Federal Judges violate Bob Dylan's copyrights?
Hmmm .... will these Federal Judges be sued for violating
Bob Dylan's copyrights?
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Judges hand down the law with help from Bob Dylan
By Carol J. Williams, Times Staff Writer
May 9, 2011
On summer nights in the mid-1960s, while black-and-white television crackled elsewhere in his Staten Island home with news of Southern violence and Vietnam, Bobby Lasnik would stretch out in his bedroom to let the righteous soundtrack of the civil rights movement waft into his impressionable teenage soul.
Tuned in to WBAI-FM, coming across the water from Manhattan, he heard baleful laments about injustice that he would carry with him for a lifetime.
"Suddenly there was someone speaking a certain kind of truth to you. You'd say, 'Wow! That's something I'm not used to hearing on the radio, something that moved me,'" Lasnik said of the first time he heard the lyrics of Bob Dylan. "I don't even remember which song it was, but I loved the imagery, the words you wouldn't think about putting together and the concepts that would emerge in your mind when you heard them."
Now the imagery flows in the other direction. U.S. District Judge Robert S. Lasnik — Your Honor, not Bobby — has been known to invoke the voice of the vagabond poet in rulings from the federal bench in Seattle. He has recited lines from "Chimes of Freedom" in a case weighing the legality of indefinite detention and "The Times They Are A-Changin'," the battle cry of the civil rights movement, in a landmark ruling that excluding contraceptives from an employer's prescription drug plan constitutes sex discrimination.
Lasnik isn't alone in weaving Dylan's protest-era pathos into contemporary legal discourse.
No musician's lyrics are more often cited than Dylan's in court opinions and briefs, say legal experts who have chronicled the artist's influence on today's legal community. From U.S. Supreme Court rulings to law school courses, Dylan's words are used to convey messages about the law and courts gone astray.
His signature protest songs, "Blowin' in the Wind" and "The Times They Are a-Changin'," gave voice and vocabulary to the antiwar and civil rights marches. His most powerful ballads, "The Lonesome Death of Hattie Carroll" and "Hurricane," have become models for legal storytelling and using music to make a point.
Dylan's music and values have imprinted themselves on the justice system because his songs were the score playing during the formative years of the judges and lawyers now populating the nation's courthouses, colleges and blue-chip law firms, says Michael Perlin, a New York Law School professor who has used Dylan lyrics as titles for at least 50 published law journal articles.
Perlin and others lured to the law by the moral siren songs of the 1960s credit Dylan with roles in passage of the 1964 Civil Rights Act, federal sentencing guidelines that purport to ensure more equitable prison terms and due process reforms prohibiting racial profiling.
"Everyone wants to believe that the music they listen to says something about who they are," says Alex Long, a University of Texas law professor who has researched the penetration of political songwriting into the legal system.
"Being a judge is a pretty cloistered existence, having to crank out these opinions in isolation. Dylan was popular at the time they were coming of age and trying to figure out who they were," says Long, a 41-year-old exposed to Dylan's musings as a child at the foot of his parents' record player. "The chance to throw in a line from your favorite artist is tempting, a chance to let your freak flag fly."
During a semester in 2007, Long combed legal databases to identify lyrics in court filings and scholarly publications, finding Dylan cited 186 times, far outpacing the rest of the top 10: the Beatles, 74; Bruce Springsteen, 69; Paul Simon, 59; Woody Guthrie, 43; the Rolling Stones, 39; the Grateful Dead, 32; Simon & Garfunkel, 30; Joni Mitchell, 28; and R.E.M., 27.
And it doesn't end with musicians. In apparent efforts to add rhetorical flourish to their rulings, judges have also often cited famous writers and humorists. In a U.S. Court of Federal Claims ruling last year, Judge Francis M. Allegra lamented the perplexity of the 1982 Tax Equity and Fiscal Responsibility Act, writing that it "is the sort of law that brings to mind the old Mark Twain line: 'The more you explain it, the more I don't understand it.'"
But to date, it is the songs of the 1960s that seem to have the judges' ears.
One oft-cited line comes from Dylan's first top 10 hit, which half a dozen California appellate court rulings have included to convey that expert testimony is unnecessary to make a point obvious to any layman.
You don't need a weatherman
To know which way the wind blows.
— "Subterranean Homesick Blues"
Georgetown Law School Professor Abbe Smith describes Dylan's "Hattie Carroll" as "an almost perfect ballad, a little bit of story and a little bit of lecture." It mocks the injustice of a six-month jail sentence given a wealthy Maryland socialite, William Zantziger, for the 1963 beating death of black barmaid Hattie Carroll for being too slow to bring his drink.
Devoted Dylan fans now teaching law have incorporated into their curricula that ballad and "Hurricane," the story of boxer Rubin "Hurricane" Carter's murder trial in Paterson, N.J., as models from which aspiring trial lawyers can hone their craft.
The traffic stop during which the Paterson police found shell casings linking Carter to a triple murder should have led to exclusion of the evidence because the police had no "reasonable suspicion" of a crime having been committed when they stopped him, said Allison Connelly, a University of Kentucky law professor and former public defender.
His trial is a textbook example for young attorneys on the value of digging for evidence and challenging the authorities' side of the story, Connelly said. She asks her students to draw on Dylan's lyrical account of the case to identify flaws in the prosecution's theory, find witnesses and set up parallel time lines to create an alibi for the defendant.
All of Rubin's cards were marked in advance
The trial was a pig-circus he never had a chance
—"Hurricane"
The song tells a story of racist cops, a crooked judge and a biased jury that sent Carter to prison for two life sentences. A federal judge ultimately overturned Carter's conviction, saying the prosecution had been "based on an appeal to racism rather than reason."
Dylan's portrayal of the case as a frame-up may have influenced the enactment or enforcement of laws prohibiting traffic stops without cause and barring prosecutors from dismissing jurors because of their race, Connelly speculates.
In one of his first important cases after being named to the federal bench by President Clinton in 1998, Lasnik quoted Dylan's "Chimes of Freedom" to evoke the artist's sympathy for the downtrodden and mistreated. The case centered on a challenge by deportable undocumented immigrants who had been detained for years.
We ducked inside the doorway, thunder crashing
As majestic bells of bolts struck shadows in the sounds
Seeming to be the chimes of freedom flashing
Flashing for the warriors whose strength is not to fight
Flashing for the refugees on the unarmed road of flight
An' for each an' ev'ry underdog soldier in the night
An' we gazed upon the chimes of freedom flashing.
—"Chimes of Freedom"
But while judges like Lasnik, 60, pay homage to Dylan, the respect doesn't appear mutual, notes David Zornow, a partner at the New York office of Skadden, Arps, Slate, Meagher & Flom.
"This is a guy who doesn't have a lot good to say about judges," says Zornow, who in the voluminous archive of the artist's lyrics found only two references to judges that cast them as caring and professional. Most refer to corruption and caprice.
Like a suspect invoking his right to remain silent, Dylan declined through his spokesman Larry Jenkins to talk about his role as legal muse.
Dylan's lyrics are often identified with the left, but the two citations in U.S. Supreme Court rulings were made by conservatives. Chief Justice John Roberts Jr. ruled in 2008 that billing firms hired by payphone operators didn't have standing to sue because they had no claim on the money they collected, slightly misquoting Dylan with his comment: "When you got nothing, you got nothing to lose."
The lyrics:
When you ain't got nothing, you've got nothing to lose.
—"Like a Rolling Stone"
Last year, Justice Antonin Scalia brought up Dylan when he scolded his high court colleagues for declining to rule yet on the evolving question of when employees have an expectation of privacy in using company email, arguing that " 'The times they are a-changin'' is a feeble excuse for disregard of duty."
Lasnik, who has also quoted Paul Simon's line from "The Boxer" about willful ignorance — "A man hears what he wants to hear and disregards the rest" — feigns distress at the justices' emulating of his habit of referencing Dylan.
"When Chief Justice Roberts quoted Dylan, I thought, 'Oh, no!'" said Lasnik. "Now it's not cool anymore."
carol.williams@latimes.com
Victor Whitmill wants a commission everytime Mike Tyson face is photographed?
Are copyrights and patents a "Libertarian" thing.
I don't think so.
Say I invent a hamburger. I grind up a bunch of
meat, make it into a patty and cook it and serve
it with the new name of "hamburger".
It is "Libertarian" for me to go to the government,
get a patent on "hamburgers" and then use the force
of government to prevent anyone else from making
hamburgers with out my permission and using the government
to force anyone who makes hamburgers to give me a
cut of any money they make? I don't think so.
Say I write a "love story". You know, boy meets girl,
they fall in love and get married. Millions of them
have been written. But I write the FIRST love story.
Is it "Libertarian" for me to go to the government, get a
copyright and then use the force of government to prevent
anyone else from writing a "love story"? Again I don't think
it would be Libertarian either.
Of course there are ways to handle this in a Libertarian
world. You can have trade secrets to cover inventions.
And you can have contracts between anyone you sell your
story, which would work like copyright laws do, but with
out the force of government.
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On Tyson’s Face, It’s Art. On Film, a Legal Issue.
By NOAM COHEN
Published: May 20, 2011
Hollywood is accustomed to lawsuits over salaries, movie credits, even half-baked concepts that become movies. And now a studio may be going to court over a tattoo — or at least over the original concept of the tattoo.
In “The Hangover Part II,” the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.)
But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn’t quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it “tribal tattoo,” and claims it as a copyrighted work.
He has gone to Federal District Court in St. Louis to ask a judge to stop Warner Brothers Entertainment from using the tattoo in its posters or in the movie, which would amount to stopping the film from being released, as well as to demand monetary damages for what he calls “reckless copyright infringement” by the studio.
“Mr. Whitmill has never been asked for permission for, and has never consented to, the use, reproduction or creation of a derivative work based on his original tattoo,” argues the lawsuit, which was filed April 28, and will be taken up next week.
The suit isn’t frivolous, however, legal experts say. They contend the case could offer the first rulings on tricky questions about how far the rights of the copyright holder extend in creations that are, after all, on someone else’s body. They are questions likely to crop up more often as it becomes more common for actors or athletes to have tattoos and as tattoo designs become more sophisticated.
Warner Brothers responded on Friday in a brief to Judge Catherine D. Perry, stating that any delay in releasing the film would have huge economic costs. It also argued that there was no legal precedent for Mr. Whitmill’s assertion of copyright, saying he had put forward a “radical claim that he is entitled, under the Copyright Act, to control the use of a tattoo that he created on the face of another human being.”
Copyright and trademark law can be hard to understand intuitively — for example, the idea that you can “own” a photograph or a letter, but not own the right to reproduce its content. The example of a tattoo, where “ownership” means having it become part of your body, actually does little to clear up the matter.
The wrinkle in the “Hangover” lawsuit is that Mr. Whitmill has taken pains to leave Mr. Tyson out of it. “This case is not about Mike Tyson, Mike Tyson’s likeness, or Mike Tyson’s right to use or control his identity,” the complaint says. “This case is about Warner Bros. appropriation of Mr. Whitmill’s art and Warner Bros. unauthorized use of that art, separate and apart from Mr. Tyson.”
“One of the things that the copyright law gives you as an artist is control over your work — and he lost control here,” said Michael A. Kahn, the lawyer who is representing Mr. Whitmill. The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business.
If a tattoo clearly violates copyright — say, exactly reproduces a Keith Haring drawing or an Annie Leibovitz photograph without permission — could a court order it removed?
The case gets more serious, according to Christopher A. Harkins, an expert on copyright and patents who has written the definitive law review article on the subject, when someone tries to profit from the copying — by, for instance, selling photographs of the infringing tattoos.
“I don’t see a court forcing someone to remove it, or wear a burqa, but they may not allow me to profit from that work that I had tattooed on my body,” he said, adding that it would be very unlikely that this action could delay “The Hangover Part II” from being released.
The range of material that individuals and businesses are seeking to get copyright protection for has only been expanding, often at the insistence of movie studios. Mattel has gone to court to assert the copyright of the face of its Barbie doll; fashion companies have been lobbying Congress to pass a law to protect unique, nontrivial new designs. And trademark, which is governed by different laws and is much more contextual, has been used by athletes and coaches to get a measure of control over terms like “three-peat” or “Revis Island.”
In 2005, Rasheed Wallace and Nike were sued by a tattoo artist, Matthew Reed, over a commercial that outlined a tattoo as he discussed why he had it created; the case was settled. David Beckham and his favorite tattooist, Louis Molloy, had a public dispute that year over his plan to highlight them in an advertisement. The feud culminated in an interview with Mr. Molloy in The Daily Mirror that ran under the headline “I Own Beck’s Tattoo .. and I’ll Sue.”
“It is such a nascent area,” Mr. Harkins said, “and courts are always struggling to keep up with technology. I don’t think Rasheed Wallace ever thought about copyright infringement.”
Warner Brothers in its brief also invoked the “fair use” defense for “Hangover Part II,” namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003.
“That’s the real question: the copyright act balances the copyright owners’ rights and not stifling the creativity of the owners — it would stifle creativity to not be able to make a parody,” Mr. Harkins said.
Issues like how central the tattoo is to the plot, how much of the film it is in and whether it is shown in a non-parody context were the kind of factors a judge would consider when determining if “fair use” was in play, he said.
With so many factors in play, and the motivator of ever-rising legal fees, Mr. Harkins said, “it will be settled out of court, as most of them are.”
Mr. Whitmill declined to be interviewed, but Mr. Reed, the tattooist who sued Rasheed Wallace and Nike, spoke from his shop in Portland, Ore.
While he would not comment on his case directly, he explained that one could think of the process as a collaboration between the tattooer and the tattooed, “owned by both people, based on the trust that is used to create it.”
“It’s there for everyone to enjoy,” Mr. Reed added, “but if you think you are going to make money from it, you should get the artist’s permission.”