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.

20th Anniversary: Malice (1993)

Twenty years ago today, on October 1, 1993, the film Malice was released to theatres. Directed by Harold Becker, written by Aaron Sorkin and Scott Frank based on a story by Sorkin and Jonas McCord, the film centers around a brilliant surgeon who becomes entangled in a medical malpractice suit.  It’s a mess of a film with so many plot contrivances and melodramatic turns that we couldn’t do it justice with a brief summary. In fact, check out the plot summary on the film’s Wikipedia entry and you’ll see just what we mean. Starring Alec Baldwin, Nicole Kidman, and Bill Pullman, the film resonates with lawyers – even two decades later – due to a scene in which Dr. Jed Hill (the surgeon in question, played by Alec Baldwin), exclaims during a deposition that he believes himself to be God. You remember that scene, right? Courtesy of IMDB, here’s the dialogue in question:

I have an M.D. from Harvard, I am board certified in cardiothoracic medicine and trauma surgery, I have been awarded citations from seven different medical boards in New England, and I am never, ever sick at sea. So I ask you; when someone goes into that chapel and they fall on their knees and they pray to God that their wife doesn’t miscarry or that their daughter doesn’t bleed to death or that their mother doesn’t suffer acute neural trauma from postoperative shock, who do you think they’re praying to? Now, go ahead and read your Bible, Dennis, and you go to your church, and, with any luck, you might win the annual raffle, but if you’re looking for God, he was in operating room number two on November 17, and he doesn’t like to be second guessed. You ask me if I have a God complex. Let me tell you something: I am God.

(You can watch the full scene here.). Now, we remembered the scene a bit differently before we revisited it for this blog post.  We had always thought that Dr. Jed Hill was the deponent, but that’s not the case. Rather, it is his superior at the hospital, Dr. Martin Kessler (played by George C. Scott), who is being deposed in the matter. For some reason or another, Dr. Hill, the defendant in the suit, is present at this deposition. It is during an off the record break in the proceedings that Dr. Hill makes his famous speech. (In an episode of “30 Rock” aired years and years later, Jack Donaghy, makes reference to this scene and confesses he once referred to himself as God in a deposition.).

We’re not the only ones who have blogged about this film lately.  Check out Alex Craigie of the At Counsel Table blog’s post, “Why It’s Critical To Get a Stipulation To Go ‘Off The Record’ In Deposition,” which uses this very scene as an example.

We leave you with the opening paragraph of film critic Roger Ebert’s review, published 20 years ago today:

Malice is one of the busiest movies I’ve ever seen, a film jampacked with characters and incidents and blind alleys and red herrings. Offhand, this is the only movie I can recall in which an entire subplot about a serial killer is thrown in simply for atmosphere.

If you’re up for a messy and crazy movie from the early 1990′s, this may be the one for you.

Abnormal Interviews: Comic Book Writer Ryan Ferrier, Creator of Tiger Lawyer

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Ryan Ferrier, creator of the comic book series Tiger Lawyer, in which a tiger establishes a successful career as a courtroom litigator. Take a look at the panels above – which Mr. Ferrier mentions below in response to one of our questions – and you’ll get a good feel for the character and his series. On a number of occasions, we’ve mentioned this fateful character (here, here, here, here, and here.) Last week, Mr. Ferrier was kind enough to submit to an interview with our site. Without further ado, the interview is as follows:

1) How did you first come up with the idea of Tiger Lawyer?

This is one question I get asked quite often, and it kills me that I can’t really remember the catalyst for the concept. I do remember it was December of 2011 when I tweeted something very quick along the lines of “my next comic will be about a Tiger who’s a lawyer LOL,” meaning it only as a joke. That one tweet got some pretty good traction and I was encouraged to actually write the script that became the first half of issue one—Matt McCray’s story—over the course of a cold Calgary weekend. From there the whole thing just kept growing, and once Vic Malhotra joined the team, it turned into the comic series we have today. I wish I had a more interesting story on exactly how I came up with the concept itself, but alas, I do not. It was just a blip in the brain. I may have been on the treadmill. Or in the shower. I’m afraid of all the crazy things that pop in my brain that I don’t follow through with.

2) Why a tiger?

It’s funny, I don’t really have much of an affinity for tigers, to be honest. They’re not my favorite animals or anything. I give credit to my subconscious on that one. It very easily could have been Walrus Lawyer, or Horse Lawyer. I admit there is something appealing and accessible about a tiger, though. I think it certainly works with the character’s charm and confidence. His presence. Tigers are pretty awesome though, when I really think about it.

3) What is in store for the future of the character?

Oh, we’re certainly not done with the character yet, not by a longshot! We—myself and artists Matt McCray and Vic Malhotra—are currently working on Tiger Lawyer #4. It’s the best issue yet, in my opinion. Matt and I are doing something very unique to the previous issues, but very funny. Vic and I are working on the more serious half, which is going to be fantastic. We’re really excited to take the character on a new journey, especially after how the noir arc ended in issue #3. We don’t have a release date for issue four yet, as we’re taking our time to make it the best possible book we can, but it’ll be in the not too distant future, that’s for sure.
I’ve also got plans for a spin-off Tiger Lawyer one-shot. It won’t be called Tiger Lawyer #5, but instead something totally different, but still revolving around the character.

4) What has been the reaction from lawyer readers? What about non-lawyers?

I do get a ton of comments and kindness from lawyers, and I really love it. It’s fantastic. I used to get nervous about it, as everything I know about law, I learned from episodes of “Night Court” and Hollywood films. But now I just give in to it and embrace it. I know there’s a ton of legal inaccuracies, and that’s what makes it fun. How else should a comic about a talking tiger play out? I’ve received a lot of great feedback from people in the legal field, and I’ve heard stories of people giving copies out at firm Christmas parties and stuff like that. It’s great. I feel like there aren’t many law-related things, so I’m happy to fill that void for now.

The reaction from non-lawyers has been simply amazing. I honestly cannot believe it’s gone this far, and been received so well. I give all that credit to the artists, Matt McCray and Vic Malhotra. They are the ones who have brought the character to life. The title of the book is pretty catchy, I admit, and does really well at cons, and hooking someones eyes, but it’s Matt and Vic that have been able to ground our stories and make them special. I did the sizzle, they did the steak. But it’s really been great; we sell out of books at a lot of cons, and the reaction from my peers has been really inspiring and I’m so grateful for it.

5) Where do you get the ideas for your legal story lines?

Like I mentioned before, I really only know about law from television, movies, and pop-culture. I draw a lot from that, especially those big, media spectacle trials, like the O.J. Simpson  case, and things like that. While I don’t mean to minimize the often macabre, very real circumstances that surround those cases, it’s the spectacle of the cases that attracts me to them. With a character like Tiger Lawyer, it’s got to be big and sensational.

With issue #3, though, I wanted to shift the focus onto the character instead of the trial, which is why we made it a prequel, showing Tiger’s time at Harvard law. I think there’s still so much we can do with the character without re-treading familiar waters, and issue #4 will continue that, while providing some big courtroom laughs at the same time.

6) Obviously, we’re talking about a lawyer who is a tiger. But do you make any effort otherwise to depict the legal world realistically?

I think I make an effort not to, honestly. I mean that, however, with the utmost respect and appreciation of the legal world and those who work in and around it. It’s Hollywood law, and I aim to satire just that. I think there’s a very tongue-in-cheek feeling with the series, and as nutty as it sounds, it’s my goal to have the reader think “hey, this writer doesn’t really know a lot about how actual law works.” There’s humor in that. It’s like how television news doesn’t play out in real life how it did in the film Anchorman, for example. But, I do understand how many people wouldn’t get it. Early on in the series, I heard someone complain about how Tiger objects during the prosecutor’s opening statement (which I now understand isn’t a thing that happens). This person was actually pretty cut up about it, but I laughed. It’s a cartoon world, with cartoon rules, and a talking tiger.

That’s my defense, anyways.

BONUS QUESTIONS:

1) Who is your favorite fictitious lawyer?

Great question! It’s a tie between Dan Fielding (the amazing John Larroquette in “Night Court”) and Saul Goodman (the incredible Bob Odenkirk in “Breaking Bad”).

2) What is your favorite comic blog?

There are many great comic blogs, and I hate to single any out. But I will. Multiversity.com, Comicosity.com, and ComicsAlliance.com are all worthy of a daily visit.

BIOGRAPHY: Ryan Ferrier is a Canadian comic book writer and letterer. He currently writes Tiger Lawyer and The Brothers James for Challenger Comics, a self-publishing comic collective he runs with artist Brian Level. Ryan also letters Robocop: Last Stand for Boom Studios, as well as Skybreaker and Theremin for Monkeybrain comics. He can be found on Twitter at @ryanwriter.

The Blue Book and Commercial Recording Citations

Not too long ago, we directed your attention to a federal case in which a Kris Kristofferson song was at issue. We lamented the fact that the court in question did not see fit to cite the song at issue as per the dictates of Blue Book rule 18.6.1, entitled “Commercial Recordings.” Here’s that rule:

Cite Commercial Recordings by artist and title, providing the name of the recording company and the date of release (if available):

* Cowboy Mouth, Are You With Me? (MCA Records 1996).

* The Beatles, Sgt. Pepper’s Lonely Hearts Club Band (Capitol Records 1990) (1967).

If a particular song or musical work is referred to, cited by analogy to shorter words in a collection according to rule 15.5.1:

* Don Henley, The Boys of Summer, On Building the Perfect Beast (Geffen Records 1984).

Well, that is from the 18th edition of the Blue Book, which is the one we had handy. The fact that the most recent cited example of an audio recording is from 1996 struck us funny, although we are certainly fans of Cowboy Mouth, a New Orleans rock band made famous for its rock anthem “Jenny Says.” But Sgt. Pepper’s Lonely Hearts Club Band? Building the Perfect Beast? We’re huge Beatles fans, but come on, surely the authors of the Blue Book – comprised of the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review, can cite some more recent records and songs than those? First, the quibble with the Beatles citation. Why cite to a later pressing from 1990 when one can and should simply cite to the original 1967 recording? Further, wouldn’t it have been better to cite Rubber Soul or Revolver?

Next, Don Henley? Sure, we love “The Boys of Summer,” with its classic reference to aging hippies with their “Deadhead stickers on Cadillacs,” but how many law students using the Blue Book will recognize Henley and this classic from 1984? At this point, most law students were born after 1984, anyway. Surely we could throw some Radiohead in there?

So, come on, editors, let’s throw in some updated references! (Full disclosure: We’re still using the 18th edition, so let us know if they’ve already updated these issues in the 19th.).

Seinfeld’s Jackie Chiles is Back, Honey Bears Targeted

Winnie The Pooh, beware. Jackie Chiles is coming for you. Chiles, the flamboyant and opportunistic trial lawyer of “Seinfeld” fame, has been retained by Jim Beam to enjoin bears everywhere from continuing with their honey theft.

So what’s Jim Beam’s beef with bears? Well, the Kentucky bourbon whiskey brand has developed a new product infused with honey and liqueur known as Jim Beam Honey. It appears that honey production has been depressed by a decline in the honey bee population. Even though the supply is waning, Jim Beam needs its honey – and it is willing to fight the largest consumer to get it.

Speaking to the media through his handlers, Chiles had this to say about the suit:

“Bears are egregious, devious, and just plain mischievous! . . . I’m here to go on the record – with Jim Beam Honey as my witness – to ensure that sweet, mouth-watering justice is served!”

With Chiles leading the charge for Beam, the bears may be in trouble. For their sake, we hope the bears have Vincent Gambini on speed dial.

We here at Abnormal Use are glad to see Chiles back in action. We are typically not fans of frivolous lawsuits, but Chiles is a friend of the blog. (We previously scored an interview with Phil Morris, the actor who brought Chiles to life). We have no idea what will happen with the bears, but for some reason, hearing about Chiles’ revival makes us want to buy a bottle of Jim Beam Honey. In fairness, though, we probably would have done that anyway.

No Matter What You Think of Scalia’s Opinions, This Guy Thinks They’re Musical

As a Justice of the Supreme Court, Antonin Scalia (or, more pointedly, his opinions) are a polarizing force.  Although gruff and cantankerous from the bench, he’s apparently not such a bad guy outside the courtroom.  After all, we’ve heard reports of hunting trips with Justice Kagan, and it’s been reported that he has eaten New Year’s Eve dinner with Justice Ginsburg since 1982.  Apparently, he’s the funniest Justice, too, eliciting more laughter with his comments than any other, according to Boston University law Prof. Jay Wexler.

Justices Scalia and Ginsburg also share a love of opera, as reported by U.S. News & World Report in a 2007 piece:

An opera aficionado, Scalia, along with fellow Justice Ruth Bader Ginsburg, appeared as an extra in a 1994 production of Richard Strauss’s Ariadne auf Naxos. Scalia appeared onstage for about an hour and a half during the second act in a costume first worn by Plácido Domingo during the world première of Goya in 1986.

Well, apparently, the opera connection doesn’t end there.  According to NPR’s Nina Totenberg, and reported on NPR, a new opera about these two legal heavyweights has been completed.  The composer, Derrick Wang, is a new graduate of the University of Maryland’s Carey School of Law, who heard music in the opinions and dissents:

I realized this is the most dramatic thing I’ve ever read in law school … and I started to hear music — a rage aria about the Constitution,” Wang said. “And then, in the midst of this roiling rhetoric, counterpoint, as Justice Ginsburg’s words appeared to me — a beacon of lyricism with a steely strength and a fervent conviction all their own. And I said to myself, ‘This is an opera.’

Well, the opera is finished, and Justices Scalia and Ginsburg got a preview last month at the Supreme Court, the day after the Court’s term ended.  No news yet on whether it will be performed elsewhere, but in our opinion, the highest court isn’t exactly community theater.

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).