In Hughes v. Hughes, film makers Albert and Allen Hughes were sued by their father, Albert Sr., for stating that their "dad's a pimp." The comment was made during an interview, conducted by the elegant Veronica Webb, that was later published in Vanity Fair.
Father Hughes' defamation claim was based on the fact that, although he WAS formerly a pimp from 1978-1981, he no longer "dabbled in the pimptorial arts." Thus, the defense of truth should not be available to the twin brothers. Instead, the pleadings alleged that the remark was a "nasty, tasteless lie" made by the Hughes brothers to promote their then-new movie American Pimp.
The Second California Appellate district in L.A. disagreed with the mack daddy, and affirmed the jury verdict in favor of the film makers, reasoning: "The communication “[o]ur dad’s a pimp” could reasonably be understood as meaning that he had at one time engaged in that activity. And a fact finder could reasonably conclude that the “gist or sting” of the remark does not necessarily depend on when the plaintiff was a pimp."
Post Script: For those of us laboring in clinical regions of the legal profession, pimpin' possesses a certain renegade charm. The Hughes case magnifies this allure by combining pimps with celebrities. Like a tell-all talk show, it irresistibly descends into celebrity dirt in its talk of sordid deposition excerpts and lengthy discussion of Guccione v. Hustler Magazine, Inc.
Posted by AZ on September 28, 2004 07:38 PMThe Tobacco Industry was dealt another blow in Reynolds Tobacco Co. v. Shewry, when the Ninth Circuit denied the cigarette makers' claim that a California surtax on cigarettes that funds anti-smoking advertisements violates the Constitution.
First Amendment scholars may find this "novel claim" interesting. The Court ultimately rejected Reynolds's "nexus" argument, holding "a mere link between an excise tax and a government-sponsored advertising campaign, absent a claim that either the tax or the advertising is unconstitutional, does not violate the First Amendment."
Posted by AZ on September 28, 2004 11:21 AMCompliance with the Americans with Disabilities Act (ADA) is one of the new challenges facing website designers and corporate counsel. The Internet is primarily a visual medium (mp3s and smell-o-vision excepted), and although "screen readers" are used to translate online text into sounds for the visually impaired, many commercial websites contain design and functional elements that do not easily translate into words. Consider a fillable form or pulldown menus for making a reservation on a specific day and time. How can a complex website, such as a travel accommodations site, be fully ADA compliant? Should there be a newly created ADA exemption for airline reservation sections?
These are the interesting issues that could've been discussed in Access Now, Inc. v. Southwest Airlines, Co. Unfortunately, however, plaintiff's pleadings did not specifically articulate a Title III ADA claim to the Eleventh Circuit's satisfaction.
Instead of an opinion that discusses Southwest.com's "unlabeled graphics, inadequately labeled data tables, online forms inaccessible to the blind, and lack of a 'skip navigation link'," we have a decision about the nexus requirements and procedural differences between a "virtual" and "concrete" location under the ADA. As the Eleventh Circuit's Judge Marcus states: "Our problem on appeal is that the new argument depends on critical facts (and a new theory) neither alleged in the complaint nor otherwise presented to the district court."
At this late stage in the proceedings, it is uncertain whether plaintiffs can find a way to amend their pleadings. [sigh]
Read more on the ADA in Cyberspace.
Posted by AZ on September 24, 2004 03:11 PMIn Sullivan v. CBS Corp., U.S. Court of Appeals for the Seventh Circuit heard a trademark infringement action brought by the rock band Survivor against producers and distributors of the reality television show "Survivor." You might remember Survivor's smash hit "Eye of the Tiger" from Rocky III (the one with Mr. T as Clubber Lange).
Plaintiff Frank Sullivan, a driving force behind the band, is the registered holder of the mark SURVIVOR, which encompasses "Entertainment services: namely providing band and/or musical services." Sullivan brought this action against CBS et al. for trademark infringement, federal and common law trademark dilution, unfair competition, and deceptive trade practices -- all of which were denied at summary judgment. Only the trademark infringement and dilution theories are at issue in this appeal.
Although he had the eye of the tiger, Sullivan was not able to establish a likelihood of confusion as to the origin of "Survivor" TV series CDs or merchandise related to the show. TKO to CBS, and there probably won't be a rematch.
Meet Frank Sullivan's Chicago attorney and one of the lawyers for CBS.
Posted by AZ on September 24, 2004 09:51 AMIn US v. Zavrel, the Third Circuit U.S. Court of Appeals heard an appeal by a woman convicted under 18 U.S.C. section 876, for sending a "communication containing any threat to injure the person of the addressee."
In October of 2001, "Rosemary Zavrel mailed seventeen envelopes containing a white powdery substance she intended to resemble anthrax to various local officials, school and hospital workers, and to the President of the United States."
Zavrel and her roommate planned to frame two boys who had supposedly wrongly accused Zavrel's son of making terroristic threats. The envelopes, which actually contained cornstarch, bore the return address of the son's accusers and were stamped with "Love USA" theme postage. Clever.
The Court ruled that "in the wake of the 2001 anthrax scare, mailing cornstarch does constitute a communication under 18 U.S.C. § 876," and that the phony anthrax envelopes constituted threats to injure the recipient within the meaning of the statute.
Meet the Federal Prosecutor and the Public Defender
Posted by AZ on September 21, 2004 12:09 PMIn Stromback v. New Line Cinema, the Sixth Circuit heard an infringement action brought by former professional hockey player Doug Stromback against the producers of the Adam Sandler movie, "Little Nicky."
Stromback, who is now an actor and aspiring screenwriter, alleged that "Little Nicky" copied elements of his original screenplay, "The Keeper."
Reading Judge Quist's opinion, one gets the feeling that the two works share very little in common. "The Keeper" is about a white rhymer, raised by black parents, who takes down a corrupt governor. "Little Nicky" is about the shy son of Satan who "saves the world by restoring the balance of good and evil."
Though Stromback's infringement claims have been dismissed, he has succeeded in bringing a modest amount of attention to "The Keeper." In the highly competitive screenplay industry, federal litigation is certainly one way to get people talking about your script.
Posted by AZ on September 14, 2004 11:01 AMMany believe the disparate socio-economic conditions in the U.S. are paving the way for an impending race war. People often forget that racial unrest has been simmering throughout American history. Occasionally, this tension reaches a boiling point and a "race riot" ensues. Case in point, Alexander v. State of Oklahoma, which litigated claims arising out of the devastating Tulsa Race Riot of 1921.
The Tenth Circuit affirmed the denial of the riot victims' claims on statute of limitations grounds, as the Court found none of the accrual and equiatable tolling arguments persuasive. Simply put, the plaintiffs should've sued sooner.
Posted by AZ on September 9, 2004 10:55 AMIn Ye v. Jiang Zemin, U.S. members of Falun Gong filed suit against the former president of China. Allegedly, Jian established "Office 610" for the purpose of suppressing Falun Gong, a combination of "Buddhist teachings and predictions about the end of the world with meditation and martial arts discipline as a prescription for physical and spiritual well-being."
The complaint averred "claims of torture, genocide, arbitrary arrest and imprisonment, as well as other claims related to the appellants' freedom of conscience, movement, and religion."
During the former president's visit to Chicago, plaintiffs attempted service of process on Jian by delivering the summons and complaint to agents of the U.S. Secret Service and a Chicago police officer stationed at Jiang's hotel. When Jiang did not answer the complaint, plaintiffs moved for a default.
Enter: Executive Branch of U.S. Government holding a head-of-state immunity card.
The Executive Branch's basic argument: service of process on visiting heads of state could frustrate our Nation's diplomatic objectives.
The Court's closing: We are not unsympathetic to the appellants' claims. "The Executive Branch has stated it is working to persuade the government of China to put an end to the human rights violations it has inflicted on its people for more than half a century. Success depends on diplomacy, not United States courts."
Mildly related: David Bowie's drummer imprisoned for Falun Gong
Posted by AZ on September 8, 2004 12:18 PM