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).

Well, we’re not turning into Buzzfeed or anything, but we did think we would take advantage of this short week and do a bit of pop culture court blogging.  Like some of you, we saw the new cinematic adaptation of F. Scott Fitzgerald’s The Great Gatsby (about which we decline further comment).  It got us thinking: How many courts have referenced the novel?

So, here are seven courts which refer to the novel by name, some in much more detail than you would suspect.

1. Legacy Healthcare Servs., Inc. v. Provident Foundation, Inc., No. 1:03CV00515., 2007 WL 275974, at *3 (N.D. Ohio Jan. 26 2007).

“While the billing documentation procedures will not likely read as clearly or fluidly as The Great Gatsby, the Medicare rules and regulations are not beyond the ken of the average layman.”

2. New York State Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1312 (2d 1994).

“In closing, we are reminded of the words of F. Scott Fitzgerald. In the final passages of The Great Gatsby, Nick sits on the beach looking out over the Long Island Sound. While contemplating the Sound, Nick reflects upon the ‘fresh, green breast of the new world’ as it must have appeared to its first explorers. Not long ago, it would indeed have seemed that the Sound ‘year by year recedes before us.’ Increasingly, however, New York is recognizing its interest in protecting the rich natural resources of the Sound. The Amendments to N.Y.Envtl.Conserv.Law § 13-0329 are rationally related to that interest. Perhaps, ‘one fine morning-‘.”

3. In re Compton, 97 B.R. 970, 980 (Bkrtcy. N.D. Ind. 1989).

“It strains the court’s credulity to believe the Defendant’s love-starved and tearful explanation for her conduct. The old adage that ‘the third time is a charm’ is not applicable on these facts. As they say in baseball, three strikes and you’re out. The court is not swayed by the Defendant’s tearful exhortations. The Defendant’s conduct bears a harsh resemblance to that of F. Scott Fitzgerald’s character Daisy in The Great Gatsby. The difference however, is that Daisy’s seemingly endless wealth could support her financial follies with the men and opportunities in her life. The Defendant did not have the same riches and affluence at her disposal.”

4. Stainton v. Tarantino,  637 F.Supp. 1051, 1082-83 (E.D. Pa. 1986).

“Plaintiffs’ theory of the case was that plaintiffs were a naive shop teacher and his wife who were hoodwinked by two unscrupulous lawyers. Tarantino’s theory of the case was that two educated, sophisticated people, with great wealth, set out to destroy him because Mrs. Stainton considered him a social climber. The closing argument of defense counsel presented Tarantino’s theory of the case. The references to the wealth of the plaintiffs, including the quotation from F. Scott Fitzgerald’s Great Gatsby, were relevant to the financial sophistication of the plaintiffs and the motivation for bringing the lawsuit.”

5. Summum v. Pleasant Grove City, 499 F.3d 1170, 1179 (10th Cir. 2007)

“No one thinks The Great Gatsby is government speech just because a public school provides its students with the text. This is because the speech conveyed by the physical text remains private speech regardless of government ownership.”

6. CA, Inc. v. Simple.com, Inc., 780 F.Supp.2d 196, 250 (E.D.N.Y. 2009) (citations omitted).

“According to Simple, finding that the JavaScript Bible is enabling ‘is no different than saying that a dictionary would enable an author of ordinary skill to write a novel like The Great Gatsby, because it discloses all of the words used by F. Scott Fitzgerald.’ In other words, Simple asserts that CA has not met its burden of clearly and convincingly showing that the JavaScript Bible offers sufficient guidance to enable one skilled in the art to practice the subject matter claimed in the patents in suit.”

7.  In re Veal, 450 B.R. 897, 912 n.25 (9th Cir. 2011)

“The converse is also true: one can be a ‘person entitled to enforce’ without having any ownership interest in the negotiable instrument, such as when a thief swipes and absconds with a bearer instrument. See Comment 1 to UCC § 3–301. The ability of a thief to legitimately obtain payment on bearer instruments, such as bearer bonds, has factored in literature and film focusing on the dark side of humanity. See, e.g., F. Scott Fitzgerald, The Great Gatsby ch. 9 (1925) (part of Gatsby’s downfall connected with the theft or falsification of bearer bonds); Die Hard (Twentieth Century Fox Film Corp. 1988) (thieves masquerading as international terrorists seek to steal a highly valuable trove of bearer bonds); Beverly Hills Cop (Paramount Pictures 1984) (friend of protagonist is murdered for stealing bearer bonds from a drug operation’s kingpin).”

Finally, the authors of both R-Boc Representatives, Inc. v. Minemyer, No. 11 C 8433, 2012 WL 2905733, at *1 (N.D. Ill. July 16, 2012) and Metropolitan Life Ins. Co. v. Barbour, 614 F. Supp. 2d 47, 48 (D.D.C. 2009) begin their opinions by quoting the very last line of The Great Gatsby: “So we beat on, boats against the current, borne back ceaselessly into the past.”

We’ve talked before about the depictions of lawyers on television and our relative disappointment with the portrayals thereof.  The other day, one question occurred to us:  Why is discovery rarely, if ever, depicted on lawyer television shows?

When is the last time you saw a witness being deposed on a lawyer television show? When is the last time you saw a young associate in a frightful warehouse in the middle of nowhere performing document review? When is the last time you saw a lawyer responding to discovery requests or lodging objections to same? Is it that such tasks are not cinematic in nature?  Surely, that’s not it.

We can certainly imagine an interesting episode of a television show regarding an associate’s trek to an industry site to review documents.  Further, we can also imagine the novelty of a large scale toxic tort plaintiff’s deposition with 20 defense lawyers in the room.

So why is it that we never see such things on television?

Is it that the writers of legal television shows themselves only know of our industry from other bad legal television shows?  Is it that the a program’s advisers do not have the breadth of legal experience to provide such anecdotes to the production?  Or is it that the traditional formula of a legal TV show is so well established and ossified that any deviation therefrom would simply require extra effort?

Perhaps we will never know the answer to these questions.  But we’d watch a show featuring such things.

Last week, viral news site BuzzFeed released its “hotness” rankings of the various prosecutors appearing on NBC’s “Law & Order.” A daunting task it is to rank the attractiveness of our television colleagues. While BuzzFeed‘s efforts are admirable, it – like much of the general public – fails to view these TV lawyers for their total package. How shallow of them.

For example, by ranking Fred Thompson at No. 36 on the list, the author obviously failed to account for Thompson’s political career or his commercial work pushing reverse mortgages. What could possibly be more attractive than a politician encouraging others to take out loans accessing the equity in their homes? Obviously, BuzzFeed is ignoring the voices of its senior citizen readers.

And how can Alfred Molina rank a paltry No. 34? He is Dr. Otto Octavius, for goodness sake. We recognize that Spider-Man 2 was the worst of the trilogy and pales in comparison to the Amazing Spider-Man. But, he is still associated with the classic superhero and deserves more credit than a 34 ranking. BuzzFeed must be more a fan of heroes than villains.

As poor as the Thompson and Molina rankings are, they are by no means as laughable as placing Sharon Stone at No. 22. Stone is a legend. She has been dominating these types of rankings since the late 1980’s and deserves some respect. Last time we checked, Harry Connick Jr. (No. 6 on the list) never had a starting role in Total Recall. Ageism rears its ugly head once again.

Thankfully, there is no list ranking real-life lawyers in such a fashion. We here at Abnormal Use would not expect to rank very highly if such a list did exist. Especially, if BuzzFeed failed to account for our work as Old King Cole in our first-grade play.

Soccer fans are loud.  Really loud.  A rowdy bunch in general, fanatics of teams all over the world have been known to engage in all sorts of bad-boy behavior.  They throw things from the stands, things like flares and burning mopeds that could seriously hurt someone on the field or down below.  They murder fans of other teams, just because.  And they engage in riots that end up with people dead, and others sentenced to die.  Heck, there’s even a Wikipedia page devoted to “football hooliganism.”

My point is, soccer fans are not, as a rule, shrinking violets.

And yet, there was one thing that caused soccer fans all over the world to beg for mercy.  To lunge for their remotes in a frantic search for the mute button or, for those [un]lucky enough to be at games during the South Africa World Cup in 2010 in person, to wish for earmuffs.

The Vuvuzela.

Looks harmless enough, but these things are brutal.  They’re loud.  They make your ears bleed.  And, thank the heavens, they were eventually banned by UEFA, the Union of European Football Associations.

Not to be outdone, Brazil has apparently come up with its answer to the Vuvuzela, another [slightly less] annoying noisemaker which Brazil claims to be part of its cultural heritage.  They are called Caxirolas.  Please don’t ask me to pronounce it.  Time Magazine recently published an article about them, which is how we learned about them.  This guy was nice enough to model them:

Designed to sound like rain, we think that the sound, once magnified by all of the fans, will be more like the sound of millions of cicadas swarming the stadium than a calm afternoon shower.

But then, we’re talking about soccer fans.  They never opt for “calm.”

While killing time recently, I ran across this rant posted on the Opinion page of CNN.com, written by Dean Obeidallah, who is apparently “a political comedian,” and a former attorney, among other things.  Well, we don’t think he was trying to be funny in this column.

In fact, I take issue with his tone.

Obeidallah’s basic point is that—wait for it–America is too litigious.  Certainly not new material.  He uses a recently-filed lawsuit against the TV doctor personality “Dr. Oz” as the latest evidence for this theory.  Apparently, a diabetic man is suing Dr. Oz because the remedy Dr. Oz suggested caused the man to suffer burns on his feet.  Of course, as Obeidallah notes, the gentleman seems to have ignored some of the basic instructions for the remedy.  You can read more about the lawsuit here.  Obeidallah then continues his column by providing a list of other “ludicrous” lawsuits (although we noticed that he does not mention the infamous Stella Liebeck McDonald’s Hot Coffee case).

Obeidallah’s verdict on the reasons for our litigious society?  A perfunctory “Blame the lawyers” slogan, especially plaintiffs’ personal injury lawyers, who hope for a quick settlement “so that they can do as little work as possible before seeing their own payday,” and “taking a questionable case that will reap you some media coverage and money.”

Now, we here at Abnormal Use have worked with–and against–a number of hard-working, honorable plaintiffs’ personal injury lawyers who are not just good, but great, attorneys.  We’ve also worked with some who didn’t quite hit the mark.

But we’ve met and worked with just as many great and not-so-great lawyers on our own side of the bar.

Despite his anger, Obeidallah does make one point that we don’t see often in such analysis.  There are a “growing number of lawyers out there struggling to make ends meet,” he says.  He might be on to something.  According to a recent Wall Street Journal column, there are approximately 21,800 new legal jobs each year for the approximately 44,000 law school graduates.  Those numbers don’t crunch.  Hungry lawyers, Obeidallah suggests, might be more willing to take a questionable case simply to keep their practices afloat.

There is, of course, a larger conversation in the legal community these days—about the role of law schools, the quality of legal education, and the available jobs for graduates and seasoned lawyers alike.  We will continue to monitor these issues, comment upon them, and invite your input, as well.  We hope that the tone of these discussions remain civils, and don’t always have to be accompanied by column headings as abrasive as Obeidallah’s “Dr. Oz suit is another reason people hate lawyers.”

We think these heavy subjects deserve a more nuanced approach than that.

As you know, sometimes we here at Abnormal Use discuss popular culture, whether it be comic books, music, or the cinema. This weekend, we received a curious email from an associate at our firm: “Did you know that our Charlotte office was in Shallow Hal? The exact building and everything. I just had this realization.” Pictured above is the screen capture he attached to that email.

Oh, my goodness.  That is, in fact, the entrance to the building which houses our Charlotte office.

It could not be more clear.  Compare to the pictures we previously posted here and here, and you’ll find the resemblance unmistakable.

Does this mean our office was once famous?  Well, let’s see.

Shallow Hal, an otherwise forgettable attempt at comedy, was releaed on November 9, 2001. It starred Jack Black and Gwyneth Paltrow.  According to the Internet Movie Database, the film was shot in and around Charlotte, North Carolina during that time frame. As for us, we did not move into this building until late 2011, so we missed the brush with fame by eleven years. Alas.

This news has presented an existential dilemma of sorts: we’d prefer that a better film had been shot here.

Now, our researchers are working diligently to determine whether or not our Greenville and Columbia offices have been featured on film.

On a related Hollywood note, Wilford Brimley once left us a voicemail.

Ah, what’s a little alcohol without a little insult?  Our friends at Overlawyered recently reported on one brand beer that is changing its name due to today’s politically-correct climate.  “Albino Rhino,” a craft beer brewed by Earls Restaurants in Canada, will change its name after 25 years.  The new name: just “Rhino.” A woman who suffers from albinism had filed an official complaint with the BC Human Rights Tribunal, prompting the brewer to opt for the name change. In response to this news, we here at Abnormal Use started looking at some other beer brands that have resulted in litigation.  To our delight, we found a lot!  Booze, apparently, often prompts suits.

Last year, the Michigan Liquor Control Commission banned Flying Dog’s Raging Bitch beer.  Flying Dog filed a First Amendment lawsuit as reported by Beerpulse.com, which bills itself as the “World’s #1 daily beer news website.”  (Sidebar:  now there’s a website we need to visit more often!  Why has no one told us about this before? Clearly, we have been reading too many legal websites).  Don’t forget about Bad Frog Beer, whose label prompted one state alcohol authority to ban it (as it featured a frog shooting the bird at the drinker).

There are, of course, the trademark infringement suits, which beg mentioning because of some of the words these breweries are trying to protect!  Here’s a story about two companies fighting over the use of the word “idiot!”  The most famous case, of course, involved that little spat between Budweiser and Budvar.  Read about it here, and take our word for it–the American beer is inferior to its Czech counterpart.  No comparison.

Of course, if we were to talk about beer and lawsuits, we can’t go without mentioning Collaboration Not Litigation Ale, brewed by Avery Brewery Company.  I can think of mediation or two that might have fared better with a little beer, and some that actually have.

If you’re just looking for offensive beer names, there’s a website for that.  Check out this page, which has a link to more names on this page, too.  WARNING:  Some of them are actually pretty awful, and probably warrant a Rated X label.  You’ve been warned!

As you know, each Friday, we  share some links to other sites and articles of interest.  Keeping with this week’s theme – the commemoration of the twentieth anniversary of the release of A Few Good Men – we’ve collected some links related to the film.

Here’s an interesting piece from The New York Times, published last year, noting that at least four former military lawyers have claimed to be the lawyer upon which the A Few Good Men‘s protagonist is based. How about that? It wasn’t one of us, that’s for certain.

Did you know that in 2008 the ABA Journal named A Few Good Men Number 14 on its list of Top 25 Greatest Legal Movies?

In an article, also from 2008, M. J. Tocci explains that A Few Good Men teaches us that “jurors give their own meaning to the different ways that men and women express themselves.”

Here is the official blog of the U.S. Navy JAG Corps.

Today, we here at Abnormal Use continue our week-long tribute to A Few Good Men with an interview with James Marshall, who was kind enough to agree to an interview with our own Rob Green earlier this year. In the film, Marshall’s character, Pfc. Louden Downey, was one of the accused Marines defended by Lt. Daniel Kaffee, played by Tom Cruise. Marshall’s credits include roles in David Lynch’s “Twin Peaks,” Gladiator, and “China Beach.” Our interview with Marshall, which features his memories of the filming and set and observations on his acting career, is as follows:

ABNORMAL USE:  It’s kind of hard to believe it’s been 20 years since that movie came out.  It kind of seems like it was almost just yesterday.  How has it been for you, I mean, does it feel like it’s been 20 years?

JAMES MARSHALL:  No.  Not at all.  One of the funny things about it is A Few Good Men seems to be playing almost every night, it’s not like weekly, like every other day, it was on some channel. To me, it was such a unique part of my life.  That’s why when I look at some of the guys, everybody is starting to look a little older, and I think, wait a minute, that can’t be happening, we just did that.  It was such a great opportunity to be a part of something that cool and that big.

AU:  That was such a big name cast that you guys had in that movie.  How was it filming a movie with all those big names, Jack Nicholson, Tom Cruise, Demi Moore, Kevin Bacon?

JM:  It was literally – at first that kind of feeling like maybe skydiving feeling.  At first, I was really, really scared. Even going to the set for the first time for the first rehearsal.  I genuinely had a feeling of like, “Whoa.”  Every day, it was like very surrealistic, very dreamlike in a really good way.  It was just so cool.  There were so many people walking around, and you’ve got to understand, these people who are that big have friends.  So, they had their big movie star friends visiting the set.  There were some I didn’t get to know, but the ones that I dealt with mainly were Demi Moore and Kevin Pollak.  I only spoke to Jack a couple of times, but I just watched how he dealt with peopl,e and he was a very good person to look at for that kind of thing.  As big of a star as he is, from the extras to just anybody, if somebody asked him a question, he just was right there looking them in the eyes and answering.  It was very cool.

AU:  Your role in the movie, you played Pfc. Louden Downey, who was a young Marine wrongfully accused of murder, what sort of background research or what did you do to prepare for that particular role of playing a Marine?

JM:  Well, the Marine stuff, that initially I had worked on a military movie called Cadence that was directed by Martin Sheen that  starred Martin Sheen, Charlie Sheen, and Larry Fishburne.  It was shot in Canada, and we actually had to shoot it twice.  So, I actually went through real two boot camps to prepare for that movie, which was pretty much the kind of thing that you don’t forget.  Yeah, I had had it pounded in for many months before the shoot of Cadence.   I was a little rusty by the time A Few Good Men came around, but it came back pretty quickly. Somebody on the set actually came up to me, I think it was the first day, and said, “You’ve got to get these guys, they’re marching’s horrible. ” And I go, “You guys need to do this and that to march properly.”

RG:  Anything else?

JM:  I also got to see A Few Good Men on Broadway when I was in New York doing promotions for “Twin Peaks.”  This was way before A Few Good Men was thought of as a movie, they were probably just talking about it.  And I got to see the Broadway show, they took me to the show and stuff.  So, seeing the other guys’ performance, what he did with Downey and stuff, really helped me to, because on stage it’s much bigger, broader, so it helped me to understand how his character was.  Because on film, you tend to downplay things.  And had I not seen what they did on stage, I may have downplayed it too much.  It gave me a good background emotionally where the characters were.

RG:  Now, you had so many big names in the film, but the actor you shot the majority of your scenes with, Wolfgang Bodison, that was his first role wasn’t it?

JM:  Yeah.  He’d never – he wasn’t an actor.  He was Rob Reiner’s assistant, actually, and I think Rob just started looking around because he was having trouble finding the right person for the part, and Rob thought Wolfgang just looked perfect for the part. So, I think Rob just read him and made sure he could do it, and yeah, that was that.  He was a good guy, too.

RG:  A Few Good Men is considered to be one of the best legal movies and, in fact, the American Bar Association named it number 14 on the list of 25 greatest legal movies of all time.  What do you think makes the movie resonate so well with so many people, whether lawyers or not, after all these years?

JM:  There’s all-star casts with many movies, and they just come and go sometimes. I mean, the script is phenomenal, and there was a certain something in that script that was very special. Even when I saw it on stage, that time in New York, there was something about it that vibrated.  . . . [S]omething about it had a life of its own.  I’ve gotta hand it to Rob Reiner. When you have Rob Reiner come on, who dealt with everything so responsibly, he had the emotion in everything he did.  He is also able to humanize all of the characters. He dimensionally showed you through his direction of each character, what they’re doing when they’re not in uniform, and what they’re doing off the job.  Then, he was willing to go to a place that was really, really almost emotionally invested in the character by giving a sense of vulnerability of each character.  Like Nicholson’s character’s vulnerability was his arrogance, you know what I mean?  I mean, the movie’s just so dynamic, and it moves so well, without being self-conscious and artificial, has this great old school Hollywood movie feel to it, which makes you feel good about.  There’s something so redeeming, and it’s the fact that they – it just feels good to be human for a minute, and that’s really what, that’s really to me what theater and Hollywood is about ultimately.  It makes you interested in life, inspired about life, and to feel good about being human.  And most movies don’t do that. It’s either a thrill ride, or whatever, or an attempt at something like A Few Good Men, and usually it falls short.  No, you know what it was, it was a compilation of incredibly talented people coming together with a really, really good story.

AU:  Do you have a particular scene or a particular moment from the movie that kinda stands out to you that you particularly look back on with and go “Wow, that was just amazing”?

JM:   There’s probably a couple of parts.  There’s the final scene with the classic build-up of Jack Nicholson’s character [“You can’t handle the truth!”] and the fireworks . . . between Cruise and Kevin Bacon with Demi Moore and Nicholson, and you just feel their – it’s like where it’s going to go, how is this going to happen and it’s happening so effortlessly and quickly, and then – that’s something that everybody remembers. But as far as other stuff, for me, when I see some of the scenes, some of the scenes make me remember what we were doing at the time, that kind of thing.  And it’s like when I look at scenes at the table in the courtroom, sometimes with Demi, Tom, and Wolfgang, we’d be sitting there for hours because of other thingsoff camera.  And then we’d also have Kevin Pollak there.  He’s a comedian.  Between takes, Kevin would be making jokes, and it was just tremendously funny stuff coming from him. Then, Demi would stick something in, and Kevin would crack up. And Rob Reiner would come over and hear it and start laughing.  It’s little moments like that stand out.  But yeah, I don’t remember a lot of things from most movie shoots, but A Few Good Men, I remember nearly every day.  It was so dynamic.  It was just . . .  it was overwhelming.

AU:  One of the interesting aspects of the movie that I found as a former JAG officer was the interplay or tension for most of the movie between Kaffee and Dawson and Downey with, you have Kaffee’s kind of laid back lawyerly personality and then you have the very militaristic Dawson and Downey – do you know how that aspect of the movie came to be?  Was it just something that Aaron Sorkin wrote in, was it something that Rob Reiner developed?  Do you know where that came from?

JM:  Actually I think those were the dynamics of the play, so I think a lot of that was Aaron’s stuff that was in there already.  I’m pretty sure, yeah.  It was, everybody was pretty well defined from the play and from the initial script.

AU:  Do you think you get recognized most for your role in “Twin Peaks” or A Few Good Men?

JM:  A Few Good Men.

RG:  Definitely?

JM:  Yeah, because “Twin Peaks,” although it had a bit of a cult following, I think everybody has seen A Few Good Men. And like I said, A Few Good Men is on television a lot.  I also tend to look more like the A Few Good Men character.  On “Twin Peaks,” I had dark black hair, blah, blah, blah.  And the role was an ensemble cast.  It was a whole different thing.  But yeah, I’d say definitely A Few Good Men.