The U.S. House of Representatives is considering an Internet security bill that would authorize companies to release customers’ confidential information to private security agencies and the government. The Obama administration has expressed concerns about the proposed law, while stopping short of threatening a veto. Internet users and privacy groups are organizing a campaign against the bill, which they say will legalize “cyberspying.”

The proposed law, the Cyber Intelligence Sharing and Protection Act (CISPA), would amend the National Security Act of 1947, to add provisions for Internet security and information sharing.  CISPA is intended to combat disruption of government or private computer systems or networks, such as denial of service attacks.  The bill also targets the misappropriation of government information and private intellectual property.  Opponents of the bill warn that it would create a loophole in all existing privacy laws, allowing the government to collect confidential information about private citizens.

The Electronic Frontier Foundation (EFF), a digital rights advocacy group, is one of the leaders of the opposition to CISPA.  According to the EFF, the bill would grant access to any information regarding a “cyber threat” to the government, private security agencies and private companies.  Under the bill’s original definition, a cyber threat can include theft or misappropriation of intellectual property, i.e., file sharing. Once a cyber threat has been identified, a private company could release a customer’s confidential information without regard to its own privacy policy or existing law. Companies would be under no obligation to report the release of information to the customer, and they would be immune from legal action if the information were misused. In addition, EFF said that the bill would allow companies to filter or block Internet content, potentially affecting sites such as Wikileaks, which has served as a clearinghouse for leaks of government information.

A coalition of privacy groups has signed onto a letter urging lawmakers to drop their support for the bill.  The letter warns that “CISPA creates an exception to all privacy laws to permit companies to share our information with each other and with the government in the name of cybersecurity.”

The letter goes on to state that CISPA would allow sensitive personal data such as Internet use history or the content of emails to be shared with any government agency, including military and intelligence agencies, so long as cybersecurity is a significant purpose of the information-sharing. Signatories of the letter include the EFF, ACLU, American Library Association, Privacy Rights Clearinghouse, and others.

The uproar against the bill has already had some effect.  On April 16, the House of Representatives Permanent Select Committee on Intelligence said that several amendments to the bill had been approved.  One amendment removes intellectual property from the definitions of “cyber threat information” in the bill.  Another provision would permit federal lawsuits against the government if information gathered under CISPA is misused or violates civil liberties and privacy protections.  In addition, the amendments would “prohibit the government from conditioning its sharing of cyber threat intelligence on the sharing of private sector information with the government.”

CISPA has strong support among some of the country’s largest computer and Internet companies. Facebook, Google, Microsoft, AT&T and Verizon all support the bill, along with major trade groups and more than 800 other private companies.  The companies’ support is likely founded on a combination of genuine concern about security threats and the fact that CISPA would grant them immunity from legal action regarding the misuse of customers’ private information. Facebook, acknowledging the privacy concerns, released a statement saying that while the proposed law would allow private companies to share customers’ personal information with the government, “Facebook has no intention of doing this.”

The controversy over CISPA is only the latest battle in an ongoing struggle over electronic rights and freedoms. Nationally and internationally, as governments aim to protect against cyber attacks and copyright holders seek to protect their interests, advocacy organizations and ordinary Internet users are raising issues of privacy and freedom of speech.

The anti-CISPA campaign calls to mind the activism earlier this year against the Stop Online Piracy Act (SOPA). That bill, focused on protecting copyrighted works from infringement, would have prohibited websites from linking to other sites containing copyright-infringing material.  On Jan. 18, 2012, popular websites like the English language version of Wikipedia and Reddit, along with about 7,000 smaller websites, organized a blackout in which the sites voluntarily “went dark,” or denied service to the public, saying that SOPA, if passed, would prevent them from operating.  The measure raised awareness of the perceived dangers of the bill, and led to Congress postponing its consideration.

On the international stage, attention has been focused on the Anti-Counterfeiting Trade Agreement (ACTA), which opponents call “SOPA’s big brother.” ACTA is an international agreement intended to combat copyright infringement. Its most controversial measures would allow governments to access the personal information of suspected copyright violators and would impose a “three strikes” rule, cutting off a user’s access to the Internet after two warnings of a copyright offense. The agreement has been signed by the United States, Canada, Japan, Australia and the majority of countries in the European Union (EU), but has yet to be ratified by any of them. Opponents say that ACTA is a greater danger to privacy rights than SOPA, both because it is international in scope, and because the negotiations were conducted in secret. In the United States, Canada and the EU, citizens’ groups made official requests for the text of the treaty, only to have them denied, and during the negotiation period, the only information available to the public about the agreement came through unofficial leaks.

For the moment, however, civil liberties groups are turning their attention to CISPA.  The EFF, ACLU, Reporters Without Borders, and several other groups have designated the week of April 16-22, 2012 “Stop Cyber Spying Week.” The organizations hope to raise public awareness of the proposed law and encourage the public to contact their representatives and urge them to oppose the bill.

Sources:

http://www.computerworld.com/s/article/9223738/SOPA_s_big_brother_signed_by_EU_nations_amid_widespread_protests
http://www.cbsnews.com/8301-501465_162-57415670-501465/white-house-questions-cispa-cybersecurity-bill/
https://www.eff.org/
http://www.wikipedia.org/
http://www.zdnet.com/blog/facebook/facebook-says-it-has-8216no-intention-to-abuse-cispa/11756

The law can be a wonderful thing when it works the right way. This is an interesting case for several reasons, not the least of which is that there is still an unresolved question over a recorded jailhouse phone call and prosecutors were slapped for withholding evidence. But this is not the end of story – not by a long shot. Joe D’Ambrosio may have the final word if he is successful in his wrongful imprisonment lawsuit against the state of Ohio, filed in 2012, two years after he was released from death row in prison.

He is seeking compensation for being wrongfully jailed, lost wages for 21 years and attorney’s fees. The grand total could hit $1,004,285.50; a rate calculated by multiplying $47,823.12 times the 21 years D’Ambrosio spent in prison. Is he eligible to seek compensation? This remains to be seen, but if ruled so by the courts, then the lawsuit will proceed. [1] The prosecutor’s office says there is evidence that shows he is not innocent; evidence that no one may act on now, or ever again.

Joe D’Ambrosio, was a resident on death row in Texas for 21 years; 21 years that he asserts he was innocent. Truth be told, many on death row and in the general prison population insist they are innocent. In some cases, that turns out to be true provided someone takes up their cause to reverse their imprisonment. In other cases, no one believes them and they are left behind bars to serve their sentence or be put to death.

In D’Ambrosio’s case he was arrested and charged along with two other men for the murder of a 19-year-old man, Tony Klann. [2] The boy was found face down in a creek with his throat slashed. Police tracked down and arrested Ed Espinoza, Michael Keenan and Joe D’Ambrosio. Police noted on arrest that all three were drunk.

Espinoza cracked under questioning first and said the three of them were on the creek bank with the victim when Keenan wielded a Bowie knife, slashing Klann’s throat. In shock and frightened for his life, the young man supposedly ran into the creek to escape, screaming in fear. Espinoza said D’Ambrosio followed Klann into the creek to finish him off by burying the knife in his chest. [3][4]

Autopsy reports later showed the throat had been sliced above the voice box, meaning any sounds the boy made were coming from the gash in his throat. He could not have said anything, as Espinzoa alleged. At the end of a very long trial, D’Ambrosio was sentenced to death on February 23, 1989.

Two courts barred him being retried. In 2009, a federal judge ruled that prosecutors failed to provide ten pieces of evidence that could have exonerated him at trial. The feeling was that D’Ambrosio should never have been convicted. While that does not address the issue of his role, if any, in the death of 19-year-old Klann, it does address legal issues. [5]

The whole case revolved around legal issues: the question of open discovery (referring to the ten missing items of evidence); the perceived grandstanding by the prosecutors; withheld evidence that did not suit the prosecution’s case; and a taped jailhouse phone call between D’Ambrosio and his attorney that prosecutors interpreted as being an admission he was present during a burglary and kidnapping prior to Klann’s murder. Given the long laundry list of things that could be viewed as questionable in the process of seeking justice, one wonders about the integrity of those that were prosecuted. One also has to wonder how often something like this happens.

While some feel that getting individuals off the streets for crimes they commit is the whole point, the methods used to do so must be done in a legal and ethical manner. If they are not, cases disintegrate into what this one became – the case of a possibly innocent man being held for something he did not do. Or did he?

No one will ever really know, and no one can say whether or not justice has finally been served. Some think yes based on what the courts have said to date. Some think it is smoke and mirrors. Others applaud the conduct of the prosecutors as a means to an end. And some feel the man was railroaded because it suited what the law wanted.

Not surprisingly, this case is not the only one that resulted in the release of wrongly convicted individuals. In the state of Ohio, Clarence Elkins served seven years for a rape he was cleared of and received $1.1 million in compensation. Michael Green, also convicted of a rape he did not perpetrate, got $1.6 million for a suit against the city of Cleveland and another $524,000 from the state of Ohio. [6]

But back to the concept of open discovery, something that would benefit both sides in a criminal case, is for everything to be out in the open. Perhaps the most troubling aspect of the D’Ambrosio case is the fact that prosecutors withheld evidence that could have set him free back in 1989. In other words, he would not have served 21 years for a crime he may not have committed.

The foundation of the call for open discovery is that it would serve to protect the integrity of the justice system, which is a highly salient point given the evidence problems in this case. Open discovery would also protect the defendant’s rights and the well-being of witnesses, society at large and victims. [7] This is no small matter as there is still the lingering question of who really did kill Klann. To this day, no one knows and his family still carries that burden in their hearts, which does affects closure of their loved one passing.

The Ohio Supreme Court unanimously adopted open discovery in December 2010. It was a move that many applauded and it brought the state in line with most other jurisdictions. There are still some that do not require open discovery; a fact that should disturb anyone who needs a criminal defense attorney. After all, what good is the right to counsel if counsel does not have access to all the relevant information and evidence? It could mean the difference between life and death as it almost did with Joe D’Ambrosio. [8][9][10]

Sources
[1] http://blog.cleveland.com/metro/2012/02/death_row_prisoner_joe_dambros.html

[2] http://joeharmfulerror.blogspot.com/

[3] http://blog.cleveland.com/metro/2010/03/d.html

[4] http://joeharmfulerror.blogspot.com/

[5] http://blog.cleveland.com/metro/2010/03/d.html

[6] http://blog.cleveland.com/metro/2012/02/death_row_prisoner_joe_dambros.html

[7] http://www.cleveland.com/brett/blog/index.ssf/2010/02/open_discovery_in_ohio_will_ke.html

[8] http://www.americanbar.org/content/dam/aba/migrated/publiced/gavel/theplain.authcheckdam.pdf

[9] http://defensewiki.ibj.org/index.php/Open_File_Discovery

[10] http://blog.simplejustice.us/2007/11/22/open-file-discovery–better-but-not-perfect.aspx

Background Sources
http://www.cleveland.com/brett/blog/index.ssf/2012/01/joe_dambrosio_finally_free_spe.html

http://blog.cleveland.com/metro/2012/01/us_supreme_court_closes_23-yea.html

http://blog.cleveland.com/metro/2011/08/federal_appeals_court_bars_a_s.html

http://blog.cleveland.com/metro/2010/03/post_237.html

http://blog.cleveland.com/metro/2012/01/defense_lawyers_question_recor.html

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

This complex case started out with good intentions, but somewhere along the way things went awry, and now a man may pay for those good intentions with his life.

This case involves a Pennsylvania couple suing a high profile medical center after doctors transplanted the woman’s kidney to her significant other, in spite of tests showing she had hepatitis C. But the story gets worse from here. [1][2]

Michael Yocabet and Christina Mecannic of Greene County, Pennsylvania say Michael does have the potentially fatal liver disease due to his April 6, 2010 transplant at the University of Pittsburgh Medical Center. The idea of the transplant, because she was compatible, was to save his life. Ironically, it may ultimately kill him as treatment for hepatitis C could harm his new kidney, leading to organ failure and death.

Yocabet, a Type 1 diabetic with diabetes related kidney disease, was in dire need of a kidney before his operation as his dialysis was not doing what it should for him. Christina stepped in to help, and that is when their world blew up. She made the decision to donate her kidney, after doctors indicated a kidney from a living donor was often more successful than a kidney donated by a deceased person. There are now two medical malpractice lawsuits pending for medical negligence against the staff at the hospital’s kidney transplant center that involve a nurse, four doctors and the University of Pittsburgh physicians and UPMC Presbyterian.

The suit indicates the transplant team missed a critical blood test taken January 26, 2010; this test clearly showed Meccanic had the hepatitis C virus. They also apparently did not make a note of the results of that blood test before the transplant. In fact, the hospital did not tell her the results or dismiss her as a donor. One of the transplant surgeons noted that Meccanic would be an excellent candidate to donate a kidney.

Over the three month time period between the blood test and positive hepatitis C results, the hospital did not add this critical information to his or her file, nor discuss the results of the test. What were they doing? Why was the information not entered? And, here is another strange thing, the second blood test taken April 22, 2010 (remember the transplant was April 6) confirmed Meccanic had hepatitis C.

She was still not told the results of the test. Instead, the hospital analyzed her viral load, and called Yocabet in on April 29, 2010 for blood tests. It was not until May 6, 2010 that the hospital called her to a meeting where they suggested she was having an affair with another man, took drugs and told her she had hepatitis C. The reality is that Meccanic, a retired licensed practical nurse, was exposed to blood while working in nursing homes. She did not manifest any symptoms and was not a drug user.

Here is where things went from bad to worse. The hospital doctors began asking Meccanic if she cheated on her significant other, then suggested she used cocaine and said she could make a choice to keep the results of the diagnosis secret from Yocabet. Meccanic and Yocabet had been in a stable relationship for 21 years, and he had fathered her 18-year-old son. [3][4]

Stunned into shock, Mecannic told the hospital and the surgeon she was going to let Yocabet know immediately about the diagnosis as it played a huge part in not only the success of the transplant operation but his continued good health. There was more upsetting news to come when the couple was accused by the hospital of telling the media about the egregious mistake the hospital made. Whether they had or not was really not the point of this case.

The hospital insisted there was no attempt to cover the situation up, yet they shut their transplant center down for two months, demoted a surgeon, suspended a nurse and called in investigators from the United Network for Organ Sharing. These were all good decisions but the one decision that would have likely saved this man’s life by giving him a healthy kidney was not made. Instead, the surgeon chose to transplant a kidney infected with hepatitis C; a situation which compromises the UPMC hospital’s assertion that their only priority is the well-being of their patients.

During the course of a year close to 6,200 kidneys are donated to others in the U.S. by living donors and about 10,400 from deceased donors. Even though at least 28,000 kidneys are donated, there are close to 113,000 people waiting for one. At least 6,500 people die while they are waiting for a kidney transplant. [5][6][7]

It is relatively rare that people die later from an infected kidney. In fact, in checking the statistics for the longest living kidney transplant, the world record may well go to two Americans, Denice Lombard and Bill Thompson. Lombard, who hails from Washington, D.C., received a kidney from her dad in 1967 when she was 13-years-old. Thompson received his in 1966 when he was 15-years-old. [8]

Following closely behind Thompson and Lombard is the second longest living kidney transplant recipient, Annemarie Grosskopf of Johannesburg, South Africa. She received a kidney from a deceased donor when she was 21-years-old in 1981.

What happened in this instance? Living donors may be screened for a wide variety of infections that include rare diseases, HIV and even syphilis. However, even though the standard is to test for HIV, there are no other stated prerequisites for testing living donors, which means screening may be different at various transplant centers.

Ironically, this lawsuit’s timing is almost serendipitous, as the Centers for Disease Control and Prevention are working on draft guidelines that mandate even more thorough donor screening and testing. Part of the new mandate includes testing for HIV, hepatitis B and C. [9][10]

It will be interesting to see how a jury reacts to the evidence and what their verdict will be. It is a shocking case, but the circumstances could happen to anyone more often than previously realized.

Sources
[1] http://www.msnbc.msn.com/id/44599555/ns/health-infectious_diseases/t/couple-sues-hospital-after-he-gets-her-infected-kidney/

[2] http://www.msnbc.msn.com/id/37624303/ns/health-infectious_diseases/t/infected-organs-pose-deadly-transplant-risk/

[3] http://www.msnbc.msn.com/id/44599555/ns/health-infectious_diseases/t/couple-sues-hospital-after-he-gets-her-infected-kidney/

[4] http://www.illinoisinjurylawyerblog.com/2011/12/hospital_liable_for_medical_ma.html

[5] http://www.ustransplant.org/

[6] http://kidney.niddk.nih.gov/kudiseases/pubs/kustats/

[7] http://www.unos.org/

[8] http://en.wikipedia.org/wiki/Kidney_transplantation#Statistics

[9] http://www.msnbc.msn.com/id/44599555/ns/health-infectious_diseases/t/couple-sues-hospital-after-he-gets-her-infected-kidney/

[10] http://www.msnbc.msn.com/id/37624303/ns/health-infectious_diseases/t/infected-organs-pose-deadly-transplant-risk/

Background Sources
http://www.msnbc.msn.com/id/45310341/ns/health-health_care/t/probation-program-transplanted-infected-kidney/

http://www.ncbi.nlm.nih.gov/pubmed/18510639

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Social media is increasingly being used by businesses to build their brands and customer base. In particular, businesses are embracing sites such as Twitter to heighten awareness amongst their target markets. The latest estimates show that more than 175 million users are registered on Twitter and send 95 million Tweets on a daily basis. [1]

Businesses spend a lot of time and effort on developing customers and creating corresponding customer lists. In the digital era, this translates on Twitter to followers. Whoever is in charge of the Twitter handle at a business creates a target list of influencers or prospects that it wants to convert into clients. As followers increase, the person’s tweets, even when conversational or personal, become part of the company’s public relations. As the Twitter account becomes more popular, other Twitter feeds can list it too. The business’ Twitter feed then becomes more valuable and influential as a key part of business development. What starts out as a casual interaction on Twitter leads more people to visit a business’ website and offline products, use their services, and partner on unique business transactions.

A current lawsuit in the California courts shows how one business is grappling with a coveted Twitter account that one of its ex-employees took with him when he left the company. The lawsuit has big implications nationwide for business use of social media and employment contracts as businesses try to keep trade secrets, including customer lists, away from competitors.
In PhoneDog v. Noah Kravitz, PhoneDog sued Noah Kravitz, a writer for its mobile reviews and news after he left the company and took his 17,000 Twitter followers with him. [2] Kravitz alleges that PhoneDog let him keep his Twitter account if he would post Tweets occasionally as he left on good terms. [3] His account while at the company was Phonedog_Noah and post employment he changed it to NoahKravitz. Eight months after Kravitz left, PhoneDog asserts that Kravitz took all the followers with him when he changed his account and this customer list is vital to doing business. PhoneDog is seeking $2.50 a month per client in damages, or $340,000 for the eight month time span.

Kravitz sought to have the lawsuit dismissed as he stated that the case lacks subject matter jurisdiction. Last November the United States District Court, N. D. California, ruled against Kravitz on this matter, and said that PhoneDog can file an amended complaint in regards to misappropriation of trade secrets. [4]

PhoneDog asserts that it has employees send out written content and videos via Twitter accounts. Twitter accounts help it generate more website traffic and thus increase the potential for mobile and other related companies to advertise on the website. The company says that all @PhoneDog_Name Twitter accounts accessed by employees, including account names, passwords, and followers are proprietary, confidential information. Kravitz says that since there was no employment agreement setting a rule for changing his Twitter handle, the company cannot seek damages from him.

“The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C,” they released in a comment to The New York Times. [5] “We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

The lawsuit highlights the debate at the center of social media use by businesses – who owns a Twitter account and its followers ultimately? To Kravitz, “…all Twitter accounts are the exclusive property of Twitter and its licensors, not PhoneDog” and his 17,000 followers “…are human beings who have the discretion to subscribe and/or unsubscribe to the Account without the consent of PhoneDog and are not property and cannot be owned.” [6] So does everything belong to Twitter or as PhoneDog asserts, to the company as it has a license granted by Twitter to access and use the @PhoneDog_Name accounts?

Also of contention is the value of a Twitter account and followers. Without an industry recognized standard of valuing followers, how can a value such as $2.50 a person be assessed? What would happen if a company kept its Twitter handle when a person left but the value of the content on the Tweets did not find much interest and followers greatly diminished with a new person at the controls?

The questions raised in this lawsuit are important as businesses use Twitter more and enlist high-profile guest reviewers and bloggers on sites to gain more business. Employers and their human resources and legal departments will need to update confidentiality, nondisclosure and non-compete agreements to address ownership of social media information that is operated on behalf of a company and on company time. With Rolodexes and old fashioned customer lists barely used in the workplace anymore, social media contacts for business and corresponding customer relationship management databases must be safeguarded. Restrictive covenants could have prevented much of PhoneDog’s complaints.

As with many employment agreements, an employer can lessen disputes by informing potential and current employees of expectations up front, remind them about ground rules in yearly meetings or quarterly emails, and update the rules as new forums for business development emerge. With Twitter, Facebook, LinkedIn, Google’s +1, and the dizzying array of social media that will undoubtedly take root in the years to come, employers must stay out front of these disputes.

Being specific and detailed in employment agreements and policies is key. Provisions should define what is confidential and a trade secret, bar personal use of business accounts, and establish what disciplinary actions could occur if coveted information was disclosed. [7] This should also include post-termination rules, such as unlinking customers to social media accounts, handing over logins and passwords, and prohibiting connecting to customers with a competitor for a set, reasonable amount of time.

How the California courts will interpret PhoneDog’s interpretation of what is a trade secret is still to be determined. Trade secret lawsuits must prove that a secret gives its business a competitive advantage and it has taken the steps to protect it. PhoneDog says that how Kravitz logged on was confidential company information. Many companies and employment and business attorneys are looking to this case for more guidance, and hoping that the case does not end in a mediocre, hushed way.

Sources
[1] http://blog.martindale.com/think-social-media-is-a-waste-of-time-your-competitors-dont

[2] http://scholar.google.com/scholar_case?case=9890904231170613660&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[3] http://www.nytimes.com/2011/12/26/technology/lawsuit-may-determine-who-owns-a-twitter-account.html

[4] http://scholar.google.com/scholar_case?case=9890904231170613660&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[5] http://www.nytimes.com/2011/12/26/technology/lawsuit-may-determine-who-owns-a-twitter-account.html

[6] http://scholar.google.com/scholar_case?case=9890904231170613660&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[7] http://socialmedialawnews.com/tag/social-media-policy/

Background
http://www.networkedlawyers.com/category/non-competes-and-anti-solicits/

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

When someone has been in an accident, serious enough to be taken to the nearest medical facility, one would expect the attending ER doctor to deal with the manner expeditiously, professionally and accurately. That did not happen in this disturbing $9 million medical malpractice case. [1] [2] [3] What happened next was unbelievable.

This reported case took place in Cheyenne, Wyo., and resulted in one of the highest medical malpractice verdicts ever seen in the state. The existing record until this case was $1.5 million. [4] The verdict was for the plaintiffs. The jury found that the board certified emergency physician, working for the regional hospital where plaintiff Louis Prager was not treated properly, had egregiously and negligently breached the accepted standards of medical care.

Defendant Doctor Cullison failed to diagnose 51-year-old Louis Prager’s broken neck, which ultimately resulted in him not being able to work, caused permanent left shoulder paralysis and excruciating, debilitating, ongoing pain. The man’s whole life had been turned inside out by the medical mistreatment he received in the hospital. While the jury deliberated, they also concluded that the hospital and the doctor had seriously harmed Prager’s 30-year marriage, and awarded loss of consortium damages to the wife.

What happened to start this cascading chain of devastation? In December 2008, Prager was working in the oil fields, and was involved in a truck rollover accident. His truck slid off an icy road and rolled several times landing upside down. [5] EMS crews rushed to the scene, immobilized him using a backboard and put on a neck brace. These were all correct procedures for rollover accidents, and protected the neck and prevented any further damages. He arrived at the hospital with the neck brace in place and was seen by Dr. Cullison who released him from the ER without taking x-rays of the man’s neck or doing any type of physical exam.

This oversight was considered to be strange by the jury, as Prager quite clearly stated that his neck hurt and that he was in pain. The doctor did order x-rays of Prager’s head and back, but not his neck. However, he thought his neck had been done while the other x-rays were being taken or while he had been in the CT machine. They were not. To compound this evident lack of medical care, the doctor further assured Prager that he had no broken bones and that things appeared to be just fine.

They were hardly fine, as Prager had to go back to the hospital several days later and was then diagnosed with numerous cervical spine fractures, a paralyzed left arm and shoulder, and needed emergency neck fusion surgery. The final diagnosis of this set of medical events was that Prager now had permanent C5 nerve root damage, and is mostly confined to his house due to pain and disability. While the first surgery stopped further injury, it could not undo his nerve damage. [6]

The first neck fusion surgery was not the only one. He had to have a second operation (neck fusion) and faces additional surgeries in the future, including the implantation of a spinal cord stimulator with the aim of decreasing his unbearable pain levels. Prager’s injuries permanently altered the remainder of his life and the remaining years in his marriage. In other words, his injuries are classified as catastrophic.

Catastrophic injuries change an individual’s life, and quite often are the result of a sudden accident. These injuries have long-term consequences, some of which do not show up until later in life. The injuries are often permanent, with no hope of ever being in the condition they were in prior to their accident. Most victims with catastrophic injuries are not able to work again, and thus the only way they are able to care for themselves is to file a personal injury lawsuit to recover damages. [7]

It is common to expect that catastrophic injuries end up damaging the central nervous system, which then affects other organs and body systems. Spinal cord injuries, such as the one in this case, are very complex and victims most likely will need long-term medical care. They do not just deal with physical pain; they also face emotional and financial challenges on a daily basis that impact their wellbeing.

At trial, the defense denied that the doctor failed to do a physical exam of Prager’s neck and also said that people involved in a rollover should have neck x-rays. This was a clear denial from the defense, as the plaintiff could clearly recall whether or not he had a physical exam on the day of his accident. Despite being in shock, some things are remembered with startling clarity when one is in pain.

Additionally, the contention that it is not necessary to give a rollover victim a neck x-ray just defies conventional medical wisdom. The jury evidently felt the same way, or they would not have awarded the plaintiff $9 million; $7 million for the negligence of the hospital and the doctor and $2 million for loss of consortium.

Of note in this case is the interesting twist that developed at trial. The defendant’s own medical expert witness indicated that if Cullison had taken the time to do a physical exam of the plaintiff’s neck, the man’s spinal nerves would have made an examination difficult. It is rather counterintuitive to have a medical expert testify for the defense, and inadvertently help the plaintiff’s arguments.

Individuals place an enormous amount of faith and trust in doctors, especially when going to the hospital for emergency medical care. What a doctor says and does determines the outcome. If a doctor, or another medical professional does something wrong, or does not do something they should, the results can change a person’s life forever. Not for one minute should a doctor be allowed to get away with medical negligence. If that happens, it does not stop, and there will be other victims.

Sources
[1] http://www.marketwatch.com/story/metier-wins-9-million-verdict-in-medical-malpractice-suit-against-wyoming-regional-hospital-2011-11-04

[2] http://trib.com/news/state-and-regional/jury-returns-million-verdict-in-lawsuit-against-gillette-hospital/article_bf2bc563-ef43-5671-9266-117d150e2b06.html

[3] http://k2radio.com/9m-malpractice-award-thought-to-be-wyomings-largest/

[4] http://www.marketwatch.com/story/metier-wins-9-million-verdict-in-medical-malpractice-suit-against-wyoming-regional-hospital-2011-11-04

[5] http://trib.com/news/state-and-regional/jury-returns-million-verdict-in-lawsuit-against-gillette-hospital/article_bf2bc563-ef43-5671-9266-117d150e2b06.html

[6] Id.

[7] http://www.avvo.com/legal-guides/ugc/an-overview-of-catastrophic-injury-litigation

Background Sources
http://medicallicenseverification.com/tag/brian-cullison/

http://www.kgwn.tv/story/16027780/9m-malpractice-award-largest-in-wy-history

http://www.wyomingpublicmedia.org/post/cheyenne-jury-awards-record-medical-malpractice-award

http://www.court.us/wyoming/campbell.htm

http://www.news-medical.net/news/20111105/Metier-obtains-249-million-verdict-against-Campbell-County-Memorial-Hospital.aspx

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

It should not be hard to buy cosmetics that are good for the skin and body. Yet current disputes over what should be disclosed on labels show how hard it is for the consumer to find organic products or even safer cosmetics that are not loaded with harsh chemicals or misleading promises. Most of this could be prevented if the U.S. Food and Drug Administration had more control over cosmetics. A bill currently in the U.S. House of Representatives, the Safe Cosmetics Act of 2011 (H.R. 2359), could change these discrepancies if it overcomes fierce opposition from the Professional Beauty Association. [1]

At the center of the battle on this bill is stricter ingredient disclosure on packaging and publications. Those who are for the bill want consumers to be able to know when their cosmetics have nanomaterials and contaminants in manufacturing or packaging. They are also pushing to phase out of ingredients that have been proven toxic. [2] Some stores, the biggest being Whole Foods, want to go a step further and regulate products in the cosmetic aisles that claim to be organic. In stores like this, personal care products with an organic label must have 70 percent or more organic content, which then can qualify for a USDA “Made With Organic” ingredients claim and NSF/ANSI’s 305 certification. To be “USDA Organic”, the product must contain 95 percent organic ingredients. [3]

Opponents of H.R. 2359 allege that this bill would drive up costs for cosmetic companies, many of which are small businesses that could not afford the label changes, pre-market testing, and ingredient reformulating. They believe that government regulators should focus on improving laws already in effect to protect consumers. [4] And they are concerned that disclosing too many ingredients could be akin to revealing product and trade secrets.

The Safe Cosmetics Act’s proponents advocate that the bill requires only listing of the ingredients – “the concentration of cosmetic ingredients used in a finished cosmetic shall be considered confidential business information and may not be made available to the public.” [5] The FDA website currently shows cosmetic products that have been issued a hazard alert in the last year. Problematic cosmetics include hair smoothing items such as Brazilian Blowout that allegedly contain formaldehyde and cause bad reactions over time. Makeup for young girls in the Bratz Makeup Design Sketch Book was found to be contaminated with Staphylococcus intermedius and Staphylococcus warneri, which can increase eye infections and threaten a person’s vision. And makeup that should be classified as a drug, but is improperly labeled, continues to cause problems and create injuries. [6]

“The personal care products that make us clean should not make us sick,” said Massachusetts Congressman Ed Markey. [7] “America’s diaper bags and medicine cabinets should never have to be labeled ‘hazardous to your health’ due to products like creams, conditioners, and cosmetics that contain dangerous ingredients. The Safe Cosmetics Act will close a gaping hole in the federal law that allows potentially toxic chemicals to remain in the products we use everyday.”

Yet, legislation has not been successful since 2010 under the same name and even as big box stores are found to have ingredients such as parabens, BHA, cocoamide DEA, and other harsh chemicals in cosmetics that have been linked to cancer and hormone disruption. [8] The quest for beauty and eternal youth thus becomes filled with toxic chemicals, uninformed consumers, and the FDA being hampered to enforce recalls, pre-approve labeling, and ensure that products are not adulterated. Good manufacturing practices are only required on drugs, so it is up to the consumer to research the best product for their wallet and beauty needs. [9]

Manufacturers and distributors are thus relied on to be good stewards to consumers in the beauty industry. So with the dizzying array of makeup creators and distributors all around the nation, let alone the Internet and millions of professional salons, how exactly can businesses be counted on to act for the greater good of the consumer? Some say the only way to curb misleading and dangerous cosmetics is to activate legislation such as the Safe Cosmetics Act. This is the only way to rein in shoddy products that cost consumers hundreds of wasted dollars, pain and suffering, and clog up the court system.

“This legislation creates a floor of safety for the industry and guarantees that all companies are playing by the same rules, supporting the efforts of companies raising the bar for sustainability and safety in the marketplace and increasing demand for safer products,” said Badger product development director Rebecca Hamilton. [10]

In the coming week, the FDA’s Center for Food Safety and Applied Nutrition is holding a public meeting about microbiological safety concerns in cosmetic products. Testing, preservative systems, prevalence of microorganisms, and risks of infections and adverse events will be discussed. [11] In due time, the beauty industry will have to shift to more disclosure. Whole Foods is doing its part by banning more than 400 ingredients in its Premium Body Care standard to do business with a manufacturer. Consumer decisions will also play a big role. [12] If every American uses an estimated 126 ingredients on their skin every day, shouldn’t there be a bigger concern about what gets absorbed by the skin, inhaled, and rinsed down the drain? [13] How can consumers be confident and protect their safety, no matter if they shop at the local dollar store, big box grocery store, or at Neiman Marcus?

For now, individuals who are seriously injured from cosmetics can only voice their opinion by what they buy or through a product liability lawsuit. Defective cosmetic products, just like other defective drugs and items, can cause chronic conditions, disabilities, and cause a person to need extensive medical treatments. But for toxic chemicals that over time cause neurological, circulatory, and hormonal conditions, there can be even more life-altering repercussions. Every party involved in the creation of a cosmetic product owes a reasonable duty of care to the end user. Researchers, developers, manufacturers, marketers, and even retailers can be liable if they did not ensure the safety of their product. The cosmetic industry and regulators should seek to lift the veil off substandard products and help consumers be aware on store shelves and online.

Sources

[1] http://www.opencongress.org/bill/112-h2359/show

[2] http://www.mondaq.com/unitedstates/article.asp?articleid=140932&login=true&nogo=1

[3] http://newhope360.com/print/beauty-cosmetics-amp-skincare/organic-cosmetics-lawsuit-your-personal-care-falsely-labeled?page=4

[4]http://www.insidecosmeceuticals.com/news/2011/07/personal-care-truth-comments-on-safe-cosmetics-ac.aspx

[5] http://www.mondaq.com/unitedstates/article.asp?articleid=140932&login=true&nogo=1

[6] http://www.fda.gov/Cosmetics/GuidanceComplianceRegulatoryInformation/ComplianceEnforcement/WarningLetters/default.htm

[7] http://www.ecouterre.com/safe-cosmetics-act-of-2011-what-it-means-for-the-beauty-industry-and-you/print/

[8] http://newhope360.com/print/beauty-cosmetics-amp-skincare/organic-cosmetics-lawsuit-your-personal-care-falsely-labeled?page=4

[9] http://www.fda.gov/Cosmetics/GuidanceComplianceRegulatoryInformation/ucm074201.htm

[10] http://www.ecouterre.com/safe-cosmetics-act-of-2011-what-it-means-for-the-beauty-industry-and-you/safe-cosmetics-act-2011-1/

[11] http://www.fda.gov/Food/NewsEvents/ConstituentUpdates/ucm277822.htm

[12] http://newhope360.com/print/beauty-cosmetics-amp-skincare/organic-cosmetics-lawsuit-your-personal-care-falsely-labeled?page=4

[13] http://www.huffingtonpost.com/laura-turner-seydel/toxic-chemicals-cosmetics_b_992631.html

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Some days, life just gets more and more bizarre, particularly with regard to what people choose to file a lawsuit about. This case has its moments of hilarity, but most of all, onlookers ponder wonder why a lawsuit was filed in the first place. One wonders why a lawyer would take this kind of case, but to be blunt, everyone has rights and they must be protected.

At issue in this situation is whether or not the porn classics “Debbie Does Dallas” and “Deep Throat” are in the public domain. To say they caused a real stir when they were viewed would be a major understatement. Back at the University of Alberta law school in the 1970s the entire class of 45 potential lawyers rented a nightclub and ran “Deep Throat” to the loud hoots of most of the guys in the room. The females were not that impressed, but many had to admit it was something they had not seen done like that before, and so it became a shocking education of sorts. The star of the film was Linda Lovelace, aka Linda Susan Boreman. Boreman revealed her first husband beat her to perform in the film, and she later assumed the role of a spokesperson for anti-pornography. She died in 2002 at the age of 53. [1]

Not a man in that rented nightclub gave any thought to whether or not the movie was in the public domain. They were only interested in the female domain, plain and simple. Fast forward many years, and the porn industry is again dealing with these famous flicks due to the supposed illegal sharing of copies of “Debbie Does Dallas”.

Copyright lawyer Evan Stone intended to sue 113 people earlier in 2011 for that very reason. They were intended to be anonymous until the courts sorted out if it would be ethical to name them. But because he was in a rush to get the suit on track, Stone cut corners and sent out subpoenas to identify them after the court expressly said for him not to send them out. The judge sanctioned Stone by slapping him with a $10,000 fine. [2] [3]

The two adult entertainment companies involved recently settled a copyright infringement suit over the movies. But the whole thing is that there really was no copyright issue, as the two films in question were actually in the public domain. These porn classics were originally distributed without a copyright notice, which means, based on pre-1989 copyright laws, they were in the public domain. [4] It does make one wonder why a lawsuit was filed over a non-issue in the first place.

These two companies should have known better than to file a lawsuit that did not need to be filed. Possibly they did not want to admit that their movies were in the public domain. Going to court would have blown the – ahem – whistle on that issue, and so they settled up and did what amounts to a trade off: one company got the copyright to “Deep Throat” by giving up any rights to “Debbie Does Dallas”.

Their skewed rationale for claiming copyrights that do not exist, on films that are in the public domain, and therefore not subject to copyright, is precisely the real issue here – that neither “Deep Throat” or “Debbie Does Dallas” is covered by anyone’s copyright. [5] This conundrum makes it perfectly clear why both porn entertainment companies, involved in a lawsuit that did not go anywhere, hoped to settle and avoid having a judge rule that the films were in the public domain. What they really wanted is to do is trade, keep things as they were, and keep making as much money as they could.

One other possible issue is that one of the porn companies is trying to claim that “Deep Throat” was never really published and if that is the case, not having a copyright notice does not matter and does not apply. It appears that the back story pertaining to “Deep Throat” is that the producer did not give up any copies of the film and when he showed it, he leased a theatre in its entirety. He also paid his employees and collected all the revenue.

At the time the movie was shown, it is highly unlikely that anyone in the whole theatre was thinking about copyright issues and how they would impact the film industry for years to come. They were there to watch the action; and action they got, as “Deep Throat” reportedly netted $600 million in box office receipts. Pretty good for a supposedly non-published film.

In regards to “Debbie Does Dallas”, the agreement the two porn kings reached was Arrow Production must cease distributing “Debbie”, whether it is in the public domain or not. Interestingly, there is actually a court decision that rules “Debbie” is in the public domain. Nonetheless, what is really at issue here is the money. [6] This too is worthy of note, because considering the kind of money this film made, its star, Bambi Woods, was only paid $400 a day, and when the film wrapped, she vanished for 25 years. [7]

The story comes full circle. The two porn flicks in question are in the public domain and thus, no one really has copyright on them. However, in a dither to keep earning money on a highly profitable set of films, the two porn companies involved have more or less created their own copyright rules without vetting their positions with the courts. If nothing else, this issue raises some very real questions about society’s views on porn, its distribution and copyrighting. Should there be copyrighting for porn films? Should there be copyright for these two films? Should there even be porn films?

Sources
[1] http://en.wikipedia.org/wiki/Linda_Lovelace

[2] http://www.techdirt.com/articles/20111031/14012416574/various-lawsuits-trying-to-avoid-admitting-that-porn-classics-debbie-does-dallas-deep-throat-are-public-domain.shtml

[3] http://www.techdirt.com/articles/20110911/01030715892/copyright-troll-evan-stone-sanctioned-more-than-10k-sending-subpoenas-when-court-said-to-wait.shtml

[4] http://www.hollywoodreporter.com/thr-esq/how-a-nasty-legal-fight-252525

[5] Id.

[6] Id.

[7] http://www.yesbutnobutyes.com/archives/2007/05/debbie_does_dal_2.html

Background Sources
[8] http://www.lindalovelace.org/

[9] http://en.wikipedia.org/wiki/Debbie_Does_Dallas

[10] http://www.yesbutnobutyes.com/archives/2007/05/debbie_does_dal.html

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Too many people have been victims of medical negligence in the U.S., and this story highlights problems patients face all too often. Linda Mohr of Richland, Washington had to wait seven years to get her medical malpractice case to trial. She had already gone through one court proceeding where she was told that she did not prove her case, even though it was quite clear she was suffering from brain damage. Now her case may now move forward to Washington’s Supreme Court. [1]

The problems first began when Linda, a diabetic, suffered from a hypoglycemic incident while she was driving. Hypoglycemia is typically defined as having a serum glucose level below 70 mg/dL and diagnosed by the presence of three things: symptoms that suggest hypoglycemia, low plasma glucose concentration and symptoms that decrease when the glucose level is raised. [2]

Early symptoms of hypoglycemia may include clammy skin, pounding heart, trembling, sweating and anxiety. If these symptoms are not addressed, the condition progresses, affects the brain and may even bring on seizures and a coma. These problems all started to happen while Linda was driving, and created an awful accident back in 2004.

Mohr passed out and hit several cars that were in her path, drove on and off the sidewalk, ran over several bushes, just about hit a cyclist, and ended up hitting a light pole. She was going 45 mph when her car hit the light pole. Linda had little recollection of what had happened. On the way to the hospital when she began to come to is where the alleged medical negligence started to begin.

Three doctors, Drs. Dale C. Grantham, Brian J. Dawson and Brooks Watson II, along with a hospital and ER physicians, were named in the lawsuit that was ultimately filed in 2007. ER Doctor Grantham was responsible for taking care of Mohr, ordering tests and developing a diagnosis. What actually happened though was a series of mishaps that would finally result in Mohr filing a medical malpractice lawsuit.

On arrival, Mohr was given a neurological test and a brain scan. Although the results were normal, she displayed neurological symptoms. These red flags should have alerted the doctor that something else was going on. Mohr was wobbly on her feet and in severe pain even after she was given painkillers. Dr. Grantham had a conversation with one of Mohr’s two sons, who are also doctors. Grantham let them know that he was going to administer another neurological test before he sent her home.

The test was not done though and Mohr was only discharged with a prescription. On discharge, she could not walk and when her husband got her home, he had to carry her to bed. The next morning she was taken back to the same hospital, as her husband was frightened that she was still lethargic and not terribly coherent. This time the attending ER doctor was Dr. Dawson, who diagnosed a stroke.

Mohr was sent for an MRI, and a stroke was confirmed, but Dr. Dawson did not provide any further treatment or therapy for her. Instead, she was transferred two hours later to an intermediate care unit and put under the care of Dr. Watson. By this time, Mohr’s two doctor sons had arrived and insisted that Dawson and Watson give their mother a CT angiogram.

Despite frequently paging Dr. Watson, the CT angiogram was not done until 2:30 p.m. and results were not available until 3:27 p.m. Even with the results ready, Dr. Watson was not found for another hour and a half that the CT scan had revealed a dissected carotid artery. Even when he was informed about the results, he did not order any therapy or treatment.

Earlier in the day at 2:00 p.m. he had prescribed aspirin for Mohr, but did not order it to be given to her. As a net result of the daylong comedy of errors, Mohr did not get the aspirin until 6 p.m. just as she was being moved to another medical center.

To say that this is an egregious case of medical negligence or malpractice may be a bit of an understatement. It should then come as no surprise that the family filed a medical malpractice lawsuit. That first lawsuit was booted out of court in 2009, as the Superior Court judge ruled that Mohr had not shown how she might have had a better outcome if her medical treatments had been different.

Mohr is permanently brain-damaged, with one quarter to one third of her brain tissue destroyed as a result of a stroke brought on by her car accident. This affects her spatial reasoning, motor control and the ability to sense things. Thus, when her case was tossed out of court in 2009, it was appealed to the State Supreme Court, who ruled she should be able to take her case to trial and may therefore proceed with her negligence case.

While it might be seven years later, perhaps justice will be done the second time around in a case that claims that the negligent treatment, or rather lack of treatment, at the hospital by the various doctors reduced Mohr’s chances of minimizing or avoiding her brain damage. Put another way, medical malpractice caused her to lose a chance for a better medical outcome and it severely affected her in a permanent, life-altering way.

This is really just the tip of the iceberg, as the family also alleged the doctors failed to diagnose her stroke in a timely manner and that their care was way below the recognized standard of care that would be offered by other doctors in the same area of practice. All this diminished her chances of a better recovery.

The testimony of the woman’s two physician sons combined with a medical expert testifying that if Mohr had received the proper treatment will show that she could have had up to a 60 percent better chance of having a positive outcome with no disability or at least a lesser disability.

Until the jury hears this case, the family can only look forward to a reasonable damage award, not only because of the facts of the case, but because the Supreme Court of Washington views the statutory cap on non-economic damages in Wash. Rev. Code Ann. § 4.56.250 as an unconstitutional infringement of the right to trial by jury. [3]

Depending on which state a medical malpractice victim lives in, they may or may not recover sufficient damages to look after themselves for the rest of their lives. The worse the injuries, the more expensive it is to care for the individual. This leaves the patient in a very difficult financial situation due to no fault of their own. With this, the patient is victimized twice – once by the medical profession and then again by the legal system.

Tort reform does not typically benefit victims of catastrophic injuries. Some states feel the same way, and do not have medical malpractice caps. Those states are [4]:
• Arizona
• Connecticut
• Delaware
• Iowa
• Kentucky
• Minnesota
• Nebraska
• New York
• Tennessee
• Vermont
• Wyoming

And, these states have tried to limit damages in medical malpractice cases, but their Supreme Courts have struck those attempts down in the following cases [4]:
• Alabama – Mutual Assurance, Inc. v. Schulte, 970 So.2d 292, 293 (Ala. 2007)
• Illinois – Best v. Taylor Machine Works, 689, N.E. 2d, 1057, (Ill. 1997)
• New Hampshire – Carson v. Maurer, 424 A.2d 825 (N.H. 1980).
• Oregon – Lakin v. Senco Products, Inc., 987 P.2d 463 (Ore. 1999)
• Washington – Sofie v. Fireboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989).

After seven long years, it will be interesting to watch how this medical malpractice case will finally get the patient and her family the justice they deserve. One can only imagine how this case would play out in a jurisdiction that is going through strict tort reform.

Sources
[1] http://www.bellinghamherald.com/2011/10/14/2227801/state-supreme-court-rules-richland.html#ixzz1ao6YuhV8

[2] http://www.emedicinehealth.com/low_blood_sugar_hypoglycemia/page3_em.htm

[3] Sofie v. Fireboard Corp., 112Wash. 2d 636, 771 P.2d 711 (1989).

[4] http://www.butlersnow.com/WorkArea/DownloadAsset.aspx?id=3977

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Artists of every medium use some form of inspiration to create their works. From musicians, artists, dancers, writers, and the cast of characters that help them throughout a piece’s evolution, an original piece of art finally emerges. But what happens when that art takes too much inspiration from another artist? Is it fair use, an homage, or outright copyright infringement?

Current disputes and lawsuits involve these questions about an artwork being truly transformative. Bob Dylan, Beyoncé, and a bevy of other art stars are under fire for creative works that could be found to be in violation of valid copyrights. Some people think that nothing can truly be original in our hyper-media society. It is as if, “Creativity has become synonymous with appropriation, while art has surprisingly bought into the academic belief in the death of originality,” said Sergio Muñoz Sarmiento, an artist who also is an art lawyer. [1]

From this frame of reference, will the art world become one where it becomes as important to get licenses to use other people’s work as it is to have paint and a few blank canvases? Many art fans, gallery owners and the artists themselves hardly look forward to this reality. Even further, will gallery owners and creative managers have to run pieces through Google Images before releasing a person’s work to check authenticity? As Google Images allows anyone to drag and drop an image, the user could see if pieces of a creative work were used before. [2] Before spending even more money to promote a piece of art, music video, or other creative work, the user could determine if the piece is truly original or at least transformative enough.

Artists from all mediums and statures have a right to fiercely protect their works. Thus it comes as no surprise that the artists who are displeased by what has been done to them by more famous artists can make headlines and courtroom appearances. Bob Dylan has a current exhibition at Gagosian Gallery in New York City titled “The Asia Series”. His paintings depict his travels throughout Asia. But it has surfaced that at least five depict scenes from photographs lifted from Flickr user Okinawa Soba’s Asia photos. [3] Other paintings are direct copies of classic images from Henri Cartier-Bresson, Leon Busy, Dmitri Kessel, Bruce Gilden, James Ricalton, Magnum Photos, and Life magazine archives. [4]

While some of these classic images and photos do have copyrights, others are in the public domain. So while some copyright laws may not be broken, others have been compromised. What is even more amazing is that neither the Gagosian Gallery nor Bob Dylan made patrons and art investors aware of this. The more apt description of the show involves Dylan’s travels through online image archives and historical references of Asia, with a dash of actual inspiration from his time in Asia. Gagosian is already under scrutiny after it lost in the Cariou v. Prince copyright lawsuit. [5] In that case, the judge ruled that Richard Prince did not transform photos he used of Patrick Cariou’s in Prince’s Gagosian exhibit “Canal Zone”. Some of the artwork in question sold for millions of dollars. In an ironic twist, Prince wrote the content for Dylan’s “The Asia Series” catalogue. [6] Gagosian could learn a lot from Google Images beforehand along with good legal counsel before backing an artist’s exhibit.

In copyright infringement lawsuits it all comes down to how the four factors of fair use are assessed. First, the character and purpose of the use of the creative work in question is examined. Then, the nature of the copyrighted piece and the amount used in the new piece in comparison to the copyrighted work in total is examined. And the last big factor is how the new work could affect the market for the copyrighted work. When new pieces sell for millions and generate even more success for the new work rather than what the copyrighted work deserves, it can make for a very interesting courtroom battle.

Photos, art, and literary works are not the only creative works that are disputed. Belgian choreographer Anne Teresa De Keersmaeker alleges that Beyoncé stole her dance moves to make the music video “Countdown” more interesting and, of course, sell her music. Choreography can be copyrighted when it appears in a fixed medium. De Keersmaeker says that Beyoncé took moves from two of her films “Rosas danst Rosas” and “Achterland”. [7]

Beyoncé has said that she was inspired for this music video by, “…the ’60s, the ’70s, Brigitte Bardot, Andy Warhol, Twiggy and Diana Ross. I’ve always been fascinated by the way contemporary art uses different elements and references to produce something unique.” [8] Even though she has also said that she was enamored of the Belgian choreographer’s work and used it in “Countdown”, many court watchers say Beyoncé and her managers will attest that she had transformed enough of De Keersmaeker’s moves to make it a new work and has not hurt its market value. [9]

Artists from all backgrounds should take these matters to heart and look inward before committing to a piece that cannot stand on its own. Just because someone is an artist does not automatically make them original and allowed to be coddled by the art world. Nor does it make them immune from intellectual property laws and allow them to be lazy about their depiction of a subject. In a recent case that shot down a graffiti artist’s claim of fair use, California federal judge Dean Pregerson said that, “To permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act. Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work.” [10]

To prevent artistic déjà vu and creative piracy from happening, the creative industries must take extra steps to be original or by all means transform a piece in new and dynamic ways. Attribution, collaboration, and even licensing can go a long way to avoiding litigation. And all these things can make for really interesting creative works that even the original auteur could appreciate as an homage. As Patrick Cariou said after he won the lawsuit against Richard Prince, “I don’t think artists should be offered a different standard from anyone else. When you’re 12 years old your parents tell you ‘Don’t steal the candy,’ and we all try to apply that rule, and if you don’t people sometimes end up in jail. I’m interested in Warhol’s use of the Campbell soup can and Rauschenberg using readymade things — that I’m okay with. If it’s to steal photographs or paintings to create something, you shouldn’t be an artist in the first place.” [11]

Sources

[1] http://clancco.com/wp/2011/03/fair-use_appropriation/

[2] http://www.google.com/imghp?hl=en&tab=ii

[3] http://www.artinfo.com/news/story/38716/did-bob-dylan-rip-off-classic-photos-for-his-gagosian-show-see-the-evidence-that-he-did/

[4] http://www.artinfo.com/news/photos/3483/33924/

[5] http://www.seolawfirm.com/2011/04/creativity-ownership-rights-and-greed-collide-in-art-law-cases/

[6] http://www.artinfo.com/news/story/38716/did-bob-dylan-rip-off-classic-photos-for-his-gagosian-show-see-the-evidence/?page=2

[7] http://www.hollywoodreporter.com/thr-esq/why-an-allegation-beyonc-plagiarized-248208

[8] Id.

[9] http://www.independent.co.uk/news/people/news/video-beyonce-admits-copying-dance-2369849.html

[10] http://www.hollywoodreporter.com/thr-esq/artist-at-center-oscar-nominated-195544

[11] http://www.huffingtonpost.com/artinfo/french-photographer-patri_b_839619.html

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

It has been a very bad year for the National Hockey League. Three of its top enforcers died within three months of one another as a result of committing suicide and accidental overdose. Besides playing hockey, these young players all dealt with repeated, hard hits to the head and also battled deep depression.

Enforcers are also generally referred to as tough guys, and it is their role on the team to fight, either spontaneously or according to a pre-determined plan. Fighting in ice hockey is a deeply entrenched tradition. When the subject of banning it comes up, often a tidal wave of protest emerges from fans and players alike. Crowds and athletes feed off the fights, and enjoy seeing blood spilled on the ice, heads bashed with reckless abandon, and high-sticking, cross-checking, elbow-driven moves. [1]

Many think fighting deters other kinds of rough play, although that defies most logic. Others think it protects their most valuable players and helps the team bond. Some feel the sport would be better off if hockey could get back to a civil game, without the potential of injuring someone so badly that they suffer from traumatic brain injury. These and other severe injuries often change a life forever and even cause fatalities.

Medical studies currently highlight the fact that repeated concussions, even when a player is still functioning, may cause deadly consequences. It is a mystery why the hockey league continues to allow fighting, particularly in light of the events of this past summer. Enforcers in particular have suffered concussions on a more frequent basis. It is typical in these types of male-dominated sports that players say nothing about how they feel so they do not risk losing their job. If they are feeling fuzzy, dizzy, disoriented or off-center, they will rarely admit it. As they continue to be a tough guy, the unseen and silent trauma of the concussion takes hold.

Three enforcers with lots of promise passed away this summer. Rick Rypien committed suicide at 27 years old. Wade Belak took his life by hanging himself at 35 years old. Derek Boogaard ingested a deadly mixture of drugs and alcohol at 28 years old. These revered enforcers had good stats and many years of notoriety in the game of hockey. They died before they had the chance to live their lives to the fullest. And now three more names in the sports world have fallen to a silent and stealthy killer – chronic traumatic encephalopathy (CTE).

The list of athletes affected by CTE includes Reggie Fleming, Bob Probert, Dave Duerson, Terence Tootoo, Roman Lyashenko, Trevor Ettinger, and Tom Cavanaugh. To be clear, not all of these deaths were exclusively caused by CTE. Some of these individuals committed suicide; yet the links between CTE and deep depression are becoming more evident. [2][3]

Hockey, football and soccer athletes deal with head trauma the most often. CTE is noted by atypical hyper-phosphorylated tau protein deposits that are located throughout the brain. Usually they are found in higher concentrations in certain locations such as the medial temporal lobe. [4][5]

This lobe controls impulses, memories, addictions, anxiety, emotions and depression. People who play sports are at serious risk of suffering from CTEs, and thereby depression. As depression and other emotions overwhelm a person, committing suicide, whether unintentional or intentional, becomes a greater concern. It is clear that when injuries affect this area of the brain, there are more problems that manifest themselves over time.

People with CTE can have a hard time handling their impulses, and struggle to deal with their emotions and lack coping mechanisms because of damage to their brains. What may happen next with these individuals has been very harshly demonstrated with the latest deaths. Even intense counseling they received from the league did not prevent them from taking their life.

If the NHL wants to keep its players alive and in top form physically and mentally, it is clear that fighting should be banned. If the rough play and deliberate fighting of players is banned, the presence of CTE would go down dramatically. This silent killer waiting to destroy the brain and person would not affect so many.

The fighting and resultant CTE is changing the way lawyers and the courts regard injuries. While there is the longstanding verdict of Vanvalkenburg v. Northern Navigation Co., in which the court said the victim died because he was the “author of his own misfortune”, there is the very real question of whether or not players honestly know what they are getting into today.

Just because they are provided with helmets does not mean they are protected from brain damage. Thus, a personal injury case that is predicated on the negligence of a person or company causing harm to another could become the possible negligence of league officials and teams letting players go out on the ice and fighting to the point of causing serious brain injuries.

Despite the evident risks, some players are still making the decision to continue to play, even after suffering serious concussions. For instance, Sidney Crosby is still recovering from the effects of a recent concussion and will not be taking part in training camp with the Pittsburgh Penguins. Crosby has been off the ice since January and even though he knows what the worst outcome could be for him, he does not think he will retire. [6]

After being hit on the head twice in consecutive games in January, Crosby displayed some of the classic signals that indicate the presence of concussion – namely fogginess, sensitivity to light, headaches and fatigue. He had trouble driving, reading, listening to music and watching videos.

While his doctors say he can recover from these hits, they do not mention the long-term outlook should Crosby continue to play and get hit in the head. If what happened to Rypien, Belak and Boogaard is any indication, he may have a difficult future ahead of him.

Unfortunately, it may take several wrongful death cases to find out how the courts view deaths brought on by CTE. When athletes consent to playing a lucrative sport that causes head trauma, the courts’ opinion of what role leagues, managers, and even agents have in a person’s fate will have a big impact on the future of the sports world.

Sources
[1] http://en.wikipedia.org/wiki/Fighting_in_ice_hockey

[2] http://en.wikipedia.org/wiki/List_of_ice_hockey_players_who_died_during_their_playing_career

[3] http://www.sportslegacy.org/

[4] http://www.bu.edu/cste/

[5] http://www.sciencedirect.com/science/article/pii/S0165017300000199

[6] http://www.washingtonpost.com/blogs/early-lead/post/sidney-crosby-penguins-captain-to-discuss-his-health-today/2011/09/07/gIQAcUEa9J_blog.html

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