The iconic “Raising the Flag at Ground Zero” photo of firemen raising an American flag on September 11, 2001, which appeared on the cover of The Record newspaper and other newspapers on September 12, is at the heart of a lawsuit filed in Federal District Court in New York. The Complaint, filed by the owner of the copyright in the photograph, claims copyright infringement and false designation of origin for the unauthorized reproduction of portions of the photograph on the website for Sarah Palin’sfederally registered political action committee, www.sarahpac.com, and on her Facebook page,www.facebook.com/sarahpalin.
The suit claims that the photograph is being used by Palin and the other Defendants to raise money for her political action committee. The PAC website solicits and accepts financial contributions from supporters and accepts requests for Sarah Palin to make paid appearances at events, including media and campaign events, and Palin’s Facebook page provides links to this website. The owner of the copyright in the photograph also alleges that the use of the photo falsely designates the origin of the photograph and that its appearance on the PAC website and Palin’s Facebook page is likely to cause confusion mistake or deception as to the source or ownership of the photograph, falsely representing that Palin or the PAC owns the copyright when they do not.
Defendants have responded to the Complaint by moving to dismiss it on grounds of improper venue, failure to state a viable claim for false designation of origin, and fair use of the copyrighted photograph. Defendants’ content that their alleged “commercial use” is no different from the conduct of Google in its Google Books Project, which was recently held by the same court in which suit was filed to favor a finding of fair use despite Google’s general commercial focus. They argue further that since the photograph in question is “an iconic depiction of a compelling and unforgettable historic moment” that there is a public interest and demand for such newsworthy photographs, making its reproduction a fair use. As to the remaining fair use factors, it is argued that the cropped and altered version of the original photograph was used only “to provide a visual context for the accompanying text” conveying the message that the day should not be forgotten, and that the use has had no effect on the market for or value of the photograph itself.
Palin is not the first politician to be sued for copyright infringement in connection with political activities. As we have reported to you in the past, politicians in recent and not so recent campaigns have also been brought to task for the unauthorized use of copyrighted works.
It remains to be seen how this issue will be decided, and we will report back to you with all further developments.
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On Nov. 26, 2013, U.S. Supreme Court announced that it will review two cases in which for-profit employers challenged the application of the contraceptive mandate under the Patient Protection and Affordable Care Act. The cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialites Corp. v. Sebelius.
Both employers say that their religious beliefs bar them from providing employees with drugs or other items that they consider abortifacients. These employers argue that the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act protects their religious beliefs and therefore bars the application of the contraceptive mandate. In contrast, the government argues that for-profit corporations cannot exercise religion and therefore have no protection from the mandate.
At present, the federal courts of appeal are deeply divided on this issue. Three circuits—the Seventh, Tenth, and D.C. Circuits—have upheld challenges to the mandate, while two circuits—the Third and the Sixth—have rejected these challenges. The most recent decision came from the Seventh Circuit in Korte v. Sebelius, Case No. 12-3841, and Grote v. Sebelius, Case No. 13-1077. The court’s ruling, issued Nov. 8, 2013, held that the Religious Freedom Restoration Act barred the application of the mandate to closely held, for-profit corporations when the mandate substantially burdened the religious-exercise rights of the business owners and their companies.
The Supreme Court will likely hear oral argument in the consolidated Hobby Lobby andConestoga case in March 2014. The decision is expected to decide whether—and to what extent—for-profit corporations have a right to exercise religion. Many commentators see parallels between this case and the Citizens United case in which the Court held that corporations had a First Amendment right to make certain political expenditures. If the Court finds that corporations also have religious rights, it could have significant impact on the application of other laws—including the Title VII, the ADA, the FMLA, etc. For example, could a religious employer object to providing FMLA leave for an employee to care for a same-sex spouse, even in a state that recognizes same-sex unions? Keep an eye on this case—it could have far-reaching consequences.
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Because of the significant financial impact of the Sept. 11, 2001 terrorist attacks, Congress created the Federal Terrorism Risk Insurance Act (TRIA). Its purpose is to provide a financial backstop to the insurance industry that would cap losses in the event of another large-scale terrorist event. TRIA was initially set to expire at the end of 2005, but it has been extended twice and is now set to expire Dec. 31, 2014.
When most people think of TRIA, they think of property insurance. Without TRIA, many high-profile properties would be difficult to insure in the commercial marketplace. However, TRIA also plays an important role in workers’ compensation coverage, and its pending expiration is already impacting some renewals.
Workers’ compensation insurers are particularly concerned about large accumulations of employees in small areas, also known as employee concentrations. When carriers model employee accumulations, they not only look at a single employer’s concentrations, but also their aggregate accumulation exposure for all their policyholders in a particular zip code or city and in some cases across multiple correlated lines of business. Because workers’ compensation underwriters are required to provide terrorism coverage by law, the only way to limit their exposure is to reduce the amount of capacity they offer.
If TRIA is allowed to expire or is modified significantly, employers in certain cities and industries with large employee concentrations will likely experience capacity shortages. In fact, the uncertainty around TRIA’s reauthorization is already leading some workers’ compensation carriers to decline or non-renew risks in certain geographical areas, or ask for large rate increases. The healthcare, public entity, higher education, and financial sectors are particularly affected by employee concentration issues at the moment.
To mitigate the impact of TRIA’s uncertainty, employers should differentiate their risk. Since both insurers and reinsurers use catastrophic models to estimate their loss potentials, it is critical that employers provide the highest quality of exposure data to help distinguish their risk profiles from their peers.
Additionally, companies with multiple shifts or those that operate in a campus setting should make sure to report both the total number of employees and the number of employees working during peak shifts—as well as the actual buildings where the employees are located. The number of employees working during peak shifts is the actual exposure to a terrorist event, not the total number of employees. Also, companies with a large percentage of their workforce in the field or telecommuting, rather than in the office where their payroll is assigned, should give this information to insurers. Providing very detailed information can help overcome some potential pitfalls of the catastrophic models and better reflect an employer’s exposure to catastrophic losses.
Employers with a large concentration of workers, especially those in major metropolitan areas, should be prepared to provide the following information to underwriters:
As we move into 2014 without Congressional action on TRIA, the reaction of the marketplace is expected to become more pronounced. It is imperative that employers prepare to address the concentration issues with their carriers. This will help lessen the impact of these concerns and position employers to receive optimal terms on their risk management programs.
Mark Walls contributed this article.
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Risk and Insurance Management Society, Inc. (RIMS)
Judge Brian F. Holeman of the D.C. Superior Court issued an omnibus order this week denying summary judgment in lawsuits against a number of D.C. grocery stores, including Safeway and Giant, paving the way for a consumer to proceed to trial on claims that the stores sold inferior quality olive oil falsely labeled as “extra virgin.” The consumer, Mr. Dean Mostofi, brought the suits as a “private attorney general” under the District’s consumer protection law.
Extra virgin olive oil is the purest and highest quality of olive oil. In order to qualify as extra virgin, olive oil must have certain chemical and sensory properties and must be free of all defects and chemical processing. The lawsuits allege that Defendants sold inferior grades of olive oil as “extra virgin.” The olives oil brands in question include Carapelli, Filippo Berio, Pompeian, Bertolli, and Safeway Select.
Testing performed by the UC Davis Olive Center in 2010 and 2011 found that a large percentage of “extra virgin” olive oil sold by those brands was actually not “extra virgin.” In addition, Mr. Mostofi employed taste-testing “panels” of olive oil experts in both California and Australia to test bottles of olive oil he purchased in D.C. Those panels—as well as an Australian chemical laboratory—indicated that some olive oil sold in D.C. under those brand names is also not truly extra virgin.
In denying summary judgment to the Defendants, the Court found that (1) expert testimony could support a finding that the oils are not, in fact, extra virgin; (2) testing on bottles other than those purchased by the Plaintiff could be considered at trial; (3) selling olive oil falsely labeled as “extra virgin” could violate a reasonable consumer’s expectation; and (4) testing performed by UC Davis and Mr. Mostofi’s expert was sufficient evidence to allow the claims on behalf of the general public to proceed to trial.
Counsel for Plaintiff, Hassan Zavareei, said, “This is a huge victory in a hard-fought battle against entrenched interests determined to prevent our case from going to trial. We are gratified that we will have an opportunity to put an end to this fraudulent food mislabeling in the District of Columbia. D.C. consumers have a right to get what they pay for.”
To read the omnibus order denying summary judgement, click here.
To read the omnibus order denying the exclusion of expert testimony, click here.
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The National Law Review is pleased to bring you information about the upcoming Litigating Asbestos Cases in Today’s Environment, Featuring Insights from the Bench: The Judicial Perspective.
When:
Thursday, December 12, 2013
Where
The Princeton Club of New York
15 West 43rd Street
New York, NY
Perrin Conferences, renowned leader in joint plaintiff/defendant litigation conferences is the host of this program. The Judicial Roundtable features insights from Six New York State Supreme Court Judges. Perrin Conferences offers complimentary registrations for in-house counsel and insurance company professionals. They also offer discounted registrations for law firms who send multiple attendees.
I think we can all agree that building long-term, meaningful and influential relationships is foundational to a successful legal practice. People don’t hire law firms; they hire an attorney. The more people you connect with, the more opportunities you have to build meaningful relationships, and the more potential clients you can generate.
With over 225 million members in over 200 countries, LinkedIn has quickly become THE ‘go to’ business-to-business directory and the most popular social networking platform dedicated to professional business development.
Here are some of the top tips from attorneys who have used LinkedIn to their advantage and know they have gained new clients from its smart use:
1. Complete Your Profile! You must commit to do this. You can’t ever hope to get the benefits without this. Put in as much information about yourself as you can. Use the same keywords and phrases prospects would use to search for an attorney in your practice area on Google.
Sometimes just where you went to college or law school can drive business or referrals to your firm. I know plenty of attorneys who have generated referrals because they went to the same school as someone else on LinkedIn, or grew up in the same hometown. Creating a shared reality with a prospect can be a powerful step toward acquiring their business. Also, certain applications with LinkedIn require that your profile be at least 50 – 75% complete in order to benefit from them.
2. Upload A Photo. Don’t be shy here. Don’t think about whether it’s right or wrong, just do it. A profile with no picture is a bad thing. LinkedIn is a social network for business professionals so your photo should convey that. Stay away from the photo of you on the golf course or holding a glass of wine. If you don’t have a professional headshot, they are available from any photography business for a nominal fee.
3. Use The Headline Below Your Profile To Make People Want to Know More.
When you set up your profile, LinkedIn uses your name, title or position as your headline, but you can edit this to make it more powerful. Try to think of your headline as your professional tagline. You have the opportunity to describe the type of attorney you are and the type of work you are currently doing. Do not make the mistake of listing more than two areas of law here, as you want to appear as a specialist. Specialists generate more referrals than generalists. Remember the phrase, “jack of all trades, master of none!”
4. Use The “Sharebox” Often. If you want to see the social power of LinkedIn, this is where you will find it. This area of LinkedIn allows you to add a brief update of what you are doing, any new professional certifications you have received, interesting cases or any other information you feel comfortable sharing. This is not a ‘chat’ site; it is for information that is professionally relevant.
In tomorrow’s post, I will share 5 more tips for leveraging LinkedIn to build your client and referral base.
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Since the state and federal health exchange marketplaces went live on October 1, 2013, approximately 106,185 people have either selected health plans or fully signed up and paid for coverage through these markets. The first official reporting of these numbers from the Administration comes after weeks of congressional and public frustration and scrutiny over significant problems with the federal enrollment website, HealthCare.gov. Original goals for enrollment extended into the millions by spring 2014, but in the weeks leading up to today’s announcement, the Administration sought to significantly lower expectations while promising to fix the enrollment website and help people obtain coverage.
The announcement came on the heels of a politically contentious four and a half hour hearing by the House Oversight and Government Reform Committee on challenges with the HealthCare.gov website. During the hearing, White House Chief Technology Officer Todd Park testified before the committee and could not commit to the Administration having the website problems fixed by November 30, a promise other top Administration officials have been making since Health and Human Services (HHS) Secretary Kathleen Sebelius testified before Congress last month.
Enrollment levels within the exchanges are significant because low enrollment means that next year’s premiums will be higher, as costs are spread across a much smaller pool of individuals and individuals who have enrolled are more likely to be high utilizers of health care services. Unless enrollment significantly increases by the March 31st deadline for open enrollment, one of the hallmark issues of the Obama Administration may fail to reach its goal of providing affordable health care to millions of uninsured Americans.
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On Monday, I provided details about the Ehling case wherein an employee had made an inappropriate Facebook post and, unbeknownst to her, had that Facebook post sent to her manager by a Facebook “friend” and coworker.
When the plaintiff, Ehling, was suspended from her hospital job because of the post, she sued in federal court alleging a violation of her rights under the SCA. The District Court found that non-public Facebook wall posts are protected by the SCA. A key factor in the Court’s ruling was that Ehling had configured her privacy settings so that her posts were only viewable by her Facebook friends.
Despite this protection, the Court held that the hospital was not liable because one of the SCA’s exceptions applied. Specifically, the exception was conduct authorized “(1) by the person or entity providing a wire or electronic communication service; [or] (2) by a user of that service with respect to a communication of or intended for that user.” Because Ehling had “friended” her coworker, giving him access to her Facebook wall, and the coworker had provided management with the posting without any solicitation, the exception applied.
If the hospital had asked the paramedic for the information or to keep them apprised of a fellow employee’s online activity, it would have led to a SCA violation. The access would be unauthorized.
The lesson learned from Ehling is that employers should be cautious when presented with an employee’s social media account material by another employee. While the posts may warrant some kind of action being taken against the subject employee, if the information is solicited or requested by the employer, it could lead to a federal violation.
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