Minnesota Website Battle Breeds Copyright Question

Claiming a copyright and suing for copyright infringement are two different things.  As I’ve stated in my Copyright Q&A, a writer, photographer, or website creator owns a copyright in the article, picture, or online content is written, taken, or designed.

Going to court to seek money for copyright infringement, though, requires complying with copyright “registration” requirements.  Problem is, the law is unclear on whether a copyright is “registered” at the time the copyright claimant sends in the application, or at the time the copyright certification is in hand.  Last week, St. Paul-based federal judge Donovan Frank confronted that very question — in some ways a dry one that only a lawyer could love, but in other ways a highly important question given that creative content on the internet continues to proliferate.

At issue in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc. are websites that the telemarketing firms maintain.  The lawsuit is about whether one firm illegally copied the website of the other.  Judge Frank explained that the Eighth Circuit Court of Appeals (which issues decisions governing Minnesota-based federal courts) had not decided the issue.  However, he ruled that the court likely would come down on the side of the “broader approach” — the approach suggesting that as long as the registration check is in the mail, a lawsuit may be maintained.

Federal courts are split on whether Judge Frank was right.  Eventually, the issue might end up in the Supreme Court.  We’ll see.

“Press” vs. Public: Does It Matter? Yes, In The Minnesota House

A showdown is brewing between the Minnesota House of Representatives and nontraditional media regarding who gets to record House proceedings.  And if this goes to court, the case could be groundbreaking for helping to determine who is the “press” and who is the “public,” and does it (or should it) really matter anymore?

Here’s the deal.  The House is assigning authority to its “Sergeant At Arms” to determine who gets to make audio and video recordings anywhere our elected House members do “business.”  This would include not only the House chamber, but also committee rooms, and arguably, I would think, “press conferences” and anyplace an elected House member shows her or his face.

A copy of the “application” is here.  Predicably, it requires applicants to identify their employer, whether they’re a member of a recognized journalism group or association, and the “long-term nature of your assignment.”  In other words, it licenses existing and largely “mainstream” media.  Also, stunningly, it imposes a prior restraint by banning applicants from “videotaping audience members.”

The reason behind all this?  For the “safety and security of all.”  Really?  How in the world does restricting audio and video recordings in a publicly accessible place affect safety and security?

The current and evolving generation of citizens journalists are understandably going nuts over this.  My buddy Jason Barnett at The UpTake is helping to lead the charge.  He talked about it on Channel 4 recently, but at a time when most Minnesotans are either in church, at brunch, or sleeping in.  (Channel 4 video here.)

Consume The UpTake’s coverage and read their take on the issue here.  They’re right on point.

So what precisely are our elected representatives scared of?  It is not at all clear, and the purported concerns over “safety” and “security” are wholly speculative.  Warning: Time and time again, courts have invalidated laws based on speculative fears when, as here, freedom of expression is at issue.

This appears to be yet another attempt by Minnesota officials to restrain expression in the name of keeping order and upholding morals.  These were the reasons behind our Legislature’s nineteenth century ban on newspapers publishing true details of public executions, its World War I-era laws targeted at anti-war protesters, and the horrible Public Nuisance Law of 1925 that authorized the state to shut down “nuisance” newspapers.  Amazingly, it was the Public Nuisance Law and the Minnesota Supreme Court’s refusal to invalidate it that finally led the United States Supreme Court to say in Near v. Minnesota that enough was enough, that the First Amendment applied not only to the federal government but also to the states.

Think our state is a place where everyone is above average when it comes to free expression?  Think again.  Near v. Minnesota is the reason why we have freedom of expression (not just freedom of the press) from coast to coast.  In the words of a Lutheran confirmation student, this is most certainly true.

Is Minnesota on the cusp of another legal revolution, one that would be expensive for state taxpayers?  Stay tuned.

Grassley Mowed Down

All right, so Charles Grassley is not from Minnesota, but he is from our neighbor to our south, and he’s a lawmaker who’s in the media spotlight today.  So I’m bending the Media Law Minnesota rules just a touch to blog on this week’s uproar over the Iowan’s comment that AIG executives might want to consider suicide.

If you haven’t heard, this is what the senator said on the air at WMT Radio in Cedar Rapids, Iowa:

The first thing that would make me feel a little bit better towards them if they’d follow the Japanese model and come before the American people and take that deep bow and say I’m sorry, and then either do one of two things — resign, or go commit suicide.

(Real audio here.)

Look, Chuck Grassley is not a dumb guy, but that was really, really dumb.

As a cub newspaper reporter in Iowa, I covered the good senator many times and was among the Iowa reporters who used to occassionally tape radio interviews with him.  Usually the interviews took place by phone.  I’d be in Iowa, and Grassley in Washington.  He was smart enough to ask whether any news had happened during the time he was in a committee meeting or on the Senate floor, just to make sure we reporters with access to the newswires would not ambush him with a question and make him sound dumb on the air.

This week, of course, Grassley sounded dumb all by himself, and it was his own fault.  But he’s loved in Iowa, and he’ll survive.  And, to be honest, he probably should.

But will we survive?  Will we news consumers survive the furor and the flaps over these quick-hit, gotcha sound bytes that permeate today’s news?  I have my fears.

In the grand scheme of things, Grassley’s comment was a non-event.  These are serious times, and we as news consumers are getting seriously distracted by stuff like this that succeeds only in diverting our collective attention away from the complicated issues that cannot and should not be captured in sound bytes.

Meanwhile, yet another newspaper bit the dust today — this one in Seattle.  Some folks say it’s about time.  But many of us are hungering for places where we can get our daily fix of stuff that matters.  With stories like the Grassley flap filling the blogs and airwaves, it’s getting harder and harder.

Famous Dave’s Not Grilled in Sign Dispute

This month federal judge Donovan Frank dismissed a copyright lawsuit brought by the guy who designed much of the decor and signs for the fairly famous Famous Dave’s restaurants that began in the Twin Cities and now are nationwide.  The lawsuit helps show how “intellectual property” such as copyrights are not your run-of-the-mill property, and the recent ruling is Exhibit A for why a creative person who is hired to create something for a business should retain a lawyer.

The creative person here, Allen Thomsen, was hired by Famous Dave himself (Dave Anderson) after Anderson showed Allen the concept for his first restaurant.  This was in 1995.  The restaurant was to be in the Linden Hills neighborhood of Minneapolis.   The concept, now familiar to pretty much every Minnesotan, featured an interior with the look and feel of a “typical roadside BBQ shack” with “collectible Americana antiques.”  Thompsen prepared initial drawings and then designed the decor and signage for the “shack” theme, and Anderson hired him — not necessarily for his design work, but to paint signs for the Linden Hills restaurant.

By October 2001, Anderson had opened three dozen restaurants and Thomsen had pained signs for about 20 of them.  One thing led to another and Thomsen ended up claiming copyright ownership in lots of Famous Dave’s designs and signs.  Anderson and Thomsen settled the dispute by a document in which Thomsen agreed to “release” his design and sign work to Famous Dave’s, apparently for $15,000 plus attorney’s fees.

In this more recent lawsuit, Thomsen claimed that the “release” was not an “assignment.”  In other words, his argument was that although he agreed not to seek a copyright ownership interest in the designs and signs, he did not transfer ownership to Famous Dave’s.  Judge Frank disagreed and ruled that by signing the release, Thomsen abandoned his ownership interest, and Famous Dave’s owns it all.

This is a toughie.  As I explain in my Q&A on the left side of the page, “a copyright is a property right, similar to your right to own land, to sell a car, or to give your neighbor permission to use your lawn mower.”  So if I lend you my lawn mower and then agree not to seek an ownership interest in it, have I transferred it to you?  According to the law of “abandonment” that comes to us by way of Jolly Ol’ England, the answer is yes.  Under our common law, someone must own a lawnmower.  If it had been mine, and you have it, and I tell you I don’t want it, it’s yours.  Possession, as they say, really is nine-tenths of the law.

The trouble is, copyright law sometimes involves the other tenth because under the law someone need not own everything.  As I explain to the left, no one owns the visual depiction of the Mona Lisa.  It is in the public domain.  And under our copyright law, a creative person has the ability to “transfer” a work into the public domain for everyone to use and no one to own.

Interesting case …

An Encouraging SLAPP

On Tuesday, the Minnesota Court of Appeals released a decision affirming that when someone speaks with an intention to change the way government operates, the law will try to protect the speech even if it borders on being defamatory.

The case arose in Marshall County in southwestern Minnesota where a resident whose land was “taken” by a governmental “Watershed District” sued but then settled the lawsuit.  The settlement required the landowner and the District to “endeavor to establish a positive and collaborative relationship” with each other.  A year later, the District sued the landowner alleging that he had breached the agreement by interfering with funding, making statements with intent to harm the project, and filing requests for public documents.

The landowner sought to have the lawsuit dismissed and wisely cited Minnesota’s “anti-SLAPP” statute, a little-known and little-used provision that requires courts to dismiss lawsuits involving “lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action.  SLAPP stands for “Strategic Lawsuits Against Public Participation.”  Anti-SLAPP statutes generally work to ensure that ideas freely flow when the ideas involve government.  California has led the way in fighting against lawsuits of this type, and in 1994 Minnesota’s anti-SLAPP statute took effect.

But barely anyone knows the law is on the books.

In Marshall County, the trial court let the lawsuit go forward, but on Tuesday the Minnesota Court of Appeals held that the trial court had to dismiss the case unless the District could demonstrate by “clear and convincing evidence” that the anti-SLAPP provision did not apply.

It remains to be seen whether the governmental entity can and will be able to do that.  In the meantime, though, the Court of Appeals has provided an important reminder that when one speaks out against government, the law should — and will — offer protection.

Look For The Union Label

Are you a union member thinking about suing your boss for writing up a false report about you?  Good luck.  Write your congressman.

 

This month, the Minnesota Court of Appeals just made it extremely more difficult for employees who are covered by collective bargaining agreements to sue over job-performance reviews, even if the review contains something false.

 

The case arose at Bethesda Hospital in St. Paul, where a registered nurse got a written warning based on a patient’s complaint that the nurse had failed to administer a prescription drug to a patient.  But it turns out that she had given the drug.  Also,aA month earlier, the nurse had received a verbal warning after a patient accused her of being “short, abrupt, nasty and sharp.”  According to the nurse, that patient was well-known for making false complaints, and she filed a union grievance.

 

She also went to court, alleging that the Director of Nursing had defamed her.  A trial court threw out the case, and earlier this month the appeals court agreed that the dismissal was proper.  The reason?  Because a federal law, the Labor Management Relations Act, “preempts” state defamation law when—get ready—the “defamation claim is substantially dependent on the interpretation of a provision of the CBA.”  If it’s not “substantially dependent,” then you can sue under state defamation law, saith the appeals court.

 

Hmm.  This is a toughie.  The Labor Management Relations Act dates to the mid-1940s, and it generally aims to govern relations between union and management nationwide.  Makes sense.  But the federalization of our law is running rampant, something that our nation’s founders would find disturbing.  I am quite confident in saying that early American leaders never dreamed that that an employee could not go to local court to use her boss for defamation.

 

But times change, and so does the law, and so does the nation.

What’s In A Name?

It’s a story that no news editor can resist.

Two Iowans were caught having sex in a Metrodome restroom on Saturday as an intoxicated crowd egged them on and –gasp! – as their significant others stayed in the stands to watch football.  At least, those were the accusations, according to newspaper reports.  Name a better story in the last week!

Speaking of names …

The Star Tribune’s version of the story identified by name the Iowans who had been charged — but not convicted — of a misdemeanor.  The Pioneer Press’ story did not.  Funny, during my earlier years at the Pioneer Press, it was the other way around.  It was our newspaper that had a policy of publishing arrestees’ names, except when we didn’t.  And it was the newspaper across the river that had a policy of not publishing arrestees’ names, except when they did.

Mainstream Media always has struggled with this issue and has never been consistent.  The law is clear:  As long as a newspaper, TV station, or blog for that matter obtains information lawfully, it may publish it.  But should they?  And should there be policies — consistently followed policies — that guide whether to identify people who are arrested but who have not yet been convicted of a crime?

The problem is, even with a rule, there is always an exception.  For example, if a newspaper has credible information that identifying an arrested person in print would put someone’s life in danger, obviously the newspaper will not publish it.  Conversely, if, oh, I don’t know, an Idaho senator is charged but not yet convicted of a crime, obviously a newspaper will publish the name.  And it should.

There is no easy solution, but all media can help address this problem by making it absolutely clear in crime stories what it means to be charged with a crime (i.e., “indicted”) and what it means to be convicted of a crime (i.e., found guilty beyond a reasonable doubt).  And then, in an ideal world, reporters and editors should follow up on stories when an arrested person is exonerated.

For what it’s worth, the Metrodome story is now “moving on the wires” — in other words, is being distributed by the Associated Press.  The Des Moines Register, for one, published that version of the story, which has elicited nearly 100 reader comments.

Don’t Bank On Defamation Law To Help

This week the Eighth Circuit Court of Appeals released a decision demonstrating how tough it can be to invoke defamation law when the person alleging defamation was the one who asked for the allegedly false information in the first place.

The federal case from Minnesota involved a loan dispute between a small business and one of Minnesota’s largest banks.  Court cases were pending in both Hennepin and Ramsey County courts, one involving an alleged $35,000 loan default and the other involved alleged bank overdraft charges.  The business defended against and settled the first lawsuit involving the loan.  But the business did not defend against the second suit involving the overdraft charges, which prompted the bank to seek a default judgment and to begin garnishing the business’ other bank accounts.

Then, in reponse to the business owner’s request, the bank sent a fax suggesting that the $35,000 loan was unpaid.  The business owner filed a defamation case containing a variety of allegations, including that the fax contained false information that was communicated to potential investors and caused the business to lose $4.2 million in profits

The Eighth Circuit rejected the defamation claims one by one.  Most importantly, the court concluded that the fax was “absolutely privileged”–in other words, it could not provide a basis for a defamation claim even if the information was false–because the business owner had consented to it being sent.

Judging From Campaign, Little To Worry About

Nonlawyer friends in Ramsey County have been asking me about what to look for in the unusual race for a county judgeship.  The race is unusual because judges usually step down in a way that permits the governor to fill vacancies, and then the appointee then gets to stand for election as an incumbent (usually unopposed).  That did not happen this year, so Gail Chang Bohr and Howard Orenstein are squaring off for a single seat on the Ramsey County bench.

I have read some profiles and examined the candidates’ campaign materials, and from my perspective we cannot go wrong.  Bohr’s web site and Orenstein’s web site make it clear that while the candidates come from vastly different legal backgrounds, both are qualified and would bring much (but different things) to the judiciary.

Last week, the Pioneer Press published a nicely done profile on the candidates, and what struck me in the piece and in the candidates’ campaign materials is the degree to which both have taken the high road, a welcome respite from the nastiness that has permeated the U.S. Senate race and some of the presidential race.

In my mind, this race has alleviated fears from the fallout of the decision in Republican Party v. White, where in 2002 the United States Supreme Court wielded the First Amendment to invalidate a Minnesota rule that kept judicial candidates from stating their views.  As Justice Scalia made clear in his classic, hard-to-disagree-with style, Minnesota is free to keep electing judges, but it may not keep candidates “from discussing what the elections are about.”

Things could get nasty in the future, of course, and an attempt is under way to get rid of judicial elections as we know them.  For now, let’s hope that others follow the lead of (Judge?) Bohr and (Judge?) Orenstein.

Free Elections and (Sort Of) Free Speech

Think free elections leave room for absolute freedom of speech in Minnesota?  Think again.

Yesterday I mentioned Chapter 211B of Minnesota Statutes and encouraged anyone who cares about free speech to take a look.  A look will reveal that the statutes, most of which date to 1988, impose a variety of restrictions on who can say what in various “campaign materials.”  Dear blog reader, the statutes are in dire need of a tuneup.  Read on.

The very first section of Chapter 211B contains a definition that is oh so, well, 1988.  The section defines “campaign material” as “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, except for news items or editorial comments by the news media.”  So the restrictions apply to yard signs, brochures, direct mailings, podcasts, and probably my blog and others with a thousand times more readers, but not the Duluth News Tribune or KARE-TV.

Another stale exception is in section 211B.06, which makes it a crime to intentionally prepare or disseminate campaign materials known to be false unless you happen to be a “person or organization whose sole act is, in the normal course of their business, the printing, manufacturing, or dissemination of the false information.”  Printing?  Really?

And then there’s this one, in section 211B.11: “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”  My guess is that the violators will number in the thousands on Tuesday.  Maybe the tens of thousands.  Break out the bread and water, because according to section 211B.16:  “A county attorney may prosecute any violation of this chapter.”

Just last year the Minnesota Court of Appeals upheld parts of Chapter 211B under the First Amendment on the theory that, in the court’s words, “the liberty of speech is not an absolute right” and that “a state’s police power permits a state to punish an abuse of the freedom of speech.”  The authority for those statements was the landmark case of Near v. Minnesota, one of the most important free-speech cases from all time.  Trouble is, the case is a landmark because it marked the first time ever that the United States Supreme Court struck down a state law — a Minnesota law – that restricted speech.

Near v. Minnesota does not provide support for a law that makes it a crime to wear a button at a polling place.  Anything but.  And it is time for the Minnesota Legislature to recognize that voters are not reliant on Big Media anymore.

Chapter 211B says these signs (on my block) can be up from August 1 until 10 days after the election. But after that, the City of St. Paul could order that they come down. (Photo by Steven P. Aggergaard)