Jail For Laughing Protester Is An Outrage

May 10, 2017

Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.

There is, of course, more to the story.

See: Jail for laughing protester is an outrage

When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”

However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.

Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”

“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.

Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”

But why?

As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.

For Marc Randazza, it is not the message that deserves protection, it is the speech itself.

“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”

Read the rest here.


Drones and Privacy Rights

February 15, 2013

By Jay Wolman

Shameless plug:  I appeared on Fox 25 Boston last night discussing issues relating to privacy rights and personal use drones that take surveillance video.

Link to the article, with video, is here: http://www.myfoxboston.com/story/21202581/2013/02/14/privacy-concerns-rise-as-personal-drone-market-expands

And a companion piece I wrote: http://www.bostonbusinesslitigation.com/technology/unmanned-drones-and-the-right-to-privacy/


You Have Got to be Kidding

December 28, 2012

Hunter Moore:  Amateur

Craig Brittain:  Lightweight

Looks like posting compromising photos of unsuspecting victims is not enough.  Someone, who obviously once sat on a copy of the nutshell on copyright and online speech to sit at the grown-ups table, decided that merely posting photos was insufficient.  This vile person decided it was all hunky-dory to simply solicit photographs of so-called prostitutes without any credible evidence (not to be confused with Smoking Gun, which publishes mugshots and such of people actually arrested).

 

For your disgust, I present: PotentialProstitutes.com

Solicits submissions and offers removal for $99.  Thinks Sec. 230 is a safe harbor, when he is choosing to publish.  Libel per se, anyone?

 

h/t Ethics Alarms


Copyright in Tattoo Case: Escobedo v. THQ, Inc.

December 9, 2012
Excerpt from Escobedo v. THQ Inc. lawsuit including "signature moment" shot allegation.

Excerpt from Escobedo v. THQ Inc. lawsuit including “signature moment” shot allegation.

A tattoo artist sued THQ, Inc., the makers of a UFC themed video games, for copyright infringement. The artist tattooed a lion on Carlos Condit’s torso, and claims that it was his original creation. (Complaint at 12) The artist alleges that he created the original design, and owns a registration for the copyright to the design. (Compl. at 16). He claims that by using the work in a video game, depicting Carlos Condit, THQ infringed upon his copyright in the work.

The artist’s attorney said, in a press release,

“People often believe that they own the images that are tattooed on them by tattoo artists,” explains Speth. “In reality, the owner of the tattoo artwork is the creator of the work, unless there is a written assignment of the copyright in the tattoo art.” Escobedo and Condit never had a written agreement. Thus, claims Escobedo in the lawsuit, he remains the owner of the copyright over the image he drew.(source).

Nothing in this statement is false, but that doesn’t mean that this gets you to the correct answer. Here is the correct answer:

1. Ownership of the copyright: If the tattoo artist designed the tattoo, unless the tattoo artist signed a “work for hire” agreement, then the copyright in the tattoo is, presumptively, his intellectual property. No question about it. Therefore, I can’t take a copy of that tattoo and make posters of it. Nor can Condit. I can’t re-license it to other people. On ownership of the copyright, I think the artist wins, hands down.

But, that doesn’t mean that he wins the case.

2. Fair Use: I see very little room to argue that THQ’s use is not fair use. THQ has the right to use Condit’s likeness. That likeness happens to have been augmented with someone else’s copyrighted work. The copyright owner can no sooner prohibit this use than he can prohibit me from using it demonstratively as I have in this piece (doubly so, since I clipped it from his complaint). THQ can’t accurately depict Condit without the tattoo. THQ can not be prohibited from depicting Condit accurately, just because the artist wants more money.

That said, there might be some theoretical claims, but not against THQ.

Condit himself might (I stress MIGHT) have some liability. This is a highly theoretical argument – but I presume that Condit got paid for the right to use his likeness in the video game. Lets say that the agreement has a clause that states that Condit has the legal ability to transfer or license all relevant rights. There *might* be an argument that Condit did not have the right to assign the rights to the ink, and thus the artist gets a portion of Condit’s profits. Again, theory here, and not likely. But, if I had to save the case, I’d argue that.

Right of Publicity: The tattoo has now become part of Condit’s persona. So, could copyright actually limit his right of publicity? Again, an interesting egghead argument to be merged with #3, but essentially, if the artist prevailed against Condit, it would mean that anyone who gets a tattoo without a work for hire agreement has mortgaged a certain portion of their publicity rights to the tattoo artist. I am not seeing that as a winning theory.

Bottom line: Fair use, artist loses. Creative arguments could revive the case under some exotic uses of state law claims, which would (at best) be against Condit, and for a small fraction of what Condit himself earned, but even then, I can’t see them carrying the day.

The case is Christopher Escobedo v. THQ Inc., 2:12-cv- 02470-JAT, U.S. District Court, District of Arizona (Phoenix).

H/T: TechDirt


Hulk Hogan Brings Questionable Right of Publicity Suit

June 2, 2010

Is Boulder a doppelgänger for Hogan?

Hulk Hogan a/k/a Terry Bollea thinks that a character in a Cocoa Pebbles commercial (shown below) is too similar to him — and that it misappropriates his image or likeness for a commercial purpose. If that is the case, it is a no-no under Fla. Stat. § 540.08, which protects Floridians from unlawful commercial appropriation of their name or likeness.

In Hulk’s corner, the character in the commercial has long blonde hair, a mustache, and is called either “Hulk Boulder” or “Bulk Boulder.” I can’t really tell. In Post’s corner, it seems that the wrestler in the ad has a lot less forhead, a very different mustache, no headband, no Oakleys, and doesn’t seem to use the Hulkster’s gravely voice.

This suit seems like a stretch to me. (complaint here)

H/T: Nadia


There is apparently only one Lindsay

March 9, 2010

Lindsay Lohan has filed suit against eTrade for using the name “Lindsay” in its Superbowl ad. (source) Apparently, Lohan’s position is that eTrade used the name “Lindsay” to trade off her name and likeness. The complaint is here, and a perfunctory review of it leads me to the conclusion that it is a piece of shit. Of course, in addition to handling right of publicity cases, her attorney also handles traffic tickets (source).

Here’s the commercial.


Your Right of Publicity Violation of the Day

December 19, 2009

It was inevitable. Tiger Condoms. Pretty clearly a violation of Florida Statute Sect. 540.08.

H/T: E.S.