Jan 29 2017

It Took Trump To Make People Appreciate Lawyers

I love being a lawyer and have loved being a lawyer since I was admitted to practice more than 30 years ago. So, as a lawyer who loves being a lawyer, I have always been somewhat saddened and confused by the general population’s contempt for lawyers. We’ve all heard the numerous lawyer jokes and seen folks roll their eyes when you offer an opinion and then tell them what you do for a living. “Oh of course, you think that, you’re a lawyer.” But when President Trump issued an executive order banning travel from certain predominantly Muslim countries and when that ban caused US residents – including some green card holders – to be detained at airports throughout the country, it wasn’t doctors or plumbers that people needed. The legal staff of the ACLU and other organizations around the country – as well as a large group of volunteer lawyers – sprang into action and obtained a stay of the executive order which granted those detainees freedom and the right to travel.

April 11, 2017 is National Be Kind to Lawyers Day.

Social media exploded over its love for lawyers. It was heartening to see the ACLU lawyers cheered like rock stars as they walked out of the Eastern District Courthouse with Judge Ann Donnelly’s order in hand. Pictures of Lawyershuddled together over laptops in airports populated Facebook, Twitter and Instagram. But most lawyers work in anonymity and without any praise or thanks (and often without any payment). Yet, their work is just as important to the client they are representing. Whether its a spouse trying to get out of a bad marriage; a crime victim trying to obtain justice; or even a local business fighting a small claims dispute, they rely on lawyers to protect their interests. Lawyers are society’s protectors from overreach, negligence, and misconduct. We are here to make sure that the system works fairly for everyone. Yes, there are many of our profession who take advantage of people and manipulate the court system to their advantage, but those are few and far between compared to the thousands – tens of thousands actually – of lawyers who just do their job to the best of their ability and who profoundly believe in the equal application of the law. Sometimes we work on big, important issues, sometimes on very personal and specific ones. But no matter what, please remember that we are always working on some other person’s behalf who has entrusted us to prosecute or defend their rights.

President Trump’s executive order on an immigration ban highlighted our Constitutional system of checks and balances. It displayed the nature of judicial oversight when the Executive Branch potentially oversteps the bounds of the Constitution. It only took about ten days for there to be a Constitutional clash in the courts under this administration. There will be more; it is inevitable, particularly with the way this Executive will seek to wield power. But lawyers will be ready when called upon. We will bring challenges to policies and procedures that violate Due Process or the Equal Protection of Law. We will be there as a shield for individuals and entities harmed by unconstitutional actions or government overreach. We will take the jokes and teasing because now at least most people get some idea of why what we do is important and necessary to running of a fair democracy. April 11, 2017 is National Be Kind to Lawyers Day. Please mark your calendars.

Jan 19 2017

SCOTUS to Decide If “Scandalous” “Immoral” Terms Can Be Trademarked

In a case that presents a crossfire of First Amendment and intellectual property issues, the Supreme Court heard arguments yesterday in a case involving an Asian-American band that calls itself “the Slants.” The Slants had been denied a trademark for their name by the US Patent and Trademark Office (USPTO) under a Federal law that prohibits the USPTO from registering trademarks deemed “immoral, deceptive, or scandalous,” or that “disparage… persons, living or dead, institutions, beliefs, or national symbols.” This law came to most people’s attention perhaps in 2014 when the USPTO cancelled the trademark registration of the Washington Redskins.

While the USPTO declined to register the bands’ trademarks because “slants” is a pejorative term for Asians, the band — whose members are all Asian-American — has made it clear that the Slants name was chosen as a deliberate commentary on the state of race, culture, and music. A Federal appellate court ruled that the law was unconstitutional as it violated the First Amendment’s protection of free speech. The relevant part of the First Amendment reads “Congress shall make no law . . . abridging the freedom of speech.” Pretty straightforward on its face. And the appellate court found that by denying the Slants’ trademark request, the USPTO was abridging their free speech rights especially since the ban was based on the content or viewpoint of the speech stating: “When the government discriminates against speech because it disapproves of the message conveyed by the speech, it discriminates on the basis of viewpoint”
In First Amendment law, viewpoint restrictions are the ones that courts get most concerned about.

You can get this as long as the “R” isn’t for “Racist”

The USPTO took the appeal to the Supreme Court arguing that merely denying the trademark doesn’t stop the band from using the name; it just means there are fewer protections against others using the unregistered marks. Because the mark could still be used in commerce, the government also argued, the Slants still had their State trademark rights and could sue a competitor if that competitor tried to falsely claim they were these “The Slants.” The justices gave Marshal Stewart, the US Solicitor General who argued the case on behalf of the USPTO a hard time. The justices focused on two main issues (1) What government interest in trademark does this law promote and (2) How is it not “viewpoint” discrimination since I can say nice things about a race but not a bad thing? Stewart tried hard to make the case that a trademark should not distract from its primary purpose which is to identify the source of goods- it is not to make a statement. He had this exchange with Justice Kagan:

MR. STEWART: The — the type — the type of distraction that may be caused by a disparaging trademark will depend significantly on the precise type of disparagement at issue. That is, in the case of racial epithets, these words are known to cause harm, to cause controversy. They — in some sense they may no — they may be no more distracting than a positive message,
but Congress can determine this is the wrong kind of distraction.

JUSTICE KAGAN: Mr. Stewart, please.

For those non-lawyers who read this blog, you need to know that “Mr. Stewart, please” is the SCOTUS equivalent of “Are you f–king kidding me?”

The Court also gave John Connell, The Slants’ lawyer, an equally hard time. Their focus for him was (1) How is this restricting their speech, when all it is doing is stopping them from using a racial slur as a Federally-registered product identifier? Can you force the government to condone racial slurs by sanctioning them as protected trademarks? (2) How is this any different from other permissible restrictions on speech? For example, libel laws or commercial disparagement law that would prohibit anyone from putting out a product that said “Miller Beer is Poison.”

O’Connell chose to argue that all of those restrictions should not stop the registration of a trademark. I think taking such a hard line stance seriously hurt his argument as the Justices nearly jumped down his throat when he made it. Here is one brief exchange between him and Justice Sotomayor who was using a timely example of libelous speech:

JUSTICE SOTOMAYOR: But your argument earlier was that if someone slanders or libels an individual by saying — Trump before he was a public figure — Trump is a thief and that becomes their
trademark, that even if they go to court and prove that that’s a libel or a slander, that trademark would still exist and would be capable of use because otherwise canceling it would be an abridgement of the First Amendment?

MR. CONNELL: I believe that’s correct.

JUSTICE SOTOMAYOR: That makes no sense.

Oh boy, that’s worse than hearing “[Your Name Here], please.”

The Court continued to press Connell on what may be the defining issue – that this is just one small arena that the government has said do not use racial slurs – The Slants are free to sue them in their name, their song lyrics, their advertisements, everywhere else. Justice Ginsburg compared it to the prohibition of George Carlin’s “Seven Dirty Words” on public air waves.

With the Court attacking both counselors equally and with the broad sweeping issues at stake here, it is hard to predict the outcome. I suspect the law will be upheld because of the narrow restriction posed by the statute and that it does not really prevent the Slants from using he name in commerce. As for the Redskins? Well, they did not get their appeal through to the Federal Appellate Court in time and when they asked SCOTUS to allow them to jump over that step because of this case, the Court denied he petition. So they just have to sit on the sidelines and hope that Mr. Connell’s arguments won the day.

You can read the full text of the argument HERE

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Jan 11 2017

Getty Denies Knowing About French Lawyer’s Trolling on Its Behalf

Having waged literally thousands of battles against Getty Images’ copyright trolling program I was not surprised to see that they engaged a French law firm to attack US authors for alleged defamation in France. That’s what happened to a client of mine recently who has a blog that exposes, challenges and criticizes Getty Images’demand letter program. You can learn more about it at his site Extortionletterinfo.com (ELI) where I am a legal adviser. He received a letter from a Vanessa Bouchara of Cabinet Bouchara – Avocats, where she claims to be an intellectual property specialist. Her complaint essentially revolves around the use of the word “extortion” and it variables to describe what Getty does. We have been down this road endlessly and US courts have recognized that terms such as “extortion” and blackmail” have a secondary meaning outside the criminal charges definition. Avocat Bouchara lists about ten examples where this harsh language was used by my client and some third parties who posted on the site. She also states that she has been instructed to commence litigation should the “disparaging” comments not be removed within eight days. When my client called me about it, I told him not to worry about it. First of all the Speech Act makes foreign defamation judgments unenforceable in the United States unless the foreign findings are consistent with the First Amendment of the US Constitution. Second of all, a quick internet search revealed that French law is essentially similar – that is if the target is a foreign company who has no business in France, then the offending language must be judged by that country’s code of conduct. So I advised him that these expressions of opinion are wholly protected by the First Amendment. Third of all, France has a very short statue of limitation for defamation. A cause of action must be started withing three months of publication. That includes on-line publication. Since these statements were made years ago, the claim would apparently be time-barred in France.

When he heard the weakness of the claim, my client asked me if I thought that the attorney was acting on her own without Getty US’ knowledge and approval I said “No way.” She specifically states in her letter that she has received instructions to file suit and what would make her act on her own? The issue was picked up by my friend and colleague Eugene Volokh of the wildly popular blog, The Volokh Conspiracy. He actually reached out to Getty because, like my client, he found it hard to believe that Getty could authorize such a frivolous demand. Here is their response:

Dear Eugene,
Your inquiry to Ms Bouchara of CABINET BOUCHARA – Avocats has been brought to Getty Images’ attention and we wanted to provide the below statement from Getty Images:
Cabinet Bouchara was retained as our outside counsel in France, having previously been granted limited permission to act on Getty Images’ behalf in this region only. The firm were under no means sanctioned to contact sites outside of this jurisdiction, including in North America, however it has come to our attention that this has in fact unfortunately occurred.
This practice has been ceased immediately and we apologize for the error.
Kind regards, …

Getty’s position?

I was very surprised that they actually claimed they had no idea this French lawyer was doing that. I don’t believe to for a second. I’m not buying it for a second. This is multi-national major corporation that is second only to perhaps Disney in its attempts to protect and make money off of its intellectual property. A few years ago, they paid PicScout, a small Israeli company, over $20MM for the software PicScout developed to search websites for images and match them to the Getty catalog. They formed a separate entity, License Compliance Services (LCS), to pursue infringement claims against folks who used a purported Getty Image picture on their website. LCS now does this for almost all of Getty’s competitors so Getty is making money off alleged infringement from its competitors as well. They have employed a well-respected Seattle law firm to file a smattering of lawsuits around the country so that people who get these letters will see that they do in fact file suit on occasion. They have tried left and right to give ELI and myself headaches and battles on various fronts. So nothing about this company says they are casual about their infringement efforts. I am reminded of the French police captain in Casablanca who shuts down Rick’s Cafe because he is “shocked, shocked to find that gambling is going on here” as he receives his winnings.

Ms. Bouchara has written an apology to my client for her letter. That’s great. But I wonder if she has attacked any other bloggers in a similar fashion who maybe complied out oof fear of being dragged into a French courthouse.

Thanks also to my friend Eugene Volokh of the Volokh Conspiracy for weighing in on this. Here is a link to his article

Dec 20 2016

New NYC Law Makes Written Contracts Mandatory for Freelancers

Every holiday season, many NY City companies employ freelancers to fill a variety of roles for when the business gets swamped. Well starting in 2017, those businesses will need to comply with a new law that goes into effect May 15 2017 in the five boroughs of New York City. The law, appropriately named “The Freelancers Aren’t Free Act” protects freelance workers by (1) requiring freelancer contracts to be in writing, (2) requiring timely payment, (3) prohibiting retaliation, and (4) providing specific remedies and damages available to aggrieved freelance workers. The law does not apply to sales representatives, attorneys or licensed medical professionals. Key Points:

A. Contracts with freelancers for services of $800 or more must be in writing. That total can be reached by including the amounts for contracts between the same parties in the immediately preceding 120 days. The contract must include the name and address of the hiring party and the freelance worker; an itemization of the services the freelancer will provide; a price schedule for those services; and the date for final payment to the freelancer. That will require companies to use their legal name in the contract to make it easier for freelancers to identify who or what entity is actually hiring them.

B. The hiring party must pay the freelancer on or before the date specified in the contract. If there is no date set in the contract, the law requires the hiring party pay the freelancer no later than 30 days after the completion of the freelancer’s work.

C. The hiring party may not threaten, harass, deny an opportunity to or take any action against a freelance worker that deters the freelancer from exercising any right under the Act.

So what happens if the hiring party violates one of these provisions? The law provides clear penalties:

nyc-labor-office1. A plaintiff who proves they requested but were denied a written contract before work began is entitled to statutory damages of $250.
2. If a hiring party violates the written contract requirement plus any other section of the statute, the statutory damages will be the full value of the underlying contract in addition to damages for the other sections violated.
3. Plaintiffs who are successful in claims under the payment provision are entitled to double damages; so a freelancer who is contractually entitled to $1,000 in unpaid fees is automatically entitled to $2,000 under this section.
4. Plaintiffs who are successful in claims under the retaliation provision of the act are entitled to damages in the value of the underlying contract for each instance of retaliation.
5. A successful plaintiff is entitled to attorney’s fees.

That last provision means that plaintiff employment lawyers will be looking for these cases as the value of the case will not be a deterrent to bringing a claim under the Act.

Like most labor regulations, waivers of these statutory rights are void as against public policy. That means employers cannot get freelancers to sign a general release saying they were properly paid. The Act states that the New York City Office of Labor Standards (NYCOLS) will collect data on the effectiveness of these new laws. It may be useful at the end of 2017 to file a Freedom of Information Law request for this data to see what industries were impacted and what were the average size of penalties and legal fees awarded.

One thing is clear: We continue to see a trend on placing additional requirements and burdens on employers – large and small – to ensure that workers aren’t taken advantage of. However, many small businesses that are not getting proper legal advice will be caught in the crossfire and could face significant financial penalties for breaking laws they did not even know existed.

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