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.”

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.

Even Gold Paint Guy has publicity rights

December 11, 2009

Oh that's gotta be rough...

Patrick Tribett is the poster boy for pwnage. Tribett had a pretty bad addiction to huffing spray paint to get high (never tried it, but that does not sound like fun). He was such a mess that he walked in to a Bellaire, Ohio general store looking for another round. The owner called the cops, who came to the scene. They suspected Tribett of unlawful abuse of inhalants.

Of course, the investigation didn’t take too long — given the gold paint all over his high as a kite face. His mugshot made The Smoking Gun (never a good thing) and the ensuing hilarity made Tribett the “gole paint guy” — yep, Tribett became his very own internet meme. Even after that, he got busted huffing paint again.

I am not writing this piece to pile more shit on poor Mr. Tribett. Actually, the guy seems to have gotten his act together. Yay Gold Paint Guy!

And even better… he’s given me fodder for a Right of Publicity Law post!!! Thanks Gold Paint Guy!

It turns out that Tribett is planning to file a lawsuit against Amazon, Cafe Press, and Hot Toys (source). Normally, this might be where I call him an asshat, but I am not going to do that this time. Tribett might very well have a legitimate case.

Tribett isn’t suing everyone who used his mugshot. If he did, that would land him an asshat award, because we have a right to use that picture — and we have a right to use that picture to mock him. All the websites devoted to him are First Amendment protected. All of these uses are a-ok. The photograph would not be protected by copyright, as it is automatically in the public domain.

But, everything changes when you start making t-shirts and mugs of the guy.

Yes, a little cottage industry started running after Mr. Tribett’s unfortunately hilarious mugshot started flying around cyberspace. I wouldn’t imagine that it contributed a lot to the economy, but I am sure that a few people made a few bucks off of him — and now Tribett wants his cut. And under the law, he’s got a point.

Publicity rights give a person the right to profit from the commercial exploitation of his or her image, likeness, or name. That’s why you can’t just slap a picture of Tiger Woods on a box of condoms, and you can’t slap my picture on an ass kicking machine without paying for the privilege. Not all states protect publicity rights, but they are recognized by statute or common law claims in at least 30 states. Mr. Tribett’s West Virginia does not have a ROP statute, but the state common law recognizes it. See Curran v. Amazon.com Inc., 36 Media L. Rptr. 1641 (S.D. W.Va. Feb. 19, 2008) (justia file)

Good luck to Mr. Tribett in his quest for extended sobriety. I am looking forward to seeing how his ROP case goes.

The Catsouras Photos, Privacy, and Privilege

June 5, 2009
The Catsouras' Car.  We have made an editorial decision to refrain from publishing the photos of the dead girl.

The Catsouras' Car. We have made an editorial decision to refrain from publishing the photos of the dead girl.

The Story:
A Porsche. A girl. A tragic death.

For those who don’t know, Nikki Catsouras was a beautiful young girl who made a terrible error in judgment, which cost her dearly. Nikki was a rich kid (which is quite relevant) who stole her dad’s Porsche to go for a joy ride. With cocaine in her veins, and fine German engineering at her fingertips, she drove her dad’s $90,000 sports car way too fast and way too recklessly.

She flipped the car and smashed into a tollbooth. In an instant, a vehicle that cost as much as a decent house in Kentucky turned into a twisted ball of useless metal. More tragically, the impact tore Nikki Catsouras’ body apart. Someone at the scene took a series of photographs. The most graphic photo shows the girl’s head split open, the brain cavity empty as the impact squashed it like an over-ripe melon. I will not link to the photos of her, but if you are desperately curious it shouldn’t take too much research to find them. Before you run off to search, let me warn you: If you have a single shred of humanity in you, viewing the photos of this girl’s body will make you feel like you’ve been kicked in the stomach. Crying would not be an unpredictable reaction – not even from the most stoic bastard. You will, most likely, wish that you had never seen them.

The tabloid speaks to the daytime television addled masses

Newsweek reported on the story:

The accident was so gruesome the coroner wouldn’t allow her parents, Christos and Lesli Catsouras, to identify their daughter’s body. But because of two California Highway Patrol officers, a digital camera and e-mail users’ easy access to the “Forward” button, there are now nine photos of the accident scene, taken just moments after Nikki’s death, circulating virally on the Web. In one, her nearly decapitated head is drooping out the shattered window of her father’s Porsche. (source)

Somewhat predictably, the Newsweek piece then descends into tabloid-esque fear mongering and carries the torch for shrill anti-speech advocates. The author obviously spent her share of time talking to the fear-mongering and panic industry leaders, as she seems to be one of the last people on earth who considers the ironically-named “Reputation Defender” company to be a source of reliable information. The author takes only a few paragraphs before she cheekily labels those who posted the photos with a nifty little title, “cyber-aggressors.” The author does not deign to seek out anyone who might have a balanced opinion.

Silverman channels Jefferson, Voltaire, and Brennan

Although Newsweek did not seek out anyone with an opinion based in both law and ethics, preferring those who are pimping their books or their worthless “privacy defense” services, those voices are out there. Suffolk University Law Student, Justin Silverman provides a thought-provoking uncomfortable defense of those who publish the Nikki Catsouras photos — embracing the “hate the speech, but love free speech” view.

Silverman admits that his first reaction was “[s]traight from the gut,” and that he felt that the photos should be taken down. However, like all ethical thinkers, he reflected upon his emotions and meditated on his position. Silverman, giving us a view into his First Amendment bona fides, found himself defending expression despite despising the particular expression at hand.

I now realize my first reaction was the wrong one. Unlike most stories, the lines here are blurred and emotion can trick you into thinking you are advocating the right thing. The right thing, in this case, is not what it first seems. It is to defend that website’s right to show the photos, however disrespectfully it chooses to do so.

According to the Newsweek story, the Catsouras family considers itself out of legal options. The photos are public record after all, released by the police and made fair game to all whom seek to publish them. The dead can claim no privacy rights, and the photos are of only Nikki. These are the realities of firm legal principles that protect the public’s right to know and make it easier for information to be distributed. (source)

Of course, Silverman still despises those who published the photos. Despite his willingness to defend their publication as part of his general support for free expression, Silverman does not let us forget that where the law’s boundaries end, there is still plenty of ground covered by ethics. Silverman is palpably reluctant in his eloquent defense of the right to publish the photos. Nevertheless, while he judges the photographs to be without value, and lectures the reader on ethics, he stays true to his own. Silverman admits that despite his personal distaste for this particular expression, he understands why the right to publish these photos exists, and he vows that he will continue to defend that right.

It’s not a change in the law I advocate. It’s just a reminder that in some cases our rights come at a high cost to others. Though we are free to exercise our rights, we should do so with purpose, for a greater good.

And that being able to publish photos doesn’t mean that we should. (source)

Amen brother.

The academic circle jerk naturally disagrees with Mr. Silverman and wants big brother to put us under his loving protective arm. Dan Solove comments at Concurring Opinions:

the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.

Constitutional right to information privacy?” Hold on. Let me check my Constitution. I must have a different Constitution than Mr. Solove. Now worry not, I’m not one of those “if it isn’t explicitly in the Constitution, it isn’t there at all” types. I agree that there is some constitutional right to privacy. “The First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold v. Connecticut, 381 U.S. 479 (1965). However, a constitutional right to information privacy? I can’t go that far.

Nevertheless, I do agree that there should be a right to some form of information privacy. You should be able to feel secure that when the government gathers private information about you, it won’t then go broadcasting it around without some proper purpose. However, this is not private information. This is incredibly public information. If you do something in public, whether it is peeing on the sidewalk, flashing your genitals, tripping over stick, or dying in a horribly gruesome manner — that makes it public. That means that you have no expectation of privacy in that information. Just ask every girl who shows her tits at Mardi Gras and then finds her photos on the internet and every guy who gets arrested on COPS wearing one shoe and a dirty wife-beater.

What drives the publication of these photos? What drives the outrage?

I agree with Mr. Silverman that just because we can disseminate these photos doesn’t mean that we should. One would hope that human decency would compel people to refrain from exercising their right to distribute gruesome, gory, death-scene photos. I considered linking to them to prove a point or two, but my conscience wouldn’t let me. I simply feel too much compassion for Nikki’s parents to be part of the pornification of her death.

Okay, so we have figured out that there was a legal right to publish these photos. We have also figured out that it was ethically objectionable to do so. This was someone’s daughter, and turning their death into mere voyeurism is disgusting. While I do not support the Catsouras family’s legal quest to bring the wrongdoers to justice (because I see no legal wrong in the publication), I can assure you that if I met the person who did publish them, I’d haul off and bust their teeth out and mail them to Nikki’s parents as trophies.

But, that leaves some questions about the human condition. Why have these photos, in particular, become such a target for voyeurism? And, this begs the corollary question: Why has the publication of these photos, in particular, inspired such outrage from the established mainstream media? Why such outrage from the legal academy that accomplished professors would place their very credibility on the chopping block and fall over each other to invent legal theories that even a law student knows are bunk — merely to support their emotional response?

I think the answer comes down to cultural class warfare.

Lets think about what is so different about these particular photos from other gory death photos. Are these the first photos to be splashed across the internet that show twisted and mangled corpses of someone’s loved ones? Someone loved this guy, and this guy too. Rotten.com is full of images of the dead and dismembered. There was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.

But this is different, isn’t it? But why?

This is different because it was a privileged, young, white, girl.

If that accident had been some poor black girl in a Chevy Lumina with duct tape on the fender and cellophane over the brake light, nobody would have given a shit. The photos might have made their way on to rotten.com, but nobody would have forwarded them, and nobody – especially not anyone who went to an Ivy League school – would have wasted the sweat on their fingertips by writing about it.

You have no idea who this girl is, do you?  Click the image to find out.

You have no idea who this girl is, do you? Click the image to find out.

Newsweek’s author and the academic circle jerk are offended because the Catsouras photos offend their notions of how the rabble should treat the privileged. You know exactly what I am talking about. That same privilege that made Natalee Holloway a TV news obsession because she was a privileged white girl on vacation in Aruba. Meanwhile, hundreds of black, hispanic, and just not-as-blonde, and most importantly — POOR — girls go missing in the United States every day. Greta Van Susteren could give a shit about them, but Fox News won’t ever let us forget that a rich blonde girl went missing in Aruba.

It is hardly surprising that privacy advocacy and privilege go hand in hand. The entire concept of a “right to privacy” grows from an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. They were not motivated by fear of an over-reaching government. They were motivated by a threat to their own privilege. In 1890, class divisions were far more distinct than they are today. The poor literally starved to death. Disease ran through American slums like fear of the Swine Flu runs through the advertising addled of today. Meanwhile, the wealthy lived in their Back Bay and Beacon Hill mansions, summered in Newport, and were far removed from the unwashed proles that toiled for pennies a day so that the rich might keep their hands clean. Yet, when the rabble began to see how the “other half” lived in the gossip rags, the Brahmins were aghast. Did they not have a “right” to lord over the proles without the damn proles peeking in their windows? Warren and Brandeis thought so.

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Ah yes, the rhetorical device of claiming that mere words inflict more pain than bodily injury. Just once, I would love to hear someone say that and then slash their face with a razor blade to see if they really mean it, or if it is just academic circle jerking in action.

Brandeis and Warren trotted out rhetoric that sounds distinctly like the snooty whining of today’s Brahmins and over-educated do-nothings.

Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

Yes, if that looks familiar, you’ve been reading Cass Sunstein, Gail Dines, or Concurring Opinions. I don’t mock this, nor those authors, because I disagree with them. I actually agree 100% with the above paragraph. I fully believe that the idiots that slather across the landscape, driving at 45 miles per hour in the left hand lane, shopping at Wal-Mart, and very successfully passing their genes on to the next generation of Palin supporters and Octomoms are stupid and easily distracted and the world would be much better if they all read The Economist and Plutarch.

However, I’m different from the circle-jerk for two key reasons: 1) I can fully and publicly admit that I agree because I am a snob and I look down on 98% of mankind. 2) Despite the fact that I agree, I would not advocate for my views to be backed up by a change in the law. A citizen should be permitted to be an idiot if that is his choice. Where I part ways with Brandeis, Warren, and their intellectual descendants is when they call for the government to cure the ill. I say let the mouth-breathing NASCAR fans read their gossip magazines, watch their reality TV, and let them get off on watching the upper classes tear themselves apart. This, along with the opiate of religion, is what keeps them from rising up and cutting all of our throats. (By “our” I mean mine).

Lets face it, since the earliest of times, the lower classes have loved to watch their betters suffer. It provides a salve to the daily suffering that comes from being a low-life. If you live in some dump like Lakeland, Flori-duh, driving your crappy car to your crappy job and coming home to your crappy house and watch your crappy TV with your crappy stained t-shirt on while you look at your crappy ugly redneck wife and your stupid inbred redneck children, it must really suck. It must suck even more when you see that there are people like the Catsouras family: Dad worked hard, dad made lots of money, married a hot wife, and had three utterly beautiful daughters. Meanwhile, you’re eating pork rinds and beans in your fart shack of a dump, working at the plant, until it shuts down and your job gets shipped to Mexico. Then, you see the Catsouras family suffer — in large part due to their privilege. A rich kid’s drug (cocaine) plus a rich man’s car, in sunny Southern California, turns from the ingredients of a life that mocks your very existence into the components of a tragedy that lets you guffaw — that your kid won’t ever die like that, because you didn’t ever think too much of education or getting anywhere in life.

A big shiny Porsche and a beautiful young pilot with cocaine in her system turns from an object of envy into a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.

Well, if that’s the case, damn it feels good to shit on the Catsourases, doesn’t it?

And when the rabble shit on the Brahmins, the Brahmins look out for each other and call for changes in the laws.

I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.

That said, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. Those with privilege want to use that ice pick to chip away at our constitutional rights – which only further entrenches their privilege. If we let them, by the time they are done, we will have a patchwork of laws created by extreme outlier incidents, pushed for by the overprivileged like me, the Catsourases, and the legal academy – ushered in by a wail of hysterical shrill cries from those who follow them over the cliff.

Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents – slowly turning our entire existence into one that mimics our time in the security line at the airport.

That is not a result I want to see.

Tim Tebow should visit whocanisue.com

December 14, 2008

by Jason Fischer

The University of Florida starting quarterback likely has a valid claim for infringement of his right of publicity, provided he has not authorized this bit of creative expression that is currently available for purchase.

Gator Nation response:

Gator Nation response

Hustler Spread of Murder Victim: Arguably Tasteless, but Certainly First Amendment Protected

October 20, 2008

Nancy Benoit in a 1986 Photo

Nancy Benoit in a 1986 Photo

I have just posted my first installment at the Citizen Media Law Project Blog. Here’s the teaser:

In June 2007, professional wrestling promotrix, Nancy Benoit and her son, Daniel, were the victims of a double murder-suicide committed by her husband, WWE wrestler, Chris Benoit.

Approximately 20 years earlier, Ms. Benoit (then Nancy Daus) posed nude for photographer Mark Samansky. Benoit/Daus allegedly had a change of heart and requested that the materials be destroyed. Nevertheless, Samansky kept the video and made stills from it.

After Benoit’s murder, Hustler Magazine obtained copies of Samansky’s photographs and stills with the intention of publishing them in the March 2008 edition of Hustler Magazine. Benoit’s mother, as administrator of her estate, retained counsel who sent a demand to Hustler claiming that the publication of the materials would violate Benoit’s copyright and publicity rights. Hustler’s attorney, Paul Cambria, responded in this letter that copyright law did not apply, and that Hustler had a First Amendment right to publish the photos:

Read the rest of this post at CMLP.

Jackson Brown Sues McCain

August 15, 2008

John McCain helped himself to Jackson Browne’s song, “Running on Empty” for a campaign ad. Browne is suing for copyright infringement, Lanham Act violations (for falsely suggesting that Browne supports the McCain campaign) and for right of publicity violations under California law. LA Times and The Associated Press.

Guest Blawgger, Ross Kerr – Is the right to publicity a property right or a publicity right?

April 27, 2008

A few weeks ago, the District of New Hampshire decided that right of publicity claims were “intellectual property” claims, and thus such claims fell outside Section 230 immunity. See Gimme section 230 shelter – online dating pranks and CDA Immunity.

This got me wondering… how would Florida courts look at this issue? I asked my students to analyze it, and Mr. Kerr turned in a particularly blog-worthy analysis. Read it after the jump.

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