There are people out there planning to digitally replace Ariel in the new Little Mermaid movie with a computer generated white character. This is great news… if you’re Disney’s outside IP enforcement counsel! Meanwhile, the SCOTUS offseason heats up with Chief Justice Roberts complaining that the public questions the Court’s legitimacy and Justice Kagan indirectly points out that it’s his fault. Also, maybe ACB forgot whole parts of the First Amendment because she doesn’t plan on those existing much longer. And we go down an antitrust rabbit hole at one point.
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Joe Patrice: Welcome to another edition of Thinking Like a Lawyer.
Kathryn Rubino: Hey, how are you doing there?
Joe Patrice: I’m good.
Kathryn Rubino: You know —
Chris Williams: I am going to wait, I am going to wait, because I might not have the right to interrupt yet.
Joe Patrice: Yeah. I’m Joe Patrice from Above the Law.
Kathryn Rubino: Are you?
Joe Patrice: Yes.
Kathryn Rubino: Is that who you are?
Joe Patrice: Yes. And you heard Chris Williams also with us at Above the Law, and Kathryn is here too.
Kathryn Rubino: That is the worst introduction you’ve ever given me. I think I’m finally getting to you. I appreciate that.
Joe Patrice: Okay. Look at we’re at like less than one minute in and he’s already annoyed with me, like two points for me.
Chris Williams: The sounds of a defeated man.
Kathryn Rubino: If that’s all it takes to defeat you, 2023 is going to be –
Joe Patrice: So, that, that brings us to our section of the show called Small Talk.
Kathryn Rubino: I hate you.
Joe Patrice: Where we have –
Chris Williams: If there was a moment for this to have video, this would be it.
Joe Patrice: Yeah, so, yeah, great. So we are —
Kathryn Rubino: Hmm, you feeling good about yourself there, Joe?
Joe Patrice: I’m. Yeah, so it’s small talk time, not too much has been happening with me, I’m a little frazzled, very busy weekend, doing the kind of legal research that you thought I wouldn’t have to do any more.
Kathryn Rubino: Yeah, I thought you were a retired lawyer.
Joe Patrice: Yeah, you would think, but no.
Kathryn Rubino: So what were you researching?
Joe Patrice: Just a various stuff about tort liability for algorithms and stuff like that.
Kathryn Rubino: So light, light reading over the weekend.
Joe Patrice: Yeah, I mean the fun stuff.
Kathryn Rubino: Good stuff, good stuff.
Joe Patrice: What about you?
Kathryn Rubino: It’s my birthday weekend.
Joe Patrice: No.
Kathryn Rubino: Yeah.
Chris Williams: Whoo.
Kathryn Rubino: Oooh.
Joe Patrice: No.
Kathryn Rubino: So did some celebratory things, had a cake, got a lot of gifts from family and friends and so, you know, pretty good weekend I was had.
Chris Williams: Oh cool.
Joe Patrice: All right.
Kathryn Rubino: How about you Chris, what you do?
Chris Williams: I sent my baby to Cambodia, they’re a Fulbright Scholar and they’re going to be literally across the world from me. Like we looked on Google Maps and it was 80-100 miles to the left and the right other destination. So very long distance and they’re going to be there for I think like, about a year.
Kathryn Rubino: Oh wow.
Chris Williams: Doing some work with the Olympic Stadium. They’re turning it into a park I think. I feel like I should know. But it was a cool weekend, it was a cool weekend. I got to send them off, eat some food and, talk shit as one does.
Joe Patrice: Cool, cool.
Kathryn Rubino: As one does.
Joe Patrice: Well, I think that, yeah, I mean, we don’t really have anything else fun to say.
Kathryn Rubino: I mean you just waiting till I speak to hit the sound, so that’s fine.
Joe Patrice: I don’t know what you’re talking about. That’s just ridiculous.
Kathryn Rubino: Is it?
Chris Williams: That’s small talk.
Kathryn Rubino: You’re the worst, not you, Chris. I’m talking to Joe.
Joe Patrice: I don’t control these things, they just —
Kathryn Rubino: You absolutely do.
Chris Williams: You do, you do, you literally do. It is literally your one job that you relish and enjoy.
Kathryn Rubino: You love that job.
Joe Patrice: So, our first topic today, what do we want to talk about first Kathryn?
Kathryn Rubino: Well, I was really jazzed about ‘The Little Mermaid’ trailer.
Joe Patrice: We are going to talk about mermaids.
Kathryn Rubino: Well, yeah. I think that that’s a — it was pretty big story for you last week but for those who may have been living under some sort of a rock for the last week or so, Disney put out as part of the D23 Convention put out, it’s first –
Joe Patrice: (00:04:29).
Kathryn Rubino: It, it’s true. I’m just providing accurate information.
Joe Patrice: Yeah. Yeah, I don’t know those are necessary fact but fine, go on.
Kathryn Rubino: The point remains as part of the D23 Convention they’ve put out the first trailer, kind of a teaser trailer for their live action, ‘Little Mermaid’ and Halle Bailey is in the lead role and racists did racist.
Joe Patrice: Yeah. So a lot of folks are racising over the idea that The Little Mermaid is Black now, up to and including people trying to weirdly science explain why a mermaid if it did exist, couldn’t be Black.
Kathryn Rubino: Never mind that they don’t.
Joe Patrice: Yeah, they, yeah.
Chris Williams: We are still waiting on Amy Wax’s legal take on The Little Mermaid, but there has been an increase in maritime crime, so we can expect her to mention something about that.
Joe Patrice: Right.
Kathryn Rubino: Yeah, it’s all these people who couldn’t be bothered with science when it came time for vaccines, but now all of a sudden are using fo (ph) science or to say there can’t possibly be a Black mermaid. Never mind that there are in fact black fish, like super dark fish that live in the sea, but again mermaids are also not real. So we’re allowed to do what we want.
Chris Williams: (00:05:46) Amiri Baraka has a phenomenal poem, I think it’s called ‘Black Ivory’, it goes as a railroad of ocean, there’s a railroad of human bones at the bottom of the Atlantic. Slavery, slavery is what I’m getting at.
Kathryn Rubino: Yeah.
Joe Patrice: Yeah. We got where you are getting at, yeah.
Chris Williams: Just to be clear, if there would be of people, that are mer people, it would probably be Africans, because there are thousands of whose bodies are lying in the ocean because of transatlantic slavery, that’s what I was getting at.
Joe Patrice: Right. Well, so this is where this gets legal. Somebody posted that, from, a Tech Board that one of the members of this board who works in AI Science had worked out a way to digitally replace the Black actress with a “He fixed The Little Mermaid and turned the woke actor into a ginger white girl.” Then in the trailer at least, and then the poster who put this on Twitter said that the person claims that with some, with like 20 grand worth of equipment, they’d be willing to do it for the entire movie when it comes out.
So a lot of folks focused I think correctly on the fact that I guess we’re just using the word woke as a synonym for Black people now because there’s nothing else there for it.
Kathryn Rubino: I mean the story is still as unwoke as it ever was, right. Girls literally sells her voice in order to get a guy on land.
Joe Patrice: Yeah. No, I mean it, The Little Mermaid is fixed.
Kathryn Rubino: The opposite of what.
Joe Patrice: Absolutely terrible, yeah.
Chris Williams: I mean the woke take is actually the context in which Little Mermaid was written in, which is about a gay man’s — it was a metaphor for a gay man’s unrequited love.
Joe Patrice: Right. Although –
Kathryn Rubino: Hans Christian Andersen style.
Joe Patrice: Hans Christian Andersen version is.
Kathryn Rubino: Disney style.
Joe Patrice: Does have some severe departures from what there will be that you are remembering was, it was a lot darker because well –
Chris Williams: Well, it’s a lot darker now.
Joe Patrice: Chris just said.
Kathryn Rubino: Oh.
Joe Patrice: Oh, okay. All right.
Kathryn Rubino: Well, Hans Christian Andersen did not have a happy ending with the tale as much as Disney does.
Joe Patrice: Right. So anyway, so that’s how this gets legal, there are these people who are claiming that they can do this. My analysis on this is that Disney’s not going to be cool with people marketing knockoff versions of their film.
Kathryn Rubino: Disney is the opposite of chill when it comes to copyright by the way.
Joe Patrice: Yeah.
Kathryn Rubino: The opposite of chill.
Joe Patrice: Which this would of course be, yeah.
Chris Williams: The fun thing I did find out about this woke read Black backlash, is that the original Ursula, you know the one that all the white folks remember.
Kathryn Rubino: Based on Divine.
Chris Williams: Based on a drag queen.
Kathryn Rubino: Yeah Divine.
Chris Williams: I did not know that.
Joe Patrice: Yeah, some classic John Waters era films, yeah. But, yeah that, now we are dating ourselves there to remember all that.
Kathryn Rubino: Who you meet and like of course, Divine.
Joe Patrice: Yeah, of course, John Waters movies, yeah. But anyway, so yeah, they’re not really chill about this, because obviously what we have here is a situation where you’re creating a derivative work, but it is not something you have permission to do and it is –
Kathryn Rubino: Not parody.
Joe Patrice: Not a parody, and it is, there’s no real argument that there’s any fair use going on and beyond the copyright issues, I would assume they would make the claim that there’s a trademark dilution happening here. And this is something that’s come up before too. In the past, in particular, in these stories all come out of Utah, there had been multiple companies in Utah that have made Mormon friendly versions of movies, where they, they went in and edited the movie so that it could be — have all the bad parts taken out and they tried to market those and the studios Disney among many studios have consistently sue those people.
Kathryn Rubino: Not so fast.
Joe Patrice: Yeah.
Chris Williams: Wait, which, which, which Mormon fide Disney film has the most soaking? I feel like, I feel like we are at —
Kathryn Rubino: The Little Mermaid obviously.
Joe Patrice: I would think. I would think.
Chris Williams: I was thinking the Seven Dwarfs, but okay.
Joe Patrice: So I think –
Chris Williams: There goes happy.
Kathryn Rubino: They could stop.
Joe Patrice: I think what I say Disney has push back on those, I think it’s because Disney owns a lot of other studios and other productions, that where that would come in, as opposed to —
Chris Williams: Joe is so uncomfortable; I really wish everyone could see this.
Kathryn Rubino: He is just like, let’s just continue our legal conversation, please.
Joe Patrice: Yes.
Chris Williams: I didn’t even get to grumpy.
Joe Patrice: I’m just sitting here thinking and –
Kathryn Rubino: Sneezy.
Joe Patrice: What can I do to get Elie back, so I am sitting here thinking.
Chris Williams: Blacky (00:10:32), no, no, no.
Joe Patrice: They would — anyway.
Kathryn Rubino: You are stuck with us, friend.
Joe Patrice: Hmm. So yeah, so that’s the legal takes going on when it comes to The Little Mermaid. Obviously, one would hope that this, these people have been properly chastened by this conversation being on social media, but who knows. So keep an eye out for a future incidents where the Disney has to sue some people, you know it. Hmm, well the sound effects aren’t working.
Kathryn Rubino: We could pretend.
Joe Patrice: We could pretend.
Kathryn Rubino: Bring, bring, bring, bring –
Joe Patrice: Well, you know —
Kathryn Rubino: Have you heard about the whole thing but how like kids nowadays don’t use their hand to simulate a telephone the same way that like Gen X used to, you know, how like you for Gen X, you see like you took your pointer finger and your pinky to be like that’s the telephone, no, they just hold it because it’s like a phone is a brick in their minds.
Joe Patrice: That’s actually fascinating.
Kathryn Rubino: Yeah.
Joe Patrice: And that make sense.
Kathryn Rubino: Yeah. Well you know, you stop thinking about telephones in general, it might be because you need a service for someone to take care of the –
Joe Patrice: Oh, oh, like a virtual receptionist?
Kathryn Rubino: That’s, that’s what I was going with.
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Craig Williams: Today’s legal news is rarely as straightforward as the headlines that accompany them. On Lawyer 2 Lawyer, we provide the legal perspective you need to better understand the current events that shape our society. Join me, Craig Williams, in a wide variety of industry experts as we break down the top stories. Follow Lawyer 2 Lawyer on the Legal Talk Network or wherever you subscribe to podcasts.
Joe Patrice: All right. So —
Kathryn Rubino: Sew buttons on ice cream. There was a kind of cold war of words between Chief Justice John Roberts and Justice Elena Kagan over the past week or so, both of them gave speeches at various locales saying, giving kind of their two cents on the state of the court.
Joe Patrice: I mean what they did, I think what they did was both, both unveil new diss tracks about each other, it’s in day after day after day, it seemed like there was a new one every day.
Kathryn Rubino: There were, there are a lot and I think Kagan spoke twice, Roberts once, but then lots of folks were kind of piling on giving their opinions, but basically, I think that the tanking popularity and legitimacy of the Supreme Court is weighing pretty heavily on John Roberts’ mind. And you know, it was very clear, he said those words screaming kind of into the void, “We are legitimate about the Supreme Court to spite, you know, the Dobbs decision.
Joe Patrice: Nothing, nothing says you’re legitimate than, like having to say, listen to me, I’m legitimate.
Kathryn Rubino: You know, that’s exactly was my take of the original Roberts’ speech was like, you know who never had to say that they were legitimate, someone who is legitimate.
Chris Williams: We get it. We get it. You (00:14:04).
Kathryn Rubino: Couple days later Elena Kagan made some comments saying that she does think that the court’s legitimacy is in jeopardy because of the Dobbs decision, because of overturning the precedent. Then a couple days after that she had second speech at a different location where she was asked kind of follow-up questions since she was basically like listen, the court is overstepping the instinct controversies, they are not using any sort of, you know, the sort of historical analysis that they’re using in the majority decisions is rife with problems. And it does not adhere to any sort of Judicial philosophy and all these other reasons why the courts illegitimate. And you know, even Harvard Law professor Lawrence Tribe got involved since he actually was professors to both of them at Harvard Law, basically saying, Kagan is turned into a really wise justice.
Joe Patrice: Yeah, cool.
Kathryn Rubino: He actually was said, you know, Roberts needs to sort of rethink what he’s doing and I — I mean, I don’t really feel sorry for John Roberts because he has written terrible, other terrible decisions, but I think that sort of how history will think about the Roberts’ Court is something that preoccupies him. I think that’s why he wrote that sort of death of a thousand cuts concurrence in Dobbs, and that’s why according to everything that we know about how the internal workings during the Dobbs negotiations happen that he wanted somebody else to come onto his side because he didn’t want the words written, therefore we overturn Roe v. Wade and Casey v. Planned Parenthood. He didn’t want that written, he’s very concerned I think about the long-term legitimacy of the Court, yes, but I think more specifically, you know –
Joe Patrice: Got his name on it.
Kathryn Rubino: Yeah, yeah.
Joe Patrice: Like whether he likes it or not, that’s how we –
Kathryn Rubino: Forever bear his name.
Joe Patrice: Yeah, that’s how we refer to these courts. And that means it’s — he owns it. For him, this is got to be a nightmare that he’s, he’s just going to be the name forever for a period of the court that is like really pushing tiny levels of illegitimacy.
Kathryn Rubino: And listen, in terms of the institution as a whole, there are potentially ways for the court to come back, right, there are some awful decisions that have littered the history of the Supreme Court and they’ve managed to get it back together. But with the current composition of the court and no real plans from anybody to address that whether it be term limits, whether it be adding more justices to the court, or even the lower courts, there’s no real concrete plan at this point for any of that to change. I don’t see, I don’t see the way out for the court.
Joe Patrice: Yeah. And for Roberts specifically at that point.
Kathryn Rubino: Yeah, I mean, unless he just kind of turns around and just starts writing dissents, but I can’t see that happening either. That’s not the refute, that’s not I mean, we saw his Affordable Care Act decision which was you know the epitome of sort of splitting the baby. That’s the kind of jurist he aspires to be and in this current moment, I’m not sure that’s even possible.
Joe Patrice: Yeah. The point is we’ve got Supreme Court justices using the offseason to snipe at each other, which is awesome.
Kathryn Rubino: Yeah, I mean, it was true that Kagan, both of her speeches were some of the most kind of direct line by line responses to the Chief Justice that I could have even imagined. So the kind of also shows you where the congeniality level of the courts at.
Joe Patrice: It also shows that she has reached the end of a rope, you know, because while I view her as very smart and good in these issues, she has over the last several years made some decisions that I thought were little doctrinally crazy, but the kind of the take from analyst outside has been, well, she’s doing this to make, to kind of paint them into a corner. You know, she agrees with this and puts this out there and it means that if that’s true, then they can’t later do this, you know. And what she learned is that everybody else already suspected was that when they ran into that barrier, they were just going to be hypocritical about it.
And yeah, I think she’s very irritated by that. But, like the rest of us saw it will come.
Kathryn Rubino: Sure.
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Kathryn Rubino: Domains which heavily not covered in my Law School classes.
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Okay, we’re back. What’s the last thing on our agenda?
Kathryn Rubino: Amy Coney Barrett has some thoughts on the First Amendment.
Joe Patrice: Yep. Let’s hear about those.
Chris Williams: I was really just using that as the clickbait, doesn’t really have anything to do with Amy Coney Barrett at all. But –
Joe Patrice: It has to do with the First Amendment though.
Chris Williams: It has to do with the First Amendment though. So –
Joe Patrice: That was the key.
Chris Williams: That was the key which was, you know, important and we’re going to talk about it now. So what happened was, there was a — there were a bunch of Native American groups who were protesting, and there were push backs against their use of the right to protest. Right to protest of course being the one aspect of the First Amendment that Amy Coney Barrett forgot, that was just like a little low titbit, didn’t really have to do the story here. But this is a part of a larger sweep. Joe is shaking his head. This is a part of a larger sweep of constraints of the right to protest, which I think are related to play of what cast (ph) a speech now.
There is a recent decision in the Fifth Circuit in Texas Court where there were saying that corporations no longer have the right to censor, what they say centering speech, but the other, the second hand of that is, it limits the capacity of corporation to speak on their own behalf, right.
So there’s these interesting things happening where it’s like, what can people say, how they regulating it, another showing age thing, what was this like around the time of Bush when there were instances on it being Free Speech Zones. Do you see, do you see a correlation between how things right now and how things are back then?
Joe Patrice: No, I mean, this is way worse. Yeah, because look, it because the free speech zone thing was mean people made fun of it and all, but it wasn’t necessarily crazy. It was an attempt to create time, place and manner restrictions on protests. A lot of times it was — when it was done in good faith, it was done as an effort to say, it can get dangerous if a bunch of folks are doing it right in front of the entrance to something, so we’re going to put them over here, yadi yada.
Obviously there were some more cynical actors who were putting folks a mile and a half away from everything that was bad. But this is, especially when you deal with the Fifth Circuit conversation, I mean we’re now talking about an affirmative assault on the idea of speech just, and you just lose that form of speech because you are big I guess, which seems problematic, especially juxtaposed with a voting right, an election issue where — an election setting where the court says you can spend as much — the more money you have means the more speech you have, this juxtaposition that larger tech companies by virtue of becoming larger lose their ability to have free speech rights and are now right for being vehicles for compelled speech that seems deeply troubling. But —
Chris Williams: I am just imagining some like some weird alternate scenario where there’s a motivation, where there’s increased trust-busting, so companies can be small enough to have that free speech.
Joe Patrice: Okay, listen, if antitrust wants to do ever get off its duff that would be great.
Kathryn Rubino: I mean, listen, President Biden has had more, that is support of increased antitrust enforcement, then I think the last five presidents combined.
Joe Patrice: Well, and that’s the thing. There’s every reason to believe that a lots about to happen, right?
Kathryn Rubino: Yeah.
Joe Patrice: Like Biden spoken to it the folks who have gotten positions in the –
Kathryn Rubino: Chair Lina Khan, HR yeah.
Joe Patrice: Lina Khan having the HR. Again, like that looks like there’s about to be a bunch of antitrust decisions. And then all I ever hear about is they’re looking into the PGA on behalf of the like, sports washing effort that the Saudi Government is doing, which is the lowest of all possible priorities.
Kathryn Rubino: It’s certainly a great (00:23:06), but the other thing is, listen, antitrust or investigations aren’t particularly quick, they’re very fact-intensive. There’s a lot of information that has to be gathered. So hopefully that’s what’s going on. There’s just a lot of information out there but I remain hopeful that that there will be more antitrust enforcement.
Joe Patrice: It seems to me as though. Yeah, I mean to bring a claim is a long and drawn-out process. It just seems to me as though the theory of the case is out there and you could be doing more to be getting some voluntary compliance I would think from some of these companies. But I mean especially because I — the real problem of these entities where they’re playing both sides of the market, you know, you get to a kind of the — to use an example, the Amazon who is collecting your data on What you like, and then selling you things from third-party sellers, but simultaneously using that data to build their own product, that then they will prioritize over those third-party sellers, right.
Kathryn Rubino: Right.
Joe Patrice: Right. That’s playing both ends of the transaction or the way that seems problematic. Like, I think you can play one or the other.
Kathryn Rubino: The other is –
Joe Patrice: Like and those are the kinds of claims that I don’t think require, I mean, if they want to take you all the way to court, obviously, it’s going to be a Long drawn-out process, but I think you could probably say this is our position, make some public demand letters first, some information on it and maybe get some action. If for no other reason then you’re going to have shareholders who want to avoid a long drawn out battle.
Kathryn Rubino: Drawn out, yeah.
Joe Patrice: Yeah.
Kathryn Rubino: It’s you know you have a definite result then.
Joe Patrice: We’ve drifted into discussing antitrust here, but —
Kathryn Rubino: Well, we are a legal podcast, so that’s not actually a bad thing.
Joe Patrice: It’s not, it’s not.
Kathryn Rubino: I think it alphabetically, it’s probably the first book in most law schools course catalogue.
Joe Patrice: Admin.
Kathryn Rubino: Well probably okay.
Joe Patrice: Admiralty.
Kathryn Rubino: Okay. I’m just saying it starts with an A.
Chris Williams: Aardvark Law.
Joe Patrice: Yeah, Aardvark Law.
Kathryn Rubino: Well, there we go.
Joe Patrice: Animal Law.
Kathryn Rubino: Okay, are we done now?
Joe Patrice: No, I don’t think so.
Kathryn Rubino: I’m done. Thank you so much for listening to today’s show.
Joe Patrice: Oh, oh, you’re going to take over all these processes now?
Kathryn Rubino: Only when you refuse to let them end.
Joe Patrice: I’m just trying to think of another, another law — that gets out of the way.
Kathryn Rubino: It’s not that easy.
Joe Patrice: So, with all of that, I guess we are wrapping up. Thanks for listening, you should be listening, you should be subscribed to the podcast, give it reviews that all helps. You should be listening to other podcasts; Kathryn is host of The Jabot, I’m a guest of the Legaltech Week Journalists Roundtable. You should listen to the other Legal Talk Network programs of that we aren’t necessarily on. You should be reading Above the Law to see these stories and more before we chat about them. You should be following us on social media; I’m @JosephPatrice, she’s at @Kathryn1. She clarifies the numeral 1.
Kathryn Rubino: It’s the numeral 1.
Joe Patrice: Yeah, Chris is @WritesForRent. Above The Law is @ATLBlog. You should be doing other things probably. I don’t know what those are though. I think that is everything.
Kathryn Rubino: That’s probably everything. Peace.
Joe Patrice: Okay, bye.
Chris Williams: Pay your taxes.
Joe Patrice: And thank you as always to Posh and GoDaddy Domain Broker Service for sponsoring the show.
Kathryn Rubino: Thanks.