Selma – The Screenwriter’s Dilemma

Posted on February 3, 2015 03:30 by Seth F. Kirby

The movie Selma, which chronicles Dr. Martin Luther King Jr.’s 1965 voting rights campaign, has received critical acclaim and an Oscar nomination for best picture.  It has also generated controversy due to the Academy’s failure to nominate its lead actor and director for awards, which in the eyes of some is indicative of racial bias in Hollywood. Interestingly, another potential controversy hidden within the film has apparently been avoided through the careful consideration of the film’s director and screen writer.  Their actions will certainly receive the thanks of the film’s insurers, but historical accuracy has been sacrificed to avoid copyright claims.

Dr. King’s speeches are protected by copyrights held by his estate.  In 2009, the estate licensed the speeches and the rights to his life story to Stephen Spielberg’s DreamWorks production company for use in a picture to be produced by Mr. Spielberg.  Due, in part to this licensing agreement, and in part to a reluctance to seek permission from the King family for right to use the speeches, Selma’s director sought to find a way around the problem.  The solution was simply to rewrite Dr. King’s speeches in an attempt to avoid copyright infringement.  By way of example, in the film Dr. King speaks at a funeral and asks “who murdered Jimmie Lee Jackson?” His actual question was “who killed him?” Separately, Dr. King’s impassioned plea to “give us the ballot” was changed to “give us the vote.”  I am pretty sure that such minor alterations would not have saved me from a charge of plagiarism in my high school English class, but it is presently viewed as a sufficient change to avoid the ire of the King family.

Assuming that the film production maintained some form of liability insurance, which is almost guaranteed, it may afford the film protection from claims of copyright infringement.  While film production liability policies are somewhat unique, standard commercial general liability polices provide coverage for copyright infringement claims under “Coverage Part B,” which provides coverage for certain alleged “Personal and Advertising Injuries.” Under such policies, coverage is provided for negligent infringement of a copyright, but excluded for knowing/intentional violations. The workaround used in Selma presents a coverage dilemma.  The screenwriter was aware of the copyright and the potential that that the film would infringe on the protection yet he attempted to avoid a violation and may have subjectively believed that his alterations were enough to avoid a claim. Is his objective belief enough to avoid the application of the policy exclusion, or would coverage be voided if the words used violate the copyright?

Hopefully, the film will avoid generating any claims associated with Dr. King’s copyrights and no one will be forced to wrestle with this coverage question or related defenses of fair use.  It is a shame that Dr. King’s actual words were not used in the movie.  In an age when our knowledge of history is reduced to what we see on film, Dr. King’s oratory has been purposefully altered, thereby shaping our memory and potentially diminishing the power of his words.  I hope that Mr. Spielberg has better success in historical accuracy in his project. “I possess a desire” just doesn’t have the same impact.

This blog was originally posted on January 30 on Freeman Mathis & Gary, LLP, Law Blogline. Click here to read the original entry. 

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The Seventh Circuit has issued an opinion in City of Greenville, Illinois, v. Syngenta Crop Protection LLC, which limits the presumption of public access to non-privileged documents filed with a court to only those documents that influenced or underpinned a judicial decision. 

In City of Greenville, environmental groups intervened to seek access to the defendant's internal emails and business deliberations that plaintiffs had filed in opposition to a motion to dismiss. A protective order entered by the district court did not apply to materials filed in connection with a dispositive motion. The Seventh Circuit refused to permit access to uncited documents that were not considered by the district court in ruling on the motion to dismiss explaining "the presumption of public access turns on what the judge did, not on what the parties filed."  Because the documents did not affect the district court's decision, the Seventh Circuit held they need not be disclosed to the public. 

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Harris v. Quinn

Posted on July 2, 2014 08:52 by Tim Coates

In Harris v. Quinn, 11-681, the United States Supreme Court, by a 5-4 vote, struck down an Illinois law requiring home healthcare workers paid with Medicaid funds to belong to a public employee union or pay an agency fee equivalent to union dues to support the union. The court held that requiring the home healthcare workers to belong to, or support a public employee union violated their rights of free association and expression under the First Amendment in that it required them to fund and support union activities, including lobbying activities with which they might not agree. 

In so holding, the court distinguished its prior decision in Abood v. Detroit Board of Education, 431 US 209 (1977) where the court had held that public employees could be required to pay union dues, even if not union members, so long as they were provided with a refund of the union dues reflecting an amount that had been expended by the union of for lobbying activity, as opposed to activities that benefit all workers, such as negotiation of wages and working conditions. In Harris, the court emphasized that unlike in Abood, the home healthcare workers at issue were essentially not public employees at all, with the state merely providing their wages via Medicaid, but with individual employers supervising their work and determining their working conditions on a day-to-day basis. The court concluded that the state could not demonstrate a compelling interest served by the mandatory union fee provision sufficient to offset the significant imposition on the home healthcare workers’ rights to free speech and association under the First Amendment. Since the union provided little more than wage and benefit negotiation, with the balance of work-related conditions left to individual employers of the home healthcare workers, the state was unable to show that dues paid by willing union members were insufficient to fund the relatively limited union activities that benefitted all home healthcare workers. As a result, there was no justification to impinge on the First Amendment rights of non-union members by requiring them to fund the union and its activities.

Harris is significant for two reasons. First, it may spawn challenges to similar mandatory agency fees paid by non-member public employees to unions, with the success of any challenge likely centering on the degree to which the government employer actually controls the day to day activities of the individual employee, and hence the degree to which the unions activities actually benefit the non-member employees. Second, the majority all but overrules Abood, making it clear that its prior decision rests on shaky grounds, thus inviting an outright challenge to Abood which would jeopardize the ability of public employee unions to compel non-members to fund any aspect of union activity, including collective bargaining and other measures that directly concern working conditions and wages. If Abood is eventually overruled, it would be a substantial blow to public employee unions.

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In what an Illinois Appellate Court described as a case of first impression in Illinois, the court reversed the Cook County asbestos judge’s dismissal of a direct claim by an employee against a former employer for a personal injury allegedly caused by inhalation of asbestos fibers during his employment. See Folta v. Ferro Eng'g, 2014 IL App (1st) 123219 (Ill. App. Ct. 1st Dist. June 27, 2014). James Folta allegedly inhaled asbestos fibers between 1966 and 1970 at Ferro Engineering, and was diagnosed with peritoneal mesothelioma 41 years later. The Illinois Workers Compensation Act has 25-year-since-exposure statute of repose (820 ILCS 305/6(d)), and the Worker’s Occupational Disease Act has a 3-year statute of repose for asbestos-related diseases (820 ILCS 310/1(f)) (a worker is entitled to compensation only if disablement occurs within three years of the worker’s last exposure).   

The First District (Cook County, Chicago, Illinois) focused on one of the four recognized exceptions to the exclusive remedy provision of the Acts, namely that exclusivity does not extend to claims that are “not compensable under the Act.”  See Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (1990).  The other three exceptions are: (1) the injury was not accidental; (2) the injury did not arise from his employment; and (3) the injury was not received during the course of employment.  See id.  The court rejected the defendant’s proposed interpretation of the term “non-compensable” as being “non-compensable only if it does not rise out of and in the course of employment” because such an interpretation would render the other recognized exceptions meaningless.  

The court relied in part upon a 5th District (covering Madison County) case that held that the claimed injury was non-compensable and not barred, there, a claim for emotional suffering without medical or hospital bills, or lost work.  See Toothman v. Hardee's Food Sys., 304 Ill. App. 3d 521 (5th Dist., 1999).  In Toothman, as in Folta, the court rejected the defendant’s argument that compensability meant “arising out of or in the course of” one’s employment.  

Folta also relied upon Schusse v. Pace Suburban Bus Div. of the Reg'l Transp. Auth., 334 Ill. App. 3d 960 (1st Dist., 2002), where an employee brought a negligent spoliation claim against his employer.  That decision was based upon the distinction under Illinois law between damages for spoliation and damages for the underlying injury, where the spoliation damages were not recoverable under the Acts.  

The Folta court’s definition of “compensability” focused solely on the issue of recoverability, which is evident in the court’s most succinct holding, that Plaintiff’s injury was “quite literally not compensable under the Act, and that all possibility of recovery is foreclosed because of the nature of Plaintiff’s injury.”  Folta, 2014 IL App (1st) 123219, at 14.  The court rejected the defendant’s claim that this decision would lead to obscure results where, e.g., employees could bring a direct action against an employer in every case in which the Industrial Commission denied the workers compensation claim, explaining that the decision was limited to circumstances in which a potential claim under the Act was time-barred before the claimant learned of the claim.

Missing from the court’s opinion is any differentiation of the types of injuries and damages that the Acts were originally meant to address.  For example, in Toothman, the Court held that the claim was not compensable because it was not the kind of injury that the Act recognized i.e., it was not a claim for personal injury damages supported by medical and hospital bills or other concrete damages.  The same was true in Schusse, where the court explained: “Generally, only medical bills and temporary or permanent, partial or total disability are compensable under the Act,” (citing 820 ILCS 305/8) and that spoliation damages were different in kind, and therefore, not “compensable.”  See Schusse, 334 Ill.Ap.3d at 968 (explaining that “the spoilation of evidence alleged in this case did not generate medical bills, require plaintiff to take time off from work, or seek work-related medical treatment”).  The Folta court also did not address the potential scenario where an employer elects to forego the affirmative defense of either statue of repose in any forthcoming or pending Workers Compensation claim, thus potentially making an otherwise non-compensable claim compensable.  

The import of this decision, at least absent further appellate review, is manifest, and alters the legal landscape with respect to direct claims against one’s employer for asbestos-related injuries, which frequently do not manifest until all relevant statues of repose have elapsed.  Such direct claims were consistently barred in both Cook County and Madison County Illinois by the judges presiding over the respective asbestos dockets. This dramatic change portends a massive influx of new case filings and significant motion practice by current Illinois plaintiffs to seek leave to amend their pleadings to add direct employers. This, in turn, may create a whole new subset of newly-invigorated legal and factual analyses related to each employer’s relative role in the causation of the claimed injury, which plaintiffs will now be obligated to address.  As of this posting, the defendant in Folta has not moved for leave to appeal to the Illinois Supreme Court.  

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Categories: Asbestos | Law Suit

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In a recent unpublished[1] opinion from the Seventh Circuit Court of Appeals (decided on May 21, 2014), the court relied on video evidence in affirming summary judgment for the defendant in a Section 1983 case.  In Rivera v. Jimenez, 2014 WL 2111145, the plaintiff, a Wisconsin inmate, alleged that a prison guard violated his constitutional rights by using excessive force and parading him naked in front of other inmates. The video, recorded by another guard, captured the entire series of events which begins with guards demanding that the plaintiff remove a towel draped over the window in his cell door.  Rather than comply, the plaintiff yelled profanities and threatened to fight anyone who entered the cell.  The guards shot pepper spray into the cell which prompted the plaintiff to remove the towel.  Plaintiff was strip searched and removed from the cell naked and taken to the shower to wash off the spray. The same guards returned the plaintiff (still naked) to a new cell. Each trip took about a minute.  The plaintiff then used the mattress to block the window again and refused to comply with orders  to uncover the window. In the process of removing plaintiff to a third cell, the plaintiff resisted by refusing to stand and walk. The guards pushed him into the third cell with their knees.

On summary judgment, the defense introduced a copy of the video along with affidavits from the guards involved. The district court held that the video foreclosed any possible claim against the guards.  On appeal, the plaintiff objected to the district court’s reliance on the video arguing it was “doctored” pointing out alleged discrepancies in the recording. The Seventh Circuit rejected the plaintiff’s accusation stating that the “video shows exactly what the district court said it does” and held that summary judgment “is appropriate when a video discredits the plaintiff’s version of events” relying on Scott v. Harris, 550 U.S. 372 (2007); Poole v. City of Shreveport, 691 F. 3d 624 (5th Cir. 2012); Thomas v. Durastanti, 607 F. 3d 655 (10th Cir. 2010) and Wallingford v. Olson, 592 F. 3d 888 (8th Cir. 2010).

The Seventh Circuit’s holding in Rivera demonstrates the power of video evidence and how it can be effectively used by the defense.

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Categories: Governmental Liability | Law Suit

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In a case that should bring to end the disputes and litigation as to whether local governmental bodies can invite a community leader to open its meetings with prayer, the United States Supreme Court today ruled on the long-anticipated case of Town of Greece (NY) v. Galloway, in a 5-4 decision. Opening of town monthly meetings with prayer does not violate the Establishment Clause, as long as the prayers do not “over time” proselytize, denigrate or promote religion. 

Justice Anthony Kennedy writing the majority opinion, states: "The prayer opportunity in this case must be evaluated against the backdrop of historical practice," writes Justice Kennedy.  "As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of 'God save the United States and this  honorable Court' at the opening of this Court's sessions." 
The Court found that the prayers are ceremonial and in practice with long-standing traditions of our nation’s history.

Justice Kennedy remarked that the audience is intended to be the members of the council or board, rather than the public. 

"The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers." 

Importantly, the majority held further that the Supreme Court will not place limitations on the speech, such as the name of the deity invoked, which would be deemed as involving government too extensively in religious matters. So, if the prayer is Christian in content, governmental scrutiny is limited to a broad consideration, rather than submission to a censor’s pen.

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This past holiday season, Target Corporation was victimized by one of the largest retail data breaches in the United States. On December 19, 2013, Target confirmed reports that hackers stole payment data from approximately 40 million customers who shopped in its stores from November 27, 2013 through the middle of December. Since learning that data was also stolen from online shoppers, Target has since revised the number of potential customers affected up to between 70 million and 110 million. Retail analysts anticipate Target’s security breach will result in massive losses for the retailer due to federal and state regulatory penalties and lost revenues from cautious shoppers. More immediately, Target should be concerned with the onslaught of plaintiff class action lawsuits typically filed after a retail security breach. 

One way Target could have reduced the risk of defending class action lawsuits after a security breach (at least from claims stemming from online purchases) was to include an arbitration clause in its online Terms and Conditions. Online retailers are starting to require that their customers agree to arbitrate disputes on an individual basis only, with customers being obligated to waive any rights they might have to pursue claims through class actions. Litigation in this area over the last several years has focused on the enforceability of these online arbitration agreements.

For example, in 2012, customers sued and its subsidiary (an online apparel and shoe retailer) in various courts, alleging they received emails from Zappos notifying them that a hacker had breached Amazon’s computer servers and downloaded files containing their personally identifying information. Zappos and Amazon attempted to compel arbitration, arguing that Zappos’ terms of use require customers to arbitrate any disputes based on their use of the retailer’s website. However, the court denied Amazon and Zappos’ request based in part on deficiencies in the customers’ consent. 

In an upcoming article, Jones Walker commercial litigation attorney, Mia Mitchell Grandpre (New Orleans, Los Angeles), will review the latest court opinions in this area and propose best practices for companies ensuring the enforceability of online arbitration agreements. 

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Categories: Class Actions | Law Suit

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No matter how hard the NFL tries to get away from the concussion lawsuits, they won’t go away. Most recently former Chicago Bears quarterback Bobby Douglass and former Northwestern player John Cornell is suing the NFL and helmet manufacture Riddell. On November 4, 2013, the two former players filed suit alleging concussion-related injuries resulting from their time on the field.

Douglass, 66, was quarterback for the Chicago Bears from 1969 to 1975. He later went on to play for the San Diego Chargers, New Orleans Saints and Green Bay Packers. Cornell, 66, is a Northwestern graduate that participated in two NFL training camps with the New Orleans Saints.

The former players claim they suffered multiple concussions and sub concussive brain injuries that put them at risk for brain damage and chronic traumatic encephalopathy (CTE). CTE is a degenerative brain disease commonly found in athletes who have a history of repeated brain trauma.

The lawsuit accuses the NFL of negligence and fraudulent misrepresentation. The former players argue that the league knew about the harmful effects of concussions yet failed to warn players. More so, they claim that the NFL falsely told retired players that there was no evidence correlating on-field injuries to long-term brain damage. The former players say that the helmet manufacturer, Riddell, negligently failed to warn players that their helmets wouldn’t protect them from the type of on-field injuries they sustained.

Douglass’ attorney said “Mr. Douglass gave his blood, sweat and tears to the game and he now needs the league to step up and care for him.”

As much as the NFL tries to move passed the concussion lawsuits, it’s not ending. In August 2013, the NFL reached a $765 million settlement with over 4,500 former players to settle a class action for concussion-related injuries. Senior U.S. District Judge Anita Brody still needs to hold hearings to determine whether the agreement will be approved. Either way, the impact of that settlement is unclear on Douglass and Cornell’s lawsuit. It is likely that this lawsuit will be consolidated with the class action suit. 

This blog was posted today on the Sports & Entertainment Law Blog. Click here to read the original entry. 


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This month, a complaint was filed against Fidelity National Title Group, Inc. in Los Angeles Superior Court by one of its former employees alleging discrimination based on gender, pregnancy, and a medical condition, as well as retaliation, harassment, and intentional infliction of emotional distress.

In Stepp v. Fidelity National Title Group, the former employee, Jessica Stepp, a female attorney, was hired by the company when she was five (5) months pregnant. She claims that throughout her pregnancy, her supervisor and coworkers made disapproving remarks regarding her pregnancy and of her choice to have children, for example, asking when she would be getting her tubes tied. When she returned to work after delivering her child, she claims her supervisor was unaccommodating. She requested a windowless office to allow her to pump breast milk, which her supervisor denied and told her to “figure things out.” Her supervisor also denied her a lock for her office door, and instead required her to hang a “do not disturb” sign on her door’s exterior announcing that she was in the midst of pumping. After a worker accidentally walked in on her with her top off, she installed a lock herself.

Throughout her employment, Stepp further claims her supervisor refused to lighten her case load even when medically necessary. Following the birth of her child, Stepp became pregnant again, but miscarried resulting in an emergency medical leave. During this period, motions were due to be filed in court. However, her supervisor refused to assign them to another attorney stating Stepp had to figure out a way to get them done herself.

The complaint further alleges that not only did she receive a heavy case load, but other female attorneys in the office did as well, a problem not suffered by any of her male coworkers. Her workloads forced her to work seventeen (17) hours per day, and she was forced to take on the additional duties of a paralegal after one quit. Of the other women heavily burdened (all of whom had children), one quit her job because she felt she could be liable for malpractice as a result of her unmanageable caseload.

Finally, the complaint claims Stepp was fired as a result of inadequate performance, despite all other male employees being given a probation period prior to termination.

This case underlines the importance of employers treating their employees equally to avoid the filing of lawsuits alleging discrimination. As we found out several weeks ago in Inconsistent Treatment of Employees Could Land You in Hot Water, disparate treatment of employees is sufficient to support a claim for discrimination and is an issue properly determined by the trier of fact. Here, it appears Stepp has met her burden in alleging disparate treatment among female and male coworkers such that her case may proceed. It is therefore important for employers to ensure they, as well as supervisors, follow clear employment protocols and are trained to avoid situations that may give rise to liability.

This blog was posted on August 27 on Jampol Zimet’s Insurance Defense Blog. Click here to see the original post. 

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Categories: Discrimination | Law Suit

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NFL, Players Reach Concussion Agreement

Posted on August 30, 2013 02:45 by Tim Epstein

While the $765 million proposed settlement is a considerable sum of money, a final judgment figure would possibly have greatly exceeded this dollar amount; not to mention legal fees and expert costs to get there, along with continued acrimony between necessary business partners (NFL players and the League) related to the MDL.  The proposed settlement appears to resolve all claims in the MDL against the NFL defendants, and apply to every former NFL player who will have retired by the time the Court approves the settlement.  At this stage, however, it appears that the litigation will continue as between the helmet manufacturers and the players.

For latest news regarding the settlement, click here

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