Month: August 2014

Categories
Law

Lindsay Lohan lawsuit a publicity ploy, Grand Theft Auto V maker tells court

The maker of a popular video game has asked a court to scrap a lawsuit filed by Lindsay Lohan, charging that the actress is pursuing the claim for publicity purposes.

Lohan’s lawsuit lacks merit and represents a misuse of the legal system, Take-Two Interactive Software, the maker of Grand Theft Auto V, asserts in court papers filed August 20 with a Manhattan trial court.

Any resemblance between the fictional character Lacey Jonas in Grand Theft Auto V and Lohan is a form of legally protected artistic expression and not subject to a New York law that prohibits the use of a person’s image for commercial purpose without her consent.

Lohan sued Take-Two in July, charging that the company based the Jonas character on her image and lifted events in Jonas’s story from Lohan’s own life in violation of her publicity rights.

Last year the actress lost a similar lawsuit against Armando Christian Perez, a rapper known as “Pitbull,” whom Lohan charged used an arrest and other events from her life in a song lyric without her consent.

Grand Theft Auto, which was released roughly a year ago for use on the Xbox 360 and PlayStation 3 platforms, follows a story set in the fictional city of San Andreas. The game’s characters include Jonas, who asks another character to help her escape the paparazzi.

In its filing, Take-Two points to a line of rulings that separate works of fiction from commercial appropriation of a person’s likeness. “Works of fiction like Grand Theft Auto V cannot constitute ‘trade’ or ‘advertising’ within the meaning of the statute,” Take-Two asserts.

In support of its position, Take-Two points to a line of cases, including a $100 million lawsuit filed in 1999 by Michael Costanza, a New York man who claimed unsuccessfully that creators of “Seinfeld” based the character George Costanza on his life.

“Even had Ms. Lohan not lost the Perez case last year, is case would be frivolous because the principles on which Perez relied are so well-settled,” asserts Take-Two, which asked the court to award sanctions against Lohan for filing what Take-Two contends is baseless claim.

Some experts agree. “There’s a long line of cases in New York that say the use of a fictionalized character does not give rise to a claim,” Evan Gourvitz, an attorney with Ropes & Gray in New York who specializes in intellectual property, told Forbes. “Even the thinly disguised use of a person’s identity is not illegal so long as the actual name of the person isn’t used.”

Though Lohan had pointed to a “side-mission” for the Jonas character that the actress charges mirrors her own life, Take-Two contends that the Lohan is reacting to statements by a blogger and not to representations by the game maker.

Lohan’s lawsuit comes amid claims by celebrities who charge companies with wrongfully appropriating their likenesses. In April, the actress Katherine Heigl sued Duane Reade after the retailer posted on Twitter and Facebook paparazzi photos of Heigl leaving one of its stores. Heigl and the company reportedly have settled the suit for undisclosed terms.

Categories
Law

Checklist for police encounters: A camera and the Constitution

The tragic deaths of Eric Garner, an unarmed Staten Island man who died on July 17 as a result of a police chokehold, and Michael Brown, an unarmed black man in Ferguson, Missouri who died on August 9 after being shot by a white police officer, have prompted at least one group here in New York City to teach best practices for filming police encounters.

The group, Peoples’ Justice, is the subject of a story by Reeves Wiedeman in the latest issue of The New Yorker. At a workshop put on by Peoples’ Justice that Wiedeman attended, Aidge Patterson, a coordinator with the group, began the session with a quiz that included the following exchange with a 14-year-old filmmaker:

“True of false,” Patterson said. “If you are stopped or arrested, it’s best to answer all the cop’s questions.”

“When I watch ‘Law & Order,’ they say don’t talk to the cops unless you got a lawyer,” Derek, one of the teens, said.

“Right!” Patterson said. “I’m glad they’re dropping some actual knowledge there.”

The dialogue continues, with Derek recalling an encounter with police, who ordered the teens against a wall. Could the police legally look through the teens’ pockets, Derek wondered.

“That’s a search,” Patterson said, drawing a distinction between the city’s stop-and-frisk practice and a search, which requires probable cause.

“But what if they keep going?” Derek said. “Because some cops just don’t care.”

Consequently, the cameras. Peoples’ Justice canvasses neighborhoods with a police scanner and film crews in the hope of chronicling encounters.

Brown’s death and the events in Ferguson that followed highlight how a contemporaneous recording can aid law enforcement and the public in evaluating the lawfulness of a stop. Plus, the public has a First Amendment right to record police officers.

As the workshop also suggests, knowing your rights matters too, especially the protections that the Constitution guarantees to individuals. With that in mind, and a disclaimer that the following does not constitute legal advice, here are some of the basics.

Can the police order you to stop?

Yes, the police can stop and briefly detain you for investigative purposes if they have reasonable suspicion – meaning specific and articulable facts – of wrongdoing. As Patterson notes, the police also can detain you if they have probable cause to think that you’ve committed a crime.

Must you stop if the police ask you to?

Generally yes, but what matters is whether you’re free to leave. That depends on whether you’ve been seized. A seizure occurs when, based on all the circumstances, a reasonable person would not feel free to terminate the encounter or to decline to answer an officer’s questions.

In New York, pursuit by the police is itself a seizure. So is a police officer’s twice ordering you to “hold on a second.” Of course, you’ve also been seized if you are physically restrained.

As a practical matter, if a police officer asks you to stop, and you don’t feel free to terminate the encounter, you’ve been seized.

Can the police look through your pockets?

No, unless you’ve been arrested. If the police detain you (without arresting you) because they think that wrongdoing is present, they can pat down, or frisk, your outer clothing if they reasonably believe that you possess a weapon. If the police encounter something that feels like a weapon, they can reach into your clothing to remove it.

In most states, if the officer feels an object who’s contour immediately suggests contraband (e.g., a weapon or drugs), she can seize that as well. In New York, the police can seize an item only if it appears to be a weapon. Thus, absent encountering something that feels like a weapon, the police cannot reach into or rummage through your pockets.

However, if the police arrest you, they can search your pockets, your clothing and, in most states, any containers within your immediate control. In New York, the police can only search nearby containers if they suspect that you are armed.

What should you do if you are stopped?

Remember that you have no obligation to say anything. In fact, anything you do say can be used against you later. Note that in most states, including here in New York, the police can ask for your name and identification, which you cannot lawfully refuse to provide. (If you’re later arrested, the police also can ask you routine booking questions that you have to answer.)

If you feel you are detained by the police, ask, respectfully, if you are in custody. If the answer is no, then, following a frisk (assuming the police reasonably believe you may be carrying a weapon) you are free to leave.

What are your rights if arrested?

An arrest triggers a whole series of rights under the Fifth Amendment. Many will be familiar to anyone who’s watched televised police dramas.

You have the right to remain silent. Anything you say can be used against you in court. You also have the right to the presence of an attorney. If you cannot afford an attorney, one will be provided to you if you so desire.

This so-called Miranda warning matters in several ways. First, the police must read it to you if you’re arrested. The failure to read you your rights means that prosecutors generally cannot use anything you later say against you at trial.

Second, a Miranda warning triggers other protections, chiefly the right to an attorney. If you ask for an attorney, all questioning must stop. Immediately. But your request must be unambiguous and specific, e.g., “I request the presence of my attorney and respectfully decline to answer any questions without my attorney present.”

In a future post I’ll review the right to counsel.

 

Categories
Law

Public Storage, self-storage company, must face class-action lawsuit over rental terms, court rules

Wikimedia Commons
Wikimedia Commons

A woman who rented a self-storage unit in New Jersey can sue the owner for its alleged failure to maintain the premises notwithstanding the owner’s attempt to limit its liability, a federal court has ruled.

The ruling, by the U.S. District Court in Camden, means that Jackeline Martinez-Santiago, who in February 2012 rented a storage space for $63 a month from Public Storage, can continue a class-action that she filed last December against the company on behalf of herself and other consumers.

The decision highlights the principle that a business cannot renounce responsibility to maintain its premises in a safe condition for customers. It also shows that terms in a lease agreement do not become enforceable simply because a consumer initials or otherwise assents to them.

At issue was a provision in the lease agreement signed by Martinez-Santiago that limited Public Storage’s liability for injury to people or damages to property in the absence of fraud.

Five days after Martinez-Santiago rented the unit, her then-boyfriend, Orlando Colon, whom Martinez-Santiago had listed on the lease as an “alternate contact name,” slipped on a patch of ice in front of the unit. Colon later sued Public Storage for his injuries, asserting that the company failed to keep the premises safe.

Martinez-Santiago also sought to cancel a provision in the agreement that required her to indemnify Public Storage for Colon’s claims.

For its part, Public Storage, which has about 2,200 locations nationwide, sought indemnification from Martinez-Santiago for Colon’s injury and asserted that the lease provisions are lawful under New Jersey law.

The court rejected the company’s contentions. “Businesses are in the best position to maintain their premises for the safe use of customers, and enforcing the exculpatory provisions would give Public Storage permission to be careless – negligent, reckless – in the maintenance of its property,” wrote Judge Jerome B. Simandle in an opinion dated August 14. “Public Storage has a duty to guard against any known dangerous conditions on its property or conditions that should have been discovered.”

“That Public Storage would seek to make Martinez-Santiago responsible for money defendant owed to Colon based on defendant’s alleged failure to clear snow and ice in front of its own storage unit stands outside the norm of reasonable business practice,” Simandle added.

According to the court, walking outside a storage unit is not an inherently risky activity comparable to activities such as exercising at fitness centers, which the courts have allowed to enforce clauses that shield them from liability for customers’ injuries.

The ruling reaffirms the common law rule that a business or other possessor of real estate that is open to the public at large must protect people who come onto the premises from reasonably knowable hazards. Business owners have a legal responsibility to inspect their premises at reasonable intervals and to either eliminate the hazard or warn customers of its existence.

The court also scratched a provision in Martinez-Santiago’s lease that required her to assert any legal claim against Public Storage within 12 months of the occurrence that gave rise to the demand.

The company’s reliance on the provision “would be unreasonable because the time to bring suit challenging clauses for the tenant’s liability and indemnification for Public Service’s negligence could expire before a tangible loss is suffered,” wrote Simandle, who noted that the New Jersey laws under which Martinez-Santiago sued Public Storage have a six-year statute of limitations.

“A consumer would have to be clairvoyant to challenge contractual fine print addressed to circumstances (like indemnification) that did not themselves arise when the contract was signed,” Simandle wrote.

Michael Galpern, a lawyer for Martinez-Santiago, termed the lease agreement “an incredibly anti-consumer contract where Public Storage, for years, has been taking advantage of people,” according to the New Jersey Law Journal, which first reported the ruling.

Lawyers for Public Storage did not comment.

Categories
Law

Weekend Roundup

Marijuana Laws Make U.S. a Legal Checkerboard

A patchwork of laws governing use of marijuana is turning the U.S. into a legal checkerboard, where citizens can change to criminals from law-abiding citizens simply by driving through places like Idaho, which has seized three times as much marijuana this year compared with all of 2011 thanks in part to unwitting motorists from such pot-friendly precincts as Washington, Oregon, Nevada and Montana. Read it at Bloomberg.

Ex-VP Al Gore Sues Al Jazeera Over Current Media Deal

Former Vice President Al Gore has sued Al Jazeera America, charging the Qatar-based news service with withholding $65 million that it allegedly owes shareholders of Current Media, which Al Jazeera purchased last year for $500 million. In court papers filed in Delaware, Gore and Current co-founder Joel Hyatt assert that Al Jazeera has breached the sale agreement by failing to return the funds, which are allegedly left over from $85 million of the purchase price that Al Jazeera placed into escrow to cover indemnity obligations of Current’s directors. Read it at Delaware Business Court Insider.

Daily News, WPIX Not Liable for Wrong Photo, Court Rules

The New York Daily News and WPIX will not be liable for waiting as long as nine months to take down from their online sites a photo of a man who was misidentified by police as a sexual predator, a trial court has ruled. That’s because Section 74 of New York’s Civil Rights Law shields the media from liability when it reports fairly and accurately on any judicial, legislative or other official proceeding. Still, Supreme Court Judge Edgar Walker called it “unconscionable” that the outlets did not remove a photo from their websites that they knew to be false. Read it at the New York Law Journal.

At Home with Willie Nelson

Speaking of marijuana, Willie Nelson says he doesn’t fret about getting busted. “They mostly want autographs now,” the 81-year-old singer-songwriter tells Rolling Stone, referring to the authorities. “They don’t really bother me anymore for the weed, because you can bust me now and I’ll pay my fine or go to jail, get out and burn one on the way home. They know they’re not stopping me.” Nelson, who appears on the cover of Rolling Stone for the first time since 1978, talks about his career, the “outlaw country” label and life on the road. He also gives a mini-performance accompanied by Trigger, his well-worn guitar.

Categories
Law

Adam Carolla, ‘Patent Troll’ settle podcast lawsuit

Adam Carolla (c) and colleagues (Photo by Philip Nelson/Wikimedia Commons)
Adam Carolla (c) and colleagues (Photo by Philip Nelson/Wikimedia Commons)

The end of a lawsuit by a company that charged Adam Carolla and other podcasters with infringement is being hailed as a victory in the battle against so-called patent trolls.

Carolla, a comedian who distributes his radio show via podcast, and Personal Audio, a Texas company that claims to hold patents for sending personalized media to listeners via the Internet, on Tuesday announced a settlement of a suit against Carolla that Personal Audio filed last year in the U.S. District Court in Marshall, Texas.

Personal Audio and other Patent Assertion Entities, as the trolls are more formally known, rely on vague patents to sue everyone from Fortune 500 companies to the smallest startups in the hope of a financial recovery. Apparently it’s a profitable scheme if enough people settle rather than incur the cost defending a lawsuit in court.

As part of the settlement, Personal Audio and Carolla agreed to withdraw their legal claims against each another and to refrain from commenting publicly on their dispute until September 30, according to court papers. The parties “do not anticipate further litigation,” the court papers said.

Personal Audio “has no intention of suing podcasters that are making modest amounts of money from podcasting,” the company said in a press release that accompanied the settlement. Besides dropping its claim against Carolla, Personal Audio agreed to refrain from suing popular podcasters the Nerdist, Ear Wolf, Podcast One, Joe Rogan, Marc Maron and Jay Mohr.

A growing tide of lawsuits in recent years by trolls has led public officials and businesses to call for changes to intellectual property laws. Between 2011 and 2013, the number of suits brought by trolls tripled, rising to 62% from 29% of all infringement suits, according to a report issued by the White House in June 2013.

“All told, the victims of patent trolls paid $29 billion in 2011, a 400% increase from 2005 — not to mention tens of billions dollars more in lost shareholder value,” Gene Sperling, then Director of the National Economic Council, wrote in a blog post that accompanied the report.

As part of an effort to cut down on such claims, the Obama administration last year directed the U.S. Patent and Trademark Office to scrutinize excessively broad patent claims and to require companies to state precisely what their patent covers and how it is being infringed.

The administration has garnered praise for its push. “The history eBooks will remember the 44th president for setting off a chain of reforms that made predatory patent lawsuits a virtual memory,” David Kravets of Wired wrote in March. “Obama is the patent troll slayer.”

According to The New York Times, intellectual property experts attribute the explosion in patent lawsuits to a 2011 law that requires the holder of a patent to sue each alleged infringer individually. Previously, a patent holder could sue could file a single lawsuit charging multiple defendants with infringement.

The settlement between Carolla and Personal Audio follows what appears to have been a business decision by Personal Audio that the cost of suing podcasters does not justify the financial return. As Joe Mullin of Ars Technica observed:

 The press release really includes nothing new. Through discovery, Personal Audio simply found out podcasters—even famous ones like Carolla—just don’t make that much money, so it isn’t interested in suing them.

Speculation by the Electronic Frontier Foundation, a nonprofit that advocates for civil liberties online, and others holds that Carolla settled the suit without paying Personal Audio anything, based on the latter’s announcing in July that it would drop the lawsuit. However by settling, Carolla will likely forego a chance to challenge the patent or to recover attorney’s fees.

The EFF hailed Carolla for battling back against Personal Audio, including raising roughly $500,00 for his legal defense and waging a public campaign against patent trolls. According to a blog post on Monday by the EFF’s Daniel Nazer:

Carolla, his team, and everyone who donated in support deserves massive credit for putting up such a strong fight. The podcasting community showed that it would not be shaken down. Patent litigation is very expensive and most troll targets settle early just to avoid the cost of defense. By fighting back, Carolla forced Personal Audio to actually mount a case and establish that it deserved money. That turned out to be too hard for the troll.

Still, the EFF lamented that the settlement allows Personal Audio to retain its patent, which raises the prospect of continuing claims by the firm. Personal Audio has reportedly sued deeper-pocketed defendants, including NBC, CBS and Fox.

According to the EFF, the cost of defending against an intellectual property claims encourages firms like Personal Audio. “Trolls know this and use the cost of defense to extort settlements,” Nazer wrote. “In the rare case where someone shows a willingness to fight to the end, the troll will often save its patent at the last moment with a walk-away deal.”

Carolla’s settlement will not impact a challenge to Personal Audio’s patent that the EFF is mounting before the Patent Trial and Appeal Board, the Patent and Trademark Office’s administrative law arm, Nazer said.

Categories
Law

New York City circumcision law subject to strict scrutiny, court rules

Ultra-Orthodox Jews in Brooklyn / Wikimedia Commons
Ultra-Orthodox Jews in Brooklyn / Wikimedia Commons

The City of New York is facing a higher legal hurdle in its efforts to tamp down transmission of a deadly form of the herpes virus that can occur during some types of Jewish circumcision.

City officials must show that a prohibition against a person performing oral suction of the circumcision wound without the written consent of the parents or guardian of the infant being circumcised is not religiously motivated, the U.S. Court of Appeals for the Second Circuit held in a decision released last Friday.

The ruling, which addresses a ritual act known as metzitzah b’peh, or MBP, means that a regulation adopted by the city in 2012 that requires parental consent will be struck down if officials cannot demonstrate that the law does not purposely interfere with the rights of the plaintiffs, who include several ultra-Orthodox Jewish groups and rabbis who perform circumcisions.

The city contended that the regulation only incidentally burdens the plaintiffs’ rights under the First Amendment, which prohibits laws that interfere with the free exercise of religion. The regulation should be upheld so long as the court finds that it has a rational basis, the city argued.

The appeals court sided with the plaintiffs, finding that regulating conduct that is done for religious reasons only does not, by itself, contravene the Constitution. However, “where the object of the law itself is the regulation of religious conduct – the law is subject to heightened scrutiny, and not to rational basis review,” Judge Debra Ann Livingston wrote for the three-judge panel.

At issue is the practice of MPB, which city officials say contributes to about 10% of herpes simplex virus, or HSV, infections among infants that occur after birth. Because newborns lack developed immune systems, about one-fifth of infants who contract HSV die from the infection, while those who survive can suffer brain damage.

New York City has about 15 cases of neonatal HSV infection a year, among roughly 125,000 live births, according to evidence presented at trial.

In 2012, the plaintiffs sued the city, charging that the regulation burdens their free exercise of religion and should be subject to strict scrutiny by the courts. The plaintiffs contend that Jewish religious authorities deem MBP to be the only acceptable means to enact metzitzah.

In her opinion, Livingston contrasted two of the U.S. Supreme Court’s leading decisions interpreting the Free Exercise Clause. The first, a 1993 decision, struck down a city ordinance in Hialeah, Florida that the court found aimed solely to suppress animal sacrifice by adherents of Santeria. The second, a 1990 case, upheld Oregon’s prohibition on ingesting peyote, finding that the law was not specifically directed to religious practice, despite claims by two Native Americans that they had consumed the drug for religious reasons.

Livingston concluded that New York City’s regulation governing the practice of MPB is the type of law at issue in the Hialeah case. “The regulation purposely singles out religious conduct performed by a subset of Orthodox Jews,” she wrote. “And the regulation applies exclusively to the religious conduct performed by this religious group.”

“Thus, while the interests at stake in this litigation are serious on both sides, requiring the most careful calibration, the method for this calibration cannot be a mere rational basis, Livingston added. “Strict scrutiny must apply.”

At trial, the City of New York introduced the testimony of an expert from the Centers for Disease Control and Prevention who characterized the evidence tying oral suction to neonatal infection of HSV as “strong, consistent and more than biologically plausible.”

New York City logged 11 confirmed cases of HSV in infants born between 2000 and 2011 who had undergone a circumcision that likely involved oral suction, according to a study performed by the city’s Department of Health & Mental Hygiene.

According to the city, the rate of HSV infection following direct oral suction is three to four times greater than for males born in New York City who did not have oral suction.

Though Jewish law requires that male children be circumcised on the eighth day after their birth, the practice of MPB occurs primarily among members of the Satmar, Lubavitch and other Hasidic sects. The city conceded at trial that MBP is the only conduct covered by the regulation.

For their part, the plaintiffs charged that the study cited by the city in support of the regulation contains insufficient evidence to determine that the tie between MBP and HSV transmission has resulted in actual infections. The plaintiffs also asserted that mohelim, the rabbis who perform MBP, are trained to take steps to prevent the spread of HSV, including refraining from performing circumcisions if they exhibit any symptoms of HSV infection.

The city adopted the regulation about seven years after it first warned rabbis, religious leaders and physicians of the risks of MPB.

The 2nd Circuit’s ruling does not mean that the plaintiffs will succeed in overturning the regulation.

“The Department has asserted interests that are substantial and may prove, on analysis, to be compelling,” Livingston wrote. “Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.”

The plaintiffs hailed the decision as a “great victory,” and said they remain ready to work with city officials “to protect our children’s health while fully respecting and accommodating our religious practice,” according to a report by Reuters.

The city’s law department had no comment on the ruling.

Categories
Law

Brooklyn deli owner not liable for terror tabby

Jennifer Barnard / Wikimedia Commons
Jennifer Barnard / Wikimedia Commons

What responsibility do you have if your pet hurts someone?

That’s the question that arose after Eileen Napolitano and her schnauzer entered the Boro Park Deli Grocery in Brooklyn’s Borough Park section a few years ago. As reported Tuesday in The New York Law Journal, a large, gray cat stepped out from a shelf of Entenmann’s cakes and flailed at her dog. Napolitano contended that when she picked up her pup, the cat attacked her right leg and injured her calf.

Napolitano sued the deli in a case that presented the issue whether the deli’s owner had a reason to suspect that the feline was dangerous. At trial, the owner contended that he had no reason to suspect that the cat was dangerous. He also alleged that it wasn’t his cat. Napolitano introduced evidence that the owner had kept the cat at the deli at least 10 days prior to the incident.

Picturing the scene?

Judge Francois Rivera of the state Supreme Court in Brooklyn rejected Napolitano’s claim because she was unable to prove that the owner knew of the animal’s propensity to attack.

The New York Law Journal cites several decisions in recent years by the state’s courts that reinforce Rivera’s holding, which, as the publication notes, is based on a refusal to recognize negligence as a cause of action against owners of domesticated animals. Here in New York, you’re not liable for negligence if your pet or domesticated animal hurts someone. But you will be liable — without any examination of fault — if you knew of the animal’s dangerous or vicious propensities.

That policy, which is sometimes referred to as the “one bite rule,” distinguishes New York from states that hold pet owners liable for negligence if the owner fails to take reasonable steps to safeguard people who visit their homes or business premises.

Some New York judges have suggested that it’s time to jettison the policy. In a 2006 ruling, New York’s Court of Appeals, by a vote of 4 to 3, denied recovery to Larry Bard, a self-employed carpenter who suffered a lacerated liver and fractured ribs after being charged in a pen by Fred, a hornless dairy bull who roamed the enclosure for the purpose of impregnating cows.

The evidence produced at trial established that prior to the incident Fred had never threatened anyone. That led the court to conclude that the owner of the dairy farm was not liable for Bard’s injuries.

Writing for the majority, Judge Susan Phillips Read reaffirmed the state’s refusal to subject owners of domestic animals to liability for negligence. According to Read:

We have never, however, held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Similarly, we have never held that male domestic animals kept for breeding or female domestic animals caring for their young are dangerous as a class. We decline to do so now, or otherwise to dilute our traditional rule under the guise of a companion common-law cause of action for negligence.

However, some of Read’s colleagues faulted the majority’s logic. “Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull,” wrote Judge Robert S. Smith in dissent. “Why should a person hit by a subway train be able to recover and one hit by a breeding bull be left without a remedy?”

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Law

Florida artist pleads guilty to smashing Ai Weiwei urn

Photo by Cathy Carver / Perez Art Museum Miami

A Florida artist is accepting responsibilty for turning a work by Ai Weiwei into a vessel for his frustration.

Maximo Caminero on Wednesday entered a plea of guilty to a charge of criminal mischief for smashing a colored vased by the dissident Chinese artist that formed part of an exhibit at Miami’s Perez Art Museum.

Under the terms of the deal, Caminero, 51, agreed to 18 months’ probation, payment of $10,000 restitution to a company that insured the vase, and 100 hours of community service at area art programs.

Caminero also issued a letter of apology, according to the Associated Press, which first reported the plea. In the missive, Caminero says he was protesting what he thought was a dearth of support by the museum for local artists. However, Caminero now says that he was wrong.

Under Florida law, criminal mischief, which entails the willful and malicious destruction of the property of another, is a felony in the third degree and carries a prison term up to five years.

The vase that Caminero destroyed, one of 16 in an installation of Ai’s work, reportedly was valued at $1 million.

Ai, who famously smashed an urn from the Han dynasty, told the South China Morning Post that shattering a piece of art is only acceptable if you own it.

Categories
Law

Monkey selfie

David Slater / Wikimedia Commons
David Slater / Wikimedia Commons

David Slater doesn’t want you to see the photo that adorns this page. At least not without my compensating him for the right to display it.

That’s because Slater, a wildlife photographer from the U.K., contends that he owns the copyright to the selfie, which is freely available via Wikipedia. Wikimedia, the nonprofit organization that sponsors Wikipedia, denied a request by Slater to take down the image from Wikimedia Commons, the organization’s repository for images in the public domain.

Anyone can download and use the file so long as they credit the source and author appropriately.

Wikimedia declined to remove the photo because Slater did not take it. More specifically, the image “was taken by a macaque in Sulawesi, with David Slater’s camera,” according to Wikimedia. “As the work was not created by a human author, it is not eligible for a copyright claim in the U.S.”

All concerned agree that the macaque snapped the photo. Under U.S. law, to be eligible for copyright registration a work must be the product of human authorship. According to Section 503.03(a) of rules published by the Copyright Office:

Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

Slater argues that hauling his camera to Sulawesi, setting it up there and leaving it undisturbed long enough for the monkey to get busy makes him the author of the photograph regardless of who pressed the shutter. “I own the photo but because the monkey pressed the trigger and took the photo, they’re claiming the monkey owns the copyright,” Slater told The Daily Mail.

The contention hasn’t swayed Wikimedia, which, in a report published recently, notes that it received a takedown request from Slater claiming that he owned the copyright to the photograph. “We didn’t agree, so we denied the request,” Wikimedia reports.

Nor has Slater swayed many commentators. Jay Caspian Kang, writing in The New Yorker, notes that despite Slater’s comparing the monkey to an assistant, Slater not only didn’t ask the macaque to take the photo but later took the camera away from the monkey.

Without intent…clear direction (monkeys do not listen to anyone), or an employer-employee agreement (no monkeys signed anything), Slater’s claims that the monkeys were acting on his behalf are absurd. If any reasonable person left her laptop in a café, and a poet picked it up, opened up a word-processing program, and typed out this generation’s Dream Songs, could she reasonably ask for much more than her laptop back? And, since the poems were so good, maybe a selfie with this new Berryman?

Slater intends to take the fight to court. There’s money at stake. ‘I’ve lost tens-of-thousands of pounds and I have every right to sue [Wikimedia] for a loss of earnings,” he told the Daily Mail.

Legal experts don’t think he has a case. Charles Swan, of Swan Turton, a law-firm based in London, told Time that the photo has to be the author’s own creation.

“The fact that [David Slater] owns the camera has nothing to do with it,” Swan said. “To have copyright, you’ve got to create something; it has to be an expression of your personality. That’s not. Obviously, [since the monkey is not a person] there is no copyright in that picture.”

If the case does advance to trial, the monkey might make for a less-than-helpful witness. “He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus,” Slater said, referring to the macaque. “He obviously hadn’t worked that out yet.”

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Law

Bar exam candidates sue provider of testing software

Happily it’s rare that I have personal knowledge of the matters at issue in a lawsuit.

However, I know something about the charges contained in class-actions filed recently by bar exam candidates against a software maker whose system left tens of thousands of test takers struggling to upload their answers for grading.

That’s because I was one of those test takers.

On August 4, Philip Litchfield, a May graduate of Chicago-Kent College of Law, filed a lawsuit against ExamSoft Worldwide Inc., in the U.S. District Court for the Northern District of Illinois.

A day later, Catherine Booher, a graduate of Wake Forest University School of Law, and Gonzaga University Law School graduate Christopher Davis, filed a similar suit against the company in the U.S. District Court for the Eastern District of Washington. A third lawsuit against ExamSoft reportedly has been filed in the federal district court for northern California.

ExamSoft supplies the software that allows bar candidates in dozens of states to type their answers to essay questions and upload the response to a computer server. A glitch in the company’s systems on July 29, the first day of the two-day exam, left thousands of candidates, including me, struggling to transfer our answers.

“The total collapse of the ExamSoft upload system (including its upload servers, website, and phone system) stemmed from its wholly insufficient infrastructure that was unable to process the thousands of bar exam results in real time,” Litchfield charges in court papers. “This failure occurred despite the fact that ExamSoft knew well in advance of Exam Day exactly how many applicants had registered and paid to use the SofTest program.”

Test takers pay between $125 and $150 to use ExamSoft’s system, which allows candidates in 42 states to type use their computers to complete the so-called essay portion of the bar exam as opposed to having to write the answers using pen and paper.

Here in New York, where I took the bar exam, the software connects to the Internet the first time a candidate goes online after taking the exam. The rules in New York required those of us who typed our essays — by my anecdotal count the great majority of candidates — to have uploaded our answers no later than 6:30 p.m. on the exam’s second day, roughly 25 hours after completing the essays.

Of course, test takers have an incentive to upload their answers as soon as possible because until ExamSoft acknowledges receipt of the answers the candidate bears the risk of missing the deadline.

Upon leaving the testing center the first day, I headed to the nearest Starbucks, where I hoped to use the Wifi connection to transfer my answers via SofTest, the name of ExamSoft’s program. However, when I tried to log in I received messages telling me that the system was unavailable. The jam continued that night, when I gave up trying to transfer my answers and turned my attention to reviewing my notes for the so-called multistate portion of the exam the next day. Around 10:30 p.m. I received an email from ExamSoft acknowledging the delays and advising me that the company was working to solve the problem.

I finally uploaded my answers around 5:30 a.m. the next day. Several fellow test takers with whom I spoke that morning reported similar jams, which, understandably, caused plenty of candidates to freak out, judging by the torrent of messages that flew across Twitter and other platforms. “Bar takers around the country are in full-on meltdown mode,” wrote David Lat, managing editor of AbovetheLaw, an online site that covers law firms and the legal industry, amid the outage.

ExamSoft attributed the problem to changes to the system. “Unfortunately, (recent) upgrades, made in an attempt to improve the exam taker experience, played a role in the post-exam processing delay that some bar exam takers experienced on July 29, despite system field performance review and ongoing monitoring,” Ken Knotts, an ExamSoft vice president, told the Associated Press in a statement.“We can confirm that this was not simply a matter of the large volume associated with the July 2014 exam.”

Knotts added that the company is not aware of any student who missed his or her deadline.

Still, Litchfield contends that the system’s poor performance resulted in significant emotional distress to candidates. The company “was fully aware that tens of thousands of individuals nationwide would attempt to upload their exam results within a very small window of time…,” he alleges.

“They knew that this was happening and we’re already so unbelievably stressed out as it is,” Booher told the AP. “They’re not getting punished, they’re not apologizing for adding to our mental anguish. Had they just come out and said, ‘Oh, my God, we are so sorry’ and refunded my money, maybe it would have been different.”

The lawsuits, which were first reported by the National Law Journal, also accuse ExamSoft of deceptive business practices, breach of contract and negligence.

Though the system obviously did not work as intended, it remains to be seen whether any candidate can show that the outage prevented him or her from uploading answers by deadline.

Further, while ExamSoft has earned heaps of bad publicity, it is unclear whether the plaintiffs will be able to produce evidence sufficient to support a claim of emotional distress, which generally requires a person to show that he or she experienced some physical symptoms as a result of the defendant’s negligence.

I will not join the class action, which to me is much more interesting to write about. Under court rules, ExamSoft has 21 days after being served with a complaint to answer.