The Georgia Court of Appeals commits attempted murder on American literature in “Red Hat Club” case.

April 7, 2008 reports on a case in which the Georgia Court of Appeals has committed the crime of attempted murder — of literature.

The Book – The Red Hat Club, by Haywood Smith

The case, Smith v. Stewart, 660 S.E.2d 822 (2008), arises from the book, The Red Hat Club, by Haywood Smith. For those of you who don’t know, the Red Hat Society is a real group. It describes itself as a dis-organization. It has few rules, except members must be women over the age of 50 and must wear purple dresses and red hats while they go out to lunch and flip the bird to age-ism.

The book is the story of five women who have been best friends for thirty years. Georgia, SuSu, Teeny, Diane, and Linda meet up once a month for what the author’s website describes as “a delicious monthly serving of racy jokes, iced tea and chicken salad, baskets of sweet rolls, the latest Buckhead gossip, and most of all–lively support and caring through the ups and downs of their lives.

The drama to the story kicks in when Diane finds that her husband has purchased a condo for his mistress with the family’s retirement funds.

[T]he Red Hats swing into action and hang him with his own rope in a story that serves up laughter, friendship, revenge, high school memories, long-lost loves, a suburban dominatrix, and plenty of white wine and junk food. From the 1960s to the present, The Red Hat Club is a funny, unforgettable novel that shows the power women can find when they accept and support each other. (source)

Google Books). provides some excerpts from the work. The whole book isn’t there, but you can get the picture by scanning a few pages. More importantly, you can read some of the introduction to the character, SuSu by reading here.

Enter the character, SuSu, and the real-life woman, Vickie Stewart

The fictional character, SuSu, shares some key similarities with the real woman, Ms. Vickie Stewart. SuSu and Stewart both graduated from the same high school, and they both lost their first husbands to car accidents and they both had a hard time collecting the insurance settlements due to the interference of a subsequent lover. Both became flight attendants later in life and SuSu’s friends in the book call her the “world’s oldest stewardess.” (source).

Despite the resemblance between SuSu and Ms. Stewart, SuSu has many unflattering personality characteristics, which Ms. Stewart denies sharing with SuSu, and to which Ms. Stewart takes offense. SuSu is an Atheist, a “right-wing reactionary”, a drunk, and is very promiscuous. The book says, for example, that when SuSu was on a layover, the term was “a double entendre of galactic proportions.” (personally, I think “Atheist” is a compliment, but that’s me).

Ms. Stewart and the book’s author have, apparently, been life-long friends. That probably ended when Stewart filed suit against Ms. Smith for defamation. Stewart claims that the character identifies her, and defames her.

The Case

Stewart filed suit against Smith, St. Martin’s Press, and the secondary publishers, asserting claims for defamation, invasion of privacy, and infliction of emotional distress. Stewart claimed that there were so many significant similarities between her life and that of SuSu that they would lead a “reasonable person who knows [her] and who reads the book to reasonably conclude that the character SuSu is Vickie Stewart.” The complaint also charged that, as a result, Stewart is falsely depicted as an “alcoholic slut who drinks while working as a flight attendant” and that such depiction is defamatory per se. Smith v. Stewart, 2008 Ga. App. LEXIS 393 (Ga. Ct. App. 2008)

All of the defendants moved for summary judgment on the ground that the book is a work of fiction. “They also argued that Stewart could not establish the facts necessary to sustain her claims and that the novel could not reasonably be understood to be stating actual facts of and concerning Stewart. ” Id.

Stewart filed her own motion for partial summary judgment and showed that Smith knew about the key events in Stewart’s life, told Stewart that her life story was interesting, and that she had used information about Stewart’s life to create the SuSu character. Smith admitted that she used details of Stewart’s life for the character, but that she fabricated other events and details, and based some other parts of SuSu on other people.

In this case, in addition to the numerous unique facts about Stewart which Smith used to create SuSu’s character and background, as outlined above, the book includes many other references to distinct, albeit more common, similarities between Stewart and SuSu. These similarities include their propensity for being chronically late, their hair color (red/auburn), their chain-smoking and smoker’s cough, and the descriptions of their parents’ occupations and their childhood homes, as well as other facts about Stewart that were not matters of public knowledge until the publication of the book. In fact, the court trial found at least twenty-six specific examples of similarities between the two. As noted above, these similarities led many readers to immediately conclude that SuSu was based on Stewart.

Further, the defendants have conceded that SuSu was inspired by and based in part on Stewart, that there are numerous similarities between Stewart and SuSu, and that SuSu is recognizable as Stewart. The defendants argue, however, that there are also many differences between SuSu and Stewart, such as their names and the names of their friends, and the fact that, unlike SuSu, Stewart was not a high school cheerleader or a member of a sorority and does not belong to a group called The Red Hat Club. Those differences, however, merely create a jury issue as to whether the character of SuSu was a portrayal of Stewart. Id. (citing Fetler v. Houghton Mifflin Co., 364 F2d at 653-654).

Under these circumstances, Stewart should be allowed the opportunity to prove that, despite the fictional label, the character of SuSu bears such a close resemblance to Stewart that a jury could reasonably conclude that the character was intended to portray her. Whether the book was actually understood by third parties to be about Stewart is, of course, a question of fact for the jury.

But it is “fiction”

It is a common lay-person’s error to think that labeling something as “opinion,” means that it automatically loses any ability to be defamatory. While opinion is always protected and can never be defamatory, merely labeling it as such does not give it a magic blanket of legal protection. Conversely, failing to label something as opinion does not strip it of its First Amendment protection.

Similarly, while fictional events and characters are per se not defamatory, the mere label fiction does not act as a magic talisman against a defamation suit. “In other words, the test for libel “is not whether the story is or is not characterized as ‘fiction,’ or ‘humor,’ but whether the charged portions, in context, could be reasonably understood as describing actual facts about the plaintiff or actual events in which she participated.” Id. (citations omitted.)

The Secondary Publishers

The court avoided at least one very dangerous precedent. It held in favor of the secondary publishers: Those who published the audiotaped, internet, and large-type versions of the book. The court recognized that there was no evidence of negligence on their part.

Personally, I am not sure how anyone could hold ever a secondary publisher liable by applying a mere negligence standard. Imposing a duty of care on a re-publisher to independently verify facts, or fact-based fiction, in a novel would seem to be a judicial declaration that secondary publishers would need to go out of business altogether.

Defamation of character based on characters

Defamation cases brought as a result of movie and book characters are not all that uncommon. See, e.g., Davis v. Constantin Costa-Gavras, 654 F.Supp. 653 (S.D.N.Y. 1987). In that case, the SDNY held that due to the plaintiff’s status, he needed to demonstrate actual malice in order to prevail in a defamation case based upon a fact-based fictional character in the movie Missing. Failing to do so, the complaint could not go forward. Additionally, there were issues in that case (although I do not believe that they were dispositive) with regard to the dramatized character actually identifying the plaintiff.

In Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980), the Second Circuit came to a contrary opinion. In that case, the defendant published a book called “Match Set,” about a transsexual named “Melanie Geisler,” who engaged in lots of weird sex and in rigging tennis tournaments. A real girl by the same name was none too pleased, filed suit, and the 2d Circuit held that there were sufficient grounds to allow the case to get to a jury.

Both of these cases came to logical conclusions — unlike Smith v. Stewart. In Davis, would be awfully strange for a man who doesn’t share the name of a character to complain about the portrayal of a fictional character in a film who happened to share his common first name.

However, in Geisler, given the fact that the name “Melanie Geisler” isn’t exactly common, it seems reasonable to let a jury decide whether or not a fictional character was a defamatory portrayal of a real girl by the same name. The burden upon the author in that case was relatively low — take a little time to make sure that there is nobody out there by that name.

Commentary on Stewart v. Smith

Stewart v. Smith departs from this logical trend and creates some miserable law. While I agree that inaccurately describing Ms. Stewart (or anyone else) as a drunken, whoring, nut-case is likely defamatory, the book does not describe Ms. Stewart as such.

The real issue that the Georgia Supreme Court should cover, if this case is appealed, is to educate its lower court on the difference between a character being based upon someone and a character identifying and describing someone.

Anyone who has ever written a piece of fiction understands that there is no such thing as a truly “invented” character. From the Bible to Borat, authors of works of fiction base the events and people in literary works on real events, people, and things. No piece of fiction is woven from pure wool, but is rather a quilt of the author’s experiences, imagination, conscious, and subconscious.

The character SuSu is a fictional character inspired by real people, places, and events. Nevertheless, the book is clearly a work of fiction. You can take a scan of excerpts from the book here on Google Books). The centerpiece in the idiocy of this decision is found here:

The record shows that Smith based much of the book upon true stories, some of which actually involved Stewart, that she set the action in actual restaurants, hotels, clubs, and other buildings located in and around the city of Atlanta, and that she researched the details of the book to ensure their accuracy and to add “credibility” to the book. And the book is not just a “light-hearted romp” that simply describes a few “implausible” antics by the main characters; it also includes stories about real adult issues, including adultery, divorce, spousal abuse, mid-life crises, deceit, disappointment, and regret. In fact, in an e-mail message to a fan of the book, Smith admitted that her “books deal realistically with sexuality, anger, and women in crisis who make destructive choices[.]”

Perhaps the Georgia Court of Appeals would have been happier if The Red Hat Club were written with all of the literary skill and authenticity of “Doc Hollywood.”

Despite the fact that the SuSu is based upon Vickie Stewart, no reasonable juror could conclude that this book of fiction defames Stewart. In fact, any juror that did so should be immediately forcibly sterilized so as not to further pollute the gene pool, thus causing the continued devolution of the human race from Homo Sapiens to Homo Walmartus.

The standard for fiction liability should be much higher than the low bar set by this decision. In this case, the court found that there were 26 similarities between SuSu and Stewart. So, what is the magic number of similarities required for identification? Nobody knows. Under this decision, fiction authors will need to re-edit their works, making sure to wash away indicia of authenticity from any works that might portray any character in a non-flattering light. Essentially, the entire genre of reality-based literature is at risk. The First Amendment can not tolerate such a miserable, unworkable, and unclear standard.

I, myself, am briefly portrayed in Gentlemanly Repose, and the portrayal is none too flattering. So, anyone who wants to ask “how would you like it if it was you?” can kiss my Sicilian ass. It has been me. I recognize that Gentlemanly Repose is a book of literature, and that the author took a little dramatic license with his portrayal. I am happy to have been a piece of mortar in the literary edifice he constructed, and I’m not whining for a monetary handout from a court.

If this moronic decision stands, any author who sets a story in Georgia, talks about a Georgian, or even sells a book of reality based fiction in the State of Georgia, will have to carefully vet each character to make sure that it doesn’t resemble anyone at all, lest some unethical sleaze comes knocking, looking for a piece of the author’s success. The average book contract pays very little. We’re talking four figures here. What will become of our literary landscape if publishers and authors need to whitewash all literature in order to avoid the next Stewart? Is our culture not dumbed down enough by the marketplace? Does the fear of liability need to further dowse the flames of American creativity?

Ms. Stewart should, since she denies being an Atheist, pray to her god that her victory is reversed on appeal. If this case really was about her wanting to defend her good name, she should consider how she would like to be remembered. Would she rather be remembered as the basis for a fictional character? Or would she rather that her legacy be that of the ass-hat who killed American literature?

HT: Debra Weiss

Another Borat Lawsuit Dismissed

April 3, 2008

In a 13-second segment of the movie, the man, Jeffrey Lemerond, visibly alarmed or frightened, is shown running and shouting “Go away!” and “What are you doing?” at the intersection of Fifth Avenue and 57th Street, as Mr. Cohen’s character, Borat Sagdieyev, a fictitious journalist from Kazakhstan, chases him while trying to hug strangers. Mr. Lemerond was shown twice in the movie and once in a trailer, although his face was scrambled and rendered blurry in the trailer.

In a lawsuit filed last June, Mr. Lemerond sued 20th Century Fox, which distributed the film, arguing that the movie had improperly used his image, without his consent, in violation of a century-old state civil rights law.

In general, the civil rights law prohibits using a private person’s name, portrait or likeness for “advertising purposes or the purposes of trade” without the person’s written permission. But as a judge, Loretta A. Preska of United States District Court in Manhattan, noted in a nine-page ruling on Monday, state courts have interpreted the ban narrowly, as “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.”

The ban does not apply to “newsworthy events or matters of public interest,” and “newsworthiness” has been taken to include “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”

Does Borat deserve the same protection as, say, a reporter for The Times? (Readers, be gentle.)

Judge Preska skirted that question, saying the court should be wary about judging what is newsworthy or of public interest. She wrote:

Of course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. At its core, however, “Borat” attempts an ironic commentary of “modern” American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from “ordinary” Americans. Indeed, its message lies in that juxtaposition and the implicit accusation that “the time will come when it will disgust you to look in a mirror.” Such clearly falls within the wide scope of what New York courts have held to be a matter of public interest.

Mr. Lemerond vigorously disagrees and is considering filing an appeal, his lawyer said.

“We believe that New York law does not allow a corporation like 20th Century Fox to pluck an otherwise anonymous citizen out of a crowd and subject him to public humiliation in order to make a buck,” said the lawyer, Eric Hecker, of the firm Emery Celli Brinckerhoff & Abady. (source)

Ed Stross – Michigan Mural Case Update

February 25, 2008

I posted on the Ed Stross mural case last night, but hadn’t yet located the decision. Now that I have reviewed it, here is my full analysis.

In 2005, artist Ed Stross painted a mural on the outside of his studio that has been described as “a take on Michelangelo’s ‘Creation of Man.’ It depicted Eve with a bare breast and has ‘love’ written on it.”

The bare breasts are part of a rendition of the biblical “Eve,” as depicted in the “Creation of Man” work at the Sistine Chapel by artist Michelangelo. He called his the “Creation of the spirit of Roseville.” Each letter of “love” is depicted on open pages clasped by angels. (source)

Roseville, Michigan’s sign ordinance prohibits display of genitalia and lettering.

In February of 2005, Stross was sentenced to 2 years probation and 30 days in Jail by Judge Marco Santia for his transgressions against society. (source) Santia refused to allow Stross to raise First Amendment defenses and refused to allow the sentence to be suspended pending appeal. (Judge Santia, come on down and accept your ass-hat award).

Fortunately, the Michigan Court of Appeals reversed, stating that such a move would violate Stross’ First Amendment rights.

Interestingly enough, the case was not about the bare breasts, but on the lettering.

The Court of Appeals noted, intelligently, that breasts are not “genitalia.”

We note that the mural did not contain genitalia under the plain meaning of that term. Random House Webster’s College Dictionary (2001) defines “genitalia” as “the organs of reproduction, esp. the external organs.” Because breasts are not reproductive organs, they are not properly considered genitalia. Stross v. Roseville at 4 note 5.

Commercial or Non-Commercial Speech?

The first question to answer in these kinds of cases is what level of protection should the expression enjoy? Commercial speech receives far less protection than pure non-commercial expression.

The dissenting justice wrote that the mural was commercial speech:

Although the mural may not be an advertisement in the typical sense of that term, it is located on the building in which defendant operates his art studio, bears his signature as the artist, and serves to inform the public of his talent and artistic abilities. The mural itself is an example of the product that defendant, an artist for hire, offers for sale. Moreover, the obvious economic motivation for the mural is to draw attention to defendant’s talent in hope of attracting persons in need of an artist’s service. In addition, signage not located on the wall works in association with the mural to promote defendant’s art studio and the sale of his work. (source)

This is a bit chilling — so I am grateful that this was in the dissent. Otherwise, it would likely mean that all signed art could be considered to be commercial speech.

The majority, on the other hand, declined to determine whether the mural was commercial or non commercial speech. The majority held that resolution of that question was unnecessary since the ordinance violated even commercial speech rights under Central Hudson Gas & Electric Corp. v. Pub. Service Comm’n. of New York, 447 US 557, 566 (1980). Accordingly, if the ordinance violates commercial speech rights, it certainly violates non-commercial speech rights.

Why does the ordinance run afoul of commercial speech rights?

Under Central Hudson , courts must ask:

(1) Does the speech concern a lawful activity and is it not misleading, so that it falls within the protections of the First Amendment, and (2) is the government’s restriction justified by a substantial governmental interest? If those two questions are answered “yes,” then we must go on to ask: (3) Does the regulation directly advance the asserted governmental interest, and (4) is the regulation more extensive than necessary to serve the governmental interest.

Under this test, the Court of Appeals looked at the genitalia prohibition and the lettering prohibition, splitting the difference. The Court found that it was reasonable for the City to ban genitalia on signs, but not lettering.

In a heartening statement, the Court said “There appears to be no dispute that the mural is protected under the First Amendment.” No further discussion.

It then went on to examine the governmental interest in the regulation. The regulation’s stated purpose was to

“protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs.”

Finding these interests to be legitimate, the Court examined whether the ordinance advanced those legitimate interests.

Plaintiff argues, and the circuit court determined, that the mural is located at a well-traveled intersection, and that the restrictions are clearly related to avoiding traffic hazards. The mural is 1,100 square feet and covers most of the 50-foot side of the building housing defendant’s art studio. Considering the overwhelming size of the mural, the inclusion of genitalia in the mural could very well distract motorists and cause aesthetic concerns. The inclusion of lettering could also distract motorists, depending on the size and quantity of the lettering. For example, a mural consisting principally of words could cause a traffic safety hazard if drivers shifted their focus to reading the mural. Thus, it appears that the restrictions directly advance the asserted governmental interests.

Accordingly, the Court agreed that 10 foot tall penises might cause traffic hazards and negatively impact the City’s aesthetics. Accordingly, there was a “reasonable fit” between the genitalia provision and the stated legislative interest. However, as noted above, this did not impact Mr. Stross’ case, because the Michigan Court of Appeals understands anatomy to a greater extent than Kevin Martin or Deborah Taylor-Tate (they think that the buttocks are a sexual organ).

The Court gave a bit more thought to the restriction on lettering.

While prohibiting lettering to a certain extent may be a reasonable means of achieving the goals of traffic safety and aesthetics, prohibiting lettering completely appears to be an excessive restriction compared to the interests sought to be advanced. Indeed, it does not appear that the word “Love” on the mural would distract motorists or detract from the aesthetic value of the neighborhood. Thus, we conclude that the complete ban of all lettering is too restrictive to promote the goals of traffic safety and aesthetics and is not narrowly tailored to achieve these objectives. Accordingly, the restriction prohibiting lettering is an unconstitutional regulation of speech, infringing on defendant’s First Amendment protections.

Because the jury was permitted to convict defendant based on the unconstitutional provision prohibiting lettering, his conviction must be reversed. “[W]here a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.” Griffin v United States, 502 US 46, 53; 112 S Ct 466; 116 L Ed 2d 371 (1991). Thus, because the jury could have convicted defendant based on either the unconstitutional lettering provision or the provision prohibiting genitalia, we reverse his conviction.

The Chicago Tribune reports that the town may appeal to the Michigan Supreme Court. (source) The only justification for such an appeal would seem to be a City governed by those who are completely and irrationally obsessed with “being right” as opposed to those who uphold their oath of office. See, e.g., Daytona Beach.

Majority opinion here. Dissent here.

Sammy & Me

February 14, 2008

I still hold out hope that Samuel Alito will become what Scalia should have been — a jurist of which Italian Americans can be proud.

Today’s news gives me a little hope.

Justice Samuel A. Alito Jr. criticized The Sopranos television show yesterday for stereotyping Italian-Americans and his home state of New Jersey.

In a talk at Rutgers University, Alito complained of “an insidious connection popular culture often makes between being a gangster and being Italian,” the Trenton Times reports. (source)

It is for that precise reason that I personally believe that The Sopranos is a bigoted and classless TV show. That being said, I’ve never tried to have it banned from the airwaves. I have, however, banned it from my home.

Nobody seems to get it… except my pal, Sammy.

Borat Case Dismissed on Jurisdictional Grounds

January 30, 2008

Kathie Martin, an etiquette teacher in Birmingham, who appeared in the Borat movie, brought suit against the filmmakers because she didn’t like how she was portrayed in the film. The media has been buzzing with news of the dismissal, which isn’t as powerful of a victory for our favorite Kazakh reporter as it might seem.

The Alabama Supreme Court dismissed the claim due to the fact that a forum selection clause in the contract between the filmmaker and Martin provided that New York was the only forum in which disputes would be resolved. Martin has apparently filed something in New York. Stay tuned.

FCC Commish Tate — Asshat of the Week

January 26, 2008

This post comes with a soundtrack provided by the Meatmen. Listen to this song as you read this entry.

Last week, the FCC imposed a fine of $1.43 million against ABC for daring to show the side and back of a naked woman getting into a shower on NYPD Blue. (source)

The FCC’s briefing said:

“Although ABC argues, without citing any authority, that the buttocks are not a sexual organ, we reject this argument, which runs counter to both case law and common sense.”

Lemme get this straight…. case law determines what is a sexual organ? And common sense tells us that the buttocks are a “sexual organ”????

Here is the comment that gets Ms. Tate the Asshat award:

“Our action today should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly.” (source)

If the FCC wants to rely upon case law, here is some for them:

“Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.” ACLU v. Gonzalez, 2007 US DIST LEXIS 20008 (E.D. Pa. 2007)

And if we want to speak to the issue of common sense… I hope that Commissioner Tate is run out of Washington as soon as possible. Any person who thinks that the sight of buttocks is “harmful material” from which children need protection (and that the “laws of the land” do not include the First Amendment) has no right to serve this country. Perhaps once her neo-con benefactor is finally out of office, a nice government in Iran or North Korea would have use for her services?

Buttocks… buttocks… I love buttocks…. ” (The Meatmen, We’re The Meatmen… And You Suck! – Touch And Go Records 1983)

Related post: Fox v. FCC – Is Common Sense and Liberty Coming Back Into Vogue?

Also, see Dr. Marty Klein’s take on this issue here: Obsessed With Asses, FCC Screws America

Another Borat Lawsuit

December 5, 2007

Now the driver’s ed instructor from the Borat film has filed suit. This film will be featured prominently in my entertainment law class. (Source)

UPDATE: A plaintiff in an earlier-filed Borat suit not only had his case dismissed, but he now owes Fox $43,775 for their attorney’s fees! Kudos to the judge who had the chram to impose this penalty for frivolous litigation. (source)

Red Hot Chilli Peppers dont want Showtime Californicating up their Rights

November 20, 2007

The Red Hot Chilli Peppers are suing Showtime for naming their latest series “Californication.” Showtime’s producers claim that the Red Hots didn’t coin the term though. (complaint)

“Apparently in the ’70s there were bumper stickers that said ‘Don’t Californicate Oregon,’ because Californians were coming up there, and I just through it was a great, great title for this show,” said [Producer Tom] Kapinos. (source)

As far as the claims go:

The lawsuit alleges unfair competition, dilution of the value of the name and unjust enrichment, claiming the title is “inherently distinctive, famous … and immediately associated in the mind of the consumer” with the Red Hot Chili Peppers. (source)

The case seems like a tough call.

It is unlikely that the Red Hots will be able to show trademark rights in the name of a single album. Generally speaking, a title of a single work is not subject to trademark protection. That probably kills the dilution claim. But, that doesn’t squash the other claims.

In Rosa Parks v. Laface Records, 329 F.3d 437 (6th Cir. 2003), the band OutKast was taken to task by the civil rights heroine for naming one of their songs after her. There was no real artistic reason to name the track after her, and thus the court ruled in her favor.

Ultimately, I don’t think that Mr. Kapinos’ claim about hearing the term in the 1970s will matter — even if it is true. This is going to come down to whether the title will mislead consumers into a belief that the Red Hots have something to do with the show or that they sponsor or endorse it in some way. In this day and age where everything on TV or in a movie is a product placement, consumers might very well come to that conclusion. Whether the Red Hots prove trademark rights or not, Showtime’s actions still might amount to unfair competition or unjust enrichment.

Professor Dave Fagundes provided this interesting commentary:

In a somewhat ironic backstory, about a year ago, the RHCPs were nearly sued by Tom Petty on the copyright theory that “Dani California”, one of the songs at issue in the current matter, infringed Petty’s musical work “Mary Jane’s Last Dance”. A Delaware DJ showed that the chord progressions, lyrical themes, etc., of the two songs were largely identical. Petty eventually decided against litigating, however, expressing the refreshing but rare opinion that he didn’t care much if people copied his songs and didn’t want to add to the volume of lawsuits over pop music:

If “karmic imbalance” were an affirmative defense to trademark infringement, the RHCPs would be up a creek.

For the audio comparison of the Petty and RHCP songs, click here.

Fantasy Baseball Gets First Amendment Protection

October 17, 2007

In 2006, the Eastern District of Missouri held that the operator of a Web site offering fantasy baseball games using Major League Baseball player names and statistics did not violate the right of publicity or copyright rights of the players. C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006).

Undaunted, MLB appealed and was smacked down yesterday. See C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., __ F.3d __ (8th Cir. 2007). While there are tangential issues, the important one in this case is the court’s balancing of MLB players’ publicity rights vs. The First Amendment.

An action based on the right of publicity is a state-law claim. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566 (1977). In Missouri, “the elements of a right of publicity action include: (1) That defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” Doe v. TCI Cablevision, 110 S.W.3d 363, 369 (Mo. 2003), cert. denied, 540 U.S. 1106 (2004). (source)

Many celebrities, wealthy, and otherwise overly-privileged citizens have this bizarre belief that their status means that the law does not apply to them. (example) Unfortunately, courts occasionally get star-struck and agree with them. Not this time. The Eight Circuit blessedly gave the MLB a lesson in First Amendment law — the Right of Publicity does not trump the First Amendment.

The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations, see Zacchini v. Scripps-Howard Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to the latter. First, the information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone. It is true that CBC’s use of the information is meant to provide entertainment, but “[s]peech that entertains, like speech that informs, is protected by the First Amendment because ‘[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.’ ” Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 969 (10th Cir. 1996) (quoting Winters v. New York, 333 U.S. 507, 510 (1948)); see also Zacchini, 433 U.S. at 578.

Another Family Guy Suit

October 11, 2007

Seth MacFarlane just can’t seem to keep out of trouble – especially when hypersensitive overreacting IP owners want to stifle creativity in its crib by suing him (bias alert! bias alert!).

In a 2003 episode of Family Guy, When You Wish Upon A Weinstein, Peter Griffin sings a song to the tune of “When You Wish Upon A Star” called “I Need A Jew“.
Read the rest of this entry »

Defense Files New Motions in Panhandle Obscenity Case

October 3, 2007

In an ongoing obscenity prosecution, Ray Guhn’s attorneys (disclaimer, my law firm represents Mr. Guhn), filed three key defense motions.

In order to sustain a prosecution for obscenity, the government must satisfy the Miller Test, which is:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions [1] specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

With respect to the “taken as a whole” question, the defense takes the position that a website is the “whole” under the third Miller prong. This seems proper, given that if you can’t tear one picture out of a book in order to prosecute for obscenity, why should you be able to pull selected images from a website?

In the two other defense motions, the defense team “argued that the state’s obscenity law does not apply to online content; and asserted that the state’s obscenity law runs afoul of privacy guarantees under the state’s constitution as it applies to the Internet.(source) ”

I’d like to comment a lot more, but given that this is ongoing litigation involving my firm, I’ll limit this to this brief recitation and the external link.

Oklahoma City Bombing Defamation Case

September 26, 2007

Terry Nichols’ brother filed suit against Michael Moore for defaming him in his film, Bowling for Columbine. In that film, Moore reported that

The court dismissed and the Sixth Circuit affirmed the dismissal on the grounds that the statements were substantially true, and that Mr. Nichols was a “public figure” and the plaintiff failed to show actual malice. Nichols v. Moore.

The film reported that inter alia Michael Nichols made practice bombs before his brother and Timothy McVeigh carried out the Oklahoma City bombing, and that he was arrested on an explosives charge related to the bombing. Read the rest of this entry »

Tucker Max and Section 230

September 25, 2007

Tucker Max publishes books, websites, and blogs that some people find humorous. I certainly do.

He also owns a website upon which one finds online forums in which people all over the world engage in discussion. I have never read them, but I presume that they trend to the juvenile, disgusting, and any other nasty adjective you can think of. I presume that Mr. Max would find great pride in this description.

As usual, someone took offense and filed a defamation claim against Max for statements published by others on his web forum. 47 U.S.C. Section 230 has been on the books for nearly a decade, and virtually every court has held it to be an absolute bar against claims of this type against message board operators. Nevertheless, the plaintiff in this case joins a long line of disappointed parties who find out that Section 230 is alive and well and not going anywhere.

The Third Circuit held, in pertinent part:

We agree with the District Court that DiMeo’s defamation claim is barred by 47 U.S.C. § 230. Section 230 provides, in relevant part, that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) (emphases added). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3); see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (stating that § 230 “‘precludes courts from entertaining claims that would place a computer service provider in a publisher’s role,’ and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions–such as deciding whether to publish, withdraw, postpone, or alter content.’” (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). (source)

When will lawyers begin to learn the art of client control? Why was such a patently unsupportable case filed in the first place? The Plaintiff is fortunate that he escaped with nothing more than a dismissal. Max should have counterclaimed and sought sanctions under Rule 11. It is a testament to his mercy that he did not. If I were, hypothetically speaking of course, involved in such a case, I would not be so charitable.

Bob Marley Ringtone Case Strikes a Nasty Chord

September 16, 2007

Last month, Verizon Wireless purchased the right to be the exclusive provider of ring tones from the Bob Marley music catalog from Universal – who owns the rights to Marley’s music.

The Marley estate objected, claiming Verizon failed to get permission from the singer’s family before making use of his music and likeness on its Web site. The estate threatened to sue for trademark infringement. (source).

Most of the coverage of this case is a bit ham-fisted and confused. I won’t even cite to the awful New York Times coverage of the case because it is so poor. You would think that the New York Times would have better coverage, but what can you say about the paper that tied the hook and sinker to the Bush line on the Iraq War? Gray lady my ass.

Politics and media criticism aside, I will attempt to clarify some of the legal issues in this interesting case.

Read the rest of this entry »

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

August 24, 2007

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)