September 11, 2009

No One is Free From the Ire of the Recording Industry

Today it appears that the Ellen DeGeneres Show is going to be sued for illegally broadcasting music.  It appears that those quirky trademark dances that Ellen performs which some people, not including this author, find funny, have been performed over music that was not properly licensed.  That's right - a national television show broadcast to millions apparently forgot to obtain licenses and permission to broadcast music. 


When asked why they did not obtain the proper licenses, one of the show's producers allegedly replied we don't "roll that way."  That at least is kind of funny.  Ellen herself was not listed as a defendant in the suit.

September 3, 2009

Musicians - Copyright Your Music!

To begin with the basics of copyright law - An artist is the owner and sole copyright holder of his or her creation.  Copyright protection begins to attach to the work of art the moment that it is created and/or published.  This, however, may be inadequate protection.

By registering your copyright with the United States Copyright Office:

  • You are making clear when your work was created;

  • You are telling the world that this idea, song, image is your creation;

  • You gain valuable legal protections in the courtroom that may be absent without a registered copyright;

  • You are ensured that the Courts will hear your case;

  • You will not have any difficulty presenting evidence as to when your work was created.


A lot of musicians ask me about the so-called "poor man's copyright" in which the author of a work mails the work to himself in a sealed envelope to prove the time of creation.  While there is some merit to this process, there are cases in which the material was not allowed into evidence for one reason or another.  Instantly, the author's entire case was lost.  In some circumstances, registration is necessary in order to bring the suit (in other words, if you don't hold a registered copyright, the courts won't even hear your case).  As such, I would not recommend that any serious musician rely on the "poor man's copyright."

In the age of the internet where a song can be heard and stolen from 3000 miles away, it is imperative that musicians protect their work.  There are two examples of copyright infringement that all musicians want to prevent.  The first is illegal downloading and possession of your material.  The second example is where someone hears your song, lyrics, or melody and "incorporates" it into his or her "creation."

Federal registration of a copyright is the only way to ensure your protection.  It is both easy and inexpensive.  Rest easy knowing that your work is fully protected and concentrate on what you do best - creating music. 

Call my office for a free consultation and we can discuss your options concerning copyright and trademark.
September 2, 2009

Pfizer Settles Fraud Allegations for Astonishing 2.3 Billion!

That's right - 2.3 BIllion. 

The settlement brings an end to numerous civil and criminal filings against Pfizer and subsidiary, Upjohn, regarding the painkiller Bextra which was pulled from the market in 2005, as well as a few other drugs.  As part of the settlement, the corporation will plead guilty to misbranding Bextra with the intent to defraud.

The Dept. of Justice initially brought the charges alleging that Pfizer promoted Bextra for off-label uses that were not approved by the FDA.  The Department also alleged that Pfizer gave kickbacks to doctors to encourage them to prescribe Bextra (a charge that Pfizer still denies).

I'd like to believe such settlements will cause drug companies to re-think the way they rush drugs to the market and promote them to the public, but alas, much like the tobacco companies, such settlements are a small drop in the ocean.  I wouldn't be surprised if Pfizer still made a profit on Bextra despite the settlement.
August 31, 2009

Another Fatal Motorcycle Accident

Sunday, a Westerly man was killed while riding his motorcyle marking the 14th fatality this year in Rhode Island involving motorcycles.  I do not know the details of Sunday's accident, but it is clear that 14 fatalities in this small State is far too many. 

Unfortunately, around 3,000 cyclists are killed each year across the country.  Both drivers of cars and motorcyclists need to help bring down this staggering number.  Drivers of cars are unaccustomed to looking for motorcycles or bicyclists.  Often while looking for other vehicles to avoid, a driver's eye can miss a motorcyle or bike.   Unfortunately, a relatively minor car accident can result in a fatal motorcycle accident. 

I am an avid bicyclist myself and know the unique hazards that motorcycle and bicycle riders face.  It is always on us to drive defensively when the rest of the world is innattentive.  If you have been injured while riding a motorcycle, it is important to call an attorney who understands this difference and has experience representing bikers.
August 27, 2009

An Argument Supporting Liability for Future Harm

I first came across this law review article in the Law Professors blog which included an abstract and I decided I had to read the article.   Professors Ariel Porat and Alex Stein have written a compelling argument supporting liability for future harm in tort cases.

Historically, a plaintiff could not be compensated for the "chance" that illness might develop at a later time.  A small example of this is a plaintiff who suffers a concussion in an auto accident.   Obviously, the plaintiff will be compensated for the head injury, but it is well documented that concussions can occur more easily, and with greater severity, after the first one is suffered.  The plaintiff, however, will not be compensated for the increased likelihood that he or she will suffer concussions in the future.

Professors Porat and Stein begin their argument with a relatively recent Supreme Court case, Norfolk & Western Railway Company v. AyresThe plaintiff in that suit contracted asbestosis from exposure to asbestos along the railway.  The plaintiff suffered emotional distress because he was aware that 1 in 10 people suffering from asbestosis eventually develop mesothelioma, a fatal form of cancer.  Even though the plaintiff had not yet developed mesothelioma, the United States Supreme Court in a 5-4 decision, held that the plaintiff was allowed to recover if the distress was proven to be "genuine and serious."

This case, while a step forward, is not far enough because the plaintiff had already contracted asbestosis, a very serious condition.  Common law courts have often allowed recovery for emotional distress stemming from an illness or injury, in this case, asbestosis. 

This article takes the next step and argues for liability for future harm without the necessity of a pre-existing condition.  The authors propose a probability approach where the plaintiff should be compensated for the illness he or she has been exposed to multiplied by the probability of such illness manifesting.

Before I do any further disservice to the authors argument, I will stop and suggest that you read their article in the full.  I was able to download it via SSRN here.
August 24, 2009

Many Providence Day Cares Putting Children At Risk

The City of Providence has almost 500 day care centers, many of which are home day cares located in poor sections of the City.  While it is quite easy to obtain a license, a recent article in the Projo, shows that being licensed is not enough. 

Many day cares were cited or suspended due to issues such as improper ventilation that could lead to carbon monoxide build up, fire hazards, improper electrical wiring, etc.  One house was infested with flies and sickly animals. 

The economic reality is that proper day care is incredibly expensive and home day care offers a cost-effective alternative to a low income family.  Ensuring that the facility is properly licensed and insured is not enough, however.  Parents must carefully examine the facilities where the kids will be spending their time to ensure that they are safe and secure.
August 21, 2009

"Skanks in NYC" Blogger Identified

Any regular reader of this blog is aware that I am fascinated watching the law adapt and adjust to the ever increasing use of the internet and social medial as a form of sharing ideas, communication, and material... legally and illegally.

"Skanks in NYC" was a google hosted blog that existed for the sole purpose of smearing and defaming a model named Liskula Cohen.  A defamation action was filed and the plaintiff convinced the judge to force google to disclose the bloggers information so that he or she would appear in the defamation action.  The blogger was identified as Rosemary Port who used the blog to seek revenge against Cohen for the most common and cliched reasons, a man.  Apparently Ms. Port thought that Cohen had spoken poorly of her to an unnamed gentleman.

Once identified, Cohen has chosen to drop the suit so long as the website is taken down.   This is an important decision that rides the line between privacy, free speech, and civil freedoms.  Ms. Port is shocked that her privacy was disturbed and believes the Court decided wrongly.    Her actions, however, made the decision easier for the Justice.  The blog (which I admittedly have never seen) seems to have no purpose other than to abuse and smear the reputation of Ms. Cohen.   Ms. Port does not qualify as a legitimate reporter, nor is she sharing news with the public.  Her actions cross the line of free speech and she did not deserve anonymity.

I expect to see a number of these cases come up in the future.  It is SO EASY today to besmear and defame a person.  On twitter, myspace, facebook, or Ebay (as in a case I handled in which a buyer was so dissatisfied that she made it her life's goal to destroy my client's business and reputation.)  We may see a flood of defamation lawsuits stemming from social media. 

Long gone is the day when we gathered around the water cooler making snide comments.
August 18, 2009

Split Massachusetts SJC Suggests GPS Unconstitutional for Some Sex Offenders

Massachusetts enacted a law in 2006 that allows for GPS units to be placed on sex offenders on probation.  Today, in Commonwealth v. Cory, the SJC, split 4-3 held that the 2006 law could not be enforced retroactively for offenders convicted before 2006.  The reasoning of the court, namely, that it "burdens liberty" because it is a permanent intrusive attachment with continuous surveillance.

Sex offenders have a well documented high rate of recidivism and it is for this reason that the 2006 law passed despite the obvious Constitutional dilemma it proposed.  As the SJC held today, public safety may have to give way to constitutional protections against government intrusion into the lives of citizens, including sex offenders.

It is a question that divides many of us and cuts to the center of Constitutional protections.  What is more important, the rights of the criminal or the protection of potential victims?  The ruling today makes this question much more difficult in Massachusetts.
August 17, 2009

Minivan Mom Tasered?

I first saw this post on Attorney Eric Turkewitz blog and I could not believe the video.  The video depicts Audra Harmon who was initially pulled over for allegedly talking on her cell phone.  Apparently when she was able to demonstrate to Officer Sean Andrews that she was not in fact talking on the phone, he decided to cite her for driving five miles over the speed limit.  Why bother admitting he was wrong?  Ms. Harmon disagreed and asked to see the tape from the radar gun indicating her speed. 

Ms. Harmon made the mistake of getting out of her vehicle to see the radar gun.  Upon realizing her error, she quickly returned to her vehicle... but that was not the end of it.  She was dragged back out of her car in front of her kids and while standing in a completely non-threatening posture, was struck twice by the officers taser.

I understand cops have a dangerous job, and I understand that this is an outlying exception caught on video.  The point, however, is that abuse of power occurs.  Racial profiling occurs.  It is not acceptable.  Thanks to this video Ms. Harmon will likely be compensated by the city, and with any luck Officer Andrews will be re-assigned, but there are many defendants who do not have a tape to corroborate their sometimes unbelievable tales of police abuse of power.
August 6, 2009

Are Ghostwriters paid by Drug Companies Controlling Our Medical Treatment

There is a shocking story in the New York Times that shows in equal measures how far drug companies will go to push their agenda, and how necessary the plaintiff bar is to prevent such abuses.

I have helped represent a woman who was diagnosed with breast cancer after being prescribed Premarin for decades, so this story was very relevant to me.  Drug companies pushed the publication of 26 articles that downplayed the risk of hormone replacement therapy while emphasizing the benefits.  Wyeth paid a medical communications firm to draft the documents while sales of Premarin and Prempro soared to over $2 billion in 2001. 

In 2002, a federal study led to the discovery that menopausal woman who ingested certain hormones had a heightened risk of invasive breast cancer, stroke, and heart disease.

Many doctors rely on such medical literature to decide when and what to prescribe their patients.  The system is inherently flawed when that information is biased and drafted by drug companies themselves.  This information became public following as a result of discovery in one of the thousands of lawsuits that Wyeth now faces.
July 31, 2009

"Tweeting" To a Defamation Action

I first heard about this lawsuit on NPR and thought that it was fascinating.  In just a few short words posted on Twitter, "You should just come anyway...Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s OK," a tenant of said Horizon Realty has found herself defending a defamation action.

The plaintiff corporation is stating that the statement was available to the public to be read by anyone in the world and damaged the corporations reputation.  Is this a textbook defamation action? 

  • Was the woman's "tweet" truly a publishing?  Or is Twitter more like a chat between friends in which one happens to be airing out grievances?

  • How many people truly read or were aware of the tweet (at least before the lawsuit)?

  • And was the company truly damaged? 


All interesting questions that could have serious implications on the way we use the internet and social websites like twitter.  As discussed in my post, The State of Illegally Downloaded Music, the internet is creating serious problems for people who are using websites the same way that millions of others are.  Seemingly innocent behavior with no malicious intent on the internet, might actually lead to both civil and criminal penalty.
July 31, 2009

The State of Illegally Downloaded Music

Only a few short months after Jammie Thomas-Rasset was ordered to pay $1.92 million in damages to the Recording Industry Association of America (RIAA) for illegally downloading and sharing 24 songs, it looks as if a second defendant is about to go down in flames. 

Joel Tenenbaum, is a 25 year old BU student, who along with Jammie Thomas-Rasset was among the 18,000 recipients of letters from the RIAA demanding payment for illegal downloads.  Like many, Mr. Tenenbaum decided to take the matter to trial and had well known lawyer Charlie Nesson at his side.  On the stand, however, Mr. Tenenbaum admitted responsibility for illegally downloading songs on Kazaa.  When asked "Are you now admitting liability for downloading and distributing all 30 songs," Tenenbaum simply replied, "yes."

Clearly Tenenbaum and Thomas-Rassetare people without malicious intent who are likely law abiding people.  Nevertheless, they have infringed on another's copyright and intellectual property and have been brought to court to answer for themselves.  The problem being, that there truly is no defense for such actions.  One can not deny the illegality of it.  A defendant can only ask that the damages be limited.  Unfortunately, Ms. Thomas-Rasset was ordered to pay $80,000 per song.  If the jury in this case finds similarly, Mr. Tenenbaum could be looking at a 2.4 million dollar bill.
July 27, 2009

Does Neurontin Increase Risk of Suicide?

That is the question that a Boston Federal Court will decide as trial is set to begin.  Superstar plaintiff attorney Mark Lanier is bringing the suit alleging that the Pfizer anti-epilepsy drug increases a patient's risk of suicide.  This case, the first of some 1200 prepared to go to suit in the coming years is predicted to mirror the Vioxx lawsuits.

Attorney Lanier has admitted that he is starting with a tough case to test the waters.  He represents the family of Susan Bulger, a thirty-nine year old woman who took the drug before hanging herself in 2004.  The case is made difficult by the fact that Ms. Bulger attempted suicide no less than three times previously. 

A win for the plaintiffs in this early case would be devestating to Pfizer with over a thousand lawsuits pending.
July 22, 2009

Slip and Fall: A Primer

I receive a lot of questions asking whether one has a valid case for slip and fall.  Often there is a fall on private property causing injury, but while these elements are essential, they are not enough.  A landowner is not always responsible for a flaw in the property that leads to a fall.  Occasionally weather, or another's mistake can cause a temporary flaw that the landowner may or may not be responsible for.

So, when might a landowner be responsible for a fall.  Here are the most common scenarios for a landowner to be legally responsible:

  • The owner of the property or his or her employee, caused the flaw in the surface by either damaging it or spilling something onto it, or otherwise causing something to be underfoot;

  • The owner of the property or his or her employee knew of the flaw on the property and did nothing to correct it;

  • The owner of the property or his or her employee should have known of the flaw in the property because a reasonable landowner would occasionally inspect his or her property and repair any known flaws.


In the first two scenarios, the landowner knows of the flaw either because he or she caused it or because he was told directly.  In the third scenario, often the most litigated, we have to ask if the "reasonable" landowner should have known of the flaw and repaired it.  Considerations include:

  • What is the nature of the object - size, shape, consistency;

  • Does the landlord have a routine inspection schedule? Is it sufficient?

  • How long has the object or flaw been present?  Would a routine inspection have identified it?;

  • Could a simple barrier or warning have prevented injury?;

  • Was there a legitimate reason for the object's presence?


So you see, a seemingly simple slip and fall can become a very fact intensive matter.  Report all falls immediately to someone of authority so that the condition is documented.  If the flaw is located in your apartment building, immediately notify the landlord or owner so that their knowledge is established.

This primer is an introduction only and does not cover all potential scenarios.  As you can see, a slip and fall can be very fact intensive and you need to speak with an attorney to determine your rights.  If you have been injured in a slip and fall accident, contact our office for a free initial consultation.
July 21, 2009

N.Y. Times has Interesting Article Suggesting Cover-up of the True Danger of Driving with Cellphones

The article, "Driven to Distraction", reports that a federal study investigating the true danger of cellphone use in automobiles, was shelved to avoid a confrontation with Congress.  The National Highway Traffic Safety Administration, given the task of research was hesitant to become a lobby group, and chose not to release the findings.  After a freedom of Information Act filing, the information has become public.

According to their findings, "motorists talking on a phone are four times as likely to crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content."  In total, the highway safety researchers estimate that cell phone use caused 955 fatalities and 240,000 accidents in 2002.

The use of cell phones, either to talk or to text, greatly increase the risk of an accident and should be discussed with your attorney when determining the liability for an auto accident.