Friday Links

Believe it or not, but tomorrow is the 25th anniversary of the release of Pearl Jam’s Ten, the band’s debut album which arrived in stores on August 27, 1991. Those were the days. More than a few of us here at Abnormal Use and Gallivan, White, & Boyd, P.A. have seen the band live over the years. We encourage everyone to spend just a bit of this weekend revisiting that album and its very fine songs “Alive” and “Black.” Early 1990’s alternative rock doesn’t get much better than that.

GWB attorney and current IADC President John T. Lay, Jr. was recently quoted in an article concerning a growing trend in the legal profession: Level Insurance.  If you’d like to read the article, please click here.

Don’t forget that you can follow us on Twitter at @GWBLawfirm! A number of our writers are also on Twitter, as well, including Jim Dedman (@JimDedman), Nick Farr (@NAFarr), Kyle White (@Kyle_J_White), and of course, Stuart Mauney (@StuartMauney).

One of us here at Abnormal Use is moving soon, and in light of that, our favorite tweet of the week comes from music critic Steven Hyden.

Hot Coffee Karma: The Day Was Bound To Happen

I have written about the hot coffee litigation for years. So much so that I suspected that one day I, too, would face my own hot coffee incident. After all, there is only so many times one can say, “Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way,” before the fates intervened. Karma works that way.  As I anticipated, that day finally came.

Recently, I had an out-of-town deposition that required me to leave my house long before nature intended humans to wake. After the lengthy deposition concluded, I began my sojourn home and thought it wise to acquire a cup of coffee. Thankfully, I found a not-to-be-named establishment selling coffee near the deposition location. I purchased a cup at the drive-thru and proceeded towards the exit to make my way to the interstate. Unfortunately, fate had other plans.

Turning left out of a parking lot with a cup of hot coffee in your right hand is not the best idea. Not able to coordinate the counterclockwise turning of the steering wheel with the proper handling of hot liquid, I squeezed the cup a bit excessively and dropped it. The lid dislodged, and piping hot coffee poured into my lap. And, let me be the first to tell you, it was hot. Really hot. Just how I like to drink it, but not so much how I want it soaking my nether regions. Apparently, karma burns.

Thankfully, I learned a thing or two about hot coffee during my studies (and knew to exercise a bit of common sense). I jumped out of the car (stopping first, of course) and pulled my pants away from my legs rather than allowing the hot coffee to cling to my skin. Thereafter, I engaged in a bit of a “shimmy” typically only acceptable on the dance floor of a wedding reception. In not so scientific terms, the movement kept the clothing fabric separated from the skin and allowed the coffee spill to air dry (or something like that). After several minutes of the “shimmy,” the worst passed. I wiped up the coffee lingering in my car seat with a towel, and  I was out of harm’s way.

While karma may have won the moment, the spill wasn’t the epiphany it may have desired. Rather than learn the horrors of hot coffee, I went right back to the drive-thru and ordered a second cup. I didn’t tell the establishment to lower the temperature. I didn’t call the news to report the hot coffee spill. I didn’t threaten to sue. Nope. Not me. I put that coffee right to my lips and enjoyed that first sip of piping hot nectar just like I always do.

You know why?

Coffee is meant to be served hot and producers shouldn’t be held liable for serving it that way.

 

Friday Links

More than five years ago, we here at Abnormal Use compiled a list of songs about lawyers and judges. It was quite a feat! If you’re feeling nostalgic or wish to cite to a song about expert witnesses, revisit that list here!

Congratulations to GWB’s Greg Sloan who has been elected Eastern Regional Vice President for the National Association of Railroad Trial Counsel.  The Eastern Region is the largest region of the NARTC with 25 states.

Okay, so who has watched “Stranger Things” on Netflix?

Our favorite tweet of late, from our own Stuart Mauney, deals with the perils of email and vacation.

Suicide Squad Lawsuit In The Works Over Lack Of Joker Screen Time

Last weekend’s Suicide Squad premiere was a huge box office success. In spite of dismal critical reviews, the film raked in receipts in excess of $135 million. Apparently, those moviegoers by-and-large didn’t share the same opinions as the critics – the film has netted a 71 percent audience score on Rotten Tomatoes.  But don’t count Reddit user BlackPanther2016 (“BP”) as one of those posting favorable reviews. He was so disappointed in the film that he has threatened to sue Warner Brothers and DC Comics. Here we go.

According to an Independent report, BP drove over 300 miles from Scotland to London to see the film, and upon seeing it, he was none too pleased with the fruits of his pilgrimage. After demanding a refund from the theater and earning only laughter from its owners, BP claims to be voicing his dissatisfaction in another forum by filing a lawsuit on August 11 against the studio. His legal grounds? BP takes issue with Joker scenes shown in the movie trailers that did not make their way into the film, an act BP claims amounts to “unjust false advertising.”

While we don’t know the allegations that will be contained in this much anticipated complaint, if it is in fact filed, we can only hope that they are somewhat similar to this Reddit user’s epic rant. BP offered the following thoughts on the grave injustice he experienced:

Movie trailers are like food menus, they give you a preview of what you’re gonna get. You look at a McDonald’s menu and you choose to get your favourite burger, presented in a nice picture with pickles, chicken, mild cheese (your favourite, in fact that’s the only reason you’re getting this burger, because you love mild cheese). You use your hard-worked money to pay for this burger, you get the burger, only to find out that this isn’t the burger you ordered. Yes it has pickles and chicken but it doesn’t have mild cheese, it has regular cheese.

Suicide Squad trailers showcased several specific Joker scenes that I had to pay for the whole movie just so that I can go watch those specific scenes that Warner Bros/DC Comics had advertised in their trailers and TV spots. These scenes are: when Joker banged his head on his car window, when Joker says ‘“Let me show you my toys’, when Joker punches the roof of his car, when Joker drops a bomb with his face all messed up and says, ‘Bye bye!’ None of these scenes were in the movie.

I drove 300 miles to London to go watch these specific scenes they had explicitly advertised in their TV ads…and they didn’t show them to me. Adding to this, they were also two specific Katana scenes they advertised that were also the reason I wanted to go watch the movie. These scenes were: Katana’s eyes going black, and a slow motion shot of her and her sword taking souls in a smoky kind of style. These scenes were advertised several times in the first trailer and many TV ads but they didn’t show it to me in the movie. I wasted a lot of money paying and travelling to go watch this movie because of these specific scenes they had advertised to me and all of us saying, ‘Hey, check out our preview! This will all be in our movie, come watch it on the 5th!’ All lies.

BP goes on to say that he is taking matters to court so he can obtain his refund as well as compensation for his fuel costs and the trauma of being embarrassed by people laughing at him for wanting his refund. We completely understand how BP feels. We, too, anticipated much more Joker in the film based on the trailers, and we too were disappointed by his lack of screen time. We also understand that passion of die hard comic fans. (However, we can’t imagine driving 300 miles to meet the actual Joker much less see him in a blockbuster film). Nonetheless, we can’t imagine filing suit over our dissatisfaction with a movie. We understand cut scenes in a trailer can, in some respects, be considered false or deceptive, but what trailer isn’t misleading on some level? Even when all of the trailer scenes make into the final product, we recall countless examples of trailers making a film look like something it is not. Whether it is showing the only “good” scenes or making an otherwise boring drama look like an action film, a trailer’s very purpose is to trick you into seeing the film.

Every movie has scenes that get cut, and often, those cut scenes find their way into the trailers. Unfortunately for BP, he was one of those super fans that actually noticed. At least for BP’s sake, the Joker made his way into the film albeit not as much as he would like. While we understand how he feels, we just can’t seem to quantify his damages.

The Latest Twist In The Ecuadorian Rainforest Pollution Litigation – Chevron Is Victorious In $9.5 Billion Oil Pollution Appeal

Reportedly, a three-judge panel of the Second Circuit, “unanimously affirmed a trial court’s determination that, in 2011, the lead attorney for some 30,000 Ecuadorians had won a $9.5 billion judgment against Chevron by means of bribery, coercion, and fraud.” For those who need background on the underlying case, Steven Dozinger, the lawyer at issue, obtained a $19 billion verdict in Ecuador in 2011 that “was supposed to compensate residents of the Amazon rainforest in eastern Ecuador for contamination allegedly left behind by Texaco, which drilled for oil in the region from 1964 to 1992. (Chevron acquired Texaco in 2001.).” The Ecuadorian judgment was then reduced in 2013 from $19 billion by the Ecuadorian Supreme Court. Apparently, Chevron owns no property in Ecuador, so there was no mechanism by which the judgment could be enforced in Ecuador, so the Plaintiffs attempted to enforce the judgment in Canada, and in September of 2015, “the highest court in Canada . . . ruled that villagers can move forward with an effort to seize assets tied to the oil company.”

Meanwhile, Chevron filed suit in federal court in New York, and Judge Lewis Kaplan concluded that “Donziger had won the judgment against Chevron in Lago Agrio, Ecuador, Kaplan . . . , by engaging in extortion, wire fraud, obstruction of justice, witness tampering, money laundering, bribery, and Foreign Corrupt Practices Act violations in a pattern of conduct that also amounted to a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO).”  Interestingly, the decision did not address the merits of the underlying pollution case; it simply said that the methods by which Dozinger acquired the judgment were improper and that no one could enforce the judgment in the U.S. or profit from it in the United States. The recent Second Circuit opinion affirmed Judge Kaplan.

This is an interesting development in a lengthy saga that has involved PR campaigns by both Chevron and Dozinger. Chevron also filed suit in Gibraltar against Amazonia Recovery Ltd, the company set up by Plaintiffs’ attorneys to collect the Ecuadorian judgment and obtained a $28 million verdict. According to Dozinger, “the villagers have filed standard collection actions against Chevron in jurisdictions where the company maintains substantial assets (thus far, Canada, Brazil, and Argentina).” This is an interesting, monstrous piece of litigation that has cost everyone involved an extraordinary amount of money. Judging by the appearances listing on the U.S. District Court opinion, this case has kept plenty of lawyers on both sides busy for a long time. It will be interesting to see what happens next.

Friday Links

ssquad

So, we’re only somewhat excited by the release of Suicide Squad, which seems both intriguing and silly at the same time. We remember the comic book from the 1980’s, and although we here at Abnormal Use may have owned an issue or two, we don’t remember reading them. In fact, our editor most definitely owned 1987’s Suicide Squad #1, the cover of which is depicted above. But we just don’t know if we can bring ourselves to see the new film at the theaters. Alas, as they say.

We are told that today is the 50th anniversary of the release of Revolver by The Beatles. Can you imagine that five decades ago a band released such gems as “She Said, She Said,” “Eleanor Rigby,” and “For No One” all on the same album? That’s an amazing feat.

Our favorite legal tweet of late comes from our own John Cuttino, and you can probably guess why.

 

Tattoos: Who Really Owns Them?

Last year, Take-Two Interactive, the parent company of 2K Sports, was sued in a New York federal court for the unauthorized reproduction of tattoo designs featured on the bodies of players in the popular NBA 2K video game series. The plaintiff, Solid Oak Sketches, alleged that it owned copyrights on several tattoo designs on the bodies of LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe, and, in an era increasing video game realism, 2K infringed on its rights in creating the players’ likeness. Solid Oak sought damages in excess of $1 million.

According to reports, 2k recently scored the dismissal of a huge chunk of the plaintiff’s claims. Judge Laura Taylor Swain dismissed the plaintiff’s claim for statutory damages under U.S. Copyright law on the grounds that the first of the series of infringements occurred before the works in question were registered with the U.S. Copyright Office. The tattoo designs were apparently registered in 2015, some two years after the release of NBA 2K14. In lieu of statutory damages, the plaintiff can still seek actual damages related to lost income for the tattoos’ appearances.

While the ruling is significant in terms of damages (the plaintiff sought up to $150,000 per infringement), 2K was saved by the timing limitations of copyright law. The bigger legal issue still remains – who really owns a tattoo after it has, in fact, been tattooed onto a body? As fans of tattoos, we recognize that a tattoo is indeed a piece of art. The tattoo artist is an “artist” and the human body is his/her “canvas.” On the other hand, a tattoo differs from a traditional piece of art in one key area. The tattoo is placed onto a canvas that itself has legal rights. When a traditional artist creates a painting, he owns the canvas on which his design comes to life (until it is sold). Obviously, that is not the case with tattoos. While money is exchanged for the design and work, the tattoo artist never owns the human canvas.

In any event, we respect the tattoo artist’s right not to have his work ripped off. We could certainly argue that a tattoo artist should never replicate another artist’s work on an ethical, if not legal, basis. But, this is not the situation in the 2K case. 2K is creating a player’s likeness which necessarily includes tattoos, hairstyles, eyes, height, weight, et cetera. 2K is not seeking to make a profit off of the tattoos themselves any more than Nike is by placing an image of Lebron James on a t-shirt. The tattoos are a part of the player and necessarily come along with him.  If Solid Oak prevails, conceivably every image of Lebron James, Kobe Bryant, et cetera on a t-shirt, poster, or basketball card is a case of copyright infringement.

The truth is that the tattoo designs are out in the public domain. Such is the case when one places a visible tattoo on a public figure whose career necessitates that his arms be exposed. Certainly, Solid Oak knew that its designs where going to be all over when it chose to tattoo the most popular basketball player on the planet.

Friday Links

We here at Abnormal Use are very pleased to announce that our own Mills Gallivan has been named President of the Federation of Defense & Corporate Counsel (FDCC) with his term as President ending in July of 2017. As you may recall, Mills has authored a post or three here at Abnormal Use, and you can view the archive of his contributions by clicking here.

To all of this week’s weary takers of state bar examinations, get some rest.

So who’s seen Star Trek Beyond? Any thoughts? We must confess we enjoyed it, and once some time has passed, we may offer some thoughts about the usage of popular music in the film. But, dear readers, this is a spoiler free zone, so we will share no more details here at this time.

Our favorite legal tweet of the week references a feeling we too experience:

Snapchat Now Accused of Stealing Faces

Social media giant Snapchat just can’t seem to keep itself out of the courtroom in recent months. Back in April, Snapchat was sued over a distracted driving accident. Earlier in July, the company was sued over allegedly offensive content surfacing on the app. Now, Snapchat is being sued for stealing people’s faces. That’s right, stealing faces.

So how can social media app can steal someone’s face? Well, it hasn’t joined the cult of the Many-Faced God if that is what you are thinking.In reality, it is a little more complicated. According to a report from NBC Chicago, two Illinois men have filed a class-action suit in California alleging that Snapchat captures users’ facial data without their consent in violation of the Illinois Biometric Information Privacy Act. Specifically, the suit targets Snapchat’s Lenses technology, an object recognition feature contained the app that allows users to swap faces or add quirky elements to their snapshot.

The biometric law at issue was introduced back in 2008 in response to certain gas stations and grocery stores testing the use of fingerprinting to make financial transactions. The American Civil Liberties Union took issue with the practice and spearheaded the passage of the law in an effort to prevent biometric identifiers getting into the hands of the wrong people.

For the same reason, the ACLU has been eyeballing Snapchat. According to ACLU legislative director Mary Dixon:

What we were concerned about is how [facial recognition technology] could be acquired and used, even in ways we didn’t know about . . . While you can, with great difficulty, change your Social Security number, you cannot change your unique biological identifier.

We here at Abnormal Use can certainly appreciate the right to privacy. Nonetheless, we think the fear of the plaintiffs and the ACLU are unfounded. The Lenses technology apparently does not capture and create a database of faces. Rather, it simply figures out whether an object is a face and, if so, where each facial feature is located. For Snapchat users, this is the technology that lets the app know where to put the dog nose, the heart eyes, and the rainbow tongue. In other words, it is the all the good in Snapchat.

New Hero Armed with 24-Year Old Drawing Emerges In Fight Against Apple

During the last few years, Apple has been no stranger to patent litigation over the design of its smartphones and tablets. In fact, to many of us, it seems as if the smartphone patent wars may extend into an era where no one has ever heard of an iPhone. While Apple’s feud with Samsung garners all the media attention, we here at Abnormal Use are here to tell you that a new opponent has entered the arena.

That opponent is Florida resident, Thomas S. Ross. Or, as we like to refer to him as “David” (or “Jon Snow” or “Frodo” or any other hero facing seemingly insurmountable odds). If you have never heard of Ross, you will.  According to reports, Ross filed suit against Apple in the U.S. District Court for the Southern District of Florida alleging that the iPhone, iPad, and iPod are a rip off of his idea.  That idea being Ross’ 1992 hand-drawn “Electronic Reading Device” (depicted below).

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Ross alleges that he was the “first to file a device so designed and aggregated” nearly 15 years before the introduction of the iPhone. The gadget, imagined by Ross in 1992, possessed the capability for mixed media-browsing and communications and featured a touch-screen display, a disk drive, a modem and solar panels to power up the device.  s a result of Apple’s alleged patent thievery, Ross allegedly has experienced “great and irreparable injury that cannot fully be compensated or measured in money.” He will, however, settle for $10 billion in damages plus 1.5 percent of upcoming iPhone sales.

To be fair to Ross, he did, in fact, apply for a utility patent with the U.S. Patent and Trademark Office for the drawings of his gadget back in November 1992. However, the application was declared abandoned in April 1995, for failure to pay application fees. Ross also submitted a copyright application with the U.S. Copyright Office in 2014. While we have serious doubts Ross will ever see anything close to those financial demands contained in his lawsuit, we hope this goes well for him. We still have a picture of a flying car we drew after the release of Back to the Future II in 1989 that we would love to cash-in on in the future.