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Visas Revoked & Dua Lipa Wins Twice · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
0:08
Speaker 2: We have a right, like every country in the world
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Speaker 2: has a right to remove you from our country. So
0:12
Speaker 2: it's just that simple.
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Speaker 3: And Secretary of State Marco Rubio said that under his direction,
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Speaker 3: at least three hundred visas, primarily student visas and some
0:23
Speaker 3: visitor visas have been revoked.
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Speaker 2: Why would any country in the world allow people to
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Speaker 2: come and disrupt We gave you a visa to come
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Speaker 2: and study and get a degree, not to become a
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Speaker 2: social activist that tears up our university campuses.
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Speaker 3: Rubio acknowledge that he revoked the student visa of a
0:39
Speaker 3: toughs PhD student due to her views on the Israel
0:43
Speaker 3: Hamas War. My guest is immigration law expertly on Fresco,
0:47
Speaker 3: a partner at Hollanden Knight. Leon Rubio said, if they're
0:51
Speaker 3: taking activities that our counter to our national interest, to
0:54
Speaker 3: our foreign policy, will revoke the visa. Are most of
0:58
Speaker 3: the student arrests that we've been here about due to
1:01
Speaker 3: revoking their visas due to a revocation of their visas well?
1:05
Speaker 4: Yes, So there's two steps in the visa revocation process.
1:09
Speaker 4: There's a first step, where what can happen is you
1:12
Speaker 4: have a visa, you enter the United States, you're here legally,
1:16
Speaker 4: and you get an email from the State Department. And
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Speaker 4: this actually is quite common. It's not just about this issue.
1:22
Speaker 4: It happens if someone gets arrested or for other issues.
1:26
Speaker 4: You'll get an email from the State Department that says
1:28
Speaker 4: your visa has been canceled. And what that means is
1:32
Speaker 4: that if you leave the United States, even though you
1:35
Speaker 4: have this thing in your passport which says you can
1:38
Speaker 4: travel let's say through twenty twenty eight or twenty twenty nine,
1:42
Speaker 4: when it actually gets sweite, it won't work. It's canceled.
1:45
Speaker 4: That doesn't mean just because your visa has been canceled
1:49
Speaker 4: that you have to leave at that moment. It just
1:51
Speaker 4: means that you are subject to being told you have
1:54
Speaker 4: to leave. So then there's a second step, which is
1:57
Speaker 4: if the government actually wants you to leave, then ICE
2:01
Speaker 4: has to actually come and place you in deportation proceedings
2:06
Speaker 4: to say, because your visa was canceled and we don't
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Speaker 4: think you have a right to remain in the United States,
2:12
Speaker 4: we're going to place you in deportation proceedings. That's the
2:15
Speaker 4: new one that's happening more often now than ever happened before.
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Speaker 4: Before you were just told if you left, you couldn't
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Speaker 4: come back. But now people are actually being affirmatively placed
2:27
Speaker 4: into removal proceedings that are trying to get an outcome
2:30
Speaker 4: where they actually are forced to leave the United States.
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Speaker 3: Now, the Palestinian student at Columbia who was arrested had
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Speaker 3: a Green card. Do we know if there are a
2:41
Speaker 3: lot of arrests involving green card holders?
2:44
Speaker 4: We now know of a handful of those of students
2:48
Speaker 4: who have green cards. There was a South Korean student
2:51
Speaker 4: who also was at Columbia who also had a green card,
2:55
Speaker 4: and there are a couple others where what's happened is
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Speaker 4: for those individos that have green cards, it's much harder.
3:02
Speaker 4: You can't just give them an email canceling their visa
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Speaker 4: because there is nothing to cancel. At that point. You
3:08
Speaker 4: actually have to say that one of the grounds of
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Speaker 4: removal in section two thirty seven of the Immigration and
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Speaker 4: Nationality Act actually applies to this person. And so usually
3:21
Speaker 4: what you would want to say is that they did
3:23
Speaker 4: something where they supported terrorist organizations and that's why they
3:27
Speaker 4: were going to be placed in removal proceedings, but here
3:30
Speaker 4: they're trying to skip that step because they don't want
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Speaker 4: to actually have a trial in immigration court about whether
3:37
Speaker 4: you supported terrorists or not. They want to try to
3:40
Speaker 4: rely on the provision that says that if Secretary Rubio
3:45
Speaker 4: says that your very existence and presence here in the
3:49
Speaker 4: United States is bad for American foreign policy, then he
3:53
Speaker 4: can just order you deported. He doesn't actually need to
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Speaker 4: prove anything in that situation. And so that was the
4:00
Speaker 4: ground that was originally used for Mahmoud Khalia, the Colombian student,
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Speaker 4: and supposedly they've added some others. Now we'll have to
4:10
Speaker 4: wait and see how that plays out. And it's unclear
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Speaker 4: because all of these are private documents. Unless the foreign
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Speaker 4: nationals want to release them to the press, then nobody
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Speaker 4: sees them. So it's unclear with some of these other
4:21
Speaker 4: students are being given. But if they are being given
4:25
Speaker 4: this category where Secretary Rubio is saying that it's against
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Speaker 4: the foreign policy interests of the United States, well in
4:32
Speaker 4: that situation, then theoretically there's going to be a lot
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Speaker 4: of litigation about whether you even get a trial here
4:39
Speaker 4: or not. And that's where the courts have really not
4:43
Speaker 4: given us any idea yet. I mean, there was a
4:45
Speaker 4: case where when President Trump's sister was alive, she said
4:49
Speaker 4: that was an unconstitutional provision that couldn't be applied, but
4:53
Speaker 4: that ultimately didn't make its way into an appellate court
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Speaker 4: legal president, and so we just don't know how that's
5:00
Speaker 4: going to be resolved when it gets to the courts.
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Speaker 3: Well, let's talk about Khalil for a minute. The New
5:06
Speaker 3: York federal judge ordered that his case be transferred to
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Speaker 3: New Jersey, but it hasn't been transferred yet.
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Speaker 4: Well, what happened was the New York judge, Jesse Furman, said,
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Speaker 4: I'm ordering the case be transferred to New Jersey, and
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Speaker 4: he actually, oddly enough, still claims to have an injunction
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Speaker 4: even though he's transferred the case. So unclear who enforces
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Speaker 4: this injunction that prevents the removal of mister Khalil while
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Speaker 4: his case is pending. So he put that injunction in
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Speaker 4: and then transferred the case. But then there was a
5:38
Speaker 4: hearing in the New Jersey courts. And so there's a
5:41
Speaker 4: judge there, Michael Farbiars, who had a hearing in New Jersey,
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Speaker 4: and there there was a dispute between the Department of
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Speaker 4: Justice and mister Khalil's attorneys. Mister Khalil's attorneys want him
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Speaker 4: to have that jurisdiction in New Jersey, and the federal
5:57
Speaker 4: government wants them to have that jersey in Louisiana, and
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Speaker 4: so that issue has not yet been decided by Judge
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Speaker 4: Farbars in New Jersey.
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Speaker 3: It seems like in a lot of these cases where
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Speaker 3: students are being detained by ice, there's very little or
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Speaker 3: no information about why they're being detained. So, for example,
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Speaker 3: in the case of a University of Minnesota graduate student
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Speaker 3: being detained, officials in Minnesota, including the governor, are asking why.
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Speaker 4: So here's what happens. So the foreign national who's detained
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Speaker 4: is supposed to be served at that moment with a
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Speaker 4: warrant and with a document called a Notice to Appear
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Speaker 4: that explains why they're being apprehended and what the ground
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Speaker 4: is that they're being placed in removal proceedings for now.
6:44
Speaker 4: How that document then gets transmitted to the rest of
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Speaker 4: the world becomes a problem because if the person then
6:51
Speaker 4: gets put in a detention facility, they would need to
6:55
Speaker 4: have access to a fax machine or a lawyer would
6:58
Speaker 4: need to come down and make copy of that document
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Speaker 4: in order for anyone else to find out what is
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Speaker 4: in it. And so that's why people don't know because
7:07
Speaker 4: until finally that person who is detained ends up making
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Speaker 4: human contact with an attorney or someone else, no one
7:15
Speaker 4: will know anything about this person's case.
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Speaker 3: And can a person even get a hearing for cancelation
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Speaker 3: of a visa.
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Speaker 4: It's going to depend what the grounds were for removals.
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Speaker 4: There's a thing called INA section two fourteen B. It's
7:31
Speaker 4: like a catch all provision that says, if we don't
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Speaker 4: think you're doing the things you're supposed to be doing
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Speaker 4: here on your visa, you can cancel your visa. So
7:40
Speaker 4: if the Secretary Ruvio is canceling visas, pursue it to
7:44
Speaker 4: two fourteen B, then what can happen in those visitor
7:47
Speaker 4: visa cases is that the reason for the removal is
7:52
Speaker 4: just that you have a canceled visa and that's it.
7:55
Speaker 4: So then you would just have a case about whether
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Speaker 4: your visa was canceled in the entry would be yes.
8:01
Speaker 4: So in those situations, there's not really anything to have
8:04
Speaker 4: a hearing about for those people, and they will lose.
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Speaker 4: But that cannot be done to the Green card holders.
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Speaker 4: So for the Green card holders, an actual ground of
8:12
Speaker 4: removability is going to need to be asserted, and so
8:15
Speaker 4: for that, if it's terrorism, then there will need to
8:18
Speaker 4: be a trial and immigration court about terrorism, or if
8:21
Speaker 4: it's some other ground of crime, and there will need
8:23
Speaker 4: to be a trial inst of that. The only one
8:25
Speaker 4: where there will be an argument about whether a trial
8:28
Speaker 4: is valid is this issue of whether the Secretary thinks
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Speaker 4: your presence is contrary to the interest of US foreign policy,
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Speaker 4: And that's where there are these habeases being filed saying, Look,
8:40
Speaker 4: they're trying to pre ent this argument, say you can't
8:43
Speaker 4: put me in a process where I don't get to
8:45
Speaker 4: have some sort of due process and trial, or that
8:49
Speaker 4: that statue in and of itself is unconstitutional because it
8:53
Speaker 4: can be used without any guard rails of any kind,
8:57
Speaker 4: meaning it could just be used on anybody for any reason.
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Speaker 4: And if that's true, is that really what Congress intended there?
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Speaker 3: And so their best bet is then challenging the constitutionality
9:08
Speaker 3: of a statute.
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Speaker 4: Because really, at the end of the day, it's hard
9:11
Speaker 4: to have a trial on whether the Secretary of State
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Speaker 4: should think or shouldn't think that your presence is contrary
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Speaker 4: to the interest of foreign policy. That's a tougher one,
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Speaker 4: because how are the courts going to substitute their judgment
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Speaker 4: for the secretary. It seems like the more promising argument
9:29
Speaker 4: there is just that that statute is unconstitutional because it's
9:33
Speaker 4: too vague and it's basically a violation of someone's due
9:37
Speaker 4: process right because there's no way to get yourself out
9:40
Speaker 4: from under such a thing. The only thing there will
9:44
Speaker 4: be hot is one challenge that can one challenge that prehmptively,
9:48
Speaker 4: like the people are trying to challenge, which I think
9:51
Speaker 4: they're finding sympathetic judges right now, but most likely that's
9:54
Speaker 4: going to be viewed as not valid. What's probably going
9:58
Speaker 4: to have to happen is they're going to have to
9:59
Speaker 4: go through the removal process and then challenge it at
10:03
Speaker 4: the end as what's called the petition for review of
10:07
Speaker 4: a final Order of removal, and then the courts will
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Speaker 4: get to these cases and decide whether those statutes are
10:15
Speaker 4: constitutional or not.
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Speaker 3: There's been a lot of litigation over the hundreds of
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Speaker 3: Venezuelan's alleged gang members deported to prison in El Salvador.
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Speaker 3: Where does that stand?
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Speaker 4: So there's currently an injunction that was issued by the
10:30
Speaker 4: District Court in DC Judge Bozburg, and that's actually been
10:34
Speaker 4: affirmed two to one by the Court of Appeals of
10:36
Speaker 4: the DC Circuits that says that you can't deport anyone
10:41
Speaker 4: using the Alien Enemies Act. And there's actually a different
10:44
Speaker 4: injunction issued by a different court which says you can't
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Speaker 4: do these third country deportations, meaning you can't send people
10:52
Speaker 4: to a third country just willy nilly without giving them
10:56
Speaker 4: some ability and due process to challenge that removal to
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Speaker 4: a different country. Those two injunctions should operate theoretically to
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Speaker 4: prevent deportations to Alsovodor right now, Venezuelan, But there was
11:10
Speaker 4: just a deportation today of seventeen people to Alsavodor who
11:16
Speaker 4: were claimed to be Venezuelan gang members. The interesting question
11:19
Speaker 4: would be whether those people all had findal orders of
11:23
Speaker 4: removal and were not Alien Enemies Act deportations, whether they
11:27
Speaker 4: were people who could have been deported.
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Speaker 1: And then the.
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Speaker 4: Question also is did this deportation violate this third country
11:34
Speaker 4: removal injunction that was issued, And so that's going to
11:38
Speaker 4: be an issue that's going to be scrutinized as Well,
11:41
Speaker 4: but we're gonna have to see where these new seventeen
11:44
Speaker 4: people who were deported fit into this puzzle and whether
11:48
Speaker 4: an injunction was actually violated.
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Speaker 3: There coming up panic about traveling among Green card holders.
11:54
Speaker 3: This is Bloomberg. There's a lot of litigation concerning the
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Speaker 3: deportations of alleged Venezuelan gang members to prison in El Salvador.
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Speaker 3: A federal district court judge has put a temporary halt
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Speaker 3: on the deportations, and a federal appeals court has upheld
12:12
Speaker 3: that order. And now the Trump administration is asking the
12:15
Speaker 3: Supreme Court to allow it to resume deportations of the
12:19
Speaker 3: alleged gang members without hearings. I've been talking to Leon
12:23
Speaker 3: Fresco of Honda Knight. So Judge Bosburg ruled that the
12:28
Speaker 3: Trump administration can't deport the five Venezuelan plaintiffs in the case.
12:34
Speaker 3: What about the Venezuelans who are already.
12:37
Speaker 4: There, Well, that's going to be an issue for later
12:40
Speaker 4: this week. The court is going to have to decide
12:42
Speaker 4: the fate of those individuals and whether those individuals can
12:46
Speaker 4: be brought back to the United States. And also the
12:50
Speaker 4: Supreme Court is also being oustd the way in on
12:53
Speaker 4: this injunction, and they're being asked to say his injunctions
12:56
Speaker 4: so that more deportations can happen in El Salvador. So
13:00
Speaker 4: we're going to have court rule ins coming from both directions,
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Speaker 4: both from the Supreme Court and from the District Court.
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Speaker 4: The District Court on whether it's injunction means that it
13:09
Speaker 4: should bring people back to the United States, and the
13:13
Speaker 4: Supreme Court on whether all of this was improvidently done
13:18
Speaker 4: and the Trump administration can continue just as it started,
13:22
Speaker 4: the porting whoever it says is an alien enemy into
13:27
Speaker 4: these prisons in El Salvador.
13:29
Speaker 3: And also attorneys hired by the Venezuelan government have filed
13:34
Speaker 3: an action in El Salvador to get the imprisoned Venezuelans
13:39
Speaker 3: released or transferred and repatriated. The question is whether there's
13:44
Speaker 3: a basis for holding them even under El Salvador law.
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Speaker 4: The issue here is the following. Both Al Salvador and
13:52
Speaker 4: the United States have similar laws which say that at
13:55
Speaker 4: the end of the day, you can't have people in
13:58
Speaker 4: detention if they didn't actually commit a crime and were
14:02
Speaker 4: punished for detention, unless the purpose is to create some
14:08
Speaker 4: sort of very minimal backstop in order to secure the
14:12
Speaker 4: removal of individuals. And so the question is for Alsavador,
14:16
Speaker 4: why are these individuals being detained in Alsavador If they
14:19
Speaker 4: can be moved quickly to Venezuela, then the point from
14:24
Speaker 4: the Venezuelan standpoint is these individuals should be moved because
14:28
Speaker 4: there's no basis for Alsavador to be detaining these individuals.
14:32
Speaker 4: They were not punished for any crimes they committed in Alsavador,
14:36
Speaker 4: and they did not actually commit any crimes. There's no
14:40
Speaker 4: reason legally that the Asavador government would be detaining them,
14:44
Speaker 4: and so that's the issue that the Venezuelan government is
14:47
Speaker 4: going to try to get to. But then the issue
14:49
Speaker 4: is does that mean that Venezuela is going to agree
14:52
Speaker 4: to start taking these individuals. And if it does, then
14:55
Speaker 4: it'll have a much stronger case. But if it doesn't
14:58
Speaker 4: agree to start taking these individ visuals, then what Alsavador
15:02
Speaker 4: would say is we can't have these violent gang members
15:06
Speaker 4: free in Alsavador. They will create instability in Alsavador. So
15:10
Speaker 4: we have no choice that they're going to be deported here.
15:12
Speaker 4: We have to have them detained until Nzuela agreed to
15:15
Speaker 4: accept them.
15:16
Speaker 3: There are about twelve point eight million Green card holders
15:21
Speaker 3: living in the United States, and there are a lot
15:24
Speaker 3: of concerns with these high profile arrests of some Green
15:28
Speaker 3: card holders, including at least one who was returning to
15:32
Speaker 3: the United States and arrested at Logan International. And there
15:36
Speaker 3: are reports of shall we say, stepped up activity at
15:40
Speaker 3: the airports by customs and border patrol.
15:43
Speaker 4: There is much more press scrutiny, for sure, being given
15:48
Speaker 4: to airport actions. Statistically, the numbers are still pretty low,
15:54
Speaker 4: just because there's only so much capacity at these airports
15:57
Speaker 4: to be doing this. The airports aren't taking in tens
16:00
Speaker 4: of thousands of people a day on these flights, and
16:03
Speaker 4: they're debating at the end of the day a handful
16:07
Speaker 4: maybe ten or twenty individuals per day. But these ten
16:11
Speaker 4: or twenty individuals per day, some of them have become
16:14
Speaker 4: very high profile cases recently French scientists coming for conventions,
16:19
Speaker 4: British tourists, Canadian tourists, German tourists who aren't people typically
16:25
Speaker 4: detained at these facilities and moreover, the problem is it's
16:30
Speaker 4: very typical for the border patrol when they detain someone
16:34
Speaker 4: to take their phone and to basically find what's in
16:38
Speaker 4: their phone and see if there's something in their phone
16:41
Speaker 4: that's incriminating. And so there's much more this sort of
16:46
Speaker 4: stuff coming out in the news where they say that
16:48
Speaker 4: the CBP found something on the phone, and this is
16:51
Speaker 4: creating a lot of nervousness from people traveling into the
16:55
Speaker 4: United States. What I would say is this, which is
16:58
Speaker 4: statistically traveling into the United States is still ninety nine
17:03
Speaker 4: percent of the time not going to be a problem
17:05
Speaker 4: for most people. But if you are traveling in, for instance,
17:10
Speaker 4: one of these visa waiver program situations, which is that
17:13
Speaker 4: you don't need a visa, many people have used these
17:16
Speaker 4: programs who may have done something slightly questionable. They've worn't
17:21
Speaker 4: or they're married and they're traveling they're married to a
17:24
Speaker 4: US citizen. If there's anything questionable like that, and it's
17:27
Speaker 4: not a truly normal visit where someone is just going
17:31
Speaker 4: to Disney World, or they're going for a brief trip
17:35
Speaker 4: of a business convention or conference or something like that,
17:38
Speaker 4: if there's something more to it, where there's a work
17:41
Speaker 4: component involved, or the person is somehow trying to skirt
17:47
Speaker 4: just the normal travel, those are the people that need
17:50
Speaker 4: to start being a little bit more careful about what
17:53
Speaker 4: they're doing, because the CBP is letting a lot less
17:56
Speaker 4: of that slide than previously.
18:00
Speaker 3: Residents are they questioning them at the airports too.
18:03
Speaker 4: If you're a lawful permanent resident of the United States,
18:05
Speaker 4: you are entitled to be admitted into the United States.
18:08
Speaker 4: The only times where this gets a little bit tricky
18:12
Speaker 4: is there are people who have had convictions from maybe
18:16
Speaker 4: twenty or thirty years ago that don't realize that those
18:19
Speaker 4: convictions are deportable offenses, and when they're traveling in they're
18:23
Speaker 4: now being told, hey, you have this deportable offense in
18:26
Speaker 4: your background, we're going to be placed into deportation proceedings.
18:30
Speaker 4: There's some of that, but also, look, if you are
18:34
Speaker 4: one of these people that's subject to a random inspection
18:37
Speaker 4: and then they find on your phone all kinds of
18:40
Speaker 4: stuff that's very questionable for the purposes of what the
18:45
Speaker 4: government is finding questionable these days, then they could potentially say, look,
18:50
Speaker 4: this is a person who is someone that Secretary Rubio
18:54
Speaker 4: wants to then say is subject to the foreign policy
18:58
Speaker 4: Exception and be deported. Now, that person might be detained
19:03
Speaker 4: for a while before such an exemption is made, and
19:06
Speaker 4: so that is theoretically possible in those situations, And so
19:10
Speaker 4: what does that mean. It means that it's a different
19:13
Speaker 4: environment for travelers now, and travelers need to start assessing
19:17
Speaker 4: are they at high risk based on things they've said
19:20
Speaker 4: or done in terms of the priorities of this administration.
19:24
Speaker 4: And that's definitely a new frontier that didn't exist previously.
19:28
Speaker 3: It's a lot to take in. Thanks so much. Leon.
19:31
Speaker 3: That's Leon Fresco, a partner at Holland and Knightay with
19:39
Speaker 3: me and.
19:43
Speaker 4: I had a premission with them with the.
19:47
Speaker 3: Pop singer Dua Lipa has won a second copyright infringement
19:52
Speaker 3: lawsuit over her mega hit Levitating, which became a viral
19:56
Speaker 3: sensation used on millions of TikTok videos. The plaintiffs accused
20:01
Speaker 3: her of copying two disco songs, their nineteen seventy nine
20:05
Speaker 3: song Wiggle and Giggle All Night and their nineteen eighty
20:08
Speaker 3: song Don Diablo, but a judge tossed the lawsuit, granting
20:13
Speaker 3: summary judgment after finding that the plaintiffs failed to back
20:17
Speaker 3: up their allegations that Levitating was substantially similar to the
20:21
Speaker 3: protectable aspects of their works. Joining me is entertainment attorney
20:25
Speaker 3: Ronald Beinstock, a partner at Scarrency hollinbeck Ron start by
20:29
Speaker 3: telling us about the first copyright infringement lawsuit Dua LiPo
20:33
Speaker 3: one involving a reggae group.
20:36
Speaker 1: Always my favorite topics, because you know, these are relatives
20:40
Speaker 1: calling you, sending you texts, hey man, what do you
20:42
Speaker 1: think about this kind of stuff. Everybody has all the
20:45
Speaker 1: layman's versions of these things, but there's some you know,
20:47
Speaker 1: there's some deep dive on some law and also fast
20:50
Speaker 1: there's a twenty seventeen song by a relatively and I
20:54
Speaker 1: don't want to result anybody, it's relatively unknown reggae group
20:57
Speaker 1: in Florida. And this first case of person fingering case
21:01
Speaker 1: was that you got to prove access. As you know
21:04
Speaker 1: on all of these cases, two step process. The giant
21:07
Speaker 1: hurdle is access. Then you've got substantial similarity. If you
21:10
Speaker 1: don't have access and you can't really prove it, you
21:13
Speaker 1: can't say somebody heard of this, or it was a hit,
21:15
Speaker 1: someone should have heard of it, or you're on touris them,
21:18
Speaker 1: or you shared the same manager, or you shared the
21:20
Speaker 1: same producers or all those different check the box for access.
21:24
Speaker 1: Then you've got to have some striking similarity to go further,
21:28
Speaker 1: and that's where the subtle chords usually go. Okay, there's
21:30
Speaker 1: your bar right, and this doesn't strike similar So back
21:34
Speaker 1: to our reggae claim. So you've got effectively a four
21:37
Speaker 1: chord pattern that is in minor key. The song levitatings
21:43
Speaker 1: and B minor and the chord sort of match up.
21:45
Speaker 1: But that's not how this works musically. If you don't
21:48
Speaker 1: mind me singing, I hope I don't ruin. Everybody's still ahead.
21:51
Speaker 1: But there are two things that are very clear in
21:54
Speaker 1: both cases involving the song levitating. It's this pattern data
21:58
Speaker 1: da da da da da da da da da da
21:59
Speaker 1: da da data descending chromatic across the four chords. Here
22:04
Speaker 1: you go da da da da da da da da
22:06
Speaker 1: da da da da da da. And that's going to
22:07
Speaker 1: be what somebody's got to hang their legal hat on
22:10
Speaker 1: and say that is not a common element. You don't
22:14
Speaker 1: hear that very often. And these things match up when
22:16
Speaker 1: you do this analysis the way we do with courts.
22:19
Speaker 1: When we take these melodies and we put them into
22:21
Speaker 1: the TSC or you match them up in the relative key,
22:24
Speaker 1: those notes are in a match up, and then they
22:26
Speaker 1: talk about harmonic you know, styling and all these well,
22:30
Speaker 1: that's staying alive. Dada da da da da da da
22:32
Speaker 1: da da da da da da da da. Right, we've
22:34
Speaker 1: heard that before. So immediately when you start seeing the
22:39
Speaker 1: judge saying Mozart and Gilbert and Sullivan, Gilbert and Sullivan
22:43
Speaker 1: and mentions the begs, you know, starting with both starts,
22:47
Speaker 1: that's a pretty common element. So when people say, hey,
22:53
Speaker 1: I've heard that before, Sure you did. You heard it
22:55
Speaker 1: probably six centuries ago. And the dgs da da da
22:59
Speaker 1: da da da da da da da statalized, you know,
23:02
Speaker 1: these are sort of common elements. So the first part
23:05
Speaker 1: is that the planets in the first case involving the
23:09
Speaker 1: reggae event couldn't prove access. And then it really fell
23:12
Speaker 1: apart once you start talking about common elements. These two
23:16
Speaker 1: things sounds so much alike and they're strikingly similar, and
23:19
Speaker 1: it got dismissed and that was the end. And if
23:22
Speaker 1: I'm going to give you one more pop culture reference,
23:26
Speaker 1: the chords are the same things to ELO's Evil Women.
23:29
Speaker 1: These are common and four chord patterns and songs. We
23:33
Speaker 1: could be here all day. I mean, they're really common.
23:36
Speaker 1: So the first case really rested upon if you will
23:41
Speaker 1: and dismissal rested upon the idea that you had no
23:43
Speaker 1: access and they're not strikingly similar.
23:45
Speaker 3: So we go from reggae to the second case, which
23:49
Speaker 3: involves two disco songs.
23:50
Speaker 1: The second case is interesting because I think this was
23:54
Speaker 1: a slightly more sophisticated approach to it, right they still
23:57
Speaker 1: it kind of didn't work on the first matter that
23:59
Speaker 1: they that precedence, So now you can kind of roll
24:01
Speaker 1: into what what should we do that's different? Here, still
24:04
Speaker 1: the same issues. It's in B minor, and now you
24:07
Speaker 1: have this nineteen seventy nine wiggle and giggle in E
24:12
Speaker 1: flat major, and then this Don Diablo only in Spanish,
24:16
Speaker 1: stung in Spanish, also in a major case B flat major.
24:20
Speaker 1: So you already start with some variations right right. Getting started.
24:24
Speaker 1: The other thing that the lay person generally, and they
24:26
Speaker 1: discussed this with me, and I'm sure discussed this with you,
24:29
Speaker 1: is it's about publishers. This is not about dualalipa. This
24:34
Speaker 1: is about the publishers, the lawsuits involved, who controls the copyright.
24:37
Speaker 1: So these are major publishers, you know, Warners, Sony, Universal Music.
24:42
Speaker 1: So they're going to get some really powerful teams of
24:46
Speaker 1: really experienced copyright lawyers. I know some of these people.
24:49
Speaker 1: They're great at what they do. They've enters before. So
24:52
Speaker 1: you start already with the concept of all right, where's
24:56
Speaker 1: our access. Where's that giant hurdle you've got to get
24:59
Speaker 1: over a nineteen seventy nine disco tunes called Wiggle and Giggle.
25:03
Speaker 1: And then you have the Spanish only Don Diablo. When
25:05
Speaker 1: would these writers which is for writers, it's not just
25:08
Speaker 1: Stu Aliva, when would these people have access to that song?
25:12
Speaker 1: So that's a huge hurtle. If you don't prove fa,
25:15
Speaker 1: you're right back to this, what's strikingly similar? So the
25:19
Speaker 1: plaintiff said the opening melody was duplicated throughout the song
25:23
Speaker 1: and gave a retro field. Well, okay, that doesn't count.
25:26
Speaker 1: Retro feel is not substantive. Again, we're not talking about
25:31
Speaker 1: the copyright and the sound recording. This is where the
25:34
Speaker 1: average lay person pulls off the cliff on this. We're
25:36
Speaker 1: talking only about the composition, the idea that things may
25:40
Speaker 1: sound similar because they are of the same beat and
25:42
Speaker 1: other elements not controlling here, it's the song. So you
25:46
Speaker 1: had this claim that the opening melody was duplicated, and
25:49
Speaker 1: then the defense was well, wait a second, these are
25:52
Speaker 1: non copyrightable elements, just like our last case, right, common elements,
25:57
Speaker 1: common flour chords and that common descent pattern of da
26:01
Speaker 1: da da da da da da da da da da
26:02
Speaker 1: da da da da da, And so these are not
26:04
Speaker 1: enough to prove it strikingly similar. And the judge dismissed
26:09
Speaker 1: and said, no, I'm giving you some rejudgment to defendant.
26:12
Speaker 1: And I took a look at the experts, and we
26:15
Speaker 1: had the delbert claims about whether they were acting as
26:18
Speaker 1: experts in their opinion. You know, all the infighting will
26:21
Speaker 1: go on in federal court about experts and copyright. But
26:23
Speaker 1: ultimately the judge said, hey, these are common elements. I
26:26
Speaker 1: can't let this case proceed and using some rejudgment.
26:30
Speaker 3: Some are saying that this case benefited from the precedent
26:33
Speaker 3: set in the ed Seering case.
26:35
Speaker 1: All right, So the ed Scheering case it went a verdict, right,
26:39
Speaker 1: It was not decided in a summary rejudgment or dismissal.
26:43
Speaker 1: The jury got to hear Ed Sheeran play his song
26:48
Speaker 1: in his version live. That to me was an error
26:52
Speaker 1: by the plinker because then he got to interpret any
26:55
Speaker 1: way he wanted in front of this court how he
26:58
Speaker 1: would present that song. So that's a problem with just
27:01
Speaker 1: the presentation of evidence in control of that. The second
27:04
Speaker 1: part was throughout his case they said there are some
27:08
Speaker 1: common elements in music, right, there are common patterns and
27:12
Speaker 1: common things. You don't own an idea for a song,
27:16
Speaker 1: and that runs two ways. One it's the sound recording,
27:20
Speaker 1: which is the problematic. Cases always have the idea that
27:24
Speaker 1: someone got to hear it. That's not what we're talking about,
27:26
Speaker 1: big X through that only talking about the songs. So
27:29
Speaker 1: if you have a song that has common elements, we're
27:33
Speaker 1: not talking about other audio similarities. We're just talking about
27:36
Speaker 1: the common elements in the composition. And yet you can't
27:41
Speaker 1: prove that these common elements are listed right, they're not protectable.
27:47
Speaker 1: Then that you get the same results that you had
27:49
Speaker 1: with as Sharon right, they're not protectable. He has his
27:51
Speaker 1: own he has his own interpretation of that does not
27:54
Speaker 1: match up to your claims. And so eventually that case
27:58
Speaker 1: went its way. An element scene comes to play in
28:01
Speaker 1: all free of these to some extent. The first one
28:04
Speaker 1: really is just based upon no access at all. So
28:07
Speaker 1: we kind of get that running through all these cases.
28:10
Speaker 1: Those are all Southern districts are all here in New
28:13
Speaker 1: York season you can get the same circus decisions to
28:16
Speaker 1: get some unanimity as to the decision making.
28:19
Speaker 3: What does it say about the song if you have
28:22
Speaker 3: two different copyright suits.
28:24
Speaker 1: It says that the song made a lot of money,
28:28
Speaker 1: and no one would care unless it's made a lot
28:31
Speaker 1: of money. So this is a popular artist, and everybody
28:36
Speaker 1: wants a piece of what is to be a hit.
28:40
Speaker 1: And you know, all we got to do is talk
28:42
Speaker 1: about the Mariah Carry lawsuit and we're right into rolling
28:45
Speaker 1: right into that series. But everybody wants a piece of
28:49
Speaker 1: something that's been popular or stay popular or has some
28:52
Speaker 1: type of longevity as a hit. I don't know if
28:54
Speaker 1: the song stays in the world of longevity it hits
28:57
Speaker 1: or not. That magic a ball answer I don't have.
29:00
Speaker 1: But these lawsites just don't happen unless there's money, and
29:04
Speaker 1: real money involved. And every time there's a hit, you're
29:08
Speaker 1: gonna have a couple of different issues here in incomes
29:11
Speaker 1: in music, publishers still be performance for OLP income to
29:14
Speaker 1: the writers and publishers. You're gonna have synchronization licenses for
29:18
Speaker 1: a successful song that gets onto TV and film. You
29:22
Speaker 1: can have sect, so you start with radio. Now you're
29:24
Speaker 1: down to film and TV. You're gonna have that song
29:26
Speaker 1: placed in songs in movies and TV shows. There's mechanical
29:30
Speaker 1: income from downloading, if you sell the physical vinyl or
29:34
Speaker 1: if they're still selling TVs. I don't know if he
29:36
Speaker 1: does that anymore, but if they did, you have mechanical incomes,
29:39
Speaker 1: and then you could get the covers for a successful song.
29:42
Speaker 1: The party payments of their mechanical income. If there's a
29:46
Speaker 1: sheet music world here that still buys sheet songbooks for
29:49
Speaker 1: dua lipa, that means money. And if it makes its
29:51
Speaker 1: way to a Broadway production, that's a grand right. That's
29:55
Speaker 1: why people still oversease.
29:57
Speaker 3: Let's turn to Mariah Carey, who beat a twenty million
30:00
Speaker 3: dollar copyright case over her Christmas hit All I Want
30:04
Speaker 3: for Christmas Is You? Was this lawsuit not based on
30:08
Speaker 3: the music but on the words of the songs?
30:11
Speaker 1: Probably the best question anyone's asked about that, because everybody
30:14
Speaker 1: kind of lifts the wrong page in that result. So
30:17
Speaker 1: let's go back to your question, because it's just right
30:19
Speaker 1: on point. First. I don't often get to say someone's
30:22
Speaker 1: taking a hit, had an evergreen hit? Evergreen hit my
30:26
Speaker 1: pun there meets me. It's a Christmas it's and you
30:30
Speaker 1: can't protect the title. First level of analysis. I'm not
30:34
Speaker 1: sure what people were thinking. We have the same title. Okay,
30:37
Speaker 1: that's not protectable. So they were to really start and
30:41
Speaker 1: then the common element melody and other, we're not here
30:45
Speaker 1: back to your lyric question. Want to hear it's the
30:47
Speaker 1: common lyrics flurry at the bust out laugh and on this.
30:50
Speaker 1: I'm sorry, I'm insulting any attorneys on this, but get ready,
30:53
Speaker 1: here the common lyrics this wiletoe, Santa Stocking, snow and Christmas.
31:00
Speaker 1: Oh ooh when you put it like that, ooh, that's
31:05
Speaker 1: not going very far. That is just just not going
31:09
Speaker 1: to carry the day. You can't protect the title. You've
31:12
Speaker 1: got common elements and lyrics. You've got no question that
31:15
Speaker 1: you're claiming with the melodies are exactly the same. And
31:19
Speaker 1: here's sort of a sidebar moment. They claimed access and
31:23
Speaker 1: got the case rolling through the process in the closest
31:26
Speaker 1: because they claimed access that it had been a big
31:29
Speaker 1: hit in the country chart, a kid or not. Their
31:33
Speaker 1: song called Well I Went for Christmas View was a
31:35
Speaker 1: country hit roughly the same time, so their access was
31:39
Speaker 1: based upon yeah, it was a charting song, whether a
31:43
Speaker 1: country hit yet listened to by a pop star and
31:46
Speaker 1: her co writer, whilst says and don't know, but this
31:51
Speaker 1: one fell down the stairs pretty quickly in the ninth
31:54
Speaker 1: circuits in California because it wasn't provable. And I want
31:59
Speaker 1: to add also get sanctions and partial attorney fees were
32:02
Speaker 1: granted against the flankiffs on.
32:05
Speaker 3: The back to do Aleapa from for a minute. It
32:08
Speaker 3: sort of always surprises me that that judges, and I
32:12
Speaker 3: don't know if this judge has any musical background or not,
32:16
Speaker 3: are able to come to these decisions, you know, to
32:19
Speaker 3: figure out really the musical notes.
32:21
Speaker 1: You're going to rely on. You're going to rely on
32:25
Speaker 1: the musicologists, right because the judges are going to make
32:29
Speaker 1: the decision based upon their own Even though judges in
32:34
Speaker 1: the past, go back to the George Harrison case with
32:38
Speaker 1: Pisa find my Street Lord, way way way way back,
32:40
Speaker 1: the judge kind of said, hey, I'm a musician, I
32:42
Speaker 1: get this. That is actually a little bit of that case.
32:45
Speaker 1: And I've had judges in federal court who, you know,
32:49
Speaker 1: kind of made reference to the fact that they played
32:51
Speaker 1: an instrument. Me as a musician, I don't get to testify.
32:54
Speaker 1: I'm the lawyer, so I can only use my musicologist,
32:58
Speaker 1: which I hope never gets that far and it seldom does,
33:01
Speaker 1: should say even more than seldom does rarely if it
33:04
Speaker 1: ever does, to get that far. Because there's always this
33:08
Speaker 1: idea that what the judge is listening to are battling experts, right,
33:13
Speaker 1: and the judge gave in this particular case, the judge
33:16
Speaker 1: gave credence to both sides and waited and said, look,
33:19
Speaker 1: I don't really find the access here, so it's got
33:22
Speaker 1: to be strikingly similar your your plaintiffs experts. They're making
33:27
Speaker 1: some good points here, but not carrying the day that
33:30
Speaker 1: they didn't get over the common elements of these two things.
33:32
Speaker 1: And the expert on the other side has said, look,
33:35
Speaker 1: these are really common and with pointing because most are
33:37
Speaker 1: going forward, and I have in my amazing singing voice
33:41
Speaker 1: for you that it's data da da da da da
33:44
Speaker 1: da da da da da data data, right. And you
33:46
Speaker 1: know that's ultimately what it came down to, is that
33:49
Speaker 1: these of common elements and thank you for playing, but no,
33:52
Speaker 1: I'm going to dismiss it. You get to somebody judgment
33:55
Speaker 1: and they rely on the musicologists to get there. But
33:59
Speaker 1: between you and I and anyone who might be listening
34:01
Speaker 1: to this, I think some of the judges quietly don't
34:04
Speaker 1: stay it out loud, but they say, you know, I
34:07
Speaker 1: have an opinion on this, you know, I think there's
34:10
Speaker 1: something I want to probably I have a position I'm
34:13
Speaker 1: going to take, maybe on some of my own knowledge,
34:15
Speaker 1: if but they generally don't say that.
34:18
Speaker 3: I expected more singing. Ron you did da da da
34:21
Speaker 3: da da da. That's not singing, you know.
34:23
Speaker 1: But you and that's that's the melody, right and right.
34:26
Speaker 1: The do a leaf apart. And this is the thing
34:28
Speaker 1: about any time they're sort of hip hop oriented or
34:30
Speaker 1: spoken work things, because the melodies can be you know,
34:33
Speaker 1: just the rhythmic. So in here a lot of what
34:36
Speaker 1: the issues were. We're rhythmics, right da da da. The lyrics,
34:41
Speaker 1: the lyrics really were not matching up. I mean that
34:45
Speaker 1: you just didn't have these common elements of lyrics like
34:48
Speaker 1: and and then it fell really short on the Mariah carry.
34:51
Speaker 1: I mean, they just didn't mind up. And I think
34:53
Speaker 1: that's that judge clearly said, wait a second, you're not
34:57
Speaker 1: You should never approbably a broster. Maybe one day will
35:00
Speaker 1: have professional juries like they do in some other countries
35:04
Speaker 1: with commercial works like this where they are earning income,
35:08
Speaker 1: and there'll be a professional jury where we have not
35:11
Speaker 1: had that proposed yet. So here we are going to
35:14
Speaker 1: be generally in jurisdiction where these cases pop up more
35:18
Speaker 1: often than others. Southern District of New York, you know,
35:21
Speaker 1: Middle District, California, and the ninth speak of judges that
35:24
Speaker 1: have seen these, heard these experience in them, and I
35:29
Speaker 1: think you're getting a reasoned opinion on all of these capes.
35:33
Speaker 3: Thanks so much for your analysis and your singing. That's entertainment.
35:37
Speaker 3: Attorney Ron Beanstock, Obscurency Hollindbeck, and that's it for this
35:41
Speaker 3: edition of The Bloomberg Law Show. Remember you can always
35:44
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.
35:47
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Speaker 3: remember to tune into The Bloomberg Law Show every weeknight
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