Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2: My fellow Americans, this is Liberation Day Wednesday.
Speaker 3: On so called Liberation Day, President Donald Trump announced the
Speaker 3: steepest American tariffs in more than a century.
Speaker 2: So sixty seven percent. So we're going to be charging
Speaker 2: a discounted reciprocal tariff of thirty four percent. I think,
Speaker 2: in other words, they charge us, we charge them, we
Speaker 2: charge them lest So how can anybody be upset?
Speaker 3: But obviously plenty of people were upset. In every corner
Speaker 3: of the financial markets, from stocks to bonds to commodities,
Speaker 3: investors were sending Trump a message about the trade war
Speaker 3: he unleashed. Trump imposed the tariffs by invoking a law
Speaker 3: that gives presidents sweeping powers during an economic emergency. But
Speaker 3: no president has ever used that law to impose tariffs
Speaker 3: until now. And now the first law lawsuit has been
Speaker 3: filed saying that the president overstepped his authority and challenging
Speaker 3: the legal justification he used. Joining me is an expert
Speaker 3: in international trade, David Townsend, a partner at Dorsey and Whitney.
Speaker 3: Dave tell us about the law President Trump is using
Speaker 3: to impose these tariffs.
Speaker 1: So these tariffs are imposed under the International Emergency Economic
Speaker 1: Powers Act, or AIPA. AEPA allows the President to declare
Speaker 1: a national emergency with respect to a variety of things
Speaker 1: that the president believes undermine US national security and has
Speaker 1: its basis and origin outside of the United States. Once
Speaker 1: the President declares that national emergency, it provides a legal
Speaker 1: basis for the President to take a number of restrictive
Speaker 1: actions with respect to commerce between the United States and
Speaker 1: the target of the AIPA Executive Order.
Speaker 3: Trump says the emergency is the US trade deficit with
Speaker 3: other nations, which the order describes as an unusual and
Speaker 3: extraordinary threat to the national security and economy of the
Speaker 3: United States. Many, perhaps most people wouldn't see the deficit
Speaker 3: that way. Is it Trump's decision alone?
Speaker 1: Well, Under AEPA, the President is provided by Congress broad
Speaker 1: authority to define what is or is not a national emergency.
Speaker 1: Under AEPA, presidents have declared a wide variety of topics
Speaker 1: to constitute a national emergency, and today there's not been
Speaker 1: any judicial decisions that have reversed a president in how
Speaker 1: they define a national emergency under AEPA, But the use
Speaker 1: of AEPA to impose tariffs is a new use of AEPA.
Speaker 1: President Trump is the first president to use IEPA as
Speaker 1: a basis for increasing tariffs. Previously, IEPA has been used
Speaker 1: for targeting terrorist organizations or foreign countries that are deemed
Speaker 1: to be taking actions to undermine US national security. Trump
Speaker 1: is using IEPA as a basis to change teri frates
Speaker 1: on imports into the United States.
Speaker 3: On Thursday, what appears to be the first legal challenge
Speaker 3: to the tariffs was found by a conservative backed legal
Speaker 3: group in Florida. Tell us about the suit.
Speaker 1: The lawsuit is on behalf of a US importer of
Speaker 1: merchandise from China. The plaintiff in the case alleges that
Speaker 1: the first round of Trump administration tariffs that were imposed
Speaker 1: under AEPA are illegal, that AEPA doesn't authorize the imposition
Speaker 1: of tariffs, and even if it does, that tariffs aren't
Speaker 1: necessary for addressing the national emergency that President Trump declared
Speaker 1: with respect to China, which relates to drug trafficking and
Speaker 1: fentanyl imports into the United States.
Speaker 3: So this suit is about the first set of tariffs
Speaker 3: Trump imposed on Chinese goods leading up to the sweeping
Speaker 3: tariffs announced on Wednesday.
Speaker 1: To use IEPA as a basis to impose ten percent
Speaker 1: tariffs on goods from China and subsequently bumped that up
Speaker 1: to twenty percent tariffs on goods from China. Under AEPA
Speaker 1: also declared national emergencies with respect to Canada and Mexico
Speaker 1: and deferred tariffs, and then ultimately allowed Canadian and Mexican
Speaker 1: goods to be imported into the United States without tariffs
Speaker 1: if they qualify under the US Mexico Canada Agreement USMCA.
Speaker 3: Yeah, the tariff on and off situation has been confusing,
Speaker 3: But then the same theory would work for the so
Speaker 3: called Liberation Day tariffs.
Speaker 1: Well, yes, because the lawsuit alleges that AEPA doesn't authorize
Speaker 1: the president to impose tariffs, and so these reciprocal tariffs
Speaker 1: that were announced on Wednesday would be likewise invalid if
Speaker 1: the plaintiff's theory is correct.
Speaker 3: Is this an uphill battle? Have courts given deference to
Speaker 3: the president in these situations?
Speaker 1: There have been lawsuits under AEPA, But because President Trump
Speaker 1: is the first to use AIPA to impose tariff, there's
Speaker 1: never been a question before a court as to whether
Speaker 1: AEPA authorizes tariffs and so I think it remains to
Speaker 1: be seen how a court would handle the issue. It's
Speaker 1: really one of statutory interpretation and whether the EYEPA statute
Speaker 1: actually permits the president imposed tariff.
Speaker 3: Another thing this lawsuit argues is that Trump is usurping
Speaker 3: Congress's right to control tariffs. I mean, the Constitution does
Speaker 3: give Congress the power to levy tariffs and to regulate
Speaker 3: commerce with foreign nations, not the president right.
Speaker 1: AIPA is a statutory authority that Congress created to delegate
Speaker 1: their constitutional authority to regulate foreign commerce and impose tariff
Speaker 1: to the President. Now, one legal question that remains and
Speaker 1: is unknown at this time is whether APA was ever
Speaker 1: intended to allow the president and does allow the president
Speaker 1: to increase tariff rates. As I noted before, traditionally I
Speaker 1: was used as a basis for economic sanctions against the
Speaker 1: target organizations, individuals, and foreign governments.
Speaker 3: Four Republican senators voted alongside all forty four Democrats and
Speaker 3: two independents on Wednesday to pass a measure that would
Speaker 3: block Trump's tariffs on Canadian imports, and on Thursday, a
Speaker 3: bipartisan Senate bill was introduced that would give Congress final
Speaker 3: approval on tariffs imposed by a president. I don't know.
Speaker 3: It seems like too little, too late.
Speaker 1: I think that's a new development that there is some
Speaker 1: momentum in Congress, including on a bipartisan basis, to reassert
Speaker 1: congressional authority and their constitutional authority to establish tariffs. Congress,
Speaker 1: because they have that constitutional authority, can step in at
Speaker 1: any time. They could reverse the reciprocal tariffs that President
Speaker 1: Trump announced, and they could reverse the Section three one
Speaker 1: tariffs that have been in place since twenty eighteen. They've
Speaker 1: chosen thus far not to do that, but I do
Speaker 1: think what you're seeing now is because these tariffs are
Speaker 1: reaching new countries, including our neighbors such as Canada and Mexico,
Speaker 1: there is some momentum in Congress to re examine and
Speaker 1: potentially check what the president is doing in the tariff space.
Speaker 3: Explain specifically what Congress could do.
Speaker 1: Congress could pass a statute establishing tariff rates for individual countries,
Speaker 1: and that wouldn't take precedents over the executive orders issued
Speaker 1: under AJIPA. Congress also can introduce resolutions terminating a national emergency,
Speaker 1: so in theory, Congress could take action to withdraw the
Speaker 1: legal basis for the reciprocal tariffs that President Trump announced,
Speaker 1: they have not to date done that. And again i'd
Speaker 1: go back to the twenty eighteen tariffs against China. You know,
Speaker 1: that's an example where Congress has the authority to do
Speaker 1: something and to reverse it, but todate has not done.
Speaker 1: So I think the main point, you know, is that
Speaker 1: Congress has a variety of tools they could use here
Speaker 1: to to modify, to reverse, to change what the executive
Speaker 1: branch is doing with prospect to tariffs.
Speaker 3: So it seems unlikely that any bill or resolution opposing
Speaker 3: Trump's tariffs would get through the House. Going beyond American
Speaker 3: law for a moment, do these tariffs violate the rules
Speaker 3: of the World Trade Organization?
Speaker 1: Well, one thing I think is interesting about the Executive
Speaker 1: Order is that it talks about the creation of the
Speaker 1: World Trade Organization and frames some of the issues here
Speaker 1: as the United States allowing other countries to get away
Speaker 1: with breaches of what they promised to do under the WTO.
Speaker 1: So that's the US perspective, I think. On the foreign perspective,
Speaker 1: they'll say, also pointing to the WTO, that we had
Speaker 1: a deal and the United States agreed to keep its
Speaker 1: tariffs low and so they can't just sit by as
Speaker 1: the United States acts and violation of that commitment, and
Speaker 1: thus that becomes a basis for retaliation. And so it's
Speaker 1: hard to have that crystal ball to see whether this
Speaker 1: is going to create a spiraling effect of retaliation or
Speaker 1: counter retaliation or if finstead, we could get to some
Speaker 1: sort of equilibrium or these rates actually come down as
Speaker 1: a result of agreements between the US and trading partners.
Speaker 3: And under the WTO, is there a mechanism if one
Speaker 3: member violates the trade rules.
Speaker 1: Yes, and that would be the complaint of the US
Speaker 1: trading partners. Here is that you could make a good
Speaker 1: argument that the WTO's entire purpose was to help countries
Speaker 1: define when another country is breaching it's WTO obligations through
Speaker 1: the dispute settlement process. There have been a lot of
Speaker 1: complaints from Democrats and Republicans alike about the WTO dispute
Speaker 1: settlement process, but I think the reality is that foreign
Speaker 1: countries view this as the United States walking away from
Speaker 1: that dispute settlement process and going completely to a sort
Speaker 1: of bilateral negotiating process for resolving trade disputes rather than
Speaker 1: multilaterally through the WTO.
Speaker 3: I know you advise companies on tariffs. What are some
Speaker 3: of the concerns that your clients have or perhaps should have.
Speaker 1: A lot of companies realize that the compliance stakes are
Speaker 1: significantly increased when the tariff goes up this much, right,
Speaker 1: because if your compliance practices don't get the country of
Speaker 1: origin correct or the valuation correct, that now translates into
Speaker 1: a fairly significant change in revenue that should have gone
Speaker 1: to the US government if you're getting it incorrect. So
Speaker 1: from a compliance standpoint, it's riskier now than it was
Speaker 1: on Monday. With respect to declarations to US customs. One
Speaker 1: thing that I think is going to generate a lot
Speaker 1: of questions is because the tariff rates differ by different countries.
Speaker 1: If you have product lines that make multiple stops prior
Speaker 1: to be importing into the United States to further assembly,
Speaker 1: are manufacturing, then the country of origin question becomes vitally
Speaker 1: important because you may have a teriff rate down to
Speaker 1: ten percent against the teriff frate that goes up to
Speaker 1: forty nine percent on these reciprocal tariffs, and a lot
Speaker 1: of terif liabilities at stake in applying the rule of
Speaker 1: origin correctly. So I think that's going to be one
Speaker 1: area where companies are examining carefully. The other thing is,
Speaker 1: if you're stuck paying the tariff, the amount of tariff
Speaker 1: you pay is going to be determined on how you
Speaker 1: value the import as it comes into the United States.
Speaker 1: And so a lot of companies who may not have
Speaker 1: thought very hard about valuation because teriff rates or zero
Speaker 1: are very low are looking at that question to make
Speaker 1: sure they're not under or overvaluing the merchandise as it
Speaker 1: comes into the United States.
Speaker 3: It's a complex and evolving situation. Thanks for taking us
Speaker 3: through it. That's David Townsend, a partner at Dorsey and Whitney.
Speaker 3: Coming up next, Catholic Charities appears headed for a win
Speaker 3: at the Supreme Court. I'm June Grosso. When you're listening
Speaker 3: to Bloomberg.
Speaker 4: I thought it was pretty fundamental that we don't treat
Speaker 4: some religions better than other religions, and we certainly don't
Speaker 4: do it based on the content of the religious doctrine
Speaker 4: that those religions preach.
Speaker 5: Isn't it a fundamental premise of our First Amendment that
Speaker 5: the state shouldn't be picking and choosing between religions, between
Speaker 5: certain evangelical sects and Judaism, and Catholicism on the other
Speaker 5: for example, And doesn't it entangle the state tremendously when
Speaker 5: it has to go into a soup kitchen. Send an
Speaker 5: inspector in to see how much prayer is going on.
Speaker 3: Justices across the ideological spectrum suggested that Wisconsin was discriminating
Speaker 3: against Catholic Charities by denying it a religious exemption from
Speaker 3: the state's unemployment tax program. The state argues that Catholic
Speaker 3: Charities doesn't qualify for the tax exemption because the day
Speaker 3: to day services it provides don't involve religious teachings. But
Speaker 3: many of the justices seemed concerned about Wisconsin's contention that
Speaker 3: one way organizations can get the exemption is by actively proselytizing.
Speaker 3: Chief Justice John Roberts and Justice is Amy Cony Barrett
Speaker 3: and Neil Gorsuch question just what that means in practice?
Speaker 6: What is the simplest thing that the Catholic Charities would
Speaker 6: have to do to qualify for the religious exemption in Wisconsin?
Speaker 7: I think?
Speaker 6: Were they sure they have one sign in the dining
Speaker 6: hall saying this meal provided by Catholic Charities. If you
Speaker 6: want to find out about the church, here's a brochure, and.
Speaker 7: I mean, are they playing like hymn's on the radio
Speaker 7: or like Christian rock at the evangelical soup kitchen on
Speaker 7: the radio? You know, is that proselytization or not? Because
Speaker 7: you're forced to sit there and listen to it.
Speaker 5: I just want to know what the test is, So
Speaker 5: repent sins, you get the exemption, not requiring you to
Speaker 5: repent your sins, you don't. I guess you don't get
Speaker 5: the exception.
Speaker 3: Catholic Charities argues this state is violating its religious freedoms
Speaker 3: protected by the First Amendment by making determinations about what
Speaker 3: work qualifies as religious. My guest is Richard Garnett, a
Speaker 3: professor at Notre Dame Law School and founding director of
Speaker 3: the school's Program on Church, State and Society. He was
Speaker 3: part of a group of law and religion professors who
Speaker 3: submitted a brief in support of Catholic Charities. Rick, this
Speaker 3: is an appeal from a decision of the Wisconsin Supreme Court.
Speaker 3: Tell us about the issue before the justices.
Speaker 8: So the justices are being asked to evaluate a ruling
Speaker 8: by a Wisconsin court, and that ruling had to do
Speaker 8: with an exemption that was in place in Wisconsin law,
Speaker 8: it's an exemption from otherwise applicable requirement about providing unemployment insurance.
Speaker 8: So Wisconsin, like a lot of states, has a religious exemption.
Speaker 8: So some employers were exempt from this particular requirement if
Speaker 8: they were religious. And the precise terminology of the exemption
Speaker 8: was that organizations that are operated primarily for religious purposes
Speaker 8: are entitled to the exemption. And Catholic charities, which is
Speaker 8: what it sounds like, a Catholic organization that provides a
Speaker 8: variety of social services, was denied the exemption on the
Speaker 8: theory that, you know, although it's got the word Catholic
Speaker 8: in it, and although it's probably motivated by Catholic concerns,
Speaker 8: that a lot of the things it was doing they
Speaker 8: weren't really religious. They weren't primarily religious. They were the
Speaker 8: same kinds of things that secular organizations do. And so that,
Speaker 8: you know, the Wisconsant Court kind of empsizes, Look, they
Speaker 8: hire some people who aren't Catholic, they serve people regardless
Speaker 8: of their faith, they don't engage in proselytism, they don't
Speaker 8: require people to attend church, so they're not really religious.
Speaker 8: And the Supreme Court took up the case to decide.
Speaker 8: I think whether there wisconsint Court's definition of who gets
Speaker 8: this exemption was in a way discriminatory, that it distinguished
Speaker 8: between religions that engage in kind of overt evangelism when
Speaker 8: they provide services and those that live out their religious
Speaker 8: mission by providing social services to a broad range of people.
Speaker 3: Both liberal Justice Elina Kagan and conservative Justice Neil Gorsuch
Speaker 3: seemed to be on the same page, saying that we
Speaker 3: don't treat some religions better than others.
Speaker 8: Yeah. So we have a well established principle in American
Speaker 8: law that legislatures are permitted to have exemptions for religious
Speaker 8: believers or religious institutions from their laws. These happen all
Speaker 8: the time, right, But one of the important qualifications is
Speaker 8: that legislators aren't allowed to discriminate among religions when they
Speaker 8: are granting these exemptions. So, you know, you couldn't have
Speaker 8: an exemption for Baptist organizations but deny it to Presbyterian ones,
Speaker 8: or an exemption for Buddhist ones but deny it to
Speaker 8: Hindu ones. You're allowed to have religious exemptions, but the
Speaker 8: exemptions themselves can't discriminate among religions. And I think Justice
Speaker 8: Kagan's concern was that the Wisconsant Court in effect had said,
Speaker 8: to count as religious, you have to be religious in
Speaker 8: a certain way. You have to be religious in a
Speaker 8: way that's kind of evangelical. Right where you're serving your
Speaker 8: own you're engaging in evangelization and proselytism. Maybe you know
Speaker 8: you're giving out food at the end of a church service,
Speaker 8: but you're requiring people to attend church beforehand. There was
Speaker 8: constant Court had a premise that I think all the
Speaker 8: justices were uneasy with, namely that it was appropriate for
Speaker 8: a secular court to say, you know, if you're not
Speaker 8: engaging in proselytism, then you're just doing secular stuff. But
Speaker 8: from the perspective of Catholic Charities, you know, when it's
Speaker 8: feeding the hungry, or clothing the naked, or housing the unsheltered,
Speaker 8: it's still engaging in religious activity. And to be clear,
Speaker 8: the Catholic Charities position is not that any time institution
Speaker 8: claims it's religious, it should get an exemption. Everybody acknowledges
Speaker 8: that courts are allowed to ask whether the religious claims
Speaker 8: are sincere, and everyone agrees that it is permissible to
Speaker 8: distinguish between religious organizations on the one hand and secular
Speaker 8: ones on the other. But where the justices got nervous
Speaker 8: was the way the Wisconstant courts seemed to almost engage
Speaker 8: in a little bit of armchair theology when it decided
Speaker 8: that in order to be i think the word to
Speaker 8: use was typically religious, you had to exercise your religion
Speaker 8: in a certain way. And so Justice Kagan, for example, says, well,
Speaker 8: you know, look, in Judaism, a lot of what we
Speaker 8: do when we're active in the world is not engage
Speaker 8: in proselytism. That's not one of the things that we do.
Speaker 8: But we still do exercise our religion when we're providing
Speaker 8: various social services. So that was clearly a theme that
Speaker 8: she was focusing on. And there was also a theme
Speaker 8: in the argument not quite as prominent as this discrimination theme,
Speaker 8: I think, but it was still there that Wisconsin's rule
Speaker 8: had kind of a coercive effect of basically pressuring religious
Speaker 8: institutions to organize themselves in a certain way, because the
Speaker 8: Wisconsin rule was one that said, if a charity is
Speaker 8: separately incorporated from the church itself, then it's going to
Speaker 8: be treated differently than if it's kind of integrated into
Speaker 8: the religious institution, and so the concern was that that
Speaker 8: regime would kind of pressure religious organizations to change their structures.
Speaker 8: But I think the most straightforward part of the case,
Speaker 8: and I think this is what the lawyer for Catholic
Speaker 8: Charity was really leaning on, is that it's a straight
Speaker 8: up black letter rule that governments can't discriminate among religions
Speaker 8: when they are crafting their accommodations. And the Wisconsin Supreme
Speaker 8: Court adopted an interpretation that appears to treat some religions
Speaker 8: as being more authentically religious than others. So I suspect
Speaker 8: the Supreme Court's going to reverse that.
Speaker 3: What was the best argument you think the state put
Speaker 3: forward to defend its claim?
Speaker 8: Maybe two things are worth emphasizing. That one claim the
Speaker 8: state made, but I don't think the justices were moved
Speaker 8: by it was that, look, the language in the Wisconsin
Speaker 8: statute is a lot like the language that appears in
Speaker 8: a whole bunch of other religious exemptions, and so the
Speaker 8: concern that the state was raising was like, if you
Speaker 8: interpret this language really broadly, that's going to have all
Speaker 8: kinds of sweeping effects. And the justices didn't seem as
Speaker 8: moved by that. Another argument the state made, which is
Speaker 8: completely reasonable, is that you know, in order for the
Speaker 8: state to accommodate religion, it has to have some limits
Speaker 8: on that accommodation. Otherwise that reduces the incentive of the
Speaker 8: state to accommodate religion at all, which would be a
Speaker 8: perverse effect. But I think the justices were able to
Speaker 8: respond to that by saying, we agree with you. There
Speaker 8: can be limits on the exemptions. Again, you can make
Speaker 8: sure that the claimants are sincere, and you can make
Speaker 8: sure that they are religious as opposed to secular or
Speaker 8: philosophical or what have you. But what you can't do
Speaker 8: is adopt the definition of religion, which in effect picks
Speaker 8: and chooses among different religions, and I suspect will get
Speaker 8: a pretty consensus ruling from the justices on that point.
Speaker 3: Justice Barrett raised the question of how far the exemptions
Speaker 3: would go, saying, one of the problems here is figuring
Speaker 3: out what the line is. Some say there could be
Speaker 3: broad ramifications if the Justice's side with Catholic charities here.
Speaker 8: I mean, I think she was raising that issue and
Speaker 8: was right to, because anytime you have an exemption from
Speaker 8: a law, there's going to be questions about how far
Speaker 8: the exemption goes. And it is true that in American law,
Speaker 8: you know, we don't really have a clear definition of
Speaker 8: what is or is not religion. But I think that
Speaker 8: the lawyer for Catholic Charities was able to respond just
Speaker 8: by assuring Justice Barrett that in this particular case, in
Speaker 8: order to correct the error that there wis constant court made,
Speaker 8: you don't actually have to issue a very broad ruling.
Speaker 8: You don't have to say again that this religious exemption
Speaker 8: covers any entity that conceivably claims to be religious. It's
Speaker 8: a more narrowed and precise argument than that. It's that
Speaker 8: when the state is engaging in crafting an exemption, it
Speaker 8: can't do so in a way that discriminates among religions.
Speaker 8: So that non discrimination rule, which is the key to
Speaker 8: this case, that would prevent this case from going off
Speaker 8: into some of the concerns that the state raised about
Speaker 8: how you know the exemption, would swallow the rule itself.
Speaker 8: It is possible to accommodate religion and to draw boundaries
Speaker 8: around religion without doing so in a way that discriminates
Speaker 8: among different religions.
Speaker 3: I think most people who listen to the oral arguments
Speaker 3: came to the same conclusion that the justices would rule
Speaker 3: in favor of Catholic Charities. What's your take.
Speaker 8: It seems like most, perhaps even all of the justices
Speaker 8: were pretty skeptical of what the Wisconsin Court had done.
Speaker 8: So it does seem pretty likely that the Catholic Charities
Speaker 8: position is going to win out here. You know, people
Speaker 8: sometimes forget that in the Supreme Court, whatever else they
Speaker 8: might be divided by a lot of these religious freedom
Speaker 8: cases are not divided red versus Blue, Republican versus Democrat.
Speaker 8: There are a fair number of cases that are you know,
Speaker 8: unanimous or close to it. And this might be another
Speaker 8: one is that because.
Speaker 3: There are seven Catholic on the Court. I asked that facetiously,
Speaker 3: but that number of justices of one religion seems unusual.
Speaker 8: I've written a few things about that and how that happened. Yeah,
Speaker 8: especially when one thinks back that, you know, there were
Speaker 8: zero for the first seventy years or so, and then
Speaker 8: I don't think we had a situation where we had
Speaker 8: more than one on the court until you know, the
Speaker 8: nineteen eighties. Perhaps, so that is a change. But America's demographics,
Speaker 8: religious demographics educational demographics have changed a lot, so maybe
Speaker 8: that's part of the story.
Speaker 3: This is the first case involving religion that the Court
Speaker 3: has heard in about two years, and this term there
Speaker 3: are three religion cases. Do you see a trend or
Speaker 3: any explanation for why those three in particular?
Speaker 8: It's hard to say. I mean, so much of the
Speaker 8: court stock, as you know, is a function of kind
Speaker 8: of accident, you know what happened in the courts below.
Speaker 8: But you're right that there's this case which involves a
Speaker 8: particular question that arises in the religious accommodation's context is
Speaker 8: one coming out of Maryland, which involves some parents who
Speaker 8: wanted to be able to opt their kids out of
Speaker 8: some curricular matters that had to do with sexual orientation
Speaker 8: and gender identity and so on, so they're seeking an
Speaker 8: accommodation that was denied to them. And then of course
Speaker 8: there's the Oklahoma case about the virtual Catholic School and
Speaker 8: whether it can participate in that state's charter program. That
Speaker 8: one's not really an accommodation case. It's it's more of
Speaker 8: what I call a cooperation case. So certainly, you know,
Speaker 8: an interesting year for law and religion at the Court.
Speaker 8: But whether the fact that there are three tells us
Speaker 8: anything deeper, I'm not sure, and those.
Speaker 3: Other cases will be heard in the last two weeks
Speaker 3: of April. Thanks so much, Rick, That's Professor Richard Garnett
Speaker 3: of Notre Dame Law School coming up next. How do
Speaker 3: Alipa and Mariah Carey won their copyright infringement lawsuits? I'm
Speaker 3: June Grosso. When you're listening to Bloomberg.
Speaker 6: With Glitter.
Speaker 3: International pop star Dua Lipa has won a second lawsuit
Speaker 3: accusing her of copying her twenty twenty mega hit Levitating.
Speaker 3: Two songwriters said she plagiarized their disco era songs Wiggling,
Speaker 3: Giggle All Night and Don Diablo, claiming that the opening
Speaker 3: melody in Levitating was a duplicate of the melody in
Speaker 3: their songs.
Speaker 9: I was walking down the street when I saw all
Speaker 9: the times of Soldier Boy A week a week in
Speaker 9: atne He said, I'd like.
Speaker 1: To make a date.
Speaker 9: I said, so sorry about his lady said, a free,
Speaker 9: free to me the love of my life, he said,
Speaker 9: another way you wiggle in I look the way you
Speaker 9: giggle in it love to give you just a little
Speaker 9: kiss son your lips today light. So we giggled all night.
Speaker 3: But a Manhattan federal judge gave Dua Lipa an early victory,
Speaker 3: dismissing the lawsuit. The judge found that the shared melody
Speaker 3: was generic and not protectable under copy right law. Having
Speaker 3: appeared in Mozart and Rassini operas, Gilbert and Sullivan operettas,
Speaker 3: and Staying Alive by the Begs, Joining Me is music
Speaker 3: attorney Ron Beanstock, a partner at Scarency Holland Beck Ron
Speaker 3: tell us about the first copyright lawsuit that du A
Speaker 3: Lipa one over, Levitating where a reggae group suit her.
Speaker 10: There's a twenty seventeen song by a relatively and I
Speaker 10: don't want to result anybody. It's relatively unknown reggae group
Speaker 10: in Florida. You got to prove access, as you know
Speaker 10: on all of these cases through step process. The giant
Speaker 10: hurdle is access. Then you've got substantial similarity. If you
Speaker 10: don't have access and you can't really prove it, you
Speaker 10: can't say somebody heard of this, or it was a hit,
Speaker 10: someone should have heard of it, or you're on tour
Speaker 10: with them, or you shared the same manager, or you've
Speaker 10: shared the same producers, or all those different check the box.
Speaker 10: For access. Then you've got to have some striking similarity
Speaker 10: to go further, and that's where the subtle courts usually go. Okay,
Speaker 10: there's your bar, right, and this doesn't striking similar So
Speaker 10: back to our reggae claim. You've got effectively a four
Speaker 10: chord pattern that is in minor key. The song Levitating
Speaker 10: can be viner and the chord sort of match up.
Speaker 10: But that's not how this works musically. If you don't
Speaker 10: mind me singing, I hope I don't ruin. Everybody's go ahead.
Speaker 10: But there are two things that are very clear in
Speaker 10: both cases involving this song Levitating. It's this pattern Da
Speaker 10: da da da da da da da da da da
Speaker 10: da da da da da defending chromatic across the four chords.
Speaker 10: Here you go da da da da da da da
Speaker 10: da da da da da da da. And that's going
Speaker 10: to be what somebody's got to hang their legal hat
Speaker 10: on and say that is not a common element. You
Speaker 10: don't hear that very often. And these things match up
Speaker 10: when you use this analysis the way we do with chords.
Speaker 10: When we take these melodies and we put them into
Speaker 10: the TSC or you mask them up in the relative key,
Speaker 10: those notes are in a match up, and then they
Speaker 10: talk about harmonic diling and all these well, that's staying alive.
Speaker 10: Da da da da da da da da da da
Speaker 10: da da da da da da. Right, we've heard that before.
Speaker 10: So immediately when you start singing, the judge saying Mozart
Speaker 10: and Gilbert in Sullivan and mentions the beg's, you know,
Speaker 10: that's a pretty common element. So when people say, hey,
Speaker 10: i've heard that before, Sure you did. You heard it
Speaker 10: probably six centuries ago, and the beg's da da da
Speaker 10: da da da da da da da da da da
Speaker 10: ay statalized. You know, these are sort of common elements.
Speaker 10: So the first part is that the planets in the
Speaker 10: first case involving the Regaevan couldn't prove access. And then
Speaker 10: it really fell apart once you start talking about common
Speaker 10: element and it got dismissed. And to give you one
Speaker 10: more pop culture reference, the chords are the same things
Speaker 10: to ELO's Evil Woman. These are common and four chord
Speaker 10: patterns and songs. We could be here all day. I mean,
Speaker 10: they're really common. So the first case dismissal rested upon
Speaker 10: the idea that you had no access and they're not
Speaker 10: striking a clar So we.
Speaker 3: Go from reggae to the second case, which involves two
Speaker 3: disco songs.
Speaker 10: The second case is interesting because I think this was
Speaker 10: a slightly more sophisticated approach to it, right they so
Speaker 10: it kind of didn't work on the first matter that
Speaker 10: they have that precedence, So now you can kind of
Speaker 10: roll into what what should we do that's different? Here,
Speaker 10: still the same issues. It's in B minor, and now
Speaker 10: you have this nineteen seventy nine wiggle and giggle in
Speaker 10: E flat major, and then this don diablo only in
Speaker 10: Spanish Stung in Spanish, also in a major case B
Speaker 10: flat major. So you already start with some variations. The
Speaker 10: other thing that the lay person generally when they discussed
Speaker 10: this with me, and I'm sure discussed this with you,
Speaker 10: is it's about publishers. This is not about dualalipa. This
Speaker 10: is about the publishers, the lawsuits involved. Who controls the copyright.
Speaker 10: So these are major publishers, you know, Warners, Sony, Universal Music.
Speaker 10: So they're going to get some really powerful teams of
Speaker 10: really experienced copyright lawyers. I know some of these people.
Speaker 10: They're great at what they do. They've enters before. So
Speaker 10: you start already with the concept of all right, where's
Speaker 10: our access. Where's that giant hurdle you've got to get
Speaker 10: over a Men nine disco tune called Wiggle and Giggle,
Speaker 10: And then you have the Spanish only don diablo. When
Speaker 10: would these writers? Is support writers, it's not just do aliva?
Speaker 10: When would these people have access to that song? So
Speaker 10: that's a huge hurdle. If you don't prove back, you're
Speaker 10: right back to this what's strikingly similar? So the plaintiff
Speaker 10: said the opening melody was duplicated throughout the song and
Speaker 10: gave a retro field. Well, okay, that doesn't count. Retro
Speaker 10: feel is not substantive. Again, we're not talking about the
Speaker 10: copyright and the sound recording. We're talking only about the composition,
Speaker 10: the idea that things may sound similar because they are
Speaker 10: of the same beat, and other elements not controlling here,
Speaker 10: it's the song. So you had this claim that the
Speaker 10: opening melody was duplicated, and then the defense was, well,
Speaker 10: wait a second, these are non copyrightable elements, just like
Speaker 10: our last case, right, common elements common for a chords
Speaker 10: and that common descending pattern of da da da da
Speaker 10: da da da da da da da da da da
Speaker 10: da da, and so these are not enough to prove
Speaker 10: it strikingly similar. And the judge dismissed and said, no,
Speaker 10: I'm giving you some rejudgment to defendant. And I took
Speaker 10: a look at the experts, and we had the Delbert
Speaker 10: claims about whether they were acting as experts in their opinion.
Speaker 10: You know, all the infighting will go on in federal
Speaker 10: court about experts popyright. But ultimately the judge said, hey,
Speaker 10: these are common elements. I can't let this case proceed
Speaker 10: and keep the sensed.
Speaker 3: The case seemed to have benefited from the Ed Sheeran case,
Speaker 3: where it was found that sheeron song Thinking Out Loud
Speaker 3: and Marvin Gaye's song Let's Get It On only shared
Speaker 3: commonly used elements that are not copyrightable.
Speaker 10: All right, So the Ed Sheering case, it's win a verdict, right.
Speaker 10: It was not decided in a summary rejudgment or dismissal.
Speaker 10: The jury got to hear Ed Sheeran play his song
Speaker 10: in his version live. Then he got to interpret any
Speaker 10: way he wanted how he would present that song. That
Speaker 10: to me was an error by the flinker. So that's
Speaker 10: a problem with just the presentation of evidence. The second
Speaker 10: part was throughout his case, they said, there are some
Speaker 10: common elements in music, right, there are common patterns and
Speaker 10: common things. You don't own an idea for a song,
Speaker 10: and that runs two ways. One it's the sound recording.
Speaker 10: The problematic cases always have the idea that someone got
Speaker 10: to hear it. That's not what we're talking about. They
Speaker 10: get through that only talking about the song. So if
Speaker 10: you have a song that has common elements, we're not
Speaker 10: talking about other audio similarities. It's just talking about the
Speaker 10: common elements in the composition. And yet you can't prove
Speaker 10: that these common elements are listed right, they're not protectable.
Speaker 10: Then that you get the same results that you had
Speaker 10: with as Sharon right, they're not protectable. He has the
Speaker 10: own interpretation of that does not match up to your claim,
Speaker 10: and so eventually that case went its way. So the
Speaker 10: common element scene comes to play in all three of
Speaker 10: these to some extent. The first one really is just
Speaker 10: based upon no access at all. So we kind of
Speaker 10: get that running through all these cases. Those are all
Speaker 10: southern districts, are all here in New York seas you
Speaker 10: can get the same circus decisions to get some unanimity
Speaker 10: as to the decision making.
Speaker 3: I'm always surprised that the judges can break down the
Speaker 3: musical elements in their opinions.
Speaker 10: You're going to rely on the musicologists, right, because the
Speaker 10: judges are going to make the decision based upon their
Speaker 10: own Even though judges in the past go back to
Speaker 10: the George Harrison case with he still find my street
Speaker 10: Lord way way back, the judge kind of said, hey,
Speaker 10: I'm a musician, I get this. And I've had judges
Speaker 10: in federal court who, you know, kind of made reference
Speaker 10: to the fact that they played an instrument. There's always
Speaker 10: this idea that what the judges listening to are battling experts. Right,
Speaker 10: in this particular case, the judge gave credence to both
Speaker 10: sides and waited and said, look, your plaintiffs experts. They're
Speaker 10: making some good points here, but not carrying the day
Speaker 10: that they didn't get over the common elements of these
Speaker 10: two things. And the expert on the other side has said, look,
Speaker 10: these are really common and was pointing to Mozarts and
Speaker 10: I have in my amazing singing voice that it's da
Speaker 10: da da da da da da da da da da
Speaker 10: da da da data, right, And that's ultimately what it
Speaker 10: came down to, is that piece of common element.
Speaker 3: What does it say about the song if you have
Speaker 3: two different copyright suits.
Speaker 10: It says that the song made a lot of money,
Speaker 10: and no one would care unless it's made a lot
Speaker 10: of money. So this is a popular artist and everybody
Speaker 10: wants a piece of a hit. And you know, all
Speaker 10: we got to do is talk about the Mariah Carey lawsuit,
Speaker 10: and we're rolling right into that series. But these lawsuits
Speaker 10: just don't happen unless there's money, and real money involved.
Speaker 3: And while we're talking about real money, Mariah Carey also
Speaker 3: want to copyright loss suit over her mega Christmas hit
Speaker 3: All I Want for Christmas Is You, which makes mega money,
Speaker 3: topping the Billboard Hot one hundred chart every holiday season
Speaker 3: since twenty nineteen, earning Carrie two point five to three
Speaker 3: million dollars every year in royalties. A songwriter accused her
Speaker 3: of infringing a song he recorded with the same title
Speaker 3: in nineteen eighty nine. Was this lawsuit not based on
Speaker 3: the music but on the words of the song?
Speaker 10: Probably the best question anyone's asked about that, because everybody
Speaker 10: kind of lifts the wrong page in that result. First,
Speaker 10: I don't often get to say someone's taking a hit,
Speaker 10: had an evergreen hit, evergreen hit. My pun there it's
Speaker 10: a Christmas hits and you can't protect the title. First
Speaker 10: level of analysis. I'm not sure what people are thinking.
Speaker 10: We have the same title. Okay, that's not protectable. So
Speaker 10: they were to restart and then the common element melody
Speaker 10: and other we're not here back to your lyric question,
Speaker 10: want to hear it's the common lyrics were not at
Speaker 10: the bust out laugh and on this get ready here
Speaker 10: the common lyrics missiletow, Santa stocking, snow, and Christmas. Oh
Speaker 10: ooh when you put it like that, ooh, that's not
Speaker 10: going very far. That is just just not going to
Speaker 10: carry the day. You can't protect the title. You've got
Speaker 10: common elements and lyrics. You've got no question that you're
Speaker 10: claiming with the melodies are exactly the same. And here's
Speaker 10: sort of a sidebar moment. They claimed access and got
Speaker 10: the case rolling through the process in the closest because
Speaker 10: they claimed access if it had been a big hit
Speaker 10: in the country chart, a kid or not. Their song
Speaker 10: called well I Want for Christmas View was a country
Speaker 10: hit roughly the same time, so their access was based
Speaker 10: upon Yeah, it was a charting song. Whether a country
Speaker 10: hit gets listened to by a pop star and her
Speaker 10: co writer don't know. But this one fell down the
Speaker 10: shares pretty quickly in the ninth toorkeit in California because
Speaker 10: it wasn't provable. And I want to add also cut
Speaker 10: sanctions and partial attorney sees were granted against the flankiffs
Speaker 10: on them. It fell really short, and I think that
Speaker 10: judge clearly said, wait a second, you should never apply
Speaker 10: you Roscoe.
Speaker 3: I believe the judge did refer to them as Christmas cliches.
Speaker 3: Thanks Ron. That's Ron Beanstock of Scurrency, Holland Beck. And
Speaker 3: that's it for this edition of the Bloomberg Law Show.
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