Legal Stuff

Influencers and undisclosed sponsored activities

12 February 2018

From IPKat:

Suppose that you meet someone who tells you about a great product. That person tells you that the product has fantastic new features that no other product has. Could that recommendation influence your decision to buy the product? Possibly yes, especially if you trust and admire that person. Now suppose the person works for the company that sells the product – or has been paid by the company to praise the product. Would you want to know that when you’re evaluating the endorser’s glowing recommendation? You bet.

The latter seems to be the issue underlying the increasingly extensive debate and concerns around those ‘influencers’ who fail to declare the existence of a commercial relationship with companies whose products they wear and sponsor, including via social media.

. . . .

Quite recently, in fact, the FTC adopted a set of guidelines: the Endorsement Guides.

. . . .

Among other things, Section 5 in the FTC Act states that the FTC conducts investigations and brings cases involving deceptive advertising made on behalf of an advertiser.

In this regard, the Guides are intended to give an insight into what the FTC thinks about influencers’ undisclosed marketing activities and how Section 5 might apply to the resulting endorsements. The Guides themselves are not legally binding. However, practices inconsistent with the Guides may result in law enforcement actions alleging violations of the FTC Act. Law enforcement actions may prompt a defendant in a case to return any money received as a result of the the violation in question and to abide by various requirements in the future.

Importantly, in its aim to prevent false or misleading advertisement, the FTC requires influencers to disclose any “material connection” between the influencer and the advertisement in a “clear and conspicuous” manner. A “material connection” entails disclosure of business or family relationships, monetary payments and also gifts of free products.

. . . .

Growing concerns with influencers and undisclosed sponsored posts can be found also in Europe. For instance, a case of this kind was recently decided in Sweden.

. . . .

In late January 2018 the Patent and Market Court in Konsumentombudsmannen v Alexandra Media Sweden & Tourn Media (PMT 11949-16), ruled that famous Swedish blogger and influencer Kissie was responsible for misleading marketing on social media.

. . . .

The Court held that expressions like ‘sponsored post’ and ‘collaboration’ are sufficiently clear in communicating that a post is to be regarded as an advertisement. Crucially, such expressions must either be given a particularly clear design or placed in a prominent position in relation to the post. In this particular case, two posts by Kissie were found to have failed to provide a sufficiently clear indication that they were in fact advertisements.

Link to the rest at IPKat

War Dogs Smuggler Efraim Diveroli Sues Memoir Co-Author

6 January 2018

From Miami New Times:

Late last year, the Miami Beach stoner whose exploits in arms dealing became the basis of War Dogs, agreed to dismiss his lawsuit against Warner Bros., in which he’d claimed the company stole parts of his memoir and falsely marketed the movie as a true story.

But Efraim Diveroli is now entangled in another court battle — this time with the co-author of his self-published memoir, Matthew Cox. You might have heard of Cox. He’s a notorious mortgage fraudster whom, along with partner Rebecca Marie Hauck, Fortune magazine once called the “Bonnie and Clyde of Mortgage Fraud.”

. . . .

“Cox authored the ‘Once a Gunrunner’ memoir… after extensively interviewing Diveroli and marshaling the facts to tell the story accurately while also portraying Diveroli in a more sympathetic light,” the still-incarcerated Cox wrote in a filing in the Warner Bros. case.

In response, the now-free Diveroli sued Cox in November, arguing the inmate has no claim to his life rights or story. Diveroli’s attorney, Matthew Troccoli, tells New Times Cox’s allegations are “ridiculous, ridiculous, ridiculous.”

. . . .

According to Cox’s court filings, shortly after meeting Diveroli in 2012, he suggested the onetime gun runner write a book as a means of countering the way he would be portrayed in the then-upcoming comedy movie.

“Cox pointed out that Ratpack Entertainment was the same production company responsible for the Hangover movies and that they were going to make a joke out of Diveroli’s life,” he wrote. “Cox told Diveroli that the movie would end up being named something like, ‘Dude, Where’s My Hand Grenade?'”

Diveroli eventually agreed and asked for Cox’s help. In 2013, the two entered into an attorney-drafted co-author agreement. Under its terms, Cox was to be paid $500 upfront, in addition to receiving 10 percent of sales and 5 percent of royalties.

Link to the rest at Miami New Times

PG says, regardless of the contract, going into business with the wrong partner will always result in problems.

Pseudonymous litigation, and alleged skulduggery in the world of romance novelists

3 January 2018

From The Volokh Conspiracy:

Pseudonymous lawsuits are generally (but not always) disallowed — but what if the pseudonym isn’t just for the purposes of litigation, but is instead the name under which the person is known in the community in which the dispute arose? That’s the hot, exciting subject of Wednesday’s Nevada federal district court decision in Alexander v. Falk; but first, I just can’t resist this quote from “Randi Alexander site:

New York Times and USA Today Bestselling Author Randi Alexander knows a modern woman dreams of an alpha cowboy who takes the reins, and guarantees they’re rode hard and put up satisfied.

OK, back to the court decision:

The Plaintiffs, “Randi Alexander” and “Jackson Young,” are suing under pseudonyms. “Randi Alexander” is a pen name for an individual romance novelist. “Jackson Young” is a stage name for an individual professional model and country music performer. Plaintiffs allege that they have been defamed by Defendants Kathryn Falk [a romance novel promoter], Romantic Times, Inc. [a romance-novel-related magazine] and … Gracie Wilson [also the pseudonym of a romance author]….

Plaintiffs allege that during the April 2016 convention, Defendants Wilson, Falk and Romantic Times began or continued a malicious campaign to defame and disparage Alexander and Young. Falk and Wilson allegedly made false statements to a group of convention attendees, including romance novel authors and publishers, that: (a) Alexander and Young were involved in secret, inappropriate, illicit, salacious, and scandalous relationships with each other and third parties; (b) were blackmailing publishers and others into using and promoting Plaintiffs’ goods and services; (c) Young was a predator; (d) Wilson was living in fear because of Young’s threats to her; (e) Young had other victims; (f) Young sent inappropriate text messages to various authors, including a big name author whose husband became aware of texts and made threats against Young; (g) Young fraudulently obtained money from authors for services he did not perform; and (h) Young was blackmailing Alexander by using details of their supposed inappropriate relationship to keep her in a business partnership. Plaintiffs allege that the defamatory campaign continued after the convention….

. . . .

Plaintiffs request permission to continue to prosecute this action under their professional pseudonyms because they fear that if their true names are disclosed to Defendants or become publicly known, they will be subjected to harassment and abuse touching on their personal lives which they have kept separate from their professional identities and activities. In support of their motion, Plaintiffs have submitted exhibits showing comments posted on the Romantic Times Facebook account in early May, 2016, in response to a post from an individual who stated that “a certain cover-model has been removed from the group due to multiple allegations of abuse and blackmail. Anyone feeling the need to jump to his defense can certainly do so but I’m not letting him back in.” The responses included a May 3, 2016, post from Defendant Falk which stated that Plaintiff Young was banned from any RT events….

Plaintiff also attached posts from the Facebook account of Defendant Wilson made in early May 2016 setting forth the manner in which she had allegedly been harassed by Plaintiff Young. The comments in response to Defendant Wilson’s posts also appear to have been made in early May 2016. In March 2017, Defendant Wilson posted a request for donations to help her retain counsel to defend this lawsuit. In that post, Defendant Wilson repeated allegations that she had previously made against Plaintiff Young in May 2016. This post drew several contributions from individuals who indicated their sympathy and support for Defendant Wilson….

A plaintiff’s use of a fictitious name runs afoul of the public’s common law right of access to judicial proceedings and the requirement of Fed.R.Civ.P. 10(a) that the complaint include the names of all the parties…. “[T]he normal presumption in litigation is that parties must use their real names…. This presumption is loosely related to the pubic’s right to open courts, … and the right of private individuals to confront their accusers….” … Rule 10(a) “protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties…. This creates a strong presumption in favor of parties’ proceeding in their own names. Defendants have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not.” … [In a Seventh Circuit case] in which the plaintiff sued her ex-boyfriend for illegally distributing a videotape of them having sex when the plaintiff was a minor … [the court] noted that plaintiff had denied defendant the shelter of anonymity in bringing her lawsuit, and “yet it is [defendant], and not the plaintiff who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.”

. . . .

In cases where a pseudonym is used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to such retaliation…. [E]xamples of plaintiffs who are particularly vulnerable to retaliation … [include] children plaintiffs or a prison inmate who served as a government witness….

In this case, Plaintiffs Alexander and Young do not allege fear of retaliatory physical injury if their true names are disclosed. The potential injury to Plaintiffs if their true names are publicly disclosed in this lawsuit is the reputational and emotional injury that they will suffer in their private lives, which have so far been shielded by their use of professional pseudonyms.

Link to the rest at The Volokh Conspiracy

LawDroid to Build First Voice-Activated US Legal Aid Bot

27 December 2017

Not exactly about authors and writing, but PG found this interesting.

From Artificial Lawyer:

Tom Martin, the founder of legal bot maker, LawDroid, has been awarded a contract to build a voice-activated legal aid bot in the US in a major ‘real world’ test of the technology and its access to justice (A2J) capabilities.

Martin told Artificial Lawyer that it will be the first chat bot/legal bot funded by the Legal Services Corporation’s Technology Initiative Grant Program.

. . . .

‘LawDroid will be making a hybrid voice and text-based chatbot that can engage users in guided interviews, provide vital legal information and generate custom legal documents,’ Martin explained.

. . . .

[T]he bot will need to handle a variety of legal queries coming to the HELP4TN site, which can range from wills to divorce and from financial planning to employment disputes. It will also need to function via voice and text. And, it will also need to be able to help users complete basic forms.

. . . .

The system must also be able to cope with verbal and written input errors, again no small challenge as anyone who has used a chat bot will know. Getting a bot to deal with responses from the user that make no sense yet without running into a dead end, or a logic loop, is not easy. But, such challenges have to be overcome to make the bot function in the real world, where people will introduce typos, misspellings, or use the wrong terms and other errors.

The system must also allow users to have ‘a conversational interview’ with the bot to automatically complete forms. Again, while this may sound relatively straight forward, ensuring that the right information is gathered and inputted in the right places, in the right way, is also not a simple task, especially if operating primarily via voice and with a member of the public who may not be familiar with legal terms or the legal process they are in need of help with.

In short, this will be a very important test that will provide a great proof of concept that legal bots can be used by the Legal Services Corporation and the many entities it supports.

Link to the rest at Artificial Lawyer

In the US, the Legal Services Corporation is an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans. It provides most of its services through independent Legal Aid organizations in all 50 states.

In a former life, PG did a lot of litigation for his local Legal Aid. Some of his favorites were big company vs. little gal/guy lawsuits. He’ll resist the urge to share war stories.

PG has always been intrigued with legal automation and has done some work in that area over the years. Any legal process that employs commonly-used document structures or standard forms is an excellent candidate for computerized document creation.

Chapter 7 automated bankruptcy forms for individuals were an early example of complex forms that followed generally well-defined structures and processes. One very nice advantage of even relatively crude bankruptcy automation was that all the numbers added up which was not always the case with forms created manually.

As far as lawyers being replaced by computers, PG’s demurely humble opinion is that if a lawyer can be replaced by a computer program, that lawyer needs to move up to more complex legal tasks.

Another interesting use of AI in writing is the potential creation of formulaic potboiler stories.

Here’s an article about NaNoGenMo – National Novel Generation Month – for computer-generated novels on the Verge:

Nick Montfort’s World Clock was the breakout hit of last year (2013). A poet and professor of digital media at MIT, Montfort used 165 lines of Python code to arrange a new sequence of characters, locations, and actions for each minute in a day. He gave readings, and the book was later printed by the Harvard Book Store’s press. Still, Kazemi says reading an entire generated novel is more a feat of endurance than a testament to the quality of the story, which tends to be choppy, flat, or incoherent by the standards of human writing.

. . . .

Narrative is one of the great challenges of artificial intelligence. Companies and researchers are working to create programs that can generate intelligible narratives, but most of them are restricted to short snippets of text. The company Narrative Science, for example, makes programs that take data from sporting events or financial reports, highlight the most significant information, and arrange it using templates pre-written by humans. It’s not the loveliest prose, but it’s fairly accurate and very fast.

NanNoGenMo, Kazemi says, “is more about doing something that is entertaining to yourself and possibly to other people.”

For last year’s NaNoGenMo Kazemi generated “Teens Wander Around a House.” He made a bunch of artificial intelligence agents and had them meander through a house at random, his program narrating their actions. When two characters ended up in a room together, he pulled dialogue from Twitter. One tweet could be a question — “What’s for dinner tomorrow?” — and the next, a statement that also contained the word “dinner” — “Dinner is my favorite meal of the day,” for example. “The result was a conversation that sort of stayed on topic but didn’t make much sense,” he says.

Link to the rest at  the Verge.

Here’s more on the same topic at Sabotage Reviews:

NaNoGenMo happens where tech and literature overlap: the strange venn intersection that houses computer poetry, electronic literature, and twitterbots. Novel generation draws from artificial intelligence and the quest to create computers that talk or write like people, but it’s also part of the Oulipian tradition of writing from constraint: if you make such-and-such a ruleset, what kind of writing might happen? Computer generation renders Raymond Queneau’s Cent mille milliards de poèmes beautiful but obsolete, and to my mind poem.exe can hold a 1000 Watt LED candle to Bashō.

NaNoGenMo is not, however, truly about trying to replace the human author. Rather, its entries draw their strange beauty and humour from their failure to be human, from their almost-but-not-quite humanity and their utter inhumanity: most of them are transparently machine-made, but this lends their glitches, coincidences and almost-epiphanies even more fascinating. The writing they produce is closest to is the flattened affect and repetitions of alt-lit, with dashes of uncreative writing, flarf and other post-internet poetics. In other words: as humans increasingly write in dialogue with the internet and machine automations, machines are increasingly being written in dialogue with human literature.

With all that in mind, here are ten of my favourite results from NaNoGenMo. Each is gorgeous and weird in a different way, from extended jokes to eerie half-humanness.

Link to the rest at Sabotage Reviews

Here’s a link to the 2017 NaNoGenMo site on Github

If you are still interested in computer-generated literature, here’s a recent talk:


Aesthetic Judgment in Law

20 December 2017
Comments Off on Aesthetic Judgment in Law

From SSRN:

Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should. State actors — from judges and legislators down to customs officials and members of local zoning boards — make aesthetic judgments every day, in areas ranging from tax and tariff law to obscenity and public-funding decisions, from historic preservation and land-use regulations to copyright, trademark, and patent law.

This Article details the breadth and surprising philosophical depth of the law’s engagement with aesthetic questions. And bucking conventional wisdom, it argues that in many areas of law, government should define artistic categories and promote aesthetic values. The usual reasons for treating aesthetic judgment as what Justice Holmes famously called a “dangerous undertaking” turn out to be bad ones. Arguments based on the expertise of judges or the subjectivity of aesthetic judgment are not just unconvincing, they are in tension with one another. And the one persuasive argument — derived from the First Amendment’s prohibition on government-imposed orthodoxies — applies only as far as the First Amendment itself does. This Article offers a framework for deciding when the First Amendment limits aesthetic judgment in law. And in doing so, it also identifies appropriate sites of aesthetic judgment — places where we need more open debate about the substantive aesthetic values we want the law to endorse.

Link to the rest at SSRN

Website blocking proposal good policy

17 December 2017

From Barry Sookman:

[A] coalition of Canadian companies  is considering a proposal to have Canada’s telecommunications and broadcast regulator, the CRTC, establish a regime to block egregious copyright infringing websites.

The proposal is long overdue and, if adopted, would modernize Canada’s laws relating to Internet piracy and bring them into line with those of many of our trading partners. The proposal is not an attack on net neutrality; rather it is an efficient means of stopping content theft. If adopted, the proposal could stop the hemorrhaging that Canadian creators, producers, actors, broadcasters and distributors are suffering due to the scourge of illegal streaming services. The criticisms of the proposal are overblown and contain factually inaccurate statements.

. . . .

If adopted, the proposal could stop the hemorrhaging that Canadian creators, producers, actors, broadcasters and distributors are suffering due to the scourge of illegal streaming services. The criticisms of the proposal are overblown and contain factually inaccurate statements.

. . . .

What Canada’s laws don’t have is an express legal and expeditious framework to block foreign “wealth destroying” websites.

Geist asserts the measure is not needed, arguing the “data on piracy is decidedly mixed”. This is the argument he always makes when opposing measures proposed to help artists, creators and others who rely on their investments in creative content to combat its illegal dissemination. Reputable studies repeatedly show that internet piracy hurts.

A recent study by Sandvine revealed that 6.5% of North American households are accessing TV piracy services using TV piracy subscription services. The study estimated that this piracy costs Canadian and US broadcasters and other communication service providers up to five billion dollars a year.

. . . .

Australia recently established an express regime to permit orders to be made against ISPs to block pirate websites. In France, the anti-piracy agency Hadopi recently released a report calling for faster blocking of pirate sites and adoption of measures to counter illegal streaming platforms and ISDs.

Link to the rest at Barry Sookman

Supreme Court Hears Same-Sex Wedding Cake Case

5 December 2017
Comments Off on Supreme Court Hears Same-Sex Wedding Cake Case

For First Amendment students/fans/geeks, the US Supreme Court is hearing oral arguments in a case captioned Masterpiece Cakeshop v. Colorado Civil Rights Commission this morning (December 5, 2017).

If you Google Supreme Court Wedding Cake, you should find lots of references to the case and more detail than PG will be able to supply.

The basic facts of the case (as PG understands them) are:

The proprietor of the Masterpiece Cake Shop creates custom wedding cakes, among other things. Photos of the proprietor at work show him using an artist’s brush to add intricate designs and messages to cakes of a variety of sizes that are covered with plain white frosting. The designs and messages are specified by the purchasers of the cake.

A gay couple entered the Masterpiece Cake Shop and requested that the proprietor create a custom wedding cake that included messages affirming and celebrating their marriage as two gay men.

The proprietor replied that, because he held personal and religious objections to gay marriage, he would be unable to provide the cake. He offered to sell the couple a plain white cake that someone else could decorate with the requested messages. He also offered to refer the couple to other custom cake shops who would be happy to decorate a cake as requested by the couple.

The couple was not satisfied and left the shop. The conversation was very brief, lasting less than a minute, according to some accounts PG has read.

The couple made a complaint to the Colorado Civil Rights Commission, claiming the proprietor had improperly discriminated against them because of their sexual orientation. They also claimed the shop was a public accommodation.

From Wikipedia:

In US law, public accommodations are generally defined as facilities, both public and private, used by the public. Examples include retail stores, rental establishments and service establishments as well as educational institutions, recreational facilities, and service centers.

Under United States federal law, public accommodations must be accessible to the handicapped and may not discriminate on the basis of “race, color, religion, or national origin.”

The proprietor claimed that, under the First Amendment to the United States Constitution, his custom decorations, containing specific messages, were protected speech. What the couple was asking the Commission (and later the federal courts) to do was to force the proprietor to create messages that were offensive to him because of his religious beliefs.

From Wikipedia:

In the United States, compelled speech is governed by the First and Fifth Amendments to the Constitution. In the same way that the First Amendment protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which she disagrees.

. . . .

Examples of compelled speech not supported by law

  • Saluting the flag — West Virginia State Board of Education v. Barnette (1943)
  • Requiring a newspaper to publish an advertisement — Miami Herald v. Tornillo (1974)

An additional element in this case is the proprietor’s religious beliefs that gay marriage is not proper and violates biblical law.

The First Amendment to the Constitution begins with the following language:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

From The Legal Information Institute, published by Cornell Law School:

Two clauses in the First Amendment guarantee freedom of religion. The Establishment Clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the “separation of church and state.” However, some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of “blue laws” is not prohibited. The Free Exercise Clause prohibits the government, in most instances, from interfering with a person’s practice of their religion.

. . . .

[James] Madison’s original proposal for a bill of rights provision concerning religion read: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.”

The Commission ruled in favor of the gay couple and ordered that the bakery provide comprehensive staff instruction about the Colorado Anti-Discrimination Act, provide quarterly compliance reports to the Commission describing remedial actions for two years, including a report of the number of patrons who were denied service by the bakery and the reasons for denial of service in each case.

Mr. Philips, the proprietor of the bakery has said:

“It’s not about turning away these customers, it’s about doing a cake for an event — a religious sacred event — that conflicts with my conscience,” he said earlier. “My bakery, my family, my life, the work I get to do, is a gift from God and I want to honor Him in everything I do.”

The soft-spoken Phillips adds that like other artists, he has turned away cake requests for a variety of reasons: baked goods with profanity or obscene images, racial stereotypes, even those that he says would disparage homosexuals.

The American Civil Liberties Union, speaking in support of the Commission’s decision, has written:

Does this violate the bakery’s First Amendment rights?

No. The Colorado anti-discrimination law doesn’t tell the bakery how to make its cakes. What it says is that if the bakery chooses to sell cakes, it can’t refuse to sell them to certain people based on their sexual orientation. The ACLU is proud to defend the First Amendment freedoms of speech and religion. But religious freedom doesn’t give anyone the right to discriminate. If it did, any business would be free to discriminate against almost any of us — members of minority faiths, women, racial minorities, LGBT people — solely based on the owner’s views.

What’s at stake in this case?

This fall the Supreme Court will decide whether businesses that open their doors to the public have a constitutional right to discriminate.

People have deeply held beliefs about all kinds of things. If those beliefs gave anyone the right to discriminate, a tailor shop could refuse to alter a business suit for women, or a bus company could refuse to drive people of different faiths to work. If the bakery has a constitutional right to discriminate, then today it’s Dave and Charlie, tomorrow it could be you, your family members, your friends and your loved ones. Any of us could be turned away simply because of who we are.

Typically, the US Supreme Court takes many months to release its case rulings and opinions. The opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission is not expected to be released until the end of this term of the court in June, 2018.

European Booksellers Cheer as Digital Market Talks on Ebooks and Geo-Blocking

25 November 2017

From Publishing Perspectives:

“We trust that the European Commission will take the specific nature of the (ebook) sector into account,” says the Börsenverein des Deutschen Buchhandels’ Jessica Sänger as the EIBF celebrates ebooks’ proposed exemption from geo-blocking.

. . . .

When Publishing Perspectives readers last were updated on the “geo-blocking” controversy for publishers and booksellers in Europe’s Digital Single Market developments and the draft law under discussion, the European & International Booksellers Federation (EIBF) had raised the alarm.

. . . .

Dr. Jessica Sänger, legal counsel and director of European and international affairs with the Börsenverein des Deutschen Buchhandels, Germany’s Publishers and Booksellers Association, geo-blocking is not about “portability” of ebooks and other digital products which customers have purchased, and the EIBF and its member booksellers aren’t against selling ebooks across borders.

Instead, the concern was that the proposed legislation in play over the summer could force booksellers to sell ebooks to users in all EU countries, and that requirement to service the union’s wide range of member nations’ varying taxation levels, fixed prices, and other constraints, would be too costly for many booksellers to bear.

. . . .

EIBF’s administration says that it  “notes with great satisfaction that the negotiations held between the European Parliament, the European Commission, and the Council (trilogue) about the geo-blocking regulation were positive. The proposal agreed yesterday [November 20], and tabled by the Estonian presidency leaves copyright-protected material, including ebooks, out of the scope of the regulation and proposes a review clause of two years”–and in actuality, the organization notes, this will put the review near the end of 2020 or early in 2021.

. . . .

“It’s very important to us that a proper impact assessment is to be undertaken before traders are potentially compelled to make their Web shops capable of selling ebooks to every member State” in the European Union.

Link to the rest at Publishing Perspectives

Alec Baldwin’s Legal Tussle Over a Painting

14 November 2017

Not explicitly about books, but definitely about artistic honesty.

From The New Yorker:

In 1996, the artist Ross Bleckner painted “Sea and Mirror,” a large canvas dotted with shimmering shapes. Some years later, Baldwin received an invitation to a show of Bleckner’s work; it featured a photograph of “Sea and Mirror.” Baldwin loved the image, and carried the invitation around in his briefcase for years. In 2010, Baldwin bought a painting from Bleckner’s “Time” series from Mary Boone, and he told her that he’d like to buy “Sea and Mirror,” too. Boone e-mailed that she was “thrilled” that Baldwin would have the painting, and they agreed on a price of a hundred and ninety thousand dollars. A few months later, the painting was delivered to Baldwin.

When the picture arrived, it was signed, dated, and, on the back, stamped with “7449,” the inventory number of the 1996 work. But Baldwin thought the colors looked off. Last week, calling from a movie shoot, he said, “They were bright, like M&M’s.” Also, he added, “the brushstrokes were less feathery, and the paint smelled, well, fresh.”

He went on, “When I called up Mary and asked, ‘Why do these paintings look so different?’ she said the owner was a heavy smoker, so Ross had taken the painting off the stretcher and cleaned and repaired it for me, as a courtesy, before delivering it. At first, I was not prepared to tell myself it was a fake. I was inclined to believe them, partly because it was Ross, who I respect and whose work I love.”

Six years later, Baldwin mentioned the matter to some artist friends, who told him that the story sounded fishy, and that no reputable artist or dealer would clean a painting without permission from the owner.

. . . .

The artist admitted that the painting was a copy, and later wrote, in an e-mail to Baldwin, “I’m so sorry about all of this. I feel so bad about this.” Baldwin then called Boone for an explanation. After numerous calls and e-mails, he said, she admitted that she’d sold him a copy. “Mary cried on the phone,” he recalled. “She said, ‘You caught me. I wanted to make you happy.’ ” Boone told him that he could return the painting for a full refund, plus interest.

Baldwin was angry, and he wanted to expose Boone. The six-year statute of limitations precluded him from pressing criminal charges, however, so last year he filed a civil suit in New York State Supreme Court against Boone and her gallery, charging that they had intentionally defrauded him.

. . . .

[In] the course of pretrial discovery, Baldwin’s lawyers turned up what they considered to be incriminating e-mails referring to aging the painting and making sure the paint was dry. Last week, the parties settled.

Link to the rest at The New Yorker

A number of years ago, a lawyer friend of PG’s said, “If it weren’t for human nature, lawyers wouldn’t get any business.”

Taylor Swift is Threatening to Sue a Blog for Calling Her a White Supremacist

9 November 2017

From Newsweek:

Taylor Swift’s lawyers threatened to sue a blog if it didn’t take down an article that refers to the pop superstar as a white supremacist sympathizer.

In a letter dated October 25, William J. Briggs, II, an attorney at Venable LLP, a firm based in Los Angeles, demanded Meghan Herning, editor of PopFront, retract and take down her article titled, “Swiftly to the alt-right: Taylor subtly gets the lower case kkk in formation.” Otherwise, Briggs said, “Ms. Swift is prepared to proceed with litigation.”

Herning’s 2,200-word article, posted on September 5, centers around Swift’s support among figures of the alt-right and neo-Nazi groups.

. . . .

Swift’s attorney charges Herning with malice and reckless disregard for the truth, claiming that “even a small amount of research shows that the notion that Ms. Swift either belong to or silently supports such an infamous and reprehensible group is a fabrication.”

The letter ends with a warning for Herning not to publish its contents.

“Any publication, dissemination, or broadcast of any of the letter will constitute a breah of confidence and a violation of the Copyright Act,” it states.

On Monday, the ACLU of Northern California came to Herning’s defense. In a letter addressed to Briggs, the group argues that the article is protected under the First Amendment.

“Criticism is never pleasant, but a celebrity has to shake it off, even if the critique may damager her reputation,” the letter reads.

The ACLU also contends that the copyright claims made in Briggs’ letter are “total nonsense” and malicious.

Link to the rest at Newsweek

The ACLU of Northern California released a statement about this matter. PG particularly liked the following bits:

“Intimidation tactics like these are unacceptable,” said ACLU attorney Matt Cagle. “Not in her wildest dreams can Ms. Swift use copyright law to suppress this exposure of a threat to constitutionally protected speech.”

. . . .

“The press should not be bullied by high-paid lawyers or frightened into submission by legal jargon,” said Herning. “These scare tactics may have worked for Taylor in the past, but I am not backing down.”

PG had never heard of PopFront prior to reading the OP and suspects a great many of the visitors to TPV and internet denizens in general had not either.

The attorney’s letter is a classic example of how to transform a complaint from a client from a minor, relatively private matter to a giant public fiasco.

PG has no doubt that Ms. Swift was quite upset when she contacted her attorney and further suspects that Ms. Swift is the source of much profitable legal business for the law firm. However, one of the responsibilities of experienced attorneys is to cool a client down and help the client avoid the consequences of turning a molehill into a mountain.

Counsel could followed his client’s wishes by sending out something that was obviously a boring form letter containing nary a quotable sentence to PopFront. He could have larded the letter with case citations guaranteed put any reasonable reader to sleep.

Instead, in PG’s litigiously humble opinion, the attorney’s letter poured a truckload of fuel onto a tiny little fire that would have otherwise burned itself out in a couple of days.

Here’s the letter from ACLU of Northern California to Swift’s attorney (and a lovely letter it is in PG’s musically humble opinion):

Download (PDF, Unknown)


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