Happy Tuesday, I’m Eriq Gardner.

Welcome back to The Rainmaker, my private newsletter focused on the legal intrigues of Hollywood, Silicon Valley, Washington, and Wall Street.

In today’s column, I tackle bored apes and fast cars, and what they both have to do with the future of ownership. I break news about a development on the Kevin Spacey front—one that should be very concerning for journalists. Plus, the Matrix franchise, the Rust debacle, and is Barack Obama trying to bust Hollywood’s unions?

But first…

As someone who has been following this case from the beginning—as a reporter who traveled to Fairfax, Virginia for pretrial motions (often it was just me and someone from CourthouseNews in the gallery), and as someone who has been talking to insiders with both camps for years—allow me to make two key observations.

First, the weight of this dispute shouldn’t be underestimated. I know that some in the legal community may look at this as a celebrity “shit show” (to quote one lawyer who texted me). I think that assessment ignores some truly remarkable legal issues that have arisen: The quirks of the Virginia venue, for instance, which I’ll get back to in a moment, or the issue of whether judge Penney Azcarate should have halted this case after a U.K. court ruled in late 2020 that a tabloid’s “wife beater” headline about Depp was substantially true. (Azcarate didn’t let collateral estoppel or res judicata on the international front stop the actor. Nor the Uniform Foreign-Country Money Judgments Recognition Act, which I’ll resist the temptation to discuss further.)

Even the jury’s deliberations will be treading upon extraordinary ground. For instance, Amber Heard didn’t write the headline that The Post used—the one and only reference to “sexual violence.” So should she be liable for that? If the jury finds that to be an untruthful statement, it must decide whether she republished the statement via tweet. Meanwhile, in the counterclaims, Depp is facing liability for what his attorney Adam Waldman told the press. Thus, the jury will tackle the exotic question of agency.

Second—and this might sound contradictory, but is most definitely complementary—this whole trial probably should not be happening. If Depp and Heard wanted to fight over what took place during their marriage, they should have litigated it up the wazoo during the 2016 divorce proceedings, not some libel action years later. Better yet, if there was domestic abuse, maybe there should have been a criminal referral.

Instead, we have a case about speech, and it’s happening in a state where neither party lives. It’s in Virginia because the state had (and still has, even after a 2020 amendment) a relatively weak anti-SLAPP law—meaning Depp brought the case in Virginia because his attorneys sensed a better chance of succeeding there. And it’s also occurring in Virginia because it’s one of the very few states to adhere to what’s known as the lex loci delicti rule, which is Latin for “place of the wrong where the tort was committed.”

The fact that Heard’s op-ed was uploaded to The Post’s website and was thus considered “published” in Virginia is what became the green light to fight in the state. Indeed, the original judge (Azcarate is a replacement) declined to adopt the jurisdictional test that has become common elsewhere—looking at whether the parties have a “significant relationship” to the venue. Of course, Depp and Heard don’t, and it’s worth noting that the Virginia Supreme Court hasn’t ever addressed the “place of wrong” in situations when defamatory content is published online. In other words, should Depp win, there’s a decent chance that an appeals court could take Old Dominion into the 21st Century by ripping up the judgment and ruling this case should really have happened elsewhere. (Of course, if Depp wins at trial, he might consider this development to be enough of a public vindication and settle any damages award. So maybe it wouldn’t be appealed.)

That brings me to a point I’ve made before and keep coming back to again and again. I don’t think the outcome will achieve much of anything (besides burnishing the developing stardom of Depp attorney Camille Vasquez, a Brown Rudnick associate). I think rehabilitation of Depp’s reputation is beyond the scope of this proceeding, and, in any event, there’s been enough talk of wayward behavior to make Depp’s legal endeavor highly questionable. I’ll mostly stick to the assessment that Depp amplified an allegation from the divorce that would otherwise have been forgotten (ask Brad Pitt) and nobody is coming out ahead in this case. Plus, he could have written his own op-ed.

I’m not going to make much of this… yet. The N.L.R.B. gets about 20,000 charges per year, per the agency, and it doesn’t take much to open an investigation. A good chunk of these cases end up being settled or dismissed. Of course, those other cases don’t involve an ex-POTUS. Netflix tells me, “This claim is without merit and we look forward to it being dismissed.”

For those not familiar, there’s a series of 10,000 ape N.F.T.s known as the Bored Ape Yacht Club—highly-prized digital collectables living on the Ethereum blockchain. Green, best known for Austin Powers and Buffy the Vampire Slayer, purchased one of the apes (#8389), named Fred, and then planned on having this ape star in a new animated series. But then, Green fell victim to a phishing scam. “Days before he’s set to make his world debut, he’s literally kidnapped,” Green said at a recent N.F.T. conference.

Believe it or not, this isn’t the first Bored Ape to be, um, kidnapped, and the N.F.T. marketplace OpenSea is facing a few negligence lawsuits for not doing more to impede hacks and scams. (OpenSea is pushing for arbitration in those cases and didn’t respond to a request for comment.) Yet this story isn’t about lax security in crypto, but rather about what happens now? Can Green move forward with his new show? The concerned actor/producer is now pleading with the individual who subsequently bought #8389—a collector known as “DarkWing84”—for Fred’s safe return, and some news sites are sending lawyers into a tizzy by dragging in copyright law, a subject that will forever be mangled in the popular press.

For a good rundown of the legal issues surrounding Fred the Ape, check out this epic thread from Cornell law professor James Grimmelman, who talks about the distinction between ownership and possession; how the basic function of property law is to restore possession to the rightful owner; how certain transfers of possession change title while others do not; the test that’s used to decide whether a good-faith purchaser gets to keep stolen property; and some of the possible wrinkles posed by the blockchain.

The license for the Bored Ape Yacht Club states: “Ownership of the N.F.T. is mediated entirely by the Smart Contract and the Ethereum Network.” In the end, Grimmelman sees a lot of ambiguity in the license and isn’t sure who gets to exploit the copyright to the ape, meaning the ability to authorize and profit from derivatives. Complicating matters further, it’s not really clear whether Green even acquired exclusive rights in the first place. Perhaps not!

Think I’m exaggerating? Well, let me tell you about Eleanor the Car. In 1974, H.B. “Toby” Halicki produced, directed and wrote Gone in 60 Seconds, about a group of car thieves tasked with stealing 48 exotic muscle cars. The star of the film—actually listed in the opening credits of the movie—was a Ford Mustang named “Eleanor,” a particularly treasured vehicle that, as the story goes, was especially elusive to capture. (Obviously, it wasn’t on the blockchain.)

After the 2000 release of the remake starring Nic Cage, Angelina Jolie, and Eleanor (this time a customized 1967 GT500), Denise Halicki—Toby’s widow—exhibited Eleanor at car shows, where she ran into Carroll Shelby, once a legendary race car driver who began working for Ford in the 1960s and who designed some notable race cars, including arguably a key one that appeared in the Cage film.

A few years later, Halicki sued Shelby over some unauthorized replicas of Eleanor that had been manufactured and sold. In 2008, the case traveled all the way up to the 9th Circuit Court of Appeals, which decided that the widow had standing to pursue a copyright claim. As to whether Eleanor was entitled to copyright protection or “simply a car,” the appeals court remanded that issue down to a district court. The case then settled. According to papers I’ve reviewed, Halicki was acknowledged to be the owner of the Eleanor character with certain trademark rights, too; Shelby was acknowledged to own trade dress rights to the GT500 and could continue selling the car.

The dispute is relatively well known in intellectual property spheres, and the 9th Circuit opinion would later be cited when DC Comics famously sued someone who had made a replica of the Batmobile. But what will surprise pretty much everyone, I’ll bet, is that Halicki’s and Shelby’s heirs are still involved in a court fight to this day.

In 2019, around the time that the Oscar-nominated film Ford v. Ferrari was renewing interest in Shelby (portrayed by Matt Damon), Halicki learned about some cars being showcased at auctions. She sent out a series of cease and desist letters to Shelby’s customers, including one that allegedly demanded that a “Shelby” mark be replaced with an “Eleanor” mark plus a license fee remitted to her.

Now, Shelby is suing for breach of the settlement contract, and Halicki is making counterclaims for copyright and trademark infringement, with the director’s widow contending that these very real automobiles are misappropriating the character. The two sides will brief a judge this month on the copyrightability of Eleanor. Shelby argues the car’s features have been too inconsistent over time to deserve the kind of protection given to, say, Superman. Halicki responds that the copyright has repeatedly been acknowledged—and the car is recognized wherever she goes. Shelby hits back that regardless, this doesn’t give Halicki the right to make claims against innocent buyers, and that she can’t have a monopoly on a car body design based on what’s in a movie.

If those interested in Bored Apes sense something resonant in all of this, well, a hearing in the Eleanor case is scheduled for June 13 in California federal court, with a possible trial commencing in August. I’m sure Seth Green, who once appeared in the heist flick The Italian Job and says he’s spent the last 18 years studying copyright law, may attend if he wishes.

In his ruling, L.A. Superior Court Judge David Cunningham grapples with the proposed injunction and really takes Warners’ side with respect to many of the claims, including an alleged refusal to allow Village Roadshow to be included in Wonka, the Charlie and the Chocolate Factory prequel. That might explain why Village Roadshow quickly accepted arbitration and withdrew its preliminary injunction motion rather than make any appeal. Best to just take a new referee rather than continue pushing for a judge who has already signaled an unfavorable outcome. Plus, there’s still plenty to resolve in arbitration including whether Warners ruined the value of Matrix by distributing the recent sequel on HBO Max.

As my colleague Matthew Belloni wrote a few months ago, Vary was at Buzzfeed when, in 2017, he wrote the article in which actor Anthony Rapp accused Spacey of preying on him as a young man. Now that Rapp is suing Spacey for alleged sexual assault, Spacey is making a huge document demand upon Vary and insisting upon a deposition of the journalist.

Vary is leaning on California’s very strong reporter shield law, but unfortunately for him, Spacey’s attempt to enforce a subpoena and hold Vary in contempt was transferred to New York federal judge Lewis Kaplan. Kaplan ordered Vary to submit responsive documents for in camera inspection (meaning a judge’s private review), and when Vary’s attorney Jean-Paul Jassy asked for reconsideration—seeing this as being nevertheless harmful to the media’s ability to protect sources and gather newsworthy information in the public interest—Kaplan responded by basically saying, “Sir, this is federal court. Take your state shield law and shove it. Disobedience of a federal court order can constitute a crime.” (I’m paraphrasing.)

What’s more, Kaplan told Jassy—and I’m quoting verbatim this time—“the existence or level of First Amendment protection depends upon whether Mr. Vary was acting as an independent journalist as opposed to someone writing to achieve some purpose of another person, in this case perhaps Mr. Rapp.” That’s a pretty strange, concerning interpretation of the First Amendment. To support the notion that a friendship between reporter and source might diminish First Amendment protections, the judge nodded to an old case I once covered and had completely forgotten about until seeing the citation. That would be Chevron v. Berlinger, wherein filmmaker Joe Berlinger was forced to give Chevron more than 600 hours of raw footage taken for a documentary on oil pollution in Ecuador. The judge in that case? Kaplan himself.

• A federal judge in New York refused an attempt by the gun industry to declare unconstitutional a law that holds gun makers civilly liable for public nuisance. Expect the case to be appealed and further set the contours on state powers. It’ll be interesting to watch how higher courts explore federalism and wrestle with both gun and abortion restrictions in the coming years.

• Speaking of guns, an L.A. judge has concluded there's enough despicable conduct, including gun safety lapses, to allow a punitive damages claim alleged against producers of Rust by the script supervisor Mamie Mitchell. Here’s the ruling.

• Last week, I wrote about an emergency petition to the Supreme Court after the 5th Circuit lifted an injunction on Texas’ social media law. The petition is still pending, but on May 23, the 11th Circuit mostly upheld an injunction on Florida’s similar law interfering with the moderation decisions of social media platforms. This represents a circuit split and may boost the odds of SCOTUS intervention.

• Since most cases are sent to arbitration, it’s remarkable anytime that doesn’t happen. Jon Gruden has survived the NFL’s bid to make private his case over what the league allegedly did to cause his firing as head coach of the Las Vegas Raiders.

• The obligatory mention of Elon Musk this week: A shareholder suit alleging his talk of “bots” on Twitter represents market manipulation.

• Finally, a consequential antitrust trial concerning the Justice Department’s attempt to block Penguin Random House from acquiring Simon & Schuster will go to trial in August… so long as Democrats don’t get their house in order. Which probably means it’s going to trial in August. The judge in the case is Florence Pan, who Joe Biden has nominated to the D.C. Circuit Court of Appeals. She still needs to be confirmed, though, which means that for the time being, she’s at the district level and can oversee a trial.