April 6, 2025 • 37 mins
June Grasso talks to David Townsend, a partner at Dorsey & Whitney, Professor Richard Garnett of Notre Dame Law School and Ronald Bienstock, a partner at Scarinci Hollenbeck, about the top legal stories of the week.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2 (00:08):
My fellow Americans, this is Liberation Day Wednesday.
Speaker 3 (00:13):
On so called Liberation Day, President Donald Trump announced the
steepest American tariffs in more than a century.
Speaker 2 (00:21):
So sixty seven percent. So we're going to be charging
a discounted reciprocal tariff of thirty four percent. I think,
in other words, they charge us, we charge them, we
charge them lest So how can anybody be upset?
Speaker 3 (00:33):
But obviously plenty of people were upset. In every corner
of the financial markets, from stocks to bonds to commodities,
investors were sending Trump a message about the trade war
he unleashed. Trump imposed the tariffs by invoking a law
that gives presidents sweeping powers during an economic emergency. But
(00:54):
no president has ever used that law to impose tariffs
until now. And now the first law lawsuit has been
filed saying that the president overstepped his authority and challenging
the legal justification he used. Joining me is an expert
in international trade, David Townsend, a partner at Dorsey and Whitney.
Dave tell us about the law President Trump is using
(01:16):
to impose these tariffs.
Speaker 1 (01:18):
So these tariffs are imposed under the International Emergency Economic
Powers Act, or AIPA. AEPA allows the President to declare
a national emergency with respect to a variety of things
that the president believes undermine US national security and has
its basis and origin outside of the United States. Once
(01:39):
the President declares that national emergency, it provides a legal
basis for the President to take a number of restrictive
actions with respect to commerce between the United States and
the target of the AIPA Executive Order.
Speaker 3 (01:53):
Trump says the emergency is the US trade deficit with
other nations, which the order describes as an unusual and
extraordinary threat to the national security and economy of the
United States. Many, perhaps most people wouldn't see the deficit
that way. Is it Trump's decision alone?
Speaker 1 (02:11):
Well, Under AEPA, the President is provided by Congress broad
authority to define what is or is not a national emergency.
Under AEPA, presidents have declared a wide variety of topics
to constitute a national emergency, and today there's not been
any judicial decisions that have reversed a president in how
(02:34):
they define a national emergency under AEPA, But the use
of AEPA to impose tariffs is a new use of AEPA.
President Trump is the first president to use IEPA as
a basis for increasing tariffs. Previously, IEPA has been used
for targeting terrorist organizations or foreign countries that are deemed
(02:56):
to be taking actions to undermine US national security. Trump
is using IEPA as a basis to change teri frates
on imports into the United States.
Speaker 3 (03:05):
On Thursday, what appears to be the first legal challenge
to the tariffs was found by a conservative backed legal
group in Florida. Tell us about the suit.
Speaker 1 (03:15):
The lawsuit is on behalf of a US importer of
merchandise from China. The plaintiff in the case alleges that
the first round of Trump administration tariffs that were imposed
under AEPA are illegal, that AEPA doesn't authorize the imposition
of tariffs, and even if it does, that tariffs aren't
(03:36):
necessary for addressing the national emergency that President Trump declared
with respect to China, which relates to drug trafficking and
fentanyl imports into the United States.
Speaker 3 (03:47):
So this suit is about the first set of tariffs
Trump imposed on Chinese goods leading up to the sweeping
tariffs announced on Wednesday.
Speaker 1 (03:57):
To use IEPA as a basis to impose ten percent
tariffs on goods from China and subsequently bumped that up
to twenty percent tariffs on goods from China. Under AEPA
also declared national emergencies with respect to Canada and Mexico
and deferred tariffs, and then ultimately allowed Canadian and Mexican
goods to be imported into the United States without tariffs
(04:17):
if they qualify under the US Mexico Canada Agreement USMCA.
Speaker 3 (04:22):
Yeah, the tariff on and off situation has been confusing,
But then the same theory would work for the so
called Liberation Day tariffs.
Speaker 1 (04:31):
Well, yes, because the lawsuit alleges that AEPA doesn't authorize
the president to impose tariffs, and so these reciprocal tariffs
that were announced on Wednesday would be likewise invalid if
the plaintiff's theory is correct.
Speaker 3 (04:46):
Is this an uphill battle? Have courts given deference to
the president in these situations?
Speaker 1 (04:52):
There have been lawsuits under AEPA, But because President Trump
is the first to use AIPA to impose tariff, there's
never been a question before a court as to whether
AEPA authorizes tariffs and so I think it remains to
be seen how a court would handle the issue. It's
(05:13):
really one of statutory interpretation and whether the EYEPA statute
actually permits the president imposed tariff.
Speaker 3 (05:20):
Another thing this lawsuit argues is that Trump is usurping
Congress's right to control tariffs. I mean, the Constitution does
give Congress the power to levy tariffs and to regulate
commerce with foreign nations, not the president right.
Speaker 1 (05:36):
AIPA is a statutory authority that Congress created to delegate
their constitutional authority to regulate foreign commerce and impose tariff
to the President. Now, one legal question that remains and
is unknown at this time is whether APA was ever
intended to allow the president and does allow the president
(05:58):
to increase tariff rates. As I noted before, traditionally I
was used as a basis for economic sanctions against the
target organizations, individuals, and foreign governments.
Speaker 3 (06:09):
Four Republican senators voted alongside all forty four Democrats and
two independents on Wednesday to pass a measure that would
block Trump's tariffs on Canadian imports, and on Thursday, a
bipartisan Senate bill was introduced that would give Congress final
approval on tariffs imposed by a president. I don't know.
(06:29):
It seems like too little, too late.
Speaker 1 (06:32):
I think that's a new development that there is some
momentum in Congress, including on a bipartisan basis, to reassert
congressional authority and their constitutional authority to establish tariffs. Congress,
because they have that constitutional authority, can step in at
any time. They could reverse the reciprocal tariffs that President
Trump announced, and they could reverse the Section three one
(06:54):
tariffs that have been in place since twenty eighteen. They've
chosen thus far not to do that, but I do
think what you're seeing now is because these tariffs are
reaching new countries, including our neighbors such as Canada and Mexico,
there is some momentum in Congress to re examine and
potentially check what the president is doing in the tariff space.
Speaker 3 (07:17):
Explain specifically what Congress could do.
Speaker 1 (07:20):
Congress could pass a statute establishing tariff rates for individual countries,
and that wouldn't take precedents over the executive orders issued
under AJIPA. Congress also can introduce resolutions terminating a national emergency,
so in theory, Congress could take action to withdraw the
legal basis for the reciprocal tariffs that President Trump announced,
(07:42):
they have not to date done that. And again i'd
go back to the twenty eighteen tariffs against China. You know,
that's an example where Congress has the authority to do
something and to reverse it, but todate has not done.
So I think the main point, you know, is that
Congress has a variety of tools they could use here
to to modify, to reverse, to change what the executive
(08:04):
branch is doing with prospect to tariffs.
Speaker 3 (08:07):
So it seems unlikely that any bill or resolution opposing
Trump's tariffs would get through the House. Going beyond American
law for a moment, do these tariffs violate the rules
of the World Trade Organization?
Speaker 1 (08:20):
Well, one thing I think is interesting about the Executive
Order is that it talks about the creation of the
World Trade Organization and frames some of the issues here
as the United States allowing other countries to get away
with breaches of what they promised to do under the WTO.
(08:43):
So that's the US perspective, I think. On the foreign perspective,
they'll say, also pointing to the WTO, that we had
a deal and the United States agreed to keep its
tariffs low and so they can't just sit by as
the United States acts and violation of that commitment, and
thus that becomes a basis for retaliation. And so it's
(09:03):
hard to have that crystal ball to see whether this
is going to create a spiraling effect of retaliation or
counter retaliation or if finstead, we could get to some
sort of equilibrium or these rates actually come down as
a result of agreements between the US and trading partners.
Speaker 3 (09:18):
And under the WTO, is there a mechanism if one
member violates the trade rules.
Speaker 1 (09:25):
Yes, and that would be the complaint of the US
trading partners. Here is that you could make a good
argument that the WTO's entire purpose was to help countries
define when another country is breaching it's WTO obligations through
the dispute settlement process. There have been a lot of
(09:46):
complaints from Democrats and Republicans alike about the WTO dispute
settlement process, but I think the reality is that foreign
countries view this as the United States walking away from
that dispute settlement process and going completely to a sort
of bilateral negotiating process for resolving trade disputes rather than
(10:08):
multilaterally through the WTO.
Speaker 3 (10:10):
I know you advise companies on tariffs. What are some
of the concerns that your clients have or perhaps should have.
Speaker 1 (10:17):
A lot of companies realize that the compliance stakes are
significantly increased when the tariff goes up this much, right,
because if your compliance practices don't get the country of
origin correct or the valuation correct, that now translates into
a fairly significant change in revenue that should have gone
to the US government if you're getting it incorrect. So
(10:37):
from a compliance standpoint, it's riskier now than it was
on Monday. With respect to declarations to US customs. One
thing that I think is going to generate a lot
of questions is because the tariff rates differ by different countries.
If you have product lines that make multiple stops prior
(10:57):
to be importing into the United States to further assembly,
are manufacturing, then the country of origin question becomes vitally
important because you may have a teriff rate down to
ten percent against the teriff frate that goes up to
forty nine percent on these reciprocal tariffs, and a lot
of terif liabilities at stake in applying the rule of
origin correctly. So I think that's going to be one
(11:18):
area where companies are examining carefully. The other thing is,
if you're stuck paying the tariff, the amount of tariff
you pay is going to be determined on how you
value the import as it comes into the United States.
And so a lot of companies who may not have
thought very hard about valuation because teriff rates or zero
are very low are looking at that question to make
(11:39):
sure they're not under or overvaluing the merchandise as it
comes into the United States.
Speaker 3 (11:43):
It's a complex and evolving situation. Thanks for taking us
through it. That's David Townsend, a partner at Dorsey and Whitney.
Coming up next, Catholic Charities appears headed for a win
at the Supreme Court. I'm June Grosso. When you're listening
to Bloomberg.
Speaker 4 (12:01):
I thought it was pretty fundamental that we don't treat
some religions better than other religions, and we certainly don't
do it based on the content of the religious doctrine
that those religions preach.
Speaker 5 (12:17):
Isn't it a fundamental premise of our First Amendment that
the state shouldn't be picking and choosing between religions, between
certain evangelical sects and Judaism, and Catholicism on the other
for example, And doesn't it entangle the state tremendously when
it has to go into a soup kitchen. Send an
(12:39):
inspector in to see how much prayer is going on.
Speaker 3 (12:43):
Justices across the ideological spectrum suggested that Wisconsin was discriminating
against Catholic Charities by denying it a religious exemption from
the state's unemployment tax program. The state argues that Catholic
Charities doesn't qualify for the tax exemption because the day
to day services it provides don't involve religious teachings. But
(13:06):
many of the justices seemed concerned about Wisconsin's contention that
one way organizations can get the exemption is by actively proselytizing.
Chief Justice John Roberts and Justice is Amy Cony Barrett
and Neil Gorsuch question just what that means in practice?
Speaker 6 (13:25):
What is the simplest thing that the Catholic Charities would
have to do to qualify for the religious exemption in Wisconsin?
Speaker 7 (13:34):
I think?
Speaker 6 (13:34):
Were they sure they have one sign in the dining
hall saying this meal provided by Catholic Charities. If you
want to find out about the church, here's a brochure, and.
Speaker 7 (13:44):
I mean, are they playing like hymn's on the radio
or like Christian rock at the evangelical soup kitchen on
the radio? You know, is that proselytization or not? Because
you're forced to sit there and listen to it.
Speaker 5 (13:57):
I just want to know what the test is, So
repent sins, you get the exemption, not requiring you to
repent your sins, you don't. I guess you don't get
the exception.
Speaker 3 (14:08):
Catholic Charities argues this state is violating its religious freedoms
protected by the First Amendment by making determinations about what
work qualifies as religious. My guest is Richard Garnett, a
professor at Notre Dame Law School and founding director of
the school's Program on Church, State and Society. He was
part of a group of law and religion professors who
(14:31):
submitted a brief in support of Catholic Charities. Rick, this
is an appeal from a decision of the Wisconsin Supreme Court.
Tell us about the issue before the justices.
Speaker 8 (14:41):
So the justices are being asked to evaluate a ruling
by a Wisconsin court, and that ruling had to do
with an exemption that was in place in Wisconsin law,
it's an exemption from otherwise applicable requirement about providing unemployment insurance.
So Wisconsin, like a lot of states, has a religious exemption.
(15:03):
So some employers were exempt from this particular requirement if
they were religious. And the precise terminology of the exemption
was that organizations that are operated primarily for religious purposes
are entitled to the exemption. And Catholic charities, which is
what it sounds like, a Catholic organization that provides a
(15:24):
variety of social services, was denied the exemption on the
theory that, you know, although it's got the word Catholic
in it, and although it's probably motivated by Catholic concerns,
that a lot of the things it was doing they
weren't really religious. They weren't primarily religious. They were the
same kinds of things that secular organizations do. And so that,
you know, the Wisconsant Court kind of empsizes, Look, they
(15:46):
hire some people who aren't Catholic, they serve people regardless
of their faith, they don't engage in proselytism, they don't
require people to attend church, so they're not really religious.
And the Supreme Court took up the case to decide.
I think whether there wisconsint Court's definition of who gets
this exemption was in a way discriminatory, that it distinguished
(16:07):
between religions that engage in kind of overt evangelism when
they provide services and those that live out their religious
mission by providing social services to a broad range of people.
Speaker 3 (16:20):
Both liberal Justice Elina Kagan and conservative Justice Neil Gorsuch
seemed to be on the same page, saying that we
don't treat some religions better than others.
Speaker 8 (16:31):
Yeah. So we have a well established principle in American
law that legislatures are permitted to have exemptions for religious
believers or religious institutions from their laws. These happen all
the time, right, But one of the important qualifications is
that legislators aren't allowed to discriminate among religions when they
(16:52):
are granting these exemptions. So, you know, you couldn't have
an exemption for Baptist organizations but deny it to Presbyterian ones,
or an exemption for Buddhist ones but deny it to
Hindu ones. You're allowed to have religious exemptions, but the
exemptions themselves can't discriminate among religions. And I think Justice
Kagan's concern was that the Wisconsant Court in effect had said,
(17:13):
to count as religious, you have to be religious in
a certain way. You have to be religious in a
way that's kind of evangelical. Right where you're serving your
own you're engaging in evangelization and proselytism. Maybe you know
you're giving out food at the end of a church service,
but you're requiring people to attend church beforehand. There was
constant Court had a premise that I think all the
(17:35):
justices were uneasy with, namely that it was appropriate for
a secular court to say, you know, if you're not
engaging in proselytism, then you're just doing secular stuff. But
from the perspective of Catholic Charities, you know, when it's
feeding the hungry, or clothing the naked, or housing the unsheltered,
it's still engaging in religious activity. And to be clear,
(17:56):
the Catholic Charities position is not that any time institution
claims it's religious, it should get an exemption. Everybody acknowledges
that courts are allowed to ask whether the religious claims
are sincere, and everyone agrees that it is permissible to
distinguish between religious organizations on the one hand and secular
ones on the other. But where the justices got nervous
(18:19):
was the way the Wisconstant courts seemed to almost engage
in a little bit of armchair theology when it decided
that in order to be i think the word to
use was typically religious, you had to exercise your religion
in a certain way. And so Justice Kagan, for example, says, well,
you know, look, in Judaism, a lot of what we
do when we're active in the world is not engage
(18:40):
in proselytism. That's not one of the things that we do.
But we still do exercise our religion when we're providing
various social services. So that was clearly a theme that
she was focusing on. And there was also a theme
in the argument not quite as prominent as this discrimination theme,
I think, but it was still there that Wisconsin's rule
had kind of a coercive effect of basically pressuring religious
(19:00):
institutions to organize themselves in a certain way, because the
Wisconsin rule was one that said, if a charity is
separately incorporated from the church itself, then it's going to
be treated differently than if it's kind of integrated into
the religious institution, and so the concern was that that
regime would kind of pressure religious organizations to change their structures.
But I think the most straightforward part of the case,
(19:22):
and I think this is what the lawyer for Catholic
Charity was really leaning on, is that it's a straight
up black letter rule that governments can't discriminate among religions
when they are crafting their accommodations. And the Wisconsin Supreme
Court adopted an interpretation that appears to treat some religions
as being more authentically religious than others. So I suspect
(19:42):
the Supreme Court's going to reverse that.
Speaker 3 (19:44):
What was the best argument you think the state put
forward to defend its claim?
Speaker 8 (19:49):
Maybe two things are worth emphasizing. That one claim the
state made, but I don't think the justices were moved
by it was that, look, the language in the Wisconsin
statute is a lot like the language that appears in
a whole bunch of other religious exemptions, and so the
concern that the state was raising was like, if you
interpret this language really broadly, that's going to have all
kinds of sweeping effects. And the justices didn't seem as
(20:11):
moved by that. Another argument the state made, which is
completely reasonable, is that you know, in order for the
state to accommodate religion, it has to have some limits
on that accommodation. Otherwise that reduces the incentive of the
state to accommodate religion at all, which would be a
perverse effect. But I think the justices were able to
respond to that by saying, we agree with you. There
can be limits on the exemptions. Again, you can make
(20:32):
sure that the claimants are sincere, and you can make
sure that they are religious as opposed to secular or
philosophical or what have you. But what you can't do
is adopt the definition of religion, which in effect picks
and chooses among different religions, and I suspect will get
a pretty consensus ruling from the justices on that point.
Speaker 3 (20:53):
Justice Barrett raised the question of how far the exemptions
would go, saying, one of the problems here is figuring
out what the line is. Some say there could be
broad ramifications if the Justice's side with Catholic charities here.
Speaker 8 (21:08):
I mean, I think she was raising that issue and
was right to, because anytime you have an exemption from
a law, there's going to be questions about how far
the exemption goes. And it is true that in American law,
you know, we don't really have a clear definition of
what is or is not religion. But I think that
the lawyer for Catholic Charities was able to respond just
(21:29):
by assuring Justice Barrett that in this particular case, in
order to correct the error that there wis constant court made,
you don't actually have to issue a very broad ruling.
You don't have to say again that this religious exemption
covers any entity that conceivably claims to be religious. It's
a more narrowed and precise argument than that. It's that
(21:51):
when the state is engaging in crafting an exemption, it
can't do so in a way that discriminates among religions.
So that non discrimination rule, which is the key to
this case, that would prevent this case from going off
into some of the concerns that the state raised about
how you know the exemption, would swallow the rule itself.
It is possible to accommodate religion and to draw boundaries
(22:12):
around religion without doing so in a way that discriminates
among different religions.
Speaker 3 (22:18):
I think most people who listen to the oral arguments
came to the same conclusion that the justices would rule
in favor of Catholic Charities. What's your take.
Speaker 8 (22:29):
It seems like most, perhaps even all of the justices
were pretty skeptical of what the Wisconsin Court had done.
So it does seem pretty likely that the Catholic Charities
position is going to win out here. You know, people
sometimes forget that in the Supreme Court, whatever else they
might be divided by a lot of these religious freedom
cases are not divided red versus Blue, Republican versus Democrat.
(22:53):
There are a fair number of cases that are you know,
unanimous or close to it. And this might be another
one is that because.
Speaker 3 (22:58):
There are seven Catholic on the Court. I asked that facetiously,
but that number of justices of one religion seems unusual.
Speaker 8 (23:06):
I've written a few things about that and how that happened. Yeah,
especially when one thinks back that, you know, there were
zero for the first seventy years or so, and then
I don't think we had a situation where we had
more than one on the court until you know, the
nineteen eighties. Perhaps, so that is a change. But America's demographics,
religious demographics educational demographics have changed a lot, so maybe
that's part of the story.
Speaker 3 (23:28):
This is the first case involving religion that the Court
has heard in about two years, and this term there
are three religion cases. Do you see a trend or
any explanation for why those three in particular?
Speaker 8 (23:41):
It's hard to say. I mean, so much of the
court stock, as you know, is a function of kind
of accident, you know what happened in the courts below.
But you're right that there's this case which involves a
particular question that arises in the religious accommodation's context is
one coming out of Maryland, which involves some parents who
wanted to be able to opt their kids out of
some curricular matters that had to do with sexual orientation
(24:02):
and gender identity and so on, so they're seeking an
accommodation that was denied to them. And then of course
there's the Oklahoma case about the virtual Catholic School and
whether it can participate in that state's charter program. That
one's not really an accommodation case. It's it's more of
what I call a cooperation case. So certainly, you know,
an interesting year for law and religion at the Court.
(24:23):
But whether the fact that there are three tells us
anything deeper, I'm not sure, and those.
Speaker 3 (24:28):
Other cases will be heard in the last two weeks
of April. Thanks so much, Rick, That's Professor Richard Garnett
of Notre Dame Law School coming up next. How do
Alipa and Mariah Carey won their copyright infringement lawsuits? I'm
June Grosso. When you're listening to Bloomberg.
Speaker 6 (24:51):
With Glitter.
Speaker 3 (25:04):
International pop star Dua Lipa has won a second lawsuit
accusing her of copying her twenty twenty mega hit Levitating.
Two songwriters said she plagiarized their disco era songs Wiggling,
Giggle All Night and Don Diablo, claiming that the opening
melody in Levitating was a duplicate of the melody in
(25:25):
their songs.
Speaker 9 (25:28):
I was walking down the street when I saw all
the times of Soldier Boy A week a week in
atne He said, I'd like.
Speaker 1 (25:33):
To make a date.
Speaker 9 (25:33):
I said, so sorry about his lady said, a free,
free to me the love of my life, he said,
another way you wiggle in I look the way you
giggle in it love to give you just a little
kiss son your lips today light. So we giggled all night.
Speaker 3 (25:48):
But a Manhattan federal judge gave Dua Lipa an early victory,
dismissing the lawsuit. The judge found that the shared melody
was generic and not protectable under copy right law. Having
appeared in Mozart and Rassini operas, Gilbert and Sullivan operettas,
and Staying Alive by the Begs, Joining Me is music
(26:09):
attorney Ron Beanstock, a partner at Scarency Holland Beck Ron
tell us about the first copyright lawsuit that du A
Lipa one over, Levitating where a reggae group suit her.
Speaker 10 (26:21):
There's a twenty seventeen song by a relatively and I
don't want to result anybody. It's relatively unknown reggae group
in Florida. You got to prove access, as you know
on all of these cases through step process. The giant
hurdle is access. Then you've got substantial similarity. If you
don't have access and you can't really prove it, you
can't say somebody heard of this, or it was a hit,
someone should have heard of it, or you're on tour
(26:43):
with them, or you shared the same manager, or you've
shared the same producers, or all those different check the box.
For access. Then you've got to have some striking similarity
to go further, and that's where the subtle courts usually go. Okay,
there's your bar, right, and this doesn't striking similar So
back to our reggae claim. You've got effectively a four
chord pattern that is in minor key. The song Levitating
(27:05):
can be viner and the chord sort of match up.
But that's not how this works musically. If you don't
mind me singing, I hope I don't ruin. Everybody's go ahead.
But there are two things that are very clear in
both cases involving this song Levitating. It's this pattern Da
da da da da da da da da da da
da da da da da defending chromatic across the four chords.
(27:26):
Here you go da da da da da da da
da da da da da da da. And that's going
to be what somebody's got to hang their legal hat
on and say that is not a common element. You
don't hear that very often. And these things match up
when you use this analysis the way we do with chords.
When we take these melodies and we put them into
the TSC or you mask them up in the relative key,
those notes are in a match up, and then they
(27:47):
talk about harmonic diling and all these well, that's staying alive.
Da da da da da da da da da da
da da da da da da. Right, we've heard that before.
So immediately when you start singing, the judge saying Mozart
and Gilbert in Sullivan and mentions the beg's, you know,
that's a pretty common element. So when people say, hey,
(28:08):
i've heard that before, Sure you did. You heard it
probably six centuries ago, and the beg's da da da
da da da da da da da da da da
ay statalized. You know, these are sort of common elements.
So the first part is that the planets in the
first case involving the Regaevan couldn't prove access. And then
it really fell apart once you start talking about common
(28:29):
element and it got dismissed. And to give you one
more pop culture reference, the chords are the same things
to ELO's Evil Woman. These are common and four chord
patterns and songs. We could be here all day. I mean,
they're really common. So the first case dismissal rested upon
the idea that you had no access and they're not
striking a clar So we.
Speaker 3 (28:49):
Go from reggae to the second case, which involves two
disco songs.
Speaker 10 (28:54):
The second case is interesting because I think this was
a slightly more sophisticated approach to it, right they so
it kind of didn't work on the first matter that
they have that precedence, So now you can kind of
roll into what what should we do that's different? Here,
still the same issues. It's in B minor, and now
you have this nineteen seventy nine wiggle and giggle in
(29:14):
E flat major, and then this don diablo only in
Spanish Stung in Spanish, also in a major case B
flat major. So you already start with some variations. The
other thing that the lay person generally when they discussed
this with me, and I'm sure discussed this with you,
is it's about publishers. This is not about dualalipa. This
(29:35):
is about the publishers, the lawsuits involved. Who controls the copyright.
So these are major publishers, you know, Warners, Sony, Universal Music.
So they're going to get some really powerful teams of
really experienced copyright lawyers. I know some of these people.
They're great at what they do. They've enters before. So
you start already with the concept of all right, where's
(29:56):
our access. Where's that giant hurdle you've got to get
over a Men nine disco tune called Wiggle and Giggle,
And then you have the Spanish only don diablo. When
would these writers? Is support writers, it's not just do aliva?
When would these people have access to that song? So
that's a huge hurdle. If you don't prove back, you're
right back to this what's strikingly similar? So the plaintiff
(30:19):
said the opening melody was duplicated throughout the song and
gave a retro field. Well, okay, that doesn't count. Retro
feel is not substantive. Again, we're not talking about the
copyright and the sound recording. We're talking only about the composition,
the idea that things may sound similar because they are
of the same beat, and other elements not controlling here,
(30:41):
it's the song. So you had this claim that the
opening melody was duplicated, and then the defense was, well,
wait a second, these are non copyrightable elements, just like
our last case, right, common elements common for a chords
and that common descending pattern of da da da da
da da da da da da da da da da
da da, and so these are not enough to prove
(31:01):
it strikingly similar. And the judge dismissed and said, no,
I'm giving you some rejudgment to defendant. And I took
a look at the experts, and we had the Delbert
claims about whether they were acting as experts in their opinion.
You know, all the infighting will go on in federal
court about experts popyright. But ultimately the judge said, hey,
these are common elements. I can't let this case proceed
(31:23):
and keep the sensed.
Speaker 3 (31:24):
The case seemed to have benefited from the Ed Sheeran case,
where it was found that sheeron song Thinking Out Loud
and Marvin Gaye's song Let's Get It On only shared
commonly used elements that are not copyrightable.
Speaker 10 (31:38):
All right, So the Ed Sheering case, it's win a verdict, right.
It was not decided in a summary rejudgment or dismissal.
The jury got to hear Ed Sheeran play his song
in his version live. Then he got to interpret any
way he wanted how he would present that song. That
to me was an error by the flinker. So that's
(32:00):
a problem with just the presentation of evidence. The second
part was throughout his case, they said, there are some
common elements in music, right, there are common patterns and
common things. You don't own an idea for a song,
and that runs two ways. One it's the sound recording.
The problematic cases always have the idea that someone got
(32:21):
to hear it. That's not what we're talking about. They
get through that only talking about the song. So if
you have a song that has common elements, we're not
talking about other audio similarities. It's just talking about the
common elements in the composition. And yet you can't prove
that these common elements are listed right, they're not protectable.
Then that you get the same results that you had
(32:41):
with as Sharon right, they're not protectable. He has the
own interpretation of that does not match up to your claim,
and so eventually that case went its way. So the
common element scene comes to play in all three of
these to some extent. The first one really is just
based upon no access at all. So we kind of
get that running through all these cases. Those are all
(33:02):
southern districts, are all here in New York seas you
can get the same circus decisions to get some unanimity
as to the decision making.
Speaker 3 (33:10):
I'm always surprised that the judges can break down the
musical elements in their opinions.
Speaker 10 (33:16):
You're going to rely on the musicologists, right, because the
judges are going to make the decision based upon their
own Even though judges in the past go back to
the George Harrison case with he still find my street
Lord way way back, the judge kind of said, hey,
I'm a musician, I get this. And I've had judges
in federal court who, you know, kind of made reference
(33:36):
to the fact that they played an instrument. There's always
this idea that what the judges listening to are battling experts. Right,
in this particular case, the judge gave credence to both
sides and waited and said, look, your plaintiffs experts. They're
making some good points here, but not carrying the day
that they didn't get over the common elements of these
(33:57):
two things. And the expert on the other side has said, look,
these are really common and was pointing to Mozarts and
I have in my amazing singing voice that it's da
da da da da da da da da da da
da da da data, right, And that's ultimately what it
came down to, is that piece of common element.
Speaker 3 (34:13):
What does it say about the song if you have
two different copyright suits.
Speaker 10 (34:17):
It says that the song made a lot of money,
and no one would care unless it's made a lot
of money. So this is a popular artist and everybody
wants a piece of a hit. And you know, all
we got to do is talk about the Mariah Carey lawsuit,
and we're rolling right into that series. But these lawsuits
(34:38):
just don't happen unless there's money, and real money involved.
Speaker 3 (34:42):
And while we're talking about real money, Mariah Carey also
want to copyright loss suit over her mega Christmas hit
(35:02):
All I Want for Christmas Is You, which makes mega money,
topping the Billboard Hot one hundred chart every holiday season
since twenty nineteen, earning Carrie two point five to three
million dollars every year in royalties. A songwriter accused her
of infringing a song he recorded with the same title
(35:23):
in nineteen eighty nine. Was this lawsuit not based on
the music but on the words of the song?
Speaker 10 (35:31):
Probably the best question anyone's asked about that, because everybody
kind of lifts the wrong page in that result. First,
I don't often get to say someone's taking a hit,
had an evergreen hit, evergreen hit. My pun there it's
a Christmas hits and you can't protect the title. First
level of analysis. I'm not sure what people are thinking.
We have the same title. Okay, that's not protectable. So
(35:54):
they were to restart and then the common element melody
and other we're not here back to your lyric question,
want to hear it's the common lyrics were not at
the bust out laugh and on this get ready here
the common lyrics missiletow, Santa stocking, snow, and Christmas. Oh
ooh when you put it like that, ooh, that's not
(36:16):
going very far. That is just just not going to
carry the day. You can't protect the title. You've got
common elements and lyrics. You've got no question that you're
claiming with the melodies are exactly the same. And here's
sort of a sidebar moment. They claimed access and got
the case rolling through the process in the closest because
(36:36):
they claimed access if it had been a big hit
in the country chart, a kid or not. Their song
called well I Want for Christmas View was a country
hit roughly the same time, so their access was based
upon Yeah, it was a charting song. Whether a country
hit gets listened to by a pop star and her
co writer don't know. But this one fell down the
(37:00):
shares pretty quickly in the ninth toorkeit in California because
it wasn't provable. And I want to add also cut
sanctions and partial attorney sees were granted against the flankiffs
on them. It fell really short, and I think that
judge clearly said, wait a second, you should never apply
you Roscoe.
Speaker 3 (37:17):
I believe the judge did refer to them as Christmas cliches.
Thanks Ron. That's Ron Beanstock of Scurrency, Holland Beck. And
that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast slash Law,
(37:41):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Jim Grosso,
and you're listening to Bloomberg
This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Speaker 2 (00:08):
My fellow Americans, this is Liberation Day Wednesday.
Speaker 3 (00:13):
On so called Liberation Day, President Donald Trump announced the
steepest American tariffs in more than a century.
Speaker 2 (00:21):
So sixty seven percent. So we're going to be charging
a discounted reciprocal tariff of thirty four percent. I think,
in other words, they charge us, we charge them, we
charge them lest So how can anybody be upset?
Speaker 3 (00:33):
But obviously plenty of people were upset. In every corner
of the financial markets, from stocks to bonds to commodities,
investors were sending Trump a message about the trade war
he unleashed. Trump imposed the tariffs by invoking a law
that gives presidents sweeping powers during an economic emergency. But
(00:54):
no president has ever used that law to impose tariffs
until now. And now the first law lawsuit has been
filed saying that the president overstepped his authority and challenging
the legal justification he used. Joining me is an expert
in international trade, David Townsend, a partner at Dorsey and Whitney.
Dave tell us about the law President Trump is using
(01:16):
to impose these tariffs.
Speaker 1 (01:18):
So these tariffs are imposed under the International Emergency Economic
Powers Act, or AIPA. AEPA allows the President to declare
a national emergency with respect to a variety of things
that the president believes undermine US national security and has
its basis and origin outside of the United States. Once
(01:39):
the President declares that national emergency, it provides a legal
basis for the President to take a number of restrictive
actions with respect to commerce between the United States and
the target of the AIPA Executive Order.
Speaker 3 (01:53):
Trump says the emergency is the US trade deficit with
other nations, which the order describes as an unusual and
extraordinary threat to the national security and economy of the
United States. Many, perhaps most people wouldn't see the deficit
that way. Is it Trump's decision alone?
Speaker 1 (02:11):
Well, Under AEPA, the President is provided by Congress broad
authority to define what is or is not a national emergency.
Under AEPA, presidents have declared a wide variety of topics
to constitute a national emergency, and today there's not been
any judicial decisions that have reversed a president in how
(02:34):
they define a national emergency under AEPA, But the use
of AEPA to impose tariffs is a new use of AEPA.
President Trump is the first president to use IEPA as
a basis for increasing tariffs. Previously, IEPA has been used
for targeting terrorist organizations or foreign countries that are deemed
(02:56):
to be taking actions to undermine US national security. Trump
is using IEPA as a basis to change teri frates
on imports into the United States.
Speaker 3 (03:05):
On Thursday, what appears to be the first legal challenge
to the tariffs was found by a conservative backed legal
group in Florida. Tell us about the suit.
Speaker 1 (03:15):
The lawsuit is on behalf of a US importer of
merchandise from China. The plaintiff in the case alleges that
the first round of Trump administration tariffs that were imposed
under AEPA are illegal, that AEPA doesn't authorize the imposition
of tariffs, and even if it does, that tariffs aren't
(03:36):
necessary for addressing the national emergency that President Trump declared
with respect to China, which relates to drug trafficking and
fentanyl imports into the United States.
Speaker 3 (03:47):
So this suit is about the first set of tariffs
Trump imposed on Chinese goods leading up to the sweeping
tariffs announced on Wednesday.
Speaker 1 (03:57):
To use IEPA as a basis to impose ten percent
tariffs on goods from China and subsequently bumped that up
to twenty percent tariffs on goods from China. Under AEPA
also declared national emergencies with respect to Canada and Mexico
and deferred tariffs, and then ultimately allowed Canadian and Mexican
goods to be imported into the United States without tariffs
(04:17):
if they qualify under the US Mexico Canada Agreement USMCA.
Speaker 3 (04:22):
Yeah, the tariff on and off situation has been confusing,
But then the same theory would work for the so
called Liberation Day tariffs.
Speaker 1 (04:31):
Well, yes, because the lawsuit alleges that AEPA doesn't authorize
the president to impose tariffs, and so these reciprocal tariffs
that were announced on Wednesday would be likewise invalid if
the plaintiff's theory is correct.
Speaker 3 (04:46):
Is this an uphill battle? Have courts given deference to
the president in these situations?
Speaker 1 (04:52):
There have been lawsuits under AEPA, But because President Trump
is the first to use AIPA to impose tariff, there's
never been a question before a court as to whether
AEPA authorizes tariffs and so I think it remains to
be seen how a court would handle the issue. It's
(05:13):
really one of statutory interpretation and whether the EYEPA statute
actually permits the president imposed tariff.
Speaker 3 (05:20):
Another thing this lawsuit argues is that Trump is usurping
Congress's right to control tariffs. I mean, the Constitution does
give Congress the power to levy tariffs and to regulate
commerce with foreign nations, not the president right.
Speaker 1 (05:36):
AIPA is a statutory authority that Congress created to delegate
their constitutional authority to regulate foreign commerce and impose tariff
to the President. Now, one legal question that remains and
is unknown at this time is whether APA was ever
intended to allow the president and does allow the president
(05:58):
to increase tariff rates. As I noted before, traditionally I
was used as a basis for economic sanctions against the
target organizations, individuals, and foreign governments.
Speaker 3 (06:09):
Four Republican senators voted alongside all forty four Democrats and
two independents on Wednesday to pass a measure that would
block Trump's tariffs on Canadian imports, and on Thursday, a
bipartisan Senate bill was introduced that would give Congress final
approval on tariffs imposed by a president. I don't know.
(06:29):
It seems like too little, too late.
Speaker 1 (06:32):
I think that's a new development that there is some
momentum in Congress, including on a bipartisan basis, to reassert
congressional authority and their constitutional authority to establish tariffs. Congress,
because they have that constitutional authority, can step in at
any time. They could reverse the reciprocal tariffs that President
Trump announced, and they could reverse the Section three one
(06:54):
tariffs that have been in place since twenty eighteen. They've
chosen thus far not to do that, but I do
think what you're seeing now is because these tariffs are
reaching new countries, including our neighbors such as Canada and Mexico,
there is some momentum in Congress to re examine and
potentially check what the president is doing in the tariff space.
Speaker 3 (07:17):
Explain specifically what Congress could do.
Speaker 1 (07:20):
Congress could pass a statute establishing tariff rates for individual countries,
and that wouldn't take precedents over the executive orders issued
under AJIPA. Congress also can introduce resolutions terminating a national emergency,
so in theory, Congress could take action to withdraw the
legal basis for the reciprocal tariffs that President Trump announced,
(07:42):
they have not to date done that. And again i'd
go back to the twenty eighteen tariffs against China. You know,
that's an example where Congress has the authority to do
something and to reverse it, but todate has not done.
So I think the main point, you know, is that
Congress has a variety of tools they could use here
to to modify, to reverse, to change what the executive
(08:04):
branch is doing with prospect to tariffs.
Speaker 3 (08:07):
So it seems unlikely that any bill or resolution opposing
Trump's tariffs would get through the House. Going beyond American
law for a moment, do these tariffs violate the rules
of the World Trade Organization?
Speaker 1 (08:20):
Well, one thing I think is interesting about the Executive
Order is that it talks about the creation of the
World Trade Organization and frames some of the issues here
as the United States allowing other countries to get away
with breaches of what they promised to do under the WTO.
(08:43):
So that's the US perspective, I think. On the foreign perspective,
they'll say, also pointing to the WTO, that we had
a deal and the United States agreed to keep its
tariffs low and so they can't just sit by as
the United States acts and violation of that commitment, and
thus that becomes a basis for retaliation. And so it's
(09:03):
hard to have that crystal ball to see whether this
is going to create a spiraling effect of retaliation or
counter retaliation or if finstead, we could get to some
sort of equilibrium or these rates actually come down as
a result of agreements between the US and trading partners.
Speaker 3 (09:18):
And under the WTO, is there a mechanism if one
member violates the trade rules.
Speaker 1 (09:25):
Yes, and that would be the complaint of the US
trading partners. Here is that you could make a good
argument that the WTO's entire purpose was to help countries
define when another country is breaching it's WTO obligations through
the dispute settlement process. There have been a lot of
(09:46):
complaints from Democrats and Republicans alike about the WTO dispute
settlement process, but I think the reality is that foreign
countries view this as the United States walking away from
that dispute settlement process and going completely to a sort
of bilateral negotiating process for resolving trade disputes rather than
(10:08):
multilaterally through the WTO.
Speaker 3 (10:10):
I know you advise companies on tariffs. What are some
of the concerns that your clients have or perhaps should have.
Speaker 1 (10:17):
A lot of companies realize that the compliance stakes are
significantly increased when the tariff goes up this much, right,
because if your compliance practices don't get the country of
origin correct or the valuation correct, that now translates into
a fairly significant change in revenue that should have gone
to the US government if you're getting it incorrect. So
(10:37):
from a compliance standpoint, it's riskier now than it was
on Monday. With respect to declarations to US customs. One
thing that I think is going to generate a lot
of questions is because the tariff rates differ by different countries.
If you have product lines that make multiple stops prior
(10:57):
to be importing into the United States to further assembly,
are manufacturing, then the country of origin question becomes vitally
important because you may have a teriff rate down to
ten percent against the teriff frate that goes up to
forty nine percent on these reciprocal tariffs, and a lot
of terif liabilities at stake in applying the rule of
origin correctly. So I think that's going to be one
(11:18):
area where companies are examining carefully. The other thing is,
if you're stuck paying the tariff, the amount of tariff
you pay is going to be determined on how you
value the import as it comes into the United States.
And so a lot of companies who may not have
thought very hard about valuation because teriff rates or zero
are very low are looking at that question to make
(11:39):
sure they're not under or overvaluing the merchandise as it
comes into the United States.
Speaker 3 (11:43):
It's a complex and evolving situation. Thanks for taking us
through it. That's David Townsend, a partner at Dorsey and Whitney.
Coming up next, Catholic Charities appears headed for a win
at the Supreme Court. I'm June Grosso. When you're listening
to Bloomberg.
Speaker 4 (12:01):
I thought it was pretty fundamental that we don't treat
some religions better than other religions, and we certainly don't
do it based on the content of the religious doctrine
that those religions preach.
Speaker 5 (12:17):
Isn't it a fundamental premise of our First Amendment that
the state shouldn't be picking and choosing between religions, between
certain evangelical sects and Judaism, and Catholicism on the other
for example, And doesn't it entangle the state tremendously when
it has to go into a soup kitchen. Send an
(12:39):
inspector in to see how much prayer is going on.
Speaker 3 (12:43):
Justices across the ideological spectrum suggested that Wisconsin was discriminating
against Catholic Charities by denying it a religious exemption from
the state's unemployment tax program. The state argues that Catholic
Charities doesn't qualify for the tax exemption because the day
to day services it provides don't involve religious teachings. But
(13:06):
many of the justices seemed concerned about Wisconsin's contention that
one way organizations can get the exemption is by actively proselytizing.
Chief Justice John Roberts and Justice is Amy Cony Barrett
and Neil Gorsuch question just what that means in practice?
Speaker 6 (13:25):
What is the simplest thing that the Catholic Charities would
have to do to qualify for the religious exemption in Wisconsin?
Speaker 7 (13:34):
I think?
Speaker 6 (13:34):
Were they sure they have one sign in the dining
hall saying this meal provided by Catholic Charities. If you
want to find out about the church, here's a brochure, and.
Speaker 7 (13:44):
I mean, are they playing like hymn's on the radio
or like Christian rock at the evangelical soup kitchen on
the radio? You know, is that proselytization or not? Because
you're forced to sit there and listen to it.
Speaker 5 (13:57):
I just want to know what the test is, So
repent sins, you get the exemption, not requiring you to
repent your sins, you don't. I guess you don't get
the exception.
Speaker 3 (14:08):
Catholic Charities argues this state is violating its religious freedoms
protected by the First Amendment by making determinations about what
work qualifies as religious. My guest is Richard Garnett, a
professor at Notre Dame Law School and founding director of
the school's Program on Church, State and Society. He was
part of a group of law and religion professors who
(14:31):
submitted a brief in support of Catholic Charities. Rick, this
is an appeal from a decision of the Wisconsin Supreme Court.
Tell us about the issue before the justices.
Speaker 8 (14:41):
So the justices are being asked to evaluate a ruling
by a Wisconsin court, and that ruling had to do
with an exemption that was in place in Wisconsin law,
it's an exemption from otherwise applicable requirement about providing unemployment insurance.
So Wisconsin, like a lot of states, has a religious exemption.
(15:03):
So some employers were exempt from this particular requirement if
they were religious. And the precise terminology of the exemption
was that organizations that are operated primarily for religious purposes
are entitled to the exemption. And Catholic charities, which is
what it sounds like, a Catholic organization that provides a
(15:24):
variety of social services, was denied the exemption on the
theory that, you know, although it's got the word Catholic
in it, and although it's probably motivated by Catholic concerns,
that a lot of the things it was doing they
weren't really religious. They weren't primarily religious. They were the
same kinds of things that secular organizations do. And so that,
you know, the Wisconsant Court kind of empsizes, Look, they
(15:46):
hire some people who aren't Catholic, they serve people regardless
of their faith, they don't engage in proselytism, they don't
require people to attend church, so they're not really religious.
And the Supreme Court took up the case to decide.
I think whether there wisconsint Court's definition of who gets
this exemption was in a way discriminatory, that it distinguished
(16:07):
between religions that engage in kind of overt evangelism when
they provide services and those that live out their religious
mission by providing social services to a broad range of people.
Speaker 3 (16:20):
Both liberal Justice Elina Kagan and conservative Justice Neil Gorsuch
seemed to be on the same page, saying that we
don't treat some religions better than others.
Speaker 8 (16:31):
Yeah. So we have a well established principle in American
law that legislatures are permitted to have exemptions for religious
believers or religious institutions from their laws. These happen all
the time, right, But one of the important qualifications is
that legislators aren't allowed to discriminate among religions when they
(16:52):
are granting these exemptions. So, you know, you couldn't have
an exemption for Baptist organizations but deny it to Presbyterian ones,
or an exemption for Buddhist ones but deny it to
Hindu ones. You're allowed to have religious exemptions, but the
exemptions themselves can't discriminate among religions. And I think Justice
Kagan's concern was that the Wisconsant Court in effect had said,
(17:13):
to count as religious, you have to be religious in
a certain way. You have to be religious in a
way that's kind of evangelical. Right where you're serving your
own you're engaging in evangelization and proselytism. Maybe you know
you're giving out food at the end of a church service,
but you're requiring people to attend church beforehand. There was
constant Court had a premise that I think all the
(17:35):
justices were uneasy with, namely that it was appropriate for
a secular court to say, you know, if you're not
engaging in proselytism, then you're just doing secular stuff. But
from the perspective of Catholic Charities, you know, when it's
feeding the hungry, or clothing the naked, or housing the unsheltered,
it's still engaging in religious activity. And to be clear,
(17:56):
the Catholic Charities position is not that any time institution
claims it's religious, it should get an exemption. Everybody acknowledges
that courts are allowed to ask whether the religious claims
are sincere, and everyone agrees that it is permissible to
distinguish between religious organizations on the one hand and secular
ones on the other. But where the justices got nervous
(18:19):
was the way the Wisconstant courts seemed to almost engage
in a little bit of armchair theology when it decided
that in order to be i think the word to
use was typically religious, you had to exercise your religion
in a certain way. And so Justice Kagan, for example, says, well,
you know, look, in Judaism, a lot of what we
do when we're active in the world is not engage
(18:40):
in proselytism. That's not one of the things that we do.
But we still do exercise our religion when we're providing
various social services. So that was clearly a theme that
she was focusing on. And there was also a theme
in the argument not quite as prominent as this discrimination theme,
I think, but it was still there that Wisconsin's rule
had kind of a coercive effect of basically pressuring religious
(19:00):
institutions to organize themselves in a certain way, because the
Wisconsin rule was one that said, if a charity is
separately incorporated from the church itself, then it's going to
be treated differently than if it's kind of integrated into
the religious institution, and so the concern was that that
regime would kind of pressure religious organizations to change their structures.
But I think the most straightforward part of the case,
(19:22):
and I think this is what the lawyer for Catholic
Charity was really leaning on, is that it's a straight
up black letter rule that governments can't discriminate among religions
when they are crafting their accommodations. And the Wisconsin Supreme
Court adopted an interpretation that appears to treat some religions
as being more authentically religious than others. So I suspect
(19:42):
the Supreme Court's going to reverse that.
Speaker 3 (19:44):
What was the best argument you think the state put
forward to defend its claim?
Speaker 8 (19:49):
Maybe two things are worth emphasizing. That one claim the
state made, but I don't think the justices were moved
by it was that, look, the language in the Wisconsin
statute is a lot like the language that appears in
a whole bunch of other religious exemptions, and so the
concern that the state was raising was like, if you
interpret this language really broadly, that's going to have all
kinds of sweeping effects. And the justices didn't seem as
(20:11):
moved by that. Another argument the state made, which is
completely reasonable, is that you know, in order for the
state to accommodate religion, it has to have some limits
on that accommodation. Otherwise that reduces the incentive of the
state to accommodate religion at all, which would be a
perverse effect. But I think the justices were able to
respond to that by saying, we agree with you. There
can be limits on the exemptions. Again, you can make
(20:32):
sure that the claimants are sincere, and you can make
sure that they are religious as opposed to secular or
philosophical or what have you. But what you can't do
is adopt the definition of religion, which in effect picks
and chooses among different religions, and I suspect will get
a pretty consensus ruling from the justices on that point.
Speaker 3 (20:53):
Justice Barrett raised the question of how far the exemptions
would go, saying, one of the problems here is figuring
out what the line is. Some say there could be
broad ramifications if the Justice's side with Catholic charities here.
Speaker 8 (21:08):
I mean, I think she was raising that issue and
was right to, because anytime you have an exemption from
a law, there's going to be questions about how far
the exemption goes. And it is true that in American law,
you know, we don't really have a clear definition of
what is or is not religion. But I think that
the lawyer for Catholic Charities was able to respond just
(21:29):
by assuring Justice Barrett that in this particular case, in
order to correct the error that there wis constant court made,
you don't actually have to issue a very broad ruling.
You don't have to say again that this religious exemption
covers any entity that conceivably claims to be religious. It's
a more narrowed and precise argument than that. It's that
(21:51):
when the state is engaging in crafting an exemption, it
can't do so in a way that discriminates among religions.
So that non discrimination rule, which is the key to
this case, that would prevent this case from going off
into some of the concerns that the state raised about
how you know the exemption, would swallow the rule itself.
It is possible to accommodate religion and to draw boundaries
(22:12):
around religion without doing so in a way that discriminates
among different religions.
Speaker 3 (22:18):
I think most people who listen to the oral arguments
came to the same conclusion that the justices would rule
in favor of Catholic Charities. What's your take.
Speaker 8 (22:29):
It seems like most, perhaps even all of the justices
were pretty skeptical of what the Wisconsin Court had done.
So it does seem pretty likely that the Catholic Charities
position is going to win out here. You know, people
sometimes forget that in the Supreme Court, whatever else they
might be divided by a lot of these religious freedom
cases are not divided red versus Blue, Republican versus Democrat.
(22:53):
There are a fair number of cases that are you know,
unanimous or close to it. And this might be another
one is that because.
Speaker 3 (22:58):
There are seven Catholic on the Court. I asked that facetiously,
but that number of justices of one religion seems unusual.
Speaker 8 (23:06):
I've written a few things about that and how that happened. Yeah,
especially when one thinks back that, you know, there were
zero for the first seventy years or so, and then
I don't think we had a situation where we had
more than one on the court until you know, the
nineteen eighties. Perhaps, so that is a change. But America's demographics,
religious demographics educational demographics have changed a lot, so maybe
that's part of the story.
Speaker 3 (23:28):
This is the first case involving religion that the Court
has heard in about two years, and this term there
are three religion cases. Do you see a trend or
any explanation for why those three in particular?
Speaker 8 (23:41):
It's hard to say. I mean, so much of the
court stock, as you know, is a function of kind
of accident, you know what happened in the courts below.
But you're right that there's this case which involves a
particular question that arises in the religious accommodation's context is
one coming out of Maryland, which involves some parents who
wanted to be able to opt their kids out of
some curricular matters that had to do with sexual orientation
(24:02):
and gender identity and so on, so they're seeking an
accommodation that was denied to them. And then of course
there's the Oklahoma case about the virtual Catholic School and
whether it can participate in that state's charter program. That
one's not really an accommodation case. It's it's more of
what I call a cooperation case. So certainly, you know,
an interesting year for law and religion at the Court.
(24:23):
But whether the fact that there are three tells us
anything deeper, I'm not sure, and those.
Speaker 3 (24:28):
Other cases will be heard in the last two weeks
of April. Thanks so much, Rick, That's Professor Richard Garnett
of Notre Dame Law School coming up next. How do
Alipa and Mariah Carey won their copyright infringement lawsuits? I'm
June Grosso. When you're listening to Bloomberg.
Speaker 6 (24:51):
With Glitter.
Speaker 3 (25:04):
International pop star Dua Lipa has won a second lawsuit
accusing her of copying her twenty twenty mega hit Levitating.
Two songwriters said she plagiarized their disco era songs Wiggling,
Giggle All Night and Don Diablo, claiming that the opening
melody in Levitating was a duplicate of the melody in
(25:25):
their songs.
Speaker 9 (25:28):
I was walking down the street when I saw all
the times of Soldier Boy A week a week in
atne He said, I'd like.
Speaker 1 (25:33):
To make a date.
Speaker 9 (25:33):
I said, so sorry about his lady said, a free,
free to me the love of my life, he said,
another way you wiggle in I look the way you
giggle in it love to give you just a little
kiss son your lips today light. So we giggled all night.
Speaker 3 (25:48):
But a Manhattan federal judge gave Dua Lipa an early victory,
dismissing the lawsuit. The judge found that the shared melody
was generic and not protectable under copy right law. Having
appeared in Mozart and Rassini operas, Gilbert and Sullivan operettas,
and Staying Alive by the Begs, Joining Me is music
(26:09):
attorney Ron Beanstock, a partner at Scarency Holland Beck Ron
tell us about the first copyright lawsuit that du A
Lipa one over, Levitating where a reggae group suit her.
Speaker 10 (26:21):
There's a twenty seventeen song by a relatively and I
don't want to result anybody. It's relatively unknown reggae group
in Florida. You got to prove access, as you know
on all of these cases through step process. The giant
hurdle is access. Then you've got substantial similarity. If you
don't have access and you can't really prove it, you
can't say somebody heard of this, or it was a hit,
someone should have heard of it, or you're on tour
(26:43):
with them, or you shared the same manager, or you've
shared the same producers, or all those different check the box.
For access. Then you've got to have some striking similarity
to go further, and that's where the subtle courts usually go. Okay,
there's your bar, right, and this doesn't striking similar So
back to our reggae claim. You've got effectively a four
chord pattern that is in minor key. The song Levitating
(27:05):
can be viner and the chord sort of match up.
But that's not how this works musically. If you don't
mind me singing, I hope I don't ruin. Everybody's go ahead.
But there are two things that are very clear in
both cases involving this song Levitating. It's this pattern Da
da da da da da da da da da da
da da da da da defending chromatic across the four chords.
(27:26):
Here you go da da da da da da da
da da da da da da da. And that's going
to be what somebody's got to hang their legal hat
on and say that is not a common element. You
don't hear that very often. And these things match up
when you use this analysis the way we do with chords.
When we take these melodies and we put them into
the TSC or you mask them up in the relative key,
those notes are in a match up, and then they
(27:47):
talk about harmonic diling and all these well, that's staying alive.
Da da da da da da da da da da
da da da da da da. Right, we've heard that before.
So immediately when you start singing, the judge saying Mozart
and Gilbert in Sullivan and mentions the beg's, you know,
that's a pretty common element. So when people say, hey,
(28:08):
i've heard that before, Sure you did. You heard it
probably six centuries ago, and the beg's da da da
da da da da da da da da da da
ay statalized. You know, these are sort of common elements.
So the first part is that the planets in the
first case involving the Regaevan couldn't prove access. And then
it really fell apart once you start talking about common
(28:29):
element and it got dismissed. And to give you one
more pop culture reference, the chords are the same things
to ELO's Evil Woman. These are common and four chord
patterns and songs. We could be here all day. I mean,
they're really common. So the first case dismissal rested upon
the idea that you had no access and they're not
striking a clar So we.
Speaker 3 (28:49):
Go from reggae to the second case, which involves two
disco songs.
Speaker 10 (28:54):
The second case is interesting because I think this was
a slightly more sophisticated approach to it, right they so
it kind of didn't work on the first matter that
they have that precedence, So now you can kind of
roll into what what should we do that's different? Here,
still the same issues. It's in B minor, and now
you have this nineteen seventy nine wiggle and giggle in
(29:14):
E flat major, and then this don diablo only in
Spanish Stung in Spanish, also in a major case B
flat major. So you already start with some variations. The
other thing that the lay person generally when they discussed
this with me, and I'm sure discussed this with you,
is it's about publishers. This is not about dualalipa. This
(29:35):
is about the publishers, the lawsuits involved. Who controls the copyright.
So these are major publishers, you know, Warners, Sony, Universal Music.
So they're going to get some really powerful teams of
really experienced copyright lawyers. I know some of these people.
They're great at what they do. They've enters before. So
you start already with the concept of all right, where's
(29:56):
our access. Where's that giant hurdle you've got to get
over a Men nine disco tune called Wiggle and Giggle,
And then you have the Spanish only don diablo. When
would these writers? Is support writers, it's not just do aliva?
When would these people have access to that song? So
that's a huge hurdle. If you don't prove back, you're
right back to this what's strikingly similar? So the plaintiff
(30:19):
said the opening melody was duplicated throughout the song and
gave a retro field. Well, okay, that doesn't count. Retro
feel is not substantive. Again, we're not talking about the
copyright and the sound recording. We're talking only about the composition,
the idea that things may sound similar because they are
of the same beat, and other elements not controlling here,
(30:41):
it's the song. So you had this claim that the
opening melody was duplicated, and then the defense was, well,
wait a second, these are non copyrightable elements, just like
our last case, right, common elements common for a chords
and that common descending pattern of da da da da
da da da da da da da da da da
da da, and so these are not enough to prove
(31:01):
it strikingly similar. And the judge dismissed and said, no,
I'm giving you some rejudgment to defendant. And I took
a look at the experts, and we had the Delbert
claims about whether they were acting as experts in their opinion.
You know, all the infighting will go on in federal
court about experts popyright. But ultimately the judge said, hey,
these are common elements. I can't let this case proceed
(31:23):
and keep the sensed.
Speaker 3 (31:24):
The case seemed to have benefited from the Ed Sheeran case,
where it was found that sheeron song Thinking Out Loud
and Marvin Gaye's song Let's Get It On only shared
commonly used elements that are not copyrightable.
Speaker 10 (31:38):
All right, So the Ed Sheering case, it's win a verdict, right.
It was not decided in a summary rejudgment or dismissal.
The jury got to hear Ed Sheeran play his song
in his version live. Then he got to interpret any
way he wanted how he would present that song. That
to me was an error by the flinker. So that's
(32:00):
a problem with just the presentation of evidence. The second
part was throughout his case, they said, there are some
common elements in music, right, there are common patterns and
common things. You don't own an idea for a song,
and that runs two ways. One it's the sound recording.
The problematic cases always have the idea that someone got
(32:21):
to hear it. That's not what we're talking about. They
get through that only talking about the song. So if
you have a song that has common elements, we're not
talking about other audio similarities. It's just talking about the
common elements in the composition. And yet you can't prove
that these common elements are listed right, they're not protectable.
Then that you get the same results that you had
(32:41):
with as Sharon right, they're not protectable. He has the
own interpretation of that does not match up to your claim,
and so eventually that case went its way. So the
common element scene comes to play in all three of
these to some extent. The first one really is just
based upon no access at all. So we kind of
get that running through all these cases. Those are all
(33:02):
southern districts, are all here in New York seas you
can get the same circus decisions to get some unanimity
as to the decision making.
Speaker 3 (33:10):
I'm always surprised that the judges can break down the
musical elements in their opinions.
Speaker 10 (33:16):
You're going to rely on the musicologists, right, because the
judges are going to make the decision based upon their
own Even though judges in the past go back to
the George Harrison case with he still find my street
Lord way way back, the judge kind of said, hey,
I'm a musician, I get this. And I've had judges
in federal court who, you know, kind of made reference
(33:36):
to the fact that they played an instrument. There's always
this idea that what the judges listening to are battling experts. Right,
in this particular case, the judge gave credence to both
sides and waited and said, look, your plaintiffs experts. They're
making some good points here, but not carrying the day
that they didn't get over the common elements of these
(33:57):
two things. And the expert on the other side has said, look,
these are really common and was pointing to Mozarts and
I have in my amazing singing voice that it's da
da da da da da da da da da da
da da da data, right, And that's ultimately what it
came down to, is that piece of common element.
Speaker 3 (34:13):
What does it say about the song if you have
two different copyright suits.
Speaker 10 (34:17):
It says that the song made a lot of money,
and no one would care unless it's made a lot
of money. So this is a popular artist and everybody
wants a piece of a hit. And you know, all
we got to do is talk about the Mariah Carey lawsuit,
and we're rolling right into that series. But these lawsuits
(34:38):
just don't happen unless there's money, and real money involved.
Speaker 3 (34:42):
And while we're talking about real money, Mariah Carey also
want to copyright loss suit over her mega Christmas hit
(35:02):
All I Want for Christmas Is You, which makes mega money,
topping the Billboard Hot one hundred chart every holiday season
since twenty nineteen, earning Carrie two point five to three
million dollars every year in royalties. A songwriter accused her
of infringing a song he recorded with the same title
(35:23):
in nineteen eighty nine. Was this lawsuit not based on
the music but on the words of the song?
Speaker 10 (35:31):
Probably the best question anyone's asked about that, because everybody
kind of lifts the wrong page in that result. First,
I don't often get to say someone's taking a hit,
had an evergreen hit, evergreen hit. My pun there it's
a Christmas hits and you can't protect the title. First
level of analysis. I'm not sure what people are thinking.
We have the same title. Okay, that's not protectable. So
(35:54):
they were to restart and then the common element melody
and other we're not here back to your lyric question,
want to hear it's the common lyrics were not at
the bust out laugh and on this get ready here
the common lyrics missiletow, Santa stocking, snow, and Christmas. Oh
ooh when you put it like that, ooh, that's not
(36:16):
going very far. That is just just not going to
carry the day. You can't protect the title. You've got
common elements and lyrics. You've got no question that you're
claiming with the melodies are exactly the same. And here's
sort of a sidebar moment. They claimed access and got
the case rolling through the process in the closest because
(36:36):
they claimed access if it had been a big hit
in the country chart, a kid or not. Their song
called well I Want for Christmas View was a country
hit roughly the same time, so their access was based
upon Yeah, it was a charting song. Whether a country
hit gets listened to by a pop star and her
co writer don't know. But this one fell down the
(37:00):
shares pretty quickly in the ninth toorkeit in California because
it wasn't provable. And I want to add also cut
sanctions and partial attorney sees were granted against the flankiffs
on them. It fell really short, and I think that
judge clearly said, wait a second, you should never apply
you Roscoe.
Speaker 3 (37:17):
I believe the judge did refer to them as Christmas cliches.
Thanks Ron. That's Ron Beanstock of Scurrency, Holland Beck. And
that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast slash Law,
(37:41):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm Jim Grosso,
and you're listening to Bloomberg
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