Thursday, March 14, 2019

A Release is a release is a release

I recently read an interesting article about the politicians and public figures who were lining up to sue Sacha Baron Cohen, the chameleon-like satirist behind "Da Ali G Show," "Borat," "Bruno," and recently "Who is America?"  Infamous political figures like Roy Moore, Sarah Palin and Dana Rohrbacher have either sued Cohen or  have threatened to sue him as a result of pranks he has pulled on them (from getting them to play with sex toys to having them advocate for the arming of small children).  As lawyers, we know that much of what Cohen does is protected by the First Amendment and that public figures have a higher bar than ordinary people in order to try to prove libel or slander.  However, Cohen's real safeguard is that according to an article in the New York Timeshe gets his "victims" to sign releases – acknowledging that they are agreeing to appear by their own free will.

As anyone who has ever read a release for a reality TV show or one of the myriad of competition shows can tell you, these documents are as comprehensive and exhaustive and usually give the producers the unbridled right to ridicule the participants and to show them in any type of light they wish.  These release documents exist in order to protect the producers and networks from liability;  they are an important part of the production process, and they are generally always effective.  Good filmmakers get releases from everybody and for everything. I am not sure what theory one can put forth to set aside a release, other than fraud.

  I was in court once representing a defendant who had been sued by a former business associate despite the fact that they had earlier settled this dispute and executed a complete mutual release.  The judge seemed to wonder why we were there and then dismissed the case saying "a release is a release is a release". I am not sure why politicians especially seem to get offended by satirical attacks after they have adopted polarizing opinions to try and get themselves elected.  But given the President's recent attacks on the First Amendment and at least one Supreme Court justice's apparent belief that our libel laws are without history or legal precedent, this is something we need to watch very carefully. In the interim, always get a release!

Tuesday, March 5, 2019

A Discourse on FUCT

The Supreme Court is hearing a number of interesting cases this term – not the least of which is the clothing manufacturer FUCT's case against the United States Patent and Trademark Office for its refusal to allow trademark registration of the mark FUCT (which is said to stand for "Friends You Can't Trust").  

  
I am pretty sure that I did some legal work back in the 1980s for a band called F.U.C.T .and I am glad they didn't ask me to try and register their trademark at that time.
  
 The current dispute has its roots in a federal law which has been on the books for over 100 years which allows the USPTO to refuse registration to marks which are "immoral, deceptive, or scandalous". The question appears to be whether or not this statute conflicts with the First Amendment.  Traditional understanding of trademark law was disturbed by the 2017 decision in Matal v. Tam which allowed trademark registration for the group name "The Slants", a case which according to the New York Times also effectively allowed registration for the Washington Redskins' previously vilified trademark).  It's actually kind of amazing to see examples of marks that have been allowed registration.  As every trademark practitioner knows dealing with the examiners at the Patent and Trademark Office and the attorneys at the Trademark Trial and Appeal Board can often be unpredictable.  The reality though is that society is probably evolved to the point where the majority of people would not find the trademark "FUCT" as offensive as they might have in the 1980s.  I am still trying to figure out  those French Connection United Kingdom jackets. This will be an interesting case to watch.  

Thursday, February 28, 2019

Clarence Thomas, Donald Trump and New York Times v. Sullivan

Like so many Americans, I constantly find myself troubled by the current administration and its seemingly daily assault on our values.  However, I am usually confident that this is just an aberration and that the ship of state will ultimately right itself.  I don't spend a lot of time expressing my political opinions but this gave me a chill.   

In a concurring opinion this week Justice Clarence Thomas appears to advocate overturning New York Times v. Sullivan.  This landmark 1964 case held that in order for public figures to prevail in a libel case they must prove that a statement made against them was false, that it damaged their reputation and that the statements were made with actual malice (knowledge that the statements were false or made in reckless disregard for the truth).  New York Times v. Sullivan effectively ended the practice of politicians and other people in power using threats to stop the press from doing its job and citizens from seeking the truth.  

Freedom of the press is such a bedrock piece of American democracy that it is actually shocking to me that the concept can be questioned in 2019.  Most public figures and journalists working today have spent their entire careers understanding this principle.  Why then is Clarence Thomas taking issue with it?  He apparently believes that there is nothing in the First Amendment that should  limit the authority of individual states to protect the reputation of their citizens through designing their own libel and defamation laws.  Thomas states in his concurring opinion, "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified."  Thomas is flat out wrong.  Justice Brennan's opinion in New York Times v. Sullivanpainstakingly examines the precedent which allowed the justices to determine that many states' libel laws ran afoul of the First Amendment in  an opinion which went back to the writings of Madison and Jefferson.  

What is really terrifying about Thomas' remarks are that they come at the same time that President Trump tweets about wanting to sue theNew York Timesand the Washington Post"and win money" or complains that the government needs to get involved because he can't stand a satirical piece on Saturday Night Live.  These are really scary times and it is often comforting to take instruction from the past. All Americans should read the court's opinion in New York Times and Sullivan, especially its citation of Justice Brandeis' concurring opinion in Whitney v. Californiawherein he wrote

            Those who won our independence believed. . . that public discussion is a political duty, and that this should be a fundamental principle of the American government.  They recognized the risks to which all human institutions are subject.  But they knew that order cannot be secured merely through fear of punishment for its infractions; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law. . the argument of force in its worst form.  Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. 

I will take Brandeis over Clarence Thomas any day.  




Thursday, November 15, 2018

Aretha, Prince and the Simple Need for Estate Planning

I was not especially surprised to learn that Aretha Franklin died without a will. It's becoming a common occurrence and  I sort of expected the Queen of Soul to live forever .I bet she did too.  I knew that Aretha was divorced and had four sons, all adults – so the division of her assets seemed straightforward to me.  But then I read that one of her sons might have special needs and that Ms. Franklin had a long-term companion whom she apparently made no provision for.  
 
I hate to say it  but this is irresponsible.  An artist like Aretha Franklin, with a sizable estate and a royalty income stream that will carry on for years should have had an estate plan – at the very least a simple will and a special needs trust if one was warranted.  As the New York Timesnoted , she could have set up a revocable trust, avoided the probate process and accomplished an ideal distribution of her property.  I have been reading a great deal about the Prince estate – he also died without a will – and it seems like his income is going to  lawyers and the IRS instead of his heirs (perhaps not having a surviving spouse or a living child he didn't care – who knows?). 

I am constantly preaching the need for estate planning and this is especially true for artists, songwriters, princes and queens.  Don’t put this stuff off. 

Monday, November 5, 2018

Gratitude

To My Clients:

I wanted to thank you for your continued support as I enter my 35th year of practicing law. I still remember driving down to the Board of Law Examiners on Church Street with my friend Ken Levitan  when they used to post the names of those who passed the Bar Exam  on a certain October day.  I think we were both a little surprised and very relieved. This is a very different business than the one I entered back in 1983 but I continue to be intrigued by the practice and the opportunity to be of service to my clients.

As a way of trying to show gratitude for the past thirty five  years of practice, I am offering  a complimentary document review for any of my clients who might want to review older contracts such as old record deals or  publishing agreements, licenses, trademarks – you name it.   If you were wondering what an agreement meant but didn’t  want to spend the money to find out—this is your opportunity. If this is of interest to you, just let me know.

Saturday, November 3, 2018

Bitcoin, blockchain and Is Code Law?

I probably  know  less than my dog about bitcoin and block chain technology.  Like Nick Paumgarten says in his recent New Yorkerarticle, "The Stuff Dreams are Made Of," "I'd ideally hoped I might be just old enough to make it to my deathbed without having to get up to speed."  But I really did want to try and understand blockchain technology and what the hell  everybody else in the world seemed to comprehend except me. For a primer, I read Paumgarten's article.  He does a good job of explaining the concepts and the players involved. 

However, the most interesting part of the article to me was his description of something called the Decentralized Autonomous Organization, defined as "A crowd sourced venture fund, a way of using smart contracts to cut out traditional venture capitalists, reduce fees, and give access to regular civilians who contribute 'ether' (i.e. cryptocurrency) and vote on which projects to invest in."  The author tells us that within weeks of launching,  the site was hacked and that investors lost their money - it simply vanished (literally into the ether). 

This set up an ethical debate: could or should the people behind the fund reverse the transactions to restore the investors to their funds - or would this be "a violation of the principle that blocks must remain immutable?" In the terrestrial  world this would be an obvious crime. 

Then the article gets really interesting:

            We were all wondering is code law?  What is code?  What is law? What is the covenant?    It was almost epistemological.  We were a bunch of computer geeks way out of our       depth.  

I thought about this for hours.  We really are witnessing the creation of a whole new society and a new set of laws to govern that society.  This is a world that exists without traditional concepts of jurisdiction.  It is easy to lump this into a discussion of the internet, social media , Russian hackers and all of the other inventions that have morphed into something we could not have comprehended.  But I really believe that this might be the beginning of something entirely unique and it does give us an opportunity to watch laws develop.

However, I still don’t get the allure of bitcoin. 

Wednesday, September 26, 2018

Happy Birthday Blog

Today marks  the 10th Anniversary of my little blog. I have had a lot of fun researching and writing these posts over the past decade and I have had some really interesting interactions as a result of the blog. I do feel that  I have neglected the blog
recently due to the demands of my practice and life events but I intend to remedy that. I have a bunch of things that I want to write about.

Anyway..thanks for reading!

Trip Aldredge


Sawnie R. Aldredge
Aldredge Law
P.O. Box 120713
Nashville, Tennessee 37212


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