Any Consequences For Will Smith Over Oscar Slap?

it was a g I Jangel Keep my wife. Smith apologized to the Film Academy as he accepted his Best Actor Oscar, but didn't apologize to Rock until the next day. In a statement, the Academy of Motion Picture Arts and Sciences condemned Smith's actions and said it's starting a formal review and will explore further actions and consequences in accordance with our by law, standards of conduct and California law. My guest is Rachel Pez, managing partner at Suibak, Phez

and Coleman and a former attorney for the Academy. Why wasn't Will Smith removed from his seat right after the slap. That's a good question, and I am sure that there was a huddle to discuss that, and I think on balance, they decided to let him remain, possibly win his oscar, and deal with it after. And I think that was an approach that may have considered the backlash they might get from removing will Smith, But I have to believe that was a very hard call. The Academy says it's

launching a formal review. What is there really to review? It's all on tape and millions of people saw it. I agree with you. I don't think there is a ton to review there. The incident is fairly simple and well documented. But they are probably putting the facts in line with their by laws and how they have handled this in the past, so they will probably just review

what they have. I don't think there's a ton of facts not known, and then they will determine what codes of conducts that violated, and then the appropriate consequence for that violation. What are the possible consequences. I think what they could do, not that I'm saying they will do. I think it's everywhere from revoking his membership to the Academy.

They could revoke his oscar they could ban him from attending the officers for one year, or in perpetuity, they could suspend him for some amount of time from being a member of the Academy. I think that runs the gamut. I would think they will also look to see if they can find him under their by laws. Does Will Smith's popularity and status as a mega star, well, that stopped the Academy from doing anything drastic, from doing anything

more than a slap on the wrist. The Academy has been conservative with its approach to superstars in the past. I think because it is a body made up of writers, directors, and actors that punishing others in the industry and rastic ways is very difficult for the Academy and they have to be very thoughtful about how they go about various types of consequences. So I think Will Smith as a mega superstar, that his status will affect how this investigation

and how the ultimate resolution comes out. Under California law, was the slap an assault and battery? Yes, absolutely, that was a crime. It was a misdemeanor under California law. That's an unwanted touching. It doesn't rise, I think to the level of a felony, which is a pretty bad beating in that incident, but he could have been arrested and charged with a misdemeanor for that act. The l A p D says that Chris Rock refused to file a police report. Without a police report, are they likely

to go ahead with charges? They are not. Not. In an incident lie this where there's very little damage done at the end of the day, the police department, the d A. In this incident where it would be a misdemeanor, the city attorney would likely handle it here in Los Angeles and they are very unlikely to proceed without the

victims cooperation. The screen actors guilt it's the union that represents film and TV performers said that it's been in contact with the Academy and ABC regarding the incident and is working to ensure that this behavior is appropriately addressed. Could it institute disciplinary proceedings again, I think they would have to go to their by laws and their code

of conduct and what they have jurisdiction over. This did not take place at an official Screen Actors Guild event, but perhaps there is something inside of their by laws that would monitor conduct outside of something that would be unionized, and there would certainly be an argument that the Academy Awards would fall under something like that, but that would be under their specific by laws that each actor gets

when they join. So if you had to take a guess, what would you guess would be the consequences for will Smith here? My guess is he gets to keep his oscar. They're not going to take his oscar away, which is a consequence they could implement if I were guessing, they will either ban him for one year from attending the oscars or suspend him for some three to six months period of time from the academy. Rachel, tell me what

you did it at the Academy. I worked at quin Immanual and quin Immanuel is long time counsel for the Academy, so I worked on various Academy cases, most of that involved copyright and trademark infringement. And then during the Academy Awards, there is a large group of lawyers from Quinn Emmanuel as their counsel that comes to the Academy every year in various for various jobs. But what I did several

times was interview people that don't have tickets. So there's a lot of ticket transferring that goes on, which is not allowed, so then you have to eject people from the awards so that don't have tickets. And these are kind of illegal issues that the Academy expects on Oscar night, which is a lot like people trying to get in that have no business being there because it is such a big deal. But all of those issues happened generally before the show or at the entrance, so they're very

prepared for that. Um, they have a city attorney on site, they deputize people to do arrest should they be necessary, and all of acts happening before the show, so then during the show they are not used to having this kind of issue at all because generally all of that has settled down and people sit in their seats and enjoy the show from there. Obviously, never before has anyone assaulted anyone on the stage. But is there anything close

to it that's happened. No. I think the things that have happened at the Academy Awards show are mistakes being made. They announced the wrong movie something like that. But this kind of thing has not been seen at all, particularly among the presenters. I mean, maybe there's an off color joke that mistakes are made on any live television, but nothing like this where there was a criminal act performed

on stage from two very well known actors. I think the academy, you know, those in charge there were probably just done. I couldn't mobilize fast enough to figure out it's sunny, you're in. What is happening? How is this happen with this plan? So there is I think a sock factor to it. But there are police officers there too, right, Oh yeah, there's a gazillion celebrities. The security is high. We'll see what happens. Thanks Rachel. That's Rachel PHz of

Swayback Phase and Coleman. The latest legal battle to hit the world of n f T S is over neon colored digital depictions of monkeys covered with cake, frosting and candles. A group of artists created the so called Caked Apes in January, a spinoff series of the wildly popular and lucrative Board Ape Yacht Club collection. Now the artists have filed dueling lawsuits. My guest is copyright law expert Tyler A Choa, a professor at Santa Clara University School of Law.

Tyler I don't know anything about these board apes. Can you explain Lane what the board ap Yacht Club is about. So the board Ape Yacht Club is a collection of ten n f T s that are each associated with one piece of digital art that are all based on this graphic of a board ape face right. And each one of the ten thousand apes is customized in some way, with different clothing or different props, or perhaps changing the expression a little, right. But they're all variations on the

same thing, so each would be a derivative work. So there's a collection of ten thousand of these board apes, and they sold n f t s ten th n f t s, each one associated with a particular ape, and in doing so they have promised certain rights to the buyer that would not necessarily transfer with an n f T, but which they have promised to transfer with each nf to if you own it, what does it

give you the right to? So there is a set of terms and conditions on their website, the board Ape Yacht Club, And unfortunately this is kind of badly written. So what it says is, quote, when you purchase an n f T, you own the underlying board ape comma, the art comma completely right, Well, what does that mean does that mean you own a digital asset, doesn't mean

you own a copyright, it doesn't say. And then in the next two paragraphs it says, well, we are granting you a worldwide, royalty free license to use, copy and display the purchased art for the following purposes. Right, So that part of the license makes it look like they're retaining ownership and they're only giving you a license to use the work. Well, it doesn't specify whether it's an exclusive license the right to exclude others, or whether it's

a non exclusive license. So they've definitely given you something. They've given you some kind of license that accompanies the n f T, and it's a license to use, copy and display the artwork that is associated with your n f T, But exactly however far you can go is unclear. It does give you the right to create derivative works based upon the art, so you can take your board ape and you can modify your board ape in additional

ways to create new derivative works. And because of the way copyright works, you would have a copyright in your derivative ape, but that would not necessarily give you any rights in the underlying ape that you've purchased that's governed by the license on the website explain what this lawsuits about. So this lawsuit is really just a breach of contract lawsuit, and both parties are using copyright claims in order to justify going to federal court rather than being in state court.

But essentially, the parties entered into some sort of joint venture to create and market derivative works based upon the board ape n f T s that they owned, and they called them the caked apes because their pictures of apes are draped with all sorts of dripping foods that resemble cakes and other desserts. So they've created a series of n f t s that are derivative works of the board apes. Again, they've purchased board apes, so they have some sort of license to do that, and they

sold out and they were quite successful. The heart of the dispute is how much money is owed to each of the creators for doing this. So Taylor Whitley, who was also known as Taylor WTF, he was paid ten of the proceeds and he claims that he's owed an additional thirty and the other parties say no, he was only ever entitled to ten percent. And he's been paid is ten percent, which he doesn't seem to deny, and

we don't owe him anything else. So that's the heart of the dispute is how much money was he owed and whether or not he's been paid. And the parties agreed that he was owed at least ten percent and that he was paid ten percent, but he says he was owed in additional and the other parties to this

venture denied that. Now, I think it's telling that the other parties alleged that there was a contract in writing formed by an exchange of emails, and they have quoted those emails and their complaints, whereas quickly Taylor WTF says that he was owed in additional but he doesn't claim

to have anything in writing that says that. So it's going to be very difficult for him to prove that there's some sort of oral agreement that differs from the written terms and the emails that were exchanged between the parties. So where does copyright come in? So copyright comes in

in two ways. Taylor WTF suit was based on the fact that he has sort of a personal logo and abstract image of his face, which isn't very specific but okay, and some percentage, some small percentage of the caked apes use Taylor WTS personal logo as part of the background

or part of the wallpaper. So he says, while he owns a copyright in his face logo, if you will, and because some of the cake dates have that in the background, and because he wasn't paid the money that he was owed, that the other defendants are somehow infringing his copyright by continuing to promote these caked apes that have that image in the background. I don't think that's correct, because they are not continuing to sell any of these things, right,

they've already been sold. Somebody else now owns a n f T associated with those particular apes. It's not clear that the plaintiffs are continuing to do anything that would

constitute copyright infringement. On the other side, the group that's led by Nyeguard says that Taylor WTF made a d m C a takedown notice that when he wasn't paid the amount of money that he thinks he was owed, that he sent d m C a takedown notices to online market places that we're hosting some of these n f T s and was successful in getting some of them taken down, at least temporarily, and they're alleging a violation of Section five twelve F, which says that you

can't misrepresent your ownership of a copyright when sending a d m C a takedown notice. Morellion was spent on n f T s last year. Do you think that most buyers know what they're getting when they buy one of these, Well, it's it's hard to speak for most buyers.

Don't what's in the head of any individual, But my guests would be that most buyers don't understand what they're getting when they buy an n f T. I would imagine a lot of people think they're buying an n f T that they're buying a copyright of some kind, or at least some sort of license to use the art in some way, and that isn't necessarily true. In the case of the board apes, there is some sort of license to use the copyright, even though it's a

little unclear, but at least it's there in writing. With other n f t s, there might be a written contract that specifies which can and can't do, and there might not be. Other people might think that they are buying some sort of ownership of an object of some kind, even if it's an intangible object of some kind, and that isn't necessarily true. Right. We've seen people minting and selling n f T s of artwork that they didn't create and that they don't own, and that they don't

even have a copy of on a server. Right, So there might be a promise that you're buying some sort of copy, a digital version of this artwork that resides on a particular server, But there's no guarantee that two years, five years, ten years from now, that server will still exist, or that there will be a digital copy of the artwork on that server. It may very well be when you buy an n f T you're buying nothing more

than the token itself. That's why I wonder, because there are some cases where clearly they're not getting the copyright and the artist is going to get some secondary profits. So why are they paying so much for these n f T s when you're not getting the copyright. So there's two reasons I think why people buy n f

T s. One is that it's sort of a status symbol. Right, I own an n f T. I've got this record that says I own it, and that might be a great bragging point among your friends, among the twitter verse,

among other celebrities, that sort of thing. The other reason is that people think these are going to be valuable and they're going to make money, and um, I think that's unlikely for most n f T s. H It's possible with some n f t s, but you know, people who invest early in the process might be able to flip a n f T within a few months at a profit. But I think people who are holding these and hoping that they will have value long term might end up with something that will have very little

value when the initial fad sort of faith. People think it's like owning and original work of art. So in the real world space, if you own an original painting, you own that tangible object, even though you don't have own the copyright that's associated with it. And if it's sufficiently old, the copyright might be in the public domain

and anyone can make reproductions. If it's newer and it's still under copyright, you would have to negotiate with the artists or the artists to stay separately to get any sort of rights to reproduce the work. But you still own something quite valuable by owning a single original, and the idea behind n f t S was to provide something unique that would have scarcity and that would therefore have similar value to owning an original copy of a

piece of art. Right, you know, the the original that in the real world space, that would be the tangible original painting. Here, it would be well, you own the original digital version of this digital art. But the problem is that n f t S can't guarantee that that's what you own, because you know what is the original. It resides on a hard disk somewhere. You're not giving somebody the hard disk, and it might or might not be associated with a particular digital copy at a particular

digital location. But again, there's no guarantee that that digital copy or that server will continue to exist to five ten years from now. It's a great explanation. Thanks for being on the show, Tyler. That's Professor Tyler o'choa of the Santa Clara University School of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest lead the news Honor Bloomberg

Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grossow, and you're listening to Bloomberg