Articles by mjlst

Update: Tribal Sovereign Immunity Can’t Protect Allergan from the PTAB

Brenden Hoffman, MJLST Staffer

 

Last September, the pharmaceutical company Allergan entered an agreement with the Saint Regis Mohawk Tribe where the pharmaceutical company sold its patents for the wildly successful drug Restasis to the tribe. The six patents were then licensed back to Allergan.  These moves have been widely criticized as a sham transaction. For more information about this controversy and its role in the ongoing debate over inter partes reviews (IPR’s), see my October 15, 2017 post here.

On February 23, 2018, the PTAB ruled that tribal sovereign immunity does not apply to IPR’s and denied the Saint Regis Mohawk Tribe’s Motion to Terminate the challenges to the Restasis patents made by Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA Inc. and Akorn Inc.   In this decision, the PTAB dealt a serious blow to the Allergan/Saint Regis Mohawk Tribe deal, finding that tribal sovereign immunity does not apply to IPR proceedings generally and that in this specific instance, that there was no real tra


Could EU General Data Protection Regulation (GDPR) strengthen the United States Consumer Privacy Protection Laws?

Young Choo, MJLST Staffer

 

The EU General Data Protection Regulation (GDPR) will replace the Data Protection Directive 95/46/EC in May of 2018. Unlike the Directive, GDPR does not require each European state to enact a national statute. The GDPR would uniformly apply to countries in the European Union. European Commission proposed the GDPR to “strength and unify data protections for people in the European Union.” The regulation also addresses the export of personal data outside of the European Union. More specifically, Article 3 of GDPR says that “if you collect personal data or behavioral information from someone in an EU country, your company is subject to the requirements of the GDPR.”  Consequently, companies in United States dealing with European Union consumer information are expected to be in compliance with GDPR.

 

In light of the new regulation, the U.S. companies, either have facilities in the EU or having personal data of European, are busy to be in compliance with the GDPR. What would be generally required under the GDPR for the U.S. companies? The first step would be deciding whether GDPR applies to the company. The second step would be having a Data Protection Officer (DPO). A Data Protection Officer (DPO) is “a position within a corporation that acts as an independent advocate for the proper care and use of customer’s information.” The third step would be creating a strategy to be in compliance with the GDPR. To do so, drafting a Privacy Policy agreement in line with the GDPR is necessary. Key requirements should be provided in the privacy policy under the GDPR would be (1) “Privacy Notices”; (2) “Consent”; (3) “Data Subjects’ Rights”; (4) “Security”; (5) “Data Protection Assessment”; (6) “Breach Notification”; (7) “Service Providers”.

 

Could these U.S. companies’ movement to be in compliance with GDPR also influence the United States’ Data Protection law as well? The answer is “possibly”. California recently initiated the move toward more stringent data privacy laws. “The California Consumer Personal Information Disclosure and Sale Initiative (#17-0039) may appear on the ballot in California.” The Initiative includes the following rights for consumers:

 

Gives consumers right to learn categories of personal information that

businesses collect, sell, or disclose about them, and to whom information

is sold or disclosed. Gives consumers right to prevent businesses from

selling or disclosing their personal information. Prohibits businesses from

discriminating against consumers who exercise these rights.

Allows consumers to sue businesses for security breaches of consumers’ data, even if consumers cannot prove injury. Allows for enforcement by consumers, whistleblowers, or public agencies.

 

Another impact the movement toward stringent data protection compliance could bring is the changes of perception of “harms” in the data breach setting. United States courts have not considered “data breach” itself as a harm. They always required an additional showing of consequential harm arising out from the data breach, such as money spent on monitoring the data breach or any credit card misuses arising from the breach. On the other hand, the E.U. data protection law is strongly based on the idea that data breach itself is a harm because privacy is a fundamental human right. It is important to note how circuit courts would decide Article III on a standing issue, one of the requirements for the plaintiffs to prove is a “concrete and particularized harm”, in the data breach setting.

 


And Then AI Came For The Lawyers…?

Matt McCord, MJLST Staffer

 

Artificial intelligence’s possibility to make many roles redundant has generated no small amount of policy and legal discussion and analysis. Any number of commentators have speculated on AI’s capacity to transform the economy far more substantially than the automation boom of the last half-century; one discussion on ABC’s Q&A described the difference in today’s technology development trends as being “alinear” as opposed to predictable, like the car, a carriage with an engine, supplanting a carriage drawn by a horse.

Technological development has largely helped to streamline law practice and drive new sources of business and avenues for marketing. Yet, AI may be coming for lawyers’ jobs next. A New Zealand firm is working to develop AI augmentation for legal services. The firm, MinterEllisonRuddWatts, looks to be in the early stages of developing this system, having entered into a joint venture agreement to work on development pathways.

The firm claims that the AI would work to reduce the more mundane analytic tasks from lawyers’ workloads, such as contract analysis and document review, but would only result in the labor force having to “reduce,” not be “eliminated.” Yet, the development of law-competent AI may result in massive levels of workforce reduction and transformation: Mills & Reeve’s Paul Knight believes that the adoption will shutter many firms and vastly shrink the need for, in particular, junior lawyers.

Knight couches this prediction in sweetening language, stating that the tasks remaining for lawyers would be “more interesting,” leading to a more efficient, more fulfilled profession engaging in new specialties and roles. Adopting AI on the firm level has clear benefits for firms looking to maximize profit per employee: current-form AI, according to one study, AI is more accurate than many human attorneys in spotting contract issues, and vastly more efficient, completing a 90-minute task in 30 seconds.

Knight, like many AI promoters, claims that the profession, and society at large, should embrace AI’s role in transforming professions by transfiguring labor force requirements, believing AI’s benefits of increasing efficiency and work fulfillment by reducing human interaction with more mundane tasks. These words will likely do little to assuage the nerves of younger, prospective market entrants and attorney specializing in these “more mundane” areas, who may be wondering if AI’s development may eliminate their role from the labor force.

While AI’s mass deployment in the law is currently limited, due in part to high costs, experimental technology, and limited current applications, machine learning, especially recursive learning and adaptation, may bring this development firmly into the forefront of the field unpredictably, quickly, and possibly in the very near future.


Controversial Anti-Sex Trafficking Bill Eliminates Safe-Harbor for Tech Companies

Maya Digre, MJLST Staffer

 

Last week the U.S. Senate voted to approve the Stop Enabling Sex Traffickers Act. The U.S. House of Representatives also passed a similar bill earlier this year. The bill creates an exception to Section 230 of the Communications Decency Act that allows victims of sex trafficking to sue websites that enabled their abuse. The bill was overwhelmingly approved in both the U.S. House and Senate, receiving 388-25 and 97-2 votes respectively. President Trump has indicated that he is likely to sign the bill.

 

Section 230 of the Communications Decency Act shields websites from liability stemming from content posted by third parties on their sites. Many tech companies argue that this provision has allowed them to become successful without a constant threat of liability. However, websites like Facebook, Google, and Twitter have recently received criticism for the role they played in unintentionally meddling in the 2016 presidential election. Seemingly the “hands off” approach of many websites has become a problem that Congress now seeks to address, at least with respect to sex trafficking.

 

The proposed exception would expose websites to liability if they “knowingly” assist, support, or facilitate sex trafficking. The bill seeks to make websites more accountable for posts on their site, discouraging a “hands off” approach.

 

While the proposed legislation has received bipartisan support from congress, it has been quite controversial in many communities. Tech companies, free-speech advocates, and consensual sex workers all argue that the bill will have unintended adverse consequences. The tech companies and free-speech advocates argue that the bill will stifle speech on the internet, and force smaller tech companies out of business for fear of liability. Consensual sex workers argue that this bill will shut down their online presence, forcing them to engage in high-risk street work. Other debates center on how the “knowingly” standard will affect how websites are run. Critics argue that, in response to this standard, “[s]ites will either censor more content to lower risk of knowing about sex trafficking, or they will dial down moderation in an effort not to know.” At least one website has altered their behavior in the wake of this bill. In response to this legislation Craigslist has remove the “personal ad” platform from their website.

 


The Unfair Advantage of Web Television

Richard Yo, MJLST Staffer

 

Up to a certain point, ISPs like Comcast, Verizon, and AT&T enjoy healthy, mutually beneficial relationships with web content companies such as Netflix, YouTube, and Amazon. That relationship remains so even when regular internet usage moves beyond emails and webpage browsing to VoIP and video streaming. To consume data-heavy content, users seek the wider bandwidth of broadband service and ISPs are more than happy to provide it at a premium. However, once one side enters the foray of the other, the relationship becomes less tenable unless it is restructured or improved upon. This problem is worse when both sides attempt to mimic the other.

 

Such a tension had clearly arisen by the time Verizon v. FCC 740 F.3d 623 (D.C. Cir. 2014) was decided. The D.C. Circuit vacated, or rather clarified, the applicability of two of the three rules that constituted the FCC’s 2010 Open Internet Order. The D.C. Circuit clarified that the rule of transparency was applicable to all, but the restrictions on blocking and discrimination were applicable only to common carriers. The FCC had previously classified ISPs under Title I of the Communications Act; common carriers are classified under Title II. The 2014 decision confirmed that broadband companies, not being common carriers, could choose the internet speed of websites and web-services at their discretion so long as they were transparent. So, to say that the internet’s astounding growth and development is due to light touch regulation is disingenuous. That statement in and of itself is true. Such discriminatory and blocking behavior was not in the purview of broadband providers during the early days of the internet due to the aforementioned relationship.

 

Once web content began taking on the familiar forms of broadcast television, signs of throttling were evident. Netflix began original programming in 2013 and saw its streaming speeds drop dramatically that year on both Verizon and Comcast networks. In 2014, Netflix made separate peering-interconnection agreements with both companies to secure reliably fast speeds for itself. Soon, public outcry led to the FCC’s 2015 Open Internet Order reclassifying broadband internet service as a “telecommunications service” subject to Title II. ISPs were now common carriers and net neutrality was in play, at least briefly (2015-2018).

 

Due to the FCC’s 2018 Restoring Internet Freedom Order, much of the features of the 2015 order have been reversed. Some now fear that ISPs will again attempt to control the traffic on their networks in all sorts of insidious ways. This is a legitimate concern but not one that necessarily spans the entire spectrum of the internet.

 

The internet has largely gone unregulated thanks to legislation and policies meant to encourage innovation and discourse. Under this incubatory setting, numerous such advancements and developments have indeed been made. One quasi-advancement is the streaming of voice and video. The internet has gone from cat videos to award-winning dramas. What began as a supplement to mainstream entertainment has now become the dominant force. Instead of Holly Hunter rushing across a busy TV station, we have Philip DeFranco booting up his iMac. Our tastes have changed, and with it, the production involved.

 

There is an imbalance here. Broadcast television has always suffered the misgivings of the FCC, even more than its cable brethren. The pragmatic reason for this has always been broadcast television’s availability, or rather its unavoidability. Censors saw to it that obscenities would never come across a child’s view, even inadvertently. But it cannot be denied that the internet is vastly more ubiquitous. Laptop, tablet, and smartphone sales outnumber those of televisions. Even TVs are now ‘smart,’ serving not only their first master but a second web master as well (no pun intended). Shows like Community and Arrested Development were network television shows (on NBC and FOX, respectively) one minute, and web content (on Yahoo! and Netflix, respectively) the next. The form and function of these programs had not substantially changed but they were suddenly free of the FCC’s reign. Virtually identical productions on different platforms are regulated differently, all due to arguments anchored by fears of stagnation.


The Next Chapter for Mining and Energy Law: The Cryptocurrency Miners

Zach Sibley, MJLST Staffer

 

Traditionally, miners enjoyed a position on the supply side of energy production, providing energy inputs like coal that power the grid. The cryptocurrency boom during the last decade, however, has given rise to a new type of “miner” that turns this relationship on its head. Mining for cryptocurrencies like Bitcoin and Ethereum is not providing energy inputs but rather adding a new, massive load to the power grid. Bitcoin globally consumes an estimated 54.88 terawatt hours (TWh) of electricity annual, while Ethereum comes in at 15.74 TWh per year. For comparison, mid-sized countries like Denmark—home to over 5.7 million people—consume approximately 31.5 TWh per year.

 

And like the miners of old, these new miners are flocking to rural American cities and towns. Rather than gold or coal deposits, though, these cryptominers are searching for something more valuable: low energy bills. And rural areas in Washington state and New York running primarily on hydroelectric power are the new goldmines. The influx of new technology—and its high energy demand—now inevitably clashes with the simpler, energy-cheap lifestyle these rural Americans once enjoyed. Now locals are pushing back, leaning on local governments, energy utilities, and public utility commissions to respond.

 

The energy consumers who resided in these areas prior to the cryptocurrency boom fear that all these new loads will require new grid infrastructure investments, incurring capital costs that would be spread across all ratepayers. These concerns have been mitigated to a degree by large hook-up fees charged to new cryptomining operations, but such efforts likely do not fully insulate the prior residents and businesses from upgrade expenses. The concerns stem from constant fluctuation in cryptocurrency pricing, which can lead to two detrimental effects on non-mining residents’ energy bills.

 

First, when the value of cryptocurrencies are high, in increase in transactions creates a high demand for mining. Miners may push the limits of current infrastructure capacity or spike demand peaks faster than the local energy utilities plan for or more rapid than they can get generation assets online to handle. Unanticipated spikes require distribution utilities to purchase power from “spot markets,” which is often a double or triple digit multiplier compared to their normal generation expenses. These measures also fail to protect residents from footing the bill if the cryptocurrency boom becomes a bust. If prices dip low enough for long enough, bankruptcies and sudden departures of cryptomining operations leave remaining residents and business to pay the costs of stranded assets.

 

Concerned over the local effects of a volatile commercial cryptomining industry, the mayor of Plattsburgh, New York introduced an 18-month local moratorium on commercial cryptomining operations in the city’s common council. If passed, the moratorium will test constitutional challenges based on the Fifth Amendment’s substantive due process jurisprudence or its regulatory takings jurisprudence. It is likely that substantive due process claims will fail because the moratorium is substantively justified, i.e. reasonably related to the mayor’s police power to protect the health, safety, and wellbeing of the residents from economic shock and high utility costs. This reasoning would follow a 2006 Western District of New York decision upholding a town’s development moratorium on a wind energy project. The temporary duration of the moratorium and that substantive police powers underpinning would likely also defeat categorical and non-categorical regulatory takings claims, respectively.

 

The legitimacy of cryptomining moratoria will allow local governments to engage in meaningful debate with commercial cryptocurrency miners, energy utilities, and the local ratepayers. Establishing sufficient connection prices, demand charges, and contingency pricing to compensate for the risk of stranded assets takes time. These tariffs must be carefully crafted to comply with state retail electricity rate standards, such as just and reasonable and non-discriminatory. Allowing any cryptomining boom to continue uncoordinated only increases the exposure of innocent, permanent residents.

The tension between the commercial cryptomining market and the rural residents of low-cost electricity towns begins a new chapter for energy justice advocates and miners. The new miners, however, find themselves on the opposite side of the scales, potentially harming residents and businesses in rural America. Local governments require regulatory tools like land use moratoria to better coordinate energy loads and protect its citizens from financial uncertainty unique to cryptocurrency rapid boom-and-bust cycles. Residents do not enjoy the same locational flexibility as these cryptomining operations nor are these cryptominers bringing significant business or jobs to the area—a large cryptomining facility can be monitored by a single employee. The division between cryptomining’s small local benefits and its high local cost will likely lead to interesting litigation as rural localities and sophisticated cryptominers attempt to navigate the crossroads of energy law, land use regulation, and emerging technologies.


Carpenter Might Unite a Divided Court

Ellen Levis, MJLST Staffer

 

In late 2010, there was a robbery at a Radio Shack in Detroit. A few days later: a stick up at a T-Mobile store. A few more months, a few more robberies – until law enforcement noticed a pattern and eventually, in April 2011, the FBI arrested four men under suspicion of violating the Hobbs Act (that is, committing robberies that affect interstate commerce.)

One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to obtain “transactional records” for each of the phone numbers, which magistrate judges granted under the Stored Communications Act. Based on this “cell-site evidence,” the government charged Timothy Carpenter with a slew of offenses. At trial, Carpenter moved to suppress the government’s cell-site evidence, which included 127 days of GPS tracking and placed his phone at 12,898 locations. The district court denied the motion to suppress; Carpenter was convicted and sentenced to 116 years in prison. The Sixth Circuit affirmed the district court’s decision when Carpenter appealed.

In November 2017, the Supreme Court heard what might be the most important privacy case of this generation. Carpenter v. United States asks the Supreme Court to consider whether the government, without a warrant, can track a person’s movement via geo-locational data beamed out by cell phone.   

Whatever they ultimately decide, the Justices seemed to present a uniquely united front in their questioning at oral arguments, with both Sonia Sotomayor and Neil Gorsuch hinting that warrantless cell-site evidence searches are incompatible with the protections promised by the Fourth Amendment.  

In United States v Jones, 132 S.Ct. 945 (2012), Sotomayor wrote a prescient concurring analysis of the challenge facing the Court as it attempts to translate the Fourth Amendment into the digital age. Sotomayor expressed doubt that “people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.” And further, she “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

In the Carpenter oral argument, Sotomayor elaborated on the claims she made in United States v Jones 132 S.Ct. 945 (2012). Similarly, throughout the Carpenter argument, Sotomayor gave concrete examples of how extensively Americans use their cellphones and how invasive cell phone tracking could become. “I know that most young people have the phones in the bed with them. . . I know people who take phones into public restrooms. They take them with them everywhere. It’s an appendage now for some people . . .Why is it okay to use the signals that phone is using from that person’s bedroom, made accessible to law enforcement without probable cause?”

Gorsuch, on the other hand, drilled down on a property-rights theory of the Fourth Amendment, questioning whether a person had a property interest in the data they created. He stated,  “it seems like [the] whole argument boils down to — if we get it from a third party we’re okay, regardless of property interest, regardless of anything else.” And he continued, “John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why isn’t this argument exactly what the framers were concerned about?”


Copyright Suit Against Rita Ora and Estate of The Notorious B.I.G. Dismissed

Kaylee Kruschke, MJLST Staffer

 

A copyright law suit brought by Abiodun Oyewole, a member of The Last Poets, against Notorious B.I.G., born Christopher Wallace (Biggie), alleging that Biggie’s 1993 song “Party and Bullshit” took parts of Oyewole’s song “When The Revolution Comes,” was dismissed March 8 by Judge Alison J. Nathan, according to Billboard.

The suit was originally filed in 2016 and was also filed against Rita Ora for her use of parts of Biggie’s “Party and Bullshit” in her song “How We Do.” The suit also listed 12 other defendants who were songwriters, producers, and music publishing companies involved with the allegedly infringing songs, according to Billboard.

Oyewole claimed that the portion of his song that was taken was the following: “But until then you know and I know n*****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party …,” according to Judge Nathan’s opinion. The lyrics to Biggie’s song at issue are the following: “Dumbing out, just me and my crew I Cause all we want to do is … I Party … and bullshit, and …” The chorus repeats the phrase “party … and bullshit, and … ” nine times, according to the opinion. The relevant lyrics in Ora’s song are: “And party and bullshit I And party and bullshit I And party and bullshit I And party, and party.” The opinion states that in addition to Oyewole claiming these lyrics were copied, Oyewole also alleges that the songs copy his sound hook.

Canoe states that Oyewole had originally planned to pursue a claim against Biggie before Biggie was murdered in 1997, and subsequently did not feel comfortable going after Biggie’s wife or mother.  But, according to Canoe, Oyewole decided to take action once Ora’s song came out in 2012.

According to Judge Nathan’s opinion, Oyewole failed to adequately serve a number of the defendants, and the ones he did adequately serve, their use fell under the fair use doctrine of copyright law.

There are four main factors the court considered when determining fair use:

 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and ( 4) the effect of the use upon the potential market for or value of the copyrighted work.

 

As for the first factor, the opinion stated that the use of Oyewole’s song by Biggie and Ora was transformative in that the purpose for the phrase “party and bullshit” in Oyewole’s song was condemnation and the purpose in the allegedly infringing songs was glorification, and this factor weighed in favor of fair use.

With the second factor, the opinion stated that Oyewole’s song was a creative work, which means that this would weigh against fair use, but the song was published, which is a fact that weighs in favor of fair use. This factor ultimately weighed in favor of fair use.

For the third factor, the opinion states that the phrase “Party and bullshit” was not essential to the message Oyewole was conveying in his song, so this favor also weighed in favor of fair use.

With the last factor, the opinion states that the songs by Ora and Biggie are not likely to “usurp” the market for Oyewole’s song because the works are so different in purpose and character and have different audiences. This factor also weighed in favor of fair use, making all four factors favoring Biggie and Ora and leading to Judge Nathan dismissing the case.

According to Billboard, the attorneys for the Estate of The Notorious B.I.G. released the following statements the day after the opinion was filed, also the 21st anniversary of Biggie’s death: “This is a well-earned victory for the Estate, and it seems like a message from Christopher to receive it on the anniversary of his passing,” said Nixon Peabody attorney Julian Petty, who represented the B.I.G. estate. “We’re honored to represent a client who is willing to fight and defend such an important legacy.”


New Data Protection Regulation in European Union Could have Global Ramifications

Kevin Cunningham, MJLST Staffer

 

For as long as the commercial web has existed, companies have monetized personal information by mining data. On May 25, however, individuals in the 28 member countries of the European Union will have the ability to opt into the data collection used by so many data companies. The General Data Protection Regulation (GDPR), agreed upon by the European Parliament and Council in April 2016, will replace Data Protection Directive 95/46/ec as the primary law regulating how companies protect personal data of individuals in the European Union. The requirements of the new GDPR aim to create more consistent protection of consumer and personal data across the European Union.

 

Publishers, banks, universities, data and technology companies, ad-tech companies, devices, and applications operating in the European Union will have to comply with the privacy and data protection requirements of the GDPR or be subject to heavy fines (up to four (4) percent of annual global revenue) and penalties. Some of the requirements include: requiring consent of subjects for data processing; anonymizing collected data to protect privacy; providing data breach notifications within 72 hours of the occurrence; safely handling the transfer of data across borders; requiring certain companies to appoint a data protection officer to oversee compliance of the Regulation. Likewise, the European Commission posted on its website that a social network platform will have to adhere to user requests to delete photos and inform search engines and other websites that used the photos that the images should be removed. This baseline set of standards for companies handling data in the EU will better protect the processing and movement of personal data.

 

Companies will have to be clear and concise about the collection and use of personally identifiable information such as name, home address, data location, or IP address. Consumers will have the right to access data that companies store about the individuals, as well as the right to correct false or inaccurate information. Moreover, the GDPR imposes stricter conditions applying to the collection of ‘sensitive data’ such as race, political affiliation, sexual orientation, and religion. The GDPR will still allow businesses to process personally identifiable information without consumer consent for legitimate business interests which include direct marketing through mail, email, or online ads. Still, companies will have to account

 

The change to European law could have global ramifications. Any company that markets goods or service to EU residents will be subject to the GDPR. Many of the giant tech companies that collect data, such as Google and Facebook, look to keep uniform systems and have either revamped or announced a change to privacy settings to be more user-friendly.


Say it to My Face: Why You Don’t Get to Use My Old LinkedIn Headshot to Promote Your Business, Even If You Took My New One

Tim Joyce, Former MJLST Editor-in-Chief

 

[This article unintentionally picks back up on a more theoretical LawSci Forum post from spring 2017 by Travis Waller.]

 

The Situation

A few weeks ago I got all “fired up” about copyright. [To figure out why that’s a terrible #dadjoke, you’ll have to read that post here.] I honestly thought I’d have time to cool down again (fire pun #2!), and let the smoke clear (TRIFECTA?!!) before getting so incensed again (ok, I’ll stop now).

Then, I opened my LinkedIn feed early last week.

Staring back was a side by side comparison of my current profile pic–a quirky, raised-eyebrow homage to the Uncle-Sam-finger-pointing “I Want You” posters of yesteryear–and the new website head-shot we had just chosen for my law firm’s website refresh–a still-relaxed but decidedly more traditional affair. [Click my name above to see my current LinkedIn pic.]

In and of itself, the juxtaposition was not terribly unpleasant. After all, these were both pictures that I had personally selected from dozens in each photo-shoot, and I was the one who chose to make the older photo my profile pic. It was the text accompanying the pictures that really got me lit up. Taking the high road here, I won’t identify the author (the photographer) or reprint the text verbatim. But the went something like,

“This* guy [*me, here] made a terrible mistake ever using the older pic. It might be appropriate for actors and comedians, but not serious lawyers. If you need help figuring out how to look like a competent professional on LinkedIn call me [the photographer] for an appointment.”

Needless to say, insulting. After all, I did enjoy a career as a professional actor pre-law school, and the picture was entirely appropriate for my purposes there.

But even more than insulting, the photographer’s LinkedIn post almost certainly illegal, for 2 reasons.

 

#1 – Copyright law says you don’t get to use other people’s pictures without their permission.

Copyright scholars of any sophistication know that the law gives the creator of an original work of authorship, among others, the right to, well, make copies. Simple, but powerful nonetheless.

An author like, say, a budding amateur photographer capturing a snarky Uncle Sam poster-inspired head-shot has as much right to control the duplication of his own images as an arguably-overpriced full time corporate head-shot “artist.” Without the original author’s permission, a copy like the one in the side-by-side comparison post violates the exclusive right to “reproduce” the work.

Now, because apparently it’s Fair Use week this week, I’ll address that elephant in the room. Our friends at the US Copyright Office note that the analysis of whether a use counts as “fair” is not generally a straightforward process. Whether a secondary user of copyrighted content falls into the fair use exception turns on a combination of four factors. But, they did describe a case where “the use of [copyrighted] celebrity images by a gossip website was not fair.”

While I’m not a celebrity by many definitions, the reasoning should hold even more for less-famous folks. You need permission to use an image that you don’t own, especially for business purposes. Which brings me to my next legal gripe…

 

#2 – Misappropriation is Not a Joke, Jim!

(Admittedly, that header link is mainly to sneak in a YouTube clip from one of my favorite shows. But still relevant!)

The second reason why this corporate photographer’s post is almost certainly illegal is that she was using my likeness for her financial gain, again without my permission.

Here in Minnesota, our common law recognizes a right to publicity. Way back in ‘95, shortly before we called him Governor The Body, pro-wrestler Jesse Ventura went to federal court because, he alleged, WWF president Vince McMahon owed him money. Turns out Ventura was giving color commentary on some wrestling matches that McMahon then sold on videotape (remember those?); Ventura argued that hadn’t been part of the negotiated arrangement, so he wanted backpay of a sort. [This is all super true, and a super surreal case to read. Ventura v. Titan Sports, Inc., 65 F.3d 725, 730 (8th Cir. 1995).]

The estate representative for another Minnesota celebrity, the late Purple One themself (i.e., Prince), played a role in getting this “right to publicity” extended posthumously. So, now you can’t misappropriate someone’s likeness for financial gain after their death, either. [This is really fun research tonight. Paisley Park Enterprises, Inc. v. Boxill, No. 17-CV-1212 (WMW/TNL), 2017 WL 4857945, at *6 (D. Minn. Oct. 26, 2017).]

The upshot is that I have a common law right to tell the new headshot photographer to knock it off, right away. And that’s just what we did, in a strongly-worded email. Not quite as imaginative as some recent cease & desist messages we’ve heard about, but it did the trick.

 

Takeaways

Pro-tip #1: If you’re going to defame a new lawyer by stealing his old headshot and misappropriating his identity to promote your photography business, probably best not to have connected with him recently so he sees the post in his LinkedIn feed.

Pro-tip #2: SO many potential copyright and individual rights issues can be cleared up with a simple phone call or email asking permission. I would gladly have discussed ahead of time the use of the old picture. I would even have suggested appropriate wording for the post that didn’t disparage my previous photographer or conspicuously omit that the old photo was for a different career. Now, though, I’m not inclined to help out at all, and will be diligently checking back to police her use of my new photos.

Pro-tip #3: If you encounter a situation like this, and can’t make lemons out of lemonade by blogging, call a knowledgeable attorney (like me!) to draft a killer C&D.

 

tl;dr

I got really heated when some lady violated copyright and right to publicity laws by taking my picture and writing less-than-flattering things about it on LinkedIn. You can’t reproduce other people’s copyrighted works without permission or fair use exception. And you can’t use other people’s likeness for your own financial gain without permission. Don’t defame a lawyer with lots of time on his hands – it’ll end badly for you.

 

Contact Me

I wrote this to blow off steam and make some terrible puns along the way, but I also really enjoy talking copyright with people. Do you have a question or comment? Contact me here.