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

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

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

Above, you’ll find the cover of Gravity #1, published not so long ago in 2005. The cover has little, if anything, to do with the law, but we had to share it. Mainly, we chose this cover because we really, really want to go see the new Alfonso Cuaron film, the science fiction thriller Gravity, which stars Sandra Bullock and George Clooney and hits theaters today. Now, we should say that the new film has nothing to do whatsoever with this comic book. They are not related in any way. But we’re so fixated on the new film that we can justify posting this cover today. In fact, we’d never actually heard of the super hero Gravity before, but Wikipedia tells us:

Greg Willis is born and raised in Sheboygan, Wisconsin. During the summer after his high school graduation, while on board his family’s yacht, Greg is sucked into a mysterious black hole. He is found hours later by his parents, unharmed. After the incident, Greg finds that he is able to manipulate the gravitational force around his body and nearby objects. Looking to take advantage of his new powers, Greg moves east to New York City to study licensing and merchandising at New York University, and becomes a marketable member of the superhero community known as Gravity.

That said, we’re much more interested in the movie than this would-be superhero. Oh, well.

Buzzfeed presents: “21 Strange And Offensive Things That Happened To Lois Lane.” Yikes.

The October 2013 issue of the G-Bar News is out, and you can find it here.  As you may recall, the G-Bar News is the official publication of the Greenville County, South Carolina Bar association.

Apparently, the federal government shutdown is affecting craft beer! Check out this article from the Beer of SC blog.

Last week, McDonald’s announced it was switching from polystyrene (aka Styrofoam) to double-walled paper cups for hot beverages in all of its restaurants. The move is made in response to changing consumer preferences and an increase in environmental consciousness. There’s nothing wrong with that, we suppose. However, whenever McDonald’s acts, it seems as if someone is there to tell us that it is bad. If you are asking why this is reportable news, then let us catch you up on the last 20 years of legal pop culture. For starters, McDonald’s coffee cups (and its coffee) are no strangers to publicity. Ever since Stella Liebeck infamously spilled a cup of McDonald’s coffee into her lap back in 1992, McDonald’s coffee has been parodied in major television shows such as “Seinfeld” and has been the cover story of an HBO documentary on the civil justice system. Always a topic of debate among lawyers and non-lawyers alike, it should come as no surprise that when the fast food chain announced a change in material for its hot beverage containers, the news sent the interwebs into a flutter.

The major significance of the announcement is not the reasons for the change, but rather the effect the change may have on future litigation. Inevitably, someone will spill coffee from one of the new cups onto himself and claim that the spill would not have occurred but for the double-walled paper construction. While we have no idea whether there is a financial difference between paper and polystyrene, we wouldn’t be surprised to see an argument in the future that McDonald’s is sacrificing consumer safety in favor of increased profit margins. Such an argument is likely a complete farce, ignoring the valid reasons behind the change. Unfortunately, this is the climate in which McDonald’s and other businesses face.

The environmental impact of a switch away from polystyrene cannot be understated. Given the billions of cups of coffee sold by McDonald’s, the impact is significant. Nonetheless, any change, albeit a good one, made by McDonald’s regarding its coffee production, will undoubtedly find its way into the allegations of a complaint. Remember, you heard it here first.

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.

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.

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:

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.

Unless you’ve been living under a rock, you know that this Sunday the final episode of “Breaking Bad” airs on AMC. We’re crestfallen. But we’re excited. We can’t wait.  We love Bob Odenkirk’s portrayal of Saul Goodman, the crooked lawyer who advises anti-hero Walter White. So, today, we pause to reflect upon Breaking Bad: All Bad Things, a digital comic book published earlier this year (which we didn’t know about until we Googled the search term “Breaking Bad Comic Book.”).  Quite frankly, we’re not sure how we’re going to cope without “Breaking Bad,” and we can only guess what is in store for the characters on the series who (currently) remain alive. We assumed there had to be some type of adaptation, and we were right. For more on this issue (and to read it!), please see here and here.

In music news, Roger Waters regrets suing Pink Floyd.

The Legal Geeks pick apart the “spotty” legal record in the television show “Veronica Mars.”

You could buy Kurt Cobain’s childhood home for only $500,000!

We’ve cited an 1884 “dead horse” law in any of our briefings, but not too long ago, the Internal Revenue Service did.  For more, see here.

Let’s say you are a juror in a first degree murder case. Some advice: Don’t look up the state’s expert on Facebook and message him. Seems reasonable enough, right? Well, let’s talk about State v. Smith, — S.W.3d —, No. M2010–01384–SC–R11–CD (Tenn. Sept. 10, 2013). That appeal, as the court set forth, concerned “the appropriate response when a trial court learns during a jury’s deliberations that a juror exchanged Facebook messages with one of the State’s witnesses during the trial.”

Sigh.  Here we go again.

During void dire, the attorneys did not ask the prospective jurors if they knew the assistant medical examiner who performed the autopsy and would testify on behalf of the state (even though several or the jurors were employed by the Vanderbilt Medical Center, where the witness had trained). Of course, as is custom, the trial court instructed the seated jurors not to speak with any of the attorneys or witnesses. The trial proceeded as per usual. However, during the jury deliberations, the assistant medical examiner emailed the trial judge the following missive:

I can’t send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

[Juror]: “A-dele!! I thought you did a great job today on the witness stand … I was in the jury … not sure if you recognized me or not!! You really explained things so great!!”

[Medical Examiner]: “I was thinking that was you. There is a risk of a mistrial if that gets out.”

[Juror]: “I know … I didn’t say anything about you … there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.”

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

First of all, yikes. The trial court informed the attorneys of the communication, and the jury ultimately returned with a verdict of guilty. The trial court denied a motion for new trial based on its refusal to permit the defense to question the juror about the improper communications. The court of appeals affirmed. Here’s what the Tennessee Supreme Court said:

Even though technology has made it easier for jurors to communicate with third parties and has made these communications more difficult to detect, our pre-internet precedents provide appropriate principles and procedures to address extra-judicial communications, even when they occur on social media websites and applications such as Facebook.

…

When the trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State’s witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury’s verdict. The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between [the medical examiner] and [the juror]. This hearing may very well have necessitated calling both [the juror] and [the medical examiner] to testify under oath about their relationship and the effect of the communication on [the juror’s] ability to serve as a juror. Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether [the juror in question] shared any extraneous information with other jurors.

…

[T]he portion of the trial court’s order that denies Mr. Smith’s motion for a new trial based on [the juror’s] improper extra-judicial communication with [the medical examiner] is vacated. The case is remanded to the trial court to conduct a hearing to determine whether [the juror’s] Facebook communication with [the medical examiner] disqualified him from continuing to serve on Mr. Smith’s jury. Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires [the juror’s] disqualification or whether [the juror’s] misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to [the juror’s] improper extra-judicial communication with [the medical examiner], then the trial court shall grant Mr. Smith a new trial.

The facts of this case demonstrate that this technological age now requires trial courts to take additional precautions to assure that jurors understand their obligation to base their decisions only on the evidence admitted in court. Trial courts should give jurors specific, understandable instructions that prohibit extra-judicial communications with third parties and the use of technology to obtain facts that have not been presented in evidence. Trial courts should clearly prohibit jurors’ use of devices such as smart phones and tablet computers to access social media websites or applications to discuss, communicate, or research anything about the trial.  In addition, trial courts should inform jurors that their failure to adhere to these prohibitions may result in a mistrial and could expose them to a citation for contempt. Trial courts should deliver these instructions and admonitions on more than one occasion.

(Footnotes omitted).

What the heck was this juror thinking? The trial court instructed the jurors not to communicate with witnesses during the course of the trial. This means that even after hearing that instruction from the court, the juror ventured home from the courthouse, logged into Facebook, looked up the medical examiner’s profile, and send him a direct message on that social media site. Gee whiz.

Back in July, a Texas woman died after being thrown from the 14-story tall “Texas Giant” roller coaster at Six Flags Over Texas. Initial statements did not specify the cause of the woman’s death; however, others on the ride speculated her death was attributed to a safety bar:

[The woman] goes up like this. Then when it drops to come down, that’s when it (the safety bar) released and she just tumbled. . . . They didn’t secure her right. One of the employees from the park — one of the ladies — she asked her to click her more than once, and they were like, `As long you heard it click, you’re OK.’ Everybody else is like, `Click, click, click.’ Hers only clicked once. Hers was the only one that went down once, and she didn’t feel safe, but they let her still get on the ride.

Regardless of the cause, Six Flags closed down the coaster until last weekend while it investigated.

Since the re-opening, the woman’s estate filed a wrongful death lawsuit against the amusement park in Texas state court. In the suit papers, the estate alleges that post-accident inspections revealed that various parts of the ride’s security systems were experiencing “inconsistencies and intermittent failures.” After the woman’s death, Six Flags allegedly had to replace a defective “limit switch” which shows the lap bar is in place. The estate seeks at least $1 million in damages.

Six Flags has apparently never revealed the findings of any internal investigation. The ride is now equipped with new seat belts and redesigned restraint bar pads (implicating subsequent remedial measures concerns, naturally).

Oddly, Six Flags is now also providing a sample seat at the entrance of the ride for people to judge for themselves whether they fit safely. We here at Abnormal Use will withhold any opinions on whether Six Flags should bear any responsibility for the woman’s death. We will say for any future accidents, however, that we would hate to resort to the “plaintiff had the opportunity to try the seat out ahead of time” defense. Hopefully, Six Flags is making this move to ease the fear of future riders. We can only hope.

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

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

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