WEBVTT - Warhol and Prince Case Could Shake Up Copyright Law

0:00:03.160 --> 0:00:07.960
<v Speaker 1>This is Bloombird Law with June Brusso from Bloomberg Radio.

0:00:09.119 --> 0:00:13.000
<v Speaker 1>The copyright clash over Andy Warhol's Prince series is a

0:00:13.039 --> 0:00:17.200
<v Speaker 1>case that could reshape the fair use defense to copyright infringement,

0:00:17.520 --> 0:00:20.799
<v Speaker 1>But the Supreme Court oral arguments were free, willing and

0:00:20.920 --> 0:00:25.360
<v Speaker 1>punctuated by comic relief, like this from Justices Clarence Thomas

0:00:25.360 --> 0:00:29.760
<v Speaker 1>and Elena Kagan. Let's say that I'm both a Prince fan,

0:00:29.880 --> 0:00:37.720
<v Speaker 1>which I was in the eighties and no longer. Well

0:00:39.960 --> 0:00:45.320
<v Speaker 1>only on Thursday night, the justices were considering whether Andy

0:00:45.360 --> 0:00:49.240
<v Speaker 1>Warhol was within his rights to create fifteen silk screens

0:00:49.280 --> 0:00:52.919
<v Speaker 1>of prints using a copyrighted photograph of the musician by

0:00:53.040 --> 0:00:56.560
<v Speaker 1>rock and roll photographer Lynn Goldsmith. In trying to decide

0:00:56.560 --> 0:01:00.680
<v Speaker 1>if Warhol's work had meaningfully transformed the photograp f the

0:01:00.800 --> 0:01:05.120
<v Speaker 1>Justice is posed hypotheticals. Let's say that I'm also a

0:01:05.200 --> 0:01:09.959
<v Speaker 1>Syracuse fan, and I decided to make one of those

0:01:10.000 --> 0:01:15.320
<v Speaker 1>big blow up posters of orange prints and change the

0:01:15.400 --> 0:01:18.960
<v Speaker 1>colors a little bit around the edges and put go

0:01:19.280 --> 0:01:23.360
<v Speaker 1>orange underneath. Would you sue me? But some of the justices,

0:01:23.520 --> 0:01:27.640
<v Speaker 1>including the Chief Justice, pointed out the transformative effect of

0:01:27.680 --> 0:01:31.639
<v Speaker 1>Warhol's work. It's not just that Warhol has a different style,

0:01:32.160 --> 0:01:37.399
<v Speaker 1>is that Unlike Goldsmith's photograph, Warholes sends a message about

0:01:37.440 --> 0:01:41.360
<v Speaker 1>the deep personalization of modern culture and celebrity status and

0:01:41.440 --> 0:01:45.640
<v Speaker 1>the iconic and it goes through the different features to

0:01:45.720 --> 0:01:48.520
<v Speaker 1>support that. So it's not just a different style, it's

0:01:48.560 --> 0:01:51.640
<v Speaker 1>a different purpose. One is the commentary on modern society.

0:01:51.840 --> 0:01:55.200
<v Speaker 1>The other is to show what Prince looks like. My

0:01:55.280 --> 0:01:59.240
<v Speaker 1>guest is intellectual property litigator Terence Ross, a partner caton

0:01:59.360 --> 0:02:03.280
<v Speaker 1>uchun rose Men, described the issue here. This appeal to

0:02:03.320 --> 0:02:06.360
<v Speaker 1>the Supreme Court rises out of a lawsuit for copyright

0:02:06.360 --> 0:02:11.920
<v Speaker 1>infringement filed by Lynn Goldsmith against the Andy Warhol Foundation.

0:02:12.480 --> 0:02:17.040
<v Speaker 1>Um Lynn Goldsmiths was relatively famous photographer from the seventies

0:02:17.080 --> 0:02:21.960
<v Speaker 1>and eighties. UM famous for her photographs of rock stars.

0:02:21.960 --> 0:02:25.560
<v Speaker 1>She has photographed I think I saw more than one

0:02:25.720 --> 0:02:31.040
<v Speaker 1>hundred album covers of rock bands, which is incredible. And

0:02:32.280 --> 0:02:36.919
<v Speaker 1>she was commissioned by Newsweek, which was doing a piece

0:02:37.160 --> 0:02:40.240
<v Speaker 1>on a young and up and coming rock star by

0:02:40.240 --> 0:02:43.200
<v Speaker 1>the name of Prince. She was commissioned to do a

0:02:43.280 --> 0:02:46.600
<v Speaker 1>photograph of him that would be used on the cover,

0:02:47.360 --> 0:02:53.359
<v Speaker 1>and she didn't absolutely iconic facial portrait of him um

0:02:54.000 --> 0:03:00.200
<v Speaker 1>which really demonstrates the creativity of photography. George shows is

0:03:00.360 --> 0:03:05.240
<v Speaker 1>a very, very vulnerable young person who's obviously afraid of

0:03:05.280 --> 0:03:08.320
<v Speaker 1>the limelight at that point of his career. Now, the

0:03:08.320 --> 0:03:11.760
<v Speaker 1>curious thing the photo was not actually used by Newsweek

0:03:11.960 --> 0:03:16.880
<v Speaker 1>in his Magnanique magazine story, opting instead for live photos

0:03:16.919 --> 0:03:20.639
<v Speaker 1>of his live performance, but it was widely regarded as

0:03:21.120 --> 0:03:25.600
<v Speaker 1>a great photograph of the early eighties. So move forward

0:03:25.680 --> 0:03:30.760
<v Speaker 1>time in Prince has become a significant rock star and

0:03:30.880 --> 0:03:34.560
<v Speaker 1>celebrity in his own right, really a superstar of the

0:03:34.639 --> 0:03:39.600
<v Speaker 1>music scene. And Vanity Fair magazine commissioned Andy Warhol to

0:03:39.760 --> 0:03:44.920
<v Speaker 1>do an illustration for the cover of its magazine relating

0:03:44.960 --> 0:03:48.920
<v Speaker 1>to the article it's doing on Prince, and they expressly

0:03:49.040 --> 0:03:53.480
<v Speaker 1>licensed this photo from Lynn Goldsmith. The Prince give it

0:03:53.560 --> 0:03:57.320
<v Speaker 1>to Andy Warhol and say we want you to use

0:03:57.440 --> 0:04:02.560
<v Speaker 1>this photograph from Lynn Goldsmith as the basis for your illustration,

0:04:03.160 --> 0:04:07.080
<v Speaker 1>And without apparently Vanity Fair or Wynn Goldsmith knowing it,

0:04:07.560 --> 0:04:11.920
<v Speaker 1>he goes out and does a whole series of brightly

0:04:11.960 --> 0:04:16.120
<v Speaker 1>colored silk screens based on the photograph. And when I

0:04:16.120 --> 0:04:18.960
<v Speaker 1>say based on it, it really takes the photograph and

0:04:19.040 --> 0:04:22.480
<v Speaker 1>simply makes some changes to it, in particular adding color.

0:04:22.839 --> 0:04:26.479
<v Speaker 1>The magazine Vanity Fair comes out with the color shot

0:04:26.600 --> 0:04:30.200
<v Speaker 1>that Lynn Goldsmith is expecting to see there. Andy Warhol

0:04:30.279 --> 0:04:34.360
<v Speaker 1>then dies a couple of years later, thinking early, and

0:04:34.600 --> 0:04:38.800
<v Speaker 1>all of his rights and assets passed to the Andy

0:04:38.839 --> 0:04:43.119
<v Speaker 1>Warhol Foundation. A number of years later, Vanity Fair after

0:04:43.240 --> 0:04:48.239
<v Speaker 1>Prince dies, wants to sort of revisit this famous Vanity

0:04:48.320 --> 0:04:54.440
<v Speaker 1>Fair piece that it did and asked the Andy Warhol

0:04:54.520 --> 0:04:58.680
<v Speaker 1>Foundation for permission to use one of these silk screens

0:04:58.680 --> 0:05:02.000
<v Speaker 1>of Brents that Warhol had done in eighty four, and

0:05:02.040 --> 0:05:04.040
<v Speaker 1>they put it on the cover of Vanni magazine. This

0:05:04.200 --> 0:05:07.719
<v Speaker 1>is two thousand six. Lynn Goldsmith sees it on the

0:05:07.760 --> 0:05:10.520
<v Speaker 1>news stand and she says, wait a minute, I didn't

0:05:10.600 --> 0:05:16.680
<v Speaker 1>license that, and calls up Vanity Fair. They say, oh, um, well,

0:05:16.720 --> 0:05:19.760
<v Speaker 1>we got it from the rights from the Andy Warhol Foundation,

0:05:20.040 --> 0:05:23.800
<v Speaker 1>which says that they owned the copyright. And so Lynn

0:05:23.800 --> 0:05:27.080
<v Speaker 1>Goldsmith calls up the Andy Warhol Foundation, which takes it

0:05:27.120 --> 0:05:32.520
<v Speaker 1>a very aggressive position, insisting that they've got the copyright

0:05:32.520 --> 0:05:34.200
<v Speaker 1>on it, that she has no rights on it, and

0:05:35.080 --> 0:05:37.159
<v Speaker 1>they're not about to pay her anything by way of

0:05:37.160 --> 0:05:39.840
<v Speaker 1>the license. Te and indeed, they seem to be so

0:05:39.920 --> 0:05:42.280
<v Speaker 1>confident in their positions that they go to court and

0:05:42.279 --> 0:05:46.680
<v Speaker 1>filed declaratory judgment lawsuits saying, we're seeking a declaration that

0:05:46.880 --> 0:05:51.279
<v Speaker 1>we have not infringed upon Lynn Goldsmith's photograph based on

0:05:51.360 --> 0:05:54.719
<v Speaker 1>the doctrine of fair use, which is a complete defense

0:05:54.800 --> 0:05:59.320
<v Speaker 1>to copyright infringement. The trial court in New York agrees

0:05:59.400 --> 0:06:03.560
<v Speaker 1>with them and grants them summary judgments, saying that the

0:06:03.640 --> 0:06:09.360
<v Speaker 1>fair used defense protects these Andy Warhol Folk screens of Prince.

0:06:09.720 --> 0:06:12.719
<v Speaker 1>Lying Goldsmith takes it up on appeal to the Second Circuit,

0:06:13.560 --> 0:06:15.640
<v Speaker 1>and the Second Circuit says, wait a minute, what are

0:06:15.680 --> 0:06:18.960
<v Speaker 1>you talking about. Fair use does not cover this, and

0:06:19.000 --> 0:06:22.920
<v Speaker 1>they rule in favor of Lying Goldsmith, going to the

0:06:22.960 --> 0:06:25.960
<v Speaker 1>extreme extent of saying that summary judgment should be granted

0:06:26.000 --> 0:06:28.360
<v Speaker 1>to her that she wins, not even sending it back

0:06:28.400 --> 0:06:32.360
<v Speaker 1>for further reconsideration her jury trialgy She just wins um

0:06:32.520 --> 0:06:36.280
<v Speaker 1>and the Warhol Foundation has now appealed that decision from

0:06:36.320 --> 0:06:40.120
<v Speaker 1>Second Circuit to the Supreme Court. Supreme Court held very

0:06:40.200 --> 0:06:45.480
<v Speaker 1>interesting and lengthy arguments on Wednesday. Is the question whether

0:06:45.960 --> 0:06:53.880
<v Speaker 1>Warhol's work transformed Goldsmith's photograph? Well? Is that simple? To

0:06:54.080 --> 0:06:57.560
<v Speaker 1>understand what's going on here, what has to understand a

0:06:57.640 --> 0:06:59.680
<v Speaker 1>little bit about the fair used defense. The fair used

0:06:59.680 --> 0:07:03.640
<v Speaker 1>defense statutory written into the Copyright Act. It says that

0:07:03.680 --> 0:07:07.520
<v Speaker 1>there shall be no copyright infringement if secondary work is

0:07:07.600 --> 0:07:10.040
<v Speaker 1>taking advantage of this fair used defense. The fair used

0:07:10.040 --> 0:07:13.840
<v Speaker 1>defense says courts should consider four non exclusive factors. The

0:07:13.960 --> 0:07:17.440
<v Speaker 1>very first factor, and what's widely regarded as the most important,

0:07:17.680 --> 0:07:19.240
<v Speaker 1>is for the court to look at the purpose and

0:07:19.360 --> 0:07:23.040
<v Speaker 1>character of the secondary use. There are three other factors

0:07:23.040 --> 0:07:26.040
<v Speaker 1>that all have to be considered, but that's usually considered

0:07:26.040 --> 0:07:29.040
<v Speaker 1>the most important, and in a very famous decision by

0:07:29.040 --> 0:07:32.560
<v Speaker 1>the Second Circuit a few years ago, Second Circuit per

0:07:32.640 --> 0:07:36.600
<v Speaker 1>Judge Leavell said that the key to this one factor

0:07:37.200 --> 0:07:42.160
<v Speaker 1>is whether or not the secondary work somehow transformed the

0:07:42.200 --> 0:07:45.360
<v Speaker 1>original work. And the Supreme Court has since bought into

0:07:45.400 --> 0:07:48.720
<v Speaker 1>this transformative use test and is now part of the law,

0:07:48.800 --> 0:07:51.120
<v Speaker 1>even though it's not in the statute. But I would

0:07:51.120 --> 0:07:53.600
<v Speaker 1>say that the issue up on an appeal here spring

0:07:53.600 --> 0:07:56.760
<v Speaker 1>courts is not whether or not that's the law. It's

0:07:56.800 --> 0:08:00.640
<v Speaker 1>not whether or not the work is transformative. The question

0:08:00.680 --> 0:08:03.920
<v Speaker 1>really is what does it mean? What is required for

0:08:04.040 --> 0:08:08.040
<v Speaker 1>work to be transformative How do you transform a work

0:08:08.080 --> 0:08:11.480
<v Speaker 1>in such a way that the fair use defense applies.

0:08:11.800 --> 0:08:16.200
<v Speaker 1>There are many transformative uses that do not constitute fair use,

0:08:16.440 --> 0:08:19.400
<v Speaker 1>and so the key here at issue for the Spring

0:08:19.480 --> 0:08:22.640
<v Speaker 1>Court is to give some sort of guidance, some sort

0:08:22.680 --> 0:08:26.320
<v Speaker 1>of definition to low courts as to what constitutes a

0:08:26.360 --> 0:08:29.520
<v Speaker 1>transformative use that is entitled to take advantage of the

0:08:29.560 --> 0:08:33.959
<v Speaker 1>fair use defense. At one point, Justice Alito question whether

0:08:34.120 --> 0:08:37.720
<v Speaker 1>judges were qualified to focus on the meaning of the

0:08:37.760 --> 0:08:39.920
<v Speaker 1>work or was that a job that should be left

0:08:39.920 --> 0:08:42.720
<v Speaker 1>to art critics. And I remember that the Second Circuit

0:08:42.840 --> 0:08:46.640
<v Speaker 1>criticized the district court judge for being an art critic.

0:08:46.960 --> 0:08:49.120
<v Speaker 1>But how do you get out of this without being

0:08:49.240 --> 0:08:51.840
<v Speaker 1>somewhat of an art critic. Well, it's a great question.

0:08:52.000 --> 0:08:56.720
<v Speaker 1>And the Second Circuit, in saying that district court judges

0:08:56.760 --> 0:08:59.679
<v Speaker 1>trial judges are not allowed to be art critics, are

0:08:59.720 --> 0:09:02.959
<v Speaker 1>not out to sit in judgment on the artistic merits

0:09:03.000 --> 0:09:06.080
<v Speaker 1>of work, take advantage of a long history going back

0:09:06.160 --> 0:09:08.600
<v Speaker 1>over a hundred years in that court in the Second

0:09:08.640 --> 0:09:13.360
<v Speaker 1>Circuit with respect to artwork, music work, dramatic works such

0:09:13.360 --> 0:09:17.640
<v Speaker 1>as plays and adels of saying that trial courts judges

0:09:17.720 --> 0:09:22.079
<v Speaker 1>cannot be critics of the work. And so that's a

0:09:22.200 --> 0:09:26.559
<v Speaker 1>very well grounded position to the Second Circuit took the

0:09:26.679 --> 0:09:30.560
<v Speaker 1>issue you raises a very good one is well, if

0:09:30.600 --> 0:09:33.959
<v Speaker 1>that's true, what do you do? And I think it's

0:09:34.000 --> 0:09:39.240
<v Speaker 1>somewhat enlightening that the response that the Council for the

0:09:39.280 --> 0:09:43.480
<v Speaker 1>Andy Warhol Foundation gave to that question from Alito is

0:09:43.559 --> 0:09:46.920
<v Speaker 1>that the judge should look at the work and and

0:09:47.000 --> 0:09:51.720
<v Speaker 1>decide whether or not it is transformative or not, in

0:09:51.840 --> 0:09:55.840
<v Speaker 1>essence betting the farm on the argument that the Second Circuit,

0:09:56.120 --> 0:09:59.000
<v Speaker 1>in this long history of judges not being art critics,

0:09:59.080 --> 0:10:02.240
<v Speaker 1>is just wrong a matter of law. It's a very

0:10:02.280 --> 0:10:06.800
<v Speaker 1>strong and aggressive position that the Warhol Foundation. I mean,

0:10:07.240 --> 0:10:09.360
<v Speaker 1>you have to remember here, Jude, what justice a leader

0:10:09.600 --> 0:10:12.880
<v Speaker 1>started off. That colloquy was saying was, well, if Mr

0:10:12.960 --> 0:10:17.280
<v Speaker 1>Warhol were alive today, what would he say was the

0:10:17.320 --> 0:10:21.640
<v Speaker 1>meaning of this work that transformed it? He wouldn't tell you, though, right?

0:10:22.400 --> 0:10:26.880
<v Speaker 1>Can't you actually right? And neither would counsel. Warhol Foundation

0:10:27.120 --> 0:10:30.679
<v Speaker 1>essentially says, well, Mr Warhol's testimony is not available, basically,

0:10:30.760 --> 0:10:33.120
<v Speaker 1>but it wouldn't have any meaning. Even if it did,

0:10:33.240 --> 0:10:35.120
<v Speaker 1>It's up to the judge to look at it, which

0:10:35.160 --> 0:10:37.520
<v Speaker 1>kind of surprised me which side did better in the

0:10:37.559 --> 0:10:40.600
<v Speaker 1>rural arguments. Would you say so? I was a little

0:10:40.600 --> 0:10:44.640
<v Speaker 1>bit taken aback the extent to which you could place

0:10:44.920 --> 0:10:48.640
<v Speaker 1>certain justices on one side or the other. We've talked

0:10:48.640 --> 0:10:52.240
<v Speaker 1>about this before, June, but the passing of Justice Ginsburg

0:10:52.800 --> 0:10:56.559
<v Speaker 1>and the retirement of Justice Bryer has transformed this court

0:10:56.679 --> 0:10:59.800
<v Speaker 1>with respect the copyright law. Those two justices were the

0:11:00.000 --> 0:11:03.440
<v Speaker 1>oposide ends of the spectrum. Justice Ginsburg taking a position

0:11:03.480 --> 0:11:07.359
<v Speaker 1>that copyright should be strongly enforced, a really strong advocate

0:11:07.440 --> 0:11:10.960
<v Speaker 1>for strong, vigorous copyright protection, and Justice Brian was at

0:11:11.000 --> 0:11:14.400
<v Speaker 1>the other end of the spectrum, opposing strong copyright protection.

0:11:14.640 --> 0:11:17.880
<v Speaker 1>And so we were all wondering in the copyright community

0:11:18.240 --> 0:11:21.839
<v Speaker 1>what this new court would um do in this really

0:11:21.840 --> 0:11:23.920
<v Speaker 1>important case. And keep in mind, June, this is the

0:11:23.960 --> 0:11:28.240
<v Speaker 1>first time since that the Supreme Court has taken up

0:11:28.360 --> 0:11:31.920
<v Speaker 1>a fair use question. And so it's not just a

0:11:32.000 --> 0:11:35.920
<v Speaker 1>really important notal point in copyright law that we're faced with,

0:11:36.040 --> 0:11:38.040
<v Speaker 1>but a point in time in which we don't have

0:11:38.200 --> 0:11:41.880
<v Speaker 1>the two principals advocates for the competing positions on the

0:11:41.920 --> 0:11:45.600
<v Speaker 1>Court anymore. And yet, notwithstanding that, it seemed that there

0:11:45.640 --> 0:11:49.640
<v Speaker 1>were justices willing to step up and fill those rules.

0:11:49.720 --> 0:11:53.800
<v Speaker 1>So on my scorecard here I had Justice Kagan and

0:11:53.920 --> 0:11:57.080
<v Speaker 1>Chief Justice roberts in the camp that would say that

0:11:57.160 --> 0:12:01.120
<v Speaker 1>this was a fair use. Adjustice roberts In. Tickler just

0:12:01.240 --> 0:12:05.480
<v Speaker 1>came flat out and said, this is a different purpose.

0:12:05.720 --> 0:12:09.400
<v Speaker 1>The Warhol Prince had a different purpose from the photo.

0:12:09.720 --> 0:12:13.840
<v Speaker 1>He said, Warhol sends a message about the de personalization

0:12:13.880 --> 0:12:17.600
<v Speaker 1>of modern culture and celebrity status for all practical purposes,

0:12:17.600 --> 0:12:21.079
<v Speaker 1>that he's voting in favor of the Warhol Foundation. Hagan's

0:12:21.080 --> 0:12:24.760
<v Speaker 1>remarks took a similar approach. And then on the other side,

0:12:24.880 --> 0:12:28.240
<v Speaker 1>I had what I think are for justices for the

0:12:28.240 --> 0:12:31.800
<v Speaker 1>position that this is not fair use. Justice Thomas, Justice Alito,

0:12:31.960 --> 0:12:36.080
<v Speaker 1>Justice Barrett, and Justice Cantanji Brown, all of whom posed

0:12:36.240 --> 0:12:41.200
<v Speaker 1>hypothetical to the Council for the Warhol Foundation that sort

0:12:41.200 --> 0:12:44.320
<v Speaker 1>of took this whole transformative use a new meaning test

0:12:44.400 --> 0:12:48.120
<v Speaker 1>to its ridiculous limits. Justice Alito, i guess, asked the question, well,

0:12:48.160 --> 0:12:51.600
<v Speaker 1>if you'd simply change the photos so that Prince was smiling,

0:12:51.640 --> 0:12:53.960
<v Speaker 1>would that be a transformative use? Because it changed the

0:12:54.000 --> 0:12:57.280
<v Speaker 1>meaning from a vulnerable young rock star to a happy

0:12:57.400 --> 0:13:01.400
<v Speaker 1>rock star, would that be good enough? Similar Justice Thomas,

0:13:01.679 --> 0:13:05.080
<v Speaker 1>he asked a really interesting question, what if all you

0:13:05.120 --> 0:13:08.560
<v Speaker 1>had done was colorized the edges of the black and

0:13:08.559 --> 0:13:11.280
<v Speaker 1>white photograph of prints such they were, they were the

0:13:11.320 --> 0:13:15.080
<v Speaker 1>colors of Syracuse University, and you were intending to send

0:13:15.120 --> 0:13:19.280
<v Speaker 1>a commentary on supporting the sports teams at Syracuse University.

0:13:19.440 --> 0:13:24.160
<v Speaker 1>These sorts of hypothetical posts are typically intended by judges

0:13:24.360 --> 0:13:28.040
<v Speaker 1>to point out the ridiculousness of somebody's position, and so

0:13:28.200 --> 0:13:32.000
<v Speaker 1>the fact that those four justices all went that route

0:13:32.000 --> 0:13:35.000
<v Speaker 1>with sort of extreme hypotheticals sent a message to me

0:13:35.120 --> 0:13:39.360
<v Speaker 1>that they are leaning towards this not being a fair youth.

0:13:39.720 --> 0:13:42.160
<v Speaker 1>I will point out the Warhol Foundation to the extent

0:13:42.280 --> 0:13:44.079
<v Speaker 1>I have this right at this point of school, I

0:13:44.120 --> 0:13:46.320
<v Speaker 1>would have to run the tables on the other three

0:13:46.640 --> 0:13:51.600
<v Speaker 1>to get there. It's a very challenging case. Both sides

0:13:51.640 --> 0:13:55.480
<v Speaker 1>say the potential stakes here are enormous, not just on

0:13:55.559 --> 0:13:59.719
<v Speaker 1>the art world, but on publishing, on movies and so on.

0:14:00.000 --> 0:14:03.360
<v Speaker 1>Are they exaggerating or do you agree with that? Absolutely?

0:14:03.679 --> 0:14:06.120
<v Speaker 1>This is going to be one of the most significant

0:14:06.240 --> 0:14:10.280
<v Speaker 1>decisions with respect to secondary works of all time in

0:14:10.320 --> 0:14:13.680
<v Speaker 1>Anglo facts and law. At issue is control of the

0:14:13.679 --> 0:14:16.920
<v Speaker 1>original work by the artists for the original work, and

0:14:17.000 --> 0:14:19.640
<v Speaker 1>to the extent that this is held to be not

0:14:20.120 --> 0:14:23.520
<v Speaker 1>a fair use, I think the critics are correct that

0:14:23.520 --> 0:14:27.840
<v Speaker 1>that will mean that the original artists have much more

0:14:28.000 --> 0:14:31.880
<v Speaker 1>control over their works. The question is whether or not

0:14:32.120 --> 0:14:36.080
<v Speaker 1>the next step in that argument is correct. Does giving

0:14:36.280 --> 0:14:42.120
<v Speaker 1>the original artists more control over the work inhibit future creativity?

0:14:42.240 --> 0:14:44.840
<v Speaker 1>And as we heard in the or argument, there was

0:14:44.880 --> 0:14:49.240
<v Speaker 1>a lot of discussion of licensing. Doesn't the right to

0:14:49.520 --> 0:14:53.680
<v Speaker 1>license these original works to make changes allow you to

0:14:54.120 --> 0:14:57.000
<v Speaker 1>still engage in level of creativity? This was not said

0:14:57.160 --> 0:15:00.880
<v Speaker 1>in court, but look, you had very wealthy entities involved here.

0:15:00.880 --> 0:15:05.160
<v Speaker 1>You had Vanity Fair, Andy Warhol. They clearly had the

0:15:05.200 --> 0:15:11.440
<v Speaker 1>wherewithal to license the photograph again from Lynn Goldsmith in

0:15:11.600 --> 0:15:15.000
<v Speaker 1>order to do these sixteen chlorized folk screens, but they

0:15:15.080 --> 0:15:18.520
<v Speaker 1>deliberately chose not to. It strikes me that Lynn Goldsmith

0:15:19.080 --> 0:15:22.680
<v Speaker 1>was entitled to some benefit for her creativity in the

0:15:22.720 --> 0:15:26.840
<v Speaker 1>first place, which she was being deprived of. So yes,

0:15:27.000 --> 0:15:31.480
<v Speaker 1>there is going to be a change in the bargaining

0:15:31.560 --> 0:15:37.760
<v Speaker 1>power amongst artists as to secondary uses of original works,

0:15:38.200 --> 0:15:40.920
<v Speaker 1>whether or not stops creativity. And I just don't think so,

0:15:41.080 --> 0:15:44.920
<v Speaker 1>Thanks so much, Terry. That's intellectual property litigator Terence ross

0:15:45.000 --> 0:15:50.840
<v Speaker 1>A partner Captain Eugen Rosenmanton. The Solicitor General's Office remains

0:15:50.920 --> 0:15:55.640
<v Speaker 1>the diversity pipeline for Supreme Court advocacy. The office, along

0:15:55.640 --> 0:15:59.359
<v Speaker 1>with attorneys from state and local governments, sent the majority

0:15:59.360 --> 0:16:02.200
<v Speaker 1>of women to the lecture and last term. In total,

0:16:02.320 --> 0:16:06.920
<v Speaker 1>twenty three female government attorneys argued during the term, while

0:16:07.000 --> 0:16:10.640
<v Speaker 1>law firms and academia sent fifteen. Joining me is Bloomberg

0:16:10.720 --> 0:16:15.000
<v Speaker 1>Law Supreme Court reporter Kimberly Strawbridge Robinson who keeps track

0:16:15.040 --> 0:16:18.760
<v Speaker 1>of the numbers. So we've talked before about the number

0:16:18.760 --> 0:16:22.480
<v Speaker 1>of men arguing at the Supreme Court vastly outnumbering the

0:16:22.560 --> 0:16:26.880
<v Speaker 1>number of women. Four women are arguing in the October session.

0:16:27.080 --> 0:16:29.400
<v Speaker 1>How does that stack up? Is that about the same

0:16:29.440 --> 0:16:32.440
<v Speaker 1>as usual or better than usual? Well, it's about the

0:16:32.480 --> 0:16:36.960
<v Speaker 1>same as usual. So typically we see between twelve of

0:16:37.080 --> 0:16:40.480
<v Speaker 1>arguments at the Supreme Court being made by women. This time,

0:16:40.600 --> 0:16:42.800
<v Speaker 1>you know, four out of twenty two is eighteen percent.

0:16:42.880 --> 0:16:44.840
<v Speaker 1>So it's right in the middle of what we're typically

0:16:44.920 --> 0:16:46.680
<v Speaker 1>used to. But I think you know one thing to

0:16:46.680 --> 0:16:49.680
<v Speaker 1>notice we we talk about um women, I think you know,

0:16:49.760 --> 0:16:52.840
<v Speaker 1>to some expense, it's low hanging fruit, but it really

0:16:52.880 --> 0:16:55.600
<v Speaker 1>signals a lack of diversity across the board, you know,

0:16:55.640 --> 0:16:58.560
<v Speaker 1>not just with gender, but with race, with you know,

0:16:59.040 --> 0:17:03.120
<v Speaker 1>attorneys with disabilities, with military service, just all kinds of

0:17:03.160 --> 0:17:05.960
<v Speaker 1>this diversity that we really don't see reflected in the

0:17:06.000 --> 0:17:08.720
<v Speaker 1>advocates who argue before the Supreme Court. Two of the

0:17:08.720 --> 0:17:11.520
<v Speaker 1>women who argued in the October session are in the

0:17:11.560 --> 0:17:15.080
<v Speaker 1>Solicitor General's office. Tell us about the role of the

0:17:15.080 --> 0:17:19.520
<v Speaker 1>Solicitor General's office in getting women to the podium, Sure says,

0:17:19.520 --> 0:17:23.440
<v Speaker 1>the solicitor General's Office is the federal government's top lawyers

0:17:23.480 --> 0:17:26.879
<v Speaker 1>at the Supreme Court. They are not only argue in

0:17:26.960 --> 0:17:30.640
<v Speaker 1>cases that the federal government is officially involved in as

0:17:30.640 --> 0:17:33.760
<v Speaker 1>a party, but they argue a lot of cases as

0:17:33.800 --> 0:17:36.880
<v Speaker 1>sort of friends of the court. And so that office

0:17:37.200 --> 0:17:40.439
<v Speaker 1>isn't you know, staffed by that many attorneys. So getting

0:17:40.480 --> 0:17:45.320
<v Speaker 1>into that office almost guarantees you, you know, multiple Supreme

0:17:45.359 --> 0:17:49.680
<v Speaker 1>Court arguments in a term, which is significant. Is something

0:17:49.720 --> 0:17:53.400
<v Speaker 1>that's really hard for even really established attorneys to do

0:17:53.760 --> 0:17:57.000
<v Speaker 1>in private practice. So what that does is it allows

0:17:57.400 --> 0:18:00.280
<v Speaker 1>the attorneys who are there, who are often relatively early

0:18:00.320 --> 0:18:03.720
<v Speaker 1>in their careers to kind of build this critical mass

0:18:03.760 --> 0:18:06.440
<v Speaker 1>of Supreme Court cases that they can take out to

0:18:06.480 --> 0:18:09.280
<v Speaker 1>the world, and so people will hire them and we'll

0:18:09.280 --> 0:18:11.359
<v Speaker 1>be seeing them back at the Court again and again

0:18:11.560 --> 0:18:14.240
<v Speaker 1>for years to come. So, you know, the makeup of

0:18:14.280 --> 0:18:18.680
<v Speaker 1>the Solicitor General's Office is really really important in establishing,

0:18:19.040 --> 0:18:21.760
<v Speaker 1>you know, diversity in the future of the Supreme Court

0:18:21.800 --> 0:18:24.760
<v Speaker 1>bar The current Solicitor General is a woman, the second

0:18:24.800 --> 0:18:28.760
<v Speaker 1>to be Solicitor General the last being now Justice Elena Kagan.

0:18:29.240 --> 0:18:33.119
<v Speaker 1>So is the office making an effort to get more

0:18:33.160 --> 0:18:38.000
<v Speaker 1>women and more minorities into the office. Well, we don't know,

0:18:38.200 --> 0:18:42.000
<v Speaker 1>So the Solicitor General's Office hasn't officially said that, you know,

0:18:42.080 --> 0:18:44.480
<v Speaker 1>that's an effort that they're trying to make. But we

0:18:44.640 --> 0:18:48.320
<v Speaker 1>have seen kind of a shift in the demographics of

0:18:48.359 --> 0:18:52.720
<v Speaker 1>that office during the Trump administration, not really due to

0:18:53.160 --> 0:18:56.840
<v Speaker 1>you know, the d o j's own sort of policies

0:18:56.960 --> 0:18:59.160
<v Speaker 1>or anything like that, but just sort of the timing

0:18:59.400 --> 0:19:02.439
<v Speaker 1>of when people come and go from the office. We

0:19:02.520 --> 0:19:07.520
<v Speaker 1>saw a number of female assistant Solicitor Generals leave the office,

0:19:07.600 --> 0:19:09.600
<v Speaker 1>and we saw a real shift in the number of

0:19:09.600 --> 0:19:12.040
<v Speaker 1>women who were arguing at the court. There have been

0:19:12.040 --> 0:19:14.560
<v Speaker 1>a number of women who have been hired under the

0:19:14.560 --> 0:19:17.679
<v Speaker 1>Biden administration. I believe the three most recent hires have

0:19:17.800 --> 0:19:20.480
<v Speaker 1>all been women. So they haven't made an official statement

0:19:20.520 --> 0:19:22.880
<v Speaker 1>that that's something that they're looking for, but it sure

0:19:22.880 --> 0:19:24.840
<v Speaker 1>those seems to show in the numbers that they have

0:19:24.960 --> 0:19:27.760
<v Speaker 1>not just with women, but with also with different kinds

0:19:27.800 --> 0:19:31.200
<v Speaker 1>of diversity, um, in particular racial diversity. So you wrote

0:19:31.200 --> 0:19:36.520
<v Speaker 1>about Yarra Dubin, who recently joined the Solicitor General's office.

0:19:36.960 --> 0:19:40.679
<v Speaker 1>Do lawyers often leave law firms for a time to

0:19:40.800 --> 0:19:45.119
<v Speaker 1>do a stint in the solicitor General's office and then return, Yeah, so,

0:19:45.320 --> 0:19:47.680
<v Speaker 1>I mean it varies a little bit, but I would

0:19:47.680 --> 0:19:50.919
<v Speaker 1>say in general, you're looking at somebody who um often

0:19:51.040 --> 0:19:54.600
<v Speaker 1>comes from private practice. You know, a firm that has

0:19:55.119 --> 0:19:57.520
<v Speaker 1>you know, an appellate and Supreme Court practice, or a

0:19:57.520 --> 0:20:01.120
<v Speaker 1>boutique firm, somebody who has often clerked at the Supreme

0:20:01.160 --> 0:20:05.280
<v Speaker 1>Court before, and they will go to the Solicitor General's Office,

0:20:05.320 --> 0:20:08.280
<v Speaker 1>which is a really highly thought after position, and typically

0:20:08.280 --> 0:20:12.119
<v Speaker 1>stay there about five years before heading back out to

0:20:12.240 --> 0:20:15.840
<v Speaker 1>private practice. And we really see that that gives them

0:20:16.119 --> 0:20:19.200
<v Speaker 1>the ability to argue you know, ten or more cases.

0:20:19.560 --> 0:20:21.840
<v Speaker 1>It doesn't sound like a lot. But when you look

0:20:21.840 --> 0:20:24.159
<v Speaker 1>at the Supreme Court, they only hear about sixty to

0:20:24.320 --> 0:20:27.920
<v Speaker 1>seventy cases each term, So coming out with ten cases

0:20:28.119 --> 0:20:30.119
<v Speaker 1>it's a really big deal. It's a good amount of

0:20:30.160 --> 0:20:33.159
<v Speaker 1>experience to then go out and convince clients that you know,

0:20:33.359 --> 0:20:35.000
<v Speaker 1>you have what it takes to argue in front of

0:20:35.040 --> 0:20:37.360
<v Speaker 1>the justices and and you can do the job for them.

0:20:37.600 --> 0:20:41.720
<v Speaker 1>Do the justices treat lawyers who are new to the court,

0:20:41.960 --> 0:20:45.200
<v Speaker 1>first timers with sort of more kindness than they would

0:20:45.280 --> 0:20:48.640
<v Speaker 1>other lawyers, or it doesn't matter. Well, the Supreme Court

0:20:48.680 --> 0:20:52.480
<v Speaker 1>is usually very respectful of the advocates. You know, again,

0:20:52.520 --> 0:20:55.479
<v Speaker 1>we're talking about an appellate argument here, so it's not

0:20:55.520 --> 0:20:58.080
<v Speaker 1>as if people are getting into yelling matches. But it

0:20:58.160 --> 0:21:02.040
<v Speaker 1>did seem, particularly with the Steuben's argument, that the justices

0:21:02.119 --> 0:21:05.359
<v Speaker 1>were being a bit more careful with her. We still know, however,

0:21:05.400 --> 0:21:08.240
<v Speaker 1>saw some pretty tough questioning on her part, trying to

0:21:08.280 --> 0:21:12.040
<v Speaker 1>pin down the federal government where they were. But after that,

0:21:12.119 --> 0:21:14.360
<v Speaker 1>you know, two of the justices that thank you so much.

0:21:14.400 --> 0:21:16.840
<v Speaker 1>That was very helpful. Something that you don't always see

0:21:16.880 --> 0:21:20.600
<v Speaker 1>a repeat advocate, something you really rarely see whenever somebody

0:21:20.640 --> 0:21:23.160
<v Speaker 1>that they've seen up there before. So I know you

0:21:23.160 --> 0:21:27.840
<v Speaker 1>you've done the numbers. How many women from private practice

0:21:28.200 --> 0:21:31.000
<v Speaker 1>argue at the Supreme Court or this term haven and

0:21:31.080 --> 0:21:34.320
<v Speaker 1>how many women from the Solicitor General's office. Well, this

0:21:34.560 --> 0:21:36.840
<v Speaker 1>term it's just haven't half. You know, we just kicked

0:21:36.840 --> 0:21:39.400
<v Speaker 1>off this term in October and we only had eight cases.

0:21:39.880 --> 0:21:42.680
<v Speaker 1>So you know, two of the women have come from

0:21:42.680 --> 0:21:46.000
<v Speaker 1>private practice too, from the Solicitor General's office. But I

0:21:46.040 --> 0:21:49.800
<v Speaker 1>suspect those numbers will shift if history is any guide.

0:21:49.880 --> 0:21:52.720
<v Speaker 1>You know, in the past, we've seen you know, attorneys

0:21:52.760 --> 0:21:55.400
<v Speaker 1>not just from the Solicitor General's office but from other

0:21:55.560 --> 0:22:00.160
<v Speaker 1>governments like state, muncile government tend to provide the majority

0:22:00.200 --> 0:22:03.480
<v Speaker 1>of women attorneys who argue cases at the court. The

0:22:03.600 --> 0:22:06.679
<v Speaker 1>last term is a good example. Last term, government entities

0:22:06.720 --> 0:22:11.879
<v Speaker 1>spent twenty three female lawyers and all other entities, law firms, academia,

0:22:12.040 --> 0:22:16.040
<v Speaker 1>public interest groups sent just fifteen. So it's really important,

0:22:16.280 --> 0:22:19.160
<v Speaker 1>you know, to pay attention to the composition of those

0:22:19.520 --> 0:22:22.960
<v Speaker 1>government groups, um and kind of understanding what the future

0:22:23.240 --> 0:22:24.959
<v Speaker 1>of the Supreme Court bar is going to look like.

0:22:25.800 --> 0:22:29.760
<v Speaker 1>The Alabama voting case had a different kind of cross

0:22:29.800 --> 0:22:34.040
<v Speaker 1>section of lawyers. It did. Yeah, that was a case

0:22:34.119 --> 0:22:37.520
<v Speaker 1>where it was unique, UM in several respects. First, there

0:22:37.520 --> 0:22:41.520
<v Speaker 1>were four different attorneys who were arguing the case. Typically

0:22:41.520 --> 0:22:44.679
<v Speaker 1>there's only two, maybe three if the federal government is arguing.

0:22:44.960 --> 0:22:47.479
<v Speaker 1>Before was quite a lot. But when we look at

0:22:47.480 --> 0:22:49.960
<v Speaker 1>the attorneys who were arguing, it was unique in the

0:22:50.000 --> 0:22:53.719
<v Speaker 1>sense that there were two attorneys of color, two women arguing,

0:22:53.760 --> 0:22:56.960
<v Speaker 1>including UM, as you mentioned the US Solicitor of General

0:22:57.000 --> 0:22:59.560
<v Speaker 1>Elizabeth Blagger, who was just the second woman to hold

0:22:59.560 --> 0:23:02.879
<v Speaker 1>the office. And you know, we saw two first timers

0:23:03.000 --> 0:23:06.440
<v Speaker 1>who were making their Supreme Court debut, which is somewhat unique,

0:23:06.440 --> 0:23:08.520
<v Speaker 1>and that most of the cases at the Supreme Court

0:23:08.560 --> 0:23:12.040
<v Speaker 1>are handled by people who are considered veterans as who

0:23:12.040 --> 0:23:14.919
<v Speaker 1>have igory five or more cases before the court before.

0:23:15.000 --> 0:23:18.240
<v Speaker 1>So it was really a typical in the sort of

0:23:18.280 --> 0:23:21.320
<v Speaker 1>representation UM that was arguing that case. And of course,

0:23:21.400 --> 0:23:23.199
<v Speaker 1>you know, that was an important case to have that

0:23:23.280 --> 0:23:26.560
<v Speaker 1>kind of representation because it was a case about voting

0:23:26.680 --> 0:23:30.479
<v Speaker 1>rights for minority voters. So UM, I think one that

0:23:30.480 --> 0:23:32.439
<v Speaker 1>that we would expect to see that sort of a

0:23:32.520 --> 0:23:36.399
<v Speaker 1>typical representation. Thanks so much, Kimberly. That's Bloomberg Law, Supreme

0:23:36.400 --> 0:23:40.119
<v Speaker 1>Court reporter Kimberly Strawbridge, Robinson, and that's it for this

0:23:40.240 --> 0:23:42.720
<v Speaker 1>edition of The Bloomberg Law Show. Remember you can always

0:23:42.760 --> 0:23:45.520
<v Speaker 1>get the latest legal news on our Bloomberg Law Podcast.

0:23:45.920 --> 0:23:48.680
<v Speaker 1>You can find them on Apple Podcasts, Spotify, and at

0:23:48.840 --> 0:23:53.600
<v Speaker 1>www dot bloomberg dot com, slash podcast, slash Law, and

0:23:53.680 --> 0:23:56.439
<v Speaker 1>tune into The Bloomberg Law Show weeknights at ten pm

0:23:56.480 --> 0:24:00.240
<v Speaker 1>Eastern right here on Bloomberg Radio. I'm June, so you're

0:24:00.280 --> 0:24:01.359
<v Speaker 1>listening to Bloomberg