October 2009 Archives

October 24, 2009

Understanding Wrongful Death in Rhode Island

The Rhode Island wrongful death statute, R.I.G.L. section 10-7-1, like that of all other states, allows a suit to be brought against a liable party who caused the death of another.  The reason such statutes are necessary is that according to old common law, a suit died with the person who had the right to bring the suit.  In other words, if the plaintiff was killed in the accident, there was no person to available to bring the lawsuit, and hence no lawsuit.

Today, when someone dies due to the fault of another person or entity (such as a car manufacturer), the survivors may be able to bring a wrongful death lawsuit.  This lawsuit seeks compensation for the loss suffered, including but not limited to, loss of wages and earning potential, companionship, and funeral expenses.

Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) or for acting intentionally.

Immediate family members, such as spouses and children, are entitled to bring a wrongful death lawsuit in Rhode Island.

 It is also VERY important to know that the House of Representatives in Rhode Island voted to approve a bill which amends the wrongful death statute to allow parents to make a claim for loss of parental society and companionship even if the child is over the age of 18 and no longer a minor.  (please see my previous post regarding this change.)

 The truth is no lawsuit will ever compensate for the loss of a family member and loved one.  It is, however, important to understand your rights and contact an attorney who can help the family get their feet back on the ground.

 Contact my office for a free consultation.
October 19, 2009

Congratulations to New Rhode Island Attorneys!

The Supreme Court is now listing the results of the July 2009 Bar Exam.  I would like to congratulate all the new attorneys who passed the bar.  Be proud, our State exam is not an easy one.
October 13, 2009

Michael Jackson's New Single "This is It" Shows Need for Artists to Protect Their Rights

The long arduous story of Michael Jackson's new single, "This is It", released on Sunday night, shows how complicated rights and ownership of music can become.

The story begins in 1983 when Paul Anka and Michael Jackson (then at the height of his stardom) co-wrote a song intended to appear on a duets album that Paul was recording.  Shortly after the song was completed, MJ pulled away from the project and took the recordings. 

In 1991, R&B singer Safire recorded a version of the song titled, "I Never Heard."  That recording gave writing credits to both MJ and Paul Anka.  On Sunday, almost twenty years after "I Never Heard", the Jackson estate released "This is It."  Many people in the music industry immediately recognized the similarities between the two songs.  The problem was that Paul Anka did not receive a writing credit for "This is It."

Prepared to take the case to court, Paul Anka and the Jackson estate have agreed to terms and Paul Anka has now received his deserved writing credit.

This song shows the need for song writers and collaborators to protect their rights.  This song took several variations over three decades and nearly led to a lawsuit.  I wonder if the this would have settled so easily had the co-writer been an unknown artist without a legal team behind him or her,  as opposed to a legend like Paul Anka.
October 6, 2009

Judicial Panel Set to Interview 6 For Supreme Court Spot

The Judicial Nominating Committee will interview six potential candidates to fill the vacancy created by the promotion of Judge Suttell to Chief Justice. 

Three current judges: Judge Savage and Judge Indeglia of the Superior Court, and Judge D'Ambra of the Family Court will be interviewed.  In addition, three private attorneys, John A. MacFadyen, Samuel Zurier, and Sandra Lanni will be considered.
October 5, 2009

Botox Sues for Right to Promote Off-Label Use of Drug

Allergan Inc., the makers of Botox, and it's sister product, Botox Cosmetic, are bringing a lawsuit against the United States, the FDA and it's commissioner, Margaret Hamburg, as well as the Kathleen Sebelius, secretary of Health & Human Services.  The suit alleges that the country's current stance concerning off-label use of drugs is unconstitutional.

A doctor can legally prescribe a medicine to treat an illness even if that medicine is not approved for that purpose.  This is a so-called off-label use.  While this practice is legal, drug companies are not allowed to "push" off-label uses to doctors. 

Drug companies, obviously find this unfair.  They argue, that if a drug works to treat an illness they should be able to promote it even before they have proceeded through the countless clinical trials needed in order to gain approval from the FDA.  The basis of their argument - Free speech!

Allergan's complaint claims the FDA "has promulgated a series of overlapping and interlocking regulations that combine to render unlawful virtually all manufacturer communication, through any avenue, to any audience, about the lawful off-label use of a prescription drug."  Furthermore, "the inability to share such important information proactively with the medical community violates the First Amendment and potentially diminishes the quality of patient care."

I think the First Amendment argument is a novel approach.  The Courts, however, have often limited free speech if necessary for the greater good.  One could argue that the FDA is already hopeless in combatting the power of drug companies, and this lawsuit is an attempt to cripple the FDA which serves an important and valid purpose for the general public.

A victory for Allergan clearly creates a slippery slope for drug manufacturers who will be able to enter a product into the market for one purpose and then promote it for countless others without the safeguards created by the FDA.
October 2, 2009

Musicians - Obtain a Mechanical License to Legally Use Other's Material

I am often asked: Can I legally record and distribute a cover song? And if so, how?

The answer is a mechanical license.  These licenses are paid and distributed to the artists who own the intellectual property that you are covering.  This is the only legal way to record and distribute material that is owned by another artist or musician.  So, if your band is planning on covering the The Clash for your demo or CD, be sure that you are not setting yourself up for a lawsuit.

Many retailers, both in store and on-line, will refuse to carry music if they believe the necessary licenses are missing.  This is because they open themselves up to a lawsuit for selling bootlegged music.  The license fees are relatively low and well worth the expense to avoid a lawsuit.

My office can help you obtain the necessary licenses so that you can sell your music with confidence and get your independent CD into the stores.   Call for a free consultation today.