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The Atlantic Mackerel Plight: Roadblocks to Prevent Overfishing

Yvie Yao, MJLST Staffer

Atlantic mackerel, like sardines and herring, are small forage fish. Not only are they vital prey for seabirds and larger fish like bluefin tuna and cod, but also essential for the survival of ocean wildlife.

Although Atlantic mackerel are resilient to fishing pressure and bycatch risk, scientists announced this year that fishing activities along the coast have added too much pressure to the population of mackerel. That being said, Atlantic mackerel is overfished. On February 28, 2018, the federal government, unsurprisingly, declared that the catching cap for mackerel had been reached and the mackerel fishing season was officially closed for the rest of this year.

To prevent overfishing of a species, the Magnuson-Stevens Fishery Conservation and Management Act requires that local fish councils create a rebuilding plan as soon as possible, not to exceed 10 years. Conservative practices endorse setting a shorter rebuilding timeline with lower catch levels so that the species can recover as quickly as possible. Setting longer timelines with higher catch levels is risky. The species might be commercially inviable sooner than the projection and the council is less likely to reach its goal of rebuilding the under-stocked population. Moreover, low stock of the species is likely to negatively impact healthy and sustainable living of its predators in the ocean system.

The Magnuson-Stevens Act has been effective since it was first passed in 1976. Two amendments in 1996 and 2006 furthered the interest of fishery conservation, requiring local councils to place all overfished stocks on strict rebuilding timelines and mandate hard limits on total catches. These science-based provisions have recovered 44 fish stocks around the country and have generated $208 billion in sales in 2015 for fishermen.

However, this effective ocean fishery conservation law is facing challenges. On July 11, 2018, the House passed H.R. 200: Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act. The bill, if it becomes law, would change rules about requirements to rebuild overfished stocks and allow councils to consider changes in an ecosystem and the economic needs of the fishing communities when establishing annual catch limits.

Recreational fishing and boating industry groups vehemently support this bill. They argue that the proposed changes would give alternatives to local councils to manage fish stocks, save taxpayers money, and modernize the management of recreational fishing.

Environmentalists and commercial fishermen oppose this bill. They argue that the proposed bill would let local councils rehabilitate them as fast as practicable, rather than rebuilding stocks as fast as possible, leading to looser regulation. The bill would also remove annual catch limits for short-lived species and ecosystem-component species, where forage fish including Atlantic Mackerel fall into the category. This backtrack from science-based policy would further delay restocking of forage fish and might even drive some species to commercial extinction.

It is unknown whether H.R. 200 will be passed in the Senate. Another companion bill S.1520, Modernizing Recreational Fisheries Management Act of 2017, envisions the same goal as H.R. 200. Will we be able to eat Atlantic Mackerel in the next ten years? The answer is uncertain. Regardless, the vote against such bill is a chance to “affirm that science, sustainability, and conservation guide the management of our ocean fisheries.”


California’s Sport Venue Boom: A Weakening of CEQA?

By: Gabe Branco, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

The Los Angeles Rams, Sacramento Kings, Golden State Warriors, Los Angeles Clippers, and Oakland A’s are all seeking to build new stadiums in compliance with the California Environmental Quality Act (“CEQA”). CEQA subjects public and private agencies to a process focused on determining any significant environmental impact the proposed project may have and whether any suitable alternatives exist that may mitigate those significant impacts. The process takes some time, as the agency must complete several environmental impact reports (“EIR”), allow for adequate public notice and comment, and provide a period of time for environmental based claims to be litigated.

The Golden State Warriors have been successful in their CEQA process, but have been subjected to high costs in preparing the EIRs and combating lawsuits from environmental groups. The Los Angeles Rams have taken a different approach. CEQA allows for agencies to file for project “statutory exemptions” in order to cut down on the lengthy procedural process. One exemption of CEQA is the voter-sponsored ballot initiatives. In California, it is the right of the people to make changes to the law through these initiatives, which have the same effect as legislation. Land use decisions are subject to these initiatives, and thus projects that are approved through the initiative are not subject to CEQA. The Los Angeles Rams collected signatures from 15% of the population in Inglewood to qualify the development project for special election. The development project was then supposed to be placed on the ballot initiative, but the Inglewood City Council unanimously approved the project. The Los Angeles Rams do not need to complete an EIR, provide time for notice and comment, and are shielded from litigation. The Los Angeles Clippers, Sacramento Kings, and Oakland A’s have received or are in the process of receiving legislative exemptions with varying CEQA procedures somewhere in between the Golden State Warriors’ and the Los Angeles Rams’ processes. While the afore-mentioned franchises must still complete an EIR, they have considerably reduced (or eliminated) litigation and notice and comment periods.

The question becomes whether these exemptions given so willingly to sports teams weaken CEQA’s ability to force agencies to be more considerate of a project’s environmental impacts and alternatives. Sport stadiums do have a significant impact on the environment. Shortening or doing away with judicial review and notice and comment limits the number of alternatives an agency could be made aware of and limits public recourse for legitimate claims, leading to a less than efficient plan for limiting significant environmental impacts.

So far, the courts have held that past projects with CEQA exemptions do not conflict with CEQA’s purpose. Saltonstall v. City of Sacramento, 234 Cal.App.4th 449 (2015). The rationale may well be rooted in the desire for the Courts to limit the amount of environmental litigation on the Court’s docket, and push through stadium projects that may vitalize a California city’s economy. While state legislators have introduced a bill that would prevent future sports teams from gaining the exemption the Los Angeles Rams received, teams may still limit the procedures enforced by CEQA through legislative exemptions. Clearly, that as long as sports have a strong economic foothold in American culture, sports stadiums will continue to be built at the expense of the environment.


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.

 


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.


Health in the Fast Lane: FDA’s Effort to Streamline Digital Health Technology Approval

Alex Eschenroeder, MJLST Staffer

 

The U.S. Food and Drug Administration (FDA) is testing out a fast-track approval program to see if it can accommodate the pace of innovation in the technology industry and encourage more ventures into the digital health technology space. Dr. Scott Gottlieb M.D., Commissioner of the FDA, announced the fast-track pilot program—officially named the “Pre-Cert for Software Pilot Program” (Program)—on July 27, 2017. Last week, the FDA announced the names of the nine companies it selected out of more than 100 applicants to participate in the Program. Companies that made it onto the participant list include tech giants such as Apple and Samsung, as well as Verily Life Sciences—a subsidiary of Alphabet, Inc. The FDA also listed smaller startups, indicating that it intends to learn from entities at various stages of development.

The FDA idea that attracted applicants from across the technology industry to the Program is roughly analogous to the TSA Pre-Check Program. With TSA Pre-Check certification, travelers at airports get exclusive access to less intensive pre-boarding security procedures because they submitted to an official background check (among other requirements) well before their trip. Here, the FDA Program completes extensive vetting of participating technology companies well before they bring a specific digital health technology product to market. As Dr. Gottlieb explained in the July Program announcement, “Our new, voluntary pilot program will enable us to develop a tailored approach toward this technology by looking first at the . . . developer, rather than primarily at the product (as we currently do for traditional medical products).” If the FDA determines through its review that a company meets necessary quality standards, it can pre-certify the company. A pre-certified company would then need to submit less information to the FDA “than is currently required before marketing a new digital health tool.” The FDA even proposed the possibility of a pre-certified company skipping pre-market review for certain products, as long as the company immediately started collecting post-market data for FDA to confirm safety and effectiveness.

While “digital health technology” does not have a simple definition, a recently announced Apple initiative illustrates what the term can mean and how the FDA Program could encourage its innovation. Specifically, Apple recently announced plans to undertake a Heart Study in collaboration with Stanford Medicine. Through this study, researchers will use “data from Apple Watch to identify irregular heart rhythms, including those from potentially serious heart conditions like atrial fibrillation.” Positive research results could encourage Apple, which “wants the Watch to be able to detect common heart conditions such as atrial fibrillation”, to move further into FDA regulated territory. Indeed, Apple has been working with the FDA, aside from the Program, to organize the Heart Study. This is a critical development, as Apple has intentionally limited Watch sensors to “fitness trackers and heart rate monitors” to avoid FDA regulation to date. If Apple receives pre-certification through the Program, it could issue updates to a sophisticated heart monitoring app or issue an entirely different diagnostic app with little or no FDA pre-market review. This dynamic would encourage Apple, and companies like it, to innovate in digital health technology and create increasingly sophisticated tools to protect consumer health.


Scents: The Unconventional Potential for Trademarks

Amber Peterson, MJLST Staffer

Trademarks are intended to create an immediate brand recognition in the consumer’s mind. Consumers who are satisfied with a product must have a way to easily distinguish it from nearly identical or similar products from competitors. Thus, trademarks play a powerful role in branding and marketing as seen in the Nike “swoosh” and the Target bullseye. These traditional marks or logos are what are typically thought of when thinking about trademarks. However, unconventional trademarks such as the catch phrase “Hasta la Vista Baby” from the film, “The Terminator” and the red color of Christian Louboutin soles can be just as effective to identify a product or service.

The key requirement is distinctiveness. If a product can be thought of as inherently distinctive, it can be trademarked. Thus, the United States Patent and Trademark Office allows the trademarking of a scent since scent is distinctive in that it is deeply tied to memory recognition. Although this option is available, few have accomplished the task since the Patent and Trademark Office has put strict boundaries around what smells qualify.

First, the scent must serve no important practical function other than to help identify and distinguish the brand. This means that those smells whose only purpose is smell-related, such as perfumes and air fresheners, cannot receive scent trademark protection. Second, a detailed written description of the non-visual mark is required to complete the registration process. The problem with scents is the subjective nature of them. The perception of smell can be very different among a number of noses and is thus open to interpretation. This creates difficulty in successfully representing the scent graphically which is required to determine whether something is or is not appropriate for a trademark.

To date, there are only about 12 scent trademarks in the United States (e.g., the flowery musk smell in Verizon Wireless stores and the pina colada scent that a ukulele company scents its ukuleles with). As evidenced, the process of registering a scent can be challenging. However, there are marketing advantages that may make it worthwhile if the product or service resonates more deeply with a consumer compared to a typical visual mark or logo trademark.


Fore! Golf Ball Fragments Found in Frozen Hash Browns

By Guest Blogger Tommy Tobin

While golfing at the local links may be a popular pastime for many Americans, consumers don’t expect that golf balls will appear alongside their sausage links on the breakfast plate.

In one of the most unusual food recalls in recent memory, consumers in multiple states are warned that their frozen hash browns may contain golf ball fragments. According to the voluntary recall notice, the potatoes used for these products may have inadvertently been harvested with golf balls.

As hard as the idea may be to swallow, consumption of golf balls or their fragments is not advisable. Golf balls aren’t even a good source of iron as they’re made of resin and rubber. McCain Foods USA warns that consumption of golf ball fragments “may pose a choking hazard or other physical injury to the mouth.”

The affected products were distributed after January 19, 2017 with the production code date B170119. They were sold in two pound bags of Southern Style frozen hash browns under two different labels: Roundy’s and Harris Teeter. The Roundy’s-branded products were shipped to multiple supermarket chains in Illinois and Wisconsin. The Harris Teeter brand “Southern Style” products were shipped to Delaware, Florida, Georgia, Virginia, North Carolina, South Carolina, Maryland, and the District of Columbia.

The recall notice urges consumers in possession of the affected product “not to consume them” and directs consumers to either throw the product away or return it to the store of purchase. No injuries have yet been reported with regard to this recall.

As the Washington Post recently noted, people enjoy hash browns in numerous different ways, with chefs and home cooks each “adding their own special ingredients, although never golf balls.”


The Best Process for the Best Evidence

Mary Riverso, MJLST Staffer

Social networking sites are now an integral part of American society. Almost everyone and everything has a profile, typically on multiple platforms. And people like to use them. Companies like having direct contact with their customers, media outlets like having access to viewer opinions, and people like to document their personal lives.

However, as the use of social-networking continues to increase in scope, the information placed in the public sphere is playing an increasingly centralized role in investigations and litigation. Many police departments conduct regular surveillance of public social media posts in their communities because these sites have become conduits for crimes and other wrongful behavior. As a result, litigants increasingly seek to offer records of statements made on social media sites as evidence. So how exactly can content from social media be used as evidence? Ira Robbins explores this issue in her article Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence. The main hurdle is one of reliability. In order to be admitted as evidence, the source of information must be authentic so that a fact-finder may rely on the source and ultimately its content as trustworthy and accurate. However, social media sites are particularly susceptible to forgery, hacking, and alterations. Without a confession, it is often difficult to determine who is the actual author responsible for posting the content.

Courts grapple with this issue – some allow social media evidence only when the record establishes distinctive characteristics of the particular website under Federal Rule of Evidence 901(b)(4), other courts believe authentication is a relatively low bar and as long as the witness testifies to the process by which the record was obtained, then it is ultimately for the jury to determine the credibility of the content. But is that fair? If evidence is supposed to assist the fact-finder in “ascertaining the truth and securing a just determination,” should it not be of utmost importance to determine the author of the content? Is not a main purpose of authentication to attribute the content to the proper author? Social media records may well be the best evidence against a defendant, but without an authorship-centric approach, the current path to their admissibility may not yet be the best process.


Dastardly Dementor Dad Dupes Daughter

Tim Joyce, Editor-in-Chief, Volume 18

Between last week’s midterm exams and next week’s Halloween shenanigans, the Forum proudly presents some light-hearted and seasonally-appropriate issue spotting. In this week’s issue: Drone Dementors!

This story has been going around recently, of a Wisconsin man who pranked his daughter hard by retrofitting his unmanned aircraft (aka, a “drone”) with fishing line and some well-positioned strips of black cloth (video here). Apparently she’s a big fan of the Harry Potter books and films, and so we’re sure she recognized it immediately as a real-life incarnation of the soul-sucking guardians of the Wizard prison known as Dementors. Undoubtedly, the fact that it was hovering around her backyard elicited some kind of hilarious reaction. Twitter (*strong language alert*) is still guffawing, but we’re pretty sure not everyone would instantly have recognized this as a joke.

While it’s at least arguable that this flight complies with many/most of the FAA’s recently finalized drone regs, let’s take a moment to examine some more creative theories of potential liability behind this prankster parent’s aerial antics:

  1. Negligent Infliction of Emotional Distress. First, let’s admit that there are probably much more effective ways to punish your dad for scaring you than a lawsuit. But, for an exceedingly litigious daughter of average sensitivities, the argument could be made that dad should have known better. In other words, Cardozo’s proximate cause “foreseeability” analysis from Palsgraf rears its ugly complicated head once again! We’ll admit that the eggshell plaintiff argument might provide a decent defense for pops, but it sure seems risky to wait until after the claim to invoke it.
  1. Intentional Infliction of Emotional Distress. See above, except now dad knows what he’s doing. To the extent that it’s sometimes harder to prove intent than negligence, a plaintiff might want to avoid this particular type of claim. On the other hand, an intentional actor is definitely a less sympathetic defendant, and particularly so if the jury is full of those darned Harry Potter-loving Millenials. Of course they’ll have time to serve jury duty, what with all that free time gained from “choosing to” live at home, and their generally lax work ethic.
  1. Copyright Infringement. Trademark infringement doesn’t apply when you’re not using the good in commerce. But Section 106 of the Copyright Act gives an exclusive right to control derivative works. This drone-decoration does look an awful lot like the movies, and it’s pretty clear that no one affirmatively granted permission to use the characters in real life. Given the rightsholders’ propensity to vigorously protect the brand / expression, dad would be wise to cool it on the backyard joyrides. On the other hand, he could probably make some kind of fair use argument, arguing something along the lines of “transformative use” — again, much simpler to avoid the issue altogether.
  1. Some crazy-attenuated products liability claim. You can imagine a situation where the drone clips the tree, or the puppet gets tangled in the branches, and then spirals out of control, injuring a bystander. Should the drone manufacturer then be liable? Extending the chain of causation out to the drone assembly factory seems a bit tenuous, but should strict liability apply nonetheless? Does this situation violate the FAA’s prohibition on “careless or reckless operations” or “carriage of hazardous materials?” Should that fact make a difference?

Everyone with half a brain seems to agree that this is just a really great one-time use scenario. But there are real issues to consider with this, as with any, new technology. Plaintiffs may have to get creative when arguing for liability, at least until courts take judicial notice of the power of a Patronus Charm. From those of us here at MJLST, have a fun and safe Halloween!