Clearwater Bait Shop Wins Round One

Posting the First Amendment is a code violation in some parts of this here wang.

A Clearwater, Flori-duh bait shop has won its first round in a First Amendment fight over a mural on its wall.

U.S. District Judge James D. Whittemore issued an injunction forbidding Clearwater from levying any more fines on the Complete Angler for its mural while the case is in litigation. The city also can’t fine the shop at 705 N Fort Harrison Ave. for covering its mural with a banner displaying the First Amendment.

The tackle shop’s owners, Herb and Lori Quintero, say a mural of game fish on an outside wall of their store is art. The city says it’s an unauthorized sign and a code violation. (source)

Affiliate Liability

Eric Goldman gives us an overview of how affiliates can get their programs in trouble.

Getting Under-30s Interested in the First Amendment

by Jason Fischer

It’s a daunting task, but one District Judge in Rhode Island thinks he has found a way to catch the interest of the under-30, computer-oriented generation: Link to YouTube videos, which play music that is ironically related to the facts of a case. (source)

“The novelty of citations to YouTube and the idea that you could access music as you plod through the opinion hopefully makes a kind of dry subject a little more fun and interesting,” [U.S. District Judge William E. Smith] wrote in an e-mail. “It seems to me that judges should look for ways to get people interested in important subjects like the First Amendment, to get them talking about it. Hopefully this will accomplish that goal in a small way.”

We here at the Legal Satyricon agree that this is a good idea, and offer the following for your enjoyment while reading this post.

How Much is Your Virginity Worth?: Lessons in Economics and Federalism

by Jason Fischer

A twenty-two year old Nevada woman has placed her virginity up for grabs in an online auction, where the bidding has reportedly reached over $3.7 million. The transaction has caught the attention of some religious groups, who would like the federal government to intervene. However, because prostitution is legal in the state of Nevada, this particular sale of personal services will not be stopped, even though it may be advertised on the Internet – which can be accessed in states where prostitution is illegal.

One astute legal scholar had this to say about the matter:

It’s a First Amendment issue. You can advertise goods or services that are illegal where they’re advertised but legal where they’re performed. What’s she’s advertising is as legal as toast with the crust cut off where she is. (source)

* * *

WARNING, RANT ALERT

(what follows is the individual opinion of the author)

Here again, we have the latest example of some whackjob in the Bible belt confusing legality with morality. In case you, the reader is confused, they are not always the same thing, and arguably never should be – at least at the federal level.

The idea here is that “morality” is another word for the standards of a particular community. Those standards are subjective, i.e., everyone has their own idea of what is moral and what isn’t, and no one is wrong for having a different idea than their next-door neighbor – with a couple of rare exceptions, like pedophiles. Generally, you can get a group of people together who agree on a particular moral standard, regarding a particular issue. However, the larger you make the group, the less likely it is that the group will agree, and there’s no really good reason why 51% of the people should be able to dictate their subjective idea of what is moral to the other 49%.

In the United States, our system of government was designed to reflect this reality. Local governments (e.g., state, county, city, homeowners association, etc.) are the ones in the best position to, if it is absolutely necessary, pass a law/regulation that is based on the morality of the community that those governments represent. Our federal government should not ever be taking action based on some perceived moral standard. The above-described news item illustrates this point quite well.

The community of people that live in the state of Nevada have decided for themselves that prostitution is okay. They have chosen to elect officials who recognize this particular moral standard, and those officials have enacted legislation that reflects that standard. The people of Nevada are free to change their minds and elect new officials who might change the law. This scenario accurately depicts the dream of our Founders.

Outrage over some “spillage” of immorality into other communities is a weak excuse for demanding some sweeping federal standard that is contrary to the laws of Nevada. The First Amendment was written specifically to prevent this type of thing. If you don’t like it, don’t look at it – you are free to make the decision for yourself. Have the courtesy to let the rest of us do the same – for ourselves.

“Legal Weed” not allowed either…

The International Herald Tribune reports:

SACRAMENTO, Calif.: Vaune Dillmann thought the wording on his bottle caps was just a clever play on the name of the Northern California town where he brews his beer — Weed.

Federal alcohol regulators thought differently. They have ordered Dillmann to stop selling beer bottles with caps that say “Try Legal Weed.”

While reviewing the proposed label for Dillmann’s latest beer, Lemurian Lager, the Alcohol and Tobacco Tax and Trade Bureau said the message on the caps he has been using for his five current beers amounts to a drug reference.

In a letter explaining its decision, the agency, which regulates the brewing industry, said the wording could “mislead consumers about the characteristics of the alcoholic beverage.”

Mislead them? About what?

Would it surprise you to learn that this is all part of the ill-fated war on drugs? Any “drug references” on alcoholic beverages were banned in 1994 according to a spokesman for the Alcohol and Tobacco Tax and Trade Bureau.

“We protect consumers of alcohol beverages against misleading advertising and labeling,” he said.

The 2d Circuit ruled in favor of a brewer in Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998). In that case, the appellant sought to use a trademark of a frog “giving the finger” to any and all passerby on bottles of liquor. New York state held that the brewery couldn’t do that since the mark was offensive in nature. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose.

This isn’t the same thing, naturally. A reviewing court should (at the least) place this application of the regulation up to rational basis scrutiny. Anyone who thinks that “Try Legal Weed” on a bottle cap is misleading is already high. But, since when does anything done in the name of the war on drugs need to be rational?

HT to Above the Law

Trademark Bullies Abound

Two of my blogger friends recently reported on a pair of trademark bullies – trademark owners with little in the way of rights, but lots in the way of money, abusing their trademark rights as if they were “magic word patents.”

Ron Coleman reports on Moveon.org’s trademark bullying. (link). Apparently, someone made a T-Shirt with the following message:

General Petraeus has done more for this country than MoveOn.org. MoveOn.org, the worst friend a Democrat could have! Move Away from Move On! (source)

Move on sent the T-Shirt maker a nasty cease and desist letter, so she caved in because she knew that she was financially outgunned. (source) Despite her excellent defense, Moveon.org “bought the pot.” (That is a poker reference, not a drug reference).

Personally, I agree with the moveon.org ad. Nevertheless, with this singular act of squelching political dissent, moveon.org has made it damn certain that they won’t get another check from me until they apologize and make amends.

Mike Atkins reports on Starbucks’ recent trademark bullying. (link) In that case, a christian clothier made t-shirts and caps with a logo that looks like the Starbucks logo, but it has a picture of the J-man in in it. (image here). I can see how this might not be political speech, nor even a parody, but where is the likelihood of consumer confusion? There very well may be dilution, but for Starbucks to wield its corporate might like this is a little silly. Of course, its just as silly as “christians” looking to create a Starbucks-style logo with their savior on it. It speaks volumes about what has happened to christianity when the ultimate symbol of corporate greed inspires a graven image.

The LA Times sums up the issue rather succinctly:

Trademark law doesn’t confer monopoly rights over all uses of a registered phrase or symbol, however, and it wasn’t created simply to protect the trademark owner’s interests. Instead, it’s designed to protect consumers against being misled or confused about brands. The courts have repeatedly ruled in favor of parodies and critiques; that’s why www.famousbrandnamesucks.com doesn’t violate famousbrandname’s trademark. And most, if not all, of the items targeted by MoveOn were clearly designed to razz it, not to trick buyers into thinking they were the group’s products.(source)

On the whole, I like trademark law. The point of it is to avoid consumer confusion. Essentially, if you are really violating someone else’s trademark, you are either lying about the source or origin of your goods or stealing the other guy’s customers through deception. In a trademark case, an ethical lawyer is fighting for what they believe is the truth.

Of course, there are always members of the bar who fail to exercise client control – and that is when the legal system gets abused and turned into a forum for unfounded temper tantrums and the exercise of greed.

Great Reply to my “Violent Femmes Turn on Each Other” Post.

In Violent Femmes Turn on Each Other, I lament the processing of the songs from my youth into ad jingles.

The author of the Truth Be Told blog posted a great reply.

After the Beatles broke up some British journalist asked Mick Jagger, “Do you think the Rolling Stones will ever break up?” He replied something like, “Nah, but if we do, we won’t be so bitchy about it.”

Rankling over rights to songwriting credit to a cut of the t-shirt revenue is and has been nearly derigueur in the rock world for, like, ever. Right? This is why there is a need for entertainment law. Some people are better suited for clearing this stuff up.

I’m not unsympathetic to the pain of hearing a song you love being sold though. Like seeing a teenage crush looking old, world worn, and married to some repulsive creature, hearing a beloved song turned commercial is heartbreaking. But the thing to keep in mind is that as much as the song might’ve felt as if it were yours, as much as it intertwined in the ’soundtrack of your life’ the song was never really yours. It was for everybody to hear.

So, if Iggy Pop can live better courtesy of Carnival Cruise lines, I say, great. If the Dandy Warhols can build a fabulous studio of their own off “Bohemian Like You” courtesy of a cel phone company, that’s awesome. A few years back some people were giving Mike Watt hell for selling the rights to one of the Minutemen songs for a commercial. His retort was pretty clear: D. Boon’s dad needed medical care and selling the song paid for it.

I don’t listen to commercials if I can avoid them but when I do get subjected to them I think it’s better to have quality music broadcasted. I’d rather have a good songwriter getting paid than some hack who took refuge in the advertising world with his mediocre jingle writing skills. (source)

Violent Femmes Turn on Each Other

The 1980s are officially over. Well, I guess they were over 17 years ago, but don’t tell my CD collection that.

Brian Ritchie, bassist for the Violent Femmes, filed suit against vocalist Gordon Gano in the Southern District of New York claiming that he did not receive proper songwriting credit for some of the band’s works, and that (this makes me want to puke) Gano allowed the song, Blister in the Sun to be used in a Wendy’s commercial.

Dischord & Minor Threat v. Nike

In this corner — Dischord Records and Minor Threat

For you kids who might not remember, Minor Threat was the spring from which all of the Washington D.C. punk rock scene flowed, the “godfathers of the straight-edge punk movement of the early 1980’s” (source) and its leader/front man Ian MacKaye is also the driving force behind Dischord records, which gave us (in addition to Minor Threat) punk classic bands like Dag Nasty, Government Issue, Youth Brigade, the foundational Teen Idles. Of course, Dischord’s flagship band since 1987 has been Fugazi, MacKaye’s most well-known project (which is unfortunately on hiatus).