Sep 02 2015

TV Anchor to Hasbro: “Don’t Name Your Toy After Me!”

From the What-Were-They-Thinking Department comes this story that noted Fox News Channel anchor Harris Faulkner has filed a federal lawsuit in the US District Court for the District of New Jersey against toy giant Hasbro, Inc. over one of its Littlest Pet Shop toy’s that bears her name. For some reason, Hasbro thought it was a cute idea to name its hamster figurine “Harris Faulkner” – without asking Ms. Faulkner’s permission or paying her to do so. Did they think no one would notice?

The real Harris Faulkner sent letters to Hasbro telling them to cease and desist but apparently they were ignored by the company who continued to sell the toy for months after the notice until finally pulling it from shelves this year; it can still be found on re-sellers websites like Amazon and eBay. There will be the question of profits derived from the sale of the item by Hasbro while it was available under the theory that this use violated the Emmy-award winning anchor’s rights to privacy and publicity.

The right to privacy means that a person has the right to not have their name or likeness used for commercial use without their permission. The right to publicity means that a person has the right to control how they want their name and likeness exposed to the public for commercial gain. While similar and sometimes used interchangeably by lawyers and courts, the two rights are technically separate and this use of Ms. Faulkner’s name would seem to violate both. There is no Federal right to privacy or publicity. Most states have statutes dealing with the right to privacy and the right to publicity, though New Jersey does not. Rather, New Jersey’s state appellate courts recognize a common law right of publicity and a comparable protection on a privacy theory. The unique quality of her name will make this a rather easy lawsuit to prove. “Harris Faulkner” is not a likely name to invent for a female hamster. They chose it to make use of Ms. Faulkner’s popularity. Ms. Faulkner goes one better saying that Hasbro even made it look like her. The lawsuit states:

In addition to its prominent and unauthorized use of Faulkner’s name, elements of the Harris Faulkner Hamster Doll also bear a physical resemblance to Faulkner’s traditional professional appearance, in particular the tone of its complexion, the shape of its eyes, and the design of its eye makeup

What do you think?:

Coincidence? I think not.  Image courtesy of AP/US DIstrict Court

Coincidence? I think not.
Image courtesy of AP/US DIstrict Court

The complaint alleges it’s demeaning to Faulkner and her reputation to have a rodent toy named after her and I agree. Faulkner has won six Emmys, been on TV for over two decades and is currently on Fox News Channel six days a week. But isn’t she cute! The toy sends the message that she’s just a pretty little thing. Several years ago, NY lawyer Steve Zissou sued and settled with filmmaker Wes Anderson over the use of his name in the film The Life Aquatic with Steve Zisssou though you can’t compare your name being used in the title of a Wes Anderson film with being made out to be a rodent toy. The former would be one of the greatest things ever, the latter – not so much. Both however violate the subject’s right to privacy and publicity. In any event, Ms. Faulkner and her lawyers should have an easy time on this one.

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Aug 30 2015

Phil Ivey’s Defense: I Can Cheat Because Borgata Employs “Babes”

As I wrote about on this blog back in April 2014, The Borgata Casino in Atlantic City is suing poker superstar Phil Ivey for return of $9.6 Million he won at the baccarat table at the casino. The Borgata claims (and Phil generally admits) that Phil made certain demands involving a certain set of playing cards that had a slight malfunction that made it easier for him to win at the table. The elaborate scheme is detailed in my earlier blog post The casino says that the scheme gave Ivey an “unfair advantage” even if it wasn’t technically cheating.

Well Ivey has fought back arguing that the Borgata also employs certain systems to gain an unfair advantage on players. First on the list of Ivey’s objections is the company’s use of “Borgata Babes” to flirt with the players and distract them as well as plying them with food and alcohol. The claim was made in opposition to a motion by Borgata to prevent Ivey’s lawyers from taking the testimony of their Food and Beverage director. They want all the seedy details of what the casino does to keep players in their seats. As Mr. Ivey states in his deposition, filed in court this week, “[The Borgata] wants to keep you there as long as they can. And by keeping you there it increases their ROI [return on investment] meaning the, the theoretical value, meaning the more hands you play, the bigger advantage [the Borgata] usually has.”

Here are some of the “schemes” Ivey complains of:
(a) “It distracts you from your playing,I mean, anything they can do to give themselves an advantage. Everyone knows that alcohol impairs your judgment, and they offer that, and they have the pretty cocktail waitresses and they’re all very flirty. They’re talking to you . . . I got quite a few ­numbers.”
(b)He had an unlimited budget for free alcohol that was brought to him by “the prettiest waitresses in town.”
(c) “The waitresses wear custom-made tight skirts and bustier tops created by fashion designer Zac Posen and high heels.”
(d) To keep him gambling, Borgata set up his gaming table with Fiji water and energy drinks and positioned a smorgasbord within feet of his table.
(e)”Borgata Babes” cozied up to Ivey serving him coffee and alcoholic beverages while wearing skimpy outfits.”

Oh poor baby. The big bad casino had beautiful women scantily clad, flirting with him, plying him with drinks and food all night. What torture! How did he manage to get out alive – and not just alive but with just under $10 Million of the casino’s money?

baccaratI am confident that a judge is going to allow him to take the Food and Beverage director’s testimony because Federal Court has a wide view of what’s available during the discovery process. And Phil did assert this “unfair advantage” of the casino as a defense – though the judge has already said it seems “a tangential defense” at best. And I have no doubt that the deposition will reveal a lot of ugly truths about the “Borgata Babes Program” (its actual name). That program has already been under scrutiny. In 2008, 22 Borgata Babes accused the casino of discrimination because it subjected them to random weigh-ins and suspended them from work if they gained weight. A judge tossed that lawsuit in 2013, noting that the women had signed contracts agreeing not to gain more than 7 percent of their starting weight.“For the individual labeled a babe to become a sex object requires that person’s participation,” Atlantic County Superior Court Judge Nelson Johnson ruled at the time.

Judge Johnson’s ruling in that case was correct and the same applies here to Ivey. Borgata complains about his ruse because it was unaware he was employing a scheme to give him a competitive advantage – they would not have allowed him to play had they known what he was up to (as is their right). Conversely, just like the Borgata Babes (and Hooter chicks and Playboy bunnies before them), Ivey was well aware of what the casino was up to and why they were doing it. In fact one of the first lines of his lawyers memorandum of law states: “As a professional gambler, defendant Ivey is well aware of Borgata’s methodology in an attempt to impair and distract its patron’s judgment with alcohol and scantily-clad cocktail waitresses.”

That will eventually be the death-knell of that defense. If you sit at a table aware of all that then the “unfair advantage” becomes a simple “advantage” that you are willing to take on. It is no longer unfair. No one was forcing Mr. Ivey to drink alcohol or flirt with the waitresses. Just like he had the clout to make the demands that helped him scheme the game, he could have insisted that no alcohol be allowed or that the waitresses wear toned-down uniforms if he was incapable of concentrating otherwise. Whether a court will rule what Mr. Ivey did amounts to unfair advantage remains to be seen. But Mr. Ivey’s attempt to balance the argument by blaming alcohol and women will be dead on arrival.

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Aug 26 2015

Plot Thickens in “Happy Birthday” Suit

Two years ago I reported here on a lawsuit filed by NY filmmaker Jennifer Nelson trying to strike Warner Music’s copyright in the song “Happy Birthday.” She had been filming a documentary about the song and was charged $1,500. by Warner to use the song in her film. She then filed her suit seeking return of the $1,500 (and all other license fees paid to the class of plaintiffs she wants to represent) arguing that the song was actually in the public domain.

Warner has been fighting tooth and nail to keep their hands on the $2,000,000.00 they get each year for licensing the song. They apparently dropped a pile on new documents on Ms. Nelson related to the song recently. According to Ms. Nelson’s lawyers, Warner handed over “approximately 200 pages of documents [Warner/Chappell] claim were ‘mistakenly’ not produced during discovery, which ended on July 11, 2014, more than one year earlier.” Now Ms. Nelson’s lawyers are saying that some of those documents are “the smoking gun” they have been looking for and prove conclusively that the song belongs to all of us.

Was this little old thing  left off the original publication of the song?

Was this little old thing left off the original publication of the song?

The “smoking gun” is a 1927 version of the “Happy Birthday” lyrics, predating Warner/Chappell’s 1935 copyright by eight years. In 1927, Chicago music publisher The Cable Company produced the 15th edition of the children’s song book called The Everyday Song Book (Graded). It included the “Good Morning” and “Birthday Song,” which featured the melody for “Good Morning To You,” a song dating back to the 19th century, combined with Patty Hill’s lyrics for both “Good Morning” and “Happy Birthday.” Further analysis showed that the song also appeared in editions going as far back as 1922, which in the plaintiffs’ view “proves conclusively” that “Happy Birthday” entered the public domain no later than that year. The song was printed without a copyright notice unlike other songs in the book which contained the notice. Instead, it included a notice that read “Special permission through courtesy of The Clayton F. Summy Co.” The Summy company is the publisher whom Warner/Chappell had maintained never authorized any pre-1935 publishing of the “Happy Birthday” lyrics. So much for that argument I guess. This book shows they licensed it (without copyright notice) in 1922.

Interestingly, that very important line of text published underneath the song’s lyrics was “blurred almost beyond legibility” in the copy that Warner/Chappell handed over in discovery. Plaintiffs’ lawyers noted that it’s “the only line of the entire PDF that is blurred in that manner.” Imagine that – Warner and its team of lawyers were incapable of producing a clear PDF of only one page and the only thing not clear on the only unclear one page is the one line that may cost them the case. I hate when that happens.

The Nelson legal team didn’t stop there however. They decided to go and try to find their own versions of the songbook – and they did just that. They located a first edition published in 1916, which didn’t have the song, and then later versions published 1922 and onward which did include the song and which printed it without a copyright notice. That’s a shot through Warner’s heart because under the 1909 Copyright Act which was then in effect, to be protected a published work had to include the word “Copyright,” or the abbreviation “Copr., ” or the “©” symbol. Publishing a work without any of those notices put the work forever into the public domain. So Ms. Nelson’s attorneys are arguing that the 1922 publication without proper notice forfeited copyright in the work. Even if the court rules that the work was still copyrighted in 1922 because it was contained in a songbook that was itself entirely copyrighted at that time, a 1922 copyright would expire in 1949 under the 1909 Copyright Act unless it had been renewed. And even if it had been renewed, renewal would only get you another 26 years meaning that the renewed copyright would have expired in 1997.

Warner is now scrambling to try and show that this version is different than the version they are relying on. But motions have been filed and Judge George King, who is the Chief Judge of the Federal District Court for the District of Central California will have to make the decision which should come down late this year or sometime early next year. One side will then really have something to sing about.

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Aug 25 2015

The Bottom Line on Times Square Topless Women

“Why can’t they do something to stop the naked women in Times Square?” my mother asked me on the phone the other day. “What do you want them to do?” I asked just for kicks. “Lock them up of course – since when was it alright to walk around in the street flapping your boobs all day?” she wondered. Well Mom, since you asked, since at least 1992 when the Court of Appeals in People v. Santorell struck down a NY law prohibiting female toplessness in public places.

In writing his own concurring opinion in the case Judge Vito Titone (no jokes about his name in the comments please) stated:

“The [prosecutors] have offered nothing to justify a law that discriminates against women by prohibiting them from removing their tops and exposing their bare chests in public as men are routinely permitted to do. The mere fact that the statute’s aim is the protection of “public sensibilities” is not sufficient to satisfy the state’s burden of showing an “exceedingly persuasive justification” for a classification that expressly discriminates on the basis of sex.”

Judge Titone noted that in many countries around the world public nudity is common in parks and beaches and it can’t be helped if our society finds female breasts more titillating than male breasts: Under the law they are equal. In NY, it is still illegal to bare your genitalia in public (regardless of your gender) and it is still illegal to perform lewd acts in public. But simply strutting your stuff from the waist up is Constitutionally-protected.

Blind but not topless

Blind but not topless

But what to do about all the topless painted women clogging up Times Square? First of all – let’s blame the Naked Cowboy. This guy had a great idea – walk around Times Square in a cowboy hat and tight shorts, using a guitar to cover the shorts, then charge money for a picture. The concept expanded to where Times Square now looks like a video game with dozens of costumed characters hawking for tips for a snapshot. Frozen princesses, Elmos, Batmen, Marios, Statues of Liberty, etc. Well, NY could regulate the commercial use of nudity in a public place but the Law Department would have to prove that asking for tips to take a picture is a commercial enterprise and then have to apply the law to all of these people not just the painted women. They could also arrest folks for aggressively panhandling but proving that can be tricky and the First Amendment protects panhandlers as well.

Mayor DiBlasio is so upset about the women, he talked about tearing up the wonderful pedestrian area Times Square has become and putting the roads back in. A horrible idea that will hurt tourism and area businesses and which would likely lead to him being impeached for felony stupidity. He could grant an exclusive license to some corporation and make it private space and then the corporation could get rid of whomever they wanted. But Fedex Times Square is not gonna happen. So what’s a City to do? It took decades for Ed Koch and Rudy Giuliani to turn Times Square from a ring in Dante’s Hell into a veritable Disneyland. And while many of my generation kind of miss the gritty, seedy, NewYork-ness of the old Times Square (by the way NYers rarely go to Times Square anymore – at least not without out-of-towners it is purely a tourist destination) the family-friendly version has been a huge economic boon to the City; the reduction in crime can also not be questioned as a hugely positive turn of events.

But its precisely because Times Square has become a family destination that many are upset to see any type of nudity going back into the space after we scrubbed it clean of peep shows and porno parlors. I think the only solution right now is to let it be. The free market will limit how many toplesss women can successfully get tips in Times Square. The more attention paid to it, the more it will become popular. After all, other topless events go on routinely in NY and don’t get much notice. For example, have you heard of The Outdoor Co-Ed Topless Pulp Fiction Appreciation Society? Every spring, dozens of women and a few men get naked, spread blankets and go read in Central Park.

Part of living in a free society is that we get into more trouble trying to restrict people than by just letting them do their thing until the idea gets tired or the market won’t support it. Trying to find a legal solution is not likely to work. So I suggest we get used to the Topless In Times Square. Sorry Mom.

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Aug 17 2015

SCOTUS Reduces Jay-Z’s Problems to 98 With Decision on Dog-Sniffing Case

It was a busy term for the Supreme Court of the United States with decisions on Obamacare and gay marriage catching all of the attention. But reading the summary of the term this morning I was surprised to see I had missed a case that dealt the right of police officers to extend a traffic stop to conduct a dog sniff for contraband. Ever since Jay-Z released his epic “99 Problems But a Bitch Ain’t One” in 2003, I have been asked by my kids, nephews, and law students whether Jay was within his rights during the second verse of the song where he describes a traffic stop when his car trunk was loaded with drugs. The issue has been argued and analyzed by law profs many times including this 20-page analysis

Well in a sharply divided opinion, SCOTUS has ruled that indeed police may not extend a traffic stop to conduct a dog sniff – even if that extension is just 7-8 minutes long. Its a resounding victory for the Fourth Amendment which has taken a severe beating during the Roberts term but its also a complete vindication for Jay-Z who told the officer when he asked him if he was a lawyer: “Well I ain’t passed the bar but I now little bit; Enough that you won’t illegally search my shit.” Indeed he did apparently. First off, here are the lyrics:

The year is ’94 and in my trunk is raw
In my rear view mirror is the mother fucking law
I got two choices y’all pull over the car or
Bounce on the double put the pedal to the floor
Now I ain’t trying to see no highway chase with jake
Plus I got a few dollars so I can fight the case
So I… Pull over to the side of the road
And I heard “Son do you know why I’m stopping you for?”
Cause I’m young and I’m black and my hats real low
Do I look like a mind reader sir, I don’t know
Am I under arrest or should I guess some more?
“Well you was doing fifty five in a fifty four”
“License and registration and step out of the car”
“Are you carrying a weapon on you I know a lot of you are”
I ain’t stepping out of shit all my papers legit
“Do you mind if I look round the car a little bit?”
Well my glove compartment is locked so is the trunk and the back
And I know my rights so you gon’ need a warrant for that
“Aren’t you sharp as a tack are some type of lawyer or something?”
“Or somebody important or something?”
Nah I ain’t passed the bar but I know a little bit
Enough that you won’t illegally search my shit
“Well see how smart you are when the K-9’s come”
I got 99 problems but a bitch ain’t one”

So the legend goes that the canine officer never came around and the traffic cop had to let Jay-Z go.
Dennys Rodriguez of Nebraska was not so lucky in a fact pattern nearly identical to Jay-Z’s lyrics. He was pulled over for driving on the shoulder of Nebraska State Highway 275. After being pulled over, the officer asks for Rodriguez’s license, registration and insurance information. After they all come back clean, the officer asks Rodriguez to accompany him to his patrol car. Rodriguez asks if he is required to do so and the officer states “No.” so Rodriguez tells the officer he’ll just wait in the car. The officer decides to let Rodriguez off with a written warning but when he hands Rodriguez the warning he asks him if he can take a walk around the car with a canine officer. Rodriguez again says No but this time the officer compels him to get out of the car while they wait for a second officer to come to assist with the canine search. 7-8 minutes pass and the dog alerts to the presence of drugs in the trunk: a large bag of methamphetamine. Rodriguez is arrested and pleads guilty on the condition that he can appeal his arrest and seizure. He was sentenced to five yeas in prison.

Both the lower court and the Federal Appeals Court stated that while holding Rodriguez on the side of the road was unconstitutional, the violation was de minimus because it had only lasted 7-8 minutes and was “not of constitutional significance.” Of course, to Rodriguez, that “minimal insignificant intrusion” would have cost him 5 years of his life.

The Notorious RBG

The Notorious RBG

Justice Ginsburg writing for the court disagreed that the intrusion was insignificant. She stated that because the officer had safely completed all the elements of a traffic stop, any further delay (without any further reasonable suspicion) of any length was an unconstitutional intrusion of Rodriguez right to be “free to leave.” Judge Ginsburg also noted that a dog sniff was not a part of a routine traffic stop but was its own separate procedure. She was joined by the other members of the liberal wing – Sotomayor, Kagan, and Breyer and also by Roberts and Scalia – a very strange six member group.

Justice Thomas wrote the main dissent in which Kennedy and Alito agreed. He argued that because the officer had seen the vehicle swerve off the road, that gave the officer probable cause and that this was not a traffic stop made just upon “reasonable suspicion” of crime. He further argued that under Nebraska law, the officer even had the right to handcuff and detain Rodriguez for the traffic violation. He stated:

Had Officer Struble arrested,handcuffed, and taken Rodriguez to the police
station for his traffic violation, he would have complied with the Fourth Amendment. But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently
committed a constitutional violation. Such a view of the Fourth Amendment makes little sense.”

Justice Thomas

Justice Thomas

But then Thomas went further in the final section of his opinion, in which Kennedy specifically wrote an opinion to make clear that he disagreed with this portion of the Thomas dissent. Thomas stated that
additional facts gave the officer “probable cause” to detain the vehicle for a longer period of time. He cited the following factors as amounting to probable cause: (1) The officer testified the car had a strong odor of air freshener emanating from it which the officer testified from his experience meant that someone in the car wanted to prevent the police from detecting an odor; (2)the passenger had his “hat pulled low” (I kid you not – just like Jay) and was “nervously puffing a cigarette;” and (3) He didn’t believe that the pair were on their way back from a trip from Norfolk to Omaha to look at a used car because “usually people leave Omaha to go get vehicles, not the other way around due to higher Omaha taxes.” Based on these obvious pieces of evidence pointing to criminality, Thomas said that the delay was justified and constitutional.

Justice Alito wrote a separate opinion to point out that the reason there was a delay was to protect the officer. The officer making the stop testified that he had the canine in his car abut because there were two people in the car, he wanted to wait for back up before bringing the dog out since his experience and training taught him that when there is an alert by the dog, it is not uncommon for folks to run or get aggressive to avoid arrest. Alito, said this was a perfectly good explanation as to why he took care of the traffic stop first and then attended to the canine search. He said it would be “perverse” to rule that his actions would have been constitutional had he just waited to actually issue the warning until AFTER the canine search. He stated it was entirely reasonable for the officer to proceed in this sequence and therefore putting all that weight on his doing the canine search after the traffic stop had been completed was arbitrary.

In her opinion, Judge Ginsburg gave short shrift to both of the dissents stating that the facts are what they aye are – the canine search prolonged the traffic stop. Whether it prolonged it before or after the issuance of the ticket was irrelevant. If it unreasonably prolongs the traffic stop, there must be independent reasonable suspicion (or probable cause) to justify. She scolded Thomas and Alito for considering whether the additional facts made out independent probable cause because that was not argued on the briefs or at oral argument before SCOTUS. She instead remanded the case back down for that consideration. So Rodriguez is not out of the woods yet.

But Jay-Z on the other hand has been completely vindicated. One line from the same song states:

I don’t know what you take me as -Or understand the intelligence that Jay-Z has

Well for one thing, he apparently has a fairly accurate understanding of Search and Seizure Law.

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