:25:21,399 Speaker 1: Do you think that something like Steamboat Willie will it 443 00:25:21,600 --> 00:25:26,160 Speaker 1: detract from the value of Mickey Mouse. I didn't even 444 00:25:26,200 --> 00:25:28,760 Speaker 1: know about the Winnie the Pooh movie. Has that affected 445 00:25:28,800 --> 00:25:31,040 Speaker 1: Winnie the Pooh in any way? Or are these just 446 00:25:31,560 --> 00:25:34,040 Speaker 1: sort of separate audiences. 447 00:25:34,560 --> 00:25:36,679 Speaker 3: As far as I can see, you know what's in 448 00:25:36,720 --> 00:25:41,040 Speaker 3: the public realm, there's been no impact upon the value 449 00:25:41,080 --> 00:25:46,240 Speaker 3: of Winnie the Pooh as a lovable and beloved children's 450 00:25:46,320 --> 00:25:49,800 Speaker 3: character that continues on. I assume the same will be 451 00:25:49,880 --> 00:25:53,800 Speaker 3: true of Mickey Mouse. The reality is most of these 452 00:25:54,040 --> 00:25:58,280 Speaker 3: works that have come along are really low budget and 453 00:25:59,000 --> 00:26:03,640 Speaker 3: are unlikely to catch the imagination of people, and indeed 454 00:26:03,880 --> 00:26:06,960 Speaker 3: are unlikely to be seen by their target audience, which 455 00:26:07,000 --> 00:26:11,240 Speaker 3: is really young people, because they tend to be rated 456 00:26:11,359 --> 00:26:16,240 Speaker 3: r because of the violence. So I just don't see 457 00:26:16,240 --> 00:26:20,400 Speaker 3: it happening. I know Disney has been for decades fearful 458 00:26:20,480 --> 00:26:23,240 Speaker 3: of this, but maybe those fears were misplaced. I don't 459 00:26:23,240 --> 00:26:24,240 Speaker 3: know what's. 460 00:26:24,000 --> 00:26:27,760 Speaker 1: The difference really between the trademark of Mickey Mouse and 461 00:26:27,800 --> 00:26:30,919 Speaker 1: the copyright from Mickey Mouse the New Mickey Mouse. 462 00:26:31,400 --> 00:26:36,720 Speaker 3: So the trademark is on the phrase Mickey Mouse, and 463 00:26:37,320 --> 00:26:41,520 Speaker 3: to extent that that is used in commerce to identify 464 00:26:41,680 --> 00:26:46,120 Speaker 3: a product or service of the Disney Corporation. The same 465 00:26:46,160 --> 00:26:50,120 Speaker 3: with the image the character Mickey Mouse the current There 466 00:26:50,119 --> 00:26:52,199 Speaker 3: have been multiple literations of the years, but you know, 467 00:26:52,240 --> 00:26:55,600 Speaker 3: as each one comes free, it becomes possible for you 468 00:26:55,680 --> 00:26:58,639 Speaker 3: to use that the image of that character, as long 469 00:26:58,720 --> 00:27:01,000 Speaker 3: as you do not use it in such a way 470 00:27:01,560 --> 00:27:05,800 Speaker 3: as to suggest an affiliation and an association with Disney. 471 00:27:06,280 --> 00:27:09,440 Speaker 3: You can't mislead people. And that's the tricky part where 472 00:27:09,440 --> 00:27:11,720 Speaker 3: you have about the trademark and a copyright, as is 473 00:27:11,760 --> 00:27:13,560 Speaker 3: the case here, and it's going to be a real 474 00:27:13,640 --> 00:27:16,040 Speaker 3: challenge for some of the people wanting to use the 475 00:27:16,200 --> 00:27:19,879 Speaker 3: Steamboat Willy character going forward to figure out how to 476 00:27:20,000 --> 00:27:23,160 Speaker 3: navigate in such a way that you don't open yourself 477 00:27:23,240 --> 00:27:26,680 Speaker 3: up for a charge of trademark infringement by suggesting the 478 00:27:26,720 --> 00:27:31,200 Speaker 3: association or affiliation with Disney in this horror vein. It's 479 00:27:31,280 --> 00:27:34,520 Speaker 3: hard to see that happening. Take this new movie that's 480 00:27:34,560 --> 00:27:38,080 Speaker 3: already been filmed barre at Mickey's mouse Trap, and you 481 00:27:38,119 --> 00:27:41,680 Speaker 3: take that jury or to a judge, I think or say, 482 00:27:42,000 --> 00:27:44,440 Speaker 3: no reasonable person is going to think that this has 483 00:27:44,480 --> 00:27:47,600 Speaker 3: anything to do with Disney, because Disney would never denigrate 484 00:27:47,720 --> 00:27:50,840 Speaker 3: its principal brand this way. And that's the test is 485 00:27:51,080 --> 00:27:54,720 Speaker 3: what would a reasonable person in the marketplace think upon 486 00:27:54,800 --> 00:27:58,240 Speaker 3: seeing the new work, And it's just unlikely that they 487 00:27:58,560 --> 00:28:00,840 Speaker 3: think it's associated with Disney. But you've got to be 488 00:28:00,880 --> 00:28:04,560 Speaker 3: careful if you move outside of obvious areas such as 489 00:28:04,920 --> 00:28:07,760 Speaker 3: horror pornography and things like that that clearly aren't going 490 00:28:07,760 --> 00:28:10,560 Speaker 3: to be associated with Disney. And as Disney starts to move, 491 00:28:10,760 --> 00:28:14,280 Speaker 3: as they just recently have done into R rated films. 492 00:28:14,400 --> 00:28:16,480 Speaker 3: They made themselves blurred the line a little bit. 493 00:28:17,160 --> 00:28:20,600 Speaker 1: Also, several important literary works have entered into the public 494 00:28:20,640 --> 00:28:25,240 Speaker 1: domain along with Mickey Mouse, including D. H. Lawrence's novel 495 00:28:25,720 --> 00:28:29,760 Speaker 1: Lady Chatterly's Lover, So that means a person could just 496 00:28:29,960 --> 00:28:32,000 Speaker 1: copy that novel and sell it. 497 00:28:32,400 --> 00:28:35,080 Speaker 3: Absolutely, you could take it to the xerox machine, take 498 00:28:35,119 --> 00:28:37,879 Speaker 3: the book to the Xerox machine, run off copies, and 499 00:28:37,920 --> 00:28:39,680 Speaker 3: then take it out in the street and hawk it. 500 00:28:39,920 --> 00:28:43,760 Speaker 3: There's actually a major industry for exactly this, not in 501 00:28:43,840 --> 00:28:46,480 Speaker 3: the way I described it, but there are entire publishing 502 00:28:46,480 --> 00:28:51,240 Speaker 3: houses predicated upon waiting for significant works to come into 503 00:28:51,240 --> 00:28:53,960 Speaker 3: the public domain and then resell them because they don't 504 00:28:53,960 --> 00:28:56,600 Speaker 3: have fail licensing fee. They usually will do them in 505 00:28:56,640 --> 00:29:00,120 Speaker 3: a fancy leather bound cover and you gilded page and 506 00:29:00,280 --> 00:29:01,960 Speaker 3: is going to make it sort of a collector's edition. 507 00:29:02,360 --> 00:29:05,040 Speaker 3: That's one format. Another format is the really cheap mass 508 00:29:05,080 --> 00:29:09,080 Speaker 3: market paperback for high school and college class as the 509 00:29:09,120 --> 00:29:12,560 Speaker 3: extent that those use real hard paperbacks anymore. 510 00:29:12,920 --> 00:29:18,160 Speaker 1: Worldwide. Steamboat Willie is protected in some countries until at 511 00:29:18,240 --> 00:29:21,920 Speaker 1: least twenty forty two, and these movies are likely going 512 00:29:21,960 --> 00:29:25,880 Speaker 1: to be on the internet, so can Disney stop them 513 00:29:26,360 --> 00:29:27,360 Speaker 1: in other countries? 514 00:29:28,360 --> 00:29:31,760 Speaker 3: Disney cans stop them being shown in certain countries. The 515 00:29:31,800 --> 00:29:36,320 Speaker 3: copyright laws because of certain international treaties, are broadly similar, 516 00:29:36,680 --> 00:29:40,040 Speaker 3: but the extent of the term of the copyright it's 517 00:29:40,120 --> 00:29:45,800 Speaker 3: duration does have minor variances in countries. Most countries are 518 00:29:45,840 --> 00:29:49,760 Speaker 3: similar to the US model. We now with new works 519 00:29:50,080 --> 00:29:53,640 Speaker 3: give a duration of for a corporation, a corporately owned 520 00:29:53,720 --> 00:29:58,239 Speaker 3: copyright ninety five years from publication. If it's owned by 521 00:29:58,240 --> 00:30:00,600 Speaker 3: the author, it's the life of the author plus si years, 522 00:30:00,600 --> 00:30:03,880 Speaker 3: sort of violating the Mark Twain premise. But there are 523 00:30:03,920 --> 00:30:06,880 Speaker 3: other countries that have picked other dates, and some of 524 00:30:06,920 --> 00:30:08,959 Speaker 3: them are shorter than ours, and some of them are longer, 525 00:30:08,960 --> 00:30:12,520 Speaker 3: and some of those countries with longer copyright terms. You're 526 00:30:12,520 --> 00:30:15,440 Speaker 3: gonna have to be careful, and the Internet is one 527 00:30:15,440 --> 00:30:17,400 Speaker 3: place where you can run a fout of that. You 528 00:30:17,560 --> 00:30:19,320 Speaker 3: just got to be careful to make sure that you 529 00:30:19,400 --> 00:30:21,000 Speaker 3: block it going into those countries. 530 00:30:21,520 --> 00:30:25,400 Speaker 1: Public Domain day, January first, always an interesting time to 531 00:30:25,480 --> 00:30:28,920 Speaker 1: talk to you, Terry, Thanks so much. That's Terrence Ross, 532 00:30:28,960 --> 00:30:32,200 Speaker 1: a partner at Katon Euchen Rosenman and that's it for 533 00:30:32,240 --> 00:30:35,239 Speaker 1: this edition of the Bloomberg Law Podcast. Remember you've can 534 00:30:35,320 --> 00:30:38,280 Speaker 1: always get the latest legal news by subscribing and listening 535 00:30:38,280 --> 00:30:41,960 Speaker 1: to the show on Apple Podcasts, Spotify, and at Bloomberg 536 00:30:42,040 --> 00:30:46,120 Speaker 1: dot com, slash podcast, slash Law. I'm June Grosso and 537 00:30:46,200 --> 00:30:47,480 Speaker 1: this is Bloomberg