The Legacy of Kurt Cobain (A Law Blog’s Perspective)

This past Saturday, April 5, 2014, marked the twentieth anniversary of the self-inflicted death of Nirvana lead singer Kurt Cobain. You may have seen a number of articles and think pieces about the occasion over the weekend. Tomorrow, though, marks the anniversary of the day in 1994 when the world learned of Cobain’s death. That was April 8, 1994, a Friday, which meant that his fans – mostly members of Generation X – began that weekend with the news. Many learned of Cobain’s death from anchor Kurt Loder in this April 8 MTV News broadcast. As far as we here at Abnormal Use are concerned, all that needed to be said about the legacy of Cobain was addressed in 2004 when Spin magazine writer Chuck Klostermann speculated about an alternate history in which Cobain lived. That said, as members of Generation X ourselves (and as lawyers who can’t resist an opportunity to opine on a subject of interest), we feel compelled to comment on the anniversary (despite the fact that Cobain would likely not have appreciated a law blog weighing in on his place in music history). Oh, well.

Cobain was an interesting contradiction. He brought punk rock music to the masses (making 1991 the year that genre finally “broke” into the mainstream). But he clearly disdained the many suburban fans who flocked to his band’s shows. “This is off our first record, most people don’t own it,” he said to the crowd on November 18, 1993 as he introduced “About A Girl” during the recording of Nirvana’s MTV Unplugged in New York. With that statement, Cobain passive aggressively suggested that the general public, who had heaped praise upon him and bought his album in droves for more than two years at that point, was somehow neglectful in not owning 1989′s Bleach, his band’s first record. Basically, if a fan was not the type of person he would have befriended in high school, or if a listener did not share his political and social opinions, Cobain didn’t want their support. An interesting marketing strategy, that. We suspect that if Cobain had lived into the Internet days, we’d be hearing a myriad stories about his rudeness to certain segments of fans (which is consistent with some actual anecdotes we’ve heard about him in the early 1990′s, as well).

But you can’t deny his talent. He mixed the elements of light hearted pop with heavy grunge and punk (in a far, far more sophisticated and appealing way than what passes for punk, or the inappropriately named “pop punk” genre, these days).  Even within the same song, he would shift from melodic and almost quiet poppiness to heavily distorted and loud guitar, and in so doing, create an extraordinarily catchy tune. Although he downplayed his lyrical abilities (telling interviewers that the lyrics were the last part of a song he would develop, sometimes as late as the day the song was to be recorded), his words, often contradictory themselves, were more thought provoking than he would claim them to be. In addition to his own merits, he introduced a generation of young music listeners to bands they’d never before encountered such as the Melvins, Shonen Knife, Scratch Acid, Daniel Johnston, the Raincoats, and the Wipers. On the aforementioned Unplugged album, he covered the Meat Puppets, Leadbelly, the Vaselines, and even David Bowie. Back in the early 1990′s, there was no Internet (at least not one that was accessible to the general public), and the task of finding new music – especially that which was not promoted on MTV or discussed in Rolling Stone or Spin – was a challenge indeed. In those days, a decision by a musician as famous as Cobain to don a t-shirt promoting a previously obscure band had an immense effect, and thus, fans of Nirvana, if they elected to do so, could explore Cobain’s own musical influences and save such bands from the ash heap of music history. On this very point, Anthony Carew of About.Com once wrote:

In 1992, in a pre-internet era, the ability to find out about fringe acts was limited to what your local record-store was like. Information was a limited commodity, and wearing someone’s t-shirt made a statement long before last.fm profiles did the work for you. In this day and age, when the internet offers the possibility of everyone being an obscure music expert, there’s no comparable act; if Jack White had worn an Ariel Pink t-shirt to the 2005 MTV VMAs, no one would’ve batted an eyelid.

A historical irony: Sometimes, the types of fans Cobain disdained might discover the records and artists he himself held dear.

Whatever the case, on this somber anniversary, to Cobain, we say requiescat in pace.

A few other thoughts and memories on this occasion:

In the 2000 film High Fidelity, based upon the book of the same name by Nick Hornby, John Cusack plays world weary record store owner Rob Gordon. In film, Gordon remarks, “Some people never got over ‘Nam, or the night their band opened for Nirvana.” That’s more profound than you might realize, especially if you know someone who was a member of band who actually did open for Nirvana.

Like many, I spent much of the night of April 8, 1994 driving around my city (Houston, Texas) listening to Nirvana songs on the radio. Of course, the deejays couldn’t resist repeatedly playing the “No, I don’t have a gun” line from “Come As  You Are,” the second single from Nevermind. I remember thinking that it was obnoxious for them to be doing so.

In December of 1993, I had the chance to see Nirvana perform in Houston. It was a Monday night (a school night), so I decided to skip the show. Big mistake, obviously.

Cobain does make it into case law and you’ll find his name if you do a result of same. In United States v. Wecht, No. 06-0026, 2006 WL 1669879, at *1 (W.D. Pa.  June 13, 2006), the court addressed the motion to suppress of famed pathologist Cyril Wecht. According to the opinion in that case, federal agents took possession of a number of Wecht’s files, including “29 unlabeled boxes which contained Dr. Wecht’s private autopsy files in accordion folders, including files on various high profile matters including the deaths of Marilyn Monroe, Elvis Presley, Tammy Wynette, Kurt Cobain, and other notable celebrities and public figures.” Wecht is known in JFK assassination conspiracy circles as a fierce critic of the Warren Commission. But there’s more: Courtney Love Cobain, as Administratrix of the Estate of Kurt Cobain, was a party to Neighbors & Friends of Viretta Park v. Miller, 940 P.2d 286 (Wash. Ct. App. Div. 1997), a case in which “[t]he Neighbors and Friends of Viretta Park, an unincorporated voluntary association, and several individuals who live in the vicinity of Viretta Park  . . . brought this lawsuit against the City of Seattle, its Parks Superintendent Holly Miller, and Howard and Sheri Schultz seeking declaratory judgment that vehicles are barred from the Viretta Park right of  way, and that the City did not have the authority under the plat dedicating the Park to allow the Schultzes to utilize the Park right of way for vehicular access to their property.” We’re not entirely sure why the estate was a defendant in that matter. (Side note: The defendants in that case prevailed on their laches defense. How about that?).

Speaking of conspiracies, you’ve probably heard the nonsense espoused by some who contend that Cobain was murdered. Tom Grant, a former Los Angeles Sheriff’s Office detective turned private investigator, is the foremost among them. He’s turned this theory into an income generating mechanism for himself. On his website, he sells a book, more of a large pamphlet of sorts, really, which he has called The Kurt Cobain Murder Investigation. As civil litigators, we’ve seen a lot of lousy, lazy, and poorly developed expert opinion reports in our time, but this one may take the cake. The one word that kept recurring to me as I read Grant’s work was Daubert.

Also worth reading today: “Remembering April 8, 1994” by Chuck Norton of Dead Journalist.

Music Re-Recordings: Inferior or New Classics?

Most of us consider music to have reached its prime during the days of our youth.  Be it the 60′s, the 70′s, or even the 80′s, music of one’s formative years is arguably the best a person will ever hear.  Today’s music just doesn’t cut it.  Instead, we download the songs of yesteryear on iTunes or have our Sirius/XM radios perpetually set on the 90′s channel.  (Those were the days.). Others go so far as to purchase “as seen on TV” compilations like “We Love the 80′s” or, better yet, “Monster Ballads.”  After all, who could ever complain about having the world’s greatest music in one accessible CD?  Believe it or not, there is actually a proposed class of angry music-lovers who have filed a new lawsuit in a New Jersey federal court against Tutm Entertainment (d/b/a Drew’s Entertainment), the producer of the monumental “Hits of the 80′s” and “Hits of the 90′s” albums. Why is the proposed class so angry? According the the complaint filed by Celeste Farrell, the named plaintiff for the proposed class, purchasers of these albums aren’t getting the classics they grew to love but, rather, “poorly re-recorded songs.” Specifically,Farrell alleges:

Instead of conveying the source of the recording to allow the consumer to make an informed purchase decision, Tutm provides no information on the Albums’ cover or back label to indicate to the consumer that the songs are not the original songs.

We here at Abnormal Use have not listened to these albums, so we cannot comment on the quality of the re-recordings and cover versions contained on them. But, we don’t see how anyone could really complain about any recording of “Ice, Ice Baby,” whether it be the original or a new version? That said, when people fall in love with a song, they fall in love with a particular version of that song (usually the first version of it they ever heard which, of course, is typically the original version). Anything else might as well be “new music.” We can understand purchasers hoping to get the same when buying these compilation albums.

Whether Tutm’s conduct in selling these albums without a disclosure is fraudulent, however, is another question. Sure, Tutm may have known purchasers would expect the original recordings. But, they also may have thought people could be equally as excited about new recordings of the classics? After all, isn’t Motley Crue still touring? Whatever the case, we’re not sure that covers of “Jessie’s Girl” or “Take on Me” should be litigated in federal court.

Mötley Crüe Contracts to Dissolve, But Who Are They Kidding?

Last week, Mötley Crüe band members Vince Neil, Mick Mars, Nikki Sixx, and Tommy Lee signed a contract to bring an end to the band after one final farewell tour. The contract, deemed by the band as a “cessation of touring agreement,” is supposedly a means of ending the band in a formal and cordial fashion and allowing the members to enjoy individual projects. The real question is whether it does just that.

In a statement to CNN about the contract, Mötley Crüe attorney Doug Mark said:

Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement.

Mark’s words are all well and good, but we here at Abnormal Use think the contract is as effective at ending the band as the release of Generation Swine was at re-launching them. The contract is signed by all four members and, thus, can be modified by those four members if they so choose. Even if contracts couldn’t be modified, who is going to enforce it if the band reunited? For the contract to serve its purpose, it would need to be signed by representatives of the public-at-large. Or, at least those Mötley Crüe fans who purchase tickets for the farewell tour thinking they are part of the band’s last hurrah.

Really, this contract is about the fans. The band attempting to assure its fans that this farewell tour is the real thing and won’t be followed by a farewell-farewell tour. Last year, Vince Neil alluded to this idea, telling the Oakland Press, “We want to go out on top. . . . but it’s not going to be like a KISS farewell to the farewell to the farewell tour.” We respect the notion, but let’s see if they follow through.

If Mötley Crüe does again re-unite at a later date, who is really harmed? We understand that there is some sentimental value to fans as having been a part of a band’s last tour. Perhaps some fans who otherwise may not have gone to a tour purchase tickets due to this fact. But Mötley Crüe isn’t some band we are ready to see call if quits. Even in their 50s, this is still the band that gave the world “Dr. Feelgood” and “Girls, Girls, Girls.” And for that, if the band does decide to continue touring, we here at Abnormal Use will forget that contract ever happened. Maybe.

Doh! FOX Wins Big in “The Simpsons” Copyright Infringement Suit

Earlier this month, FX announced that all 530 episodes of “The Simpsons” will be available for to legally watch on the Internet.  All of “The Simpsons” episodes will be available on FXX, a new channel in the FX Network, and through FXNOW, a recently released video on demand app. The deal could cost FX as much as $1 billion dollars.  To date, it has never been possible to legally watch “The Simpsons” on the Internet. There is that word again . . . Legally.

Until recently, a Canadian gentleman has run “Watch The Simpsons Online” and “Watch Family Guy Online.”  The websites launched in 2008 and 2009, respectively.  As the old moniker goes, pigs get fat, hogs get slaughtered.  Both sites earned a combined 87 million visitors.  Though “Watch The Simpsons Online” has dealt with legal issues since 2008, it has operated more or less without impediment until October 2013, when FOX filed a copyright infringement lawsuit in the federal court of Canada.  Shortly thereafter, on October 9, 2013, the site operator’s home was raided.  The site operator did not appear in the lawsuit and was presumably put into the Canadian version of default.  In his absence, the federal court awarded FOX over $10.5 million dollars.

The site operator is unable to pay the judgment, and apparently, he did not make a sustainable living from the sites.  He has since stated that the experience is the worst thing imaginable and that he simply wanted “the dinosaurs would just give their consumers what they want — which is to be able to stream their videos online easy, fast, worldwide.” FOX has showed no signs of letting up and is currently attempting to execute the judgment.  According to reports, the site operator stated that “Fox are pursing for the money and they are doing so as hard as they possibly can. They’ve ruined my life and continue to do so as long as they don’t leave me and my family alone. As it’s been referenced by a lawyer: ‘they are killing a fly with a nuke’.”  The same reports indicated that FOX’s attorney stated that “the significant judgment in this case points up the risk courted by those who engage in Internet piracy, in particular for commercial purposes.”

While we disagree with converting the intellectual property of another, especially for financial gain, the site admin has a point.  Both the number of visitors to the sites and the potential $1 billion value of the FX deal, make you scratch your head at why FOX waited this long to provide access to “The Simpsons.”  Either way, it’s probably wise just to wait until August to get your fill of The Simpsons. Also in case FOX reads this, we here at Abnormal Use have never heard of either site or the ability to stream “The Simpsons” prior to this story. We promise.

 

 

 

http://torrentfreak.com/simpsons-pirate-ordered-to-pay-fox-10-5-million-in-damages-140102/

 

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 tokillamockingbird.com.  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.

Flexing Free Speech Rights With Your Index Finger – The Fourth Circuit and Facebook

Recently, our own Fourth Circuit Court of Appeals considered the First Amendment in the context of 21st century technology.  As you likely know all too well, Facebook has invaded most areas of our lives – it seems only appropriate that it envelop our jurisprudence, as well. As reported by The Washington Post, the Fourth Circuit has held that by clicking the “Like” button on a Facebook post a person is exercising his or her First Amendment rights. The case is Bland v. Roberts, — F. 3d —, No. 12-1671 (4th Cir. Sept. 18, 2013) [PDF].

The facts of the case are straightforward, but they inspire some good old fashioned eye rolling.  A Hampton, Virginia sheriff’s deputy was fired after he clicked “Like” on the Facebook campaign page of the candidate running against his boss.  [Sidenote:  Why would you do that?  This is a clear violation of the "silly plaintiff" rule.  But we digress.]  The fired employee, Daniel Ray Carter, sued, saying that he was fired for exercising his free speech rights.  The federal district court granted summary judgment against Carter on the grounds that clicking “Like” was not an actual statement, and thus, it did not rise to the level of protected speech. Both Facebook and the ACLU filed amicus briefs in which they disagreed with the district court.  The Fourth Circuit overruled the district court, and we believe rightly so.  Judge Traxler, writing the opinion, likened the “Like” to a political sign posted in a front yard.  Did Carter have the right to display a yard sign of his boss’s opponent on his front lawn?  Yes.  [Is it a good idea?  Different question.]  In our opinion, the district court not only got it wrong, but very wrong.  First Amendment jurisprudence makes it abundantly clear that non-verbal “speech” is protected.  The district court seems to have stepped back in time, forgetting some important precedent.

The Washington Post also had a nice article preceding the Fourth Circuit’s opinion, highlighting other disputes that have arisen from the use of social media in the workplace.  You can find that story here.

Do you “Like” the Court’s opinion?  What implications do you think it will have going forward?  Remember, the related issue of an employer’s ability to force employees to give up Facebook passwords is also still hanging out there.  A U.S. News report from April 2013 on that subject, outlining the lawsuits and proposed legislation, can be found here.

Abnormal Interviews: Daniel “Rudy” Ruettiger

Today, we here at Abnormal Use continue our  tribute to the 1993 film Rudy and celebrate its twentieth anniversary with a special edition of “Abnormal Interviews.” For this latest installment, we turn to motivational speaker and former Notre Dame college football player Daniel “Rudy” Ruettiger, the inspirational figure behind the film.  That’s right.  The Rudy Ruettiger.  You know, the Rudy Ruettiger, who despite his 5’6″, 185 pound stature,  walked-on to the storied Notre Dame football team from 1974-1975 back in an era when walk-ons were much less common place than they are today.  Yes, that Rudy. Rudy’s story, as told in the film, has served as an inspiration to many.  After speaking with Rudy for just a short time, we quickly learned that his story is more than a made-for-Hollywood tale.  Rudy is as inspirational to interview as his film is to watch and made us feel as if we should pull that brief back off of the partner’s desk and add a few more citations just to spice it up.  Without further ado, the interview is as follows:

NICK FARR:  Looking back now twenty years,  what are your thoughts on how the film has resonated with viewers?

RUDY RUETTIGER:  It’s interesting, it’s affected people spiritually in a big way because of the message of – nondenominational message, not a religious message, it’s a spiritual message of not giving up, getting up when you get hit hard, keep moving forward, don’t listen to the naysayers, persevere, be persistent.  That’s the message that comes through loud and clear through the movie.  In the last twenty years, I’ve heard many stories how the movie has really helped people.   One guy came up to me that had cancer and he used to the movie to get himself in a positive state of mind to help get himself cured.  You hear all these stories  you hear of kids hav[ing] misfortune, families hav[ing] misfortune and they use the movie wording to encourage them.  To me, the movie worked as I saw it.  The movie worked as I presented it to Hollywood and Notre Dame.  It wasn’t solely about me.  It was more about the journey of life, how we look at life, how we can changes our thoughts, our thoughts control who we are, so that type of thing.

NF:  How did the movie come to life?  How did you feel once you saw a representation of your life on the big screen?

RR:  I got my inspiration through a movie that I watched called Rocky. It inspired me  to do other movies like that. Where they needed to go I thought Notre Dame would be such an elite status in America for sports and academics and you break through that.  That’s an underdog story.  So I went out to Hollywood and started pitching that.  It took ten years to find – well, eight years to find someone to listen and in the ninth year, we started the process and the tenth year we got the okay to produce the movie through a company, Tri Star Pictures Columbia Pictures.  We went through a series of mistakes and misfortunes. . . . Notre Dame was a challenge.  They didn’t want Hollywood to come in. . . . Very, very, very tough sell, but it all came together at the end.  I think God has a special way of putting things together when you do the right stuff even though you make a lot of mistakes, you learn something.  You don’t live by them you learn from them and you move on.  And I think that’s how the movie happened.

NF:  With your story personally, starting out at Holy Cross, finding your way onto the scout team at Notre Dame, and being a “undersized player”, what was your source of motivation throughout that whole process.

Rudy: That’s a good question.  I entered the Navy after high school. [The Navy] changed my whole environment, my whole attitude of life basically because it –  I didn’t know I had a learning disorder, I was kinda put down, kinda bullied.  I was put in the category of the dumb kid.  To make a long story short, I chose to go into the United States Navy, I changed my whole attitude about who I was and had confidence.  And from there I went back to work . . . I didn’t know how to pursue Notre Dame even though that dream came back.  Holy Cross was the answer.  I never went to the people, my high school counselors . . . . I went to other people who believed in me.  They said Rudy that’s a great choice  A junior college is a great choice. You go there because at a junior college great people come around you.  They want you to win.  You succeed academically and then you transfer. It’s right across the street.  And that little junior college was exposed to me just by chance.  By chance for the first time in my life I went up to the Notre Dame football game, never had a ticket.  And I saw the junior college and said there’s my answer.  It’s right there.  So that’s kinda like it all happened and from a junior college of course I made the decision not to be a scholarship player but to be part of a football tradition.  So that changed my whole attitude.  I could be part of something.  I don’t have to start.  I don’t have to do all the things they say I need to do other than contribute to that football team.  And that was a realistic choice because that was real.  I go through a lot of disappointment of course and a lot of alienation because you’re dealing with elite coaches, elite culture, elite outreach and they don’t accept walk-ons because there were 145 scholarships at the time.  And I understood that.  So I just used my Navy attitude —- do what you want, do what you need to get done.  Find a way to do it.  Because of that attitude, it happened.  By doing your work.  Do what’s important.  Showing up and everything falls in place.

NF:  Tell us a little bit about Coach Devine.  I know that some people have said that in the movie he is  portrayed as maybe the antagonist but we understand that may have not actually been the case.

RR:  Exactly, you’re absolutely right.  Coach Devine, we sat down with Coach Devine and the writer, and they started to explain to him why he had to be the heavy.  We had to do composites of other coaches and his personality because we wanted to show the real realism of college coaching and the politics.  He agreed to do that because he saw the benefit of a guy like a Rudy that could benefit a football team.  He said,  ”Absolutely.”  Not that he completely understood it, but he accepted it, and again, because of the movie, once he saw it, he understood it, and he accepted it again.  It was a courageous move by him I thought for him to accept that role. And, of course, Ara Parseghian – same type of person but yet at the same time he was a tough guy, too.  He gave me a chance to walk on.  So, saying all that, as you know sports today – it’s still the same, it hasn’t changed.  Walk-ons are more accepted today because of lower scholarship demand.  And walk-ons still contribute.  So that changes everything and there’s a lot of athletes walk on and play baseball, football, national football, NBA.  And there’s great athletes that use the movie Rudy to inspire them to keep working harder. How important is that chip on your shoulder? Kobe Bryant is a great example because he uses that movie to inspire him to work hard.  Knowing that he has talent but will have to work hard even though he  gets knocked down you gotta get back up so he uses that movie. All these guys relate to that.  There’s guys in the NFL as well. . . . So my point is – my whole point is the movie p represented the underdog and you gotta show that conflict and that’s where he accepted.

NF:  How did you feel about Sean Astin portraying you on film?

RR:  Sean Astin was a perfect choice.  We were actually looking at another great actor by the name of Chris O’Donnell. He was under contract, but because of a movie I saw, it inspired me to call. Not that I was an expert on casting but I asked them if they would please look at Sean.  They liked him, and he got the role.  So, Sean Astin, basically, to make a long story short, made his career from Rudy. . . .

NF:  And you, yourself, made a cameo in the film.

RR:  Yeah, of course, you wanted to be part of that film so I wanted to do a cameo part.  But I was also encouraged by the director and the producers to do it.  I wanted to do it, why not?  When they made Secretariat, the lady who owns Secretariat, she made a cameo.  I think it’s important to make your cameos in movies like that.

NF:  Do you have a favorite sports movie?

RR:  I liked Remember The Titans.  I liked HoosiersRocky was my favorite, I think, of all.  I like Rocky Balboa.  I liked Secretariat.  The underdog type movie I think is what inspires me. . . . So saying all that and being part of all that – you put all that together and you tell yourself why not, why can’t I do it?  And that was the attitude I had.

NF:  One last question:  Do you have any predictions for the college football season this year?

RR:  Well, college football – you look at the heavyweights, your Alabamas, your Texas A&Ms, because of big quarterbacks.  I think Ohio State and maybe Alabama in the final.  That’s kinda the gut feeling I’m getting.  Who knows?  Great teams are upset, blindsided and they let their guard down.  But again, Southern Cal, Notre Dame, Ohio State, Michigan – all those teams – Wisconsin, great team.  Northwestern, I mean watching them come from where they were and where they’re at today – Ohio State, great team.  I mean, it’s just – shows you some great kids out there, great coaches, Coach Peterson is a great coach.  So there is – I love college football.  It’s exciting to me.  I love the playoffs for major league baseball in October.  I love it.  It’s just one of those things.

BIOGRAPHY: Daniel “Rudy” Ruettiger was born in Joliet, Illinois.   He spent one year in the United States Navy following high school.  Thereafter, he worked for a power plant before applying to Notre Dame.  Due to marginal grades, he completed his early college work at Holy Cross College before finally being accepted to Notre Dame in 1974.   Following his time at Notre Dame and the release of Rudy in 1993, Rudy has served as a motivational speaker, traveling the country inspiring others through his story of determination.  He can be found on Twitter at @TheRealRudy.

Twentieth Anniversary: Rudy (1993)

We here at Abnormal Use live and work in a part of the country in which college football is a religion.  Friday conversations predict how our favorite teams will do, and Monday conversations feature the analysis of how they did.  In light of this, we must recognize that the movie Rudy will celebrate the twentieth anniversary of its release on this coming Sunday.

Directed by David Anspaugh, and starring Sean Astin as former Notre Dame college football player Daniel “Rudy” Ruettiger, the film was originally released on October 13, 1993. It was the first movie that the Notre Dame administration allowed to be shot on campus since 1940.  Of note, Rudy was named one of the best 25 sports movies of the previous 25 years by ESPN.

Set in 1974, the movie was shot during the fall of 1991.  Our own GWB partner, Notre Dame alum Chris Kelly, was “featured prominently” in the movie, appearing in approximately four seconds worth of footage of the University of Notre Dame marching band (“The Band of the Fighting Irish!”).  (You have to look pretty hard to see him, but we here at Abnormal Use humor him, as we must all do with most Notre Dame fans.) Let’s see if you can spot him in these two screen shots we recently pulled from the Rudy DVD:

To be honest, we never believed Mr. Kelly, but he has now produced clear and convincing visual evidence of his cinematic stardom, right?

The film offered a trip back into college football and life in the 1970′s in the context of a feel good story.  When the movie was released in 1993, it provided an interesting contrast between modern football and the relative innocence of the game just a few decades before.  In the twenty years since its release, it is fair to say that college football, and football generally, has continued to change.  The college football of the 1990′s was big business, but now, it is an enormous economic enterprise fueled by 24/7 sports television.  There are still feel good stories to be told. but you have to dig past the branding and rush for revenue to find them. Some days, that’s no small feat. As the commercial enterprise of the sport has increased, so too have its legal issues.  In addition to litigation arising out of consolidation and destruction of conferences/markets, use of images of college athletes, compensation of players and NCAA rules enforcement, or lack thereof, we are seeing product liability and mass tort litigation related to concussions and helmet technology on both the pro and college level (note for the record we refrained from saying “amateur level”).  The immensity of the financial boon resulting from the fervor to cheer on the old alma mater has engendered an enormous amount of legal issues and litigation as the almighty dollar works its magic.

So we here at Abnormal Use will raise a glass of Guinness on this day and toast Rudy Ruettiger and the era when college football was more pure and played by student athletes that were thrilled to simply obtain a top notch education for free while playing a kids game. 

Mayweather Scores Knockout In Lawsuit

Floyd Mayweather followed up his recent victory in the ring against Canelo Alvarez with a victory in the courtroom against Anthony Dash.  Dash filed a lawsuit against Mayweather and World Wrestling Entertainment (WWE) alleging that they violated his copyright by playing a variant of Dash’s music during Mayweather’s entrance at two WWE wresting events.

The Fourth Circuit recently upheld dismissal of the suit on the grounds that Dash failed to provide evidence of his damages .

By way of background, Dash composed an instrumental ”beat” in 2005 that he referred to as the “Tony Gunz Beat” or “TGB.”  He alleges that Mayweather and another individual co-wrote lyrics and recorded them over TGB to create song entitled “Yep.”  This song was played as intro music when Mayweather appeared at two WWE events, Wrestlemania and RAW, in 2008 and 2009.  Dash alleges that the use of “Yep” at the event infringed on his copyright and caused him economic damage of around $150,000.

In an lengthy opinion, the Fourth Circuit upheld the district court’s dismissal of the case on the grounds that Dash had not presented non-speculative evidence to support his claim for damages.   The district court had concluded that Dash was not entitled to actual damages because he had not offered “sufficient, concrete evidence to indicate an actual value of his beat.”  The Fourth Circuit noted that actual damages are to be calculated based on what a reasonable buyer would pay a reasonable seller.  Dash had presented an expert report stating that he could have received up to $3,000 for use of TGB if he had been paid a licensing fee.  However, the court found this report to be overly speculative.

The decision seemed to rest in large part on the fact that the value of songs are highly variable and depend on a number of factors.  Those factors include popularity of the work, the reputation of the songwriter, the presence of a released sound recording, and the possibility of a new recording in the studio.  The plaintiff’s expert failed to address these factors in reaching his opinion.

Of course, one could argue that trying to determine value of any song, whether from a well known artist or not, is highly speculative.  Music labels sign hundreds of artists per year hoping that one or two can become next Coldplay or Carrier Underwood.  While most don’t make it big, the ones that do tend to make it really, really big.  Figuring out which ones make it and which ones don’t is the hard part. Either way, it’s nice to see the that Mayweather can get back to more important things like attempting to win money on the shoulders of Johnny Football.

 

 

 

Insane Clown Posse Allegedly Not the Good Guys We All Thought

Growing up in the ’90′s, we were always fascinated with the Detroit-based rap duo known as the Insane Clown Posse (“ICP”). Their music was not particularly good, but something about the band’s “wicked clown” personas always intrigued us. Apparently, there is more to ICP than some circus makeup and the honor of being named GQ‘s “worst rappers of all time.” In a complete shocker, reports have surfaced that they are also alleged sexual harassers. Consider us floored.

As reported by the ABA Journal, the band’s ex-publicist (and “in-house counsel”) has sued ICP and its record label, Psychopathic Records, alleging that she was sexually harassed and belittled in the workplace. The suit contains a plethora of allegations against the band, including giving Pelligreni a sex toy, ordering her to use unsafe unisex bathrooms, and calling her demeaning names. In addition, ICP allegedly took advantage of her legal background and named her “in-house counsel” so that her knowledge of the corporate wrongdoing at issue would be protected by the attorney-client privilege. Interestingly, she was also asked to reveal other protected information for media-related purposes.

Being a publicist for a celebrity must be a tough gig. We imagine working for two guys known as “Shaggy 2 Dope” and “Violent J” just increases those difficulties. At this point the Plaintiff’s allegations are just that; however, if true, it is safe to say her work environment was far more substandard than that of her colleagues. Look for ICP to grace the cover of GQ‘s next big issue, “Worst Bosses of All Time.”

As lawyers, we have to wonder why Pelligreni decided to forego life as a lawyer for that of a publicist. Big law may not be all the glam it appears on the surface, but we doubt too many senior partners are passing sex toys off as annual bonuses. Hindsight is 20/20, we suppose.