“Stairway to Heaven” Plagiarism Suit Set For Trial

A while back, we here at Abnormal Use wrote about a copyright infringement lawsuit filed against Led Zeppelin. The suit, filed by the estate of Randy California of the band Spirit, alleges that Led Zeppelin lifted the opening chords of “Stairway to Heaven” from the Spirit’s song “Taurus.”  Now, some two years later, that case is on the eve of trial.  Jury selection is set to begin this very morning. Trial is is expected to last less than a week, with each side allotted 10 hours to present testimony. In case you are wondering, the great Jimmy Page and Robert Plant are expected to be in attendance at trial.

We will be curious to see how this one plays out at trial. If the plaintiff prevails, it would mean that a jury found by a preponderance of the evidence that one of history’s most prolific songs was partially plagiarized from Spirit of all bands. While we appreciate the classic California band and, in particular the song, “I Got a Line on You,” it is hard for our minds to grapple with notion that Jimmy Page and Robert Plant didn’t conceive the majestic opening chords of “Stairway to Heaven.” We get that many bands (including Led Zeppelin) are no strangers to “musical inspiration” in creating their own hits, but it still pains us to think that our favorite songs are anything less than original.  Of course, we are also the same folks who questioned whether Tyson intentionally bit off Holyfield’s ear or whether Lance Armstrong used performance enhancing drugs. So take it for what it is worth.

The plaintiff alleges that Jimmy Page got his musical inspiration for “Stairway” when Led Zeppelin was the undercard for Spirit during a 1968 U.S. Tour and heard the band play “Taurus.” According to Page, the band apparently was paying that much attention. In a 6-page declaration filed with the court, Page stated the he never heard nor was he aware of “Taurus” until a couple of years ago. We will wait and see which way the jury wants to go.

First Wrongful Death Lawsuit Hits Marijuana Industry

Since its recent legalization in certain states, marijuana has found itself in the middle of several product liability lawsuits. A new lawsuit filed in Colorado has just upped the ante. According to a report from the L.A. Times, a new suit has been filed accusing marijuana of being the culprit for a homicide. In the first wrongful-death suit against a recreational marijuana company, the children of Kristine Kirk, murdered by her husband, Richard Kirk, back on April 14, 2014, have filed suit against Gaia’s Garden, LLC, claiming that the company’s Kandy Orange Ginger chew candy triggered the shooting. The plaintiffs allege that Gaia’s failed to warn customer that marijuana edibles could lead to paranoia, psychosis and hallucinations.

According to Kristine Kirk’s 911 call, the shooting happened after Richard burst into their home ranting about the end of the world. Thereafter, he laid on the floor and asked for someone to kill him. Richard then retrieved a pistol and shot Kristine. Richard has been charged with first-degree murder. He initially pleaded not guilty, but has since changed his plea to not guilty by reason of insanity.

We here at Abnormal Use will be interested to follow this suit as the facts develop. Reading the reports of the incident make it sound more like those involving bath salts than recreational marijuana. It is so outside-the-box that we almost wonder whether marijuana was the culprit at all. Interestingly, toxicology reports showed that the amount of THC in Richard’s blood was less than half the legal limit. Prosecutors actually contend that the murder is the result of increasing marital stress.

In any event, we see this as a case akin to suing Anheuser-Busch for a driving under the influence accident. Gaia’s apparently complied with all state labeling requirements regarding the potential adverse health effects. With legal marijuana being so new to the marketplace, we suppose this lawsuit is an attempt to test the waters with marijuana litigation. We assume that the same legal principles applied to similarly situated products will continue to apply.

McDonald’s Accused Of Not Making Drive-Thrus Accessible to the Blind

Be it hot coffee or greasy french fries, McDonald’s often finds itself as a defendant in some intriguing litigation. A new lawsuit filed in an Illinois federal court against the fast food giant might just take the crown as the most interesting. According to a report from the Chicago Tribune, a Louisiana man has sued McDonald’s because its drive-thrus are not accessible to the blind. Specifically, the man has challenged McDonald’s policy of not serving individuals who walk up to the drive-thru window without a car. During the normal operating hours, the prohibition is hardly a problem as customers without cars can simply walk inside the restaurant. However, after hours, the restaurant only serves customers through the drive-thru and, thus, people who do not have cars or otherwise cannot drive, such as blind persons, cannot order from McDonalds, the suit alleges. According to the suit, such failure to accommodate constitutes a violation of the Americans with Disabilities Act.

We here at Abnormal Use are not certain as to how this McDonald’s policy will be construed under the ADA. We do have some questions, however, as to certain statements the plaintiff’s lawyer made about the litigation. In commenting on the suit, attorney Roberto Luis Costales stated that the late-night snacks are a “quintessentially American activity that should not be denied to someone because of their disability.” Moreover, he indicated, “This is something simple that can cause a lot of hurt to disabled people, especially if, like [Plaintiff], they cannot cook for themselves.” We must admit that we, too, have been known to take a late night food run, particularly during our college days. But, we question whether it is a “quintessential American activity,” so ingrained in our nation’s DNA that it cannot be denied. Maybe if we were talking about a more critical issue like healthcare, we could take this rhetoric seriously.

Costales claims that McDonald’s could remedy the situation by installing a phone to allow customers to call in orders from outside and have the orders brought out to the customers. However, this proposal ignores the primary purpose of the late night drive-thru-only policy in the first place – security. If McDonald’s is going to be bringing orders out to customers, it might as well just open the restaurant in the first place. Or, maybe that is the end goal of the master plan and the lawsuit is just the mechanism of delivery.

 

Kanye West Accused Of Ripping Off 1969 Hungarian Pop Favorite

According to reports, Kanye West, rap star and most recent addition to the Kardashian clan, has been sued for ripping off the beats of a Hungarian composer. The complaint, filed by Hungarian composer Gabor Presser in the U.S. District Court for the Southern District of New York, alleges that West used a portion of his band Omega’s song “Gyöngyhajú lány” (recorded way, way back in 1969) in the song “New Slaves,” released in 2013 on the Yeezus album. The Omega song is allegedly “one of the most beloved pop songs ever in Hungary and across Eastern Europe.” In other words, Omega is basically the Beatles. Or, something like that.

Now, we understand if you have some doubts as to how a rap mogul the likes of Kanye West could come across a 1969 Hungarian pop tune. Whether it be through iTunes or an excursion into the darkest corners of the internet, West allegedly was aware of the song and even asked Presser for permission to use it. According to Presser, West’s lawyer emailed him soon after the marketing of New Slaves began, indicating that West “would like to work out a deal with you as soon as possible.” Presser allegedly was given 24 hours to respond. Presser agreed in principle to the use of the song on the condition that a formal deal follow. However, a formal agreement allegedly never came to fruition. West allegedly sent Prosser $10,000 as an advance for the audio track, but Prosser never cashed the check. Now, he is seeking $2.5 million in damages.

We here at Abnormal Use have no idea whether the allegations of the suit have any merit. We have listened to the two tracks (available here) and, admittedly, can at least hear some resemblance. West has apparently at least acknowledged some resemblance and copyright issues by virtue of the alleged offer to work out a deal. If true, what is curious is whether West intentionally borrowed from the 1969 Hungarian track or created “New Slaves” independently, discovered the resemblance, and tried to hedge off any issues, knowing that musicians are no strangers to copyright lawsuits. Presser apparently thinks it is the former more so than the latter. He alleges that West “knowingly and intentionally misappropriated plaintiff’s composition,” and “after his theft was discovered, [West] refused to deal fairly with plaintiff.”

Is this a case of coincidence or a musician digging through the depths of the music library of Eastern Europe to make music? Take a lesson to the songs, and we will let you be the judge.

Goya Accused Of The Old Octopus Bait and Switch

According to a report from Business Insider, a lawsuit has been filed in California against Goya Foods, Inc., the largest Hispanic-owned U.S. food company, alleging that the company has been selling canned octopus products that actually contain canned squid. Apparently, independent DNA testing has confirmed the alleged cephalopod bait and switch. The lawsuit was filed by Plaintiff Luis Diego Zapata Fonseca on behalf of purchasers of Goya canned octopus in garlic sauce, hot sauce, pickled sauce, or olive oil, and seeks $5 million in damages.

We here at Abnormal Use do not know what is more surprising, that there is a market for canned octopus or that the suit was filed in the first place. We have eaten our fair share of canned food in our day and take no issue with the practice. However, we can’t imagine a world where octopus-in-a-can is acceptable. If there were ever a product we would assume should be served fresh, octopus would be it. Tentacles just don’t sound like they would take well to preservation. But, what do we know?

In any event, we acknowledge that it is probably deceptive to sell one animal product as another. Nonetheless, how much damage have consumers really sustained in this case? We are sure the most sophisticated palate could distinguish between octopus and squid, but we have serious doubts as to whether those people are actually buying canned octopus bathed in garlic sauce, hot sauce, pickled sauce, or olive oil. Our guess is that the average canned-octopus buyer can’t tell the difference between octopus and squid tentacles. In fact, the plaintiff in the lawsuit seems to acknowledge the same. In the complaint, Fonseca alleges that Goya “intentionally replaced the octopus in its octopus products with squid as a cheap substitute to save money because it knew an ordinary consumer would have trouble distinguishing the difference.” We are certain that we would fall squarely within that category.

As with many class actions, we predict this class action will be resolved with all class members receiving a voucher for a free, delicious canned octopus product of their choosing. Hopefully, they will then have an existential awakening about why they are eating garlic marinated octopus out of a can in the first place.

Snapchat Lawsuit Inspires Inaugural Abnormal Use Field Test

Recently, we here at Abnormal Use wrote about a new lawsuit which seeks to hold Snapchat liable for a high speed motor vehicle accident that allegedly occurred as a result of the at-fault motorist’s use of the social media application. Thereafter, we decided to take a more hands-on approach to our work and signed up for the Snapchat. After a week of fiddling with the application, we have a much greater understanding of Snapchat and, thus, a better insight on the lawsuit. Hoping to help our readers who are strangers to Snapchat, we thought we would provide you with out observations and how they relate to the suit’s allegations.

As an initial matter, Snapchat is much different that any other social media app that we have ever used. While we admittedly don’t understand its purpose (perhaps due to our age or our familiarity with much different social media platforms), Snapchat is extremely easy to use. Users can create and post a “snap” with nothing more than the push of a button. When a user opens the Snapchat application, it opens immediately to the camera screen. A quick press of the camera button takes a snap photo. A longer press records a snap video. The user can then dress up the snap with emojis or filters (we will discuss this more later); however, it is not required. The snaps are then saved to the users “story” (which stays live for 24 hours) or sent directly to other users (which are available for 10 seconds after they are viewed). Unknown purpose aside, Snapchat cannot be any simpler.

Twitter and Facebook, on the other hand, require much deeper cognitive processing and interaction from the user. Even though users can (and often do) use the applications to post pictures or videos, Twitter and Facebook typically require the user to think of and type out a sentence or two expressing a thought. Twitter and Facebook require body movements analogous to sending a text message. From a mechanical standpoint, Snapchat and Twitter/Facebook are worlds apart.

What gives Snapchat its character is the ability to alter each photo. Where Instagram focuses primarily on preset filters and borders, Snapchat gives users more personal control over the editing process. At the touch of a button, users can add text, emojis, or drawings. Users also have access to a number of Snapchat filters which can add a somewhat bizarre twist to their photos (i.e. rainbows flowing from mouths, fire emanating from heads, etc.). The ease of use of each alteration is as simple as creating the photo or video in the first place.

The controversy in the Snapchat lawsuit centers around a Snapchat feature we refer to as the “speed filter.” The speed filter utilizes a phone’s GPS system to calculate the speed a user is moving at the time the snap is created. The speed reading is added to the photo/video from the editing screen with a simple swipe to the left. Like the other editing features mentioned above, the speed filter is available as an option only after the photograph or video has been captured.

Being dedicated to our jobs, we put the speed filter to the test. (Not behind the wheel of a car, of course). As a PASSENGER in the front seat of a car and again on the rear of a jet ski, we found the speed function to be fairly accurate, typically measuring speeds within 2-3 mph of that posted on the vehicle’s speedometer. However, the speed filter routinely registered 1-2 mph of speed when sitting still as if it was trying to compensate for the earth’s rotation. Nonetheless, its ease of use was as seamless as the other Snapchat features.

The most important component of our findings and perhaps the most relevant to the lawsuit is that we have yet to find any component of Snapchat that encourages users not to exercise sound judgment. Admittedly, we found no warnings apparent within the application notifying users not to use the speed filter while operating a motor vehicle. Last we checked, there are also no such warnings about plenty of other things which can distract drivers like changing radio stations, applying make-up, or reading the newspaper. We expect motorists to know better when getting behind the wheel of a car. The plaintiff in the lawsuit contends that Snapchat encourages such behavior by awarding users with Snapchat trophies for using the speed filter. It is true that Snapchat has a trophy system to signal various milestones and use of certain features. However, nowhere does Snapchat award a “Using the Speed Filter While Driving” trophy. The speed filter has a completely valid purpose for those traveling on a bike, a horse, a plane, or as passengers in car. We found nothing within Snapchat that encourages users to use the filter while driving or otherwise serve as a substitute for sound judgment.

When you understand what the speed filter actually is and how it operates, it becomes apparent that there is no difference between Snapchat and anything else that conceivably distract a driver.  Now that we can appreciate Snapchat, our initial concerns about the lawsuit resurface. Holding Snapchat liable in this lawsuit opens the door to a whole host of distracted driving lawsuits. Twitter, Facebook, service providers, and cell phone companies all stand in the shoes of Snapchat as potential targets. Taking the argument to its extremes could even lead to suits against any product manufacturer whose product was negligently being used by a distracted driver. The reason these suits are traditionally atypical is that fault lies with the distracted driver. By any negligence standard, the reasonable person knows better than to use a cell phone or application while driving. The true tortfeasor is easily identifiable. No filters necessary.

UPDATE: One Month In, CPSC Still Shying Away from Losing Battle in Zen Magnets Case

A month ago, we here at Abnormal Use reported on a huge decision in the fight against the draconian measures of the Consumer Product Safety Commission to ban spherical desktop magnets. In an order dated March 25, 2016, Administrative Law Judge Dean Metry found that small rare earth magnets (“SREMs”) are not defective, did not contain inadequate warnings, and, when sold with appropriate warnings, are not substantial product hazards. The ALJ order came on the heels of a March 22, 2016 decision from a a related case pending in the U.S. District Court for the District of Colorado involving Zen Magnets’ sale of certain recalled products it acquired from another company (Star Networks USA) after that company reached a settlement with the CPSC. At the time of our writing, reports on the March 22, 2016 and the recall of “dangerous” magnets dominated the interwebs.

Some four weeks later, a quick Google search for “Zen Magnets” will easily reveal plenty of reports from various entities about the Zen Magnets’ victory. Venture over to the CPSC’s website, however, and the order is buried on a page containing the public filings from all of the CPSC’s adjudicative proceedings. Now, there is nothing wrong with the CPSC placing the order in this location. It is where it belongs, and we certainly wouldn’t expect for a report on a loss to be found front and center on the main page. The problem though is what is on the main page – a highlighted report of the March 22, 2016 decision, banning the sale of recalled products Zen acquired from another company.

Ordinarily, we have no problem with the “highlight your wins, gloss over your losses” approach. It is natural, and we are all guilty of it from time to time. However, when two decisions are issued within a few days of each other and the CPSC chooses to highlight one with the misleading title, “Federal Court Orders Zen Magnets Recall” without proper context, it is a problem. CPSC, you can highlight what you want, but let’s be clear. One decision specifically found that Zen Magnets are not defective and are not substantial hazards.  The other made no specific factual findings about the alleged danger of Zen Magnets themselves, but instead, ordered Zen Magnets to stop selling recalled products it acquired from another company.  When you say, “Federal Court Orders Zen Magnets Recall,” why don’t you let Zen Magnets’ buyers know what that really means?

Snapchat Sued Over Distracted Driving Accident

According to a report from GeekWire, social media giant Snapchat has been sued in Georgia for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. Before we dive into the meat of it, we must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right? Much to our chagrin, however, this suit is not what it may first appear.

Snapchat is primarily used for creating multimedia messages referred to as “snaps.” A snap consists of a photo or short video which can be edited to include filters and effects, text captions, and drawings. One of those effects is a filter which tracks the speed of users, including while the users are driving. Now, it doesn’t take a rocket scientist to see where this is going.

According to the complaint filed against Snapchat and Christal McGee by Wentworth and Karen Maynard, at approximately 11:15 p.m. on September 10, 2015, McGee was using the Snapchat while operating her Mercedes C230. Because she was allegedly motivated to drive fast due to the Snapchat speed filter, she accelerated her vehicle to speeds in excess of 100 mph. Unfortunately, because McGee was allegedly distracted by the app, she did not notice that a vehicle driver by Wentworth Maynard had pulled out into the road. McGee allegedly struck Maynard’s vehicle while traveling 107 mph. As a result of the accident, Maynard allegedly suffered permanent brain damage. McGee posted a snap of herself lying on a stretcher with the caption, “Lucky to be alive.”

While not specifically alleged in the complaint, the plaintiffs’ lawyer released a statement which exposes a number of other details about the moments leading up to the accident. Allegedly, McGee has three passengers in her vehicle, one of whom was pregnant. The pregnant passenger allegedly asked McGee to slow down, but McGee refused, arguing that she was “just trying to get the car to 100 miles per hour to post it on Snapchat.” The passenger allegedly saw the speed on the filter tap out at 113 mph when McGee said, “I’m about to post it.” At that moment, the impact allegedly occurred.

As an initial matter, we must caution that we do not know the merits of any of these allegations. While it is plausible that McGee was traveling in excess of 100 mph, we don’t know if the alleged Snapchat usage, if any, was to blame. Apparently, the accident occurred just before McGee could post the alleged snap, so proving as much will likely have to come from the passenger witnesses.

With that said, if the allegations are true, this is certainly a case distinguishable from our initially feared slippery slope hypotheticals. While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car.

Nonetheless, we still question whether Snapchat can be held liable for such an accident. Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

We can certainly understand both sides of the argument. This will be one that we will following closely.

Judge Denies Gun Manufacturer’s Motion To Dismiss Sandy Hook Suit, Ultimate Issue Still Remains

Given the attention it has been getting on the presidential campaign trail, we here at Abnormal Use recently discussed the Protection of Lawful Commerce in Arms Act (“PLCAA”) and the issue of gun manufacturer liability. The PLCAA, signed into law back in 2005, affords gun manufacturers and sellers immunity in state and federal lawsuits except in situations where the seller knew the gun would be used in a crime, the gun buyer was obviously unfit to own a gun, the sale violated the law or the injury resulted from a manufacturing defect. The law has found itself in the crosshairs of certain presidential candidates in recent weeks on account of the press coverage surrounding a lawsuit filed against Remington by the families of Sandy Hook victims in which the plaintiffs seek to hold Remington liable for manufacturing and marketing the AR-15 semi-automatic rifle used by the shooter. The now politicized debate centers on the legitimacy of the PLCAA and whether a gun manufacturer should be held accountable to the families of the Sandy Hook victims.

Remiss in the political arena is the actual happenings in the Remington litigation. Back in December, the Remington defendants moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction on the grounds that they are immune from suit by virtue of the protections afforded by the PLCAA. Last week, Judge Barbara Bellis issued an order denying the motion to dismiss. Before opponents of the PLCAA champion the order as a great victory or proponents chastise Judge Bellis for ignoring the law, a closer examination needs to be made into the basis of the decision.

Under Connecticut law, a motion to dismiss is an attack on the court’s jurisdiction. A motion to strike challenges the legal sufficiency of the complaint. The grounds for the defendants’ motion to dismiss focused solely on the argument that the PLCAA deprives the court of subject matter jurisdiction. When asked by Judge Bellis whether the motion should be treated as a motion to strike, the defendants reaffirmed their motion and stated that they were not challenging the legal sufficiency of the complaint. As such, the motion was treated as a motion to dismiss and the decision confined to whether the court had subject matter jurisdiction over the matter. The decision does not touch on the legal sufficiency of the plaintiffs’ claims.

Framing the issue in this manner, Judge Bellis found that the court has subject matter jurisdiction over the plaintiffs’ claims. In reaching her decision, Judge Bellis relied on a decision from the Second Circuit in New York v. Mickalis Pawn Shop, 645 F.3d 114 (2d Cir. 2011) which previously held that the “PLCAA’s bar on ‘qualified liability action[s]’ . . . does not deprive the court of subject-matter jurisdiction.” Moreover, Judge Bellis found it significant that other courts that have considered the PLCAA as a defense have done so in the context of a motion to dismiss under Rule 12(b)(6), which is the equivalent of a motion to strike under the laws of Connecticut rather than a motion to dismiss.  As such, Judge Bellis concluded that “any immunity that PLCAA may provide does not implicate the court’s subject matter jurisdiction,” and, thus, the motion to dismiss was denied.

We here at Abnormal Use won’t speculate as to whether the political debate over the PLCAA had any bearing on Judge Bellis’ decision. Right or wrong, the penultimate issue – whether Remington is afforded liability under the PLCAA – remains on the table. We assume that Remington is busy drafting that motion to strike as we speak.

Old Spice Class Action: Different Product, Same Story

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According to reports, a new class action lawsuit has been filed against Proctor & Gamble alleging that the company’s Old Spice deodorants have caused armpit burns and rashes on “hundreds, if not thousands” of customers. According to the complaint filed in the United States District Court for the Southern District of Ohio, lead Plaintiff Rodney Colley, a 23-year old college student from Virginia, used Old Spice deodorant on several occasions and suffered burns as depicted below:

chemical-burns

(Yes, the photograph is included within the pleadings). In addition to Colley, the pleading quotes complaints from Consumer Affairs from seven other customers who allegedly experienced similar injuries. The plaintiffs contend that Old Spice is defective and lacks appropriate warnings about the risks of burning, rashes, and irritation.

In response to the suit, Proctor & Gamble issued the following statement:

We go to great lengths to ensure our products are safe to use, and tens of millions of men use this product with confidence and without incident every year. A small number of men may experience irritation due to alcohol sensitivity, a common ingredient across virtually all deodorant products. For men who have experienced a reaction to a deodorant, an antiperspirant may be a better option because they have a different formulation.

If you are thinking you have heard this before, you have. Earlier this year, we reported on a class action suit filed against EOS alleging that the company’s lip balm causes lips to crack, bleed, and blister. Similar to the statement made by Proctor & Gamble, several doctors opined when the EOS case was filed that consumers were having allergic reactions to natural oils contained in the product. The EOS suit settled just a few weeks after it began with EOS agreeing to provide more details on its packaging about the ingredients and instructions on how to use the product safely.

While it might be overly ambitious to expect the Old Spice suit to settle as quickly as that of EOS, we wouldn’t be shocked if the result is the same. It makes good business sense for Proctor & Gamble to seek a quick resolution with a statement to customers that the product ingredients will remain the same. If not, let’s just hope Old Spice doesn’t have to go back to being associated with sailors and nursing homes.