Mar 11 2015

“Blurred Lines” Verdict Will Blur the Lines of Copyright For Years To Come

Yesterday a federal jury awarded the Estate of Marvin Gaye $7.3 Million finding that the Robin Thicke and Pharrell Williams, songwriters of the hit song “Blurred Lines,” had infringed on the Marvin Gaye song “Got to Give it Up.” Even though the judge rejected the Gaye family’s most dangerous argument – – that a song’s copyright extends not just to composition of music and lyrics but also to production quality and “feel”— – the verdict is still highly troubling. The judge ruled that the jury had to make the determination based just on the sheet music of the two songs due to a technicality in the way copyright registration worked for songs recorded before 1978. And I just don;t see how the jury could make a determination that the new song infringed on the old. For all their similarities, “Blurred Lines” differs substantially and audibly from “Got to Give It Up” in both melody and lyrics. Musician Questlove, defended Thicke and Pharrell in an interview with Vulture, saying: “Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a Fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized. We all know it’s derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song — but it’s an homage.”

So what’s the difference between an homage and an infringement? $7.3 Million that’s what. Always a difficult distinction to define, this case will set a precedent that blurs the line between homage and infringement to the extent that it will produce a landslide of similar claims. Bob Dylan could sue Bruce Springsteen;Little Richard could sue the Beatles; The Beatles could sue everybody. Normally copyright infringement lawsuits rest on protectable original elements of the song that are directly or substantially copied in the allegedly infringing song. Here there is very little that is directly copied from the original song in “Blurred Lines.”

copyright logoThis decision will also make new artists more wary of writing and recording songs that derive their feel from an prior artist who influenced them. That is how a lot of new music is created in all genres. Sure, if the new artist is signed by a major label, the label can pay off the earlier artist to get permission. But unsigned or indie artists do not have access to that kind of capital and all artists already receive such a small portion of the revenue generated by music that having to share any of it with a prior artist who they feel they didn’t directly copy will be painful. And its the ARTIST not the COMPANY that bears the ultimate risk. Recording contracts with songwriter artists all contain an indemnification clause: A promise that the artist is bringing only wholly original music and lyrics to be recorded. In the clause the artist also agrees to pay any damages awarded if it is decided that the material was not original and infringed on someone’s copyright. So that means this $7.3 million may very well be coming directly out of Thicke and William’s pockets – not the label’s.

It is ironic that the Gaye family did not initiate the lawsuit. They merely sent Thicke and Williams a letter asserting their claims. Thicke and Williams’ lawyers then decided to file a preemptive lawsuit for a declaration that the song did not infringe. This is allowed by The Copyright Act and is done occasionally when you feel you have a strong hand. Of course, in hindsight, the Gaye family would have likely taken alot less money for accreditation on the song and a small royalty on future sales. What’s also ironic is that in a pre-trial deposition Thicke tried to distance himself from the songwriting credit saying it was writing exclusively by Pharrell and that he was listed as a co-writer just to appease him because he felt the song was going to be huge hit and he had insisted on a piece of the songwriting. He also testified that he accepted all the accolades for co-writing the song early on because he was high on alcohol and Vicodin most of time; he also added that he does not consider himself to be an honest person generally. But you can’t have it both ways. If you are listed as a co-writer on the copyright registration, that entitles you to royalties and makes you liable for infringement. Also, intent is not an element of infringement. Even if you didn’t mean to copy it you can still be liable if the song infringes on an earlier song. The most famous case of that principle is George Harrison’s “My Sweet Lord” which was found to be a “subconscious” infringement of the early pop hit “He’s So Fine” by The Chiffons. What I don’t understand is why Thicke’s lawyers allowed him to testify as he did when they knew it would not be a defense anyway. There was no benefit to it and made Thicke look like an idiot.

The “Blurred Lines” case is likely to have far-reaching implications especially given how tight copyright control has gotten. Prior to 1976, a copyright was good for 28 years and if you filed for a renewal, you got another 28 years. After 56 years it became public domain. That allowed for wider, freer dissemination of music, literature, and film. Copyright law always sought to balance protection with artistic freedom. The basic premise was that an artist or composer would have the benefit of the rights in the work for his or her lifetime, then the art would belong to the world.In 1976, however, as studio power and money grew to epic proportions, copyrights were extended to the author’s lifetime plus 50 years. Then in 1998, rights-holders got another extension, dubbed the “Sonny Bono Act” named after the artist-congressman who proposed the bill (though it should have been dubbed “The Walt Disney Act” because they were the biggest promoters of it). That extension gave copyright holders the rights to a work for up to 120 years. This decision, combined with the lengthy period of time and the consolidation of media companies will have a stifling effect on artistic expression.

Oh, by the way, the lawsuit brought so much attention to the Gaye song, that its sales shot through the roof.

Mar 08 2015

Truth No Consequences

People always say it would be great to be a weatherman – they say it’s the only job in America where you can always be wrong and still have a job. Well, being a District Attorney seems to also be a position where no matter how badly or maliciously you do your job, there are no real consequences. Two recent cases are just the latest examples of this frustrating reality. Both involve stories that if you saw them on TV you would think the writers had gone over the top.

The People of California v. Efrain Velasco-Palacios

Kern County prosecutor Robert Murray physically added two lines of transcript to a statement supposedly made by the defendant. The defendant was charged with molesting a child and Murray added that the defendant also confessed to having sexual intercourse with the child and said “I’m glad she’s not pregannt like her mother.” With these two sentences, Murray was able to threaten charges that carried a term of life in prison. The defense counsel, armed with this information, went and negotiated a plea deal with the prosecutor after confronting his client with the transcript. Fortunately, even though the deal was struck, the defense counsel insisted on hearing the tape before putting the plea on the record. It was only then that ADA Murray came clean and admitted he added those two false sentences.

Prosecutor Robert Murray

Prosecutor Robert Murray

Instead of a plea deal, defense counsel moved to dismiss the indictment charging prosecutorial misconduct. Murray opposed the motion actually saying that he added the liens as a “joke.” California Judge H.A. Staley who heard the motion was not laughing. He found that Murray’s falsification of evidence during discovery and plea negotiations was “egregious, outrageous, and . . . shocked the conscience.” He dismissed the indictment and in a scathing opinion, stated that Murray’s actions “diluted the protections accompanying the right to counsel and ran the risk of fraudulently inducing defendant to enter a plea and forfeit his right to a jury trial.” The court refused to “tolerate such outrageous conduct that results in the deprivation of basic fundamental constitutional rights that are designed to provide basic fairness.”

To make matters worse, California State Attorney General Kamala Harris would not let it be. She appealed the dismissal arguing that only actual physical brutality would warrant a finding of prosecutorial misconduct and the dismissal of an indictment. The appellate court disagreed, upholding the dismissal highlighting and agreeing with Judge Staley’s strong words.

Yet, despite these clear facts, Robert Murray remains employed as an Assistant DA in Kern County and will likely never face criminal charges. Of course, in addition to the harm Murray did to the justice system in general, his conduct caused the dismissal of an indictment against someone who may have committed the underlying crimes.

Louisiana v. Donald Dendinger

Donald Dendinger had the bad luck of being the uncle of a young man who wanted to sue the Bogalusa Louisiana Police Department for brutality following his being beaten during an arrest. His nephew asked him if he would serve the summons on Chad Cassard, the officer involved, and Dendinger agreed. So he waited outside the County Courthouse until Officer Cassard exited, in the company of two assistant state prosecutors and four other officers. Dendinger handed the officer the envelope containing the summons and walked away as did Cassard. But 20 minutes later, police showed up to Dendinger’s house and arrested him. He was jailed on charges of simple battery, obstruction of justice and intimidating a witness. Two of those charges are felonies, and a prior cocaine conviction on Dendinger’s record threatened to land him in jail for a long time as a repeat offender.

The sign should read "Constitution stops here"

The sign should read “Constitution stops here”

The charges lay idle for nearly a year until then-District Attorney Walter Reed officially filed charges against Dendinger. His case was backed by two prosecutors who asserted that Dendinger had assaulted Cassard. They are Julie Knight and Leigh Anne Wall. Several other witness statements also supported the case. Cassard himself claimed that Dendinger “slapped him in the chest” when he served the summons causing him to be pushed back several feet. Pamela Legendre, a staff attorney with the State’s Attorney’s Office who allegedly witnessed the hand-off, said she thought Dendinger had punched Cassard. Bogalusa police chief Joe Culpepper said that Dendinger had used “violence” and “force” in serving the summons. Dendinger was in some really hot water.

That is, he would be if his wife and nephew hadn’t recorded the whole service of process on their cell phones. It was Dendinger’s idea to record the service so the cop could not deny getting the papers. The video is grainy but it shows Dendinger calmly walking up to Cassard and peacefully giving him the envelope. It then shows both men walking away without incident. What would Dendinger do if it wasn’t recorded? – JAIL TIME that’s what. The State Attorney General took over the case after Dendinger’s attorney filed a motion to have Walter Reed recuse himself since his assistant district attorneys were going to be witnesses. Once the State AG examined the evidence, he dropped all charges.

While Ms Wall has since left the office, Julie Knight is still an assistant district attorney in Washington Parish. To date, no charges have been brought against any of the parties who filed false statements and made Mr. Dendinger endure over two years of hell and nearly ruined his life.

And you thought weatherman had it easy.

Follow Oscar Michelen on twitter @oscarmichelen

Feb 18 2015

NY Court: Low Level Sex Offenders Can Live Near Schools

The Court of Appeals, New York’s highest court, ruled yesterday that Nassau County and other localities don’t have the authority to restrict where convicted sex offenders can live. The Court voted 5-0 to strike down a 2006 Nassau County law that banned convicted sex offenders from living within 1,000 feet of a school; the Court held that only the state had the power to enact such a ban. Under current NY State law, the school ban can only be applied to Level 3 sex offenders – those at the highest risk of repeating their crimes or those with the worst and most severe prior criminal history. The Nassau ban had applied to sex offenders of any level.

lady justiceThere are currently more than 100 similar local ordinances around the state that set boundaries around parks, schools and other areas where children are likely to gather. All of those laws are now rendered invalid and unenforceable. In writing the opinion for the court, Justice Eugene Pigott emphasized that while such laws may have good intentions, the State’s police power is paramount in this scenario:

“A local government’s police power is not absolute. Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state.”

The law was passed in Nassau County in 2006. Former Nassau County Legislator David Mejias was the bill’s draftsman and sponsor. He stated that he was very disappointed in the court’s ruling and hoped that the State Legislature would move quickly to bring the State law in line with the Nassau County standard stating:

We worked very hard to draft a law that we were confident would pass muster. We researched local laws around the country that successfully fought off appellate challenges and modeled the language of this law after those statutes. Its disheartening to see the Court strike down a law designed to protect children from sexual predators. Albany needs to move quickly to address this issue and pass tighter restrictions on where sex offenders can reside.

While it is undoubtedly disturbing for folks who live near schools to think that a sex offender could move in next door to them and close to so many children, the Court of Appeals was bound y the law to act as it did. The unanimous Court decision shows the strong power given to the State to regulate a field of law if it so chooses. The Court held that by enacting various laws in the area of sex offender registration and residency, the State showed its clear intention to preempt local laws in this field. That means the ball is in the NY State Legislature’s court. Perhaps the Legislature will pass an amendment to the Sex Offender Registration Act and related laws some time soon; though various amendments have already been enacted over the years and no change was made in the level of offender prohibited from living near a school. Maybe this decision will highlight the need and desire for such legislation but many great proposals for legislation have died on the vine while waiting for Albany to act. This may be just one more.

Feb 07 2015

Oregon Upskirt Case Shows How Old Laws Can’t Catch New Crimes

They say you can’t teach an old dog new tricks, but 61 year old Patrick Buono of Portland Oregon learned that by crouching way down in the aisle of a store he could take cellphone pictures up girl’s skirts. He admittedly did that in a Beavertown Oregon Target store and captured an “upskirt” picture of a 13-year old girl. The picture captured an image of her underwear.

Security personnel arrested Buono and he was charged with two crimes: (1)attempted encouraging of child sex abuse; and (2)criminal invasion of privacy. But Friday Oregon judge Eric Butterfield acquitted Buono on both counts, stating that while the conduct was “lewd and appalling” it was not illegal as defined by the statutes. The child sex abuse charge is normally used for child pornography and required that the defendant “knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of sexually explicit conduct involving a child. . ..”; “sexually explicit conduct” was not present in the photo.

The privacy law bans clandestine photography in bathrooms, locker rooms, dressing rooms and tanning booths, but the Target aisle was none of those and was plainly public. Furthermore, the law also requires that the person being photographed or recorded be in a “state of nudity,” which specifically means that the subject’s genitals, pubic area or breasts are “uncovered or less than opaquely covered” in any way for the statute to apply. Here, while the girl’s underwear was exhibited in the photo, there was no nudity and her private area was opaquely covered. The prosecutor, Deputy District Attorney Paul Maloney, conceded that the lack of nudity was a “live issue in this case,” but he argued the charge applied nevertheless. “Sure, she’s in a public place. But she had an expectation of privacy that a deviant isn’t going to stick a camera up her skirt and capture private images of her body,” he was quoted as saying in an article about the case in The Oregonian newspaper.

The judge however went off the rails in his decision, in my opinion. In dismissing the case he stated:

“These things are not only seen but video-recorded. It’s incumbent on us as citizens to cover up whatever we don’t want filmed in public places.”

Blind and occasionally fickle

Blind and occasionally fickle

He cited the famous photo of Marilyn Monroe unsuccessfully holding her skirt down over a subway grate as an example of how upskirt sightings can occur by happenstance; he also mentioned riding up an escalator, taking a spill or exiting a car as ways that a woman’s underwear can be exposed to the public. This part of his decision is completely misguided. In all those instances, the camera is merely capturing what is in the public view. That reasoning was why a Washington DC judge recently dismissed charges against a photographer who used a high power lens to capture images up women’s skirts as they sat on the steps of the Lincoln Memorial. The “upskirt area” in that case and in the examples given by Judge Butterfield were exposed to the public view. Buono, on the other hand, used his camera to shoot from the ground up in order to capture the image. There was no reason anyone – particularly a 13 year old girl – would expect that the upskirt area would be visible to the public in that scenario. Moreover, his comment that it was incumbent for the girl to cover up the area from view begs the question: How? So his comparison of the case facts to those other situations is just plain stupid and frankly unneccessary.

I say unnecessary because the case was easily dismissable without getting into this language since the facts did not come close to meeting the words of the statute. As I have repeatedly taught my law students over the years, criminal defense always begins with a close look at the elements of the crime(s) being charged. Each term or element of the crime provides a possible defense if the actions or omission of the accused do not meet those elements. Here, no one could argue that sexual conduct was involved so the sex abuse charge had no chance. The privacy charge was similarly DOA since the aisle of the store was not a “bathroom, locker room, dressing room or tanning booth.” One of those locations was a required element. Secondly, the law required “nudity.” While a picture of a girl’s panties is lewd and sexual in nature, it is not “nudity.” So the fault lies in the law’s language, not in the girl’s failure to block an upskirt view of her underwear from the ground.

In fact, the prosecutor in this case was at fault for even bringing the charges in the first place. Yes, Buono was committing a nasty, immoral act. But his conduct did not come close to violating any crime. What was the probable cause for his arrest? What chance did this prosecution ever have from the beginning? None. I think he can even bring a claim agaist the police officers who arrested him. The judge also commented “From a legal point of view, which unfortunately today is my job to enforce, he didn’t do anything wrong.” Yeah, judges hate it when they have to enforce the law as written.

The judge should have instead used his pulpit to chide the DA and not the victim. He should have made clear that there was no crime and no basis for this prosecution. He could have perhaps made two recommendations to the Legislature if they want to capture this conduct as a crime: (1) add the words “or any other location or manner where the victim would have a reasonable expectation of privacy” to the list of locations; and (2) add the words “underwear” or “private areas” to “state of nudity.” Other states have added such language to their law to try and criminalize “revenge porn” and other new methods of lewdness that were not previously thought of or criminalized.

I’m no fan of adding to the already lengthy list of criminal statutes, but its up to legislatures to look at their laws and decide if they want to make those changes. Bringing unprovable cases is not the way to do it.

Feb 06 2015

Resist Bill! Making False Arrest a Felony is a Very Bad Idea

Yesterday, NYPD Commissioner Bill Bratton called on the NY State Senate to make the charge of Resisting Arrest a felony; it is currently a misdemeanor punishable by up to one year in prison. While it may sound good on paper this is a profoundly bad idea.

Those who practice or work in the criminal justice system know that “Resisting Arrest” is a common charge employed to cover up an excessive use of force by an officer. It is a charge prone to abuse and easy to prosecute – your only necessary witness is the arresting officer: a professional, trained testifier in a uniform. And all he has to do to make out the elements of the crime is testify that the defendant offered up any kind of mild resistance or hesitation. In fact, the most common phrase used in Resisting Arrest complaints is that the defendant “flailed his arms” when the officer tried to put handcuffs on him.

NYPDStatistics show that these charges are routinely brought by the same officers. A recent report by WNYC has discovered a startling and disturbing reality about the way that New York’s police officers operate. According to their findings, just 15% of New York Police Department arresting officers generated over 50% of all “resisting arrest” charges since 2009, while an even smaller group of just 5% accounted for over 40% of those incidents. Just 5% of the entire NYPD were involved in over 40% of the city’s “resisting arrest” incidents. What are these 5% just continually running into chronic arrest-resisters? Do they work in neighborhoods where “flailing” is taught in school? Or is it more likely that these 5% are using the charge wrongly and excessively?

Raising the charge to a felony significantly raises the stakes against the accused. Now they are facing up to 4 years in prison; 5 years probation; loss of professional licenses; loss of the right to vote; and a black mark on their record that could easily prevent future employment. Many will now be forced to cop out to misdemeanors and end up with criminal records rather than face a felony trial against police witnesses.

I get why Bill Bratton is doing it: He needs to mend fences with his police force after they started turning their backs on Mayor Bill DeBlasio at police officers’ funerals. He needs to show that he’s got their backs and will support them. But this is a bad way to do it. Police departments around the country consider frequent charges of resisting arrest a potential red flag, as some officers might add the charge to justify use of force. University of Nebraska accountability consultant Sam Walker told WNYC: “There’s a widespread pattern in American policing where resisting arrest charges are used to sort of cover … the officer’s use of force. Why did the officer use force? Well, the person was resisting arrest.” That will come as no surprise to any criminal defense practitioner. If your client is bruised or is bloody from his interaction with NYPD you can almost bet that Resisting Arrest (and the other favorite – Obstructing Governmental Administration) will will be on the docket.

Commissioner Bratton also called for laws instituting more severe penalties for fatally assaulting an officer; for attacking a school safety agent or auxiliary cop; and for wearing a bullet-proof vest. Okay – these reforms make sense but elevating Resisting Arrest to a felony gives too much power to an NYPD force that is still not trusted by much of the community it polices.

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