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Corpus sued the city of McAllen, alleging Officer Mata's negligent operation of his city-owned vehicle cased serious injuries to Mr. Operating a motor vehicle? What about spraying the bee hive and opening the truck door so the bees could turn Mr. Corpus into a walking, talking pin cushion. Actually, Mr. Corpus had a smart lawyer. You see, government entities are usually only liable in civil suits if they waive what lawyers call sovereign immunity, the government's immunity from legal actions.
Governments waive sovereign immunity for certain activities. Basically, you can sue the government only if the government says you can sue the government. One of the exceptions to sovereign immunity in Texas is for operation of motor vehicles.
If Mr. Corpus' lawyer could show Officer Mata was operating the animal control truck, then he would have a case under the exception to sovereign immunity. So just what does it take to be operating a motor vehicle? If you asked a bunch of convicted drunk drivers, they would probably tell you Officer Mata was operating the animal control truck. That's because courts have held that, to be guilty of drunk driving, all one must do is sit in the drivers seat with the key in the ignition.
Bud or Bees? For instance, in People v. Wood, Andrew Wood had a very unfortunate night at McDonald's. When he pulled up to the drive-up window in his van, he passed out--with his car running--and, giving new meaning to the phrase, "This Bud's for you," he had a can of Budweiser between his legs.
At least it wasn't hot coffee. Oh yeah, he also had a cooler full of marijuana on the front seat. The legal story from the bad night at the Golden Arches wasn't so bad for Mr. Wood at first. Both a trial court and an intermediate state appellate court threw out the evidence against him, holding he was not operating his van at the time of the arrest and search. However, the Michigan Supreme Court reversed both courts and held Mr. Wood was operating the motor vehicle even though his van wasn't moving, and he had his foot on the brake.
Noting that his van was running and in drive, the state's high court held he was operating the vehicle because he had put the vehicle in motion, was still in control of it, and the vehicle still posed a danger to the public. In doing so, the court reversed two previous Michigan cases that held one could not be sleeping and operating a motor vehicle at the same time.
Actual physical control of the vehicle is the standard used by many jurisdictions, and in Illinois, Michigan, Minnesota, and Nevada, that control can be maintained while sleeping. Putting the key in the ignition will get you in some states, including Vermont.
In the Vermont Supreme Court case, State v. Helton, one hapless, inebriated fellow was convicted of DUI for merely putting his keys in the ignition to roll up his car windows--after he had gone to retrieve his vodka from the car. Note to self: appoint a designated sober window operator. So what about Officer Mata, was he in control of the vehicle and thus operating it for purposes of Mr.
Corpus bee attack case? Departing from the case law of other states, both the trial court and the Texas Thirteenth Court of Appeals said "no. Corpus was injured when the bees entered the cab of the truck where he happened to be sitting. Although we do not condone Mata opening the truck door and exposing a passenger not wearing protective gear to agitated bees, we nonetheless cannot conclude that Corpus's injuries resulted from the operation or the use of the truck," Judge Nelda Rodriguez wrote for the court.
So for this week, we've established that you are operating a vehicle in Michigan if you're asleep at the wheel in the McDonald's drive-through with weed on the seat and Budweiser between your legs, but that you're not operating a running vehicle in Texas with a swarm of bees on the seat and between your legs. Either way, its not a Happy Meal. As a public service to help our readers remain free from bondage, we will, from time to time, present our Case of the Week: Fourth Amendment Follies edition.
This weeks helpful hint: Don't use too much air freshener. Druggies from CharlotteRobert Little was traveling through the pleasant North Carolina hamlet of Thomasville early one August morning in It might not have been any big deal, but it was in the morning, and Mr.
Little was driving an old Buick with a malfunctioning headlight. Bonus reader helpful hint! If you're carrying contraband, don't drive through a small Southern town at in the morning in an old Buick with a busted headlight.
Bad things will happen. At least wait until when the first batch of doughnuts comes off the conveyor belt at the local Krispy Kreme. Because Mr. Little didn't get the memo on suspicious vehicles lurking through the Bible Belt during the wee hours of the morning, he got to meet Officer Adam Kallfelz of the Thomasville Police Dept.
Officer Kallfelz observed three things that made him decide it was time for back-up. First was Mr. Little's nervous and agitated demeanor. Second, Mr. Little said he was traveling from Charlotte. Finally, Mr. Little had approximately 10 tree air fresheners hanging from the rear-view mirror. Before we get to those pesky air fresheners, please allow us to defend the good people of Charlotte, North Carolina.
You're a fine city with an economy built on good barbecue and Bank of America overdraft fees, and--unlike Office Kallfetz--we don't think you're a bunch of druggies. We don't think people should be stopped by the cops just because they're coming from Charlotte.
But, back to those tree air fresheners. Rambo RaidA nervous dude driving from Charlotte with 10 air fresheners made Officer Kallfelz realize he needed a crime deterrent. It was time for Rambo. Not unlike Sylvester Stallone searching swamps for sadistic Viet Kong alumni, Rambo, a drug dog, went over that old Buick like a frat boy going through sofa cushions looking for that lost last joint. Rambo signaled for the presence of narcotics in the Buick's door, and Mr.
Little was arrested for being a felon in possession of a firearm. Little moved to suppress the evidence, arguing the search was illegal, but a trial court denied the motion, holding that the stop and the search were lawful. Little appealed. Little argued in State v. Little that the search was improper because the cornucopia of air fresheners did not provide reasonable suspicion for extending the stop until Rambo arrived.
Unfortunately for Mr. Little, North Carolina has a proud tradition of air freshener jurisprudence. They even go after Santa Claus if there's air freshener involved. In State v. Hernandez, the North Carolina Court of Appeals held a stop was proper when it was based, at least in part, on Christmas tree air fresheners. Not unlike with Mr. Little's arrest, air fresheners would help lead to Mr. Hernandez's undoing.
I noticed a strong odor coming from the vehicle," Trooper Whitley testified in defending his actions. Christmas tree air fresheners as a basis for detaining a motorists? Well, the court upheld the stop, and the court in Little followed the court in Hernandez. And, if you think North Carolina is the only state fighting the war on air freshener, you would be wrong.
In Commonwealth v. Watts, the Massachusetts Appeals Court held reasonable suspicion could be based, in part, on the presence of fabric softener drier sheets. The federal courts have joined this attack on pleasant aromas as well. In United States v. West, the Tenth Circuit proclaimed, "The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis, and in the Eleventh Circuit held in United States v.
Wright that evidence of a drug conspiracy existed based partially on the fact that two persons entered the Winn-Dixie together to purchase carpet freshener and fabric softener; materials known to be used to mask the odor of cocaine.
Many other federal circuits, including the Third, Fifth, Seventh, Eighth, and Ninth, have upheld convictions based, in part, on the presence of fabric softener, and in United States v. Edmonds, the Third Circuit upheld a trial court's refusal to believe a drug mule was a mere unsuspecting courier.
She brought along a box of Bounce fabric softener sheets. So, the lesson from this week's Case of the Week: with a Mountain Fresh scent filling the air, your dorm hall monitor in college didn't believe you then, and the cops don't believe you now. If you have contraband and notice Rambo sniffing your car, ditch the fabric softener Bounce can get you busted.
And let's not even get started with deciphering the cryptic hieroglyphics known as the cable bill. But what if your employer hoisted a sign informing customers there would be a two-dollar charge for your services? Would that payment be your tip? Would posting that sign get somebody sued? Of course, it would. This is the Case of the Week. Air a la carteOur story begins in Sept.
Before this policy began, curbside check-in was free, but customers tipped the skycaps--usually a dollar per bag--for curbside service. Until American went and messed up things, most skycaps earned most of their earnings from tips. As the airline industry faced significant financial problems, airlines began charging for many services that had been free. This a la carte fee system affected everything from headphones to handbags. Want to watch the in-flight movie?
No problem. That's free. Want to hear it? Two dollars for headphones, please. Want to eat? Pay up. Pay2Pee, the world's first aircraft pay toilet, can't be far away. At the moment, we can add curbside check-in to our non-complimentary airline a la carte menu. American--and its subcontractor actually employing the skycaps--made out like Tijuana bandits. The charge was designed to defray the cost of curbside service in a dark and dreary economy, but it actually became a profitable business venture for all Many passengers thought American's 2.
Others felt 2. The end result was the same: the skycaps lost a significant amount of their income as tips plummeted. Suing SkycapsTwo skycaps at Boston Logan International Airport sued American and the contractor, seeking class certification and arguing that American's curbside fee violated the Massachusetts statute governing tips, Mass.
Laws, ch. The skycaps' employer was dismissed due to an arbitration agreement, and American removed the case from a Massachusetts commonwealth court to federal court. The skycaps argued Massachusetts law prohibited American from charging the curbside baggage fee because the fee qualified as a service charge under the commonwealth law because it was a fee that a consumer would reasonably expect to be given to the skycap. American countered that the skycaps suit was preempted by the federal Airline Deregulation Act of When a federal law preempts a state law on an issue, the federal statute has sole jurisdiction, and the state statute is preempted and nullified for purposes of that dispute.
The District Court held for American on several grounds, but held for the skycaps on the preemption argument. Thus, the claims under the Massachusetts tips law and for tortious interference were tried to a jury. Big TippersIt turned out the jury was a bunch of big tippers. The jury found for the skycaps in April and awarded damages in the amount of 2. Thus, the jury awarded the nine prevailing plaintiff skycaps approximately , in damages plus interest and attorney fees.
One plaintiff skycap from the St. Louis airport did not get to share in the bounty because--as a citizen of Missouri--he was not covered by the Massachusetts tip law. But, our story is not over. Cheap tippers can rejoice. American appealed, and the First U.
Circuit Court of Appeals handed down a decision bound to make Parisian tourists do a happy dance. American Airlines, Inc. Although the appellate court conceded there was conflicting case law, it relied on three U. Supreme Court cases, Morales v. Trans World Airlines, Inc. Wolens, and Rowe v. New Hampshire Motor Transport Assn, in holding that the federal law preempted the Massachusetts tip statute vis--vis the skycaps tips. The court held the commonwealth's law was preempted when applied to Ameircan because it was related to a price, route, or service, noting that related to and service were statutorily broad terms.
The First Circuit rejected the skycaps' argument that the tip law's connection to airline price, route, or service was so tenuous, remote, or peripheral as to not trigger preemption under Morales or Rowe. When the Supreme Court invoked the rubric "tenuous, remote, or peripheral", it used as examples limitations on gambling, prostitution, or smoking in public places--state regulation comparatively remote to the transportation function," the court said.
So, next time you go to the airport, please remember that--because a federal court has ruled that curbside check-in is not like betting on ponies, retaining the services of a hooker, or smoking a joint at baggage claim--these guys aren't protected by the Massachusetts tip statute.
Even if you pay an airline curbside baggage fee, please, folks, tip your skycap. It keeps colonial constables out of our tea, J. Edgar Hoover and the FBI out of our mothers underwear drawers, and seizure-hungry sheriffs out of our Chevys. Yet, as with anything, the Fourth Amendment is not absolute. The Fourth Amendment prohibits only unreasonable searches.
Thus, if police have probable cause for a search, its not unreasonable, and the Fourth Amendment won't stop it. In fact, the Fourth Amendment has a specific clause allowing searches with probable cause. A recent Massachusetts case gets to be our Case of the Week because it addresses the novel legal question: Does the presence of a bong and Baggies constitute probable cause for a search for marijuana? Speeding and SeizingWhen Shawn Smith decided to do some urban drag racing with friends, he probably should have left his bong at home.
For readers who may be unfamiliar with the household appliance known as the bong, it is a water pipe--used by some to smoke marijuana. The speeding Mr. Smith was attempting to outduel a fellow motorist when police clocked him traveling 67 miles per hour in a 40 mile per hour zone. When police stopped the Smithmoblie, they noticed a bong and an open box of plastic sandwich bags in the car. The police testified that, based on their experience, a bong and Baggies usually meant one thing Yes, police thought they were dealing with that plague on humanity: marijuana.
Having spotting the offending bong and Baggies, law enforcement swung into action. Police ordered Mr. Smith from the car, and frisked him. They asked him if there were any marijuana in the car, and he said there was not. Smith admitted he had some herbal enjoyment in his pocket. Police seized it, arrested Mr. Smith, and impounded his speedy car. Shockingly, they found more marijuana. However, in a development that will be significant legally later in our story, police did not detect any marijuana smoke or residue in the bong.
Evidence Up in Smoke? Sure, police get to do an inventory when they seize a car. In this week's case, police were arresting Mr. Smith for his weed, so they got to go through his car and inventory everything. However, when police misbehave, there is a judicial remedy known as suppression of the evidence.
For those who never have time to watch Law and Order, that means the evidence is thrown out because the cops got it illegally. In this case, because the police failed to give Mr. Smith his Miranda warnings before giving him the Spanish Inquisition, Mr. Smith moved to suppress evidence of the search. However, Massachusetts prosecutors argued the bong and Baggies sitting in the car in plain sight gave the police all the probable cause they needed to search the carMiranda or not.
In essence, the Commonwealth argued, it was the probable cause supplied by the bong and Baggiesnot the Mirandaless utterances of Mr. Smith that gave police the pot. Both a trial court and the Massachusetts Appeals Court, the commonwealths intermediate appellate court, rejected prosecutors' arguments and threw out the evidence--and thus, the case. Citing Massachusetts case law, the court held that bongs and Baggies--and nothing more--do not give the police probably case for a search.
Smith's case from two previous Massachusetts Appeals Court decisions where bongs did lead to probable cause for a search: Commonwealth v. Dolby from , and Commonwealth v. Correia in It is true the facts in all three cases were somewhat similar: cops stop car, cops see bong, cops arrest driver. However, Smith differed from Dolby and Correia in one, key respect.
Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong. The Appeals Court said that distinction was critical. In Dolby and Correia, the evidence was not suppressed, but it was because there was residue in the bong--not because police spotted an innocent bong just hanging out, minding its own business, with no nefarious residue or smoke.
Baggies get the same constitutional protections. Citing its decision in Commonwealth v. Garcia, the court held, the observation of two lawful items--the bong and the box of sandwich bags--did not supply probably cause. The court articulated its rationale in Garcia:"The trooper's experience, coupled with his observation of an apparently empty baggie, is not enough to provide probable cause to conduct a warrantless search of the automobile.
Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights," the court said.
So, Mr. Smith got off: the evidence was suppressed, and the charges were dropped. The moral of this week's Case of the Week: if you're going to go drag racing with your bong in the back seat, at least make sure it is clean. This week's Case of the Week examines that issue in a case involving breast implants, bungee cords, a surgeon's eyesight, and the jurisprudence of cow bone implants Manmade ChassisDenise Dalien decided she wanted to augment the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash.
Jackson performed breast augmentation on Ms. Dalien in , using saline implants. After a diet and exercise regimen caused her to lose weight, Ms. Dalien noticed some indentation and rippling on what was once her soft and supple upper left bosom.
Jackson went in again, removed the saline implants, and replaced them with gel implants. Turns out there was a problem. Dalien was not happy with her new gel bosoms, so under the surgical theory of more is more, Dr. Jackson performed additional revision procedures on Ms. Dalien during and Blinding BungeeJust before all this happened, and--importantly for our story--unbeknownst to Ms.
Dalien, Dr. Jackson was having issues with a bungee cord. Jackson went into mortal combat with the killer cord in July The bungee cord won. Jackson received surgery on his eye, and took over a month off from his practice. In July , Dr. Jackson reported additional changes in his vision.
He retired in October after unsuccessful surgery. Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the good doctor twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job. In her second civil action, Ms. Dalien argued, among other things, that Dr. Jackson violated the law by failing to disclose his eye injury. Cow Bone LawDr. Jackson argued that the nondisclosure of his eye condition did not occur in trade or commerce and that any alleged professional malpractice or negligence was exempt from the CPA.
Dalien countered that the nondisclosure of the eye condition was, in fact, done in trade or commerce because Dr. Jackson solicited and retained patients by failing to disclose this condition. In siding with Dr. Jackson, Washington State's Court of Appeals cited the Evergreen State's jurisprudence on cow bone disclosure and the case of Michel v.
Dental, Inc. Michel needed a bone graft. When completing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she could not fathom the thought of having animal parts in her body, Ms. Michel declined the opportunity to get authentic cow bone.
Well, unfortunately for Ms. Michel, supplies were running low in the dental office that day. When Dr. Mosquera-Lacy ran out of human bone, she finished the job with cow bone. Although the dentist claimed she merely finished up with cow bone--and that cow constituted no more than 10 percent of the graft--Ms.
Michel said she now had a McImplant with the doctor having implanted a cow bone in her mouth. Whatever damages or urges to graze on her front lawn Ms. Michel may have experienced, her case wasn't actionable under the Consumer Protection Act, the Washington Supreme Court held, because the use of cow bone was not an entrepreneurial activity in trade or commerce. Mosquera-Lacy's use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients.
It simply relates to Dr. Mosquera-Lacy's judgment and treatment of a patient. There is no evidence that cow bone was used to increase profits or the number of patients. When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. This is not actionable under the CPA," the court said. Jackson that Dr. Jackson's nondisclosure of his eye condition was also an activity that fell outside the scope of Washington's Consumer Protection Act.
Thus, the court declined to certify her class action, and it affirmed a trial court's dismissal of her case. Jackson's nondisclosure of his eye injury is entrepreneurial. Jackson's nondisclosure does not relate to Dr. Jackson's billing or obtaining and retaining patients.
Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business," Judge Russell Hartman wrote for the court. However, the court didn't say Ms. Dalien didn't have a case--just that she didnt have a case under the CPA. Referencing her other suit, the court said, "To the extent that Dr. Jackson's eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit.
If you want to sue under Washington's Consumer Protection Act, make sure they advertise their excellent vision allows them to see your head before they implant a cow bone in it. Murrow, William F. Buckley Jr. As the old Sesame Street song said, it would appear that one of these things just doesn't belong here. Well, that's not what the producers of the television show, Bait Car, say.
They argue their show is real journalism, and--in an attempt to avoid producing evidence in a California court proceeding--they say their photographers are journalists. In recognition of this creative legal argument, their case gets to be our Case of the Week. What is a Journalist? The proliferation of new media sources has created a novel question: Just what is a journalist?
Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates? How about a requirement that you earn your living from journalism? Perhaps there should be a requirement that at least your Aunt Betsy actually read what you write? This question has taken on real legal significance as the U. Congress and many states have tried to implement so-called reporters' shield laws.
These laws attempt to protect reporters and their confidential sources by shielding confidential information from disclosure to courts and third parties. Although there has been substantial progress, a federal shield law has not yet passed.
However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial attacks on the press, and the prosecution of New York Times reporter Judith Miller.
Some Republican lawmakers cited national security concerns with reporters' shield legislation, and others had a more fundamental issue: How do you go about deciding which writers get to be journalists in a New Media world vs. Old Media world? Many hipsters sipping lattes at Starbucks like to bash so-called Old Media.
As they iPad away their afternoons, bowing before the altar of New Media, they mock institutions such as The Wall Street Journal as the old media of their grandparents, and--bless their little black turtlenecks and Birkenstocks--they weren't fooled by Rupert Murdoch's purchase of Myspace. Silly, Rupert, New Media is for hip kids. But, the beautiful world of blogging Brown alumni opining on global warming and Maya Angelous contributions to literature while their conservative brethren blog on banks and hedge funds may be in for a shock to its modern sensibilities.
There may be unwanted guests at this post-modern, online clambake, and it may be a sign of things to come. In Bait Car, the producers work with local police to place an unlocked car with keys in the ignition out on the street. Its the bait for would-be car thieves. Get it, bait, car?
Many unsuspecting citizens, including Joseph Bullard, took the bait. Or did he? In the case of People v. Bullard argued that he was merely being a good citizen, moving the Bait Car out of its illegal parking spot. He also argued selective prosecution. Bullard, a gentleman who enjoys cross-dressing, argued it was no coincidence that the unholy trinity of producers, police, and prosecutors arranged for the Bait Car to be placed outside Divas, a well-known, somewhat risque San Francisco transgendered club.
Police countered that they just picked an area known for car theft. To prove Mr. Not so fast, said KKI. Arguing that Bait Car was journalism and that the intrepid Bait Car photographers were, in fact, journalists and so under California's reporters shield law, KKI refused. Judge Sandoval wasn't buying it. He rejected KKI's reporters shield argument, and demanded the tapes. Funny thing.
You may have laughed at Mr. Bullard's "I was only helping by moving the car" argument, but prosecutors dropped the charges against Mr. Future of Journalism? Bait Car's producers were working with prosecutors, turning over their tapes to the district attorney's office, and that cooperation with cops was fatal to their legal argument, according to Judge Sandoval and legal journalism experts. Dalglish added. People v. Bullard does not decide the law on the contentious issue of who gets to be a reporter in the eyes of the law--although it does put Californians on notice that, if youre in cahoots with the cops, you probably don't get to be one, at least for reporters shield purposes.
The case also illustrates that the cozy little blogging world at Starbucks and beyond is also in the midst of a culture shift. Yes, the Fourth Estate is becoming a very big tent in every respect imaginable Combine the two - the theory went - and you would have what one of those MBA-types might call, synergy. Activision and Ms. Stefani thought so This week's Case of the Week illustrates the legal principle of the right of publicity. It also puts us on notice with the following legal poetry: Make Gwen Stefani a dude, and you're gonna get sued.
Stefani and her Orange County band, No Doubt, achieved critical and commercial success, including Grammy nominations and huge recording contracts, while hitting the top of the charts with their single, Don't Speak. They also made some money off a game series based on the adventures of skateboarder Tony Hawk. Entering the 21st Century, one of Activision's biggest games was its Guitar Hero series, which basically allows players to engage in computer-assisted air guitar.
Band Hero was a similar, spin-off production. One of Band Hero's features allowed players to create avatars based on real life rockers. Thinking it would be just nifty to have No Doubt avatars in the game - or at least thinking that it would be just nifty to have some of Activision's cash -- No Doubt executed its Professional Services and Character Licensing Agreement with Activision, allowing the gamemaker to create avatars -- or computerized characters -- based on the band, and use them in Band Hero.
Gwen is not a dudeMuch to their horror, the members of No Doubt learned about a special feature of Band Hero shortly before the product's launch -- it was a special feature No Doubt may have worried pubescent punksters might manipulate.
In their Agreement, Activision and No Doubt agreed Activision would license only a limited number of No Doubt songs for use in the game. However, that provision failed to consider another potential use of Band Hero.
When players reached a certain level of the game, Band Hero allowed them to unlock their avatars, changing their song selection and personal characteristics. For instance, Activision licensed only a few No Doubt songs, but if Little Johnny were proficient enough in Band Hero to get his avatar -- say, perhaps, a lasciviously alluring Ms. Stefani -- to reach Level Nine of Band Hero, he could unlock her and free her from the bondage of her current condition, in every way, including gender.
No Doubt was most displeased to discover that, once your Gwen Stafani avatar were unlocked, not only could Avatar Gwen be singing Janet Jackson, she could also be singing Tito Jackson. You see, once unlocked, an avatar's voice could be changed from male to female. Not surprisingly, Ms. Stefani and her bandmates were not excited about the prospect of having their voices replaced with the manly sounds of Boy George.
Ska vs. SuitsCould Activision really use the twisted avatars without No Doubt's permission? No Doubt didn't think so, and the band sued Activision in California state court. In No Doubt v. Activision Publg, Inc. The band sued on several grounds, including Activision's alleged violation of No Doubt's right of publicity.
The right of publicity gives an individual control over the commercial use of her name or likeness. About half the states have a statutory right of publicity and others protect the right of publicity as part of their right of privacy laws. There has been a movement to extend the right of publicity beyond death. Not surprisingly, this movement is led by the heirs of some very famous dead people, including the heirs of Marilyn Monroe.
California is one of those states with a codified right to publicity, contained in section of the California Civil Code. However, Activision countered that No Doubt's right of publicity claim was barred as a matter of law because Activision's actions on the avatars constituted constitutionally protected activity under the First Amendment. Gary Saderup, Inc. The appellate court sided with No Doubt and the trial court.
The court ruled that a transgendered avatar did not qualify as a transformative use. Thus, the appellate court held, the First Amendment did not excuse Activision's alleged violation of its right to publicity. Thus, the trial court did not err in denying Activision's motion to strike the right of publicity claim based on Activision's assertion of a First Amendment defense," Judge Thomas Willhite Jr.
Stefani's avatar with the image in another case involving a Sega videogame and the former lead singer of Dee-Light, Kirby v. Sega of Am. You might think this fight over the name, "Pint," was a beer dispute. This week's Case of the Week examines what happens when two urinal manufactures get into a legal dispute over the names of their products. Pint of Yellow LiquidThe urinal and its bathroom cousin, the toilet, use a lot of water. As people have become more concerned about the environment, manufactures have joined the party, developing so-called green products, and urinal makers are no exception.
After all, no self-respecting urinal manufacturer wants to be known as a truck stop eco-terrorist. Both Zurn and Sloan wanted to help save the planet by making eco-friendly urinals. Zurn developed a urinal Mother Nature would love and named it, The Pint. The U. They're called fractional flush because they use a fraction of the water regular urinals use when you flush them. Not to be outdone, the nature-loving folks at Sloan came out with their own environmentally sound urinal, the Sloan 1 Pint Urinal System.
Not unlike a fraternity pledge spotting someone swiping his pint of Guinness from the bar, lawyers for Zurn swung into action. Zurn demanded that Sloan stop marketing its allegedly infringing urinal with "pint" in its name. In an apparent attempt to maintain peace and harmony in the urinal world, Sloan changed the name of its urinal from the "Sloan 1 Pint Urinal System" to the "Sloan Pint Urinal System.
Simply deleting the numeral, "1," from the name wasnt enough. Sloan refused, and Zurn's trademark lawyers did what it takes to become the Case of the Week. They sued. In its case, Zurco, Inc. Sloan Valve Co. Specifically, Zurn argued that Sloan's name caused a likelihood of confusion among potential customers. Sloan countered that -- despite Zurn's federal trademark registration --The Pint was not a legally protectable trademark for a urinal because the mark was generic, a trademark legal term meaning the name is a common, general term with no secondary meaning.
Sloan argued that pint was merely an identification of a type of urinal -- one that uses one pint of water when flushed. Thus, Sloan argued, urinal purchasers would associate the term, pint, with the flush volume of the urinal, not the maker of the urinal, Zurn. In attempting to decide the dispute between the fighting flushers, the federal court applied the so-called primary significance test, used in many cases, including A. Canfield Co. Under the primary significance test, the court determines whether the primary significance of a term in the minds of the consuming public is the product or the producer.
The court illustrated the difference by citing E. Browne Drug Co. Cococare Products, Inc. Zurn disputed the generic label by noting that, in the toilet and urinal industry, flush volumes are described -- not in pints -- but with the terms, gallons per flush GPF and liters per flush LPF. In fact, Zurn claimed the use of gallon and liter by those other wasteful water-hogs in the toilet and urinal industry was precisely why it chose the unique term, pint.
However, Sloan countered that pint had become an industry standard, noting that American Standard has used pint and 1 point since , Mansfield Plumbing Products has used 1-pint for its Brevity line of urinals, and Caroma USA had used one pint for its Cube Ultra line of urinals for two years. Unfortunately for Sloan, the court noted that none of those urinal craftsmen had used the term before Zurn introduced the Pint in In addition, Zurn argued it had been diligent in sending cease and desist letters to the allegedly infringing urinal producers, a requirement for protection under trademark law.
To Be ContinuedIn denying motions for summary judgment on most issues, the court held that there were genuine issues of material fact as to whether The Pint was generic. As a result, the case will move forward, and more evidence about urinals and what people call them can enter the hallowed halls of American jurisprudence. Yes, this week, we go to Massachusetts to bring you the law of chicken head damages. Because she was a full-time employee, she asked her boss, Victor Grillo Jr.
Grillo was very happy to give Ms. Cappello the medical coverage she desired, but it seems there was a catch. Grillo said Ms. Cappello could have the medical insurance only if she wore a chicken head mask. Grillo wrote in an e-mail. We're not making this up. We couldn't come up with stuff this good. Even with major medical and hospitalization coverage for her young daughter on the line, Ms.
Cappello declined to don the chicken head, which was part of a complete chicken costume kept in the office. You see, according to court papers, the employees at Cricket Productions considered themselves a fun-loving group that often socialized after hours. Apparently, none of the production place's playful pranksters thought there was anything odd about making a session in the chicken head a prerequisite to health coverage.
Cappello did. Saying she became too depressed to work as a result of the alleged harassment, Ms. Cappello sought medical attention and claimed she was unable to work. Of course, this is the Case of the Week, so you know what happens next. Colonel Sanders or Jack Daniels? Cappello decided to file a claim for her alleged injuries, and an administrative legal action ensued.
Cricket carried no workers compensation coverage, but an administrative law judge held that, because Cricket was doing the business of DTR Advertising, Inc. Cappello's claim. Based on the opinion of her psychiatrist, Mark Cutler, Ms. Cappello argued Mr. Grillo's alleged chicken head harassment was the predominant contributing cause of her adjustment disorder and major depressive disorder. The administrative law judge agreed and held for Ms. Cappello, but The Hartford appealed, arguing the chicken head incident was not the predominant contributing cause of Ms.
Cappello's alleged injuries. Hartford argued there could be other potential causes for the alleged injuries, and -- on appeal to the Commonwealth of Massachusetts Department of Industrial Accidents in the case of Cappello v. DTR Advertising, Inc. Cappello had received previous psychiatric treatment for issues related to a divorce and an alcohol-dependent husband.
Cappello rejected the notion that marital warfare or her husband's close, personal relationship with Jack Daniels and Johnnie Walker caused her injuries. It was all about that chicken head. Foul fowl? Because of her preoccupation with the perceived harassment at work and her disbelief that she was being asked to do what her employer asked her to do, which she perceived as very humiliating, she has been unable to return to any work for which she is reasonably trained by virtue of her education and job experience, Ms.
Cappello's psychiatrist told the administrative law judges. In a legal ruling sure to shock the San Diego Chicken, Mardi Gras revelers, and others who actually enjoy wearing chicken head masks, the judges sided with Ms. Rejecting the insurer's argument that there were other causes for Ms. Cappellos psychiatric issues, the judges ruled Ms. Cappello had shown those problems were not the cause of her present injuries. Although the judges conceded she had past psychiatric problems, they noted she had not experienced her present symptoms until the chicken head incident.
The judges held that Dr. Cutler's medical opinion satisfied the Massachusetts standard for predominant contributing cause of injuries established in the Massachusetts Appeals Court decision, May's Case, and the Massachusetts Supreme Judicial Court decision, Robinson's Case. In addition, citing Bouras v. Cutler's opinion satisfied the predominant contributing cause standard, the chicken head incident was the only legal cause of her injuries. The Massachusetts case of the chicken head was remanded to the lower judge on additional claims Ms.
Cappello made, but she was victorious on this day For their efforts on behalf of their client and for furthering the jurisprudence of chicken heads in the Commonwealth of Massachusetts, the judges awarded Ms. Cappello's lawyer 1, A episode of Mr. Cohen's British television show got his network into a bit of trouble, and it had to pay the alleged target of his jokes 90, When the infuriated supposed subject came back for more, it ended up in American court, raising the question: could a reasonable viewer take the show seriously, resulting in a judgment for defamation?
The friends lost touch over the years, but Ms. Doe followed Mr. Cohen's increasingly successful career as a comedian, and, apparently, Mr. Cohen never forgot Ms. Doe's real name. On the Aug. Cohen interviewed the American author, Gore Vidal.
Among the topics of conversation were the United States Constitution and the practice of amending it. Cohen asked Mr. Vidal if it were not sometimes better to get rid of something rather than amending it. As an example, Mr. Cohen referred to Ms. Using her real name and referring to her with a term also used to describe a female dog, he said Ms. Doe was always trying to amend herself by such means as highlighting her hair, adorning herself with tattoos, and shaving her private regions.
Cohen said Ms. Doe's amending was for naught because he dumped her after he impregnated her. Doe denied her relationship with Mr. Cohen was ever romantic or sexual in nature. Given what Mr. Cohen claimed were Ms. Doe's unsuccessful attempts at amending herself, he reasoned that amending anything -- including the Constitution of the United States -- was ill-advised.
Cohen went on to suggest that Mr. Vidal was an internationally famous hairstylist, that euthanasia was a means of exterminating the elderly in Asia, and that Denzel Washington resided at Mount Vernon. Doe was not amused. After complaints from Ms. Doe, HBO settled with her in for 40, As part of the settlement, HBO agreed to edit the episode so Ms.
Doe's name would be removed in any future broadcasts. Well, Ms. Doe's fame -- or infamy, depending on ones perspective -- continued. Doe's name in the airing of the show, resulting in another settlement with Ms.
Doe in with the same terms as the settlement, except this time Ms. Doe received an additional 50, payday. When a friend of Ms. Doe's saw the unedited version -- that would be the one with Ms. Doe's name -- on YouTube after the second settlement, he contacted her, and they discovered a viewer in Estonia had uploaded the clip from Finnish television, which had received the unedited version from Channel Four.
No more settlements. Doe decided to take her battle to court. The Law of April Fools'Ms. Doe sued HBO and Mr. Cohen in California state court, and later added Channel Four as a defendant. She sued on multiple grounds, including libel, slander, breach of contract, invasion of privacy, and negligent infliction of emotional distress.
Channel Four moved for summary judgment -- a legal ruling where one side wins the case before it even gets to trial -- arguing, among other things, that no reasonable person could have understood Mr. Cohen's statements as factual. The trial court sided with Channel Four. To the contrary, it is obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy.
The actor, Sacha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in an exaggerated manner of a rap artist. Ali G's statements are similarly absurd," the trial court said. Channel Four Television Corp. Citing cases involving comedian Robin Williams and an April Fools' joke, the appellate court agreed that no reasonable person could have taken Mr. Cohen seriously.
Thus, the court held, there was no defamation. Williams did a skit where a wine distributor complained that there was white wine and red wine, but no black wine. Williams said the so-called black wine was tough enough to be advertised by Mean Joe Green, was black in color, tasted like urine, and went with anything it damn well pleased.
The court added that no reasonable person could have taken Mr. Williams seriously and that to hold the skit defamatory would run afoul of the First Amendment. Sat May 07 am Hanya ada rujak jambu dan ftv: cinta diantara tiga perempuan :D am Kapan bisa kayak ftv? O RT aaimm: Hoorreee ke pasar senapelan -. XD RT foreverma: aaimm rapikan cityville kuuuuu : pm Jadinya ken -.
Mon May 09 am Congratulation Manchester United! And what am I supposed to say when I'm all choked up that you're okay? Ungkapan yg galau2 ya sensei RT karinakenny: ada yang minat belajar ungkapan bahasa jepang gak malam ini?? Judes oh si judes.. Judes, Gaga.. RT karinakenny: no buffering!
Yg pasti ttg itu. CPI Duri pm foreverma iya jadi, lupa tadi protocolnya XD pm Ini nyamuk nyiksa banget, gigit sih gigit tp jangan di telapak kaki dong. Susah garuknya woi! Yo wis, bsk kita coba ke leighton ya. Hahaha pm Kalo ngeliat kamu, lensa mata aku kayak lg disetting macro. Fokusnya cuma ke kamu aja, yg lainnya nge-blur dyaarr pm Kamu punya tripod kan?
Hayoo kapan kita bs hunting malam XD RT karinakenny: aaimm bagusnya foto malam, buat bulb kerrren ni :D twournal. Thu May 12 am foreverma td sms nya yg telat masa' jam 12 baru masuk , skrg twitt nya jg telat am foreverma Aku rindu Pekanbaru highway is so confusing pm RT malakmalakmal: Haha ternyata GunturRomli mulai gusar ya dengan penyebarluasan buku IslamLiberal :D pm Digodain kakak2 yg jaga ticket booth :p hahaha pm Maksud loh?
Dispensernya bunyi sendirii! X' Sat May 14 twournal. JeepersCreepers am Jgn blg dia jg ikut2an ke salon -. Twitter is not your diary. I just had to let you know that. Atau aku titipin disana aja ya. RT miwwa: aaimm Oke Sabtu, Minggu, Senin, Selasa, Rabu twournal. Apa istilah "nanggung" berlaku dalam hal ini? Durasi sktr menit 87jam. Ksh kabarlah twournal. T pm Iklan woi!
Tiap dekat kamu otak aku jadi cabul fail pm karinakenny siapa blg aku? Maksud aku iklan itu, yg kalian nyanyikan td lagu iklan ponds ribet --" pm nowreading Catatan Mahasiswa Gila Bab 12 Kerja Praktik Part 2 Hampir sama dgn pngalaman gw waktu mau KP Mon May 16 am Bawa barang2 yg gw kirain bakalan gak ada di tempat KP, sesampai disana ternyata semuanya lengkap.
Gak enak banget. Rasanya udah gak pantas aja minta2 tolong lagi sama kamu. Maaf, aku cuma merepotkan :' am Kamu terlalu baik dan aku terlihat seperti sedang memanfaatkan kamu. Sekali lagi maaf! Telat bangun, jadi gak nonton Gugun Blues Shelter am foreverma hei kamu, kenapa kamu unfollow?
Apa salah ku? Nemu kakak kelas gw waktu SMP di fesbuk, berasal dari keluarga Katholik taat. Skrg udah married dan pake jilbab. T am foreverma abis ujan2an minum es pulak, ya begini :' am All I wanna do is love you, lock your name deep in my soul am RT tediscript: kok belum tidur? Iya ini belum bs tidur, udah mendingan kok demamnya. Ana ente ana ente begitu..
RT aaimm: Pengennya tuak om, ada? XD pm Hujannn, saat tereak kenceng-kenceng nyanyiin lagu-lagunya Gugun Blues Shelter twournal. Hahaha, saya olun b0lek le Ada Baliho blg siapkah anda dgr bunyi Sangkakala. Selamat yo mbak. Kasi alamat yg lengkap, jgn sampe nyasar bukunya pm Jan picayo cu, syirik wak jadinyo. Cuma Allah yg tau. Hahaha pm karinakenny eh salah aku, kirain bukunya kick andy yg karangannya andy f. Ternyata buku lain toh :D pm Emang masalah apa lg yg dibahasnya?
Kmrn kalo gak salah ttg TT dr indonesia itu. RT aaimm: Dilulua tu apo ni? Pintar2 ajo lau picay0!! Perasaan kmrn liat iklan, tayangnya hari minggu? Apa mungkin judul yg lain ya? Masak mie aja bs salah2. Seharusnya telur dulu baru mie, ini malah mie dulu. Jen diungkik pulo disiko, tabaco dek nyo beko hehe am foreverma bakalan diputar ke tiga2 nya ya?? Dn stlh direply, malah g' mau dikirim.
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Karamnya kapal mengakibatkan berton-ton beras yang diangkut tumpah berceceran menutupi sebagian permukaan air. Karena perairan yang dangkal, sebagian beras muncul di atas permukaan air menyerupai gundukan. Yang lama-lama berubah menjadi pulau berpasir putih seperti beras dan selalu basah dikelilingi lautan.
Airnya yang jernih membuat pengunjung dapat melihat dasar laut yang ditutupi tumbuhan-tumbuhan hijau. Sesekali terlihat ikan-ikan kecil yang berenang-renang di bawah sana. Sesampainya di pulau pengunjung akan disambut pulau berpasir putih. Mercusuar yang menjulang di tengah pulau seolah menjadi tugu yang semakin memperindah panorama.
Pepohonan yang tumbuh rindang melambai-lambai ditiup angin dan mempersejuk udara. Di sore hari menjelang malam pengunjung dapat menikmati sunset dari pulau ini. Beberapa pulau-pulau kecil dapat terlihat dari pulau ini.
Pulau-pulau tak berpenghuni itu ditumbuhi pohon bakau yang hampir memenuhi seisi pulaunya. Menciptakan lingkungan mangrove yang asri dan alami. Tak hanya pulaunya yang menyimpan pemandangan alami. Dasar lautnya juga memiliki kekayaan biota laut yang indah untuk dinikmati. Para nelayan pencari ikan menjaga ekosistem laut tersebut supaya tetap asri. Terumbu-terumbu karang yang cantik berwarna-warni akan menyambut penyelam yang datang.
Beberapa terumbu karang adalah hasil cangkokan yang sengaja ditanam oleh Pemerintah Kota Bontang. Terumbu-terumbu karang tersebut merupakan habitat bagi ikan-ikan kecil yang juga tak kalah eloknya. Sekaligus menjadi tampilan utama yang menciptakan pemandangan taman laut.
Pemandangan alam di Pulau Pantai Beras merupakan daya tarik bagi pengunjung yang selalu sedia kamera. Mulai dari atas pulau hingga bawah lautnya menawarkan berbagai spot fotografi yang mempesona. Spot utama yang sering menjadi incaran ialah surga bawah laut dan pemandangan matahari terbenam.
Untuk mendapatkan spot bawah laut harus dilakukan dengan menyelam atau berenang ke tengah perairan. Untuk pengunjung yang tidak ingin masuk ke dalam air dapat menunggu ketika senja datang. Cahaya jingga yang terpancar saat matahari hendak ditelan horizon adalah penampakan surganya langit. Kawasan pantainya juga layak untuk dimasukkan koleksi jepretan.
Pasirnya yang putih dan pepohonan rindang di tengah pulau hingga mercusuar yang menjulang tidak kalah menariknya. Berbagai jenis ikan laut, terumbu karang hingga rumput laut bisa pengunjung temukan di tempat ini. Tidak hanya itu, kawasan ini sangat cocok bagi Anda penggemar fotografi. Pemandangan sunrise maupun sunset di tempat ini cukup menarik untuk diabadikan. Fasilitas Di tempat ini memang belum tersedia penginapan serta rumah makan.
Fasilitas di kawasan pulau ini memang masih terkesan ala kadarnya. Seperti gazebo yang bisa digunakan secara gratis oleh para pengunjung, ruang ganti pakaian, serta toilet. Bila Anda ingin menginap, Anda bisa menyewa tempat penginapan yang ada di pusat kota Bontang. Jangan lupa juga untuk membawa bekal makanan maupun minuman bila akan berkunjung ke tempat ini. Akses transport Pantai Beras Basah berjarak sekitar kilometer dari pusat kota Balikpapan.
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