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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Investigators are still trying to figure out what went wrong

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Speaker 1: on the set of the Western film Rust. How did

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Speaker 1: lie the ammunition not only get on set but into

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Speaker 1: the chamber of the gun Actor Alec Baldwin used, accidentally

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Speaker 1: killing the cinematographer and wounding the director. Santa Fe County

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Speaker 1: Sheriff Adam Mendoza says there were some safety issues on

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Speaker 1: the set. There was complacency, that's that's obvious. I think

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Speaker 1: there was some disorganization um and uh, and some safety

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Speaker 1: issues and protocols that were property followed. District Attorney Mary

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Speaker 1: Carmack Altwy's says criminal charges are possible and no one

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Speaker 1: has been ruled down at this point. If the facts

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Speaker 1: and evidence and law support charges, then I will initiate

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Speaker 1: prosecution at that time, joining me as former federal prosecutor

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Speaker 1: Elie Honick Ellie. The sheriff confirmed that two people had

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Speaker 1: handled the gun before Baldwin, the assistant director Dave Halls,

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Speaker 1: and the armorer Hannah Guccierrez. And Halls told investigators he

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Speaker 1: had failed to check all the rounds in the gun

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Speaker 1: before handing it to Balwin. How damaging is that admission?

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Speaker 1: I think if we run through these three people, you know,

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Speaker 1: starting with Alec Baldwin, and we're talking just criminally here,

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Speaker 1: it's really hard to see a criminal charge against him.

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Speaker 1: All that I've gathered and heard from people who are

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Speaker 1: experts in this field is an actor has every right

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Speaker 1: to bank on and count on the security and safety

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Speaker 1: people around him. And if you're handed a gun and

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Speaker 1: told that's the cold gun, there's no obligation criminal obligation

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Speaker 1: on an actor to confirm that independently. Most actors would

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Speaker 1: not be able to do that. Going to the assistant

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Speaker 1: director to halls, he's got trouble. And it's exactly the

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Speaker 1: fact that you just mentioned. If ordinarily a person in

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Speaker 1: that job would be expected to inspect the gun, certainly

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Speaker 1: before handing it to an actor and saying it's a

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Speaker 1: cold gun. And he did not do that, that could

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Speaker 1: well be negligence. And the law here under New Mexico

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Speaker 1: law would be involuntary manslaughter, which means that somebody act

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Speaker 1: with criminal negligence or recklessly. So that means not just

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Speaker 1: made a mistake, but made a sort of inexcusable mistake,

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Speaker 1: created in inexcusable danger, in violation of some duty of

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Speaker 1: care that they owed to somebody. This to me is

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Speaker 1: the clearest indication of potential criminality that we've seen so far.

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Speaker 1: And then if you take it out the third person

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Speaker 1: here is the armor or miss Boutierrez, and again it

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Speaker 1: comes down to what were her obligations, what did she

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Speaker 1: do and not do and how did a live round

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Speaker 1: end up on that tray where the a d apparently

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Speaker 1: took it off the armorer. Guccierres told detectives that on

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Speaker 1: the morning of the shooting, she checked the dummy bullets

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Speaker 1: to ensure none were hot. But since there is obviously

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Speaker 1: a hot bullet in there is there a possibility of

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Speaker 1: charges against her. There is a possibility would depend how

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Speaker 1: that happened, how a live round came to be in

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Speaker 1: a gun that was on the tray. If she missed it,

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Speaker 1: that could be negligence. If she looked right at it

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Speaker 1: but was not, let's say, properly trained on how to

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Speaker 1: identify or differentiate, that could be negligence. If when she

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Speaker 1: wasn't looking, somebody misplaced it or I'm making these hypotheticals up,

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Speaker 1: or somebody put a live round in the gun that

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Speaker 1: after she inspected it unknown to her or something like that,

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Speaker 1: So you can see scenarios either way for her. The

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Speaker 1: sheriff said they're looking into the history of Halls and

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Speaker 1: Gutierrez to determine if any negligence took place. How would

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Speaker 1: their history play into this decision. Yeah, it's a good question,

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Speaker 1: because I'm not sure to what extent a judge would

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Speaker 1: allow a person's history, and judges tend to be fairly

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Speaker 1: tight when it comes to what we call other bad

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Speaker 1: acts evidence, meaning well, this person did a similar thing

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Speaker 1: years ago, you would have to show a tighter next us.

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Speaker 1: I think it's an important part of the overall picture,

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Speaker 1: and I think it could come into play in civil

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Speaker 1: suits if we see somebody, let's say the production team,

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Speaker 1: and say, well, you hired somebody who you knew had

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Speaker 1: a long history or should have known had a history

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Speaker 1: of violations or problems. But in the criminal context. In

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Speaker 1: other words, let's assume, let's say, hypothetically, the A D

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Speaker 1: had a prior incident where he left a live round

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Speaker 1: in the gun and it was fired and maybe didn't

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Speaker 1: hit somebody, so we never really heard about it. I'm

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Speaker 1: not sure a judge would allow that into a case

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Speaker 1: relating to the rust set because um, it would be

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Speaker 1: seen as not directly relevant to was the person negligent

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Speaker 1: in that instance. I know it sounds counterintuitive, but I've

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Speaker 1: had enough of these trials where judges have said, no,

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Speaker 1: you can't put an evidence just to show that someone

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Speaker 1: sort of um has a habit. You can, you can

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Speaker 1: introduce prior evidence if it goes to this direct incident.

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Speaker 1: So UM, I think it's important to know. I'm not

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Speaker 1: confident that a judge would let it in. Do you

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Speaker 1: think with all the publicity about this, there's pressure on

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Speaker 1: the d A to bring charges? There certainly does seem

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Speaker 1: to be pressure. The d A and the sheriff came

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Speaker 1: out and did a press conference, which is an unusual step. Usually,

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Speaker 1: as the prosecutor, you'd prefer to say nothing unless and

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Speaker 1: until you had a final decision. They came out, and

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Speaker 1: I think they did actually a fairly professional job of

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Speaker 1: answering whatever they could without saying improper things about their

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Speaker 1: pending investigation. But yeah, I do think that there's pressure

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Speaker 1: on the DA to bring a charge. But countervailing that is,

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Speaker 1: you never, as a prosecutor, want to bring a charge

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Speaker 1: you cannot bring a charge that you do not believe

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Speaker 1: is justified by the facts, and you certainly, just from

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Speaker 1: her own sense of political survival and preservation, you don't

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Speaker 1: want to bring a charge that ends up crashing and burning,

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Speaker 1: that ends up being rejected by a judge or being

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Speaker 1: rejected by a jury. So you need to make sure

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Speaker 1: you have all your facts in line, and you need

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Speaker 1: to make sure that you believe it's a justified and

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Speaker 1: righteous charge. Good prosecutors can work past that and can

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Speaker 1: make their decisions without regard to public pressure. But look,

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Speaker 1: she's also a human being and understands that there is

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Speaker 1: pressure here. Let's talk about civil liability because the l

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Speaker 1: A Times reports that five days before the shooting, Baldwin

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Speaker 1: stunt double accidentally fired two live rounds after being told

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Speaker 1: the gun didn't have any ammunition, and a crew member

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Speaker 1: texted a uniproduction manager saying, we've now had three accidental discharges.

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Speaker 1: This is super unsafe. Also, several camera crew members walked

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Speaker 1: off the set that morning. Guccierires didn't have much experience

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Speaker 1: as an armorer. Even the sheriff said there seemed to

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Speaker 1: be some complacency in how weapons were handled on the set.

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Speaker 1: This all seems to make for a strong civil case. Yeah,

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Speaker 1: I think so. And the important thing to remember, there's

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Speaker 1: a lower burden of proof in a civil case. You

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Speaker 1: only have to prove negligence, not criminal negligence, which is

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Speaker 1: a higher standard. And of course you only have to

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Speaker 1: prove your case if you're a plankiff by a preponderance

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Speaker 1: of the evidence meaning more likely than not versus in

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Speaker 1: a criminal case, the prosecutor has to prove the case

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Speaker 1: beyond a reasonable doubt. All of these things I think

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Speaker 1: combine to make a pretty power full civil case against

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Speaker 1: the people who were in charge of the set, whether

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Speaker 1: it was the producers or the production company. And the

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Speaker 1: argument you make is when you look at the totality

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Speaker 1: of this, the number of complaints that came in, and

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Speaker 1: we're not acted on the qualifications and prior problems of

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Speaker 1: the people that were hired. You knew or absolutely should

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Speaker 1: have known that this was a dangerous workplace and someone

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Speaker 1: got injured as a result. I do think we will

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Speaker 1: see civil suits, and boy, I would really expect those

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Speaker 1: suits to settle because this is gonna be a tough

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Speaker 1: case to defend. I think it's a strong civil suit

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Speaker 1: any film is going to require insurance coverage. But would

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Speaker 1: negligence be necessarily covered. Yeah, that's a good question. It

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Speaker 1: depends on the policy. UM. Sometimes policies, you know, most

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Speaker 1: people do have liability insurance, and I would assume that

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Speaker 1: applies to a movie set um, which can cover negligence.

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Speaker 1: Usually it does not cover intentionality. UM. So typically in

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Speaker 1: my experience in insurance policy, you would have you would

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Speaker 1: have to have an insurance policy if you're running a

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Speaker 1: production company. Um. And most insurance policies can cover negligence,

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Speaker 1: but they but where they don't cover is intentionality or

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Speaker 1: sometimes you know, gross negligence, sort of next level negligence.

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Speaker 1: So it depends where the individual policy draws the line.

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Speaker 1: Thanks Ellie. That's former federal prosecutor Ellie honig Well quotas

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Speaker 1: celebrities versus paparazzi. Lady Gaga sang about it, and we've

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Speaker 1: all seen nasty filmed encounters, so it may seem a

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Speaker 1: little backwards that since June, photographers have filed more than

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Speaker 1: a dozen lawsuits against celebrities for posting photos of themselves

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Speaker 1: on social media paparazzi photos. They don't on the rights

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Speaker 1: to my guest is Intel should Property litigator Terence ross

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Speaker 1: A partner Captain Nuchuen Rosen Mint so terry. Celebrities are

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Speaker 1: caught by a paparazzi and unwillingly become the subject of

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Speaker 1: a photograph that's published. They post the photo on social media,

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Speaker 1: and then the paparazzi sues them for using the photo.

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Speaker 1: Something seems off with that. It sure does seem off.

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Speaker 1: But the way the copyright laws in the United States

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Speaker 1: are written is that the copyright protection is given to

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Speaker 1: the creator of a work, and in this case, the

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Speaker 1: creator of the work is the photographer who happens to

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Speaker 1: be a paparazzi. The celebrity who is captured in the

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Speaker 1: photograph is not actually the creator of the work, although

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Speaker 1: much of the value in the photograph may be attributable

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Speaker 1: to the subject of the photograph. The copyright laws are

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Speaker 1: strictly concerned with protecting creators of work, and here the paparazzi,

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Speaker 1: as the photographer, qualifies as the creator of the work

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Speaker 1: and gets the copyright protection. Does it factor in anywhere

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Speaker 1: that a photo maybe being made without the consent of

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Speaker 1: the celebrity or the person whose photo is being taken

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Speaker 1: not with respect the copyright ownership. It matters in other regards.

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Speaker 1: I have done for multiple magazines and for one university

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Speaker 1: system photography policies in which we lay out when a

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Speaker 1: magazine photographer or university photographer is allowed to take photographs

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Speaker 1: and then use them in a commercial way of people

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Speaker 1: in the public just walking down the street, on the campus, whatever.

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Speaker 1: And they're pretty strict guidelines to follow. But that has

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Speaker 1: to do with commercial exploitation of an image as opposed

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Speaker 1: to the copyright here. So one way to think about

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Speaker 1: this is if you were simply walking down the street

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Speaker 1: and you saw a celebrity and you pulled out your

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Speaker 1: phone and took a quick picture. I mean you would

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Speaker 1: you'll be about to do that and to keep it

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Speaker 1: and show it to your friends, and you would own

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Speaker 1: the copyright in that even if you didn't register it

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Speaker 1: with a copyright office. Where the celebrity starts to get

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Speaker 1: a little bit of power in the equation is if

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Speaker 1: you attempt to then exploit the celebrity's image and likeness

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Speaker 1: by using it to sell a product that you are

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Speaker 1: pushing upon the market place. Suppose I just sell the

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Speaker 1: photo to a tabloid. Is that okay, It is clearly okay.

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Speaker 1: For one thing, it would be arguably protected by the

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Speaker 1: First Amendment. Tabloids do have First Amendment protection for freedom

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Speaker 1: of speech, although some celebrities may not like that. The

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Speaker 1: real issue for the celebrities is when those photos are

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Speaker 1: sold to a luxury goods manufacturer who uses it in

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Speaker 1: a campaign. Celebrities get paid very large amounts of money

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Speaker 1: to endorse products and to endorse services, and if instead

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Speaker 1: of having to pay them millions of dollars for those endorsements,

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Speaker 1: they can pay a paparazzi a few thousand dollars for

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Speaker 1: a photograph of a celebrity wearing their product. Oh, that's

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Speaker 1: that makes it so worthwhile for the manufacturer that product

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Speaker 1: to do business with the paparazzi instead of the celebrity.

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Speaker 1: Does the celebrity have a case there for the commercial

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Speaker 1: exploitation of his or her image? Absolutely, if the product

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Speaker 1: manufacturer goes about it in the wrong way. In certain states,

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Speaker 1: but California is one of them, their common law and

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Speaker 1: statutory causes of action for the unauthorized exploitation of a

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Speaker 1: person's name, likeness, or image. But that would be against

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Speaker 1: the party using the photograph to sell their product. That's

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Speaker 1: not a lawsuit against the paparazzi. In these cases, if

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Speaker 1: they go to court, is there any defense The paparazzi

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Speaker 1: just says, I took this photo, it's my copyright. Pay me.

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Speaker 1: So I have seen fair use defenses asserted by celebrities

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Speaker 1: to such copyright lawsuits. I think that's a stretch for

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Speaker 1: a whole bunch of reasons, not the least of which

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Speaker 1: is that under the fair use test, you only use

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Speaker 1: as much as is minimally required in order to achieve

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Speaker 1: certain types of societally favored uses, such as teaching, news reporting.

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Speaker 1: And that's not typically how the celebrity is using this

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Speaker 1: photograph taken from paparazzi shoot. They're typically using it to

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Speaker 1: enhance their own image, their own brand, or to actually

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Speaker 1: sell some product, and the fair use defense falls apart

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Speaker 1: in those sorts of circumstances. So I won't say that

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Speaker 1: there are no viable defenses, but it is a very

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Speaker 1: difficult lawsuit to defend against. So Terry Backgrid USA, which

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Speaker 1: calls itself one of Hollywood's largest celebrity photograph agencies, is

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Speaker 1: looking for as much as one point two million dollars

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Speaker 1: in damages for actress Lisa Rena posting eight unauthorized photos

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Speaker 1: of her and her daughters. I mean, is that demand

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Speaker 1: for damages way out of line because if the photos

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Speaker 1: were sold, they wouldn't bring anything close to that amount.

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Speaker 1: That's correct, June. There are two approaches to damages for

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Speaker 1: copyright infringement. One is known as statutory damages. We recognize

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Speaker 1: that it's hard sometimes to quantify the damage caused by

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Speaker 1: infringement of a copyright, and so we simply said a

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Speaker 1: schedule of what the damages should be, and that ranges

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Speaker 1: from seven fifty dollars up to a hundred and fifty

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Speaker 1: thous The range depends in large part upon the willfulness involved.

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Speaker 1: So if it's a completely accidental, innocent used it, it's

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Speaker 1: a lower end. If it's a willful use knowing that

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Speaker 1: there's a copyright involved, using it to gain some commercial advantage,

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Speaker 1: the numbers will be much higher. So that's in a

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Speaker 1: statutory damage scheme. But separately, you can simply sup for

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Speaker 1: the lost prof that the photographer has given up because

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Speaker 1: their photo was taken again, that's seldom going to be

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Speaker 1: in the one point two million dollar range. That's gonna

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Speaker 1: be more in the three thousand to five thousand dollar range. Well,

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Speaker 1: she's actually fighting this, and she and her lawyer claims

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Speaker 1: that back grids allegations are barred because the agency has

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Speaker 1: effectively weaponized the Copyright Act in an effort to augment

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Speaker 1: its income. That sounds like a good argument to make,

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Speaker 1: you know, to the media. But is that a legal argument. No,

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Speaker 1: I agree completely with you. That's a nice rhetoric to use,

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Speaker 1: UM in the media, and I saw that line get

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Speaker 1: quoted in a number of news stories about the lawsuit already. UM.

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Speaker 1: I think that that one would be hard pressed in

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Speaker 1: front of a competent judge UM to throw that up

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Speaker 1: as a defense. Um. It might be that there's an

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Speaker 1: argument sort of underneath that says that according a copyright

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Speaker 1: in these circumstances is inappropriate because the circumstances under which

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Speaker 1: the photograph was taken. So this is often the case

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Speaker 1: if the paparazzi has broken into your house and taking

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Speaker 1: a photograph of you getting out the shower, for example,

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Speaker 1: or more simple case, UM, you're lying by the pool

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Speaker 1: in your backyard, surrounded by ten ft high privacy fence

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Speaker 1: with signs that say no trustpassing and they climb on

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Speaker 1: top of defense to take a photograph of you. In

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Speaker 1: those circumstances, there is at least a kernel of an

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Speaker 1: argument UM that a copyright should not be awarded in

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Speaker 1: those circumstances. But even that's not a defense that I

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Speaker 1: would consider particularly strong um in front of a judge. Really,

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Speaker 1: even if the images are stolen, so that's a different case.

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Speaker 1: If the if the image is one that you took

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Speaker 1: and was stolen by someone, then that person who stole

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Speaker 1: the images is not the creator of the work and

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Speaker 1: has no copyright. It's only the creator of the work

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Speaker 1: um the service service has talking about her. Where the

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Speaker 1: paparazzi goes to um extraordinary lengths um to get photographs

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Speaker 1: that really aren't in in public, they're in private circumstances,

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Speaker 1: private moments, um, and they have somehow managed either by

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Speaker 1: climbing a fence or looking in a window to get

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Speaker 1: a photograph. UM. That that is a completely different animal UM.

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Speaker 1: And that's the sort of thing that used to go

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Speaker 1: on in the seventies and eighties and was blamed for

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Speaker 1: Princess dies um unfortunate death in a in a motor

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Speaker 1: vehicle accident. UM. A lot of that has stopped. The courts,

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Speaker 1: particularly in California, started issuing restraining orders calling that harassing

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Speaker 1: behavior or trust passing um, and criminal warrants were issued

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Speaker 1: in some cases, and a lot of that behavior had

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Speaker 1: has stopped. What the celebrities now are most commonly victimized

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Speaker 1: by is simply they go out in public. They are

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Speaker 1: walking their dog, they're pushing their baby carriage, they're eating

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Speaker 1: breakfast at a restaurant, they're getting coffee at Starbucks. Um.

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Speaker 1: They may not have their makeup on UM, they may

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Speaker 1: not have their hair perfectly quaffed, and someone takes a

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Speaker 1: photograph of them and then publishes it in a tabloid

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Speaker 1: or some other h makes some other use of it.

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Speaker 1: That's what they're complaining about. And and that is a

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Speaker 1: much harder um case to make for the celebrity, because

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Speaker 1: they have gone out themselves into the public and thus

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Speaker 1: allowing anyone to observe them leon take photos. And in

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Speaker 1: some of the more egregious cases we've heard about recently, John,

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Speaker 1: the celebrities actually text the paparazzi ahead of time and

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Speaker 1: let them know that they're gonna be buying a Starbucks

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Speaker 1: at such and such a corner. So that the paparazzi,

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Speaker 1: you know, to show up and take photographs. You know.

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Speaker 1: It's it's different times, the different type of paparazzi that

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Speaker 1: we're dealing with them who are much more likely played

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Speaker 1: by the rules, which makes it very hard to to

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Speaker 1: defend against these lawsuits. A very prolific pop paparazzi told

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Speaker 1: Bloomberg that when he goes to a newspaper with images,

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Speaker 1: he has to fill out a memo attesting to quote

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Speaker 1: every intricacy of how he obtained his photos. So, I

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Speaker 1: guess it is a different world than that respect. That

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Speaker 1: is a very common practice nowadays. Have actually written uh,

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Speaker 1: several of these guidelines for uh, well known magazines. UM

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Speaker 1: when they get uh not just third party photographs from

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Speaker 1: pop roads, but when they get there get photographs from

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Speaker 1: in house photographers who have been sent out with a

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Speaker 1: commission to get a particular photograph. UM. There is a

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Speaker 1: series of questions that need to be asked by the

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Speaker 1: publication before they purchased the work and publish it. UM.

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Speaker 1: And one of the key quite, she says, was the

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Speaker 1: subject of the photograph in a public place and did

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Speaker 1: you present them in a fair light? Um? And did

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Speaker 1: you do anything that could be implied to be harassment

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Speaker 1: UM and and if those questions aren't answered correctly by

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Speaker 1: the photographer M a reputable magazine will not publish those photographs.

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Speaker 1: And so the popography has sort of learned that they

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Speaker 1: want to sell their photographs, they got to jump through

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Speaker 1: the these hoops and take the photographs in the right way.

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Speaker 1: So back Grid has been following a lot more of

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Speaker 1: these in the last few years. Has this become like

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Speaker 1: a secondary business the suing of celebrities who then most

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Speaker 1: of the time will settle. So there are certain photography

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Speaker 1: organizations who seem to be attempting to to monetize UM

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Speaker 1: the work in new ways, such as through litigation. The

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Speaker 1: reality here is that there is nowadays a symbiotic relationship

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Speaker 1: between celebrities and the paparazzi. And so although there has

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Speaker 1: been an uptick, I don't think you're going to see

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Speaker 1: this becoming UM an ongoing trend in which all the

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Speaker 1: paparazzi do this UM. I do think that this particular

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Speaker 1: organization UM has a tendency to file suit. And what

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Speaker 1: is going to happen is that the celebrities will figure

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Speaker 1: out that they should not use UM photographs from that organization,

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Speaker 1: or cooperate with their paparazzi UM and work with others.

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Speaker 1: Are there cases where a photographer can't get a copyright

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Speaker 1: for a photograph. Historically, there was a big question mark

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Speaker 1: as to whether or not photographs were entitled to copyright

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Speaker 1: in the first place, because they are merely capturing representations

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Speaker 1: of the real world, and the courts had to stretch

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Speaker 1: to say that, you know, the photographer affects what's being

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Speaker 1: seen through their choice of angle, the way they tempt

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Speaker 1: the photograph, expose the photographs so that there is creative work.

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Speaker 1: But I have seen some cases where the courts have said,

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Speaker 1: this is nothing more than a capture of a real

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Speaker 1: world image with no creativity being used whatsoever, and therefore

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Speaker 1: we're not going to accord it any sort of copyright entitlement.

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Speaker 1: Most of these paparazzi photographs, you could argue, have that

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Speaker 1: small amount of creativity that's required to qualify for copyright.

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Speaker 1: But we'll have to wait and see what the courts

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Speaker 1: say about these cases. Terry, what strikes me is these

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Speaker 1: celebrities have photo shoots all the time. They have lots

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Speaker 1: of ways to get shots of themselves. Why use a

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Speaker 1: paparazzi photo or are they just unaware that they can't

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Speaker 1: do that. I think there is a general unawareness on

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Speaker 1: the part of celebrities and people at large as to

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Speaker 1: who has ownership of photographs of this sort that are

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Speaker 1: taken in the public. And I think they will be

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Speaker 1: learning over time, and hopefully their management will teach them better.

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Speaker 1: But you're absolutely right. You would think that they would

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Speaker 1: have ample quantity of such images to publish on their

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Speaker 1: own if they wanted to, and set aside even professional

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Speaker 1: Why can't they do like everyone else and just take

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Speaker 1: a thought see if they take the moment is so great?

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Speaker 1: Good point, Terry. That's Terence Ross of Captain Mutin rosen

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Speaker 1: Minton