WEBVTT - Judges Doubtful About Kat von D Tattoo Copyright Win

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<v Speaker 1>This is Bloomberg Law with June Grosso from Bloomberg Radio.

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<v Speaker 2>You can't erase a tattoo, but can you erase a

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<v Speaker 2>jury verdict about a tattoo? That's what photographer Jeffrey Sedlick

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<v Speaker 2>is asking the Ninth Circuit Court of Appeals to do.

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<v Speaker 2>The photographer sued celebrity tattoo artist Cat von Dee over

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<v Speaker 2>a tattoo she inked of legendary jazz musician Miles Davis,

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<v Speaker 2>based on Sedlick's copyrighted photograph of Davis. The jury took

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<v Speaker 2>only three hours of deliberating before it returned a verdict

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<v Speaker 2>for Cat Vonde, finding that the tattoo wasn't substantially similar

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<v Speaker 2>to the photo and didn't violate the copyright laws. But

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<v Speaker 2>on appeal to the Ninth Circuit, the judges seemed to

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<v Speaker 2>be struggling to understand how the jury could reach that

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<v Speaker 2>verdict when the tattoo and photo look alike. Here are

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<v Speaker 2>judges Kim McClain, Wardlaw and Anthony D. Johnstone.

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<v Speaker 1>We look at it, we say this is the same photograph.

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<v Speaker 1>Yet through all these machinations it ended up being the

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<v Speaker 1>jury saying, oh, but it's not substantially similar. And I

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<v Speaker 1>think it kind of defies rationality to suggest that it's

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<v Speaker 1>not the same photograph. It is the same photograph, it's

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<v Speaker 1>on a different medium, So how did the jury get

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<v Speaker 1>where it got?

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<v Speaker 3>But I think we've also said that just transferring out

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<v Speaker 3>onto a different medium can't alone be a difference, right,

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<v Speaker 3>We're looking at similarities rather than differently. So if you

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<v Speaker 3>have everything else is the same and we're just going

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<v Speaker 3>to change it from being on photo paper to someone's skin,

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<v Speaker 3>how's that?

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<v Speaker 2>But even if the judges thought the jury was wrong,

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<v Speaker 2>what could they do about it? The Ninth Circuit has

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<v Speaker 2>never reversed a jury verdict on substantial similarity A subjective

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<v Speaker 2>test joining me to answer these questions that the judges

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<v Speaker 2>struggle with is intellectual property litigator Terrence Ross, a partner

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<v Speaker 2>at Catin Yutchen Rosenmann. Terry, will you explain the test

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<v Speaker 2>used here for copyright infringement?

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<v Speaker 4>So in order to prove up a case of copyright infringement,

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<v Speaker 4>you have to show ownership of a registered copyright and

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<v Speaker 4>proof of infringement. The test for infringement in the Ninth

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<v Speaker 4>Circuit where this case takes place is well developed over

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<v Speaker 4>many years. A little bit complicated, but very well developed,

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<v Speaker 4>and it's a two part test with respect to substantial similarity. First,

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<v Speaker 4>there is what's known as the extrinsic test, which is

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<v Speaker 4>really an objective test, a fancy word for saying objective test,

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<v Speaker 4>and that's undertaken by the court by the judge who

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<v Speaker 4>determines whether or not there are objective elements that have

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<v Speaker 4>been copied that constitute the literary works expression in this case,

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<v Speaker 4>the photographic works expression, so is their reason to believe

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<v Speaker 4>that a protected element of the work was copied. Now,

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<v Speaker 4>this is easier to do, in my opinion, in cases

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<v Speaker 4>of photographs, then in movies, television shows, plays books where

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<v Speaker 4>small portions are copied and they slightly change the characters

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<v Speaker 4>or the setting or the plot, and their judges are

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<v Speaker 4>really presented with a challenging first step in this infringement

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<v Speaker 4>process that they have to undertake to determine whether or

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<v Speaker 4>not protected elements of copyright we're infringed, and they get

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<v Speaker 4>help from experts on that. The second step, assuming that

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<v Speaker 4>the copyright owner passes the first test, which is sort

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<v Speaker 4>of a gatekeeping function that the judge performs, the judge

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<v Speaker 4>that allows the infringement charge through the gate so to

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<v Speaker 4>speak to the jury, and then the jury looks at

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<v Speaker 4>the two works engages what's done as an intrinsic test,

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<v Speaker 4>which is essentially a subjective review. And the expression you

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<v Speaker 4>often here used in the case law is does the

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<v Speaker 4>look and feel of the copy work constitute an infringement

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<v Speaker 4>i e. An improper copying of the original work. So

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<v Speaker 4>there's this two part test. Part one done by the court,

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<v Speaker 4>part two done by the jury.

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<v Speaker 2>So the judge in this case allowed the infringement charged

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<v Speaker 2>through the gate, and the jury decided on the intrinsic

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<v Speaker 2>subjective test that the tattoo wasn't substantially similar to the photo.

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<v Speaker 2>But during the Ninth Circuit arguments, Judge Wardlaw said they

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<v Speaker 2>were struggling to figure out why the jury didn't find

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<v Speaker 2>that they were substantially similar. She said, it defied rationality

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<v Speaker 2>and it is the same photo, it's just in a

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<v Speaker 2>different medium. And it seemed like the other judges agreed

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<v Speaker 2>with her. Can they say the jury was wrong and

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<v Speaker 2>reverse the verdict?

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<v Speaker 4>Not really. There are some rare instances where that's happened

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<v Speaker 4>in the copyright cases, but not in the context of

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<v Speaker 4>substantial similarity, I know. But at least two cases out

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<v Speaker 4>there in the Ninth Circuit that involved the events of

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<v Speaker 4>day minimous use where he takes what such a small

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<v Speaker 4>portion of copyright at worked that the law allows you

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<v Speaker 4>to do it. And I know there have been a

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<v Speaker 4>couple of cases where the appellate court reversed a jury

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<v Speaker 4>finding on that. I've never seen it done in the

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<v Speaker 4>context of substantial similarity case here, and a lot of

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<v Speaker 4>this battle was lost by the plaintiff when the district

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<v Speaker 4>court judge, the trial judge ruled that this was not

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<v Speaker 4>a case of substantial similarity at summary judgment. The copyright

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<v Speaker 4>owner the photographer had moved for summary judgment saying, look,

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<v Speaker 4>this is no different than putting a book on a

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<v Speaker 4>xerox machine. It's literal copyright infringement and we don't need

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<v Speaker 4>a trial. And the judge discreet said it was not

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<v Speaker 4>literal copying and said that they would have to proceed

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<v Speaker 4>to trial on a theory of substantial similarity. And in

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<v Speaker 4>many respects that cost them the advantage that they had

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<v Speaker 4>the copyright owner, because then you're putting it up for

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<v Speaker 4>grabs with a jury. You just don't know how jury's

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<v Speaker 4>going to come out where you have a celebrity defendant here,

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<v Speaker 4>kat Van d who's apparently famous tattoo artists in California

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<v Speaker 4>and potentially you know, more interesting trial counts in the

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<v Speaker 4>courtroom presenting the case, and by all accounts, the defendants

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<v Speaker 4>trial attorney did a just fabulous job in the courtroom

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<v Speaker 4>of getting the jury to understand the process that the

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<v Speaker 4>tattoo artists went through and how that constituted original art

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<v Speaker 4>in a way so to Cerner think got out lawyered.

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<v Speaker 2>In the courtroom, some of the judges asked the photographer's

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<v Speaker 2>lawyer to psite grounds that would allow them to overturn

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<v Speaker 2>the jury verdict, and Judge Anthony Johnston saying it appeared

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<v Speaker 2>to be beyond our review. I mean, is there any

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<v Speaker 2>way if they feel that it's obvious that this is

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<v Speaker 2>not substantially similar and that the jury maybe was taken

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<v Speaker 2>by the celebrity fact, I mean, is there any way

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<v Speaker 2>that they would reverse the jury verdict?

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<v Speaker 4>So let me start off by saying this. The council

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<v Speaker 4>for the photographer who argued before the Ninth Circuit is

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<v Speaker 4>a well known, well respected copyright lawyer by name of

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<v Speaker 4>William Patrick. He has written one of the leading treatises

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<v Speaker 4>on copyright law, was the copyright lawyer for the House

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<v Speaker 4>of Representatives during several periods of time in which really

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<v Speaker 4>significant revisions were made for the Copyright Act, and then

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<v Speaker 4>taught copyright law for a number of years. Very well

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<v Speaker 4>respected knows copyright law. As you say, this question was

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<v Speaker 4>put to him before he had completed his first sentence

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<v Speaker 4>at oral argument before the Ninth Circuit. Can we do this?

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<v Speaker 4>Can you cite us to authority that allows us to

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<v Speaker 4>do this? And the only case is he was able

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<v Speaker 4>to cite too. Were not in the context of substantial

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<v Speaker 4>similarity cases. They were in other contexts. And certainly from

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<v Speaker 4>listening to the argument on tape, I came away apparently

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<v Speaker 4>you do that the judges would not have reached the

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<v Speaker 4>same verdict as the jury. But we're going to respect

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<v Speaker 4>the jury's verdict and affirm it. And this is the

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<v Speaker 4>whole problem with losing on the second part of the test,

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<v Speaker 4>the intrinsic subjective test that depends on the subjective view

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<v Speaker 4>the jury as to the look and feel of the

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<v Speaker 4>two works. You cannot substitute as an appellate judge your

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<v Speaker 4>opinion for that of the juries, and so I don't

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<v Speaker 4>see any way that this is going to be overturned.

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<v Speaker 2>I love this line from Photographer's Council. We don't know

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<v Speaker 2>what the jury did, and we don't know what the

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<v Speaker 2>mystery of Stonehenge is either, but we do know the

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<v Speaker 2>jury should never have done this. It must be frustrating

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<v Speaker 2>to have, you know, judges see that a jury made

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<v Speaker 2>a mistake and still can't do anything about it.

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<v Speaker 4>As a baseball guy, the only analogy I can give

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<v Speaker 4>you is umpires call them balls and strikes at home.

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<v Speaker 4>I mean, it's absolutely verboten for a manager or player

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<v Speaker 4>to challenge the calls of balls and strikes. In some

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<v Speaker 4>sort of objective sense measured by a robot. The ball

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<v Speaker 4>may have been slightly outside the plate, but that does

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<v Speaker 4>not make it a ball. The call of the umpire

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<v Speaker 4>makes it a strike, and for all purposes it is

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<v Speaker 4>a strike. And to go around saying, oh, got that

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<v Speaker 4>call wrong, No, there's no appeal from that. And it's

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<v Speaker 4>the same with a jury verdict for the most part,

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<v Speaker 4>absent fraud, jury being bribed or something like that, the

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<v Speaker 4>jury verdict stands up because you're not allowed to replace

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<v Speaker 4>your view, your personal views. A judge with that of

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<v Speaker 4>the twelve men and women of the jury. It simply

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<v Speaker 4>isn't done in Anglo American law. And that's the problem

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<v Speaker 4>you here expressed at the oral argument from these judges,

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<v Speaker 4>they would have decided it differently, but they realized that

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<v Speaker 4>they're handcuffed.

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<v Speaker 2>Terry. Judge Johnstone seemed to have some broader concerns.

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<v Speaker 3>I guess my concern is we're kind of washing out

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<v Speaker 3>the value in the principle of copyright by allowing a

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<v Speaker 3>jury to reach unreviewable subjective determinations on an intrinsic test.

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<v Speaker 4>Well, he's complaining about the test that has been established

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<v Speaker 4>in the Ninth Circuit, and not just in the Ninth Circuit,

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<v Speaker 4>in multiple other circuit courts. You know, the sixth Circuit

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<v Speaker 4>where you have Nashville and Detroit, you get a glock

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<v Speaker 4>copyright cases. Second Circuit where you have New York, get

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<v Speaker 4>a lot of copyright case. Seventh Circuit you got get

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<v Speaker 4>a block copyright cases. All these courts have adopted this test.

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<v Speaker 4>Although it was pioneered by the Ninth Circuit, that was

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<v Speaker 4>thirty five forty years ago, and it's lasted the test

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<v Speaker 4>of time. In the majority of cases, it works in

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<v Speaker 4>this one case, you might be able to argue the

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<v Speaker 4>jury got it wrong. I actually, unlike you do, see

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<v Speaker 4>some differences in the photograph and the patchoo. Now whether

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<v Speaker 4>or not they're enough to have me vote non infringement,

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<v Speaker 4>I don't know thought about it enough. But the complaint

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<v Speaker 4>that the judge here has is fundamentally a complaint about

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<v Speaker 4>existing law. And in order to change existing law, somebody

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<v Speaker 4>is going to have to petition for an on bank

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<v Speaker 4>review at the Ninth Circuit. So what should happen here

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<v Speaker 4>is the panel of three judges affirms the jury's verdict,

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<v Speaker 4>and then the photographer the plane files a petition for

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<v Speaker 4>review on bank, meaning the entire Ninth Circuit. All the

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<v Speaker 4>active judges of the Ninth Circuit sit and reconsider whether this

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<v Speaker 4>is the appropriate test, And that perhaps is what is

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<v Speaker 4>being suggested here. But it is sort of like you know,

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<v Speaker 4>whistling in the wind. There are always going to be

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<v Speaker 4>jury verdicts that people think the jury got wrong, and

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<v Speaker 4>that's gore being civil cases, and that's going to be

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<v Speaker 4>in criminal cases. It's fundamental to our jurisprudence that we

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<v Speaker 4>accept that margin of error in order to allow the

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<v Speaker 4>sort of due process we want to have II to

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<v Speaker 4>have regular citizens decide cases, and I think it's very

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<v Speaker 4>misplaced for a pellet judge on a prominent court of

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<v Speaker 4>appeals like this in effect bad mouth the jury.

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<v Speaker 2>We've talked about copyright and tattoos before. Does this stand

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<v Speaker 2>for any broader principle about, you know, tattoos of copyrighted works.

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<v Speaker 4>I don't believe it does. I don't believe it stands

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<v Speaker 4>for any broad principle and copyright law generally, both attorneys

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<v Speaker 4>the attorney for the photographer attorney for the tattoo artist,

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<v Speaker 4>when asked this question at the Ninth Circuit World Argument,

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<v Speaker 4>said that they did not believe that decision here impacted

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<v Speaker 4>more broadly than the dispute between the two parties. And

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<v Speaker 4>I agree with that. This is a relatively run of

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<v Speaker 4>the mill copyright case. It doesn't set any new copyright law.

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<v Speaker 4>It doesn't set any new precedent. And that's why I'm

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<v Speaker 4>not super concerned about the fact that maybe the jury

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<v Speaker 4>got it wrong juring leritings don't set precedents, and so

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<v Speaker 4>the law will continue to be the same man the

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<v Speaker 4>next jury might have a completely different of a tattoo.

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<v Speaker 4>But in all cases like this that come back to

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<v Speaker 4>this fundamental proposition. The courtroom is not a neutral playing ground.

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<v Speaker 4>It is shaped by the attorneys on either side. And

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<v Speaker 4>there are attorneys who are really good trial lawyers, who

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<v Speaker 4>are really good in a courtroom, and who can shape

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<v Speaker 4>the case and the jury's verdict of the case in

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<v Speaker 4>a manner that benefits their client. And there are lots

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<v Speaker 4>and lots of attorneys who don't fit that bill. And

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<v Speaker 4>that's more often than not, the real explanation for why

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<v Speaker 4>a particular case comes out one way or the other.

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<v Speaker 4>For people who simply hire lawyers without considering, well, if

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<v Speaker 4>this case goes to trial, how good is my guy

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<v Speaker 4>my girl going to be in the courtroom doing mono

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<v Speaker 4>and mono battle. And they simply don't consider things like that.

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<v Speaker 4>And that's a mistake and you get what you deserve

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<v Speaker 4>when you make that kind of mistake, and you don't

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<v Speaker 4>hire a really good trial lawyer. And you know, I

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<v Speaker 4>wasn't there for the trial, but based on what observers

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<v Speaker 4>did say and everything I've heard about the case, it

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<v Speaker 4>seems to me that the combination of a celebrity defendant

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<v Speaker 4>and the defendant out lawyering the plaintiff may have led

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<v Speaker 4>to what at least these judges on the Ninth Circuit

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<v Speaker 4>felt was a wrong decision by the jury.

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<v Speaker 2>Thanks so much, Terry for those insights from an experienced

0:14:32.600 --> 0:14:36.960
<v Speaker 2>trial lawyer. That's Terrence Ross of Catain Mutchen Rosenman. And

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<v Speaker 2>that's it for this edition of The Bloomberg Law Show.

0:14:39.480 --> 0:14:41.840
<v Speaker 2>Remember you can always get the latest legal news on

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<v Speaker 2>our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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0:14:51.800 --> 0:14:54.400
<v Speaker 2>And remember to tune into The Bloomberg Law Show every

0:14:54.440 --> 0:14:58.320
<v Speaker 2>weeknight at ten pm Wall Street Time. I'm Junie Grosso

0:14:58.480 --> 0:15:00.000
<v Speaker 2>and you're listening to Bloomberg