Evan Schaeffer's Legal Underground

Parodies Buy The Dashboard Lights

by Abnu

Nobody really knows who Abnu is; an anonymous blogger over at Wordlab uses the pseudonym, which appears to be an acronym for "a brand new u" or something. Abnu writes about "naming and branding" at Wordlab, but shows a real interest in legal issues, too. We don't know if s/he's a lawyer, or not, but Abnu's written seriously about The Branding of Laws, and entertained readers with a post about the naming and branding of law firms, titled Dewey, Cheatham & Howe.

As our Guest Blogger today, Abnu brings us a post that looks at music copyright disputes from a different perspective.--Ed.

A long, long time ago, I can still remember how that music used to make me buy.

Back in the day, companies would pay big bucks for the use of much-loved songs to promote products. It was an advertising expense. Microsoft reportedly paid the Rolling Stones $10 Million for the use of "Start Me Up" to launch Windows™, and the same song was later used by Ford Motor Company.

Forget the dollars lost from consumers who freely share music files over the Internet. The latest ripoff that's burning music publishers is the so-called "fair use" of music and lyrics for commercial purposes, under the guise of parody.

Just this week, the creative animators at JibJab came under fire from the owners of the publishing rights to Woody Guthrie's song for using "This Land is Your Land" in a political parody of President George W. Bush and presidential hopeful, John Kerry. It's funny, but the music publishers aren't laughing.

"This puts a completely different spin on the song," said Kathryn Ostien, director of copyright licensing for the publisher. "The damage to the song is huge."

Is this animation simply a parody of the song, as claimed by JibJab in defense of the ensuing copyright infringement lawsuit? I think not.

Heavy thinkers from far corners of the blawgosphere have weighed in on the legal issues in this dispute. And, great legal minds with impressive credentials appear to differ.

Saturday Guest Post Update

Saturday guest posts are a new feature on the Legal Underground. Last week, David Giacalone's post "Frivolous & Bollixed," which officially kicked off the feature, received a lot of notice, like this mention from Overlawyered.com.

If you would like to be a guest-poster, the guidelines are here. All contributions are welcome, especially those from law students and non-lawyers. I'm not worried about whether your post will change the world. As I remind myself every morning, it's just a weblog.

And now, I'll stop rambling and continue with this week's guest post . . .

Weekly Report #29: Rainmaking

Looking back on the week, I think I did a fairly good job of not embarrassing myself as a lawyer in any significant way. Of course, I did continue publishing posts on this weblog, which I'm certain some lawyers would find embarrassing. And there was the fact that one of the week's two depositions was postponed, which raises the possibility that in not committing any grievous lawyerly sins, I was merely lacking in opportunities to commit them.

In any case, the week seemed more about rainmaking than serious legal work. "Rainmaking" is what the defense lawyers call it; plaintiffs' lawyers like me call it . . . well, I don't know what we call it. Schmoozing with other plaintiffs' lawyers? Hanging out? Going for beers?

On Tuesday, the rainmaking activities included a round of golf. The golf wasn't good. In fact, now that I think about it, it was when the week's quota of embarrassment occurred. Even after my good friend suggested I borrow his driver and slow down my backswing, things remained very grim.

My excuse? It was the first time I played golf this year. With any luck, it will be the last. Don't worry, though: if I'm called upon to engage in further rainmaking activities, I'll still be up for drinking beer . . .

From the Department of the Unbelievably Absurd

I like and respect Illinois doctors, but increases in their insurance premiums, which some of them blame on "trial lawyers," seem to be affecting their ability to reason. Here's an actual comment from the July 25 "Sound Off" section of the Alton Telegraph, quoted here in full:

As a local physician here in Alton, I now have a new appreciation for what the Jews must have felt like in pre-war Germany. I guess the answer is, like many of them have done, is to leave the area before we get slaughtered also.

To be kind, let's just say this doctor is way too fond of over-the-top analogies. It also makes me question whether I should continue to go to doctors here in Alton, since by the logic of the comment, at least one of them considers me a Nazi. For more about the debate about medical malpractice insurance premiums, see the "Tort 'Reform'" category, as well as "Advice to Young Lawyers #10."

Advice to Young Lawyers #13

Dear Mr. Schaeffer:

I hope you think this is a problem, because I sure do.  The senior partner of our firm, Mr. G-----, has taken to arriving at the office in shorts and an old t-shirt.  Even worse, he looks and smells like he hasn’t showered in a month.  Now I’m not a snob, but it sure gets on my nerves the way I’m expected to keep myself in expensive suits and nicely-polished shoes, while no one says a word when the senior partner arrives each morning dressed like a bum.

Actually, my problem is even worse than I’m letting on.  It just so happens that my office is next to Mr. G-----’s, and two weeks ago, he told me with great enthusiasm that he’d taken up turkey hunting as a hobby.  As he moved closer to explain, I backed up.  But Mr. G----- followed me into my office anyway.  He wanted to show me his “turkey call.”  It’s very small, but it’s also very loud.  I should know, since he’s been practicing it in the hallway in front of my office all day and night.  Meanwhile, I’ve been trying to finish a memorandum in support of a motion to dismiss that’s due in just two weeks. 

Two weeks!  With all that racket, not to mention the horrible old-man smell, I’ve been making no progress at all.  I don’t understand why no one at the law firm seems to care that a lunatic is roaming the halls.  What do you think I should do?

Signed, Desperate in Detroit

Hey, National Review: Why Not Employ a Fact-Checker?

How is it possible to debate the issue of tort reform if its advocates can't take the time to get their facts straight? Consider the following unjustified, yet typical, slam against Madison County, Illinois, from an article in the National Review. In the passage below, the author, Robert A. Sirico, recounts what a St. Louis doctor told him about what's supposedly happening here:

In Missouri, doctors' insurance premiums have escalated 150 percent in the last three years and the state has not been able to pass meaningful medical-malpractice tort reform. . . Although things are bad in St. Louis, the situation is even worse just across the Mississippi River in Madison County, Illinois. There, the doctor tells me, judicial awards in the megamillion range have attracted trial lawyers "like flies." Entire hospital departments have shut down as physicians attempt to flee to safety.

Did you get that? Judicial awards in the megamillion range. In fact, there have been only eleven medical malpractice verdicts in Madison County since 1996. Doctors won seven. In the four cases won by plaintiffs, the amounts of the verdicts were $1.78 million, $470,000, $75,000 and $25,000. For more, see here.

A Detour for Shameless Name-Dropping: Christopher Hitchens

I suppose that if you have a weblog, you can’t spend all evening with Christopher Hitchens, the political journalist and author, and not write about it. So I’m going to go ahead and write about it, since Hitchens has generated so much interest lately with his harshly negative review of Fahrenheit 9/11 in Slate.

Hitchens was passing through St. Louis and was having dinner with three friends of mine. I was a last-minute tagalong. Even so, the evening lasted about ten hours, which gave us plenty of time for conversation, most of it about the war in Iraq. There were also detours for these topics: atheism, anti-theism, Gore Vidal, Michael Moore, Fahrenheit 9/11, documentary film-making, Iraqi dissidents, and much more.

Types of Lawyers #8: The Partner Who Golfs

Shhh!  The partner-who-golfs is teeing off, and he never likes it when you chuckle during his backswing.  So you don't.  Instead, you stand quietly as he adjusts his unorthodox stance, takes two painful-looking practice swings, and then gives it all he’s got with his new Titleist Titanium 983K driver.

Oh, too bad.  The partner-who-golfs didn’t quite make it across the lake.  As he reaches into his bag for another sleeve of Top Flites, you bite your lip.  You’d like to laugh, but if you do, the partner-who-golfs is going to find a different associate to be his golfing buddy.  And which would you rather do, bill eighteen hours for the partner-who-golfs, or accompany him for eighteen holes?  The question implies an answer.  It’s why you’re willing to help him with his club selection, correct his estimates of the distance to the pin, and give him seven more mulligans than he bargained for at the beginning of the round.

“Great shot!” you tell him on the next hole.  “Those lessons are really paying off!”  See how he smiles when you compliment his swing?  Sure you’re sucking up, but who can blame you for making an old, balding lawyer feel as sprightly as Tiger Woods or as determined as Todd Hamilton?

So when the partner-who-golfs bends down to improve his lie, you look the other way.  When he taps in a two-footer for a double bogie, you applaud.  Are you being dishonest?  Perhaps, but you’re also helping your career.  And if you happen to get another golfing invitation in the process, so be it.  You made your decision as you rounded the turn: the partner-who-golfs is the partner for you.   

[Like this post? It's one of many included in my book How to Feed a Lawyer (And Other Irreverent Oberservations from the Legal Underground). Details here.]

A Legal Underground Terminology Announcement: "Trial Lawyers"

Everyone likes to call John Edwards a "trial lawyer," but the term really isn't very descriptive. What people mean is that Edwards represented plaintiffs at trial. Here at the Legal Underground, I call that kind of lawyer a "plaintiffs' lawyer." A plaintiffs' lawyer can be a trial lawyer, but so can a lawyer who represents the defendant at a trial. I call this other kind of lawyer a "civil defense lawyer."

I've touched on this terminology problem before in "The Legal Underground's Tort Reform Glossary." However, my complaints are not likely to change any minds. Although the terminology employed by the mainstream press is confusing, plaintiffs' lawyers themselves caused some of the confusion by naming one of their groups (of which I'm a member) the "Association of Trial Lawyers of America" (ATLA).

So at least until the election is over, Republicans will be using the term "trial lawyer" as a slur. What's the meaning of the slur? The answer can be found in an Associated Press article titled "Business groups trying to taint Edwards with 'trial lawyer' label," which explains that "trial lawyers" are part of a "controversial fringe of the legal profession that conducts raids on companies that not infrequently lead to larger financial gains for themselves than their individual clients."

It doesn't matter that no such "fringe of the legal profession" actually exists--some are going to act like it does, and are going to associate John Edwards with that group. For example, Professor Bainbridge has taken to referring to John Edwards as "John Trial Lawyer Edwards." Or consider what a commenter on another blog said about Edwards, hitting all the key Republican themes in a single sentence: "Senator Handsome has made millions upon millions, not by the honest delivery of goods and services in the marketplace, but by manipulating the emotions of juries so that they apply 'remedies' to 'injustices' that are far out of proportion to any actual harm that is caused."

In a slightly less coherent passage, a commenter on this weblog asked, "Is it true that John Edwards sued Doctors over the issue of Cerebral Palsey being the fault of Doctors?????? It truly is a genetic problem just like Down Syndrome and Autism. Truth is truth and getting rich on lies is disgusting. But God is our judge."

Yes, indeed.

Tort Reformers Invade the Madison County Fair

What does a visitor to the Madison County fair in Highland, Illinois, normally see? Tractor pulls, 4H projects, prize cows and chickens--that sort of thing. This year, however, an article in the St. Louis Post-Dispatch alerted readers that the fair would also include . . . yuck, tort reformers.

The article said that both the Illinois Chamber of Commerce and Illinois Lawsuit Abuse Watch (I-Law) were going to set up booths. It seemed troublesome to me, since one of the organizations' purposes is to make potential jurors skeptical about anyone who sues for an injury. So Andrea and I headed over to the fair yesterday, hoping to do some investigative work. My plan was to collect the literature the groups were distributing for my "jury selection" file. (In selecting a jury for trial, lawyers are allowed to ask questions about tort reform and the potential jurors' exposure to groups like the two at the fair.)

Our undercover work was largely uneventful, mostly because I wasn't in the mood for any Michael-Moore-style questioning. The guy staffing the Chamber of Commerce booth gave us a brochure about "Sharks in Illinois," some no-shark stickers, and a cute little rubber shark that was supposed to remind us of the dangers of "predatory trial lawyers." The neighboring I-Law booth featured large posters with information I knew to be false, but I couldn't complain because there was no one staffing the booth. I took an I-Law brochure about choosing a lawyer, which contained more false information about personal injury cases. Any unsuspecting citizens unlucky enough to use the I-Law brochure as a guide will be seriously misinformed about their rights. But maybe that's I-Law's intent. Another brochure recommended that citizens "help fight lawsuit abuse" by making sure to "serve on a jury." Do you think that anyone brainwashed by I-Law would be open-minded enough for jury service?

After getting our fill of tort reform, Andrea and I looked at some cows and ate some funnel cake. Then we returned home, where I later found myself growing quite fond of the little rubber shark. I decided to use it as a paperweight. I tested my plan on our new baby, Sam, who didn't like it--here's a photo of him, getting attacked.