Marc Randazza about Section 2(a) changes

January 8, 2018

Marc Randazza shared his opinion regarding some recent First Amendment and Trademark cases.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a federal trademark law, which prevents certification of certain classes of marks that “may disparage” or can be “immoral or scandalous”. But at the beginning of the year, the Supreme Court found that prohibiting disparaging marks from being registered violates the First Amendment. So, Section 2(a)’s unconstitutional arrangements have finally fallen.

In his latest article on Popehat, Marc Randazza comments on two recent important cases: the Brunetti decision and the Tam precedent. Both cases include trademark registrations and the restrictions of Section 2(a). Since the Supreme Court struck down the disparagement clause, many people speculated whether the immoral or scandalous clause would survive.

Mr. Randazza notes that now, with Brunetti, we no longer need to speculate (if there is no appeal). Brunetti tried to register his trademark FUCT. But the United States Patent and Trademark Office declared that this mark is a synonym with “fuck,” making it sound vulgar, and thus conflicting with Section 2(a).

Now, the Federal Circuit has found that the “immoral or scandalous” restriction on registration is unconstitutional, a decision influenced by the Supreme Court’s Tam decision. The Brunetti court pronounced that the “immoral or scandalous” restriction was likely viewpoint-based.

The Tam decision tossed aside the government’s theories on censorship, that:

  1. Federal trademark registration scheme is a public forum that allows content-based restrictions on speech;
  2. The “immoral or scandalous” portion of Section 2(a) survived the lesser level of examination for restrictions on commercial speech.

In this case, the test was conducted. It was supposed to determine whether a mark is “immoral or scandalous” or if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable . . . giving offense to the conscience or moral feelings . . . or calling out for condemnation.”

But finally, after years of unconstitutional actions by the United States Patent and Trademark Office, the trademarks registration process has changed and today there is no “immoral or scandalous” block.


Randazza: The Legal Battle Over Andrew Anglin Continues

December 5, 2017

An article about one of Marc Randazza’s most controversial and groundbreaking cases  – a case involving the founder of a Neo-Nazi website Andrew Anglin – was published in the December issue of the Atlantic magazine.

The article, “The Making of an American Nazi”, tells the story of the founder of The Daily Stormer: the site that is arguably the leading hate site and neo-Nazi platform on the internet. Anglin is now being sued for allegedly harassing Tanya Gersh, a Whitefish, Montana, real estate agent, and orchestrating an anti-Semitic online trolling campaign against her family.

In April, she filed a lawsuit claiming that anonymous internet trolls started bombarding her family with hateful and threatening messages after Anglin wrote a post blaming Gersh for engaging in “extortion” regarding a property sale from Sherry Spencer, whose son is another white nationalist and arguably the face of the alt-right movement. In that post, Anglin shared personal details, including photographs of Gersh’s family and other Jewish citizens of Whitefish, and called on his supporters, the “Stormer Troll Army” – to “hit ’em up.”

Currently, Gersh is suing Anglin for invasion of privacy, intentional infliction of emotional distress, and violation of a Montana anti-intimidation statute. Marc Randazza is representing Anglin in this case. Anglin is also accused of unleashing a campaign against other Jewish residents of Whitefish, as well as “cyberstalking” and aggressive online trolling of other people, whose identity or views are not in line with his beliefs as a white nationalist.

It’s also reported that apart from committing the aforementioned activities, encouraging his followers and fellow nationalists to share his views online and participate in cyber trolling campaigns; Anglin allegedly continued to grow his audience and supposedly urged them to take their hate from the online to the real world.

Marc Randazza, the managing partner of the Randazza Legal Group, is representing Andrew Anglin. This lawsuit has attracted the attention of legal experts and the public not only due to Anglin’s notorious personality, but because it’s the first time that an internet troll is being sued for his actions.

However, according to Marc Randazza, a well-known First Amendment attorney and a fighter for free speech, restricting Anglin’s online trolling may set a dangerous precedent for the American legal system. As Mr. Randazza commented, Anglin “has every right to ask people to share their views, no matter how abhorrent those views are…this is the shitty price we have to pay for freedom.”


Marc Randazza protects the rights to free expression

November 3, 2017

Marс Randazza is defending the right to reproduce and distribute works that are in the public domain, pursuant to the principals of free expression and the First Amendment.

While Randazza’s client has not admitted to copying or reproducing the artwork in question, even if he did so, Marc Randazza is confident that his client’s presumable actions didn’t violate the law. “We guard freedom of expression very jealously here,” he said.

Stay tuned to find out how the case will end up.


Marc Randazza Commented on a Recent Case Against Pissedconsumer.Com Regarding Reviews About ‘Sexual Dalliances’

October 23, 2017

Marc Randazza represented PissedConsumer.com in a lawsuit involving the Law Offices of N.M. Gehi.

PissedConsumer.com is a website for online consumer reviews. The Law Offices of N.M. Gehi is an immigration law firm located in New York.

In September, the Law Offices of N.M. Gehi filed a lawsuit against PissedConsumer.com, where negative online comments about the company were posted. Naresh Gehi – the founding partner – stated that those reviews were defamatory and caused emotional distress. He requested a preliminary injunction and a temporary restraining order against the consumer website.

The comments contained allegations of “sexual dalliances”.

PissedComsumer.com had already successfully defended itself against similar cases.

Marc Randazza, the Managing Partner of the Randazza Legal Group, commented: “Moreover, even if defendant created an ‘atmosphere’ for complaints, there is no basis to suggest defendant requires them to be libelous.”

Read the full story here.

On Oct. 3, the Law Offices of N.M. Gehi dismissed its case without prejudice.


WordPress Plugin For Avvo Star Rating And Reviews

May 29, 2017

Lawyers, here are two easy-to-use plugins for WordPress that publish your star rating and reviews from Avvo.com directly to your website.

WiserBrand team activated it on my website FREE of charge. Please take a look!

Avvo Reviews

Avvo Star Rating


Building a Slippery Slope to Code

April 21, 2017

by Jay Marshall Wolman

I’ve been following the efforts of Carl Malamud and Public.Resource.Org to free the law.  In short, and inadequately summarized, sometimes lawmakers incorporate by reference or otherwise make part of the law works that are subject to copyright.  Thus, for example, a state may require electricians to comply with the NFPA National Electrical Code.  And, for the low low price of $98, the NFPA will sell it to you.

“But, wait!” you may say, “why should I have to pay for a copy of the code when the code is the law?”  And that’s the kind of thing Public.Resource.Org has been questioning.  It originally bought copies of these codes and published them.  And, earlier this year, they lost a law suit brought by the publishers of these codes, and they have been enjoined from publishing them.  They also suffered a second defeat, in another case, last month, involving the State of George’s official, but privately published, annotated code (the code is in the public domain, but the annotations are not, despite legal reliance on the annotations).

From a due process standpoint, it is unreasonable to be held accountable for a violation of a law or code, locked up behind a copyright, especially where there is no defense for ignorance.  On the flip side, the fact that code authors should have to give their works away for free just because (even though at their encouragement) some government entity adopts it as law, gives me pause.

Codes sound very law-ish by their nature that it’s easy to mentally treat them as something that shouldn’t even be copyrightable, like a phone book.  But, since there is some creativity involved, with choices made as to what is safe and what is not, it probably is copyrightable.  Thus, there’s no legal reason why one class of copyrightable works should be treated differently than any other.  And republication would, generally speaking, be infringement.

Let’s use a different type of copyrightable work to illustrate.  Assume the State of New Columbia requires all teenagers to graduate from high school.  And let’s say the curriculum, as implemented by the schools and teachers, required every student to read and do a book report.  One teacher chooses “Twilight” for some horrible reason, presumably related to the sorry state of our educational system.  Thus, essentially by law, every student in that teacher’s class must obtain a full copy of Stoker’s ugly stepchild.  Should I, then, be allowed to post a PDF of that book for any of the students to download for free, without permission of the author?  Of course not.  Even if she lobbied the schools.  So long as the schools fairly make the book available to borrow, so students can actually do their assignment, due process should be satisfied.  So, too, with the codes.  So long as an electrician can fairly access and learn what he/she needs to do, that should be sufficient.

The Google Books saga is informative, and there was a fascinating article in The Atlantic yesterday that got me thinking about this again.  About two and a half years ago, Google prevailed in an appeal before the Second Circuit in its case against the Author’s Guild.  Google had embarked on an ambitious project to scan millions of books in order to make snippets of text available in search results.  The Second Circuit found that Google’s reproduction of the works, but limited to the snippets, was fair use.  This is where Google’s outcome differs from the losses of Public.Resource.Org.  The latter published and made available the full texts of the codes online, unlike Google, which restricted the amount of the works displayed.  This was a key distinction made by the courts.

Of course, sometimes you can republish a work wholesale for comment as fair use.  And Public.Resource.Org could well prevail in these arguments on appeal.  It will be interesting to watch, both for freeing the law and, if successful, for whatever else might be freed just because the government made it required reading.


Hungry Like the Wolf

April 19, 2017

by Jay Marshall Wolman

In the wake of Super Bowl XLIV, Katy Pery’s backup dancer “Left Shark”, disputes among intellectual property lawyers arose as to what kind, if any, protection was available to the owners/designers of the costume.  Recently, our friend, the Boozy Barrister, over at Lawyers and Liquor, became embroiled with the world of furries, which got me thinking again about the copyrightability of costumes or fursuits, as the case may be.

Much of the precedent involving the copyrightability of fursuits came out of the Second Circuit.  See Chosun Int’l v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005).  In Chosun, competing animal-themed Halloween costume makers fought over whether Chosun Int’l had a valid copyright to enforce.  The district court dismissed, finding the costumes to be non-copyrightable useful articles.  The Second Circuit reversed, remanding for a determination of whether there were elements that could be physically or conceptually separated from the costume itself.  By way of example, the Second Circuit suggested the head or hands could be removed physically or conceptually from the useful, clothing aspect of the costume.

Last month, the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) rejected the physical-conceptual distinction utilized in Chosun.  In Star Athletica, a copyright dispute arose regarding cheerleading uniforms.  Varsity Brands claimed its costumes were infringed upon and Star Athletica argued that the costumes were useful articles and could not be copyrightable.  Star Athletica won at the District Court, but suffered a reversal in the Sixth Circuit.  The Supreme Court affirmed the Sixth Circuit decision–the graphic designs were separately identifiable and could be protected.  It found that the designs could, essentially, be drawn as art and, therefore, were protected (the shape, cut, and dimensions of the uniform were not protectable).  The specific test announced was:

We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

So, turning back to Left Shark and furries, either could be perceived as a separate work of art that is protectable.  Separability might be harder to determine, as the dimensions of the shark shape or a Boozy Barrister Badger fursuit are integral to the costume itself, but this is probably not fatal.  This is especially where fursonas (an actual term, though I prefer “fursonae”) may include the avatar, which can be a depiction of the fursuit in two dimensional form–a separate work of art.

Thus, a fursuit is likely eligible for copyright protection.  (The Left Shark trademark dispute is really not about the costume and the trademark is really unnecessary if it is copyrightable anyhow.)