Marc J. Randazza's blog

Copyright in Tattoo Case: Escobedo v. THQ, Inc.

Excerpt from Escobedo v. THQ Inc. lawsuit

A tattoo artist sued THQ, Inc., the makers of an Ultimate Fighting Championship (UFC) themed video game, for copyright infringement. The artist tattooed a lion on fighter Carlos Condit's torso, and claims that it was his original creation. (Complaint at 12.) The artist alleges that he created the original design, and owns a registration for the copyright to the design. (Compl. at 16.) He claims that by using the work in a video game, depicting Carlos Condit, THQ infringed upon his copyright in the work.

A press release issued by the firm representing the artist, Christopher Escobedo, states:   read more »

Nevada Needs A Revised Anti-SLAPP Statute, But The Ninth Circuit Gives Us Some Daylight

As a lawyer licensed in five states (MA, FL, CA, AZ, and NV) and who practices free speech law nationwide, I am in a position to comment on the relative merits of various states' views on First Amendment principles. Among the many states where I have worked on cases, Flori-duh is the worst. Hands down.

It has no anti-SLAPP law to speak of. Its state legislation intended to deter frivolous litigation, Fla. Stat. 57.105, looks great on the books but is a "paper tiger." While the statute was amended in 2002 to give it some real teeth, the state judiciary generally does not apply it. As a result, Flori-duh is a hotbed of frivolous SLAPP litigation.

If Nevada does not update its anemic anti-SLAPP law, it bears the risk of becoming the Florida of the West – at least with respect to frivolous SLAPPs. That risk is laid bare for all to see in the recent case of Metabolic Research v. Ferrell, despite the fact that the Ninth Circuit seems to have tossed in a prescription to cure some of the symptoms of the Nevada anti-SLAPP statute's lack of a fully developed spine.

What Happened?

From the Ninth Circuit's opinion:   read more »

No, Sandra Fluke Does NOT Have a Valid Defamation Claim Against Rush Limbaugh

A Note from the Staff of the CMLP: This post contains a candid discussion of First Amendment issues, including the use of terms that some readers might find offensive. We do not censor such terms in a blog contributor's post when relevant to the topic discussed, because we believe that an analysis of the constitutional right to use certain language requires the freedom to discuss that language plainly and openly. This same principle generally applies to reader comments in response to a post (although comments remain subject to our Website Terms of Use, and we reserve the right to remove or edit comments at our sole discretion). Please read at your own risk. 

Why we have a First Amendment; show your love for It

When I hear Rush Limbaugh's voice, I want to vomit. I despise just about everything that pill-addled, hate-spewing, disgusting piece of human tripe has ever said. The thought of him being thrown off the air and silenced forever makes me swoon with joy. A man can dream, after all.   read more »

Not THAT kind of Brotherly Love

The NAACP and the ACLU filed suit against the City of Philadelphia over a refusal to accept an advertisement for placement at Philly International Airport. (source)

The billboard reads: "Welcome to America, home to 5% of the world's people & 25% of the world's prisoners." (A larger image of the billboard is available at the NAACP's website.)

The City claims it rejected the ad because of a policy against "issue" and "advocacy" billboards. However, the suit alleges that the City has allowed such ads in the past.   read more »

Bigfoot Spotted Fighting for Free Speech at the New Hampshire Supreme Court

Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff's motion for summary judgment.

The facts of the case are nothing short of awesome.  read more »

Dan Snyder is butthurt, SLAPP suit ensues, Irony meter pegged

Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.

Snyder filed a frivolous defamation suit against the Washington City Paper ("WCP") based upon an article "The Cranky Redskins Fan's Guide to Dan Snyder."

Snyder accuses the WCP of spreading "lies, half-truths, innuendo, and anti-Semitic imagery" to defame him, seeking $2 million in damages.  The amount is split between two claims, the first for defamation and the second for false light.  The "anti-semitic imagery" he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder's photograph in the WCP, which can be seen here.   read more »

First Amendment Alert! Author arrested for writing a book

I'm the first to admit that Phillip Greaves is not the most sympathetic figure in America. Greaves wrote "The Pedophile's Guide," which was originally for sale on before the online retailer bowed to public pressure and pulled the book from its online shelves.

I don't necessarily have a problem with that.

But, I have a big problem with today's developments. The Orlando Sentinel reports that Polk County Sheriff Grady Judd had Mr. Greaves arrested in Pueblo, Colorado on obscenity charges.

Lets remember that Grady Judd's jurisdiction is home to meth labs, cops who diddle children, and a pretty high incest rate.

Despite the "real crime" in his jurisdiction, Judd instructed his detectives to request an autographed copy of the book. Mr. Greaves obliged and Judd used that as his justification for having Greaves indicted on obscenity charges in his little caliphate of inbred-methistan.

Greaves told ABC News last month he wasn't trying to promote pedophilia and was not himself a pedophile: "I'm not saying I want them around children, I'm saying if they're there, that's how I want them to [behave]." (source)   read more »

Indian Court Rules Against Blanket Prohibition on Sexually Themed Websites

An Indian NGO filed a petition before the Bombay High Court seeking a blanket prohibition on websites that display any "material pertaining to sex." The justification for the proposed ban was that this material "is harmful to the youth of this country in their formative years." (Op. at 1).

The Indian Information and Technology Act (ITA) prohibits sexual content in a manner that might be seen as akin to American bans on obscenity.

Under Section 67 of the ITA, publishers can be sentenced to three years imprisonment for dissemination of any material "which is lascivious or appeals to the prurient interest" or "if its effect is such as to tend to deprave and corrupt persons" who are likely to read or see the material.

The Petitioner sought to have the court direct the Indian government to pro-actively shut down any websites containing sexually explicit themes. However, in rejecting the petition, the High Court ruled declared that the Court is a "protector of free speech to the citizens of this country." (Op. at 2).

The Indian Court did not go so far as to say such websites were protected speech in India. The court reminded the petitioner that if there were specific websites at issue, then they could bring a direct complaint under the ITA. However, the Court would not compel the Indian executive branch to begin a campaign of seeking out and shutting down sexually themed websites.

Could a National Anti SLAPP Law be on the Horizon?

Congressman Steve Cohen, D-TN is our First Amendment Bad Ass of the week.

Mr. Cohen introduced The Citizen Participation Act, a federal anti-slapp bill. The bill describes its purpose as follows:

To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, and for other purposes.

It is about time.

SLAPP suits are all-too common and are a scourge on our legal landscape. Personally, they have been good for me, as I earn a significant income by defending these kinds of suits, but as much as I love money, I love free speech more (and I'm sure that I could sell that time elsewhere). A SLAPP suit is a "Strategic Lawsuit Against Public Participation." In other words, it is a lawsuit that some hosebag files against a critic -- not because he hopes to win anything, but because the mere filing of the suit is punishment enough for the critic. Lawsuits are expensive, and when a rich douchebag has plenty of money to spend on attorneys's fees, he can afford to sue a couple of critics, thus scaring the bejesus out of anyone else who might criticize him.

The Public Participation Project had this to say about SLAPPS:

Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.  read more »

Avast! The Pirate Bay's Intellectual Property's Been Boarded!

If you haven't heard of The Pirate Bay by now, you may want to emerge from that cave, wipe the sleepies from your eyes, and start getting caught up on your backed up WIRED magazines in the bathroom. The Pirate Bay (TPB) is a website run by a few Swedish intellectual property anarchists. TPB provides a comprehensive indexing service for BitTorrent files. In plain English, TPB is the backbone of one of the most comprehensive copyright infringement schemes to ever exist. And, TPB isn't just about "free information," as it makes a significant income from sponsored ads on its webpage, to the tune of about $65,000 per month. TPB denies that it makes very much money, claiming that most of the income goes to supporting the infrastructure of the site. In April of 2009, its principals, Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström were sentenced by a Swedish court to one year in prison and a $3.6 million fine. (source) The verdict is under appeal.

In a strange case of turnabout, a commercial entity in Sweden has hijacked TPB's iconic logo. TPB has always allowed others to use the logo, without restriction, as a demonstration of their anti-intellectual property ethos. However, Sandryds Handel, AB took the sharing a step too far.   read more »

Former Rep Ted Klaudt claims "common law copyright" in his name to try and suppress news stories about him raping his kids

We sure do see a lot of intellectual property abuse around here. This has to be the best one yet. Former South Dakota State Representative Ted Klaudt claims that he has a "common law copyright" in his name, and thus any news organization or other publication that uses his name must pay him a licensing fee of $500,000. (source)

It gets better.

Mr. Klaudt apparently started sending notices of his "common law copyright" to news agencies in order to stop them from reporting on the fact that he is serving time for raping his foster daughters. Klaudt was convicted on four counts of rape for fondling his underage foster daughters in "examinations" that he performed on them under the ruse of claiming that he was going to help them sell their eggs to infertile couples. The sick bastard got 44 years in prison for rape and another 10 years for tampering with witnesses in his trial.

Klaudt's letter to the Associated Press claims that anyone who wants to use his name must "file a written request 20 days in advance," and that he would pursue claims against anyone who violated the notice.

I can't be certain what the motivation for this move might be, but I presume that Klaudt doesn't like the fact that news organizations like to inform the public about sick bastards who molest their own kids -- especially when they happen to be lawmakers (or ex-lawmakers as it were). I guess he figured that this would convince a few people to stop using his name.

Guess what Klaudt, you just made yourself even more famous, short eyes.

Hipcheck16 Is No Turk 182 - But Anonymous Political Speech Is Sacred

This one is a little disturbing.

Political Race Gets Nasty

During an election in Buffalo Grove, Ill., an online debate started about a candidate for Village Trustee, Lisa Stone. During that debate, this public official's 15 year old son, Jed, got a little upset about some harsh statements lobbed at his mother, so he joined the debate -- in particular, getting into a flame war with "Hipcheck16".   read more »

"But We're Just An Innocent Web Host" Ain't Gonna Cut It

Well, yes, you actually do have to worry.  If you are an online service provider, the DMCA is not a magic shield.  Do your homework and keep your eyes open, or you'll get tagged as hard as the actual infringer.Akanoc Solutions Inc., Managed Solutions Group Inc., and Steven Chen, the owner of the two companies learned the hard way that being a web host doesn't make you automatically free from liability for copyright and trademark infringement committed by your customers. The ISPs involved hosted websites that sold knock-off Louis Vuitton goods, and they were made aware of that fact. A jury found that they knew, or should have known, that their customers were using their services for this purpose, and tagged the web hosting company for a $32 million verdict.

Chen's lawyers argued that he and his companies were protected from being assessed damages under the DMCA, which generally does protect online service providers from these kinds of suits. However, given that Chen's companies both provided the infrastructure for the infringement scheme and that they were made well aware of the activity, but turned a blind eye to it, they lost their immunity. See Computerworld.

The case is Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., U.S.D.C., Northern District of California, Case5:07-cv-03952-JW. The complete case file is available here, on Justia. Important case documents:   read more »

Barnes v. Yahoo: Section 230 Does Not Insulate Online Service Provider From Contractual Liability

This is an interesting Section 230 decision from the Ninth Circuit that clarifies one of the many possible lines between enjoying Section 230 protection and losing it, namely what kinds of legal claims treat an interactive computer services as a "publisher or speaker" within the meaning of the statute and what kinds do not. It should also serve as a cautionary tale for online service providers including bloggers who allow comments.

Ms. Barnes' ex-boyfriend is a bit of a douchebag. After they broke up, he created a fake personals ad for her on Yahoo and impersonated her on various online forums:   read more »

Orlando Police Chief v. The First Amendment

There aren't too many elected officials in Flori-duh that I respect. Orlando Police Chief Val Demings, used to be one of the select few. She hasn't done a perfect job, and had a particularly embarrassing incident in which her gun was stolen. Nevertheless, my general impression of her has been that she is competent and ethical.

Not anymore.

Val Demings vs. the First Amendment

The Orlando Sentinel reports that Demings is threatening to sue an Orlando resident for creating a website that criticizes her performance in office.   read more »

If the Speech Can't Be Taken Seriously, It Can't Support a Claim For Defamation

In Gardner v. Martino, the 9th Circuit handed down an important ruling that should be required reading for any opportunist looking to turn mere hurt feelings into a defamation suit payday. Tom Martino is a talk radio host who is prone to make the kinds of statements we expect from talk radio. He is hyperbolic, outspoken, rude, crude, and crass. One day he had Melissa Feroglia on the air. Feroglia was a disgruntled consumer who had a bad experience with Mt. Hood Polaris and complained about a jet ski she bought there and some apparently dishonest customer service she received. The dealer chose to file a defamation suit.

Martino filed a motion to dismiss under the Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150. The lower court dismissed the claim, so Mt. Hood Polaris appealed to the 9th Circuit. The 9th reaffirmed that there must be some kind of damage to the plaintiff's reputation before a defamation claim may properly lie. As a matter of law, it is up to the judge to determine if damage could be possible by examining the speech itself, since loose hyperbolic language is not capable of a defamatory meaning.   read more »

Goldman Sachs Tries To Bully Blogger

chad-parke-demand-to-gs666 Michael Morgan is a Florida blogger who is a little bit upset with Goldman Sachs and its business practices. To voice his displeasure, he registered the domain name and and forwarded them to his blog on the financial giant.

Naturally, Goldman Sachs doesn’t like to be criticized. Who does? Nevertheless, I fail to see how they could have perceived Morgan as a threat to their financial well being or anything else. The fact is, Mr. Morgan’s blog just isn’t that good. The layout is visually painful. The writing isn’t engaging. After muddling through it for about 15 minutes, I still don’t really get what all the fuss is about. In other words, Morgan’s blog was destined for the blogger derelict heap. Morgan has a full time job, had very few readers, and probably would have either gotten bored with his griping, or his blog would have been ignored to death.   read more »

Yes, You Should Have Hired a Trademark Attorney...

Another day, another cautionary tale about how staying at a Holiday Inn Express doesn’t qualify you to practice law.

Enter Jamil Ezzo, an enterprising Internet maven, who runs the website at Mr. Ezzo decided that he should file for a federal trademark registration on his incredibly creative and original business name, “Locate Plastic Surgeon,” and in an effort to give his fledgling new business venture a leg up over the wasteful spenders that were his cutthroat competition, he figured that he should forego hiring a lawyer to do it for him. Great plan, Jamil, except that any IP attorney who’s worth his salt would have told you that your proposed mark is pretty much worthless and you shouldn’t waste your time or money trying to protect it.

Well, who needs an expensive, fancy lawyer to tell you, when the examining attorney at the United States Patent and Trademark Office will do it for the price of filing? Except that it helps to know what you are reading when the office action comes back:

Judging from the applicant’s specimen of use, the services appear to be in the nature of offering a website that allows users to identify the location of – i.e., locate – surgeons specializing in plastic surgery. Thus, the mark is merely descriptive as applied to the services because it describes a function of the applicant’s website.

Translation: Your mark is lame, and it will be really difficult to justify giving you the right to exclude everyone in your field from using the same words in association with their business.   read more »

Peter Needed a Jew... Bourne Co Needed a Lesson in Fair Use

Congress derives its power to enact copyright laws from the copyright clause, U.S. Const. Art. I § 8, which reads:

Congress shall have the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Unfortunately, the music industry didn't get the "progress memo," and tends to believe that the Copyright Clause gives them a complete monopoly over the use of their material. For example - music publishing company, Bourne Co., the owner of the copyright to "When You Wish Upon a Star," objected to a parody of the song in the Family Guy episode, "When You Wish Upon a Weinstein." In the episode, Peter Griffin gets scammed into buying volcano insurance on his home in Quahog, Rhode Island. Lois gets fed up with the family's constant financial problems, so peter decides that he needs a "Jewish money guy" to help him.   read more »

Hot News Case - The Dialogue Continues

The purpose of copyright is to "promote progress."  We achieve this promotion by giving authors a limited monopoly over their works so that they may profit from them. This is what is known as "the incentive theory."  If we give authors the incentive to create works, they will create more of them, thus adding ideas and expression to the marketplace.  On the other hand, we don't give copyright protection to mere facts. It makes sense, because the facts rightfully belong to all of us.  Expanding copyright protection to mere facts would lead to the marketplace of ideas looking like a downtown after the Mega-lo-Mart opens up in the suburbs.

Nevertheless, we do all benefit from news organizations hard work in bringing us the facts.  If anyone can just free ride off of the Associated Press' work, then eventually they are going to stop providing them to us.  After all, the AP is a business, and as much public service as they provide, they are not a charity.

I read an excellent law review article on this subject a while back. See Ryan T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting.  Suffice to say that I get Holte's point, and I agree with the argument that the public is better served if there are news organizations competing to get the hottest news -- and they should be incentivized to do so.

It looks like Holte's theory gained a little traction this week. The Prior Art reports on Associated Press v. All Headline News Corp. and the Southern District of New York's finding that the AP might have a viable case for "hot news appropriation" if:   read more »

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