OA489: Transformers and Intellectual Property

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 489. I'm Thomas, and that is Andrew. No, I don't do that little sound from the movie. Assume there's a new level of fantastic that you've reached you since we're talking about transformers for an episode. First, let's talk about, we've got a good lead into that segment. We got some reader comments, questions on IP. And were you wrong? I saw this email. I didn't read through it because I was like, I can't wait for Andrew to tell me. Were you wrong about trademarking a number?

0:01:32 Andrew: Hehehehehehe. Yeah.

0:01:50 Andrew: So I was wrong about that. Thank you to Robert, who wrote in. And you will know, by the way, if you're patron at any level, you get my show notes for every episode so you can see the things that we've scripted out versus the things that I'm riffing. And at the beginning of episode 486, we were riffing on 486 and the 80486 processor. And I told the story to the best of my recollection as to why Intel went from calling it the 486 to then calling it The Pentium. Go back and listen to that episode if you want to hear the whole thing. And an IP lawyer, Robert, wrote in to say, you can trademark a number.

0:02:09 Thomas: 486.

0:02:28 Thomas: Oh, I want seven. I call seven, 13. I just, I like weird prime ones, you know? 10. Well, 10. I mean, I assume I won't get 10. Like a lot of people want 10. This can't be right. Are you serious? How could you trademark a number? What?

0:02:38 Andrew: Well, he the example. He says the USPTO has plenty of trademark registrations that consist solely of a number, i.e. both in the spelled out form, such as 7, S-E-V-E-N, which is registration number 5759367.

0:02:52 Thomas: Oh, the movie? Huh.

0:02:55 Andrew: And in numeral form, the number seven, registration number 3515960. Intel itself even applied for the trademark 486. That application was approved by the U.S. Patent and Trademark Office, but Compaq filed an opposition to it because it owned the registration for the Trademark Desk Pro 386, and Intel then abandoned that application, right? Other other words, when you as part of the trademark registration process, the USPTO engages in a certain level of background work before deciding whether to grant or deny. So, right. You apply for the example I always give is your name is Joe McDonald. You reply for, you know, the McDonald's trademark.

0:03:39 Thomas: To have a farm and to be old?

0:03:42 Andrew: Right. Yeah. Yeah, And the US Patented Trademark Office is like, well, there's this existing fast food franchise that has a trademark that we're going to deny yours on the basis of. But the fact that they don't, that it doesn't come up in the USPTO search does not mean that another interested party cannot file objections to the trademark, And right? So So that's what happened in the 486 case. Intel filed the application and Compaq filed an objection. And then Intel was like, hey, you know what? Never mind. I don't want this anyway, right? 486s are about to go out of style. So,

0:03:42 Thomas: Oh. Oh, that one. Yeah, yeah.

0:04:08 Thomas: Yeah.

0:04:24 Thomas: Pentium

0:04:24 Andrew: You Know, so be it.

0:04:24 Thomas: Sounds awesome anyway. That's a good choice.

0:04:28 Andrew: Robert adds, Andrew may have been thinking about not being able to trademark a model number, as stated in the Trademark Manual of Examining Procedure, the USPTO's manual on how to handle trademarks, model numbers may be considered to fail to function as a mark, meaning consumers may not recognize this number as indicating the source of someone's goods. However, there are a number of ways that you can still trademark a model number. One way is by claiming that the trademark has acquired distinctiveness in the marketplace. This is called a Section 2F claim. This means you show evidence that the consumers recognize the model number as an actual trademark, like providing evidence of consumer surveys or testimonials. Yeah, WD-40 is a good example, or Formula 409.

0:05:07 Thomas: WD-40. C-3PO. No, that's not. Oh.

0:05:16 Andrew: Right, exactly.

0:05:16 Thomas: Yeah. 409.

0:05:17 Andrew: A Example is the 486 trademark. When Thomas was talking about the number 486, Andrew, the consumer, understood right away that the model number pointed to Intel's processor probably yeah it

0:05:17 Thomas: Yeah.

0:05:27 Thomas: Point you you've gotten really well lawyered here, Andrew, I gotta say,

0:05:33 Andrew: Really, really is. So, uh, Robert says it may be difficult to trademark a number, but it's definitely possible. And, Robert, uh, you're a hundred percent correct and this is, you know, what I will just say is when we're, we're riffing, there's a much higher chance I could be wrong, and uh, I, I loved I mean, mean like I I

0:05:41 Thomas: Wow but don't worry even if Andrew's wrong, we'll get an awesome story about it later, because this was fun, this is I love our listeners, okay?

0:05:50 Andrew: Yeah I this was great, I love, uh, I love our listeners, I love being corrected, this is why, you know, we we do the segment so

0:06:01 Thomas: But I I still don't agree, I'm just, I know, I've, like, a a climate science denier at this point, but, like, you're telling me the number seven is trademarked. Do I have to pay royalties every time I use seven in a calculation? Should I avoid it? Should I be like, well, three plus four in parentheses is what I have to do to avoid for trademark purposes.

0:06:14 Andrew: The yeah so the The question is the difference between having a valid trademark and what constitutes infringement on that trademark, which we're going to talk about in, in the, in really the next segment under this, and also, uh, in the uh, the larger Transformers, uh, segment that we get to, uh, as part B. So, uh, that's part of why I love this as a segue. It, it's also, and again, I know I don't want to be overly, you know, trying to rehabilitate myself here, the, the general premise of, I, I just stated it incorrectly. I said can't trademark a number. Um, think Robert would agree, and says so in his letter, it's harder to trademark a number than it is to trademark it, distinctive word that you've made up. And, and that wound up being the calculation, I I definitely misstated it

0:06:56 Thomas: Right. Yeah. But what does it mean that someone has a trademark on the number 7? Is that like the movie 7 or something? Like literally what what does this mean for our lives? If I try to put out a product and it's just called seven, I can't do that. Is that what it is?

0:07:05 Andrew: Uh it I'm gonna answer that in the very next segment. The last thing that Robert says that I want to jump in on, he says, "As final note, I will appreciate Andrew correcting the record when, went when back and and corrected my malapropism, to say, you can't trademark a number, as opposed to my first statement, you can't copyright a number." And Thomas's statement, you can't patent a number, those are right. And, again, I do some IP consult, what we call soft IP consulting, which means not patent, but it's not the bulk you of what I do every day. I have filed trademark applications before. I can explain it when I'm thinking about it in the same way that I can explain the difference between jail and prison. And, you know, you sort of when you get to be public commentator, you have to train yourself to say jail when appropriate, prison when appropriate. And trademark and copyright are one of those things that I just have to training myself to say.

0:07:45 Thomas: Mm-hmm. Yeah yeah well what was funny is, yeah, I said patent, and then, or I, we said three different things, you said one thing, I misremembered what you, you said, and said a different thing. And then you said, I think I said the thing that Thomas said. I meant a third thing is what happened in the edit. I was like, I don't think there's any way I could fix this. So I just have to leave it.

0:08:27 Andrew: Yep yep oh no no no, we just, let's just leave it in, might as well, I'm that

0:08:33 Thomas: It was me mishearing you. And then, but you simultaneously coincidentally also had said the wrong thing.

0:08:38 Andrew: Is exactly correct.

0:08:40 Thomas: Oh, it was really funny. Um. Well, unfortunately I have another question I have to ask you. Um, do we need to move on or do we needs? Cause I am very curious. I, so here's, I have a, I should be in the Guinness book of world records somewhere. I'm not sure when that comes out. But my household, I don't know if there's any possibility that there's another household who has watched Raya and the Last Dragon as much as my household. We bought it. I made the mistake of buying it when it came out. And my thinking was, anytime there's a new Disney movie, I'm like, oh, good, this could be another movie, you know, because otherwise I watched Frozen 876 times. Don't get me wrong, I've really grown to love Frozen, actually. It's maybe a psychological coping mechanism, I don't know, I can't tell. But I've grown to love Frozen. Frozen. I've grown to love my Frozen overlords, that rule my life.

So I was like, hey, let's get Raya the Last Dragon, even though the reviews haven't been great and it doesn't, you know, seem like it's that good. Uh, but we bought it, and it's, all my son demands, my two-year-old son demands it, and he says Raya the Last Dragon like, over and over, that's all, just every day I want to watch Raya, and then he has a, just a tantrum if he can't watch Raya.

Anyway, the point of this is, there, I wasn't familiar with this person, people can call me a square, that's fine, but the, the lead act, well, not the lead, the dragon Sisu is voiced by someone named Awkwafina.

0:08:46 Andrew: Okay. No. Go ahead. No.

0:09:03 Andrew: So,

0:09:57 Thomas: I shouldn't and she spells it differently, like, but I guess that's her, I assume that's her, like, I don't know, I think she's a stand-up comedian, but I wanted to ask you, listener Thomas S, what's the deal with that? Could I just, if I was going to do stand-ups, could I do do like a brand name but spell it differently, and then, because it's my name, it's it's cool? Could I be like Macintosh, but it's like, you know, how does that work? Well

0:10:19 Andrew: I'm going to answer that on the next segment as well. Wow. As as what it means to to own.

0:10:21 Thomas: Oh, jeez, well, I'm dying for this next segment okay well, then motion to move on to the next segment, Andrew, okay.

0:10:30 Andrew: So what it mean is to own a trademark. Right. Is is essentially what you're asking here. And and I love that question. And we are going to talk about it. It ties into another bit of listener feedback that I wanted to cover, because we've gotten a lot of IP inquiries, that I thought it was good to have an IP themed episode. So, that's that's what we're going to do. Sam Johnson asked us, "Hey, guys, I'd love for you to chat about the Ugg boot lawsuit," which is Decker's Outdoor Corporation versus Australian Leather, and gives the case citation. It's about to come up on appeal, I think, which is, which is true. Right. Verdict was rendered earlier this year, and it is being briefed in the Seventh Circuit, and I'm, and going to describe Sam, describes the case, I'm gonna give a couple bits of distinction. And in describing that, it's going to talk about what it means to own a trademark in the United States, uh, and to be adjudicated, um, as having violated a trademark right. So Sam says, Ugg is a generic term here in Australia referring to any sheepskin boot.

0:10:37 Thomas: Yeah

0:11:33 Andrew: But it was trademarked in the United States by Deckers, who has since enforced their trademark against a number of small Australian retailers. They're no longer allowed to do so in Australia due to a trademark determination here. And I'm just going to have to take your word for that, that right. Um, I, I tried to find that

0:11:45 Thomas: Makes sense well it'd be like in America if some other foreign company was like, we make boots, and that's our trademark, and they came to America and we're like, no, you can't trademark boot, that doesn't work.

0:11:50 Andrew: Yep well hilariously right, like Sam Johnson gives the example of that, he's like, uh, a cultural equivalent would be if a large Australian company trademarked wiener and started suing some small U.S.-based frankfurter shops yeah I just wanted to express just how good a letter this was so so, Deckers cannot enforce its trademark in Australia, but they can sue retailers in U.S. courts based on those Australian retailers selling items online. And again, just as a sidebar, that is 100 percent true. And I have talked about how the notion of long arm jurisdiction, right, as applied to online retailers is 100% something that I hope gets up to the Supreme Court and not

0:12:00 Thomas: Oh really, it's funny it's funnier, okay. It was yeah

0:12:47 Andrew: This Supreme Court. But but that like the law just does makes no sense. Right. Long as we have patrons or as long as we run ads. Right then technically for this show we could be potentially sued for defamation in any state in the union and potentially overseas. How bonkers is that. As a parenthetical, I love that this lawsuit also raises that, because that's one of my hobby horses that I think we need to figure out long-arm jurisdiction in the age of the internet, but but that's all, that's correct. And what happened in the Ugg lawsuit, when I, when I dug into the the trial, the transcripts, the jury, I, defendants in that case stipulated that that Deckers had a valid trademark in Ug in the United States. Also, uh, Sam, I gotta ask this, it, they have a valid trademark that these uh, Australian retailers were alleged to have infringed in Cardi, C-A-R-D-Y, um, I have no, I've, I've heard

0:12:51 Thomas: Yeah it's You Don't

0:13:46 Andrew: Of Ug boots uh Never, lawsuits, don't know what they are in the U.S.?

0:13:47 Thomas: Know what that is. I don't wear a lot

0:13:51 Andrew: I don't either.

0:13:51 Thomas: Of boots. California is not, well, I guess if you live in the mountains, I I guess that's boot area, but like not where I live. No, it's not boot weather here.

0:13:54 Andrew: Yeah, I'm cannot pull off Uggs. I will just I'll just leave it at that. But I've never heard of this Cardi thing. And it's also a part of the lawsuit. And I and I don't know if that also has a distinct meaning in, you know, down under or not. But anyway, I throw that out for you. Write back, Sam, and tell us about it. So question was not, is the trademark valid? Defendant The stipulated to that. The question was not, did they infringe upon those trademarks by selling UGG and Cardi boots? They stipulated to that there were only two issues of fact before the jury. The first was, was this a counterfeit or not. And a counterfeit is a specific subtype of infringing upon a trademark. So you infringe upon a framework, and this is going to answer your previous two questions by identifying your product for commercial sale with a mark that, quote, is likely to cause confusion or to cause mistake or to deceive potential consumers. OK, so go back to write your actor named Awkwafina. The Right. Question would be, is anybody likely to confuse?

0:14:00 Thomas: Yeah.

0:15:13 Thomas: To try to take a sip of water out of her.

0:15:15 Andrew: Right, right. Exactly. Probably not. Now, there are also derivative rights that come into play, but it also seems highly and you have the right to leverage your trademarks in other ways.

0:15:15 Thomas: Yeah.

0:15:28 Thomas: Yeah. Well, it sounds, can I just name myself McDonald's then? Or can I name myself, I don't know, Apple or, you know, Nike. Can I name yourself Nike? And then I do stand up I. And That seems weird.

0:15:38 Andrew: It is weird. And the answer is it proceeds on a case-by-case basis. This is, by the way, for both of our listeners, right, this is another off-the-cuff riffing, so might get this wrong. But the operative test here is a case called Miss 17 Undergarment. OK, and it is exactly what it sounds like. It's, I think, a 1950s era case in which a company called Miss 17 Undergarments wanted to sell underwear to teenage girls. Perfectly valid thing to do. 17 Magazine sued for infringement of their trademark. 17 Magazine now, 17 Magazine does not produce underwear, um, but the question was, is that a in the likely zone of expansion of the 17 trademark, and the courts, and, and you're, you're nodding, you're saying yes, and that's indeed what the court said. The court was like, yeah,

0:15:48 Thomas: Yeah. Yeah. Yeah. Right. Well,

0:16:33 Andrew: It seems plausible, right?

0:16:34 Thomas: As a consumer, you would probably think like, oh, I guess that magazine's selling underwear now. Okay. Whereas you're not likely to think, oh I guess that water bottle is doing stand-up now. Okay.

0:16:38 Andrew: Right, exactly right. Right. There you go. You're exactly right. So I think, again, don't take legal advice from a podcast. You wanted to be an actor, a stand up comedian named Nike. I think you're probably good.

0:16:54 Thomas: Wow. Okay, I gotta find a weird way to spell it though. Doesn't. Actually, sorry, one more Awkwafina question. It doesn't matter that she spells it kind of differently and uniquely? Is that actually not really operative here, okay.

0:16:54 Andrew: Right.

0:17:07 Andrew: It will go into remember that it's highly fact specific every time. So the fact that she spells it differently, it would not be a defense. Right. Like if she wants to start selling her own line of water.

0:17:11 Thomas: Might

0:17:19 Andrew: Right. She probably can't do that even if she spells It differently. Right?

0:17:18 Thomas: Okay she can't do that okay I

0:17:24 Andrew: Right. But the fact that she also spells her name differently and is a comedian and not a form of refreshment is is highly relevant here. It's

0:17:32 Thomas: Disagree maybe her comedy is highly refreshing. I don't know, I'm not sure, I only know her as Sisu in the movie I've had to watch four thousand hundred million times.

0:17:38 Andrew: Not likely to cause confusion. Confusion. But that also gets into sort of the issue in in the Ug Boot case, as to you can infringe upon a trademark without directly copying the trademark, right? So think about, right, it wasn't 17 Underwear, it was this 17 Underwear, like, you know, look like it's close enough that That, like, that was alleged and adjudicated to have infringed upon that, that trademark be counterfeit. It has to be. And here's the definition from the U.S. Code, quote, a spurious mark that is not registered, identical or substantially indistinguishable from a registered mark. Right. So, right, Rolex. OK, you know, you now spell it with two L's, but you use the same font and you use a little crown. Right. That's why you would not have a domestic U.S. manufacturer of R-O-L-L E-X watches. That right, would not just be infringing on Rolex's trademark, but it would be a counterfeit.

0:18:00 Thomas: Yeah. Yeah.

0:18:46 Thomas: I mean, I assume, just not lawyer speak, I, I assume the difference is one is like, oh, we sell, no, we saw a different product. It just, we happen to choose the same name, whoopsie daisy or whatever, we think we have a claim to the name. The other is, like, I kind of want to benefit from your trademark, I want to sell something here, I have this nice watch, only four hundred dollars instead of by the way, one time somebody talked to me about Rolex watches. And personally, I could not believe how expensive they are for something that we have on our phone now. But that's fine. It's lifestyle. I get it. You want to display your wealth, I guess. But I was shocked at how expensive those things can be.

0:19:05 Andrew: Yeah. Yep. Outrageous. Yes. So, two issues before the jury were, was the use of the trademark just an infringing use, right, by these two defendants, or was it counterfeit? And then second is, was it willful? Right. Did they do that intentionally, or did they do it accidentally? And that highlights, by the way, an aspect of U.S. trademark law. You can accidentally infringe upon someone's trademark. Right. Go back. And I do not know if these were the facts of the Miss 17 case, but it did not matter. Right. In other words, 17 Magazine did not have to prove that Miss 17 undergarments were trying to cash in on the popular, like, it doesn't matter.

0:20:02 Thomas: Yeah.

0:20:02 Andrew: They could have just independently been like, oh, hey, look. And, you know, I use the coming to America example all the time. Like if you independently it's a it's A riff on coming to America but like if Your last name is McDonald's and you Decide to open up a hamburger shop I Would highly recommend take this piece Of legal advice but only this piece of Legal advice from the podcast don't call Your shop McDonald's hamburger shop you can Right say I'm not trying to Infringe on McDonald's trademark you uh you could prove you're not trying to infringe on it it it makes a difference in the damages that mcdonald's can get against you uh but it does not protect you right so the important part about the case is the jury said yes to both. When when a mark is counterfeit, you then ask, is it willful a counterfeiting? Did you do it on purpose? And you can get you can elect as the party who's had your trademark infringed.

0:20:52 Andrew: Um, you can elect to get your actual damages, right? That is what, what are the sales that I lost due to you selling your product? And, uh, if it's, if its willful, you get treble damages for that or branded and rightly so it's meant to discourage bad actors, or you can get statutory damages. And here's the statutory, here's how it's written. This is 15 U.S.C. Section 1117 C sub 1. The court will award you the amount of one, not less than one thousand dollars or more than two hundred thousand dollars per counterfeit mark per types of good or services sold, offered for sale or distributed as the court considered just. So that's pretty big area. And, you know, we can talk about how there are trademark troll lawyers who go after small time shops on the Internet and say, you I don't care if you've only sold like five of these one dollar items, we can get, you know, a thousand dollars statutory damages.

0:21:06 Thomas: Wow yeah maybe

0:22:00 Andrew: So, you know, stop selling them and pay us five hundred bucks. And that happens all the time. Alternatively, the if the court finds that the counterfeit was willful, more than two million dollars in statutory damages, as the court considers just. And here the court came back with a determination of of four hundred and fifty thousand dollars for the use of the UGG. So more than the maximum you could have gotten if it was innocent. But again, less than the two million dollar maximum. So that's all on appeal to the Seventh Circuit. We're continuing to to watch it. But Sam, your facts were generally correct, Decker's right? Enforcing a U.S. trademark in U.N. court against Australian manufacturers over the Internet in connection with selling Uggs. I would just point out that the testimony convinced a jury that the infringement was willful. So, you know, that's it's not quite it's Not Quite Big Evil Deckers versus, you little tiny Australian manufacturers, although, you we'll see what happens in the Seventh Circuit. All

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0:25:01 Clip: It's been an honor serving with you all. Autobots, roll out!

0:25:07 Thomas: Can't. Finally, you get to talk about transforming, talk about Transformers, Italian Donald Trump, and weird IP issues. I can't wait. Here goes. Nope.

0:25:14 Andrew: Yep. OK, so a little bit of a bait and switch here. All of the IP issues do not arise out of Transformers, but out of another 80s show called Robotech. I don't know if you've ever heard of this one. OK, so let's start with transformers. Concept of vehicles that transformed into robots originated in Japan.

0:25:35 Thomas: Buckle. In. Everybody. Everybody the

0:25:37 Andrew: Yeah. Oh, yeah. I'll go go go quickly. Believe me, this is this does not go back to the Etruscans, I promise you. OK, but the concept of transforming robots originated in Japan where they were called Mecca and at international trade shows in the late 70s, early 80s, various toy companies looked at all of this Mecca being sold in Japan and were like, oh, man, we got to bring this over to the United States because, right. Kids love cars. Kids love trucks and kids love robot. And you'd have both. Right. It's it's two toys in one. So

0:25:39 Thomas: Concept Of Oh, great. Yeah.

0:26:07 Thomas: It's Like crack for

0:26:13 Andrew: Yes.

0:26:13 Thomas: Kids.

0:26:14 Andrew: So Transformers has a simple origin, right? Hasbro went overseas and they bought up the U.S. license to basically all the physical transforming toys that they could find in Japan. They principally came from two different lines. One long line was called Diaclone, which had most of the vehicles, right, the cars and jets, and another was a line called Micro Change, which is a weird line that had household objects that would, that were meant to transform into, like, they tiny little robots that were the size, the actual size of the toy. So those household objects were a cassette player, a a microscope, because it was the 1970s, a realistic-looking Walther P-38 handgun, also toy cars, right? Like, they were meant to be remote-controlled toy cars that turned into, like, little three-inch robots that would help the Micro Change, right? And anyway, Hasbro just bought them all, stuck them all in the same line, and they bought crazy toys, too, like the Diaclone Dinosaur Robo Change line.

0:26:46 Thomas: I I really don't want to mess with you because we, we've got so much to cover, but I, I just have to ask, I don't get, so why did they buy the, right, like, why didn't they just try to make a toy for Americans? Is it just that it's easier as a company to be like, hey, we'll just buy all this from you and then repackage it for Americans.

0:27:40 Andrew: Exactly. Exactly right. Like the, the, the mechanisms, uh, you know, it was like, oh yeah, we just go overseas, we've already got factories producing this stuff. Um, And Let's just bring them, it's cheaper to ship them to the U.S. than to start up a new factory. Creator And design, exactly.

0:27:42 Thomas: Okay. Okay, I see. Reinvent the wheel. Okay,

0:27:58 Andrew: Yeah.

0:27:59 Thomas: Gotcha.

0:27:59 Andrew: So why would a tape player be fighting a robotic T-Rex? Like, that that didn't bother Us At All. Yeah, it didn't bother us in the slightest. And Hasbro created a story around it and the way they created the story. So they bought the toys first and then they went to a teaming effort with Marvel. Right. Editor in chief Jim Shooter and and head writer on the Transformers comic Bob Budiansky.

0:28:05 Thomas: That happened in the Cretaceous, pretty sure.

0:28:23 Thomas: Wait a minute. Transformers are Marvel? Oh my God, I had no idea. Well, there goes the universe. We're going to get a bunch of those movies now.

0:28:26 Andrew: Yeah. And Sunbow Productions, which did the TV stuff. Right. And and so basically they were like a lot of 1980s cartoons. They were like, hey, man, Ronald Reagan's in charge and there's nothing to stop us. This is true. There's nothing to stop us from producing a 30 minute cartoon that runs every day that is basically like, buy me, on continuous loop for kids. So we got a whole bunch of toys and we want you to to invent some kind of story as to why kids should want to buy these toys. That literally what happened, uh, And look, the better ones were the ones that, you know, put some effort into why we should care about it. And Hasbro, I, I would argue, put a lot of effort into this, but, you know, whatever, if you, you cannot, I will not argue with you that it was nevertheless a program length commercial.

Um, put a pin in Transformers, uh, because I want to talk about a different transforming robot property from the 1980s, because it absolutely intersects with this and it gives, and has given rise to the weirdest IP dispute of all time. So, same time that Hasbro is thinking, I want to bring some transforming toys over to the United States and sell a million billion of them and make a ton of money. There was a tiny little studio in Japan called Studio Nue, N-U-E.

0:29:06 Thomas: Mm-hmm.

0:29:52 Andrew: We're an art design studio. And they were affiliated with, possibly owned by, I can't like the, trying to find Japanese records is super hard. So, you know, cut me a break on this one. A larger ad agency called Big West, Big West Advertising Company. And Studio Nue was hired writers. They Right. Were sort of the the creative team and they had an idea for a story, a near future science fiction story with giant piloted Mecca with airplanes, fighter planes that would turn into robots. So that he sits in the cockpit and.

0:30:00 Thomas: Yeah. Yeah.

0:30:26 Thomas: But the poor pilot, what happens to the pilot? It's crushed to death. Blood everywhere.

0:30:32 Andrew: No, no, no. There's that the TV show actually shows the pilot in the first episode, the pilot kind of being lifted on this conveyor belt up from the cockpit into the head of the robot. Right. Right. So. So they teamed up with a production studio, an animation studio in Japan called Tatsunoko Production Company. So so here's the way this worked. Studio Nue created the story. Big West financed it and Tatsumoko animated it. And Right? That story was called, you'll love this, Super Dimension Fortress Macross. OK. And rewritten this next line 87 times. And the best that I can describe Super Dimension Fortress Macross is it's an animated soap opera in space with transforming Mecha. So, so far, so good. Tatsunoko was a well-known studio. They'd been making anime since the 1960s, and they had previously licensed, licensed, I don't know if you've ever heard of Speed Racer.

0:30:33 Thomas: Oh, OK. Oh,

0:31:31 Andrew: Yeah, they made a terrible movie on it, like, about a decade ago, but, uh, it was, um, one of the first anime properties to come over, that was the literal trans, the transliteration of the main character's name from Japan. So he was known, I'm not even going to try, uh, to say that the Japanese character's name, but it translated as Speed Racer, which, put a little bit in that, that was a literal direct translation from the Japanese brought over to the United States. So Tatsunoko did that. They made the cartoon in Japan and they came over to us and pitched it to U.S. syndication, got paid a bunch of money. They'd been good at that. And so they said, hey, we'll help you.

We'll animate Super Dimension Fortress Macross, but we want the rights to be able to license that in the United States. And Big West and Studio Nue were like, cool, here's what you're going to get. And the deal is, I've read the original agreement. The deal says you get the rights to the physical animation of Super Dimension Fortress Macross, but not the characters, concepts, design, not the intellectual property behind it.

0:31:32 Thomas: Kind of. Yeah. It's a little redundant. Speed racer. Like it's interesting.

0:32:46 Andrew: Right. We we wrote the story. You're just drawing it. And OK. You also have the right to distribute that anywhere in the world outside of Japan, which, look, in 1981 meant in the United States. Right. So that's those three companies. And this is the point where we enter the Italian Donald Trump, which is former Italian Prime Minister Silvio Berlusconi. Right.

0:33:11 Andrew: Yeah. Yeah, Berlusconi, multibillionaire like Trump. He got that way by lying, cheating, committing crimes and not giving a damn about conflicts of interest. So Right. He owns still owns to this day a company called Mediaset. It is the largest commercial broadcasting company in Italy, and it owns three of the seven network TV channels in Italy. So if you're wondering, how did Silvio Berlusconi get elected with 21 percent of the vote in 1994? The answer is TV, still very important in Italy, was all there was in 1994. And he owned three out of the seven networks, blanketed them with ads for himself. He promised to give up Mediaset if he won. Spoiler, he did not.

0:33:11 Thomas: God, yeah.

0:33:53 Thomas: He put in a trust, a blind, quote unquote, blind trust that his kids mismanaged?

0:33:55 Andrew: No, he put it in a nothing. Nothing. And so Berlusconi not only did all the kind of stuff Trump did, with, uh you know, conflicts of interest and steering contracts to media set, um, he did stuff Trump wishes he could do like bullying other networks to fire journalists who put on coverage critical of Berlusconi. Right. Clamping down on the press, steering stories to his channels. Right like was a bad dude.

0:33:58 Thomas: Yeah, exactly. No, Yeah.

0:34:21 Thomas: I mean, Trump almost did that, but yeah,

0:34:23 Andrew: Berlusconi had a friend, an Egyptian named Frank Agrama, who the early 80s made low-budget movies like Dawn of the Mummy. And this was pulled from syndication for obvious reasons, Queen Kong. Okay, um, and these are you would expect from Dawn of the Mummy and Queen Kong, but uh, thanks to Agrama's connections, he was able to negotiate various rights to sell certain movies from Paramount, right, U.S. movies, to Mediaset, right, to Berlusconi's company, to to broadcast the movies that, like, Paramount was like, "Oh wait, wait, you mean somebody wants to watch these like horrible crappy movies? Sure, uh, we'll sell you those rights." And then he turned around and made a profit selling them to his buddy Silvio Berlusconi to show them in Italy, which is part of why, uh, Italy in the 1980s watched a whole lot of crappy U.S.

0:35:21 Thomas: Wow.

0:35:21 Andrew: Movies um agrama used the money that he made off of that deal to start a company called Harmony Gold. Harmony Gold went to Tatsunoko to license Super Dimension Fortress Macross to air in the United States.

0:35:35 Thomas: He's like, I don't know what this is, but it sounds exactly like the kind of crap that I'm interested in. Super Dimension, whatever. Ever uh

0:35:41 Andrew: So, yeah, it is, as far as I can tell, like I've made fun of a guy and I've talked about like his nepotism and it's all true. This was the first, the second. He was also involved in bringing Shaka Zulu over to the U.S. And that's its own story. But I think Igrama looked around and was like, oh, transforming robots. That's going to be huge. Let. Hasbro is going to be bringing over transforming robots that was already in the hopper by the time that this deal was struck. There were already go bots on the shelves. And I think he was like.

Oh, hey, I'm just going to go over to Japan if they can bring over the toys. I'm going to bring over some of these other shows. But Right. There was a problem with just getting the rights to Super Dimension Fortress Macross. And that was they'd only made 36 episodes. And in order to syndicate a cartoon in the United States, you needed to have at least 65 episodes because it would air five days a week. And a TV season is 13 is at least 13 weeks long, typically 26. But syndicated kids cartoons, it was OK for that 26

0:36:07 Thomas: Mm-hmm huh

0:36:45 Andrew: Week season to just run it twice. Right. So but but you couldn't you had to have at least 65. They would not buy it without 65. So Harmony Gold bought the rights to Macross. And then they also bought the right to two other Tatsunoko productions. Get to shorten these so I don't have to read it every time. But you'll love these names. Super Dimension Cavalry Southern Cross, which which had 23 episodes. And I don't know that I'm saying this correctly. Genesis Climber Mospeada, which had 25 episodes. That's 84 episodes. Plus, they made a little clip show and they hired a writer named Carl Masek to stitch all these shows together. OK, so that gives you 85 episodes. Bam. Hello, syndication. And they were able to sell.

0:37:30 Andrew: They called this production Robotech in the United States. OK, I just need to sidebar this for a minute. I cannot stress this highly enough. All three of these shows were completely different shows. Knows they had completely different characters, they had completely different styles of animation, right? It would be like the only thing they had in common was they were all produced by Tatsunoko, right? So, and they all were science fictiony with transforming mecha in it, okay? But it would me like taking right Frozen, Toy Story, and the Incredibles, right, and saying all right, we're gonna put all those together and we're going to make one cartoon out of these three productions, right? It's bonkers.

0:37:44 Thomas: Well

0:38:13 Andrew: Um, but but they did that, um, and they called it Robotech. And and, you know what, like it was a hit. And in fact, um, despite, I'm going to talk about this in a second, Carl Masek is today the guy who wrote, you know, sort of the unified treatment of why you, you should treat all of this as one big story, credited with single-handedly kicking off the interest in anime in the United States that led to the 1990s, right? Like that led to Sailor Moon and Pokemon and everything, it right. Also led to dispute that continues to this day, which is if you're my age and you grew up as a young kid with Robotech, and you were like, like, wow, this is a super cool cartoon. You have, as I do, a fondness for Robotech because as we're about to get to it, like it was unlike any of the other shows on TV.

0:38:13 Thomas: You

0:39:03 Andrew: But if you're a purist and, you know, in fairness, if you object a little bit to cultural appropriation, right, you're like they totally ruined Super Dimension Fortress Macross. Right. That's kind of the music on vinyl equivalent. And that feud to this day, we are going to get hate mail from both sides, from both the pro Robotech side and the pro Macross side. I cannot wait to answer each and every one of those letters individually. So,

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0:41:19 Andrew: Now, Harmony Gold also entered into a partnership with Matchbox to make toys for Robotech, right, which made total sense, right? That was part of the whole idea, right. And the toy they wanted to start with called, was in Macross, was called the Valkyrie. In Robotec, they renamed it the Veritech, Right. But but basically the primary hero of of Robotech is a young fighter pilot named Rick Hunter. It's kind of like a top gun in space. Right. He flies.

0:41:47 Thomas: Me? I'm in. Is There, volley space volleyball, though, I need the space volleyball scene.

0:41:48 Andrew: Yeah. There Yeah. But anyway, so Rick Hunter flies this transforming jet, right, the Valkyrie I'm gonna, I'm going to stick with calling it Valkyr because it sort of easiest, um, and they were like, okay, cool, let's sit down, and and Matchbox was like, cool, we're going to sit down, we're gonna make the the Valkyrie. There's only one problem. Remember, Tatsunoko could license Macross overseas, but Big West and Studio Nue retained all of the rights to license toys domestically in Japan, right? And they had already licensed the Valkyrie in 1983 to a company called Takatoku, which sold a million versions of the VALQUERIE toy. It has its own, uh, specific, like, uh, you know, like the way "selfie" is a neologism that that entered the dictionary, um, there's a nealogism, and I'm not going to try and read it in Japanese, for "perfect transformation," that entered the lexicon in Japan because they literally sold a million of these toys, the transformation was like 32 steps long, it was super cool, right? Um, and Takotoku licensed, licensed the Valkyrie to Hasbro in 1984 to bring over for Transformers.

0:42:08 Thomas: I Yeah.

0:42:59 Andrew: In fact, you can look at there's a U.S. patent for a changeable robot toy. I'll link it in the show notes. So, me explain what's what's going on. Hasbro and Harmony Gold were looking at a situation that's the following. OK, Harmony Gold was about to to make a toy that would have been virtually identical to the Transformers toy that that was going to be sold under the name of Jetfire. And here's the thing: neither of them knew who owned the rights to that specific toy.

0:43:31 Thomas: So Is the issue That it's like Hasbro had toy rights, essentially, this other thing, uh, Mussolini, whatever, related company had bought these shows, and then they're like, we're gonna make a toy based on the show, but the problem was somebody already maybe Had the Rights to That

0:43:32 Andrew: Yeah.

0:43:49 Andrew: That toy was already over. That story was already on the shelves in the United States in Hasbro packaging as the Autobot Jetfire. Right. In a completely different property. And played into this absolutely was Harmony Gold was like, it would be super bad if we get sued by Hasbro. Right? Right. But but Hasbro at the same time, they weren't super confident that they owned the right to Jetfire. So they reached a private settlement. I have tried to find this arrangement and I cannot. But here's what happened. OK, Hasbro would continue to sell the toy under the name Jetfire, which looked exactly like the Macross Valkyrie. Right.But the Transformers cartoon would change the character's name to Skyfire. And they would completely change his appearance on screen so it no longer looked like the Valkyrie toy they were selling on the shelves. Meanwhile,

0:43:51 Thomas: Okay Gotcha Okay Yeah That's Weird

0:44:45 Andrew: Yeah, real weird. Meanwhile, Harmony Gold would air Robotech, which had the on-screen depiction of the Vakarie. They could sell other toys based on Macross, but they couldn't sell the Vokarie toy. So think of how weird that is, right? You have a toy that looks like the thing from Robotec, but it's sold under Transformers. And if you bought a Transformer, you would watch the TV show, but it wouldn't be on it. Right. And it was bonkers. So Matchbox was like, hey, man, do you want us to do? And and this is in a very, very weird story. This is maybe one of the weirdest decisions. Right.

0:44:59 Thomas: Weird Yeah Sorry

0:45:23 Andrew: Matchbox, the toy manufacturer that made little die cast cars. That was the partnership.

0:45:21 Thomas: What's Matchbox, are they So Are

0:45:28 Andrew: Partnership

0:45:28 Thomas: They the Manufacturer, I don't know who has The interest in what Hasbro

0:45:28 Andrew: Yes Yeah Hasbro Uh, owns Transformers, Matchbox had partnered with Harmony Gold to make Robotech Toys, yeah

0:45:32 Thomas: Oh They Partnered Sorry, I missed that Okay, gotcha

0:45:38 Andrew: Yeah No, and so they were going to make the Valkyrie toy, and then Harmony Gold went back and was like, all right, x-nay on the Vorkery toy, uh, can't do that, uh, because Hasbro has already brought one over that looks exactly like the Vokery, and so, uh, Matchbox was like, OK, then what do you want us to do then? And this is the most bonkers decision in A bonkers story. And that is Harmony Gold was like, why don't you make action figures out of the characters on the show? And that's what they did. So, and by the way, again, because this is a manga, like, half the characters on the show were women. So, like, the accessories were like kind of Barbie level accessories, even though the show was pitchy it was like, there are a lot of progressive elements to to to to Robotech that I'm not going to get into.

But but the show was very clearly pitched and aired in the, you know, quote unquote, boys' cartoon TV spot, right. And so you had toys that were basically dolls. And let's be clear on this: unlike every other popular show from the 1980s, unlike the whole reason for doing this deal in the first place, Robotec did not exist to sell Robotech toys, you could not buy transforming Robotec toys, even though that was the

0:45:57 Thomas: To

0:46:51 Andrew: Whole reason that they bought all the shows and stitched them together in the first place. So Robotex was super popular as a show, but it wasn't making any money as a commercial property. So, um, essentially Harmony Gold was just kind of like, all right, well, whatever, uh, we made whatever money we could off the show. But we've kind of milked what we can out of this property, except that the that the 1984 license included, as we discussed in our A segment, the right to create derivative works, right, to, quote, "present, reproduce, record, publish, release, emit, exhibit, distribute, perform, broadcast, diffuse, display, market, edit, dub, translate, arrange musically, transform, dramatize and otherwise adapt and prepare derivative works based on, advertised, and otherwise dispose of and exhibit the and exploit the underlying series and any and all versions, character, story, settings, titles, music, sound effect, end effects, animation, artwork and all other components thereof using any methods or devices of exploitation."

0:47:46 Andrew: Exploitation. Um, all of that means, uh, Harmony Gold was like, well, hey, here's what we'll do, we'll develop a sequel, right, and the sequel, uh, we'll change some stuff around, uh

0:47:56 Thomas: To try and make an opportunity for unique toys that they could sell, okay

0:47:59 Andrew: Right, and and and not even and remember, like, this is uh, their first thought, it was not, uh, let's go from scratch and animate stuff, Harmony Gold is not an animation studio, their first thought was, well, let's buy a different Japanese property with some different transforming robots in it that haven't been sold to Hasbro, and, uh, bring it over, call it Robotech, uh, and sell those toys. And they tried that it was a property called Mega Zone two three they tried to turn it into a Robotec movie, it aired like once in, uh, in a in a theater in Texas. And they immediately pulled it. So, yeah, so that didn't work at all. And so by now it's the mid 80s, right, late 80s, '85 to '87. And you can see, like, kind of the transforming robot craze, you know, probably peaked on its way down.

0:48:51 Andrew: And also the Japanese economy was way outperforming the U.S. economy at this time, so in 1985 the exchange rate was 250 yen to the dollar, by 1987 it was 120 to one, so it was now twice as expensive to license the Japanese properties, right.

So Harmony Gold was just like, all right, okay, we tried to license Japanese properties, we'll make our own Robotech with hookers and flapjacks, right, um, at this point Magnavox was like, hey, man, uh, we signed an agreement with you five years ago, we still haven't made any decent, like, transforming robot to it like, we're done.

So magna vox pulled out, uh Harmony Gold had no money left, um, and, uh, and they basically, like, did nothing with the Robotech franchise at this time, um, and they started, you, ramping, you Up on selling more stuff, just to Silvio Berlusconi, they got involved in like some wacky dot com stuff, it was basically like, uh, all right, we're know, we had our run but we'll put a pin in that, and now we get to go back to Japan during the same time frame, um, so in Japan, Macross was not only popular as a show, but, like we said, right, had sold a million of the Veritech toys, of the of the Valkyrie toys, right, so Studio New a Big West were like, hey, man, this is great, we're making money hands over fist, let's make some sequels, right, and they made a whole bunch of sequels Macross 7, Macross Frontier, Macross Delta, Super Dimension Fortress Macross Do You Remember Love, Macross 2, Macross Plus, Macross Dynamite 7, Macros Zero, right, they made all these different

0:50:33 Andrew: Properties, uh, and they were successful to varying degrees in Japan, and the toys were successful at varying degrees, um, and now it's the 1990s, and now anime is mainstream in the United States, and people in the United States have managed to get, like like, bootleg copies of Macross, Super Dimension Space Fortress Macross. And now people are like, okay, hey, this is a different story, I wonder what the authorized sequels in Japan to this story actually look like. And Harmony Gold was like, oh, yeah, you definitely can't do that. Why? Because we, Harmony Gold, have the licensing agreement to produce any sequels. And if you have an asset, but no income stream, what you do is sue people that you think are infringing on that asset.

0:51:24 Andrew: And that's what they did all over the place, all the time. Any effort to bring over transforming Mecca from any of the Macross series or anything that looked like any of the Maccross series, Harmony Gold would step in, file a lawsuit. And based on their agreement, I read that to you, right? It was super huge, they won, they got injunctions, so you cannot legally in the United States, uh up until a couple of weeks ago, which, which we'll get to, you could not see Macross 2 or Macross Plus or Macross 7 or Do You Remember Love, right? Harmony Gold blocked all of it. So Studio Nue and Big West were like, well, this is really stupid. We have a super valuable bunch of properties.

0:52:11 Andrew: They're really, really popular in Japan. We'd like to sell them in the United States. And the company that ostensibly owns the rights is not doing anything with it. So let's let's sue Tatsunoko in Japan to figure out how far to establish how far their derivative rights extend. And they did and they lost. And and and so that 2003 case established that Big West and Studio Nue own the 41 original characters that are in Macross. Remember, they created they wrote the story. So they own those characters and that's it. Tatsunoko owns everything else. So when Tatsumoko went to Harmony Gold and gave them the derivative rights, well, guess what?

0:52:59 Andrew: Harmony gold has the derivative rates. Does it matter that they haven't produced anything with it? Nope. Nope. And so you can exclude all of these other properties from coming into the United States. And now we're fortunately about to wrap up the story. Harmony Gold went to arbitration with Tatsunoko in 2017 to establish the extent of their rights, Because even though Tatsunoko had, know, won its lawsuit against Studio Nue in Big West, the three were still partners on other shows and they were, you know, they could all see like, look, we can make money on selling Macross Plus in the United States we're not right. There's money being left out here on the floor. So Hasbro and Tatsunoko also needed to litigate to find out just how much, I said Hasbro, Harmony Gold and Totsunoko needed to, to, to litrigate subject to arbitration to figure out how much they controlled.

0:53:53 Andrew: And, and the answer is Harmony Gold controls everything except those 41 characters that they lost in, in the Japanese litigation. And so Harmony Gould made another Robotech sequel that, that, that went kind of nowhere, and then something weird happened. And that is in 2007, the live action Transformers movie made a billion dollars and the sequels made billions of dollars, right? And so Sony went to Harmony Gold and was like, we'd like to buy the rights to do a live action Robotech movie. Movie, and Harmony Gold was like, you'd like to pay us money for our worthless? Yes, very good, we will take that.

And so Sony uh bought the rights to produce a live action Robotech movie, and that is ostensibly in 2016, and that has ostensably in the works, um except that Sony may or may not have done its due diligence to figure out kind of exactly what it owned, right? And there was this huge IP morass. But one of the very nice things about being Sony Corporation is you could get everybody in a room and say, going to make a movie that's going to make a billion dollars. And you guys are quibbling over a 1984 manga that's like, I don't care what happens here, but get together and figure all this out, so that we could make our movie. And three weeks ago, that's exactly what happened. So Big West reached

0:55:30 Andrew: A settlement with Harmony Gold uh to basically preserve the status quo. It says, um Harmony Gold gets to sell Robotech, but uh Big West can engage in worldwide distribution of all of the Macross films and all of its sequels. And they can bring them over to the U.S. And Harmony Gold has no say so, agrees that, like, you know, they're arguably sequels, derivative, too bad, they're going to exist side by side. The final agreement is that it recognizes Harmony Gold's longstanding exclusive license with Tatsunoko for the 41 exclusive Macros characters. That was the benefit to uh Tatsunoko. Um So Tatsinoko gets a whole bunch of money from Sony.

0:56:18 Andrew: Sony will produce the Robotech movie. Harmony Gold gets the money for that Sony paid it to to produce the live action movie rights. Uh and And Big West, after 30 years of trying, will now finally get to bring Macross Do You Remember Love over to the United States. And the only reason is because was like, yeah, you guys got to, you got to clear this all up because otherwise I'm not going to get stuck. We're not, we're not going to make a 200 million dollar movie and then have like some crazy Japanese ruling come out that says we don't own it. Right. We want worldwide exclusive rights to our live action Robotech and we want to own and be able to sub license producing the toy there.

0:57:11 Andrew: We're, we're going to repeat these mistakes. And the only reason this is possible is because, just sort of go back to the main segment. Um There is true uncertainty, you know, as to sort of who owns what. So I could do eight more hours on Robotech, Transformers, everything else, uh but uh but I thought, I thought that was a uh a fun overview of how in these cases you can, you can specify, uh you can do exactly what you think you've intended, um and then intervening events can give you a question that you're like, wow, there's, there's no clear answer here, right? Um Is Macros 2 a derivative work uh in Japan? Uh Can it, can it be aired not as a sequel in the United States, right? And the answer, until recently was, we don't know.

0:57:55 Thomas: I Just can't wait for this movie To be a flop. I want there to be all this work and then it makes zero dollars and everybody is like, ah, why do we argue about that so much?

0:58:07 Andrew: Look.

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0:59:46 Clip: And thank you, Let's go!

0:59:46 Thomas: Thank you. Now It's time to thank our Hall of Famers, our all-time greats, over on patreon.com/law, and it's Andrew's turn to go first. I got it right this time, I didn't mess it up. Yeah.

0:59:58 Andrew: All Right. So we begin with a hearty thank you to, don't take medical advice from a Joe Rogan Experience, that is really good advice, don't listen to Joe Rogan's, really, really better advice, to Swarthy Synth Studio S, actually instead of reading names, bonus Cop Rock for listeners still with us, that's gonna be great, uh, actually, once you move up the ranks and we're in the middle, um, John Brockman, to Lisa, see you at the next true crime podcast festival, to Tell Morgan Gatton's son, which we have to, January 20th baby, to Matt Gates, he just, he eats his chicken wings with ranch, Zach Bloom, Thomas, I don't want make you worried, but I think the T3B e-coin may be rigged, to Ray, to Legal Eagle is so handsome, to Thomas will officiate, Andrew, will you be my man of honor?

1:00:44 Andrew: Absolutely. Absolutely, by the way, is written in there. So, California employment, work accident, or litigation questions, call or text attorney David Nitka, 310-776-5879. Again, that is 310-776-5879, the Smiths' Moneyball, but Thomas, instead of the A's, the bar exam instead of baseball, and a coin instead of on-base percentages, Thomas, you are a fod poodle and a gnash to gab, I bite my thumb at thee, Richard Scott, I cuss you, cuss, we all cuss when Andrew Sidles says amicus, praise be unto Hamilton, my reaction to the census needs to be censored, time to add 160 seats To the house. Yeah, don't stop there. Rest in peace, Brandon Bernard. We must abolish the death penalty. Agreed. Justice for beer. Sparkle Donkey Tequila is doubling down on support for the Trevor Project. Great organization. Donate at thetrevorproject.org. Yes, do that. The Coterie, driving success for direct-to-consumer companies like Tonal. Find us at thecoterie.io. Budget Botanist on Fiverr.

Plant of the Week is Biden's Aristosa Swamp Marigold, it's named for the seeds to fur grabbing teeth by dent, right, so not, not named after Joe Biden, but very, very cool, listening for years, still can't come up with something clever, well, you need a plant, is really what you need, to Adam Borchoff, to all my fellow law students out there, friendly reminder to go kick some ass on all your finals this week, absolutely, I don't say evasion, I say evasion, new book

1:01:24 Thomas: Yep. At Least

1:02:11 Andrew: The Greatest Gift of All, Logical Path from Religion to Humanism, by Mark McLean, out, out now, becoming a patron to get five episodes a week, and I finally caught up on months of backlog, One Mediocre Straight Guy Slowly Coming Out as a Fabulous Lesbian, BBBB55, Creature Horror Trample, whenever a Source deals damage to this that source controller sacrifices that many permanents well well

1:02:28 Thomas: Oh. Oh. It's Phyrexian, uh, like, oh crap, what's the name, it's Phyrexian something, it's like a big scary monster, uh, Phyraxian horror, I think it's something like that, I'm close, I know the card, I can't remember the second part of it, but uh, good, so half credit on that one.

1:02:49 Andrew: You, you deserve a Magic the Gathering. After indulging me for this episode. I'm looking forward, devoting Ron Johnson out of office, yeah, I like my pork streaks paired with at Casa Agria and at Emperor's Brewery Beer, Josh Holly's dorm room poster, if we can't take legal advice from a podcast, can we take podcast advice from the law firm, yes, from the offices of P. Andre Torres, listen to Opening Arguments, there you go, Lee Sharp GD Tree says now, uh, for D4 takes the bar exam, where are my four-sided dice, challenges Thomas, the D4 says OA 487's answer is a well week, Thomas Kleberg, please donate to the Trevor Project at trevorproject.org, well that's two, uh, shout outs for them, there are a lot of LGBTQ plus kids in a damn scary place right now, totally agree, buddy, freaking Guyerson, is it weird that I refer to you all as my podcast friends, my wife thinks so, no, not weird at all, we love you, idea for a screenplay, Airbud: Man's Best Amicus, don't take legal advice from a quarter

1:02:52 Thomas: I

1:03:48 Andrew: Two fabulous lesbians, well back to the OG, good luck to all studying and taking law school finals, aka not updating my Patreon for several weeks, edgy veggie pop new house, sassy Italy tours, bet, bet you a bottle of grappa that Kevin McCarthy is a liar, yeah, not taking that bet, les deux lesbian fabulo, one smart cookie cutters, Jennifer Schakowsky, anti-disestablishmentarianism, does Jack Black know you have his Pick of Destiny, a string of unconstitutional laws, John Brown did nothing wrong, my call, say it with me, amicus, maybe if we just call that place Dakota territory again, they will stop sending people to DC, yes, Nuzzly Fuzzly Torsten, Peel of the Satanic Temple, I'm not even a tortfeasor and I'm kicking your ass, Angry Mac face, Penelope is glad Sidney got sanctioned for Terpsichore. The Books That Burn podcast reviewing fictional depictions of trauma since 2019. This is not the greatest patron name in the world. No, this is just a tribute.

1:04:44 Andrew: Crimer, no criming. Please thank Andrew Seidel for all the sweet, sweet lemon torts. Beer in the beer fridge, torts in the tort freezer. Are rid of mandamus in the writ cellar, cool glass of motion and lemonade waiting for you on the porch. Those are two separate patrons, I love the coordination. Murray Gregerson: "Picking a Supreme Court justice is a lot like crossing a river. It all comes down to Roe versus Wade."

1:04:39 Thomas: Love it

1:05:07 Andrew: Another week down, another week I forgot to change my Patreon name, we'll change this Patreon name when our newborn lets us sleep, well, we'll see you eventually, Brent Meddling, simple country hyper pepper chicken, justice is a dish best served cold, otherwise you end up with just water, oh I see, just ice and just water that's cute, yeah ace Associate Morgan Stringer makes my heart smile, well, she makes my firm run, so we, we got, we got that in common, Jake, too late to stop lone star state erecting gate of trans hate, crazy corgi, Seattle Pete, plug whatever you guys want here, I don't listen anyways because Patreon benefits rule, another mini app Minneapolitan, like neapolatan, anyway, like terrible ice cream, waiting for our live show in Minneapolis, Guardians Ad Litem of the Galaxy, Christopher Brown, Philly live show 2022, I'll bring the scotch and cheesecakes, cheese steaks, who's bringing gritty and cheesecake, a fabulous single French lesbian who got her first dose of the vaccine, well yeah, get your second, uh, lawful copter says Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do, that chokes me up every

1:05:07 Thomas: Yeah just ice and just water okay, oh

1:06:12 Andrew: Time. I won't change my name till Thomas pork something and Metacon 7, Thomas, take it away.

1:06:20 Thomas: A live show in Sydney, Australia, please, please. I won't be vaccinated till October at the earliest. Thanks, government. Oh, wow. That's an up and a down there. Andrew Seidel's butt brings all the amici to the court, and damn right it's tighter than mine. This is the way law school ends, not with a bang, but with a leave meeting button. Robert M. Have California employment, work accident, or litigation questions? Yeah, that's too damn bad.

1:06:46 Thomas: Search warrant of premises. Surprised episode 487 had no discussion of the the real Buried Bodies case. I want to hear Andrew's analysis and Thomas's likely outrage. Wow, we'll have to get on that. Mesa Verde live show. Yes, from, yeah, Better Call Saul. Ian Hamilton, becoming a patron for that sweet, sweet spreadsheet implementing equitable distribution. Polly Hernandez, that's big Twinkie. Emily Rambo Spence, Jason Copas, Hot Spears owed to a small lump of filibuster I found in my armpit one midsummer morning. Warrant for Giuliani's iCloud account. Count. Now that's a reason to celebrate. To celebrate. Huh. This profile name is hilarious in the context of some other podcast. A series of fake patrons, each more Conrad Michaels than the last. Nate Drex, DarthMandyPants, ConradMichaels has been dethroned by this next patron. Reality is getting stranger by the day. There's also a brief trial of Cobra Commander in the G.I. Joe movie, Lamb Double Feature with Transformers. GiveToMosney.org, GiveTo Mosney.com. I am inimitable.

1:07:00 Andrew: Nice, well

1:07:46 Thomas: I am an original. Jennifer Kratch. Not that Chris Wallace. Of all the things I've lost, I miss my mind the most. Don't take legal advice from a cat. Civilpoliticsradio.com Fridays at 7 p.m. Eastern on Valley Free Radio. John Bilderbeck. My friend's cousin mixed coke with Cop Rocks and he died. Stephen Balticate Sandoval. Today would be a great day for Justice Breyer to retire, as so as to avoid drawing my ire. Philip Kizer. Andrea the Arbitrarian Capricious. COVID showed me I am the kind of guy that wants a little prick. Dude, I got eight hours of sleep last night, or as Andrew calls it, one lightning round. Absion. Pain strumpet. Sorry for making you use the last one for so long. It was dumb anyway. Alfred Wallace. Jonathan. Lord Kambote. Way to go, Thomas. Pork that streak like a karaoke legend. Buy Volvos. They're boxy, but they're good. Milo Meadsong pronounces it Hobetian.

1:08:39 Thomas: Join your labor union. Together we bargain, alone we beg, egg. COVID, it got the whole country to do shots together. Deer testicles are really cheap, in fact they're under a buck. Too tired to think of anything, maybe next week. Really thought the chili story would end, and with that's how my dad found out he had COVID. I actually thought that's where Andrew was going as well, but it wasn't, you'll have to listen to that Q&A to find out.

False, anonymous, wordorigins.org, your source for word and phrase origins. My witty names aren't original and my original names aren't witty, nerd Gnostic, RIP Notorious RBG, our kitchen is your kitchen for an eventual Seattle live show, platinum dinner, the offer stands, absolutely, we're probably going to do that, they said I could be anything so I became two fabulous lesbians, Derek I don't pray, but when I do it's for evangelicals to get vaccinated, big easy blasphemy, it's kind of nice having a competent federal government again, summit shuffleboard.com, a string of unpronounceable characters, Ronda the Dork.com, HPL is my favorite racist science fiction author, PKD is a close second, Malaika Chandler, tricycler manslaughter, soggy pants, the leftist textualist says if corporations are people, they need to pay personal income tax on revenue, not profit. Go to doctorswithoutborders.org and donate to support COVID relief in India and the world. Adam Costa, adopt a homeless pet and oppose declawing and ear docking. Jay Aldenwalt, de jure belly at patches at last baby. Heather L., Matthew Vernon, Jeremiah's Fancy Microwave Emporium, Ian and Allie, Seattle is the best place for the first post-pandemic live show.

1:10:12 Thomas: Everywhere else is a distant second. Danny Rosari, Eli Bosnick, David in Brooklyn, Teresa Gomez, Sam Donow, Mitchell finally got back into my account. Fun fact, nine cases of shoe polish labeled as hair color were seized in the Giuliani raid. I agree with that 100%. Natasha Crunchwrap wants you to support the Justice Policy Institute. Sam Buck and Conrad Michaels are forever champion. Be in. Thank you so much, Hall of Famers.

1:10:36 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:42 Thomas: Right, and now it's time for T3BE coin edition round two, let's find out how the coin and I did, my new musical, the coin an Eye I'll be writing about this

1:10:50 Andrew: All the Thomas, this was a question involving a defendant being prosecuted for mail fraud, that is actually a little bit relevant, of it, um it's

1:11:04 Thomas: Crap, I didn't even look at that

1:11:06 Andrew: Not a lot, it's not, it's, it's got a lot relevant, don't, don't be worried about it, okay, uh, and it says, uh, so at this, at his criminal trial he moved to have all witnesses excluded from the courtroom and the court granted the motion, um, and you correctly surmised working from the answers that that is, uh, that's a prejudice argument, right, the, the idea is, um, we don't want the same witnesses in the same room, you know, collaborating on on their stories. Then, Right, the government named the investigating FBI agent as its designated representative.

1:11:36 Thomas: Okay, what the hell is that, you're gonna have to tell me what a designator

1:11:38 Andrew: I'm about to write. Well, in fact, I'll do it right now. A designated representative is just the way to bridge the gap of a corporate fiction to a real person. Right? So when I assume Microsoft, Microsoft gets to have a designated representative in the courtroom.

1:11:56 Thomas: But this is the government though

1:11:58 Andrew: The same thing. You sue the government. Well, the government isn't a person. You need to have somebody.

1:11:58 Thomas: Yeah but so the prosecutor is not just this, huh oh

1:12:06 Andrew: No, in the sense that and this right. Is why I said the mail. It's not mail fraud in and of itself that matters. But the fact that this is a criminal trial, I did not know that this applied in criminal cases. OK, that the rule that I'm about to talk about applies in criminal cases. I know of it from civil cases. And the reasoning in civil cases is really straightforward. Right. Because the prosecutor is the government's lawyer. So when I sue Microsoft, Microsoft gets to have a designated representative to sit there during the trial. And the reason they do that is because Microsoft knows its business better than its lawyers know know it's business. Right.

1:12:41 Andrew: So you get to sit there and you get to say like, Oh, hey, they're arguing for X. Here's some relevant information to you. Right? The same thing is apparently true. And again, not a criminal lawyer. So I learned something here. The same thing is true in a prosecution. The idea is the government gets a designated representative who then presumably

1:12:19 Thomas: Yeah okay well who

1:13:02 Andrew: Knows the facts so

1:13:02 Thomas: Is the government, who has an interest in this that's not the prosecutor? I don't even understand what that would be.

1:13:07 Andrew: Yeah um, and the idea is, um, that is, that is typically the person who has the most, the investigating agent, so in a state trial it would be, you detective, right, uh, in a federal trial could be the investigating FBI agent, so they get to sit there and listen to the defense and and process those defense arguments in the context of the trial. OK, so narrowed it down to B and D. Good, good narrowing.

1:13:29 Thomas: Interesting. Oh, it was? Oh, wow. Okay. Well, that's great. I didn't know that I... I actually had no idea where this would be, this is so arcane.

1:13:40 Andrew: Right. Yep. And and and the rule is Rule 615 of the Federal Rules of Evidence, which says at a party's request, the court must order witnesses excluded so that they cannot hear other witnesses testimony or the court may do so on its own. But the rule does not authorize excluding a party who is a natural person, be an officer or employee of a party who is not a naturalperson after being designated as that party's representative by its attorney. See a person whose presence a party shows to be essential to presenting the party's claim or defense or D, a person authorized by statute to be present. So in other words, if I sue you, Thomas, I can't say. All right. But I don't want Thomas sitting here because he's going to, you know, he's going to change his testimony based on the other witnesses. The court's goingto like, well, then you should have sued somebody else. The party gets to be there. But when you sue a non-human party, their representative is that party getting to be there.

1:14:08 Thomas: Yeah, yeah, yeah. Yep.

1:14:46 Andrew: And I did not know this. Right. I would, I might, well, in fact, I'm going to say I would have gotten this wrong with you in in that argument for the prosecutor basically serving as the government's representative in a criminal trial, in my mind, makes a lot of sense, but it just apparently isn't the law. So I understand how this rule applies in the civil context, very important in the criminal context, no exception.

1:15:10 Thomas: What a weird, impossible question. Question.

1:15:13 Andrew: So not D, but B, yes. Yes. So the good news is, yeah, you're still you're still kicking the coins ass.

1:15:14 Thomas: So it was B. So the coin is terrible at the bar. Yeah. I

1:15:21 Andrew: And that's all that really matters.

1:15:21 Thomas: Look, I'm actually very happy with my performance on this question. This was impossible. I did the narrowing. I was able to identify the issue and be like, well, I think it's going to be one of these two things. And, you know, turns out it was be and the coin and I, you know. I'm 50 50 now in my in my eliminating the right choice or whatever, my choosing the right choice. And the coin is 0%, but I don't like my chances in the long run against the coin. We'll see. But I'm super glad that I kept Thomas' second chance streak. I'm actually more proud of that than it doesn't matter that I got this question wrong because this was really hard. I don't how I could have done that.

1:16:00 Andrew: I think that's the right approach. And I am equally proud of you.

1:16:03 Thomas: Thomas 50% now, coin Well, Andrew, who did better than both the coin and I? This week and

1:16:13 Andrew: Well, Thomas, a lot of people played along this week, and I think it's time we give one of our patrons a shout out. Alex Zukowski, who writes, B, having an FBI agent at the table, and especially one that's been involved in what's usually a complex situation, sounds like typical strategy. I would think this would be super common. Having a random FBI agent who doesn't know the case at the the table would ultimately be pointless. Well, you know, that's sort of what you and I went back and forth over. I don't know what's common in a criminal case, uh, but, uh, apparently that seemed intuitive to Alex. Lots of people guessed lots of different things, so you're at least in good company, and, and, uh, congratulations, Alex, on being this week's winner.

1:16:54 Thomas: And that's our show. Thanks so much for listening. We can't wait to see you on Friday. Join us then.

1:17:01 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:17:34 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.