Aug 21 2014

NY Passes Revenge Porn Law

Earlier this month, NY Governor Andrew Cuomo  signed NY’s version of a Revenge Porn  law. The law creates the offense of “Unlawful Dissemination of Lewd Images.”  It prohibits the sale, publication or distribution of images in which a person is in a stage of full or partial undress or engaged in  a sexual act without their consent.  NY joins 11 other states in having criminal RP laws: Arizona, Colorado, Georgia., Hawaii, Idaho, Maryland., Pennsylvania., Utah, Virginia., California and Wisconsin also have laws on the books.

A few years ago, as part of my work in the field of digital images, I began to be contacted by victims of RP for help. I agreed to part of team of lawyers who agreed to help RP victims who went to the website EndRevengePorn.com. Together with web publisher Matthew Chan, I then became part of a site called FightRevengePorn.com that also looks to help RP victims.  I have used intellectual property law and right-to-privacy statutes to help dozens of victims in states where there are no criminal or civil statutes specifically addressing RP.

Courtesy of togetherwecanstopit.org

Courtesy of togetherwecanstopit.org

What surprises me the most, is how many men seem to think that this issue is of no concern to them. To address this issue, Matthew Chan recently posted an article on FightRevengePorn.com where he challenged men to think about how they would feel if their daughter, mother, wife or sister were victimized by RP. While this approach is a good way to sensitize men to the issue, there is simply one reason why men should be concerned about Revenge Porn: Because it is wrong and deeply victimizes those whose personal private photos/videos are exposed to the world.  As Matthew points out in his article some men need to be reminded they they have important relationships with women in their lives and that RP can happen to anyone. But more importantly, men should be asked how they would feel if RP had happened to THEM. How would they like it if they walked into work one day and dozens of co-workers were looking at their computer screens to ogle naked pictures of THEM that they took in trust with a loved one. I suspect the only reason some men “”don’t get it” is because it has not happened to enough men for the general male population to not see this as a “women’s issue.”

That is one of the reasons that folks who advocate in this arena are pushing for criminalization of RP. Perhaps if RP were made a crime in every state in the nation then more folks would pay attention to it and understand the great harm that comes from it and not engage in the behavior in the first place. I am normally not a fan of the addition of new crimes to the ever-growing list of penal laws.  But my involvement in this area has shown me that many people – particularly men -  do not see this as a big deal.  It would not be a stretch to say that the most often comments heard are “What did she expect?” and  “Who told her to send naked pictures of herself on her phone in the first place?” This kind of reaction reminds me of how courts and others used to treat victims of sexual assault.  Questions would be asked about their prior sexual history or why they chose to wear a particular item of clothing. It took  Rape Shield Laws to turn society’s focus away from blaming the victim and onto the acts of the perpetrator. There was great initial outcry about many parts of the  various rape shield laws that arose from the legal community and from the media.  Now we take it for granted that blaming the victim of a sexual assault is simply not acceptable and most of those questions are now impermissible at trial.

It will take some work but I believe that a fair and workable criminal statute can be drafted. It will serve as a reminder that the victims of RP did nothing wrong – they shared intimate photos with someone they trusted and felt close to  and then were victimized and harmed when that person violated that trust and shared the images. And that’s why everyone should be concerned about it – because it’s wrong. Period end of story.

franklin quote

Jul 29 2014

Whose Skyline Is It Anyway?

Looks like the Port Authority of NY and NJ which  operates many of the City’s tunnels and bridges and the World Trade Center site, has finally moved off of BridgeGate and corruption issues and to to bigger fish. Specifically Fish’s Eddy, a quirky NYC housewares store. The NY Times reports today that Port Authority Lawyer Veronica Rodriguez fired off a cease and desist letter to the popular store (now located on 18th and Broadway or on the web at www.fishseddy.com) regarding its series of dishes, glasses and other household items that are part of its “212 New York Skyline” series and “Bridge and Tunnel” series.

The Port Authority is concerned that these two product lines contain drawings of the Twin Towers and the entrances to the Lincoln and Holland Tunnel.  Specifically (and incredibly) the letter states that the depiction of the skyline with the Towers would “evoke thoughts of the Port Authority, the twin towers, W.T.C. and the September 11th terrorist attacks.”  Take a look at some of the offending items from the company’s online catalog:

 

212 dinner platebridge and tunnel items

 

Don’t these whimsical, original representations of City landmarks just make you immediately think of 9-11? Don’t they just scream “Port Authority!” at you?  Well according to Ms. Rodriguez’ the items  are  “unfairly reaping a benefit from an association with the Port Authority and the [9-11] attacks.”  But can a municipal agency control the depiction of its municipal property?  The government normally does not own any intellectual property - everything it owns is in the public domain. But it may have aright to trademark certain items or logos when it acts in a commercial enterprise. And that may be the crux of the Port Authority’s argument here.  Once you decide to pay $24 to visit the site of the World Trade Center Attacks, you will be led to a gift shop where you can purchase Freedom Tower and other site-related memorabilia. Since that just opened this year, that may explain why the Port Authority decided to write Fish’s Eddy now even though the lines have been available for sale for over 10 years the last thing you ever want to do is get in business competing with the government.- you’re better off opening up a pork store across the street from Tony Soprano’s place.

But to be a valid trademark claim they would have to prove that the sale of these items confuses consumers into thinking they are officially sold by the Port Authority or that hey diluted the market and trademark of the Port Authority items. Here are some items from the City’s Official “World Trade Center and 9-11 Commemorative Collection” (www.nycwebstore.com):

 

CA-WTC Statue clock_nyc_skyline_silver_WTC Ornament

 

I personally like the Christmas “We Will Never Forget” ornament. There is simply no chance that a consumer would think that Fish’s Eddy products come from the official City Store as they are markedly different and do not specifically even highlight the Towers.  Incidentally, I wonder if the Port Authority or the City got permission from the owners of the Chrysler Building and the Empire State Building to use their iconic buildings in the snow globe depicted above. Well guess what, chances are they would not have to because while their architectural plans are copyrighted   and it would be an infringement to recreate the buildings using those plans, making a simple representation of the shape or outline of the buildings would not violate that copyright.  These buildings, tunnels, and features of the skyline cannot be privately protected from this form of representation.

It is also disingenuous and startling that the PA would think that Fish’s Eddy sale of these products “interferes with the Port Authority’s control of its own reputation.”  How? And what reputation is that exactly? JFK and LGA are perennially on the top five list of worst airports in the country; we recently learned that the NJ Governor’s office shut down a PA bridge on political whim; it took forever to get an agreement on the design and construction of the Twin Towers’ replacement; try crossing the Holland Tunnel on a Friday evening and see how long it takes you.  In short, the Port Authority should be so lucky  to be affiliated with these products.If they were smart that ‘s why they would be writing to the store about -getting a working relationship established so that they can be added to the “9-11 Commemorative Collection” they hawk on their own.

The Times reports that Fish’s Eddy successfully stood up to a similar claim brought by the owners of the Chrysler Building about 15-16 years ago. If a private owner did not succeed, a public entity has even less of a shot. I think the PA should think of a better way of financing the site than by bringing an infringement claim with little to no chance of success. They should be addressing why their ticket prices are so high:  $24 for adults; $18 for Vets and Seniors; $15 for kids over 7;  and $12 for NYPD, NYFD and PAPD officers(though it is free on Tuesdays between 5pm and 7pm!). Making the 9-11 Memorial and Museum affordable for families and tourists would go a long way to enhancing the Port Authority’s reputation.   I don’t know why they think it has any value now worth protecting from this china.

 

 

 

 

 

Jul 23 2014

An Evening With “A Wise Latina”

Last night, I was invited by Judge Raymond Rodriguez (who currently sits on the bench in Brooklyn Criminal Court) to attend an event at the Second Circuit Court. The event was in support of a program started by CUNY Law School student Selina Caban that provides judicial internships to underprivileged NYC High School students. The event was held at the completion of the program’s inaugural year and the 20 or so students who participated were there with their families. The key note speaker was Supreme Court Justice Sonia Sotomayor. Ms. Caban student- clerked with Judge Denny Chin who went to Princeton with Judge Sotomayor and served on the SDNY and 2nd Circuit bench with her as well.  Judge Chin was so impressed that Ms. Caban was able to get this program off the ground that he put her in contact with Judge Sotomayor who quickly agreed to provide support and attach her name to the program. Its official title is the Sonia and Celia Sotomayor Judicial Fellowship named after the judge and her mother.

Official Portrait of Justice Sonia SotomayorJudge Sotomayor spoke to the group of about 60 people in the Second Circuit courtroom for about half an hour and then took questions from the students. Her responses were insightful, off-the-cuff, and revealed her to be very down to earth.  She spoke freely about how she ended up on the Court – telling the kids that it was through connections she made serving on the board of a not-for-profit and her judicial experience; she explained to the young audience that establishing this network is vital because through it people notice the work you are doing and begin to think of suggesting your name for various openings that they are aware of through their connections.

She  was also asked  how growing up poor in the Bronxdale housing Projects in the Bronx,  effects her decision-making. She answered that she was a little upset about how that was played up during her nominating process (she was questioned repeatedly about her comment that a “Wise Latina” would likely reach  a better solution to problems) and that she had to remind people that she also worked as a prosecutor and at a large firm representing very large corporations and that this experience also informed her views on life and the law.  She said that no one experience or facet of her life fully informed any of her decisions and that the law was always first and foremost.  But her prior  history and background give her perspective and the ability to understand the plight and position of others and of the litigants before her which in turn helps her see what needs to be remedied.  That viewpoint could easily be seen in a passage from her famous dissent in the affirmative action case Schuette v. BAMN :

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.” 

 

She also recently talked about the lack of criminal defense experience on the bench which I discussed in a recent article on these pages. She explained that she could not help but wonder whether the Court needed someone  with criminal defense experience since she knew that her time as a  prosecutor gave her a certain “World view” on criminal cases and that it would be helpful and prudent to have someone whose experience was informed from that side of the aisle in a criminal courtroom. In other words, Justice Sotomayor gets it – she understands that the Court and the Constitution are living breathing institutions that are informed by society and society’s experiences.

After the formal event, there was reception held in the main lobby of the Thurgood Marshall Federal Courthouse (coincidentally Justice Marshall was the last justice with any criminal defense experience). We were all advised that Judge Sotomayor would not be taking pictures or signing autographs with anyone besides the interns. Along with Judge Rodriguez, I was there with  my son Steven who interned with Judge Rodriguez this past year and my old law school buddy Manuel Ortega who is the law chair of the Staten Island Democratic Committee.. By luck we were seated next to the door where Judge Sotomayor entered the reception.  Without hesitating she came right over to us and asked us to introduce ourselves. We tried hard not to act like fans at a One Direction concert but it was hard to act calm and collected. I of course had to immediately tell her I was a Dominican immigrant who was raised in the Bronx and that I could not help but tell her the immense sense of pride produced by her being on the Bench. She was gracious and talked for quite awhile with us, even asking  my son whether he was proud of and understood  my accomplishments and the need to “follow in your Dad’s footsteps” and give back to the community. She stayed with us so long that it was us who broke off the conversation as we felt we were hogging her time and we knew that every person in the room wanted to speak with her.

What was remarkable was that we did  not need to be concerned about that as she spent a great deal of time with everyone and all of us in the room had the chance to approach her and speak with her personally. She engaged everyone directly and asked as many questions of the attendees as we had for her. Growing up I only had on living  person I  idolized –  Muhammad Ali. And while my admiration and respect for Ali has never waned it  is now matched by my respect and admiration for Justice Sotomayor. Long may this Wise Latina serve the country as a Justice of the Supreme Court.

Here is a picture of me and my son Steven at the event (I’m on the right) in case you ‘re wondering :

SteveMeCourt.Cropped

Jul 18 2014

NY Appeals Court Clarifies That A Parent Can Still Spank A Child

If I had a dime for every time I heard someone say “The problem with kids today is that you can;t spank them anymore” or “God forbid if you spanked your child nowadays, they lock you  up”  etc etc, I would be buying a home next to Bill Gates. The  common belief that a parent can no longer spank their child is another of  the common legal myths that the general; public seems to latch onto like “the police have to read you your rights whenever you are arrested” or “an undercover cop has to tell you he’s a cop if you ask him.”

SPANKINGWell today,the Second Department,  a NY Appellate Court covering Queens, Brooklyn,Staten Island  Long Island and some upstate counties,reversed a Suffolk County Family Court judge’s decision finding a father in neglect of his child for spanking him with an open hand. The Dad had been charged with neglect and dragged into Family Court after he was reported for child abuse when his 8 year old son told teachers that his Dad had spanked him for cursing at an adult. The boy later also claimed his Dad hit him with a belt. The father admitted that he spanked his son on the buttocks and legs but denied using a belt.  Judge Richard Hoffman found that there was no evidence to support the allegation that a belt was used, but still found the parent in neglect for using his open hand on the child.

In reversing Judge Hoffman ( giving him a legal spanking if you will) a unanimous Appellate Division stated that

[P]arents have a right to use reasonable force against a child in order to maintain discipline or to promote the child’s welfare,[although]  the use of excessive corporal punishment constitutes neglect. Parents have a right to the reasonable use of force as means of discipline or ensuring their welfare,

I am thankful the court put this myth to bed. Hopefully, less people will think that spanking is illegal. While my wife and I never used corporal punishment raising our three boys, the law is clear that parents have a right to discipline their child as they see fit as long as they don’t do so in an excessive manner or cause injury. This court’s decision does not say where the line is as to what constitutes “excessive” corporal punishment so it must be decided on a case-by-case basis. Here, the court  held that a few open-handed spanks were permissible discipline for cursing at an adult.  So if you want to use corporal punishment, then keep this motto in mind: ” Spare the rod, use the hand..”
Read more: http://www.newyorklawjournal.com/id=1202663715871/In-the-Matter-of-Laequise-P-Anonymous-Suffolk-County-Department-of-Social-Services-respondent-and-Brian-C-Anonymous-appellant-201304513#ixzz37qIhXH4L

 

Jul 11 2014

Sleeping Fan’s Junk Lawsuit Against Yankees and ESPN Must Be Dealt With Swiftly

This week, Andrew Robert Rector  filed a lawsuit through his lawyer, Valentine Okwara, in Bronx Supreme Court against the New York Yankees, Major League Baseball,  ESPN and two of its announcers – John Kruk and Dan Shulman. The suit alleges  defamation and infliction of emotional distress after a clip of Rector sleeping during the April 13 Yankee game against the Boston Red Sox aired on ESPN and was posted online by MLB.com. The lawsuit  is asking for $10 million in damages from the defendants. OK many media outlets have already been talking about how frivolous this lawsuit obviously is.  The fan was at Yankee Stadium knowing that the game would be aired on national television. He therefore had no expectation of privacy and thankfully the law has been pretty much settled before the Pilgrims came to Plymouth Rock that mere expressions of opinion, insults, hurt feelings, mockery etc are not actionable. The announcers made fun of him for falling dead asleep during the game? So what? ESPN announcer Dan Shulman referred to the sleeping fan as “oblivious,” while John Kruk, the color commentator opined that the ballpark was “not the place you come to sleep.” Shulman also wondered whether the fan had slept through a third inning home run by Yankee Carlos Beltran and wondered whether now that it was the fourth inning, would this guy sleep all the way through the whole game? In his complaint, the lawyer alleges they called him a “fatty cow who needs two seats” but I did not hear that on the clip. In any event,  Can you imagine how filled up the courthouse would be if anyone could sue over such slights? Looking at the screenshot below of the clip, I am reminded of the legal adage that truth is a defense to defamation actions:

Courtesy mlb.com

Courtesy mlb.com

       

So if this is such a clear surefire-loser-of-a case, why am I bothering to write about it?  Because it is not enough that the world knows that the case is meritless; something must be done to stop these kinds of lawsuits which do nothing more than make the legal system look like a joke. These cases make a mockery of lawyers as much as they do of the fan who is the subject of the lawsuit.  Also, in some bar somewhere two idiots will be saying to each other “I bet he ends up getting money, you’ll see. Damn lawyers”   So I need to write just a few snippets about the lawsuit and then a few snippets about the lawyer,and I’ll be done.

The lawsuit  starts out by misnaming four out of the five defendants. John Kruk is misspelled “John Kruck,” The New York Yankees Partnership (the legal entity that controls the Yankees) is named as the NY Yankees, which is just brand name not a legal entity. Another defendant is ESPN New York which also doesn’t legally exist.  ESPN New York is the brand name for radio station WEPN-FM, The station’s license is owned by Emmis Communications and its operations are controlled by the Walt Disney CompanyESPN Radio‘s majority owner. ESPN, inc. is the legal entity known colloquially as ESPN. The lawyer also left off the legal designation  “L.P”  of Major League Baseball Advance Media”  which operates MLB.com. He did get Dan Shulman’s name right, so 2 points for Slytherin!

The complaint is available online and frankly it is hard to believe a lawyer drafted it.  It is replete with misspellings and  grammatical errors and with sentences that  don’t really make sense Here’s a clip.:

Yankee Complaint 1

 You getting the picture?  No?  Well  in an earlier paragraph he describes the NY Yankees by saying  “the New York Yankee is a company .  . .engaged in Baseball sport.”  Whatever happened to proofreading? Or common sense for that matter?   Another gem-of-a-segment:

Yankee Complaint 2 

“The defendant MLB.com continued the onslaught to a point of comparing plaintiff to someone . . . unintelligent and probably intellectually bankrupt individual.”  “John Kruck ..  .insinuated that the plaintiff is individual that know neither history nor understood the beauty or rivalry between Boston Red Sox and New York Yankee.”  As someone who taught legal writing to first year law students at New York Law School for over 7 years, I feel qualified to ask “How did this guy get through law school and pass the Bar?” Believe me I could go on and on presenting similar sections, but I am sure we all get the picture by now.

I decided to try and look into the plaintiff’s attorney, Valentine Okwara and found pretty much nothing. His LinkedIn profile lists him as an attorney at AJA & Associates.  When I looked that up I could not find a law firm with that name.  The three Facebook listings with that name all indicate that the person comes from Abiu Nigeria but nothing indicating a law practice. The NY State Court website shows he is involved in two cases as a lawyer for  two different defendants in what appear to be collections matters. He lists his office as Sutphin Blvd in Jamaica Queens.  On the attorney registry site for the court system his entry shows that his registration is current and he is in good standing, having been admitted to practice in NY in 2013. It also shows he lists his educational background as the University of Buckingham in Buckingham England  You can sit for the NY Bar with just a British Law Degree but  perhaps they didn’t cover the First Amendment to the US Constitution at his alma mater.

When a lawyer signs a pleading and files it in court, he affirms to the court that the matter is not frivolous. Whichever law firm or lawyer the defendants hire to respond to this complaint and I am sure they will be very good ones, should send Mr. Okwara a letter demanding that he retract the complaint or provide some good faith legal argument for its merit. If he fails to do so, they should move for dismissal of the complaint and legal fees before they even answer . Their actions must be swift  and the message must be sent that these types of complaints will be  swatted down like so many gnats buzzing around your head at a picnic or a ball game. Come to think of it, it would have been helpful to his client if he had some gnats buzzing around to keep him awake and maybe this whole legal debacle could  have been avoided in the first instance. I look forward to reading about the case being thrown out soon – very soon please!

 

 

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