Friday Links

We hope you are continuing to enjoy your Thanksgiving weekend. Above, you’ll find the cover of Walt Disney’s Comics & Stories #63, published way, way back in 1945.

Well, the November issue of the G-Bar News, the official publication of the Greenville, South Carolina Bar Association is out. Click here to read the full issue in PDF format! Check out page 3 of the newsletter for an announcement related to our firm being honored with the 2013 Defense Research Institute’s Law Firm Diversity Award as well as our recent ranking as a “Best Law Firm” by U.S. News & World Report. Then check out page 6 for a “Young Lawyer Profile” of our own Amity Edmonds, one of our workers compensation attorneys in our Greenville office.

News Flash: The updated versions of the U.S. District Court for the District Court of South Carolina’s Local Civil and Criminal Rules – with revisions through November 15, 2013 – can now be found online here.

More GWB news: The South Carolina Bar Young Lawyers Division Foundation just elected our own Lindsay Joyner to its Board of Governors. Lindsay is an associate in our Columbia office.

South Carolina lawyers, please take note that the Souther Carolina Supreme Court has revised the standard subpoena for use in civil cases. The new form can be found here.

Congrats to Jeff Richardson of the iPhone J.D. blog on five years of legal blogging! That is a huge accomplishment. Way, way back in January of 2011, we interviewed Jeff about legal technology issues, and you can revisit that interview here. Later that year, in June of 2011, we met Jeff – as well as legal blogging guru Ernie Svenson – in New Orleans (about which Ernie wrote here).

Happy Thanksgiving From Abnormal Use!

Happy Thanksgiving from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We wish you a safe and eventful holiday, and we hope that our lawyer readers have pried themselves away from their cases and time slips in order to spend some time with their families this year. To celebrate, above, you’ll find the cover of Simpsons Classics #26, published not so long ago in 2010.

Oh, and if you’ve not yet read it, please check out our “Thanksgiving in 1810, 1910, and 2010” blog entry, which we published this time three years ago. It’s now a seasonal tradition!

Last but not least, you can check out our past Thanksgiving posts – with various Turkey Day related comic book covers – here, here, and here.

A Book Fair – Google Books Ruled Fair Use

It seems these days there is a very fine line between an innovator and a thief.   Google recently was found to be on the innovator side of the line in a lawsuit over its product Google Books.  As you may have heard, the U.S. District Court for the Southern District of New York recently held in its summary judgment opinion that Google’s scanning of more than 20 million books and posting them online was “fair use” under U.S. copyright law. See The Authors Guild, Inc., et al v. Google, Inc., No. 05-CIV-8136 (S.D.N.Y. Nov. 14, 2013). This case began nearly a decade ago when Google when began scanning and uploading “snippets” of books online without the permission of the authors and publishers.  In 2005, the Authors Guild brought suit against Google seeking $750 per book scanned.  As you might imagine, twenty million books at $750 per book adds up pretty quickly ($15 billion to be precise).  The two sides sought to settle the matter in 2011 for around $125 million.  However, the U.S. District Court judge refused to approve the settlement, holding that it would give Google a “de facto monopoly” to copy books en masse.

The ruling in this case centered around whether Google’s use of the copyrighted books constituted “fair use.”   The doctrine of fair use permits the use of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.'”  One key consideration in determining whether use falls under “fair use” is the extent to which it is transformative.  The use of work is transformative where it adds something new or alters the original creation.

The Court’s opinion focused largely on  the fact that Google Books was indeed transformative in that it “transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.”   The Court ultimately held that this transformation, which adds value to the original books, along with other factors outweighed any commercial aspect of the use.  As such, it granted summary judgement to Google.

This ruling has been hailed by some as a win for the fair use doctrine, tech companies, and society at large.  We tend to agree.  However, there will undoubtedly be many who view this case as just another instance of the big companies and the court system stepping on the little guy.

Abnormal Use Named By ABA Journal To Blawg 100 For The Fourth Year In A Row

What a day! We here at Abnormal Use are pleased and honored to announce that we have been once again been named to the ABA Journal‘s Blawg 100, the annual list of the best of the blawgosphere. This is now the fourth year in a row we have been named to the list, and we couldn’t be more pleased to receive the honor.

Certainly, wee must thank our firm, Gallivan, White, & Boyd, P.A. for its continuing support. We’ve been doing this blogging thing since January 2010, and without the institutional support of our law firm, we simply could not do the things we do here.  But the real heroes are our regular contributors: Rob Green, Nick Farr, and Frances Zacher (along with occasional contributors Mills Gallivan, Stuart Mauney, Chris Kelly, Kyle White, Sally Bowman, and Tom Vanderbloemen). Without their tireless efforts, and their wit, we would not be the blog we are today.

Of course, we must also thank you, our dear readers. Thank you again for all of your support this past year (and the three years before that, as well). We remain humbled.

We’ve got just one more favor to ask. After announcing the final 100 blawgs, the ABA Journal is now asking its readers to vote for their favorites of the final 100 in 13 substantive categories. Our blog is included in the Torts category, and we ask that you register at the ABA Journal‘s site and cast a vote for us here.

It just takes a brief moment, and we’d be forever in your debt.

As 2014 approaches, we’ll be continuing onward here and we hope to bring you some special things in the new year. Stay tuned!

Thanksgiving in 1810, 1910, and 2013

Here we are again on the Monday before Thanksgiving.  It will be difficult to keep our minds on our legal blogging duties this week with the holiday looming over us all. After all, as we’ve said before, this is the time for football, turkey, pumpkin beer and tryptophan.  Because it has become a bit of a tradition around here, we feel we must direct you to our 2010 Thanksgiving post entitled “Thanksgiving in 1810, 1910, and 2010.”  Back then, in our early blogging days, we somehow unearthed a century old magazine article in which the writer, a resident of 1910, looked back 100 years and marveled at the incredible social and technological change that occurred in the previous ten decades.  That writer also looked forward to 2010 and briefly speculated how we, as citizens of the 21st century, might look back at those who lived in his era 100 years before.   That article struck such a chord with us, and it’s become a Turkey Day tradition for us. So, today, we remind you of it once again and direct you back to it 102 years after its publication. (That neat illustration above – and many others like it – comes directly from the 103 year old article.).

As we proceed through this week, looking forward to stuffing and cranberry sauce, we think of all the things that we are thankful for and wish you a happy Thanksgiving.

Friday Links

Today, November 22, 2013, is the 50th anniversary of the assassination of President John F. Kennedy. In the days and weeks leading up to this somber occasion, you’ve probably seen dozens – perhaps hundreds – of news stories both about the legacy of President Kennedy as well as the most minute details related to his tragic death. We encourage our readers interested in these topics to visit Twitter today, as we are quite certain that it will offer as much information as anyone could ever read.  Here at Abnormal Use, our own Stuart Mauney is a bit of a history buff.  He offers these thoughts on this day:

Where were you when JFK was assassinated 50 years ago today?  I was two years old, probably sitting in front of our TV watching “The Three Stooges” or “Captain Kangaroo.”  At some point, years later, I became fairly obsessed with the assassination and the Kennedy family.  I remember Bobby Kennedy’s body being carried by train after he was killed.  I watched intently as Ted Kennedy tried and failed to win the presidency.  And, I have read several of the hundreds (thousands?) of books on the JFK assassination.  After reading all of that, and watching some of the TV documentaries this week, I have concluded that Lee Harvey Oswald was the lone gunman and that there was no conspiracy.  There are many unanswered questions and some inconsistencies, but they do not equal a conspiracy by the CIA, Cuba or the mafia to take down our president.  Do you agree?  Let us know.

There are those of us at Abnormal Use inclined to agree with Stuart. After all, if one places a large historical event under a microscope, inconsistencies are bound to surface. For a truly excellent take on that point, you must watch “The Umbrella Man,” a six minute documentary by filmmaker Errol Morris profiling one of the witnesses in Dallas that fateful day. But, as Stuart requested, we’d love to hear your thoughts on the matter.

Of course, there are comic books dedicated to the legacy of President Kennedy.  Above, you’ll find the cover of John F. Kennedy published by Dell Comics in the mid-1960’s, likely 1964. Below, we have the cover of Personality Comics Presents John F. Kennedy (American Heroes #2), published not so longer ago in 1992.


Pope Francis Faces New Suit In Rhode Island

As if Pope Francis didn’t already have enough on his plate, a Rhode Island man now wants him to see the inside of a federal courtroom.  Recently, 64-year old John Devaney filed suit against Pope Francis along with the Catholic Diocese of Providence, Archbishop Carlo Laria Vigano, and Rhode Island Attorney General Peter Kilmartin, alleging that the bells of a Narragansett church ended his marriage.  Devaney claims the bells rang 700 times per week for the past 12 years, causing interruptions in his dreams, his thoughts, and his family relationships.  Devaney seeks an injunction limiting the number of times the bells can ring as well as unspecified monetary damages.  We are certain Pope Francis’ legal counsel is taking this one seriously.

Before we become too critical of Devaney, this isn’t a case of moving next door to a landfill and then complaining about the smell. Devaney actually moved to the neighborhood six years prior to the bells becoming operational.  Nonetheless, the suit seems a bit absurd, especially considering it names the Sovereign of Vatican City as a defendant.  While any sound can be annoying over time, claiming that church bells ended a marriage is a bit of a stretch.  Good luck picking a jury who won’t side with the Catholic Church in this scenario.

Unsurprisingly, the church has denied any liability, claiming that the ringing of church bells is reasonable.  Moreover, the church claims that Devaney, himself, may have some unclean hands.  Through the Catholic Diocese of Providence, the church issued the following statement:

So many in the community have enjoyed hearing the bell for more than 10 years for but minutes a day. The parish believes the brief ringing of the bell is reasonable and well within its rights. The parish community is saddened that a sole individual would continue personal, inappropriate attacks harassing visitors, worshippers and staff of St. Thomas More Parish. As a community of faith, we will pray for peace and understanding and that all our neighbors know of our charity and concern.

Apparently, Devaney really, really hated those bells. Even though we can appreciate his frustration, Devaney, who brought the suit pro se, has an uphill battle in front of him.  Suing the Pope and the Catholic Diocese over some annoying church bells is a slight overkill to voice those frustrations.  He probably would be better suited challenging the local noise ordinances which exempt places of worship. Had his suit been aimed at a next door neighbor blaring Metallica 700 times per week over a loud speaker, then this suit would have never made the headlines.  Unfortunately for Devaney, this is the church.  And its bells.  And its leader.  We here at Abnormal Use wish him well.

Blogs: A New Age of Credible Media (Sometimes)

Saying that the Internet changed media is an understatement worthy of a Nobel Prize. The days of reading the daily newspaper over a cup of coffee have been replaced with scrolling through RSS news feeds on a smart phone in between meetings. While the Internet has made news more accessible, many argue that accessibility doesn’t necessarily make for better news. After all, as the saying goes, “With the Internet, everybody becomes a journalist.” For every well-respected CNN or New York Times website, there is a Wikipedia or some other source of user-generated content which draws the ire of establishment critics. News is only as good as those that create it.

So, where should legal blogs fall into the mix? While none of us here at Abnormal Use are professional journalists, we take great pride in bringing you accurate legal news (with a touch of our own commentary, of course). At the end of the day, however, to many, we are still just a “blog” with whatever connotation that title brings. But, in this new age of media, shouldn’t some blogs be considered something more? We would never suggest that every blog carries the same weight of authority. Nor would we posit that a blog be viewed in the same light as a primary source. Nonetheless, when a blog such as SCOTUSblog, one of the preeminent news sources covering the Supreme Court, lacks official credentials to the Marble Palace, something seems wrong.

As the way we receive our media changes, so, too should the way that we perceive that media. Why shouldn’t a scholarly blog post be afforded the same level of scrutiny as a magazine article? We can verify sources and explore the credibility of the author from either form of media. The only difference between the two being the form in which the material is presented. A news source should be considered a news source regardless of the mechanism of delivery. Again, we would never suggest that Joe Schmo’s personal blog of drunken observations be afforded the same level of credibility as an article published in The New York Times. Nor are we suggesting that you view Abnormal Use in the same light as either. We only encourage you not to discount blogs because they are, well, “blogs.” News is only as good as those that write it. Check your sources. Check your authors. Make your own decision.

At The Corner Of Literature And Lawsuits: The Harper Lee Litigation

Back in 2010, our fearless leader Mills Gallivan offered his thoughts about To Kill a Mockingbird in a post entitled “Bluejays and Mockingbirds.”  Today, we revisit To Kill a Mockingbird, or rather, provide an update on Harper Lee, the author of one of the most brilliant legal novels ever written (in our own humble opinion).

As reported by CNN, Lee is suing the Monroe County Heritage Museum for trademark infringement.  As quoted by CNN, the lawsuit makes the following claims:

“The museum seeks to profit from the unauthorized use of the protected names and trademarks of ‘Harper Lee’ and ‘To Kill a Mockingbird.’ It is a substantial business that generated over $500,000 in revenue for 2011, the last year for which figures are available,” said the lawsuit filed last week. “But its actual work does not touch upon history. Rather, its primary mission is to trade upon the fictional story, settings and characters that Harper Lee created.”

For its part, the museum isn’t admitting any infringement.  USA Today quoted the museum’s attorney as follows:

The museum’s Birmingham attorney said the tourist attraction is within its rights to educate the public and preserve the area’s history. “It’s sad that Harper Lee’s handlers have seen fit to attack the nonprofit museum in her hometown that has been honoring her and the town’s rich history associated with that legacy for over 20 years,” [Matt] Goforth said.

Goforth further stated that “Every single statement in the lawsuit is either false, meritless, or both.”  Some of the facts surrounding the case, however, appear to suggest otherwise.  First, the website for the museum is  The gift shop is called “The Bird’s Nest” and contains lots of “Mockingbird” memorabilia, according to news reports.

The case is pending in the the Southern District of Alabama (C.A. No. 1:13-cv-490), where it was filed on October 10, 2013.  Lee seeks a permanent injunction against the museum.  On November 5, 2013, the museum filed a motion to dismiss for failure to state a claim.  As of the date of this post, the court had set out a briefing schedule for that motion, and states that it will take up the motion on November 26. What will Lee have to prove?  In order to succeed on the merits of a trademark infringement claim, a plaintiff must show that the defendant used the mark in commerce without her consent and  that the unauthorized use was likely to deceive, cause confusion, or result in mistake.  Davidoff & CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300-01 (11th Cir. 2001).  Seven factors are considered as to the likelihood of confusion: (1) type of mark; (2) similarity of mark; (3) similarity of the products the marks represent; (4) similarity of the parties’ retail outlets and customers; (5) similarity of advertising media; (6) defendant’s intent; and (7) actual confusion. Frehling Enters. v. Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir.1999). Of these, the type of mark and the evidence of actual confusion are the most important. Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1239 (11th Cir. 2008). Federal courts may grant permanent injunctions where infringement is found to have occurred in order to prevent further infringing use of a mark, and such injunctions should be designed to keep the former infringers a safe distance away from the protected mark. Id. at 1242.

This lawsuit is getting a lot of attention from the media world, and we are also interested in the outcome.  We’ll follow along with everyone else, and let you know of any developments.

Call me Justice . . . Captain Justice!

I’ll admit it.  My former life took place in a world where it was uncommon for lawyers to be referred to as “Captain.”  However, it was not some weird lawyer Comic-Con.  Rather, it was the United States Air Force, where most of the lawyers are junior officers known as Captains.   Apparently, there’s a lawyer, Drew Justice of Tennessee, who also wants to be referred to in the courtroom as “Captain” -“Captain Justice,” to be exact.  Mr. Justice is neither a military officer nor a super-hero.  He’s just a criminal defense lawyer with some creativity and a dream.

This bizarre request actually stems from a prosecutor’s request for the judge stop Mr. Justice from referring to the prosecutors as “The Government.”  The rationale being, of course, that everyone hates the government and Mr. Justice was using the term in a derogatory fashion.  Mr. Justice was not pleased with this request.  Rather than simply acknowledging that the prosecution is an arm of the government or that the prosecution’s request implicated the First Amendment, he went a step further and got creative.

Here’s a list of the creative new titles he requested that the Court use if he could no longer refer to the prosecution as “the government:”

  • Rather than “the defendant” his client should be known as “Mister,” “the Citizen Accused” or “that innocent man;”
  • Rather than being called defense counsel or counsel for the defendant, he should be known as “Defender of the Innocent” but conceded that he would also alternatively accept “Guardian of the Realm;”
  • When being referred to specifically by name, he requested to be called “Captain Justice.”

The tongue in cheek nature of his request certainly gets the point across, but it is doubtful that the court found it too amusing.  Still, it is hard not to laugh when reading the conclusion of his filing:

“WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.”