The Beastie Boys Smack Down Monster Beverage

The Beastie Boys are back in the news, but it’s not for the band’s music.  Rather, they recently obtained a $1.7 million verdict in a New York copyright infringement and false endorsement lawsuit against Monster Beverage (the makers of Monster Energy drinks) over the company’s use of the musical trio’s music and image in a promotional video. The lawsuit stemmed from the energy drink maker’s use of the Beastie Boys’ likenesses and five songs as part of a “megamix” in a snowboarding video titled “Ruckus in the Rockies.”  The video was posted on a promotional website back in 2012.  According to Monster, the whole thing was just a big misunderstanding. Apparently, an employee “inadvertently” believed Monster had been given rights to use the music.  Monster only contested damages at trial. Nevertheless, the jury came back with a “monster” judgment.

As you might suspect, Monster was not too happy with amount of the award.  The company had contended that the damages only amounted to $125,000.  Admittedly, the award does seem a little large, but it is not outrageous. “Syncing,” which is the industry term for reusing a song for commercial purposes, generates approximately $322 million per year for the music industry.

This isn’t the only time the Beastie Boys have had to “fight for their rights” this year.  In March, the group settled with a small toy company over its use of the song “Girls” in a video that went ultimately viral.

Rabid Dogs and Expensive Coffee Allegedly Have 2,000 Decillion Things In Common

A Manhattan man, Anton Prisima, has reportedly filed suit against New York City, Hoboken University, LaGuardia Airport, the MTA, and “thousands more people,” including “Latina Dog Owner” and “Kmart Store 7749.”  Apparently, the nature of the lawsuit is just the standard dog bite/coffee overcharge case, or as categorized by Justia, “other civil rights.”  Mr. Prisima seeks $2,000 decillion in monetary damages.

Mr. Purisima “claims that his middle finger was bitten off by a ‘rabies-infected’ dog on a city bus, then a ‘Chinese couple’ took photos of him as he was being treated.”  Separate and apart from those allegations, Mr. Prisima has joined several defendants in the suit based on the fact that “he’s routinely overcharged for coffee at LaGuardia Airport.”  We assume that this is a permissive joinder situation.  If not, Mr. Purisima may have a Palsgraf issue.  In any event, as a result of these wrongs,  Mr. Purisima seeks the modest amount of money mentioned above, in additional to “additional damages that ‘cannot be repaired by money” and are ‘therefore priceless.’”

Good thing Mr. Purisima cast a wide net to bring in as many deep pockets as possible, considering the fact that it is not possible to raise the amount of money he seeks even if the defendants are somehow able to sell the Earth and everything on it for scrap.

(Hat tip: Lowering the Bar).

Baidu Scores Dismissal of Free Speech Lawsuit

According to The New York Times, Baidua, a popular Chinese search engine, recently scored a simultaneous victory for both censorship of speech and freedom of speech.  A federal district court in New York recently dismissed a lawsuit that sought to punish Baidu for censorship that limits certain pro-democracy search results.  In dismissing the lawsuit, the judge ruled that Baidu itself maintains a First Amendment right to censor pro-democracy webpages from from its own search results. Baidu is the biggest search engine in China with more than 50 percent of the  market share.  However, the Chinese company is required to comply with the nation’s strict regulations over Internet content. As you may recall, in 2010,  Google decided to shutdown its search engine operations in China following ongoing disputes with the nation’s censorship rules. This lawsuit was filed in 2011 and claimed that Baidu was violating United States laws on free speech because its search results had been censoring pro-democracy works for those accessing the site from New York.  The lawsuit sought a mere $16 million in damages for the purported free speech violations.  However, the district court ultimately ruled against the plaintiff and held that requiring Baidu to include pro-democracy webpages in its search results would actually be a violation of the First Amendment Funny how that works, eh? The court compared Baidu’s filtering of search results to a newspaper’s right to exercise “editorial control” over the contents that it publishes. Baidu has simply created a search engine producing results that favor certain types of political speech. The court’s order states that “[t]he First Amendment protects Baidu’s right to advocate for systems of government other than democracy . . . just as surely as it protects Plaintiffs’ rights to advocate for democracy.” 

9/11 Scandal Surfaces, Mocks Legitimate Claims

In the age of social media, personal injury plaintiffs must be careful what they publish on the Internet. Settlement demands will take a hit once photos of a backyard tackle football game surface on an allegedly disabled plaintiff’s Facebook or Instagram account. We live in an age of transparency and the truth has a tendency to show its head. As such, we here at Abnormal Use weren’t surprised when we heard about the alleged 9/11 injury scam.

According to the New York Post, 80 NYPD and FDNY retirees have been arrested for an alleged Social Security scam whereby they lied about being at Ground Zero and suffering emotional trauma. The report notes:

Many of them claimed they couldn’t sleep, do simple arithmetic or even leave their own home — but investigators found that they’d been piloting helicopters, riding Jet Skis, teaching karate, deep-sea fishing and even running half-marathons.

Many of the individuals claimed to be so emotionally traumatized that they couldn’t use a computer, drive a car, or fly in a plane. Facebook, Twitter, and YouTube – along with car rental and airline receipts – said otherwise.

Obviously, at this stage the contents of the Post report are mere allegations. If true, however, the actions are disturbing, but not surprising. We were not at Ground Zero on that fateful day, but we can only imagine the emotional turmoil faced by those who were. We have no doubt that many of those brave individuals who responded to the scene face legitimate emotional trauma. If the allegations of this report are accurate, then these 80 persons should feel ashamed.

The fact that these individuals may have blatantly published the fabrication on social media significantly worsens the situation. We would like to think that if we lied about a significant injury for financial gain, we would be too scared to show our faces in public for fear of blowing our cover. But, we suppose once you initially get away with a scam of this magnitude, a feeling of invincibility must seek in. As is the case with personal injury actions, when someone is legitimately harmed due to the acts of others, then they deserve to be made whole. Unfortunately, a small percentage of people attempt to abuse the system, casting a shadow on legitimate claims.

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.

Fox News Finds Itself in Intellectual Property Battle

For the past few years, it has seemed liked Fox News spends more time in the news than reporting (and opining) on the news.  Once again, the network is back in the headlines, but this time, it stems from an intellectual property lawsuit against a company called TVEyes.  In a nutshell, TVEyes transcribes thousands of TV and radio broadcasts to make them text searchable and then sells access to the transcripts.  Fox News claims that the transcription of its broadcasts infringes on its intellectual property rights. The case, Fox News Network LLC v. TVEyes Inc. (No. 13-CV-5315), was filed in the U.S. District Court for the Southern District of New York.  According to the complaint,  TVEyes is willfully and deliberately infringing on Fox News’ copyrights and is misappropriating its “hot news” content.  It then allegedly distributes that content to subscribers over the Internet for a fee.  Fox News further alleges that TVEyes is “well aware” it needs a license or authorization from Fox News in order to reproduce its content in this manner. Apparently, TVEyes allegedly contacted Fox News seeking a license for its use of Fox News content, which Fox News declined to provide.

According to its website, the mission of TVEyes is “to organize the world’s television and radio broadcasts and make them universally searchable by the spoken words.”   Fox News’ complaint alleges that TVEyes charges users a subscription fee of $500 per user per month.  This is not some fly-by-night company, either.  Its customers include the United States Department of Defense.

Fox News pulls no punches in describing TVEyes’ business model.  The complaint argues that “TV Eyes engaged  in the parasitic business of offering and providing the public for a fee copies of the television programing and content created by others.”  Fox News wants an injunction, as well as unspecified statutory and punitive damages.  It is notable that Fox News does indeed have its own service that sell transcripts of its programing. TVEyes has already filed its motion to dismiss.  In the motion, TVEyes asserts that the Fox News’ claims are barred by the Copyright Act and the complaint fails to state a claims for “hot news” misappropriation.  A plaintiff alleging “hot news” must show “time-sensitive factual information, free-riding by the defendant, and threat to the very existence of Plaintiff’s product.” We’ll keep our eyes on this lawsuit.

Exotic Dancers Suing for Minimum Wage in New York

In a recent Fair Labor Standards Act (FLSA) case in the U.S. District Court for the Southern District of New York, a federal judge ruled in favor of class of strippers exotic dancers and determined that they were actually employees rather than independent contractors.  According to Law360, the facts were these: Former exotic dancers at Manhattan strip club gentlemen’s club Rick’s Cabaret brought a minimum wage class action against club operator Peregrine Enterprises Inc.  Seriously? Exotic dancers at a very popular club in Manhattan are suing over minimum wage?  I suppose no professions are immune from economic downturns. Because of their independent contractor status, the plaintiffs weren’t paid wages while working at Rick’s, but instead, received “performance fees” for “dances” with customers.  However, the named plaintiffs argued that they truly were employees of Rick’s and were therefore entitled to a minimum wage.  U.S. District Judge Paul Engelmayer agreed with the plaintiffs and ruled that they were, in fact, employees of the midtown Manhattan club and that Peregrine was their employer.

In reaching his decision, the Judge applied the five factor “economic realities” test.  Of course, that is a standard test to determine whether agents of a business are employees or contractors.  The test has nothing to do with the economic realities of whether an exotic dancer should be entitled to the minimum wage. While the outcome of the case appears favorable the dancers, the judge wasn’t quite ready to make it rain just yet.  Although he ruled that the dancers were employees, he refused to grant summary judgment because a question remained as to whether they are solely employees of Peregrine or whether they were also employees of Rick’s Cabaret International Inc. and RCI Entertainment (New York) Inc. We’ll have to keep a close eye on the future of this litigation, won’t we?

The case in question is Hart v. Rick’s Cabaret Intern., Inc., — F. Supp. 2d —-, No. 09 Civ. 3043-PAE (S.D.N.Y September 10, ,2013).

Volunteer Dissatisfied with “Pay,” Files Suit Against MLB

A “volunteer” can be defined as one who offers to provide a service willingly and without pay.  Apparently, one New York resident wants to rewrite the definition of volunteer.  John Chen was one of many persons that volunteered to work for free at Major League Baseball’s 2013 All-Star Fan Fest.  Now, after the fact, Mr. Chen is looking to get paid and has filed suit claiming that MLB violated wage laws. I always thought the minimum wage for volunteers was $0.  Surely, there must be more to this story, right? Allegations of fraud and deception? Broken promises? Nope, there’s nothing of the sort.

Chen volunteered with MLB for five days assisting with tasks that included hospitality, logistics, and transportation. By all accounts, Mr. Chen undertook the endeavor knowing full well that he would not be compensated for his time.  There’s no allegation that he was tricked into volunteering or that MLB made any sorts of promises that weren’t kept.  Nevertheless, the lawsuit filed in federal court alleges that MLB violated federal and state minimum wage laws by failing to pay him and more than 2,000 other volunteers.  Mr. Chen and his attorney have sought class action status and have asked for lost wages.

So what gives?  One frivolous lawsuit begets an onslaught of similar lawsuits.  It just so happens that Mr. Chen’s attorneys, Outten and Golden LLP, recently won a lawsuit against Fox Searchlight seeking pay for interns who had accepted previously unpaid internships. Of course, that case turned on the fact that the interns were regular employees, which is not the case in this lawsuit.
I know I’ll be watching this one closely.  If this suit is successful, I may have some money coming my way from the MS Society, the United Way, and Habitat for Humanity.

Idiocy By Proxy Is Indefensible

The dog days of summer are here, and the school year is over.  Kids love this time of year; for parents, it’s a mixed blessing – no more responsibility for getting the kids to school at the crack of dawn, but also, they must face the long, hot days and fill them with activities, camps, and play dates. The end of the academic year is marked in most schools by end-of-year recitals, plays, and fundraisers of all types.  Perhaps you can go and bid in a silent auction on Precious Boy or Girl’s priceless works of “art” – colorful swirls done with fantastically dirty fingers.

Or, perhaps you are out of town, so you proxy bid.  If this is your method of bidding, perhaps you should set a ceiling on those bids.

Enter Jon and Michelle Heinemann, who send their Precious Boy (who is 5 years old) to Cathedral School of St. John the Divine in Manhattan.  Out of town for the silent auction, they gave their proxy to make sure they would be the highest bidder on a painting done by Precious Boy and his classmates.

The price tag at the end of the day?  $50,000.00.  For a finger painting.

Furious, they have sued the school, saying that one of the teachers kept increasing the bids artificially so that the Heinemanns would have to pay some big bucks for Precious Boy’s creation.  They are suing not only to recover the price they paid for the painting, but for costs to send their children to another school, and a chauffeur to get them there.

Right.

There are several things we love about this story, which we found on Gawker here.  First, it’s that a couple of people who think they’re really smart may just have been outsmarted, and they are too fancy to admit it.  Second, it’s this line, as reported by Gawker:

Because the Heinemann’s were out of town, and had given instructions to a proxy to be the highest bid, they believed the largest possible damage for a finger painting (which are priceless) would fall around $3,000.

Because $3,000.00 would have been reasonable for a finger painting.

Finally, we love that the Heinemanns are also claiming that Precious Boy has been treated unfairly by the school since the auction went sour, claiming that he has had to do such things as hold the door for other students. Maybe I’m just a public school kid who didn’t know any better, but when I was five, it was cool to do such menial tasks as hold doors and erase blackboards for teachers.

A few other fun facts:  Jon Heinemann appears to be in finance in New York, running investment money management funds.  Here’s a website for The Heinemann Fund.  Michelle Heinemann was featured in something called “Black Tie Magazine” [pdf], which called her a “modern day Renaissance woman” and informed readers that she maintains several homes.  The Google has much more on this couple, if you’re curious.  Finally, according to its website, tuition  at Cathedral School of St. John the Divine in Manhattan for the upcoming school year rounds out at $38,425.  At least it includes lunch.

Banana Split: Velvet Underground and Warhol Foundation Settle

The Velvet Underground’s first album cover, which featured a drawing of a large yellow banana, has been the subject of recent litigation.  Why? In a collaborative effort with the band in the 1960′s, Andy Warhol designed the banana that was featured on the album cover.  A recent spat arose between the Velvet Underground and the  Warhol Foundation’s over the Foundation’s proposed licensing of the banana for use on case  for Apple products.  The suit recently settled out of court for an undisclosed amount.

The suit was first filed by The Velvet Underground in January of 2013 alleging that Warhol Foundation violated its rights to the album design by licensing the design for commercial purposes.  The banana graces the cover of the band’s album The Velvet Underground and Nico, which was rated by Rolling Stone as the 13th best album of all time.  However, the band never sought or received trademark registration for the image from the U.S. Patent and Trademark Office.  Nevertheless, they claim instead that they earned trademark rights by virtue of years of association with it. Without the trademark registration, the band was certainly facing an uphill battle.  It would have had to prove that the design has come to be associated by the public with the band itself.  While that may be true with regard to certain segment of the population that is really into music, most of the general public would recognize the drawing as nothing more that a typical piece from Warhol’s collection.  Especially given that the album cover also prominently featured Warhol’s signature.

Probably best for both parties that they just went ahead and split this banana (pun intended).