1 00:00:03,120 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,400 --> 00:00:12,959 Speaker 1: One of the team captains, one of the leaders, one 3 00:00:13,000 --> 00:00:16,200 Speaker 1: of the great special teams players in all of the NFL. 4 00:00:16,760 --> 00:00:26,599 Speaker 1: Please welcome Chris Maragos, Yo, Philly. Hey. Chris Maragos was 5 00:00:26,640 --> 00:00:29,720 Speaker 1: the captain of the Philadelphia Eagles when he injured his 6 00:00:29,800 --> 00:00:33,360 Speaker 1: knee in a game with the Carolina Panthers in twenty seventeen. 7 00:00:33,840 --> 00:00:37,880 Speaker 1: He never played in an NFL game again. Maragos says 8 00:00:37,960 --> 00:00:40,839 Speaker 1: it was the medical team's failure to properly treat his 9 00:00:40,920 --> 00:00:45,400 Speaker 1: knee that ended his career, and a jury agreed awarding 10 00:00:45,440 --> 00:00:48,839 Speaker 1: Maragos forty three point five million dollars in a medical 11 00:00:48,880 --> 00:00:52,800 Speaker 1: malpractice lawsuit joining me is Harry Nelson of Nelson Hardeman. 12 00:00:53,000 --> 00:00:57,000 Speaker 1: Harry described the allegations here. He suffered an on field 13 00:00:57,040 --> 00:00:59,600 Speaker 1: injury and that was when there was a diagnosis by 14 00:00:59,600 --> 00:01:04,360 Speaker 1: the POD of this posterior appreciate ligament injury. But the 15 00:01:04,400 --> 00:01:07,200 Speaker 1: basis of this jury verdicure was that these doctors either 16 00:01:07,240 --> 00:01:10,080 Speaker 1: misagnosed or didn't take seriously enough this issue of a 17 00:01:10,120 --> 00:01:12,600 Speaker 1: meniscule care at the same time they were treating the 18 00:01:12,640 --> 00:01:15,440 Speaker 1: other ligament. And I virtue of missing that and sort 19 00:01:15,440 --> 00:01:18,319 Speaker 1: of advancing Moragos and giving him a green light to 20 00:01:18,640 --> 00:01:22,200 Speaker 1: start to practice and play again. They basically let that 21 00:01:22,360 --> 00:01:24,800 Speaker 1: meniscus care get much much worse and get to a 22 00:01:24,840 --> 00:01:27,880 Speaker 1: point that it ended his playing careers. The doctors the 23 00:01:27,920 --> 00:01:32,160 Speaker 1: defendants who oversaw his rehabilitation said that they were aware 24 00:01:32,200 --> 00:01:35,120 Speaker 1: of the meniscus issue, but deemed that the tissue was 25 00:01:35,200 --> 00:01:38,360 Speaker 1: stable and that surgery would have caused more harm than good. 26 00:01:38,640 --> 00:01:42,520 Speaker 1: The defendant, James Bradley, who's been the head orthopedic surgeon 27 00:01:42,640 --> 00:01:46,880 Speaker 1: for the Pittsburgh Steelers for about thirty years, testified that 28 00:01:46,920 --> 00:01:49,880 Speaker 1: if Marigos had needed a second surgery, he would have 29 00:01:49,960 --> 00:01:52,880 Speaker 1: done it. Quote, I'm a surgeon. That's what I do. 30 00:01:53,240 --> 00:01:55,800 Speaker 1: If I had to operate on that, I'd operate on 31 00:01:55,880 --> 00:01:59,600 Speaker 1: that in a heartbeat. The general kind of message that 32 00:01:59,640 --> 00:02:03,440 Speaker 1: you get from orthopedic surgeons and orthopods in general is 33 00:02:03,680 --> 00:02:06,000 Speaker 1: that the miniscus will heal itself on its own, and 34 00:02:06,040 --> 00:02:09,240 Speaker 1: that surgery is not the number one option as opposed 35 00:02:09,240 --> 00:02:11,480 Speaker 1: to certain kinds of knee injuries that are definitely not 36 00:02:11,560 --> 00:02:14,320 Speaker 1: going to heal themselves like apls classically. So I think 37 00:02:14,360 --> 00:02:16,760 Speaker 1: there's a little bit of a division of opinion here, 38 00:02:17,240 --> 00:02:20,520 Speaker 1: and it sounds like the advice that was given was 39 00:02:20,760 --> 00:02:23,840 Speaker 1: very common but most people would get And the question 40 00:02:24,160 --> 00:02:26,800 Speaker 1: is whether a professional athlete, you know, who was going 41 00:02:26,840 --> 00:02:29,960 Speaker 1: to be putting a different level of strain on his meniscus, 42 00:02:30,000 --> 00:02:32,560 Speaker 1: should have gotten different advice than you know, the sort 43 00:02:32,600 --> 00:02:36,320 Speaker 1: of weekend warrior or whatever. Is there any indication that 44 00:02:36,600 --> 00:02:39,320 Speaker 1: the doctors were being pressured to get him back on 45 00:02:39,360 --> 00:02:42,280 Speaker 1: the field. I guess the feeling that was in the background, 46 00:02:42,280 --> 00:02:45,280 Speaker 1: but it wasn't explicitly part of this case. But it 47 00:02:45,360 --> 00:02:49,080 Speaker 1: clearly seems that was the message that Chrismarrogus's attorney was making, 48 00:02:49,280 --> 00:02:53,000 Speaker 1: and one that presumably the jury bought into. Frankly, I 49 00:02:53,080 --> 00:02:55,799 Speaker 1: worry about whether a jury of lay people is that's 50 00:02:55,800 --> 00:02:58,560 Speaker 1: our system, but whether that's the best way to get 51 00:02:58,600 --> 00:03:02,720 Speaker 1: a complex diagnostic and treatment issue like this decided by 52 00:03:02,760 --> 00:03:04,040 Speaker 1: the way. One of the things that a lot of 53 00:03:04,080 --> 00:03:07,080 Speaker 1: people are questioning is, you know, how this decision was 54 00:03:07,120 --> 00:03:10,720 Speaker 1: made without There was no orthopedic surgeon who testified for 55 00:03:11,000 --> 00:03:13,120 Speaker 1: the plantiff in this case. It was a trauma surgeon, 56 00:03:13,160 --> 00:03:16,280 Speaker 1: somebody who's in a totally different specialty who they relied upon. 57 00:03:16,680 --> 00:03:20,040 Speaker 1: So it's not like the orthopedic community was divided over 58 00:03:20,080 --> 00:03:23,640 Speaker 1: this case. I'm wondering if, too, if the jury was 59 00:03:23,680 --> 00:03:27,680 Speaker 1: a little bit star struck because there was a star 60 00:03:27,800 --> 00:03:31,000 Speaker 1: studded witness list, at least a star studded football player's 61 00:03:31,080 --> 00:03:34,720 Speaker 1: witness list. His former teammates Nick Foles, Trey Burton, and 62 00:03:34,840 --> 00:03:39,760 Speaker 1: Jordan Hicks testified and he testified, and I wonder how 63 00:03:39,840 --> 00:03:43,160 Speaker 1: much that had to do with the verdict. I think 64 00:03:43,160 --> 00:03:47,040 Speaker 1: it's a fair question, clearly, you know, I think the 65 00:03:47,160 --> 00:03:50,120 Speaker 1: jury got kind of a window into this world of 66 00:03:50,200 --> 00:03:54,240 Speaker 1: sports celebrity. My sense is that that a jury made 67 00:03:54,240 --> 00:03:57,000 Speaker 1: a decision, you know, on the basis of a lot 68 00:03:57,000 --> 00:04:00,520 Speaker 1: of sympathetic testimony from people who, you know, who they 69 00:04:00,520 --> 00:04:03,560 Speaker 1: may have been excited to hear from, but it didn't 70 00:04:03,560 --> 00:04:07,920 Speaker 1: really get the on point medical insight from a true 71 00:04:08,000 --> 00:04:10,800 Speaker 1: expert on this procedure. Not to take away anything away 72 00:04:10,800 --> 00:04:13,080 Speaker 1: from trauma surgeons, but they work in a very different 73 00:04:13,120 --> 00:04:16,400 Speaker 1: environment with a very different set of choices. That's what 74 00:04:16,520 --> 00:04:20,680 Speaker 1: makes me question the reasonableness of this decision. Now, the 75 00:04:20,800 --> 00:04:24,120 Speaker 1: jury took less than three hours to deliberate after a 76 00:04:24,120 --> 00:04:27,719 Speaker 1: two week trial that had reams of doctors notes, MRIs 77 00:04:27,880 --> 00:04:31,920 Speaker 1: medical charts, A video of the surgery and medical testimony. 78 00:04:32,240 --> 00:04:34,279 Speaker 1: There's a lot to worry about here. I will not 79 00:04:34,360 --> 00:04:37,960 Speaker 1: be shocked if this decision get modified or reversed on appeal. 80 00:04:38,400 --> 00:04:40,320 Speaker 1: It seems like there was a kind of a rush 81 00:04:40,360 --> 00:04:43,800 Speaker 1: to judgment here. What kind of a pellet issue do 82 00:04:43,839 --> 00:04:46,719 Speaker 1: you see? Though? It's an unusual case because obviously the 83 00:04:47,000 --> 00:04:51,400 Speaker 1: you know, forty million dollars in plus millions is all 84 00:04:51,480 --> 00:04:55,920 Speaker 1: economic laws. So I think the question of the reasonableness 85 00:04:55,960 --> 00:05:00,359 Speaker 1: of the Trier fact relying upon a surgeon was not 86 00:05:00,400 --> 00:05:02,960 Speaker 1: as specialist, and the decision of the judge let that 87 00:05:03,000 --> 00:05:05,440 Speaker 1: issue go to the jury is to me a question 88 00:05:05,480 --> 00:05:08,400 Speaker 1: that is likely to come up on appeal. As far 89 00:05:08,440 --> 00:05:12,400 Speaker 1: as the verdict itself, eight year career, which is more 90 00:05:12,440 --> 00:05:15,920 Speaker 1: than double the average NFL career. He's thirty one at 91 00:05:15,920 --> 00:05:19,480 Speaker 1: the time, and a financial analyst told the jury that 92 00:05:20,000 --> 00:05:22,960 Speaker 1: having his career cut short cost him at least eight 93 00:05:23,000 --> 00:05:27,000 Speaker 1: point seven million dollars in future NFL earnings had he 94 00:05:27,040 --> 00:05:30,040 Speaker 1: been able to play through twenty twenty two. The award 95 00:05:30,200 --> 00:05:32,680 Speaker 1: was five times that amount. Where do you think that 96 00:05:32,800 --> 00:05:35,120 Speaker 1: number came from? I'm not sure how they got to 97 00:05:35,200 --> 00:05:37,960 Speaker 1: such an inflated number. By the way, I think that's 98 00:05:38,000 --> 00:05:41,560 Speaker 1: also a legitimate basis for an appeal and a reason 99 00:05:41,600 --> 00:05:44,480 Speaker 1: this could get cut down. Honestly, I think the suggestion 100 00:05:44,520 --> 00:05:47,400 Speaker 1: that the jury got excited to be brought into the 101 00:05:47,400 --> 00:05:50,080 Speaker 1: middle of this sort of sect the case, you know, 102 00:05:50,160 --> 00:05:53,480 Speaker 1: with major sports celebrities, it certainly is plausible here and 103 00:05:53,880 --> 00:05:57,120 Speaker 1: a good reason why an appellate court should consider sort 104 00:05:57,160 --> 00:05:59,719 Speaker 1: of cutting this down to size if the verdict stands 105 00:05:59,720 --> 00:06:04,039 Speaker 1: at all. And also, this is a Philadelphia jury, a 106 00:06:04,120 --> 00:06:07,680 Speaker 1: trial happening at about the same time the hometown Eagles 107 00:06:07,720 --> 00:06:10,360 Speaker 1: were making a run to the super Bowl. It sort 108 00:06:10,400 --> 00:06:14,280 Speaker 1: of adds to the pizzazz. Yeah. Look, I think Moragos 109 00:06:14,320 --> 00:06:17,560 Speaker 1: made a sympathetic case to the story that he would 110 00:06:17,560 --> 00:06:18,920 Speaker 1: have been out there. He would have been out there 111 00:06:18,920 --> 00:06:21,800 Speaker 1: playing on Sunday in the Super Bowl, you know, had 112 00:06:21,839 --> 00:06:25,920 Speaker 1: it not been for doctors making new this decision. So yeah, 113 00:06:25,960 --> 00:06:29,880 Speaker 1: it definitely seems that this is not a decision that 114 00:06:30,040 --> 00:06:35,120 Speaker 1: has hallmarks of kind of careful reason dispassionate thinking. And 115 00:06:36,040 --> 00:06:39,040 Speaker 1: you know, as sympathetic as I am to Chris Maragos 116 00:06:39,040 --> 00:06:42,000 Speaker 1: that he should get the appropriate care and diagnosis, I 117 00:06:42,080 --> 00:06:45,160 Speaker 1: do worry that this one does not seem to be 118 00:06:45,560 --> 00:06:48,360 Speaker 1: a decision that was made with a lot of care 119 00:06:48,480 --> 00:06:51,680 Speaker 1: for forgetting it exactly right. Let me ask you this. 120 00:06:51,800 --> 00:06:56,520 Speaker 1: Neither the NFL nor any NFL team was a defendant 121 00:06:56,720 --> 00:07:00,159 Speaker 1: in this lawsuit. And if there was this push to 122 00:07:00,200 --> 00:07:03,919 Speaker 1: get him back before the time when he should have 123 00:07:04,000 --> 00:07:09,480 Speaker 1: been physically, why wouldn't the team be also liable. It's 124 00:07:09,480 --> 00:07:11,720 Speaker 1: a great question, you know, obviously there are all kinds 125 00:07:11,760 --> 00:07:16,360 Speaker 1: of contractual provisions about players having the final decisions. It's 126 00:07:16,400 --> 00:07:20,560 Speaker 1: certainly a big question what the potential liability of a 127 00:07:20,600 --> 00:07:23,840 Speaker 1: sports team is if it pushes somebody back too hard. 128 00:07:24,200 --> 00:07:26,960 Speaker 1: I know that these issues come up in the contracts 129 00:07:26,960 --> 00:07:29,800 Speaker 1: and in the negotiations, and you know, our issues that 130 00:07:29,840 --> 00:07:31,800 Speaker 1: are covered by lots of insurance, but I think it's 131 00:07:31,840 --> 00:07:34,800 Speaker 1: a it's a good point that these kinds of decisions 132 00:07:34,840 --> 00:07:37,840 Speaker 1: seems have to be very very careful about making sure 133 00:07:37,840 --> 00:07:40,600 Speaker 1: players take the time that they need. Obviously, we've seen 134 00:07:40,600 --> 00:07:43,040 Speaker 1: the NFL step in in areas like traumatic brain injury 135 00:07:43,040 --> 00:07:47,000 Speaker 1: and concussion watch and imposed external requirements just to make 136 00:07:47,000 --> 00:07:50,040 Speaker 1: sure that there's no you know, taking of liberties on that. 137 00:07:50,120 --> 00:07:53,600 Speaker 1: But I think this case raises hard questions about how 138 00:07:53,680 --> 00:07:56,840 Speaker 1: these decisions get made, and honestly, if I was a 139 00:07:56,920 --> 00:07:59,520 Speaker 1: doctor treating an NFL players, I would definitely be a 140 00:07:59,520 --> 00:08:02,640 Speaker 1: little more worried than I was before this Sivertic Well 141 00:08:02,720 --> 00:08:06,320 Speaker 1: Marigo said, I hope this decision sends a message to 142 00:08:06,400 --> 00:08:11,400 Speaker 1: team's medical staffs that players are people, not just contracts. 143 00:08:11,600 --> 00:08:15,040 Speaker 1: And his attorney said, this case and this jury may 144 00:08:15,040 --> 00:08:18,160 Speaker 1: have changed the course of history by now forcing these 145 00:08:18,200 --> 00:08:21,240 Speaker 1: team doctors and trainers to stop worrying about when a 146 00:08:21,280 --> 00:08:24,240 Speaker 1: player might return to play and start thinking about the 147 00:08:24,280 --> 00:08:27,120 Speaker 1: next fifty years of a player's life. So do you 148 00:08:27,160 --> 00:08:30,200 Speaker 1: think that they're right. I think that's very harsh, and 149 00:08:30,360 --> 00:08:33,000 Speaker 1: I think that hyperbole. You know, I've been involved in 150 00:08:33,040 --> 00:08:37,600 Speaker 1: some legal issues around professional sports team around like prescribing 151 00:08:37,840 --> 00:08:41,840 Speaker 1: and medication, and it's a very complex environment with these 152 00:08:41,920 --> 00:08:47,760 Speaker 1: incredibly high level athletes and very serious medical trainers and physicians. 153 00:08:47,800 --> 00:08:50,560 Speaker 1: And the suggestion that people are just sort of, you know, 154 00:08:50,640 --> 00:08:55,120 Speaker 1: putting patient concerned patient health second, in the interest of 155 00:08:55,120 --> 00:08:57,360 Speaker 1: getting players back on the field, to me, is just 156 00:08:57,440 --> 00:09:00,720 Speaker 1: not consistent with any of the fessionals that I know 157 00:09:00,760 --> 00:09:03,000 Speaker 1: in this area or in the way this business works. 158 00:09:03,080 --> 00:09:06,040 Speaker 1: There are hard choices, but I think for many players, 159 00:09:06,120 --> 00:09:08,840 Speaker 1: because they themselves are pushing and the doctors are the 160 00:09:08,840 --> 00:09:11,520 Speaker 1: ones telling them to slowdowns. I understand that Chris Morago 161 00:09:11,679 --> 00:09:14,680 Speaker 1: feels very wrong here and that his lawyer the fully 162 00:09:14,720 --> 00:09:16,760 Speaker 1: in sported that, but I don't think it aligns with 163 00:09:16,960 --> 00:09:20,280 Speaker 1: the reality on the ground where where doctors really are 164 00:09:20,400 --> 00:09:24,040 Speaker 1: and trainers are working hard to not take risks in 165 00:09:24,080 --> 00:09:26,920 Speaker 1: a sport that is just imposing enormous health risks on 166 00:09:27,360 --> 00:09:30,520 Speaker 1: people just for being out there on the field every Sunday. 167 00:09:30,520 --> 00:09:32,880 Speaker 1: Is it unusual that this case got to trial or 168 00:09:32,960 --> 00:09:35,839 Speaker 1: these the kinds of cases that are usually settled. No, 169 00:09:35,920 --> 00:09:38,120 Speaker 1: it's a great point, first of all, in general medical 170 00:09:38,200 --> 00:09:41,160 Speaker 1: man practice cases that'll I think it's well over a 171 00:09:41,280 --> 00:09:44,680 Speaker 1: ninety flips, So it was an unusual case. I think 172 00:09:44,720 --> 00:09:48,640 Speaker 1: that whenever you have these economic damages that are kind 173 00:09:48,679 --> 00:09:51,480 Speaker 1: of lost economic opportunity on the part of Chris Morago 174 00:09:51,960 --> 00:09:54,840 Speaker 1: or a person who's a real high earner, it creates 175 00:09:55,000 --> 00:09:58,800 Speaker 1: very difficult, unusual situations because for most of us, you know, 176 00:09:58,840 --> 00:10:01,520 Speaker 1: the impact, the economy impact of a knee injury like 177 00:10:01,559 --> 00:10:05,440 Speaker 1: this would not come anywhere close to tens of millions 178 00:10:05,440 --> 00:10:08,200 Speaker 1: of dollars. So I think it's an unusual case, clearly 179 00:10:08,360 --> 00:10:12,600 Speaker 1: on the insurance company and the defense side, they had 180 00:10:12,640 --> 00:10:14,480 Speaker 1: this one back, they would have kind of bitten the 181 00:10:14,520 --> 00:10:17,760 Speaker 1: bullet and taken an extensive settlement if that was available. 182 00:10:17,760 --> 00:10:19,600 Speaker 1: I don't I don't know how that really went, but 183 00:10:20,200 --> 00:10:22,200 Speaker 1: I certainly think the future cases there'll be a lot 184 00:10:22,280 --> 00:10:24,720 Speaker 1: more pressure to settle, both on the defense council and 185 00:10:24,760 --> 00:10:27,560 Speaker 1: on the insurance companies as a result of this verdict. Harry, 186 00:10:27,600 --> 00:10:30,440 Speaker 1: do you think this verdict will bring changes before the 187 00:10:30,520 --> 00:10:34,480 Speaker 1: injury happens. I think it's a very tough environment. Look, 188 00:10:34,520 --> 00:10:36,760 Speaker 1: I think to focus on the traumatic brain injuries and 189 00:10:36,800 --> 00:10:40,400 Speaker 1: in general, on the pounding that these guys take on 190 00:10:40,440 --> 00:10:42,920 Speaker 1: their on their bodies, you know, in the scent to 191 00:10:43,000 --> 00:10:46,960 Speaker 1: which so many x NFL people have trouble walking, you know, 192 00:10:47,200 --> 00:10:51,600 Speaker 1: have major major physical consequences down the road for their 193 00:10:51,600 --> 00:10:54,280 Speaker 1: playing careers. Is a huge, huge issue that needs more 194 00:10:54,320 --> 00:10:57,559 Speaker 1: attention than Honestly, if this case does one good thing 195 00:10:57,600 --> 00:11:01,480 Speaker 1: in terms of calling calling attention to beyond brain injuries 196 00:11:01,520 --> 00:11:03,480 Speaker 1: to the ways in which we need to be worried 197 00:11:03,520 --> 00:11:06,080 Speaker 1: about the limits of how far people can go in 198 00:11:06,120 --> 00:11:08,800 Speaker 1: professional sports, and you know, I think that would be 199 00:11:08,800 --> 00:11:11,200 Speaker 1: a good thing. Maybe all of that was playing in 200 00:11:11,240 --> 00:11:16,079 Speaker 1: the subconscious of the jurors. You know all the revelations 201 00:11:16,120 --> 00:11:19,800 Speaker 1: about concussions in the NFL. Yeah, yeah, I think, and 202 00:11:19,840 --> 00:11:21,640 Speaker 1: I think it's a good thing. I remember I was 203 00:11:21,679 --> 00:11:24,720 Speaker 1: in law school thirty years ago. I remember hearing Lee Steinberg, 204 00:11:24,760 --> 00:11:26,800 Speaker 1: who was one of the early super agents. He was 205 00:11:26,840 --> 00:11:29,480 Speaker 1: talking twenty five years ago about and people focus on 206 00:11:29,520 --> 00:11:32,440 Speaker 1: the high salaries these guys get for playing professional football, 207 00:11:32,720 --> 00:11:35,440 Speaker 1: but in fact his description was of people who really 208 00:11:35,520 --> 00:11:38,920 Speaker 1: sacrifice their bodies and taked for it with pain and 209 00:11:38,960 --> 00:11:41,760 Speaker 1: with really lost mobility and the rest of their lives 210 00:11:42,120 --> 00:11:44,360 Speaker 1: in many cases. So I think it's a good thing 211 00:11:44,760 --> 00:11:47,800 Speaker 1: that we're calling attention to that. And if this leads 212 00:11:47,800 --> 00:11:51,680 Speaker 1: to more conservative decision making by teams, by doctors, I 213 00:11:51,760 --> 00:11:54,600 Speaker 1: personally think that's a good thing. Thanks Harry. That's Harry 214 00:11:54,679 --> 00:11:59,679 Speaker 1: Nelson of Nelson Hardeman. The Second Circuit Court of Appeals 215 00:12:00,080 --> 00:12:03,200 Speaker 1: is deciding whether Vermont Law School will be allowed to 216 00:12:03,280 --> 00:12:08,120 Speaker 1: permanently cover murals depicting the underground Railroad without violating an 217 00:12:08,200 --> 00:12:11,960 Speaker 1: artist rights law. Artist Samuel Kerson argued that the school 218 00:12:12,080 --> 00:12:15,880 Speaker 1: hiding his two nineteen ninety four murals behind bolted in 219 00:12:16,080 --> 00:12:20,960 Speaker 1: acoustic panels violates the Visual Arts Rights Act or Vera, 220 00:12:21,000 --> 00:12:23,280 Speaker 1: but the school says it complied with the law when 221 00:12:23,280 --> 00:12:26,680 Speaker 1: it hid murals that students complained about for decades as 222 00:12:26,760 --> 00:12:31,480 Speaker 1: cartoonish depictions of slaves and promotion of the white savior complex. 223 00:12:31,800 --> 00:12:35,640 Speaker 1: The dispute raises questions regarding how far via limits the 224 00:12:35,720 --> 00:12:38,800 Speaker 1: property right of owners of physical art. Joining me is 225 00:12:38,840 --> 00:12:42,080 Speaker 1: Bloomberg Law reporter Kyle Janner. Kyle tell us a little 226 00:12:42,080 --> 00:12:45,200 Speaker 1: about these murals and the fight over them. The mural 227 00:12:45,559 --> 00:12:49,160 Speaker 1: is actually two large panels that were put up in 228 00:12:49,320 --> 00:12:53,360 Speaker 1: the Vermont School of Law in nineteen ninety four, and 229 00:12:53,600 --> 00:12:58,000 Speaker 1: they're kind of be really colorful depictions of various aspects 230 00:12:58,000 --> 00:13:01,160 Speaker 1: of you know, I guess, the underground railroad and slavery, 231 00:13:01,160 --> 00:13:05,560 Speaker 1: and you know, nominally to depict Vermont's involvement in the 232 00:13:05,640 --> 00:13:10,640 Speaker 1: underground railroad. Apparently for decades students have complained that the 233 00:13:11,160 --> 00:13:15,000 Speaker 1: pictions of those slaves are quite cartoonish, and that it 234 00:13:15,080 --> 00:13:17,840 Speaker 1: also kind of portrays kind of a white savior complex. 235 00:13:18,240 --> 00:13:20,960 Speaker 1: There's kind of the message, so that the schools wanted 236 00:13:21,000 --> 00:13:23,800 Speaker 1: to take it down. The problem is that there's this 237 00:13:24,120 --> 00:13:28,199 Speaker 1: Visual Artist Rights Act that allows artists to protect their 238 00:13:28,240 --> 00:13:31,160 Speaker 1: work from being altered to you know, make their art 239 00:13:31,240 --> 00:13:33,400 Speaker 1: not what they wanted it to be, and also to 240 00:13:33,640 --> 00:13:36,000 Speaker 1: not have it destroy kind of without any notice or 241 00:13:36,000 --> 00:13:40,520 Speaker 1: their consent. It's got some pretty strong wording in some places. 242 00:13:40,520 --> 00:13:44,040 Speaker 1: But also the school gave him notice, offered him as 243 00:13:44,040 --> 00:13:47,640 Speaker 1: the artist, a chance to remove the painting, and he 244 00:13:47,679 --> 00:13:50,000 Speaker 1: said there's no way to possibly do it without destroying 245 00:13:50,000 --> 00:13:52,880 Speaker 1: the murals. So they said, well then we're going to 246 00:13:53,120 --> 00:13:55,200 Speaker 1: cover him over or something at this point, and he 247 00:13:55,280 --> 00:13:56,960 Speaker 1: really kind of fought the truth and nail, and then 248 00:13:57,280 --> 00:13:59,640 Speaker 1: they came down on a solution of bolting these large 249 00:13:59,679 --> 00:14:02,240 Speaker 1: pan that you know, completely covered them, so they didn't 250 00:14:02,280 --> 00:14:05,080 Speaker 1: destroy the art, but they make it impossible for them 251 00:14:05,160 --> 00:14:08,319 Speaker 1: to be seen. And they said they have no intention 252 00:14:08,360 --> 00:14:11,600 Speaker 1: of ever taking down the panels. So the artist sue 253 00:14:11,640 --> 00:14:13,960 Speaker 1: and saying that's, you know, it's the same thing as 254 00:14:14,160 --> 00:14:18,719 Speaker 1: you know, destroying them. The counter argument has included things like, 255 00:14:19,000 --> 00:14:21,400 Speaker 1: if a museum decides to put a painting into a closet, 256 00:14:21,400 --> 00:14:23,760 Speaker 1: the arts can't sue them or taking it out of 257 00:14:23,800 --> 00:14:26,320 Speaker 1: public views, so this really shouldn't be that much different. 258 00:14:26,360 --> 00:14:28,400 Speaker 1: They they don't have a right to protect the art 259 00:14:28,680 --> 00:14:31,640 Speaker 1: and force it to be seen when it's you know, 260 00:14:32,000 --> 00:14:35,760 Speaker 1: on someone else's property, So it's gotten up to this point. 261 00:14:35,840 --> 00:14:38,240 Speaker 1: I don't think it certainly didn't seem like the Second 262 00:14:38,280 --> 00:14:42,360 Speaker 1: Circuit judges were all that intent on reversing the decisions 263 00:14:42,440 --> 00:14:45,680 Speaker 1: to say that the Vermont Law School didn't have to 264 00:14:45,720 --> 00:14:48,280 Speaker 1: take down the panels or didn't create any violations by 265 00:14:48,320 --> 00:14:50,800 Speaker 1: putting them up. So I think, to the average person 266 00:14:51,280 --> 00:14:54,560 Speaker 1: who's seen, you know, monuments come down and all kinds 267 00:14:54,560 --> 00:14:58,120 Speaker 1: of things come down as society has changed and what's 268 00:14:58,160 --> 00:15:02,520 Speaker 1: acceptable has changed, this scene kind of odd. In twenty 269 00:15:02,560 --> 00:15:04,680 Speaker 1: twenty one, how did the District Court rule? What did 270 00:15:04,680 --> 00:15:08,800 Speaker 1: it base its decision on? The District Court said that 271 00:15:09,080 --> 00:15:12,440 Speaker 1: the law doesn't cover hiding work even though you know 272 00:15:12,480 --> 00:15:15,360 Speaker 1: both party degree that it'll be impossible to remove them. 273 00:15:15,480 --> 00:15:18,360 Speaker 1: It says that VARA is mainly designed to protect the 274 00:15:18,400 --> 00:15:20,720 Speaker 1: integrity of works, but not necessarily the right to be 275 00:15:20,720 --> 00:15:24,240 Speaker 1: publicly visible. As they said, So mural is still there 276 00:15:24,320 --> 00:15:28,560 Speaker 1: and it still exists. It's not destroyed, it just can't 277 00:15:28,560 --> 00:15:32,920 Speaker 1: be seen. And VARA wasn't designed to have every piece 278 00:15:32,960 --> 00:15:36,000 Speaker 1: of art that's visible, you know, in control of another party. Again, 279 00:15:36,040 --> 00:15:37,760 Speaker 1: as you know, we're talking about art that is not 280 00:15:37,960 --> 00:15:40,640 Speaker 1: in the possession of the artist anymore. They don't have 281 00:15:40,680 --> 00:15:43,120 Speaker 1: the right to, you know, make them show it everywhere 282 00:15:43,240 --> 00:15:46,120 Speaker 1: and forever. So n Core came down that way, and 283 00:15:46,240 --> 00:15:47,800 Speaker 1: you know, it is an interesting area of law. There's 284 00:15:47,800 --> 00:15:50,160 Speaker 1: been a lot of cases in the past, including a 285 00:15:50,240 --> 00:15:53,520 Speaker 1: giant mural that got painted over in New York City. 286 00:15:54,000 --> 00:15:55,800 Speaker 1: It was a kind of a graffiti art that the 287 00:15:55,840 --> 00:15:59,120 Speaker 1: owner of the building painted over. That led to a 288 00:15:59,160 --> 00:16:02,680 Speaker 1: second circuit. Was the question whether graffiti's art or what 289 00:16:02,840 --> 00:16:05,920 Speaker 1: was the question? The second circuit affirmed a six point 290 00:16:05,960 --> 00:16:10,040 Speaker 1: five million dollars award. Actually in that case, Queensland developer 291 00:16:10,440 --> 00:16:12,800 Speaker 1: you know, has paid the graffiti artist because of the 292 00:16:12,800 --> 00:16:16,040 Speaker 1: BISI Artist Rights Act. Even though the graffiti wasn't necessarily 293 00:16:16,600 --> 00:16:20,120 Speaker 1: intended to be permanent. The property owner was looking to 294 00:16:20,160 --> 00:16:23,440 Speaker 1: demolish the buildings to the luxury apartments. The artists sued 295 00:16:23,920 --> 00:16:28,440 Speaker 1: to protect the graffiti, and Brooklyn District Court denied their 296 00:16:28,600 --> 00:16:31,560 Speaker 1: motion for a preliminary injunction, but it said it would 297 00:16:31,920 --> 00:16:35,560 Speaker 1: issue an opinion shortly after. And then the property owner 298 00:16:35,560 --> 00:16:39,640 Speaker 1: painted over the artwork in between the court's denial of 299 00:16:39,720 --> 00:16:43,480 Speaker 1: injunction and a court opinion after that. A jury later 300 00:16:43,600 --> 00:16:47,760 Speaker 1: determined that the property owners violated the law by Washington graffiti, 301 00:16:48,160 --> 00:16:50,640 Speaker 1: and the judge a ward of the damages. Actually, so 302 00:16:51,160 --> 00:16:53,600 Speaker 1: in the second circuit to upheld that. So I think 303 00:16:54,480 --> 00:16:57,520 Speaker 1: we're always back dependent. But yeah, it's this all sends 304 00:16:57,640 --> 00:17:00,400 Speaker 1: kind of from in Europe. There was all was in 305 00:17:00,520 --> 00:17:03,760 Speaker 1: a pretty strong moral rights that are a little bit 306 00:17:03,800 --> 00:17:07,000 Speaker 1: different than copyright. There's kind of a more equitab view 307 00:17:07,160 --> 00:17:10,640 Speaker 1: of you know what an artists rights over their creation. 308 00:17:11,280 --> 00:17:14,359 Speaker 1: And as part of the Burn Convention, which is in 309 00:17:14,400 --> 00:17:18,920 Speaker 1: a national tree, countries agree to certain standards on intellectual 310 00:17:19,000 --> 00:17:21,840 Speaker 1: property law. The US was required to do a little 311 00:17:21,880 --> 00:17:24,480 Speaker 1: bit of something on that front, and Vara was kind 312 00:17:24,480 --> 00:17:27,280 Speaker 1: of the answer to that. So, um, we again can 313 00:17:27,280 --> 00:17:30,480 Speaker 1: incorporate some aspects of moral rights. So I think they're 314 00:17:30,480 --> 00:17:33,680 Speaker 1: a little bit more robust in Europe and some all 315 00:17:33,720 --> 00:17:36,919 Speaker 1: the places. But Varro is still there and gives at 316 00:17:37,000 --> 00:17:39,680 Speaker 1: least limited rights. You generally have to give notice, and 317 00:17:39,920 --> 00:17:42,920 Speaker 1: you know, it's not all encompassing. There's not You're not 318 00:17:43,040 --> 00:17:46,080 Speaker 1: completely stuck as a property owner in a lot of cases, 319 00:17:46,119 --> 00:17:48,480 Speaker 1: but you do have to you know, jump through through 320 00:17:48,560 --> 00:17:51,520 Speaker 1: some hopes. So at the second circuit, one of the 321 00:17:51,640 --> 00:17:54,960 Speaker 1: judges said, what about taking down art and putting it 322 00:17:55,160 --> 00:17:58,520 Speaker 1: in a closet. So that's allowed taking down art and 323 00:17:58,600 --> 00:18:00,920 Speaker 1: putting it in the closet, But you can't cooperate out 324 00:18:00,920 --> 00:18:04,320 Speaker 1: I mean the artist if you, because otherwise the museum 325 00:18:04,359 --> 00:18:07,280 Speaker 1: could never change which arts are out on display in 326 00:18:07,359 --> 00:18:09,680 Speaker 1: a museum. So you know, it's you're not destroying the 327 00:18:09,720 --> 00:18:11,760 Speaker 1: instegrity of the work. You're just deciding, oh, I'm going 328 00:18:11,800 --> 00:18:14,159 Speaker 1: to put this piece out today, and then this pis 329 00:18:14,240 --> 00:18:16,800 Speaker 1: out tomorrow, or this week's out in January, and then 330 00:18:17,600 --> 00:18:21,439 Speaker 1: in February, we've got a special exhibit coming in from 331 00:18:21,480 --> 00:18:23,280 Speaker 1: out of town, and this stuff will go in the closet. 332 00:18:23,600 --> 00:18:26,160 Speaker 1: The VART doesn't protect your right to have your work 333 00:18:26,680 --> 00:18:30,520 Speaker 1: displayed where it is right now forever. If you have 334 00:18:30,600 --> 00:18:33,760 Speaker 1: the Mona Lisa, and you know, as someone takes your 335 00:18:33,840 --> 00:18:36,280 Speaker 1: art and then paint and paints over, like you know, 336 00:18:36,320 --> 00:18:38,359 Speaker 1: her picking your nose or something, then that would kind 337 00:18:38,400 --> 00:18:42,760 Speaker 1: of speak to the integrity of the work. I would 338 00:18:42,800 --> 00:18:45,359 Speaker 1: be kind of damaged there, and you know that's the 339 00:18:45,480 --> 00:18:48,000 Speaker 1: kind of thing, or just any other kind of destruction 340 00:18:48,240 --> 00:18:52,760 Speaker 1: or mutilation of the work. It becomes an issue at 341 00:18:52,840 --> 00:18:54,840 Speaker 1: that point. But like I said, it's not necessarily a 342 00:18:54,920 --> 00:18:58,960 Speaker 1: display right. But these cases get complicated when it's a 343 00:18:59,119 --> 00:19:02,200 Speaker 1: mural or a at you that's not really movable. It's 344 00:19:02,240 --> 00:19:04,480 Speaker 1: a clearer case when it's a painting, but when it's 345 00:19:04,480 --> 00:19:06,800 Speaker 1: something that you know, property owner might want to use 346 00:19:06,840 --> 00:19:08,399 Speaker 1: that walk or something, or property in or want it, 347 00:19:08,600 --> 00:19:10,800 Speaker 1: might want to tear down the building. So they at 348 00:19:10,880 --> 00:19:13,000 Speaker 1: least have to give a chance to the artists to 349 00:19:13,760 --> 00:19:15,400 Speaker 1: take the art away, to reserve it to the extent 350 00:19:15,480 --> 00:19:18,359 Speaker 1: that they can, but it doesn't give the artists the 351 00:19:18,480 --> 00:19:21,199 Speaker 1: permit right over the building. Was one of the questions 352 00:19:21,280 --> 00:19:24,600 Speaker 1: at the second circuit whether this and I understand that 353 00:19:24,720 --> 00:19:27,520 Speaker 1: the piece of plywood or whatever that's covering it is 354 00:19:27,560 --> 00:19:30,320 Speaker 1: not actually touching it. They've been really careful not to 355 00:19:30,440 --> 00:19:34,359 Speaker 1: actually touch the mural. Whether that's a modification, and the 356 00:19:34,520 --> 00:19:38,320 Speaker 1: artist was arguing that just putting that up was a modification. 357 00:19:38,720 --> 00:19:42,560 Speaker 1: Did that get any traction judges? It didn't seem to 358 00:19:42,960 --> 00:19:44,680 Speaker 1: from what I could tell from the judges. I think 359 00:19:45,160 --> 00:19:48,560 Speaker 1: one of the judges was kind of grappling it, you know, 360 00:19:48,800 --> 00:19:51,199 Speaker 1: like it seemed more of kind of an equitable concerning, 361 00:19:51,320 --> 00:19:53,159 Speaker 1: kind of a more of a moral concern of what 362 00:19:53,320 --> 00:19:55,480 Speaker 1: the rights of this artists should could or should be. 363 00:19:56,280 --> 00:19:58,640 Speaker 1: But he even he himself was like, you might lose 364 00:19:58,720 --> 00:20:01,280 Speaker 1: this on the merits, but why exactly did you do 365 00:20:01,359 --> 00:20:05,119 Speaker 1: what you did to the Law school council, And you know, 366 00:20:05,320 --> 00:20:07,280 Speaker 1: the council said, you know, we gave him, you know, 367 00:20:07,400 --> 00:20:10,760 Speaker 1: every chance. We said you can remove it, and you said, 368 00:20:10,800 --> 00:20:12,639 Speaker 1: we said, you know, we're not going to destroy it. 369 00:20:12,800 --> 00:20:15,040 Speaker 1: And we considered a curtain, but we felt like that 370 00:20:15,240 --> 00:20:17,159 Speaker 1: was going to be a distraction on top of everything. 371 00:20:17,320 --> 00:20:19,119 Speaker 1: So they wanted to say a little bit more permanent. 372 00:20:19,640 --> 00:20:21,840 Speaker 1: So and they said, you know, in the panels in 373 00:20:21,880 --> 00:20:25,159 Speaker 1: theory could be removed if a different administration decided to 374 00:20:25,200 --> 00:20:27,680 Speaker 1: take a different view. But no, there's no plans the 375 00:20:27,720 --> 00:20:30,879 Speaker 1: current administration at all to to remove the panels at 376 00:20:30,920 --> 00:20:34,160 Speaker 1: any points. At the oral arguments, was there a discussion 377 00:20:34,200 --> 00:20:38,040 Speaker 1: about why the law school was doing this, about how 378 00:20:38,160 --> 00:20:41,680 Speaker 1: students had been complaining about the mural and its depictions. 379 00:20:42,440 --> 00:20:45,200 Speaker 1: There was mentioned about the student complaints, but it wasn't 380 00:20:45,200 --> 00:20:47,359 Speaker 1: you know, they kind of focused in more on the 381 00:20:47,480 --> 00:20:50,000 Speaker 1: legal aspects of it. They're trying to figure out kind 382 00:20:50,000 --> 00:20:52,200 Speaker 1: of where these definitions are, and they talked about things 383 00:20:52,280 --> 00:20:55,040 Speaker 1: like have does the passage of time? For example, and 384 00:20:55,560 --> 00:20:58,120 Speaker 1: if you if you put this art in this situation, 385 00:20:58,359 --> 00:21:01,679 Speaker 1: and I think the law either explicitly in a case 386 00:21:01,760 --> 00:21:04,920 Speaker 1: law says, you know, passage of time doesn't really count 387 00:21:05,040 --> 00:21:07,359 Speaker 1: as a modification, or you know a threat to it 388 00:21:07,560 --> 00:21:09,800 Speaker 1: having it out on display and you over time it 389 00:21:09,880 --> 00:21:12,800 Speaker 1: gets dusty or gets aided or something like that. That 390 00:21:12,920 --> 00:21:16,080 Speaker 1: kind of thing isn't covered by the law. There's limits. So, 391 00:21:16,560 --> 00:21:19,919 Speaker 1: like most laws of this type, there's you know, exceptions, 392 00:21:20,080 --> 00:21:24,080 Speaker 1: there's waivers, there's um, you know, limit durations of right. 393 00:21:24,680 --> 00:21:26,560 Speaker 1: In these cases, there's always a munch of facts that 394 00:21:26,600 --> 00:21:29,040 Speaker 1: come into play. So the judges were kind of harping 395 00:21:29,080 --> 00:21:31,199 Speaker 1: on some of those and just kind of prodding if 396 00:21:31,240 --> 00:21:34,800 Speaker 1: there was any other avenues where this law either does 397 00:21:34,920 --> 00:21:37,320 Speaker 1: or does reply. So, Kyle, do you have an idea 398 00:21:37,320 --> 00:21:39,960 Speaker 1: how you think the second Circuit will rule. I think 399 00:21:40,040 --> 00:21:43,760 Speaker 1: it's going to be a pretty straightforward decision. I would 400 00:21:44,080 --> 00:21:46,440 Speaker 1: be pretty surprised based on the way the orals went, 401 00:21:46,600 --> 00:21:48,720 Speaker 1: which is always kind of a lawyer, I'll tell you 402 00:21:48,800 --> 00:21:51,479 Speaker 1: that dangerous thing to do is rely on the oral arguments. 403 00:21:51,520 --> 00:21:53,720 Speaker 1: But at the same time, sometimes it seems pretty clear, 404 00:21:53,760 --> 00:21:58,160 Speaker 1: and I think he's judges seems pretty ready to affirm. 405 00:21:58,280 --> 00:22:00,720 Speaker 1: For the most part. It's funny because part of the 406 00:22:00,840 --> 00:22:03,840 Speaker 1: law basically says, you know, if they sign a contract 407 00:22:03,920 --> 00:22:05,880 Speaker 1: that does the law doesn't apply, then the law doesn't apply, 408 00:22:05,960 --> 00:22:07,520 Speaker 1: which you would think. It kind of goes to that thing. 409 00:22:08,040 --> 00:22:10,320 Speaker 1: It basically he spells out that, hey, you can also 410 00:22:10,520 --> 00:22:12,760 Speaker 1: just you know, contract these rights away to the property arms. 411 00:22:12,800 --> 00:22:14,680 Speaker 1: In other words, telling the propaguinnery is that, hey, you 412 00:22:14,720 --> 00:22:17,280 Speaker 1: want to avoid this headache just to get this down 413 00:22:17,320 --> 00:22:19,080 Speaker 1: in writing that you know, I can do with my 414 00:22:19,680 --> 00:22:21,680 Speaker 1: wall what I want to do with the wall. Yeah, 415 00:22:21,720 --> 00:22:25,320 Speaker 1: and that's the terms for me commissioning you to paint 416 00:22:25,359 --> 00:22:27,840 Speaker 1: on this wall. As with most areas of while they 417 00:22:27,880 --> 00:22:30,320 Speaker 1: get really contentious, a lot of these situations can be 418 00:22:30,440 --> 00:22:32,720 Speaker 1: headed off in advance. Thanks so much for being on 419 00:22:32,760 --> 00:22:36,639 Speaker 1: the Bloomberg Last Show, Kyle. That's Bloomberg Law Reporter Kyle Janner, 420 00:22:36,920 --> 00:22:39,240 Speaker 1: and that's it for this edition of The Bloomberg Law Show. 421 00:22:39,600 --> 00:22:42,080 Speaker 1: Remember you can always get the latest legal news honor 422 00:22:42,119 --> 00:22:46,240 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 423 00:22:46,480 --> 00:22:51,440 Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law, 424 00:22:51,880 --> 00:22:54,480 Speaker 1: and remember to tune into The Bloomberg Law Show every 425 00:22:54,560 --> 00:22:58,000 Speaker 1: week night at ten pm Wall Street Time. I'm June 426 00:22:58,040 --> 00:22:59,919 Speaker 1: Grosso and you're listening to Bloom