Gossip can be fun, but also unlawful?

Gossip can be fun, but also unlawful?

Recently, New York Times reporter Mr. Jacob Bernstein was overheard at a party calling Mrs. Melania Trump a “hooker.” Although he subsequently apologized, the legal question is what legal liability, if any, does either he or The New York Timeshave for his statement? In these times of fast and loose media stories, the question is timely for media professionals and consumers of news.

The First Amendment does not protect all speech. One category of unprotected speech is defamation, an actionable tort. In order to prove defamation, a plaintiff must generally show that an untrue statement was communicated about him or her, that the statement was false, and that such statement injured their reputation in the community. Proof of damage can include, but is not limited to, lost sales for a business. In the case of defamation per se, however, a plaintiff need not show damage because the statement in question is considered harmful on it’s face. Examples of defamation per se generally include calling someone a “bank robber,” a “prostitute,” or both.

Of course, context matters. Where the statements are made under the guise of parody or the words, when read in context, do no mean what they would otherwise mean in isolation, then there may be a potential defense against liability. Barring such context, however, legal liability generally exists. This is true even if you republish the defamatory statement or if the statement was made by one of your employees during the course and scope of their duties to you.

That being said, it is harder to prove defamation if you are a pubic figure. In such a case, you must show that the allegedly false statement was made with actual malice, which means that the person knew the statement to be untrue, or that the person made the statement with reckless disregard of whether the statement was true or false.

Under these guidelines, Mr. Bernstein’s recent statement would be considered defamatory per se. Needless to say, truth is an absolute defense to a defamation claim, so if he could proffer admissible evidence showing his statement to be true, then there would be no liability. Whether his apology absolves him of liability is another question. Defamation law varies by state. In all likelihood, the apology wouldn’t absolve him of liability, but it would be an issue for the jury to consider in determining the amount of compensatory or punitive damages.

Whether The New York Times could be held liable for Mr. Bernstein’s statement is unclear. To be liable, Mrs. Trump would need to show that Mr. Bernstein made the statement within the course and scope of his employment. Courts use various factors to determine this question. One factual issue would be whether Mr. Bernstein was attending the party on behalf of The New York Times, or in his personal capacity. If the former, liability will be more likely. If the latter, less likely, for The New York Times.

Media professionals are under immense pressure to get views of their content, and the quick way to do that is to run salacious eye-grabbing headlines. At the same time, the First Amendment’s protections are not infinite for media professionals. Finding the right balance between offering tantalizing news and also respecting the lines of defamation is a prudent course, but one that may be at risk of attack in today’s fast food news environment.

Is your design inspired or stolen?

Is your design inspired or stolen?

Are you a crook? Jonathan Adler may consider you one when you use an edited, transformed, and artistically styled sample of his pillow design to create a custom-made wallpaper design for a client. But would he be right? These days, it is getting harder to tell, but there are still guidelines that can help you navigate the sometimes murky waters separating inspiration from infringement.

To make a custom-made wallpaper design for a client, assume you copy Mr. Adler’s black vine design that was inspired by an ancient Japanese kimono vine design, and that there are many types of this vine design in the pillow market. You then transform the vines by making them look shabby and worn out, use pink instead of black, and infuse the pink with the copies of the American flag. Imagine, then, that you combine the transformed Adler design with 9/10 other types of content from elsewhere, including a starry sky design pattern from Ralph Lauren Home to make your wallpaper.

Does your wallpaper infringe Mr. Adler’s copyright in the kimono vine inspired pillow design? Does it matter if you made up your own vine design that differed from Mr. Adler’s design, but which used his, among others, as inspiration?

The answer to these two questions depends on a number of factors. For the first question, given that you clearly copied Mr. Adler’s design, the question is whether the “fair use” defense would apply, part of which asks whether you sufficiently “transformed” Mr. Adler’s design to make it different enough from the original. The closer you get to a complete metamorphosis of Mr. Adler’s design – think the caterpillar becoming a butterfly – the safer you are. That’s because if your work and Mr. Adler’s are that different then people won’t think that Mr. Adler designed your pillow.

For the second question, you may not even need to get to the fair use defense. That only comes into play when you have actually copied another person’s expression. Because you merely used Mr. Adler’s expression of the Japanese vine design, among others in the marketplace, as inspiration to create your work, and your work differs from Mr. Adler’s, then there would in all likelihood be no infringement. That’s because copyright doesn’t protect the idea of the Japanese vine design, only Mr. Adler’s particular expression of it. Given that his expression isn’t original in the marketplace, it will most likely receive less protection than something truly off the wall – and original.

In the end, a completely original design is the best policy. That being said, designs are rarely completely original. The more your design exactly resembles another person’s work, the closer you are getting to the infringement line.

Dude, where’s my 1.2 billion?

Dude, where’s my 1.2 billion?

“Dude, where’s my car?” This was the famous question asked by the stoners in the 2000 movie called Dude, Where’s My Car?We ask the same question of Mr. Corzine: “Dude, where’s my $1.2 billion?” According to the USA Today, he recently testified that “I simply do not know where the money is” in front of Congress. Of course, this may be true. But the question is whether that will be enough to get him off the hook for civil and/or criminal claims that may arise from the downfall of MF Global.

Embezzlement is the first crime that comes to mind. In New York, there is no civil cause of action for embezzlement. But the state could bring a criminal case against Mr. Corzine if it could prove: (1) the $1.2 billion involved belonged to investors; (2) the money was converted or used for Mr. Corzine’s purposes; (3) Mr. Corzine was in a position of trust and possessed legal possession of (or access to) the money; and (4) the Mr. Corzine knowingly defrauded the owner of the property.

Of course, we don’t know the full factual picture of the situation with MF Global. But assume for the purpose of discussion that Mr. Corzine did not know where the money went, which roughly covers elements (2) and (4). Certainly some of his underlings knew. The issue in the case would then be whether their knowledge could, under the circumstances, be imputed to Mr. Corzine. After all, intent is generally a mental state that juries infer from the circumstances, since folks rarely state point blank: “now I know I am embezzling money and that what I am doing is illegal.” But it might be difficult to show that he knew or should have known what his underlings were doing, depending on how far down the totem pole they were and where the money ended up.

Regardless, it seems to run afoul of common sense that MF Global could not trace such a large amount of money as though they forgot in which parking spot they put the car at the shopping mall. Certainly, Mr. Corzine will face additional questioning from authorities. But what remains odd in the whole scenario is how they are approaching him with kid gloves. It seems if either dude in Dude, Where’s My Car? were overseeing an institution that misplaced such a large amount of money, they would likely be sitting in jail until the money was accounted for.

Forget the market research, we’ll just hire an ex-CIA agent!

Forget the market research, we’ll just hire an ex-CIA agent!

As Inc. Magazine reports in Spy Games, companies are increasingly using stealth methods used by the likes of the Central Intelligence Agency (“CIA”) to conduct research on their competitors.    While aggressive competition is good for the market, the question remains whether such tactics end up in a race to the bottom.   Rather than focusing on improving product or service quality, these companies try to out sleuth one another, only to likely find out they are hiring the same former CIA talent.

The plot seems oddly similar to the Twilight Zone episode called Mr. Denton on Doomsday.    In the episode, gunslinger Al Denton is given another chance to be a top flight slinger by salesman Henry J. Fate.   Fate offers Dent a potion that will guarantee to make Dent the fastest gunslinger in the West, but only for ten seconds.   Denton swallows the potion when has to face Pete Grant, a younger gunslinger, in a duel.   Denton is the company who hires the ex-CIA agent.  But, to Denton’s surprise, the younger Grant is holding an empty bottle of the potion.   Grant is the competitor who has also hired the same ex-CIA agent.

In the end, each man has the same potion induced ability and shoots one another in the hand. The shots disable them both for the rest of their lives.   Fate, the salesman, rides off into the sunset. Perhaps those companies in the marketplace who are keen on regularly using sleuth tactics to get the upper hand on others will find that they are being played against one another by the former CIA agents the companies hire.  These ex-agents owe no fiduciary duties to their new employers and either go to the highest bidder, or service several at the same time, just like Fate.   In the end, these companies are left no better off than where they started, and sometimes worse off due to the opportunity costs.  They have may have expended valuable resources searching for the potion, rather than finding and practicing new gunslinging techniques or, failing that, hanging up the gun for another more prosperous service market.