Stripper lacks class (status, that is)

October 20, 2011

She take my money, well I’m in need
Yeah she’s a triflin’ friend indeed
Oh she’s a gold digger way over time
That digs on me

An exotic dancer by the stage name “Ms. Behaved” sought to be a class representative in a class action against Fantasy Topless in Colton, California. Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011). Beachemin brought suit against Fantasy Topless in an increasingly-common class action claim against strip clubs — alleging that the club misclassified the dancers as “independent contractors” as opposed to employees. The claim further alleged that as employees, the club failed to pay the dancers minimum wage and forced them to share tips with the management.

Fantasy Topless succeeded in knocking out Beachemin because she was not a proper member of the class she purported to represent.

It is well-settled that Plaintiff must be a member of the class for which she seeks class certification, in order to satisfy both the typicality and adequacy prongs of Federal Rule 23 class certification requirements. “[A] class
representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” (Order at 5)

Ms. Beachemin defined the purported class as follows:

[a]ll individuals, who at any time from the date four years prior to the date the Complaint was originally filed continuing through the present, worked as an exotic dancer at Fantasy Topless in Colton, California, but was designated as an independent contractor and therefore, not paid any minimum wages. (Order at 5-6).

Unfortunately for Ms. Beachemin, the court found that she wasn’t exactly a member of the class that she purported to represent. The Defense showed that Beachemin was never actually hired at the club, she never signed a “Dancer Contract” with the club (as all dancers were required to do), she never had a dancer license from the City of Colton, as all dancers are required to do. See Order at 6-7. The evidence showed that she only tried out to be a dancer, and only performed one dance for approximately three minutes. On the other hand, Beachemin testified that she worked at the club for two days, for a total of less than eight hours. The court was not persuaded and denied the Plaintiff’s motion for class certification.

Despite the Court’s cold reception to Ms. Beachemin’s claim to represent the class, the Court did not seem hostile to the claims themselves.

Plaintiff has accordingly failed to meet her burden of proving that she is an adequate class representative and that she possesses claims typical of the class. There is no indication that Plaintiff ever signed an independent contractor agreement, Plaintiff was never paid by Defendants, and Plaintiff was not forced to share her few dollars in tips with Defendants or any other Fantasy Topless employee. As such, she could not have been misclassified as an independent contractor, like the remainder of the Purported Class, and she suffered no injury from the Defendants’ tip-sharing policy, unlike the remainder of the Purported Class. This Court does not wish to unduly hamper the potential success of the rest of the Purported Class by approving Plaintiff as class representative when she appears not to fall within the her own definition of the Purported Class. The Court expresses no judgment on the likelihood of obtaining class certification on the basis of the above-described claims with a different member of the Purported Class serving as class representative. (Order at 8)

I ain’t sayin’ she a gold digga. But she does sound like someone looking for an easy payday. The judge saw through it, but once the lawyers find a dancer who was a proper class representative, they may find greater fortune. While most strip clubs traditionally classify their dancers as independent contractors, the employee vs. independent contractor analysis is trending against the clubs. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011); Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139 (D.D.C. 2011).

Strip club owners need to make sure to cover their asses. Just like the protagonist in Golddigger sings “we want prenup,” dance club owners need to have their relationships papered — and papered right. And, if it costs a little more to classify a dancer as an employee vs. an “independent contractor,” they might just need to bite that bullet. The decisions are heavily trending in that direction, and the consequences can be quite expensive.


Give it a rest already – Myths and Facts about mass copyright litigation

September 29, 2011

by Vaughn Greenwalt

The latest criticism of mass-copyright litigation follows the same mantra of previously-pissed patrons: “I know I stole your porn but I’ll be embarrassed if anyone finds out so you can’t sue me!” Cut the crap already, “shame” is not a legal defense.

Lets play fact or fiction with the latest misleading article which was, oddly enough, endorsed by the EFF:

1. FACT: “The lawsuits name ‘Doe’ defendants until they can unearth the true identities of those accused of downloading porn through their Internet providers.”

Naming Doe defendants is the only way to bring suit against thieves who steal Copyright protected works over the Internet. The identities of those thieves is only ascertainable once the personally identifiable information associated with the thieves Internet Protocol address (“IP address”) has been subpoenaed.

The industry isn’t blackmailing thieves with the prospect of naming a Doe defendant, it is the only legal course to obtain requisite discovery.

2. FICTION: “The adult entertainment industry has dubbed [John] Steele the ‘Pirate Slayer.’ Steele calls the lawsuit a simple defense against copyright theft.

Fact: Steele named himself “Pirate Slayer,” and most of the industry mocks him. When he showed up to a conference wearing a badge that said “Pirate Slayer,” he immediately gained the nickname “Buffy.” That’s what the adult entertainment industry calls him — Buffy. And it isn’t a compliment.

Every studio has separate and distinct legal counsel and thus a separate and distinct legal strategy. While I cannot speak to the strategy employed by Mr. Steele, I can speak to the strategy employed by the Editor of this blog – it is anything but simple.

Without violating my ethical duty of confidentiality and privilege, I have been in many a meeting in which special emphasis was placed on “doing it right.” Efforts to safeguard the privacy of the defendants, fairness to the defendants, an opportunity to defend before being named as a defendant, and forewarning of the suits before suits were filed. In addition, some studios offered amnesty to those who sought to protect their privacy.

3. FICTION: “The intent of these lawsuits is to get peoples’ identifying information and attempt to extort settlements out of them” – Corynne McSherry, EFF’s Intellectual Property Director.

Ms. McSherry’s dogmatic whining borders on mental illness. Perhaps she should look up the definition of “extortion.” Words mean something. This word means to obtain money or property to which one is not entitled by threats or coercion. When a copyright owner seeks redress under the copyright act, the copyright owner is seeking restitution in a manner specifically authorized under the law. McSherry should not use big words without supervision if she doesn’t know what they mean.

Copyright’s purpose is to foster the creation of creative works. The music industry has already been economically gutted thanks to the likes of Napster, Kazaa and Limewire; the porn industry is seeking to avoid that very same fate. If protection is weakened so too is the drive to create and thus all suffer (even those of us who enjoy it late at night while our partner is sleeping). If copyright protected content is freely distributed among torrenters, then studio membership is impacted, which then impacts studio revenue, which then impacts studio quality and quantity, which then in-turn further impacts studio membership, which ultimately impacts the studio’s very existence.

I hope the EFF recognizes the difference between dissent and disloyalty (I really love you guys!). However, I find it odd that the Director of Intellectual Property is tossing grenades at those who would seek to protect their own Intellectual Property.

4. FICTION: “The so-called “mass copyright” cases all follow the same format: an adult film company sues scores of anonymous defendants, alleging a particular movie was pirated using the popular file-sharing technology BitTorrent. The number of defendants can be staggering, dwarfing the scope of the music industry’s lawsuits; there were 2,100 Does named in one recent San Jose case, and 23,000 in the largest thus far in Washington, D.C.

As referenced above, every porn studio has independent legal counsel complete with independent legal strategy, while some attorneys may look for the quickest and most efficient way to make a buck for their clients, others, like my Editor, do not.

Some attorneys, while legally proper to sue 23,000 defendants in a single suit, put their law clerks through WEEKS OF PURE TORTURE to determine the location of the individual IP addresses and group them based on state and federal judicial district. Once determined, suit is brought against them in their home state and district and regularly reduces the number to less than 100 Doe defendants in any single suit.

Again, some attorneys take great pain to make litigation fair for thieves.

5. FACT: Mark Lemley is… eh…. brilliant?

I have been to many symposiums where Mr. Lemley has proposed theoretically brilliant additions to U.S. Intellectual Property Law. I have witnessed, in sheer awe, his ability to dismiss, answer and be condescending all in a single sentence.

However, Mr. Lemley’s brilliant theoretical ideas are not so brilliant when it comes to actual litigation and practice . Incredibly, Lemley provided a brilliant addition to the subject article regarding the porn industry’s torrent suits: “… it made people at the margins nervous about file sharing… people are going to think twice about doing this.” Lemley is absolutely correct in his assessment. THIS is the ultimate goal of the porn industry’s torrent litigation; not to shame the pron-viewing public (honestly, isn’t that all of us?) for their lunch money, but to deter the theft and infringement of their Intellectual Property.

The simple answer to EVERY concern opponents of mass-copyright litigation has is incredibly simple: Theft is theft – no matter the medium. STOP STEALING SHIT AND YOU WON’T HAVE TO WORRY ABOUT IT!!!!


Cheers to patriotism and logic!

September 3, 2010

By Tatiana von Tauber

Georgia Republican, Jack Kingston, deserves applause.   Why?  Because Kingston is exercising logic: he supports lowering the drinking age for military service members. 

“If you’re 18 years old, you can get married, you can sign a contract, buy a piece of property, you can do just about anything, except buy a beer,” said Kingston. “We’re telling young people, you can fly a BlackHawk helicopter, you can drive an Abram tank, you can squeeze the trigger on an M4 rifle and kill a fellow human being, but when you go back home to the officer’s club or MCO clubs, we’re not going to let you make a decision to a beer with your chicken dinner. I think that’s ridiculous and it’s an insult to the men and women who give us freedom.” (source)

Beautiful.  Now if we could get this kind of thinking to transition into other areas we can again become greater than the status quo. I say lower the drinking age all around is the ultimate goal being all 18 year olds have equal rights but one has to begin somewhere and if anyone deserves it, it’s our loyal soldiers.


Old news: Madonna Wayne Gacy settles lawsuit against Marilyn Manson

May 6, 2010

By J. DeVoy

In late December, Stephen Bier, aka Madonna Wayne Gacy, aka Pogo, settled his lawsuit against Brian Warner, aka Marilyn Manson, and various management figures from the band’s past.  Though Bier’s action sought $20 million, the Manson camp concluded it for a tidy $380,000.00.  There was one remaining issue regarding a judicial lien filed by the defendant law firm, though, which held up a final resolution.

Bier’s complaint was incredible. His claims included Manson’s using the band’s earnings to buy drugs, assorted Nazi paraphernalia, ex-wife Dita Von Teese’s engagement ring, a stuffed grizzly bear, a pair of baboons, and the skeleton of a 4-year-old Chinese girl.

This all misses the real point: If Manson should be liable for anything, it’s failing to make a single good album since 1998′s Mechanical Animals.  That album and ensuing tour were without question his high water mark, standing noticeably above the preceding and enjoyable Portrait of an American Family and Antichrist Superstar.


“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

December 15, 2009

by Jason Fischer

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon.  No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie.  (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.)  It seems that she was arrested because theater employees saw her operating a video recording device (source).  Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

TRUTH

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

UPDATE:  Cook County prosecutors have dropped the charges against Ms. Tumpach (source).  Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.


Mattel finally learns how to “chill”

October 30, 2009

by Jason Fischer

One of the chores inherent in the practice of law is that one has to read a lot of really REALLY dry court opinions. It’s always nice when you find judges out there who recognize this, and make some effort to keep it interesting. One of my favorites from law school has always been Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002). Well, this week saw an interesting footnote added to that opinion.

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90′s, called “Barbie Girl.” The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed. True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit. While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment. The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company. That’s fair use.

Everyone appeals, hilarity ensues

Hon. Alex Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line: “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.” From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on. Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat. For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here). However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up. (source)

New commercial with altered lyrics



This story was originally published on GaneshaFish.com


In Lakeland, Florida, saying “Im’ma kill me a cop one day” will get you two years in prison

August 1, 2009

by Jason Fischer

A Lakeland, FL man has been sentenced to two years in prison for recording a rap song entitled “Kill Me a Cop” (source). It seems that the local sheriff’s office considers the lyrics to be a credible threat of imminent violence — never mind the fact that the source of that “imminent” threat was in county jail on parole violation when “apprehended.”


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