Tuesday, November 19, 2019

Gimme Some Lovin'

            Sometimes I am  oblivious to the battles being fought by giants in my  own backyard.  I have just  aware of a case that was disposed of in the Middle District of Tennessee involving Willa Dean Parker and the widow of Homer Banks suing, among others, Stevie Winwood, his brother, Muff Winwood (real name "Mervyn" – who knew?) and Spenser Davis over the alleged copyright infringement of the song "Ain't That a Lot of Love" by the Spenser Davis Group's "Gimme Some Lovin".  There are a number of side issues in this case, as there often are, but the facts boil down to the following:

            1.         Willa Dean Parker and Homer Banks wrote "Ain't That a Lot of Love" in 1965.

            2.         The Spenser Davis Group created "Gimme Some Lovin" on April 5, 1966, and began recording it on June 9, 1966. And released it on October 28, 1966. 

            3.         “Ain't That a Lot of Love” was first released in the United Kingdom by Homer Banks on October 7, 1966 (prior to the famous Sam and Dave version). Sam and Dave did not release their version of the song until 1968. 

            In order to prove copyright infringement of a musical composition, the burden is on the Plaintiff to prove that the Defendant had "access" to the work and that the two works are "substantially similar" enough to prove that the second work was copied from the first work.  In this case, access seemed impossible to prove, since the Sam and Dave recording had not been released in England at the time the Spenser Davis Group created their iconic song.

            It seems that Parker and Banks tried to circumvent this by proving that there was an earlier version of the song by David Porter which could have been heard in the United Kingdom.  They also tried to introduce newspaper interviews by Spencer Davis, himself, where he allegedly admitted that "Gimme Some Lovin" was based on "Ain't That A Lot of Love".  The court rejected the articles as inadmissible hearsay ("a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted").  Hence, with no proof of access , the Plaintiff's case was thrown out.  There were other fascinating aspects of the case, - like the fact that Universal Music Group was sued as a Defendant, yet it actually had partial ownership of both songs in question and, hence, could not be sued for infringement under settled copyright law.

            It's kind of a strange thing.  I listen to the famous Sam and Dave recording of "Ain't That a Lot of Love" (as well as the Webb Wilder version) and don’t hear any real similarity to "Gimme Some Lovin".  Then I listen to the Homer Banks' version and the famous riff is, in fact, nearly identical. I couldn't find the David Porter version of the song, but Taj Mahal's recording from 1968 utilizes the riff as well.  I don’t know if experts were used in this case to prove that the riff itself could have come from an earlier source, as is often the case.

            The part that I find sad is that this  battle was taking place in 2017, 51 years after the records were first released.  It reminds me of the dispute between the Estate of Randy California and Led Zeppelin over the song "Taurus".  Why didn't the writers take action when the songs were new?  In my cynical moments, I wonder if this is what has become of the music industry and that these type of lawsuits will continue until we have no surviving songwriters of the rock era, just estates suing other estates over ancient riffs. 

Wednesday, October 2, 2019

Come Together: John Lennon and Morris Levy

The 50th anniversary of the release of Abbey Road got me thinking about the most bizarre Beatles related legal battle:  John Lennon's multilayered dispute with the infamous Morris Levy.  Levy was the colorful  and shady music business kingpin whose empire included Roulette Records, the Strawberries Records chain, nightclubs and numerous other enterprises. He was eventually convicted of extortion but was able to escape prison by dying.

 Abbey Road of course starts with Lennon's composition "Come Together," which features the line, "Here come old flat top, he come grooving up slowly".  Levy's publishing company Big 7 Music sued the Beatles' publishing company and Apple Records claiming that the song infringed upon the Chuck Berry classic "You Can't Catch Me," (which contains the line "Here comes a flat top, he was moving up slowly").  Morris Levy had obtained the copyright to the Chuck Berry composition from Alan Freed.  The lawsuit was apparently prepared for trial, witnesses deposed, experts hired, etc. when Lennon and Levy arrived at an ingenious settlement of the case.  Levy would agree to drop the suit if Lennon would  record "You Can't Catch Me," along with two other Big 7 songs for his next album. 

 The idea must have seemed simple to Lennon because he was planning to make his next album a record of covers of great rock and roll songs.  Levy's catalog contained a number of such classics including Lee Dorsey's "Ya Ya" and "Angel Baby" both of which Lennon pledged to record.  Beatle fans know that nothing is simple and it didn't really happen like this.  

 In what should truly become a feature film,  Lennon began the sessions for this album "Rock and Roll" with Phil Spector and there were reports of drug and alcohol fueled drama complete with Spector firing a gun in the studio (a bit of horrific foreshadowing).  Very little was accomplished before Spector abandoned the sessions and absconded with the master tapes.  While Lennon's representatives negotiated with Spector for the return of the tapes Lennon produced an album for Harry Nilsson  and completed his own Walls and Bridges, on which he recorded a charming but insignificant version of "Ya Ya" with his son Julian.  

Apparently Lennon decided to try and salvage the Spector tapes and record additional material for the album in New York.  Because Lennon had technically breached the settlement agreement by not releasing these recordings on his "next" album Levy became a constant presence in his life, flying him, May Pang and Julian to Disney World, taking him and his band to his farm in upstate New York to rehearse and somewhere along the line Levy got the idea that Lennon had given  him the right to sell the forthcoming record through television mail order advertising ("operators are standing by") on his ADAM VII label.  The facts are befuddling and common sense would indicate to  any rational person that the Beatles' exclusive agreement with EMI would prohibit a third party from releasing  any solo Beatle recordings but Morris Levy was not any typical record company owner.  Apparently Allen  Klein is involved in the story too and may have added fuel to the fire.  Unbelievably, Morris Levy took a rough mix of the recordings which Lennon had given him, slapped an out of date 1968 photograph of Lennon on the cover and began selling Roots:  John Lennon Sings the Great Rock and Roll Hits.  This of course to led to Capitol Records rush  releasing the Rock and Roll album,  Capitol and Lennon both suing Levy and Levy suing Capitol, Lennon and everybody else he could think of.  The reporting of the trial, brilliantly captured in Stan Soocher's book Baby You're  A Rich Man:  Suing the Beatles for Fun and Profit is fascinating, showing a side to Lennon rarely captured.  At the end of it all, the trial judge ruled that Lennon had in fact breached his original settlement agreement with Levy by not releasing "Angel Baby"  (it was posthumously released) but Levy  was enjoined from distributing  Roots,  Lennon was awarded damages for Levy's damage to his reputation from releasing substandard product and Capitol Records was awarded damages for lost profits.  

The Roots album has gone on to become one of the holy grails of Beatles collecting.  Originals are hard to find although counterfeit copies are somewhat easier to locate.  


The irony of all this is that I don’t think Levy would have prevailed in his original  lawsuit. Although the statutory defense to infringement known as  fair use was not codified as a at the time of the original 1970 litigation (it was added in the Copyright Act of 1976) it was still a viable defense and one could argue that Lennon's quote of a single line from a Chuck Berry song in his  song "Come Together" was not in fact copyright infringement.  Most of the case law (at least the case law prior to the "Blurred Lines" decision and the recent Katy Perry decision) would tend to support this theory.  On the other hand, Lennon's idea to simply record a handful of Levy songs to make the lawsuit go away makes a lot of sense.  Perhaps he was also thinking about what his former band mate George Harrison was about to endure with the "My Sweet Lord/He's So Fine" litigation.  But those are different songs and different stories.  






Thursday, June 20, 2019

For Those Wondering if They're Really Married

If there was any doubt before, it's now official.  It has been a custom for years for marrying couples to ask a friend to perform the ceremony for them.  I myself performed a number of marriages by becoming a "special judge" for the day.  I think the most common method though has been for the officiant to become a Universal Life Minister, or to be "ordained" by a similar entity.

            For years, the Tennessee statute on marriage has said that marriages may be performed by "all regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than 18 years of age, having the care of souls…" and "(2) in order to solemnize the rite  of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act."

            An opinion from the Tennessee Attorney General theorized that someone who becomes a minister online cannot be doing so by a "considered deliberate and responsible act", thereby throwing the legitimacy of online officiants into question However, until  recently this wasn't an issue; county clerks did not question the authority of the person signing the marriage license and presumably the only time this issue might come up would be in a divorce proceeding (i.e. where one party would argue that there was no valid marriage). 

            The new amendment to the law adds a section stating that "persons receiving online ordination may not solemnize the right of matrimony".  The question appears to be settled although I have read that groups are attacking the new law and it will probably end up in court at some point.  

            The biggest issue that people were concerned about was the question of whether their own marriages performed by a Universal Life Minister were valid.  The law gives some certainty in this area by stating that "if a marriage has been entered into by license issued pursuant to this chapter in whichanyminister officiated before July 1, 2019, the marriage must not be invalid because the requirements…have not been met".  This should cause some relief to those people wondering if they were legally  married.

Friday, June 7, 2019

More Aretha- Holographic Wills



It seems that I spoke too soon when I wrote my blog about Aretha Franklin dying without a will.  (http://tripaldredgelaw.blogspot.com/2018/11/aretha-prince-and-simple-need-for.html). According to the New York Times she had three wills – or as the reporters described the documents "the scrawled papers which are dated between 2010 and 2014, are at times barely legible, with cross‑outs, marginal notes and some salty tangents".

Apparently two of Ms. Franklin's sons oppose entering the documents as wills in the probate proceeding.  I am not exactly sure why but it appears that in one of the documents she treated her oldest son Clarence differently than her other three children, which may or may not be because he has some sort of special needs.  The article stated that the final document  drafted in 2014 divided the estate between her children and grandchildren.  If  Franklin were to be determined to have died intestate, then the estate would be equally divided between the four sons.  Michigan (where Ms. Franklin resided at the time of her death) appears to have a holographic will statute similar to the statute we have in Tennessee – which provides that if the document is written entirelyin the testator's handwriting and signed by the testator and expresses an intent to operate as a will – it should generally be admissible.

The important point here is that a holographic will is perfectly legal but it must be written entirely in the testator's own hand (i.e. not typed and then signed) – this is a mistake many people make.  Also there must be a witness available who can identify the deceased's handwriting.

The court in Michigan is going to hold a hearing sometime this month to evaluate the new documents.  Whatever the outcome, it's nice to see that Aretha will probably have the last word. 

























Tuesday, May 28, 2019

The Virtues

On the advice of someone I greatly respect, I just finished reading Benjamin Franklin’s Autobiography. It’s a short but fascinating book which I should have read years ago, On the negative side, Franklin must have been the nation’s first self-promoter and he controlled  the media of his time. He was also a racist and something of a misogynist. On the other hand, his clarity of vision, industry and self-motivation are as compelling today as they were nearly three centuries ago. 
I was struck by the fact that Franklin conceived of “The Virtues” as a kind of blueprint for living a good life. He carefully perfected and studied this list and then tried to work on one of the items every day. In that sense, besides his other inventions, Franklin probably created the self-improvement book genre. He was the Tony Robbins of the eighteenth century. Nonetheless, I found this list rewarding and I thought that it might be an interesting exercise to reproduce it here. Thus, here are Benjamin Franklin’s virtues:
  


THE VIRTUES

            1.         Temperance

            Eat not to dullness; drink not to elevation.

            2.         Silence

            Speak not but what may benefit others or yourself; avoid trifling conversation.

            3.         Order

            Let all your things have their places; let each part of your business have its time.

            4.         Resolution

            Resolve to perform what you ought; perform without fail what you resolve.

            5.         Frugality

            Make no expense but to do good to others or yourself; i.e., waste nothing.

            6.         Industry

            Lose no time; be always employed in something useful; cut off all unnecessary actions.

            7.         Sincerity

            Use no hurtful deceit; think innocently and justly, and, if you speak, speak accordingly.

            8.         Justice

            Wrong none by doing injuries, or omitting the benefits that are your duty.

            9.         Moderation

            Avoid extremes; forbear resenting injuries so much as you think they deserve.

            10.      Cleanliness

            Tolerate no uncleanliness in bodies, clothes or habitation.

            11.      Tranquility

            Be not disturbed at trifles, or at accidents common or unavoidable.

            12.      Chastity

            Rarely use venery[1]but for health or offspring, never to dullness, weakness or injury of your own or another's peace or reputation.

            13.      Humility

            Imitate Jesus and Socrates.



[1]I had to look this one up.

Thursday, May 16, 2019

Small Claims Copyright Court

I just read that  the proposal for a Small Claims Court for copyright violations is gaining traction.  This is a bi‑partisan effort to create an entity called the Copyrights Enforcement Board which would allow a "fast track Small Claims Court for copyright owners seeking damages of up to $30,000.00" according to Digital News.

I was initially skeptical of this idea but now I think it has merit.  Not all copyright infringement cases exist on the same level as the "Blurred Lines" case.  For example, some of the copyright infringement cases I have handled include:

            1.         A photographer for who found his work done for a nonprofit agency used to advertise a radio station.

            2.         Another photographer who saw her self portrait used on a billboard.

            3.         A publisher of legal forms whose work was copied and sold by a small-time competitor.

            4.         On the defense side,  I once represented a record company owner who was sued by a music publisher for copyright infringement based on a song found on a long deleted album.  The plaintiff could only prove that onecopy of the album was available for sale and so he was awarded damages for that one copy.

Each of these cases (except for perhaps the last one) were very real and very important to the litigants but none of them could justify the cost of Federal Court litigation and really couldn't be properly handled without cutting corners, fees, etc.  It would be really useful if content creators had a lower cost way to protect their intellectual property.

I don't know all the details of the proposed Small Claims Court.  Participation is said to be voluntary – meaning that a defendant could opt out of this system and use the traditional Federal Court system.  I also don't know how the appeals process would work – would an appellant follow the usual Rules of Appellate Procedure or would one obtain a trial de novo as is the case in our Tennessee State Courts? There is additional criticism of the proposal in that it might further encourage copyright trolls. Would such a system encourage more frivolous lawsuits?

Either way I think this is an interesting idea which should be thoroughly explored

Tuesday, April 23, 2019

Termination of Assignments in Sound Recordings, Works Made for Hire and The Need For Certainty

We are all looking for certainty in a world full of chaos.  One of the resources that I often turn to for reassurance is the 1976 Copyright Act, a roadmap to  a world where everything makes sense and if it doesn't make sense, at least it has a definition.  Except for Sections 203 and 302.
 

When the Copyright Act was amended in 1976, it provided for the first time for a termination provision which allowed authors to terminate earlier assignments of their works.  This right of termination is deemed inalienable (i.e. you can’t sign it away)  except in the case of a so-called "work made for hire," in which case the employer is deemed to be the author of the work for copyright purposes.  Like all important terms "work made for hire" is specifically defined by the Copyright Act: 


        (1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation , as an instructional text , as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an instructional text is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities


Notice  that you don’t see the words “sound recordings”  in there. The big issue for years has been whether or not sound recordings can be deemed to be "works made for hire" and therefore, incapable of termination of assignment.  Every  recording agreement drafted after January 1, 1978 states that the sound recordings being assigned thereunder are, in fact, works made for hire.  But copyright practitioners have assumed that because the Copyright Act does not include sound recordings under the definition of works  made for hire, then they are no such animal.  The problem is that we have had no court decision on the issue-only anecdotal stories and rumors.  

That may be about to change. 

Recently, lawyers in New York have filed two class action lawsuits, one in which my friend, John Waite, is the lead plaintiff.  This is a suit against Universal Music Group.  There is a companion case filed against Sony which lists Southside Johnny as one of the lead plaintiffs.  In each case, the facts are similar.  The record artist sought to exercise their statutory termination rights only to be rebuffed by the record companies for a number of reasons.  

This caused the plaintiffs to seek declaratory relief from the court--  essentially asking the question "whether sound recordings can ever be considered 'works made for hire' as that term is defined by the Copyright Act because the definition set forth in Section 101 of the Copyright Act does not include sound recordings as being one of the types of works that can be a work made for hire."   and “whether the release of sound recordings that were created by a particular recording artist in "album" form, as is typical in the musical industry, constitutes a contribution to a collective work-or creates a "compilation" as that term is used in Section 101 of the Copyright Act, thereby transforming these sound recordings into "works make for hire".  

There are several important issues poised by these lawsuits but these are the most important.  I don't know the status of these cases but they appear to have major implications for the United States recording industry (it being understood that this is a function of U.S. Law and has no real application to the rest of the world).  I look forward to having a little more certainty and clarity on the issue regardless of the outcome.  

Friday, March 29, 2019

Clash Over Clash Cash

One is always running into the bizarre intersections of entertainment law and other areas of the law but here is a case I didn't know about.  Despite the fact that the Clash were one of my favorite bands ever (seeing them live in 1980 was life-changing) I did not know much about their history past the time they kicked Mick Jones out of the group. 

 Apparently sometime after the famous Bernie Rhodes quit managing the band, Paul Simonon's wife Tricia Ronane began to manage the group's affairs.  When the couple's divorce was resolved in 2010, she was awarded a 50 percent interest in Cut Throat Productions, Ltd., a company which controlled all of Simonon's Clash income.  Ms. Ronane recently went to court in London seeking permission to sell her interest in the venture to a British investment firm.  One of Ms. Ronane's major issues was that her ex-husband won't communicate with her – which could in fact make it difficult to co-manage whatever assets they jointly own and control.  

 It appears that the issue before the court was whether or not the divorce settlement allowed either party to sell their respective interest in the company – and the court concluded that such a sale was "inconsistent and incompatible" with the terms of the divorce settlement.

 These types of disputes arise all the time within closely held family businesses – be they involved with real estate, retail stores or the royalties fromLondon Calling and Sandinista. One can understand why the former band members would not want outsiders involved in their business dealings and it is ironic to think of British investment  bankers having a say in the Clash's business affairs. On the other hand, one can sympathize with Ms. Ronane; its usually impossible for former spouses to continue to work together running a business. It would be interesting to see the actual language contained in the divorce settlement agreement or to know what day-to-day responsibility Ms. Ronane and Mr. Simonon had to deal with within the Clash organization.  It would also be interesting to know what Joe Strummer would have to say about all of this.

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.