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- [00:01]
Sponsor Voice
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- [00:30]
Ben Miceli
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- [00:35]
Cameron
Its sweet profile perfectly balances the savory.
- [00:38]
Ben Miceli
Notes of your burger. That is one perfect combination. Burgers deserve Pepsi.
- [00:46]
Sponsor Voice
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- [01:13]
Cameron
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- [01:41]
Ben Miceli
Finally, we've got a win in favor of journalists media outlets reporting against Donald Trump in the form of a new order by Judge Garfield in New York in favor of Simon and Schuster, the publishing house in favor of Bob Woodward, the investigative reporter who who together published over 20 different audio interviews of Donald Trump that Bob Woodward obtained when he was writing the book Rage. And they published it and repackaged it as audio interviews in the Trump tapes. Donald Trump hated that they made $50 million selling the Trump tapes. Donald Trump wanted all the $50 million claiming he was a co author under the copyright statutes. I'm going to tell you what Judge Gardafy said and with one twist here, I'll put you on your edge of your seat at the top of this hot take. Simon and Schuster used to be owned by the Redstone family and Paramount until right before this case was filed. Then it was sold to a private equity firm. If it were still owned by if Simon and Schuster, Woodward's publisher was still owned by the Redstone family, I assure you I would be reporting on a settlement being paid money to Donald Trump by Simon and Schuster being forced by its corporate Parent, just as we just saw in the CBS Tiffany network throwing its reputation down the sewer and flushing it down the toilet in order to appease Donald Trump, while Paramount was trying to get a regulatory approval for a sale of its own business, where Stephen Colbert was apparently the late night host to be named later and was sacrificed in order to appease Donald Trump in that bribery scheme. So if Simon and Schuster, this is just fortuitous that right before the suit was filed, Simon and Schuster was sold by the Redstone family to kkr, a private equity firm. Otherwise this would be a much different report. But I'm here to tell you what Judge Gardafy said. It's against Donald Trump. It's in favor of Bob Woodward and journalism and the Copyright Act. And I'm going to report on it here on Midas touch and legal AF. All right, let's get to it. In 2023, Donald Trump files a lawsuit, starts it in Pensacola, Florida. It gets transferred, of course, because it doesn't belong in Pensacola, Florida to New York and gets assigned to Judge Garfi. Judge Gardafy, side note, one of the slowest, he's a great judge, but one of the slowest judges around. The New York Post actually wrote an article about five years ago shaming, trying to shame Judge Garaffy as having the slowest turnaround time for his orders ever. Which would explain why we sort of lost track of this case because this motion to dismiss was filed a long time ago. We now have the 81 page order. It was well worth the wait. Judge Garfi, about Donald Trump, here's what happened. Trump agrees on the record, this is no dispute. Trump agrees to be interviewed because he's vainglorious by Woodward to write a book. And they have 20 different sessions between 2016 and then 2019 and 2020. Lots of different people attend. Based on the, I'm getting this from the complaint, not, not the original complaint, the third version of the complaint. That's how many times it's been dismissed. So they talk about, oh, there were these interviews and hundreds of hours and lots of people attended. Kellyanne Conway and Vice President Pence was there and the chief of staff for Donald Trump was there. Okay. Trump asked what, according to complaint. Trump asked one question to Woodward. You're just using these tapes for the book, right? He said, yeah, like I'm not doing reporting. Like I'm not writing articles about, about this. I'm doing a book. He said, okay. There was no discussion about whether the audio tapes were going to be separately packaged or who was going to own them. And the way the law works is that in interviews when you have question and answer, Trump tried to argue, well, I gave the answer, so it's my copyright. No, that's not how that works. There's a lot of different factors, but the main factor is whoever fixes it, fix it's a term of art in the world of copyright, whoever fixes it in a defined permanent medium is the author for copyright purposes. So two people could have participated in the project, but whoever reduced it to writing or video or digital or audio, they're the copyright holder. And that's what led Judge Gardaffy to say, I know you're arguing that you're the joint owner of the copyright, but you don't have a contract, you have no facts to support it, even your own complaint, because we're here on a, on a motion to dismiss. So the judge has to accept as true whatever is alleged in the four corners of the complaint. The pleading that was filed by Trump to get the case off the ground, but can't look outside of it. So even if you, if you interpret it in the light most favorable to the non moving party, which is Trump, Garnet was like, you don't have appropriate allegations that, that you could have reasonably believed that you were the joint owner of the copyright. Now Trump says in his complaint, oh, you know, I ran down and the Copyright Office recognizes me as a co owner. Well, what happened is in, in February of the year that the inter, the last interview was done, or February of 2021, Simon and Schuster ran down to the Copyright Office and registered February, actually 2023, February 23, 2023. Woodward obtained from the Copyright Office the registration, the copyright registration for the Trump tapes. Five days later, Trump waltzes in and tries to register as well. Copyright Office doesn't resolve competing claims. Courts do that. So they both are recognized until the court sorts it out. And that's what the courts are sorting out here. That's what Gardafy is trying to sort out. So Gardafi in his 81 pages goes through the whole analysis and says, look, I'm looking at your complaint, Trump. You have to allege facts to support that you are a joint authority to own the copyright. And I don't see that anywhere in your complaint. In fact, I see counter evidence in your own allegations that undermine your argument that you are a joint owner. And under the copyright law that's going to kill all your other claims for breach of contract, unjust enrichment and the rest because copyright law is sacrosanct in this area and ousts all common law or state claims that are contrary to to the Copyright Act. And they've got you dead. You know, effectively, the judge is telling him, Simon and Schuster has you dead to rights on copyright law. You don't own it. This is all about money, by the way. This is not defamation. This is about Donald Trump wants a major piece or all of the $50 million that was made on the drum tapes. You know what?
- [08:33]
Derek
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- [08:42]
Ben Miceli
I didn't overthink it and, and it turned out to be one of the.
- [08:44]
Derek
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- [09:44]
Ben Miceli
Af so at the end of this process, now that Woodward has won, the judge has given and he's bending over backwards here because after the second amended complaint, which is the, you know you have the complaint, your First Amendment complaint, your second Amendment complaint. So there's been three opportunities that's been given already to Trump's side to get their pleading straight and, and to survive a motion to dismiss, all failed. Most federal judges would be like three times you're out and I see any attempt at you alleging something different to get around the copyright statute or to allege a tort or some sort of contract claim that's independent of copyright act that won't be preempted by it is futile. The judge said, I'm not going to find futility yet. Which is another doctrine in, in pleading practice because the judge will give you leave to amend a few times. Unless you could never state a claim under pleading standards and the standards for the particular claims that you're bringing, then we call that futility or amendment futility. And the judges will deny it because they'll be like, I could give you another shot, but you're never going to get it. You're never going to be able to get over that hurdle. So here's what the judge says on page 58, which sort of comes to the end of his order. While it appears unlikely that plaintiff can adequately plead a plausible copyright interest in the Trump tapes or any non preemptive state law claim, this court cannot find at this stage that any amendment would be futile. Accordingly, leave to move to amend is granted. Any motion for leave to file a third amended complaint, that would be the fourth try for a complaint to survive must be filed on August 18, 2025. So he gave him a month. And we'll explain how the new pleading addresses the deficiencies or defects that are cited in this opinion. Because other words, they've laid out, he's laid out the blueprint of what the complaint has to look like. And then you have to. So he's going to have to file a motion for leave to amend, attach the proposed Third Amendment complaint as an exhibit, and then the judge will take a look at it and see if this resolves the problem. I think that Trump is going to lose. I think Trump's best world scenario is if Simon and Schuster had stayed connected and owned by Shari Redstone and Paramount. So when they wrapped up the whole 15 million, 30 million Colbert's head on a pike settlement, they would have included the Simon and Schuster as a subsidiary and this particular lawsuit. Yeah, so that's the good news here. It also goes to show you how important independent commentary and channels and YouTube channels like this one are. Because you see what's happening in the world of corporate owned media. They're throwing the Tiffany Network, Edward R. Murrow's network, Walter Cronkite's network. Journalism, the integrity of journalism down the drain. Washington Post owned by Bezos. That Washington Post isn't worth the paper it's written on any longer. It's not the Washington Post when Bob Woodward wrote for it in the 70s with Carl Bernstein and the Pulitzer Prize winning exposes about the Nixon administration. LA Times. Throw that into the. Put that at the bottom of your birdcage owned by a billionaire who doesn't care about the First Amendment or American values. Then you have Colbert being fired. Obviously it's obvious. I mean Come on, let's be frank. Just days after he does a scathing rebuke of his corporate parent, Paramount, it's obvious that there was a requirement for him to get canned. And then you got people on our own network like Katie Feng. We will never get canned. I will never get canned by Midas Touch for something that I say. I'm not told what to say. They don't speak to me afterwards about what I say. I'm not censored. They rely on my professionalism, my professional maturity, my reputation, my brand to do quality commentary that's based on truth and appropriate commentary around that without blowing smoke or sunshine. That's it. But we need protection, and we need to stay on the air at this critical moment in our democracy to be the firewall. So the way to do that is hit the subscribe button for the Midas Touch network, come on over to Legal AF, the YouTube channel, do the exact same thing. No paywall, no outside investors. We just need thumbs hitting subscription buttons. I mean, I hate to put it that way, but that's what it is. And I'm. And I'm honored, of course, to be on this network running the channel with the Midas Touch brothers and bringing you the Legal AF podcast as well. So, till my next report, I'm Michael Popak. Can't get your fill of Legal af. Me neither. That's why we formed the Legal AF substack.
- [14:55]
Derek
Every time we mention something in a.
- [14:56]
Ben Miceli
Hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there's including a daily roundup that I do called, Wait for it Morning af. What else? All the other contributors from Legal AO are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.