1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,119 --> 00:00:13,000 Speaker 1: The copyright clash over Andy Warhol's Prince series is a 3 00:00:13,039 --> 00:00:17,200 Speaker 1: case that could reshape the fair use defense to copyright infringement, 4 00:00:17,520 --> 00:00:20,799 Speaker 1: But the Supreme Court oral arguments were free, willing and 5 00:00:20,920 --> 00:00:25,360 Speaker 1: punctuated by comic relief, like this from Justices Clarence Thomas 6 00:00:25,360 --> 00:00:29,760 Speaker 1: and Elena Kagan. Let's say that I'm both a Prince fan, 7 00:00:29,880 --> 00:00:37,720 Speaker 1: which I was in the eighties and no longer. Well 8 00:00:39,960 --> 00:00:45,320 Speaker 1: only on Thursday night, the justices were considering whether Andy 9 00:00:45,360 --> 00:00:49,240 Speaker 1: Warhol was within his rights to create fifteen silk screens 10 00:00:49,280 --> 00:00:52,919 Speaker 1: of prints using a copyrighted photograph of the musician by 11 00:00:53,040 --> 00:00:56,560 Speaker 1: rock and roll photographer Lynn Goldsmith. In trying to decide 12 00:00:56,560 --> 00:01:00,680 Speaker 1: if Warhol's work had meaningfully transformed the photograp f the 13 00:01:00,800 --> 00:01:05,120 Speaker 1: Justice is posed hypotheticals. Let's say that I'm also a 14 00:01:05,200 --> 00:01:09,959 Speaker 1: Syracuse fan, and I decided to make one of those 15 00:01:10,000 --> 00:01:15,320 Speaker 1: big blow up posters of orange prints and change the 16 00:01:15,400 --> 00:01:18,960 Speaker 1: colors a little bit around the edges and put go 17 00:01:19,280 --> 00:01:23,360 Speaker 1: orange underneath. Would you sue me? But some of the justices, 18 00:01:23,520 --> 00:01:27,640 Speaker 1: including the Chief Justice, pointed out the transformative effect of 19 00:01:27,680 --> 00:01:31,639 Speaker 1: Warhol's work. It's not just that Warhol has a different style, 20 00:01:32,160 --> 00:01:37,399 Speaker 1: is that Unlike Goldsmith's photograph, Warholes sends a message about 21 00:01:37,440 --> 00:01:41,360 Speaker 1: the deep personalization of modern culture and celebrity status and 22 00:01:41,440 --> 00:01:45,640 Speaker 1: the iconic and it goes through the different features to 23 00:01:45,720 --> 00:01:48,520 Speaker 1: support that. So it's not just a different style, it's 24 00:01:48,560 --> 00:01:51,640 Speaker 1: a different purpose. One is the commentary on modern society. 25 00:01:51,840 --> 00:01:55,200 Speaker 1: The other is to show what Prince looks like. My 26 00:01:55,280 --> 00:01:59,240 Speaker 1: guest is intellectual property litigator Terence Ross, a partner caton 27 00:01:59,360 --> 00:02:03,280 Speaker 1: uchun rose Men, described the issue here. This appeal to 28 00:02:03,320 --> 00:02:06,360 Speaker 1: the Supreme Court rises out of a lawsuit for copyright 29 00:02:06,360 --> 00:02:11,920 Speaker 1: infringement filed by Lynn Goldsmith against the Andy Warhol Foundation. 30 00:02:12,480 --> 00:02:17,040 Speaker 1: Um Lynn Goldsmiths was relatively famous photographer from the seventies 31 00:02:17,080 --> 00:02:21,960 Speaker 1: and eighties. UM famous for her photographs of rock stars. 32 00:02:21,960 --> 00:02:25,560 Speaker 1: She has photographed I think I saw more than one 33 00:02:25,720 --> 00:02:31,040 Speaker 1: hundred album covers of rock bands, which is incredible. And 34 00:02:32,280 --> 00:02:36,919 Speaker 1: she was commissioned by Newsweek, which was doing a piece 35 00:02:37,160 --> 00:02:40,240 Speaker 1: on a young and up and coming rock star by 36 00:02:40,240 --> 00:02:43,200 Speaker 1: the name of Prince. She was commissioned to do a 37 00:02:43,280 --> 00:02:46,600 Speaker 1: photograph of him that would be used on the cover, 38 00:02:47,360 --> 00:02:53,359 Speaker 1: and she didn't absolutely iconic facial portrait of him um 39 00:02:54,000 --> 00:03:00,200 Speaker 1: which really demonstrates the creativity of photography. George shows is 40 00:03:00,360 --> 00:03:05,240 Speaker 1: a very, very vulnerable young person who's obviously afraid of 41 00:03:05,280 --> 00:03:08,320 Speaker 1: the limelight at that point of his career. Now, the 42 00:03:08,320 --> 00:03:11,760 Speaker 1: curious thing the photo was not actually used by Newsweek 43 00:03:11,960 --> 00:03:16,880 Speaker 1: in his Magnanique magazine story, opting instead for live photos 44 00:03:16,919 --> 00:03:20,639 Speaker 1: of his live performance, but it was widely regarded as 45 00:03:21,120 --> 00:03:25,600 Speaker 1: a great photograph of the early eighties. So move forward 46 00:03:25,680 --> 00:03:30,760 Speaker 1: time in Prince has become a significant rock star and 47 00:03:30,880 --> 00:03:34,560 Speaker 1: celebrity in his own right, really a superstar of the 48 00:03:34,639 --> 00:03:39,600 Speaker 1: music scene. And Vanity Fair magazine commissioned Andy Warhol to 49 00:03:39,760 --> 00:03:44,920 Speaker 1: do an illustration for the cover of its magazine relating 50 00:03:44,960 --> 00:03:48,920 Speaker 1: to the article it's doing on Prince, and they expressly 51 00:03:49,040 --> 00:03:53,480 Speaker 1: licensed this photo from Lynn Goldsmith. The Prince give it 52 00:03:53,560 --> 00:03:57,320 Speaker 1: to Andy Warhol and say we want you to use 53 00:03:57,440 --> 00:04:02,560 Speaker 1: this photograph from Lynn Goldsmith as the basis for your illustration, 54 00:04:03,160 --> 00:04:07,080 Speaker 1: And without apparently Vanity Fair or Wynn Goldsmith knowing it, 55 00:04:07,560 --> 00:04:11,920 Speaker 1: he goes out and does a whole series of brightly 56 00:04:11,960 --> 00:04:16,120 Speaker 1: colored silk screens based on the photograph. And when I 57 00:04:16,120 --> 00:04:18,960 Speaker 1: say based on it, it really takes the photograph and 58 00:04:19,040 --> 00:04:22,480 Speaker 1: simply makes some changes to it, in particular adding color. 59 00:04:22,839 --> 00:04:26,479 Speaker 1: The magazine Vanity Fair comes out with the color shot 60 00:04:26,600 --> 00:04:30,200 Speaker 1: that Lynn Goldsmith is expecting to see there. Andy Warhol 61 00:04:30,279 --> 00:04:34,360 Speaker 1: then dies a couple of years later, thinking early, and 62 00:04:34,600 --> 00:04:38,800 Speaker 1: all of his rights and assets passed to the Andy 63 00:04:38,839 --> 00:04:43,119 Speaker 1: Warhol Foundation. A number of years later, Vanity Fair after 64 00:04:43,240 --> 00:04:48,239 Speaker 1: Prince dies, wants to sort of revisit this famous Vanity 65 00:04:48,320 --> 00:04:54,440 Speaker 1: Fair piece that it did and asked the Andy Warhol 66 00:04:54,520 --> 00:04:58,680 Speaker 1: Foundation for permission to use one of these silk screens 67 00:04:58,680 --> 00:05:02,000 Speaker 1: of Brents that Warhol had done in eighty four, and 68 00:05:02,040 --> 00:05:04,040 Speaker 1: they put it on the cover of Vanni magazine. This 69 00:05:04,200 --> 00:05:07,719 Speaker 1: is two thousand six. Lynn Goldsmith sees it on the 70 00:05:07,760 --> 00:05:10,520 Speaker 1: news stand and she says, wait a minute, I didn't 71 00:05:10,600 --> 00:05:16,680 Speaker 1: license that, and calls up Vanity Fair. They say, oh, um, well, 72 00:05:16,720 --> 00:05:19,760 Speaker 1: we got it from the rights from the Andy Warhol Foundation, 73 00:05:20,040 --> 00:05:23,800 Speaker 1: which says that they owned the copyright. And so Lynn 74 00:05:23,800 --> 00:05:27,080 Speaker 1: Goldsmith calls up the Andy Warhol Foundation, which takes it 75 00:05:27,120 --> 00:05:32,520 Speaker 1: a very aggressive position, insisting that they've got the copyright 76 00:05:32,520 --> 00:05:34,200 Speaker 1: on it, that she has no rights on it, and 77 00:05:35,080 --> 00:05:37,159 Speaker 1: they're not about to pay her anything by way of 78 00:05:37,160 --> 00:05:39,840 Speaker 1: the license. Te and indeed, they seem to be so 79 00:05:39,920 --> 00:05:42,280 Speaker 1: confident in their positions that they go to court and 80 00:05:42,279 --> 00:05:46,680 Speaker 1: filed declaratory judgment lawsuits saying, we're seeking a declaration that 81 00:05:46,880 --> 00:05:51,279 Speaker 1: we have not infringed upon Lynn Goldsmith's photograph based on 82 00:05:51,360 --> 00:05:54,719 Speaker 1: the doctrine of fair use, which is a complete defense 83 00:05:54,800 --> 00:05:59,320 Speaker 1: to copyright infringement. The trial court in New York agrees 84 00:05:59,400 --> 00:06:03,560 Speaker 1: with them and grants them summary judgments, saying that the 85 00:06:03,640 --> 00:06:09,360 Speaker 1: fair used defense protects these Andy Warhol Folk screens of Prince. 86 00:06:09,720 --> 00:06:12,719 Speaker 1: Lying Goldsmith takes it up on appeal to the Second Circuit, 87 00:06:13,560 --> 00:06:15,640 Speaker 1: and the Second Circuit says, wait a minute, what are 88 00:06:15,680 --> 00:06:18,960 Speaker 1: you talking about. Fair use does not cover this, and 89 00:06:19,000 --> 00:06:22,920 Speaker 1: they rule in favor of Lying Goldsmith, going to the 90 00:06:22,960 --> 00:06:25,960 Speaker 1: extreme extent of saying that summary judgment should be granted 91 00:06:26,000 --> 00:06:28,360 Speaker 1: to her that she wins, not even sending it back 92 00:06:28,400 --> 00:06:32,360 Speaker 1: for further reconsideration her jury trialgy She just wins um 93 00:06:32,520 --> 00:06:36,280 Speaker 1: and the Warhol Foundation has now appealed that decision from 94 00:06:36,320 --> 00:06:40,120 Speaker 1: Second Circuit to the Supreme Court. Supreme Court held very 95 00:06:40,200 --> 00:06:45,480 Speaker 1: interesting and lengthy arguments on Wednesday. Is the question whether 96 00:06:45,960 --> 00:06:53,880 Speaker 1: Warhol's work transformed Goldsmith's photograph? Well? Is that simple? To 97 00:06:54,080 --> 00:06:57,560 Speaker 1: understand what's going on here, what has to understand a 98 00:06:57,640 --> 00:06:59,680 Speaker 1: little bit about the fair used defense. The fair used 99 00:06:59,680 --> 00:07:03,640 Speaker 1: defense statutory written into the Copyright Act. It says that 100 00:07:03,680 --> 00:07:07,520 Speaker 1: there shall be no copyright infringement if secondary work is 101 00:07:07,600 --> 00:07:10,040 Speaker 1: taking advantage of this fair used defense. The fair used 102 00:07:10,040 --> 00:07:13,840 Speaker 1: defense says courts should consider four non exclusive factors. The 103 00:07:13,960 --> 00:07:17,440 Speaker 1: very first factor, and what's widely regarded as the most important, 104 00:07:17,680 --> 00:07:19,240 Speaker 1: is for the court to look at the purpose and 105 00:07:19,360 --> 00:07:23,040 Speaker 1: character of the secondary use. There are three other factors 106 00:07:23,040 --> 00:07:26,040 Speaker 1: that all have to be considered, but that's usually considered 107 00:07:26,040 --> 00:07:29,040 Speaker 1: the most important, and in a very famous decision by 108 00:07:29,040 --> 00:07:32,560 Speaker 1: the Second Circuit a few years ago, Second Circuit per 109 00:07:32,640 --> 00:07:36,600 Speaker 1: Judge Leavell said that the key to this one factor 110 00:07:37,200 --> 00:07:42,160 Speaker 1: is whether or not the secondary work somehow transformed the 111 00:07:42,200 --> 00:07:45,360 Speaker 1: original work. And the Supreme Court has since bought into 112 00:07:45,400 --> 00:07:48,720 Speaker 1: this transformative use test and is now part of the law, 113 00:07:48,800 --> 00:07:51,120 Speaker 1: even though it's not in the statute. But I would 114 00:07:51,120 --> 00:07:53,600 Speaker 1: say that the issue up on an appeal here spring 115 00:07:53,600 --> 00:07:56,760 Speaker 1: courts is not whether or not that's the law. It's 116 00:07:56,800 --> 00:08:00,640 Speaker 1: not whether or not the work is transformative. The question 117 00:08:00,680 --> 00:08:03,920 Speaker 1: really is what does it mean? What is required for 118 00:08:04,040 --> 00:08:08,040 Speaker 1: work to be transformative How do you transform a work 119 00:08:08,080 --> 00:08:11,480 Speaker 1: in such a way that the fair use defense applies. 120 00:08:11,800 --> 00:08:16,200 Speaker 1: There are many transformative uses that do not constitute fair use, 121 00:08:16,440 --> 00:08:19,400 Speaker 1: and so the key here at issue for the Spring 122 00:08:19,480 --> 00:08:22,640 Speaker 1: Court is to give some sort of guidance, some sort 123 00:08:22,680 --> 00:08:26,320 Speaker 1: of definition to low courts as to what constitutes a 124 00:08:26,360 --> 00:08:29,520 Speaker 1: transformative use that is entitled to take advantage of the 125 00:08:29,560 --> 00:08:33,959 Speaker 1: fair use defense. At one point, Justice Alito question whether 126 00:08:34,120 --> 00:08:37,720 Speaker 1: judges were qualified to focus on the meaning of the 127 00:08:37,760 --> 00:08:39,920 Speaker 1: work or was that a job that should be left 128 00:08:39,920 --> 00:08:42,720 Speaker 1: to art critics. And I remember that the Second Circuit 129 00:08:42,840 --> 00:08:46,640 Speaker 1: criticized the district court judge for being an art critic. 130 00:08:46,960 --> 00:08:49,120 Speaker 1: But how do you get out of this without being 131 00:08:49,240 --> 00:08:51,840 Speaker 1: somewhat of an art critic. Well, it's a great question. 132 00:08:52,000 --> 00:08:56,720 Speaker 1: And the Second Circuit, in saying that district court judges 133 00:08:56,760 --> 00:08:59,679 Speaker 1: trial judges are not allowed to be art critics, are 134 00:08:59,720 --> 00:09:02,959 Speaker 1: not out to sit in judgment on the artistic merits 135 00:09:03,000 --> 00:09:06,080 Speaker 1: of work, take advantage of a long history going back 136 00:09:06,160 --> 00:09:08,600 Speaker 1: over a hundred years in that court in the Second 137 00:09:08,640 --> 00:09:13,360 Speaker 1: Circuit with respect to artwork, music work, dramatic works such 138 00:09:13,360 --> 00:09:17,640 Speaker 1: as plays and adels of saying that trial courts judges 139 00:09:17,720 --> 00:09:22,079 Speaker 1: cannot be critics of the work. And so that's a 140 00:09:22,200 --> 00:09:26,559 Speaker 1: very well grounded position to the Second Circuit took the 141 00:09:26,679 --> 00:09:30,560 Speaker 1: issue you raises a very good one is well, if 142 00:09:30,600 --> 00:09:33,959 Speaker 1: that's true, what do you do? And I think it's 143 00:09:34,000 --> 00:09:39,240 Speaker 1: somewhat enlightening that the response that the Council for the 144 00:09:39,280 --> 00:09:43,480 Speaker 1: Andy Warhol Foundation gave to that question from Alito is 145 00:09:43,559 --> 00:09:46,920 Speaker 1: that the judge should look at the work and and 146 00:09:47,000 --> 00:09:51,720 Speaker 1: decide whether or not it is transformative or not, in 147 00:09:51,840 --> 00:09:55,840 Speaker 1: essence betting the farm on the argument that the Second Circuit, 148 00:09:56,120 --> 00:09:59,000 Speaker 1: in this long history of judges not being art critics, 149 00:09:59,080 --> 00:10:02,240 Speaker 1: is just wrong a matter of law. It's a very 150 00:10:02,280 --> 00:10:06,800 Speaker 1: strong and aggressive position that the Warhol Foundation. I mean, 151 00:10:07,240 --> 00:10:09,360 Speaker 1: you have to remember here, Jude, what justice a leader 152 00:10:09,600 --> 00:10:12,880 Speaker 1: started off. That colloquy was saying was, well, if Mr 153 00:10:12,960 --> 00:10:17,280 Speaker 1: Warhol were alive today, what would he say was the 154 00:10:17,320 --> 00:10:21,640 Speaker 1: meaning of this work that transformed it? He wouldn't tell you, though, right? 155 00:10:22,400 --> 00:10:26,880 Speaker 1: Can't you actually right? And neither would counsel. Warhol Foundation 156 00:10:27,120 --> 00:10:30,679 Speaker 1: essentially says, well, Mr Warhol's testimony is not available, basically, 157 00:10:30,760 --> 00:10:33,120 Speaker 1: but it wouldn't have any meaning. Even if it did, 158 00:10:33,240 --> 00:10:35,120 Speaker 1: It's up to the judge to look at it, which 159 00:10:35,160 --> 00:10:37,520 Speaker 1: kind of surprised me which side did better in the 160 00:10:37,559 --> 00:10:40,600 Speaker 1: rural arguments. Would you say so? I was a little 161 00:10:40,600 --> 00:10:44,640 Speaker 1: bit taken aback the extent to which you could place 162 00:10:44,920 --> 00:10:48,640 Speaker 1: certain justices on one side or the other. We've talked 163 00:10:48,640 --> 00:10:52,240 Speaker 1: about this before, June, but the passing of Justice Ginsburg 164 00:10:52,800 --> 00:10:56,559 Speaker 1: and the retirement of Justice Bryer has transformed this court 165 00:10:56,679 --> 00:10:59,800 Speaker 1: with respect the copyright law. Those two justices were the 166 00:11:00,000 --> 00:11:03,440 Speaker 1: oposide ends of the spectrum. Justice Ginsburg taking a position 167 00:11:03,480 --> 00:11:07,359 Speaker 1: that copyright should be strongly enforced, a really strong advocate 168 00:11:07,440 --> 00:11:10,960 Speaker 1: for strong, vigorous copyright protection, and Justice Brian was at 169 00:11:11,000 --> 00:11:14,400 Speaker 1: the other end of the spectrum, opposing strong copyright protection. 170 00:11:14,640 --> 00:11:17,880 Speaker 1: And so we were all wondering in the copyright community 171 00:11:18,240 --> 00:11:21,839 Speaker 1: what this new court would um do in this really 172 00:11:21,840 --> 00:11:23,920 Speaker 1: important case. And keep in mind, June, this is the 173 00:11:23,960 --> 00:11:28,240 Speaker 1: first time since that the Supreme Court has taken up 174 00:11:28,360 --> 00:11:31,920 Speaker 1: a fair use question. And so it's not just a 175 00:11:32,000 --> 00:11:35,920 Speaker 1: really important notal point in copyright law that we're faced with, 176 00:11:36,040 --> 00:11:38,040 Speaker 1: but a point in time in which we don't have 177 00:11:38,200 --> 00:11:41,880 Speaker 1: the two principals advocates for the competing positions on the 178 00:11:41,920 --> 00:11:45,600 Speaker 1: Court anymore. And yet, notwithstanding that, it seemed that there 179 00:11:45,640 --> 00:11:49,640 Speaker 1: were justices willing to step up and fill those rules. 180 00:11:49,720 --> 00:11:53,800 Speaker 1: So on my scorecard here I had Justice Kagan and 181 00:11:53,920 --> 00:11:57,080 Speaker 1: Chief Justice roberts in the camp that would say that 182 00:11:57,160 --> 00:12:01,120 Speaker 1: this was a fair use. Adjustice roberts In. Tickler just 183 00:12:01,240 --> 00:12:05,480 Speaker 1: came flat out and said, this is a different purpose. 184 00:12:05,720 --> 00:12:09,400 Speaker 1: The Warhol Prince had a different purpose from the photo. 185 00:12:09,720 --> 00:12:13,840 Speaker 1: He said, Warhol sends a message about the de personalization 186 00:12:13,880 --> 00:12:17,600 Speaker 1: of modern culture and celebrity status for all practical purposes, 187 00:12:17,600 --> 00:12:21,079 Speaker 1: that he's voting in favor of the Warhol Foundation. Hagan's 188 00:12:21,080 --> 00:12:24,760 Speaker 1: remarks took a similar approach. And then on the other side, 189 00:12:24,880 --> 00:12:28,240 Speaker 1: I had what I think are for justices for the 190 00:12:28,240 --> 00:12:31,800 Speaker 1: position that this is not fair use. Justice Thomas, Justice Alito, 191 00:12:31,960 --> 00:12:36,080 Speaker 1: Justice Barrett, and Justice Cantanji Brown, all of whom posed 192 00:12:36,240 --> 00:12:41,200 Speaker 1: hypothetical to the Council for the Warhol Foundation that sort 193 00:12:41,200 --> 00:12:44,320 Speaker 1: of took this whole transformative use a new meaning test 194 00:12:44,400 --> 00:12:48,120 Speaker 1: to its ridiculous limits. Justice Alito, i guess, asked the question, well, 195 00:12:48,160 --> 00:12:51,600 Speaker 1: if you'd simply change the photos so that Prince was smiling, 196 00:12:51,640 --> 00:12:53,960 Speaker 1: would that be a transformative use? Because it changed the 197 00:12:54,000 --> 00:12:57,280 Speaker 1: meaning from a vulnerable young rock star to a happy 198 00:12:57,400 --> 00:13:01,400 Speaker 1: rock star, would that be good enough? Similar Justice Thomas, 199 00:13:01,679 --> 00:13:05,080 Speaker 1: he asked a really interesting question, what if all you 200 00:13:05,120 --> 00:13:08,560 Speaker 1: had done was colorized the edges of the black and 201 00:13:08,559 --> 00:13:11,280 Speaker 1: white photograph of prints such they were, they were the 202 00:13:11,320 --> 00:13:15,080 Speaker 1: colors of Syracuse University, and you were intending to send 203 00:13:15,120 --> 00:13:19,280 Speaker 1: a commentary on supporting the sports teams at Syracuse University. 204 00:13:19,440 --> 00:13:24,160 Speaker 1: These sorts of hypothetical posts are typically intended by judges 205 00:13:24,360 --> 00:13:28,040 Speaker 1: to point out the ridiculousness of somebody's position, and so 206 00:13:28,200 --> 00:13:32,000 Speaker 1: the fact that those four justices all went that route 207 00:13:32,000 --> 00:13:35,000 Speaker 1: with sort of extreme hypotheticals sent a message to me 208 00:13:35,120 --> 00:13:39,360 Speaker 1: that they are leaning towards this not being a fair youth. 209 00:13:39,720 --> 00:13:42,160 Speaker 1: I will point out the Warhol Foundation to the extent 210 00:13:42,280 --> 00:13:44,079 Speaker 1: I have this right at this point of school, I 211 00:13:44,120 --> 00:13:46,320 Speaker 1: would have to run the tables on the other three 212 00:13:46,640 --> 00:13:51,600 Speaker 1: to get there. It's a very challenging case. Both sides 213 00:13:51,640 --> 00:13:55,480 Speaker 1: say the potential stakes here are enormous, not just on 214 00:13:55,559 --> 00:13:59,719 Speaker 1: the art world, but on publishing, on movies and so on. 215 00:14:00,000 --> 00:14:03,360 Speaker 1: Are they exaggerating or do you agree with that? Absolutely? 216 00:14:03,679 --> 00:14:06,120 Speaker 1: This is going to be one of the most significant 217 00:14:06,240 --> 00:14:10,280 Speaker 1: decisions with respect to secondary works of all time in 218 00:14:10,320 --> 00:14:13,680 Speaker 1: Anglo facts and law. At issue is control of the 219 00:14:13,679 --> 00:14:16,920 Speaker 1: original work by the artists for the original work, and 220 00:14:17,000 --> 00:14:19,640 Speaker 1: to the extent that this is held to be not 221 00:14:20,120 --> 00:14:23,520 Speaker 1: a fair use, I think the critics are correct that 222 00:14:23,520 --> 00:14:27,840 Speaker 1: that will mean that the original artists have much more 223 00:14:28,000 --> 00:14:31,880 Speaker 1: control over their works. The question is whether or not 224 00:14:32,120 --> 00:14:36,080 Speaker 1: the next step in that argument is correct. Does giving 225 00:14:36,280 --> 00:14:42,120 Speaker 1: the original artists more control over the work inhibit future creativity? 226 00:14:42,240 --> 00:14:44,840 Speaker 1: And as we heard in the or argument, there was 227 00:14:44,880 --> 00:14:49,240 Speaker 1: a lot of discussion of licensing. Doesn't the right to 228 00:14:49,520 --> 00:14:53,680 Speaker 1: license these original works to make changes allow you to 229 00:14:54,120 --> 00:14:57,000 Speaker 1: still engage in level of creativity? This was not said 230 00:14:57,160 --> 00:15:00,880 Speaker 1: in court, but look, you had very wealthy entities involved here. 231 00:15:00,880 --> 00:15:05,160 Speaker 1: You had Vanity Fair, Andy Warhol. They clearly had the 232 00:15:05,200 --> 00:15:11,440 Speaker 1: wherewithal to license the photograph again from Lynn Goldsmith in 233 00:15:11,600 --> 00:15:15,000 Speaker 1: order to do these sixteen chlorized folk screens, but they 234 00:15:15,080 --> 00:15:18,520 Speaker 1: deliberately chose not to. It strikes me that Lynn Goldsmith 235 00:15:19,080 --> 00:15:22,680 Speaker 1: was entitled to some benefit for her creativity in the 236 00:15:22,720 --> 00:15:26,840 Speaker 1: first place, which she was being deprived of. So yes, 237 00:15:27,000 --> 00:15:31,480 Speaker 1: there is going to be a change in the bargaining 238 00:15:31,560 --> 00:15:37,760 Speaker 1: power amongst artists as to secondary uses of original works, 239 00:15:38,200 --> 00:15:40,920 Speaker 1: whether or not stops creativity. And I just don't think so, 240 00:15:41,080 --> 00:15:44,920 Speaker 1: Thanks so much, Terry. That's intellectual property litigator Terence ross 241 00:15:45,000 --> 00:15:50,840 Speaker 1: A partner Captain Eugen Rosenmanton. The Solicitor General's Office remains 242 00:15:50,920 --> 00:15:55,640 Speaker 1: the diversity pipeline for Supreme Court advocacy. The office, along 243 00:15:55,640 --> 00:15:59,359 Speaker 1: with attorneys from state and local governments, sent the majority 244 00:15:59,360 --> 00:16:02,200 Speaker 1: of women to the lecture and last term. In total, 245 00:16:02,320 --> 00:16:06,920 Speaker 1: twenty three female government attorneys argued during the term, while 246 00:16:07,000 --> 00:16:10,640 Speaker 1: law firms and academia sent fifteen. Joining me is Bloomberg 247 00:16:10,720 --> 00:16:15,000 Speaker 1: Law Supreme Court reporter Kimberly Strawbridge Robinson who keeps track 248 00:16:15,040 --> 00:16:18,760 Speaker 1: of the numbers. So we've talked before about the number 249 00:16:18,760 --> 00:16:22,480 Speaker 1: of men arguing at the Supreme Court vastly outnumbering the 250 00:16:22,560 --> 00:16:26,880 Speaker 1: number of women. Four women are arguing in the October session. 251 00:16:27,080 --> 00:16:29,400 Speaker 1: How does that stack up? Is that about the same 252 00:16:29,440 --> 00:16:32,440 Speaker 1: as usual or better than usual? Well, it's about the 253 00:16:32,480 --> 00:16:36,960 Speaker 1: same as usual. So typically we see between twelve of 254 00:16:37,080 --> 00:16:40,480 Speaker 1: arguments at the Supreme Court being made by women. This time, 255 00:16:40,600 --> 00:16:42,800 Speaker 1: you know, four out of twenty two is eighteen percent. 256 00:16:42,880 --> 00:16:44,840 Speaker 1: So it's right in the middle of what we're typically 257 00:16:44,920 --> 00:16:46,680 Speaker 1: used to. But I think you know one thing to 258 00:16:46,680 --> 00:16:49,680 Speaker 1: notice we we talk about um women, I think you know, 259 00:16:49,760 --> 00:16:52,840 Speaker 1: to some expense, it's low hanging fruit, but it really 260 00:16:52,880 --> 00:16:55,600 Speaker 1: signals a lack of diversity across the board, you know, 261 00:16:55,640 --> 00:16:58,560 Speaker 1: not just with gender, but with race, with you know, 262 00:16:59,040 --> 00:17:03,120 Speaker 1: attorneys with disabilities, with military service, just all kinds of 263 00:17:03,160 --> 00:17:05,960 Speaker 1: this diversity that we really don't see reflected in the 264 00:17:06,000 --> 00:17:08,720 Speaker 1: advocates who argue before the Supreme Court. Two of the 265 00:17:08,720 --> 00:17:11,520 Speaker 1: women who argued in the October session are in the 266 00:17:11,560 --> 00:17:15,080 Speaker 1: Solicitor General's office. Tell us about the role of the 267 00:17:15,080 --> 00:17:19,520 Speaker 1: Solicitor General's office in getting women to the podium, Sure says, 268 00:17:19,520 --> 00:17:23,440 Speaker 1: the solicitor General's Office is the federal government's top lawyers 269 00:17:23,480 --> 00:17:26,879 Speaker 1: at the Supreme Court. They are not only argue in 270 00:17:26,960 --> 00:17:30,640 Speaker 1: cases that the federal government is officially involved in as 271 00:17:30,640 --> 00:17:33,760 Speaker 1: a party, but they argue a lot of cases as 272 00:17:33,800 --> 00:17:36,880 Speaker 1: sort of friends of the court. And so that office 273 00:17:37,200 --> 00:17:40,439 Speaker 1: isn't you know, staffed by that many attorneys. So getting 274 00:17:40,480 --> 00:17:45,320 Speaker 1: into that office almost guarantees you, you know, multiple Supreme 275 00:17:45,359 --> 00:17:49,680 Speaker 1: Court arguments in a term, which is significant. Is something 276 00:17:49,720 --> 00:17:53,400 Speaker 1: that's really hard for even really established attorneys to do 277 00:17:53,760 --> 00:17:57,000 Speaker 1: in private practice. So what that does is it allows 278 00:17:57,400 --> 00:18:00,280 Speaker 1: the attorneys who are there, who are often relatively early 279 00:18:00,320 --> 00:18:03,720 Speaker 1: in their careers to kind of build this critical mass 280 00:18:03,760 --> 00:18:06,440 Speaker 1: of Supreme Court cases that they can take out to 281 00:18:06,480 --> 00:18:09,280 Speaker 1: the world, and so people will hire them and we'll 282 00:18:09,280 --> 00:18:11,359 Speaker 1: be seeing them back at the Court again and again 283 00:18:11,560 --> 00:18:14,240 Speaker 1: for years to come. So, you know, the makeup of 284 00:18:14,280 --> 00:18:18,680 Speaker 1: the Solicitor General's Office is really really important in establishing, 285 00:18:19,040 --> 00:18:21,760 Speaker 1: you know, diversity in the future of the Supreme Court 286 00:18:21,800 --> 00:18:24,760 Speaker 1: bar The current Solicitor General is a woman, the second 287 00:18:24,800 --> 00:18:28,760 Speaker 1: to be Solicitor General the last being now Justice Elena Kagan. 288 00:18:29,240 --> 00:18:33,119 Speaker 1: So is the office making an effort to get more 289 00:18:33,160 --> 00:18:38,000 Speaker 1: women and more minorities into the office. Well, we don't know, 290 00:18:38,200 --> 00:18:42,000 Speaker 1: So the Solicitor General's Office hasn't officially said that, you know, 291 00:18:42,080 --> 00:18:44,480 Speaker 1: that's an effort that they're trying to make. But we 292 00:18:44,640 --> 00:18:48,320 Speaker 1: have seen kind of a shift in the demographics of 293 00:18:48,359 --> 00:18:52,720 Speaker 1: that office during the Trump administration, not really due to 294 00:18:53,160 --> 00:18:56,840 Speaker 1: you know, the d o j's own sort of policies 295 00:18:56,960 --> 00:18:59,160 Speaker 1: or anything like that, but just sort of the timing 296 00:18:59,400 --> 00:19:02,439 Speaker 1: of when people come and go from the office. We 297 00:19:02,520 --> 00:19:07,520 Speaker 1: saw a number of female assistant Solicitor Generals leave the office, 298 00:19:07,600 --> 00:19:09,600 Speaker 1: and we saw a real shift in the number of 299 00:19:09,600 --> 00:19:12,040 Speaker 1: women who were arguing at the court. There have been 300 00:19:12,040 --> 00:19:14,560 Speaker 1: a number of women who have been hired under the 301 00:19:14,560 --> 00:19:17,679 Speaker 1: Biden administration. I believe the three most recent hires have 302 00:19:17,800 --> 00:19:20,480 Speaker 1: all been women. So they haven't made an official statement 303 00:19:20,520 --> 00:19:22,880 Speaker 1: that that's something that they're looking for, but it sure 304 00:19:22,880 --> 00:19:24,840 Speaker 1: those seems to show in the numbers that they have 305 00:19:24,960 --> 00:19:27,760 Speaker 1: not just with women, but with also with different kinds 306 00:19:27,800 --> 00:19:31,200 Speaker 1: of diversity, um, in particular racial diversity. So you wrote 307 00:19:31,200 --> 00:19:36,520 Speaker 1: about Yarra Dubin, who recently joined the Solicitor General's office. 308 00:19:36,960 --> 00:19:40,679 Speaker 1: Do lawyers often leave law firms for a time to 309 00:19:40,800 --> 00:19:45,119 Speaker 1: do a stint in the solicitor General's office and then return, Yeah, so, 310 00:19:45,320 --> 00:19:47,680 Speaker 1: I mean it varies a little bit, but I would 311 00:19:47,680 --> 00:19:50,919 Speaker 1: say in general, you're looking at somebody who um often 312 00:19:51,040 --> 00:19:54,600 Speaker 1: comes from private practice. You know, a firm that has 313 00:19:55,119 --> 00:19:57,520 Speaker 1: you know, an appellate and Supreme Court practice, or a 314 00:19:57,520 --> 00:20:01,120 Speaker 1: boutique firm, somebody who has often clerked at the Supreme 315 00:20:01,160 --> 00:20:05,280 Speaker 1: Court before, and they will go to the Solicitor General's Office, 316 00:20:05,320 --> 00:20:08,280 Speaker 1: which is a really highly thought after position, and typically 317 00:20:08,280 --> 00:20:12,119 Speaker 1: stay there about five years before heading back out to 318 00:20:12,240 --> 00:20:15,840 Speaker 1: private practice. And we really see that that gives them 319 00:20:16,119 --> 00:20:19,200 Speaker 1: the ability to argue you know, ten or more cases. 320 00:20:19,560 --> 00:20:21,840 Speaker 1: It doesn't sound like a lot. But when you look 321 00:20:21,840 --> 00:20:24,159 Speaker 1: at the Supreme Court, they only hear about sixty to 322 00:20:24,320 --> 00:20:27,920 Speaker 1: seventy cases each term, So coming out with ten cases 323 00:20:28,119 --> 00:20:30,119 Speaker 1: it's a really big deal. It's a good amount of 324 00:20:30,160 --> 00:20:33,159 Speaker 1: experience to then go out and convince clients that you know, 325 00:20:33,359 --> 00:20:35,000 Speaker 1: you have what it takes to argue in front of 326 00:20:35,040 --> 00:20:37,360 Speaker 1: the justices and and you can do the job for them. 327 00:20:37,600 --> 00:20:41,720 Speaker 1: Do the justices treat lawyers who are new to the court, 328 00:20:41,960 --> 00:20:45,200 Speaker 1: first timers with sort of more kindness than they would 329 00:20:45,280 --> 00:20:48,640 Speaker 1: other lawyers, or it doesn't matter. Well, the Supreme Court 330 00:20:48,680 --> 00:20:52,480 Speaker 1: is usually very respectful of the advocates. You know, again, 331 00:20:52,520 --> 00:20:55,479 Speaker 1: we're talking about an appellate argument here, so it's not 332 00:20:55,520 --> 00:20:58,080 Speaker 1: as if people are getting into yelling matches. But it 333 00:20:58,160 --> 00:21:02,040 Speaker 1: did seem, particularly with the Steuben's argument, that the justices 334 00:21:02,119 --> 00:21:05,359 Speaker 1: were being a bit more careful with her. We still know, however, 335 00:21:05,400 --> 00:21:08,240 Speaker 1: saw some pretty tough questioning on her part, trying to 336 00:21:08,280 --> 00:21:12,040 Speaker 1: pin down the federal government where they were. But after that, 337 00:21:12,119 --> 00:21:14,360 Speaker 1: you know, two of the justices that thank you so much. 338 00:21:14,400 --> 00:21:16,840 Speaker 1: That was very helpful. Something that you don't always see 339 00:21:16,880 --> 00:21:20,600 Speaker 1: a repeat advocate, something you really rarely see whenever somebody 340 00:21:20,640 --> 00:21:23,160 Speaker 1: that they've seen up there before. So I know you 341 00:21:23,160 --> 00:21:27,840 Speaker 1: you've done the numbers. How many women from private practice 342 00:21:28,200 --> 00:21:31,000 Speaker 1: argue at the Supreme Court or this term haven and 343 00:21:31,080 --> 00:21:34,320 Speaker 1: how many women from the Solicitor General's office. Well, this 344 00:21:34,560 --> 00:21:36,840 Speaker 1: term it's just haven't half. You know, we just kicked 345 00:21:36,840 --> 00:21:39,400 Speaker 1: off this term in October and we only had eight cases. 346 00:21:39,880 --> 00:21:42,680 Speaker 1: So you know, two of the women have come from 347 00:21:42,680 --> 00:21:46,000 Speaker 1: private practice too, from the Solicitor General's office. But I 348 00:21:46,040 --> 00:21:49,800 Speaker 1: suspect those numbers will shift if history is any guide. 349 00:21:49,880 --> 00:21:52,720 Speaker 1: You know, in the past, we've seen you know, attorneys 350 00:21:52,760 --> 00:21:55,400 Speaker 1: not just from the Solicitor General's office but from other 351 00:21:55,560 --> 00:22:00,160 Speaker 1: governments like state, muncile government tend to provide the majority 352 00:22:00,200 --> 00:22:03,480 Speaker 1: of women attorneys who argue cases at the court. The 353 00:22:03,600 --> 00:22:06,679 Speaker 1: last term is a good example. Last term, government entities 354 00:22:06,720 --> 00:22:11,879 Speaker 1: spent twenty three female lawyers and all other entities, law firms, academia, 355 00:22:12,040 --> 00:22:16,040 Speaker 1: public interest groups sent just fifteen. So it's really important, 356 00:22:16,280 --> 00:22:19,160 Speaker 1: you know, to pay attention to the composition of those 357 00:22:19,520 --> 00:22:22,960 Speaker 1: government groups, um and kind of understanding what the future 358 00:22:23,240 --> 00:22:24,959 Speaker 1: of the Supreme Court bar is going to look like. 359 00:22:25,800 --> 00:22:29,760 Speaker 1: The Alabama voting case had a different kind of cross 360 00:22:29,800 --> 00:22:34,040 Speaker 1: section of lawyers. It did. Yeah, that was a case 361 00:22:34,119 --> 00:22:37,520 Speaker 1: where it was unique, UM in several respects. First, there 362 00:22:37,520 --> 00:22:41,520 Speaker 1: were four different attorneys who were arguing the case. Typically 363 00:22:41,520 --> 00:22:44,679 Speaker 1: there's only two, maybe three if the federal government is arguing. 364 00:22:44,960 --> 00:22:47,479 Speaker 1: Before was quite a lot. But when we look at 365 00:22:47,480 --> 00:22:49,960 Speaker 1: the attorneys who were arguing, it was unique in the 366 00:22:50,000 --> 00:22:53,719 Speaker 1: sense that there were two attorneys of color, two women arguing, 367 00:22:53,760 --> 00:22:56,960 Speaker 1: including UM, as you mentioned the US Solicitor of General 368 00:22:57,000 --> 00:22:59,560 Speaker 1: Elizabeth Blagger, who was just the second woman to hold 369 00:22:59,560 --> 00:23:02,879 Speaker 1: the office. And you know, we saw two first timers 370 00:23:03,000 --> 00:23:06,440 Speaker 1: who were making their Supreme Court debut, which is somewhat unique, 371 00:23:06,440 --> 00:23:08,520 Speaker 1: and that most of the cases at the Supreme Court 372 00:23:08,560 --> 00:23:12,040 Speaker 1: are handled by people who are considered veterans as who 373 00:23:12,040 --> 00:23:14,919 Speaker 1: have igory five or more cases before the court before. 374 00:23:15,000 --> 00:23:18,240 Speaker 1: So it was really a typical in the sort of 375 00:23:18,280 --> 00:23:21,320 Speaker 1: representation UM that was arguing that case. And of course, 376 00:23:21,400 --> 00:23:23,199 Speaker 1: you know, that was an important case to have that 377 00:23:23,280 --> 00:23:26,560 Speaker 1: kind of representation because it was a case about voting 378 00:23:26,680 --> 00:23:30,479 Speaker 1: rights for minority voters. So UM, I think one that 379 00:23:30,480 --> 00:23:32,439 Speaker 1: that we would expect to see that sort of a 380 00:23:32,520 --> 00:23:36,399 Speaker 1: typical representation. Thanks so much, Kimberly. That's Bloomberg Law, Supreme 381 00:23:36,400 --> 00:23:40,119 Speaker 1: Court reporter Kimberly Strawbridge, Robinson, and that's it for this 382 00:23:40,240 --> 00:23:42,720 Speaker 1: edition of The Bloomberg Law Show. Remember you can always 383 00:23:42,760 --> 00:23:45,520 Speaker 1: get the latest legal news on our Bloomberg Law Podcast. 384 00:23:45,920 --> 00:23:48,680 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 385 00:23:48,840 --> 00:23:53,600 Speaker 1: www dot bloomberg dot com, slash podcast, slash Law, and 386 00:23:53,680 --> 00:23:56,439 Speaker 1: tune into The Bloomberg Law Show weeknights at ten pm 387 00:23:56,480 --> 00:24:00,240 Speaker 1: Eastern right here on Bloomberg Radio. 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