Miramax v. Tarantino Over Pulp Fiction NFTs

scenes that didn't make the final cut. We've taken the original pages, digitize the original pages, and like I said, they're full of dialogue that was changed, new stop stuff that I dropped later. Uh Like for instance, uh, the character that Judge Bolt places Vincent for the whole six months of write his name was dat. It got unwanted attention from Hollywood studio Mirramax, who's trying to stop Tarantino from selling the n f T s, suing him for

breach of contract, copyright and trademark infringement. Joining me is Lance Cooon's a partner at Clara's Law. Despite all the hype and the millions of dollars, n f T s are being sold for a lot of people don't understand what they are and why they're so valuable. So, an NFC is a non fungible token that's distinguished from a fungible token like bitcoin or ether, which are blockchain based records that functioned like a dollar or a quarter or

any other piece of currency in the real world. One is exchanged with another and they have the same value from no matter which one you have. A non fungible token is something that's unique. It's a blockchain record that has been created that does not exchange one to one

with others, but is instead unique. One of the analogies I sometimes use is that if you take a penny or a quarter, but if the mint were to misprint the penny or the quarter, then suddenly you have an item that is different from the ref and collectors then value those particular misprinted items because of their scarcity. And so n f t s are a way to create digital scarcity, and what you end up being able to do is linked an n FP and non fungible token

as a record to some other unique digital assets. So what exactly is Tarantino trying to sell as an n f T. It's not clear from the advertising and the promotion that's been done around the n f t sale. I don't think it's entirely clear. From the complaint that Merrimac filed, it appears to be Tarantino's can written pages of scenes from pulp fiction. It's not clear to me whether they're all unique in some way. There's also apparently commentary that's going to be provided for him that's unique.

It looks like there may have been a plan, and I don't know if this is still true, to do some sort of unique artwork as sort of the cover of the n f T or the image that goes along with it. Mirramax immediately sued. What's the focus of

the lawsuit? The primary focus is on the language of the contract between Tarantino and Mirramax dating back to and there was a rights agreement under which Tarantino and Lawrence Fender transferred their rights in the film, which I think included, you know, all elements and all stages of development production to Merrimax. So obviously n f t s were not part of anyone's imagination, I don't think. And Tarantino's attorney argues that the director was acting within reserved rights, specifically

the right to screenplay production. In a court of law, how will they determine what that is. Typically, a court's going to look at the first at the contract language itself and determine whether or not the language on its face is clear. And if the language is clear, then that screenplay publication would cover the creation of n FPS around these themes or these script pages, then it would fall within his reserved rights, which is probably more likely.

Here there's at least some question is to exactly what that phrase means that a court is going to have to look at the things courts look at to determine more ambiguous terms in the contract, the course of action between the parties, the other language and the contract sort of standard in the industry, and so here that I

think what the court will end up looking at. There is a line of cases on new uses of work in the copyright world where and we've seen this at many junctures when new technology comes into play and you know too, contracting parties could not have anticipated in new technology. Often those cases come down to how broad the language of the grant is and whether the parties can be seen to have contracted around sort of anything that comes up in the future. And we saw this in cases

involving digital archives and things like that. So tell us about Random House Vio set of books, right, And that's exactly you know, one of those cases. And I should say that there were cases long before that as well, when things moved from television and to feature film and things like that and video. But in the Random House vias At a book case, the question was whether the right to publish in book form and that was the

language in the contract included electronics e book right. And in that particular case, the district court said that the language has written was not brought enough to cover of the new use, and then they're on appeal. The second circuit really sort of set a standard for how a fact finder needs to look at the contract language to

determine whether the new use was contemplated. Now, I will say that I'm not entirely sure whether the new use cases will come into play that directly in the Merrimac Tarantino case, because that case seems to be focused primarily on the screenplay publication language as opposed to new uses, But it could come up depending how the arguments go. What's the main question in the case going to be?

To my mind, the primary question in this case is does the term screenplay publication cover the sale of an NFT that is tied to parts of a screenplay. You know, clearly, when Tarantino reserved his right to screenplay publication, it meant something. It meant that he was reserving the right to do something with the screenplays. And you know, I think in the normal sense, you would think that probably means taking that screenplay and selling copies of the whole screenplay on

the market and publishing that screenplay to the market. Here, it's not clear. I don't believe you know what Tarantino is going to be doing with these n fps. It looks like that sort of broader publication if you were going to sell one or two or ten n f p s around a particular set of screenplay pages. But I don't know that there's that much precedent yet that would tell us what the answer to that question is. Maybe you can answer this question that no one else

has been able to answer for me. In some of the auctions involving millions and millions of dollars of digital art, in some of those the copyright isn't transferred to the purchaser of the n f T, So what does the purchaser get the sides bragging rights. In short, it is

the bragging rights. But I think the best analogy would be to the sale of a really valuable piece of physical artwork, in the sense that if I paid twenty million dollars or sixty nine million dollars for a painting and I buy that, I don't get the copyright when I purchased that painting. In most cases, I simply get that one copy. It may be the original, it may be the only or there may be prints made of it,

and there may be copies everywhere. But when I buy that piece of physical artwork, I get that piece of physical artwork. There's a doctrine called the first sale doctrine under copyright law in the US, which says that in the physical world, when I sell something like a copy of a book or a or a painting or a record album and vinyl, that any copyright interest that the seller has in that one in instance of content goes away, and the user then has a right to sell that

copy onward and do whatever they want to with it. Essentially, although you couldn't then make another copy of it and sell a copy, all you have is the right to sell it in a used bookstore and to alienate that one copy that you've For people who are going to buy or sell n f T s, what should you do to ensure that the rights that you think you're getting are actually the rights that you are getting right And and we advise clients on both sides of this question,

and I think the short answer is, you need to know very clearly what the terms of sale are in connection with the particular n f T sale. In some market places, that may be something that you'll see in the description of the item itself in the sale. In some cases you maybe looking to the terms of use on the n f T platform website. But you know, in either case, whether you're a buyer or a seller, you need to be very clear on where those rights

are found in what those what those terms are. Thanks Lance.

That's Lance. Coon's a partner at Clara's Law. Former President Donald Trump lost his appeal to the d C Circuit to override President Joe Biden's waver of executive privilege over White House records in the January sixth Capital Ride investigation, but the Biden administration is siding with Trump and urging the Second Circuit Court of Appeals to scuttle a defamation lawsuit brought by advice columnist E Jean Carroll after Carol went public with her allegation that Trump sexually assaulted her

in a New York department store dressing room two decades ago. Trump said she was quote totally lying and not my type. Judge Denny Chin appeared skeptical that Trump's words fell within his duties as a government employee, as he questioned Trump's lawyer Elena Habba, who is he serving when when he says something like she's not my type? He was? That is he serving the United States of America when he

makes that statement? Absolutely, because he has to address the fact that this could not and would not have happened. He did not do it. Not It was the one thing if he said I didn't do it. But but he goes way beyond that. Joining me is Eric Lawson, Bloomberg News legal reporter Eric. Many were surprised with Biden's

Justice Department siding with Trump. Yeah, I think when Biden was elected, a lot of people who were watching this attempted d J intervention sort of assumed that if this would be one of the many Trump policy decisions that would be reversed by the new administration, So it was kind of a big surprise when the Biden administration said we actually side with Trump. They said, we don't agree with what Trump said, but his denying of Ms. Carroll's claims were made as part of his job duties, and

therefore he's protected by this law. It's called the west Ball Act, which protect government employees from litigation related to their job. And the Justice Department's lawyer said, Trump made offensive comments in response to very serious allegations of sexual assault. I'm not here to defend or justify them, but how did he divorce the comments from the defense of the comments? To the Justice Department, they sort of boiled it down to Trump was denying an allegation made against him, so

the press was asking him about the allegations. He was responding in his own special way. So the Justice Department, based on their papers, they're looking at it as just protecting the office of the presidency, as often the d o J does in terms of being able to protect any president's right, in their view, to deny allegations like

this without the threat of being too for defamation. Trump's lawyer referred to Kyle written Wilson asked, what are we going to do if Kyle Rittenhouse sue's President Biden for

calling him a white supremacist? Right, And I actually was not too surprised that she brought that up because it was sort of a current events comparison That was actually kind of a good one come in a way, because after Kyle Rittenhouse shot and killed two protesters in the Black Lives Matter rally last year in Commosha, Wisconsin, and

injured a third. In the aftermath of that, Biden put out a campaign video that Rittenhouses then lawyers suggested that Rittenhouse was a white supremacist and threatened defamation lawsuit against Biden, which never actually ended up happening, but it did raise the prospect of what would happen if he had been to in It's sort of a similar argument there, right, Trump said, She's not my type. That is the part

of the statement that's offensive. Is it that he denied it at all, or is it the offensive nature of it? How are they parsing that statement? Well, that's a good question, because that did come up in the court hearing and

it got a little bit confusing at times. But I did clarify with mis Carroll's legal team afterwards that they do absolutely stand by the argument of even the denial itself was defamation, because the denial implies that she was lying the additional parts of him claiming that she's not his type, and that she was making these claims just to sell a book, and that sort of thing does make it more difficult, in Carol's view, to tie the denial to the president's job duties. So that's why they

were parting that. But they say that the denial itself was defination. Listen to what Judge Guido Calabrisi said about presidents in general. The fact is that the president often has done things which goes long for all for purposes of the presidency. Almost every president has done it. You know, it's impossible to really get into a judge's head, but it does kind of hint at how at least that judge was thinking that there's always been a wide latitude

for presidents behave in a certain way. You know. He went on to point out that the big outlier and this type of behavior would be like Nixon lying for his own personal benefit rather than to protect the office of the presidency, and that that rises to level of impeachment, you know, and then he said something along the lines that that's a higher part to reach the decision here. If it goes against Carol, it's more than just losing emotion.

The case would be lost. That's correct. If the Justice Department prevails here and is able to substitute itself for Trump as defendant in the case, then essentially the case will be dismissed because you can't sue the federal governments the defamation. So the west Fal Act has been applied to Barack Obama, Bill Clinton, and George W. Bush, so the last three presidents. It seems to be invoked a lot, yes, and even against Hillary Clinton and Senator Elizabeth Warren and

other members of Congresses. It's actually used fairly frequently, and even in some defination cases. I believe there was one to to get Elizabeth Warren over something that she said from about someone in an interview, and that case never made it to trial. It was dismissed under the west

Ball Act. Thanks Eric, that's Bloomberg Legal reporter. Eric Lawson, an Indian national who has lived in the US nearly thirty years, wants to take another shot at arguing that he isn't precluded from seeking a green card because he falsely said he was a US citizen while getting a driver's license in Georgia, and the Supreme Court justices seemed likely to side with him. Joining me is Leon Fresco, a partner at Hollandon Knight. What's the process for getting

a green card? Well, the process for getting a green card depends on whether you're inside the United States or outside the United States. But let's just take for the purposes of this gate that's before the Supreme Court. There's a two step process if you're inside the United States called adjustment of status, and they're What you usually do is you file one application that says, I'm ela mole for the visa I'm asking for whether it's an employment

visa or a family visa. And then at the same time you file an application called an adjustment of status application, which says, and by the way, I'm not ineligible because of a ground of inadmissibility that would apply against me.

And so there's about fifty grounds of inadmissibility in the Immigration Code that if you did any of those things wrong, even if you are eligible for the visa because you are the right kind of relative or you do have the right kind of employer petitioning for you, it wouldn't matter.

You still couldn't get the Green card. And so this supre Court case is about that second process, the adjustment of status process, and whether someone can appeal the decision that they're inadmissible a k a. Ineligible for adjustment of status for whatever reason the Immigration Service has stayed they're inadmissible for So tell us about the case before the Supreme Court, which involves a citizen of India who has

been living here for thirty years. Correct, this is a citizen of India who has lived in the United States for thirty years, and they're married and have three children.

And this individual apply for a relief called TO forty five I, which was something that existed before two thousand and one, which for you know, you could use the word legalization or amnesty or whatever, but it was a program that allowed people who didn't have legal status to regularize their legal status if they have a proper employer or a proper family member petitioning for them, even if they had been in unlawful status at the time of

their application. And so this person goes through the process but gets denied because they said that this person had what's called the grounds of an admissibility for false claim for US citizens. And what that means is if a person who's not a U. S citizens ever state in any way, shape or formed that they're U. S. Citizens, that's pretty much the worst thing you could do in

the immigration code that banns you from everything. And in this case, they said that this person marked yes in response to a Georgia driver's license application question that asked are you a US citizen? And so the Immigration Service here actually denies this person's application and state that this person can't get a green card because they lied about

being a U. S. Citizen. And so this person wants to appeal that determination, but it is being told by the federal court that the courts do not have jurisdiction to review whether this person lied on their Georgia application and whether that was a material lie, whether they mental life, or whether it was a mistake. And so that's what the case is all about. It did the immigration judge make a determination that Patel did lie, because Patel said

it was a mistake. But it's sort of hard to believe that you'd make a mistake about something like that, well, so correct. The immigration judge ruled against Patel and said that Patel was not in credible in his explanation that it was a mistake. But the point is Patel is seeking review from the Eleventh Circuit of that decision, saying that the Immigration judge was wrong, and the Eleventh Circuit Court of Appeal says it does not have the ability

to review that. But what they said was it's because nothing in an adjustment of status application is reviewable, as opposed to what Patel argued, which is no, no, no, no no. Only the discretionary decision in an adjustment of status application are reviewable. We need. What happens is they do two steps of an analysis. First, they decide is this person and actually legally able to get a green card? And then second, even if they are, as a matter of discretion,

should we give it to them? Maybe they had fifty arrets and no conviction, and so even though they're legally able to you start asking why did this person have fifty arts? Or maybe they are doing some sort of other vile thing that's not covered by the grounds of inadmissibility, but under your discretion you would deny it. And so what the arguments are, both by the government and by the Patel is that only that discretion is what's not

reviewable in the court. But the decisions regarding the factual claims in the case and the factual findings, those should be reviewable. And so that's what they wanted to review here, and so here the Federal government agreed with Patel and Council had to be appointed to take the position of the Eleventh Circuit correct. And this is actually happened probably in the last twenty years, three or four times in

the immigration the world. But it's interesting. I don't know if this happens very often in other worlds, but it does happen in the immigration world because what happens is it's kind of funny where a four national will be placed in removal proceedings and they have sort of don't say over um the fact that they're in removal proceedings, that it's iOS placing them in removal proceedings, and only by the time that the case gets to the Supreme

Court is it actually working its way through the Department of Justice, Solicitor General's office and sort of the scholarly attorneys in the world where when they get the decision, they say, well, why are we defending this? You know, this was a very bizarre position that I took during the litig agtion that now we're being asked to defend

of the Supreme Court. Why are we defending this? And so during those times it has happened that the government will actually take us side of the litigant, and then the court will need to do something in order to make sure that the lower courts ruling has someone who defended it, and they'll appoint gets to do that. And so that's what happened here in this case, and the lower federal courts were split on this issue. Right, the

lower federal courts are split. You have some circuits saying that you can review the decisions in an adjustment of status application except for the truly discretionary you know, at the end, do you give it, do not give it, that's the only part that's not reviewable, as opposed to the eleven Circuit thing that because there's a discretionary component at the end, that means none of it is reviewable.

And so there were some arguments today in the court about, well, in the end, if they can deny him for discretion and that's what this judge wants to do. What's the kind of matter in the end, But I think the court still focused on the fact that because there's this presumption of review in the statute, and it really makes sense to read it in this kind of bifurcated manner where nondiscretionary things like law and facts and everything else

get review and truly discretionary things don't get review. I do think some members of the conservative wing of the court see to have that argument register with them. So it seems likely that Potel is going to win. Well, what it seems likely is he's gonna win to get

review of the decision. That does not mean Patel, in the end of the day, is going to get a green card, because if the lower court found him not credible as to his actual why he clicked on the citizenship part for his driver's license, it's going to be a hard flog in the Court of Appeals because the Court of Appeals doesn't have the benefit of the credibility determinations that are being made in the lower court. They

can't as the individual or any of that. So those are historically hard decisions to overturn, but at least a larger legal principle will withstand this eleventh circuit attack so that people who need this review, who actually can win, will be able to win moving forward. That was what seemed strange to me here, because you have someone on a trial judge level. Let's say, when the trial judge makes certain determinations of fact, the appeals court can't really

review those determinations. So if you have a tr judge you're making a determination that he was incredible, what kind of information would you present to an appeals court to show he was credible? Right, You would have to say, basically that no reasonable lawmaker would have found that conclusion based on what was submitted to them, And very rarely

are you going to meet that. In the immigration world, where you do see this happen on occasion, and it's sad, but it's true, is where sometimes the actual judges on the immigration court will verbally express such an anti immigrant viewpoint towards this individual in the case that then people start to question the objectivity of the actual judge in the case. They will say things that are completely inappropriate during the course of the litigation that isn't even like

politically correct inappropriate. It's stuff that anybody would say, don't saying judge would say something like this during during a hearing, that kind of stuff. So sometimes like that you will see it reverse. But other than that, you're correct, you very rarely see it reverse. So how many people would this affect to this decision of the Supreme Court? They asked this question a bunch of times during the argument,

and nobody could seek to tell. And there was this belief, well, look, if they're about a hundred thousands of these cases a year and there's about a seven percent get granted, how many people could this actually be? Is it a thousand? And the point is we don't know. And also there's a lot of people who may not file an appeal

because they thought they were foreclosed from doing this. But even if it's a few thousand people a year, those are a few thousand people a year that would have that lifeline that wouldn't have it in the court rules

against them. There there is sometimes and I don't know if it happened here, but definitely sometimes, and these states that have automatic motor voter registration, you will see a situation where a foreign national will sign up for a driver's license and they'll automatically get signed up to vote, and then they've got to untangle that they didn't ask for that. So in this kind of case, it will be very useful to have that review in case there's

a lot of confusion about what happened. Now, I don't think that's what happened in this particular case, but those motor voter situations are not that com So I want to turn to two bigger issues. How many of the Trump immigration policy decisions is the Biden administration following Well, The main one that we're seeing now, and if that being done on purpose, but it's being done because the court is requiring them to do it, is this concept

of remain in Mexico. And this concept of romain in Mexico is fascinating now because the entire purpose of revoking the Remain in Mexico policy was the Biden administration's memorandum stating that there's no way to do this in a

humane manner. And so now what's interesting is as they're being forced implemented, and they're actually implementing it with Lingal counc and with the International Organization of Migration helping secure safety for people in Mexico and all the kinds of things that they're doing because they're concerned about socifety of the people in this It is potentially going to be

a very interesting thing to see in the court. It's sort of all of these human rights elements that are being implemented as part of remain in Mexical will actually undermine the argument now in courts such as it will essentially be a no good deed goes unpunished situation, and now it will be impossible to revoke the Remain in Mexico policy because the court can say, you see, there is a humane way to do this the way you're doing it, so why do you need to revoke the policy?

And so this is gonna be a very interesting thing to watch moving forward. And as the Biden administration still using the COVID excuse for not except using yeah, they're still using Title forty two in cases where they're single adults, and those single adults are still working in their way into the system and they don't have any sort of equities for why they would be paroled or light into

the country. And I think you will see that until the lifting in its totality of the COVID National Emergency which hasn't been listed yet, So you still have this COVID national emergency, and I think until you see that get lifted, you're still gonna see at least some number of people be excluded under the Title forty two authorities. So I haven't heard that much in the last few weeks about the numbers of illegal immigrants coming into the country.

Has that subsided a little? Sure? Well, those numbers are lower and they have subsided, and that's because this isn't usually the time of year. There's sort of three things going on at the same time. One, this isn't usually the time of year where you see surges. Even in Texas it actually gets quite cold, uh, and so people don't usually start coming in December November during that time period. So you do see, uh, those numbers slipping, and they

for three consecutive months now. But also the fact that people are still being subjected to Title forty two and now the remaining Mexical policy does mean you're going to start seeing these numbers the GRIP. Thanks for being on the show. Leon. That's Leon Fresco, a partner at hollanden Knight. And that's if in this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on

our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, Slash Law, and please join us every weeknight at ten pm Wall Street Time for the Bloomberg Law Show. I'm June Grosso and you're listening to Bloomberg