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!

 

 

Jun 09 2014

Federal Appeals Court Explains Significant Limits on Architecture Copyright

Architect James Zalewski had apparently seemed to do everything right. He drafted plans for his version of an American Colonial house; he filed and obtained copyright registration for the plans; when two local builders wanted to use his plans to develop homes, he made them pay for licenses to use the plans; when they then had a new architect make new plans off of his designs after the licenses expired, he brought suit in Federal court in the Northern District of New York.  The court dismissed his lawsuit and awarded attorney’s fees saying that there was nothing protectable about his designs. In upholding that ruling, the Second Circuit (the Federal Appeals Court  that covers New York) took the time to clarify how NY Federal courts will review architectural copyright claims. Essentially, the court determined that most architecture relies on some prior basic concepts and that an arrangement of those concepts in a particular way does not constitute a copyrightable work.

The court first quickly explained that when the Congress drafted the Copyright Act of 1976 it left out “architectural works” as works of art subject to copyright. But when Congress sought to bring the Copyright Act in line with the Berne Convention (an international agreement that governs copyright protection which requires member nations to protect architectural designs) it passed the Architectural Works Copyright Protection Act of 1990 and added “architectural works” to the list of protectable material.

The court then set out the three elements necessary to prove an infringement claim regarding architectural works:  1) that the work is protected by a valid copyright, 2) that the defendant copied the work, and 3) that the copying was wrongful. These three elements are actually applicable to all infringement claims not just those dealing with architecture. Because the plaintiff had registered his plans with the Copyright Office, item #1 was established. Reviewing the two sets of plans involved, the court flet that item #2 – copying- was also established.  But the issue came with item #3 – was the copying wrongful.  In order to be wrongful, the court said the copying  must copy protectable elements of the designs. In so holding, the court rejected the defendant’s argument to apply the standard used by the Eleventh Circuit in an architecture infringement case called Intervest Construction, Inc. v. Canterbury Estate Homes, Inc.  In that case, the court said that all works of art fall into three categories each with its own level of protection – (1) creative (wholly original); (2) derivative (arising out of a previous creative work) or (3) compilation (combination or collection of creative and derivative works). The Intervest court said architecture falls into the compilation category which is afforded the weakest protection. The court here said that this basic categorization is not supported by the Copyright Act and should not be applied. Instead it held that courts should treat architecture cases no differently than any other copyright infringement case. It recognized that all art incorporates basic “scenes a faire”  that kind of come with the territory. For example,  a gunfight between cowboys and Indians in a western movie. Similarly, the court said,  “merger doctrine” instructs that some ideas can only be expressed in a limited number of ways – single words or colors for example. When expression is so limited, idea and expression “merge” so that there is nothing protectable about that particular expression.

 

Classic Colonial home design circa 1920

Classic Colonial home design circa 1920

Applying those tow doctrines to the plans at issue, the court found that Zalewski basically just drew his version of a classic American Colonial home.  His plans -which called for a front door at the center of the home, with a porch in either side – was merely a merger of the idea of a basic Colinial home and that these elements were mere scenes a faire associated with a Colonial home.. The Court stated:

Plaintiff can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, and kitchen
counters against the kitchen walls. Furthermore, the overall footprint of the house and the size of the rooms are “design parameters” dictated by consumer preferences and the lot the house will occupy, not the architect. Finally, most of the similarities between Plaintiff’s and Defendants’ designs are features of all colonial homes, or houses generally. So long as
Plaintiff was seeking to design a colonial house, he was bound to certain conventions. He cannot claim copyright in those conventions.  

   Because plaintiff chose to work in such a conventional and classic style of architecture, he cannot claim copyright  infringement when the defendants merely copied his expression of a style that is essentially in the public domain. The court offered the Guggenheim Museum in New York, designed by Frank Lloyd Wright as an example of an original copyrightable architectural design.

The messages in this case are two-fold: (1) Not all copying is wrongful and (2) If you want protection for your design be creative, be new and break away from traditional architectural concepts that have been around for decades. Otherwise your “infringer” will just be found to have copied  from a copy and you’ll find yourself possibly paying his legal fees besides.

   

 

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