Author: TLR BLOG

Are Equal Opportunity Employers Actually Equal?

TLR BLOG

By Marra Kassman, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In 2007, Damiana Ochoa took maternity leave from her current position (a cigarette selector) at McLane Sunwest in Arizona.[1] In usual fashion after an individual takes maternity leave, she soon returned to her job to find that she had to pass a physical test, or else she would be terminated from the company.[2] Therefore, in January 2008, Ochoa filed a formal charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was discriminated based on her sex “in violation of Title VII of the Civil Rights Act of 1964” against her employer, McLane.[3] The EEOC began its investigation into McLane by ordering an administrative subpoena, which sought information both about employees who took the physical test and general information about the test itself.[4] The District Court held that some of the information that the EEOC sought to obtain from McLane, which was described as pedigree information, was irrelevant and not required to move forward with its investigation in this particular case.[5] The EEOC then appealed to the Court of Appeals for the Ninth Circuit, who reviewed the case de novo and reversed the District Court’s decision.[6] In April 2016, the petitioner, McLane, petitioned the Supreme Court for writ of certiorari, which was granted in September 2016.[7] The case is on the Court’s calendar to be heard for oral arguments on February 21, 2017.[8]

In this case, the main issue is “whether the district court correctly held that some of the information sought by the subpoena is not relevant to the EEOC’s investigation.”[9] The information at issue pertains to employee “pedigree information” which includes a phone number, social security number, name, and last known address.[10] McLane argues that providing this information is not necessary for this case because the company previously provided the EEOC with the employee identification numbers, genders, job description, and score of the test for each employee who previously took the physical exam.[11] McLane argues that since it voluntarily gave the EEOC some information that was necessary, it does not have to provide any further information because it would be irrelevant.[12] However, the governing standard is relevancy, not necessity, so “if the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it.”[13] Congress has given the EEOC the power to decide what is relevant in an employment discrimination case, not the actual employer.[14] The court concluded that since “the pedigree information meets the broad standard for relevance, the EEOC is entitled to obtain that information now.”[15]

Even though the Court of Appeals did not agree with McLane’s arguments, one judge did. Judge Smith concurred in the opinion and argued that maybe McLane was simply trying to protect his employees by withholding their personal information.[16] The majority, however, thought that McLane’s arguments lacked merit.[17] It will be up to the Supreme Court in February to decide if it agrees with the majority or the concurrence here, but based on University of Pennsylvania v. EEOC, it is likely that the Court will rule in EEOC’s favor.[18]

In that case, the EEOC brought suit to enforce a subpoena after the University of Pennsylvania failed to release information relating to peer reviews for employees trying to obtain tenure status.[19] There, associate Professor Rosile Tung was denied tenure status in 1985 after the department chairmen sexually harassed her and she was told that the school as not interested in “China related research.”[20] Therefore, Tung sued the University for discrimination on the basis of sex and race.[21] In that case, the Court said that Congress decided on what materials need to be disclosed to the EEOC and that it is not up to the employer’s discretion on what should and should not be disclosed.[22] Even though the University of Pennsylvania case was about the disclosure of peer-reviewed information[23], it is similar to the McLane case in the sense that the company also withheld information from the EEOC.[24]

It is likely that, just like in University of Pennsylvania, the Supreme Court will find that McLane has to disclose withheld information to the EEOC.[25] This will assist the EEOC in its investigation into the company and of Ochoa’s claims against it.

[1] U.S. E.E.O.C. v. McLane Co., 804 F.3d 1051, 1054 (9th Cir. 2015).

[2] Id.

[3] Id. at 1053; 3 U.S.C. § 411 (1997).

[4] U.S. E.E.O.C., 804 F.3d at 1053.

[5] E.E.O.C. v. McLane Co., WL 5868959 *6 (D. Ariz. 2012).

[6] U.S. E.E.O.C., 804 F.3d at 1059.

[7] McLane Co. v. E.E.O.C., 137 S. Ct. 30 (2016).

[8] Ballotpedia, McLane v. EEOC, https://ballotpedia.org/Supreme_Court_cases,_October_term_2016-2017#tab=Cases_by_sitting (last visited Jan. 6, 2017).

[9] U.S. E.E.O.C., 804 F.3d at 1053.

[10] Id.

[11] Id.

[12] Id. at 1057.

[13] Id. See University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990).

[14] University of Pennsylvania, 493 U.S. at 193.

[15] U.S. E.E.O.C., 804 F.3d at 1057.

[16] Id. at 1059.

[17] Id. at 1057.

[18] Id. See University of Pennsylvania, 493 U.S. at 188.

[19] University of Pennsylvania, 493 U.S. at 188.

[20] Id. at 185.

[21] Id.

[22] Id. at 188.

[23] Id. at 183.

[24] U.S. E.E.O.C., 804 F.3d at 1054.

[25] Id. See University of Pennsylvania, 493 U.S. at 182.

 

GIFs and the Fair Use Doctrine

TLR BLOG

By Delaram Yousefi, J.D. Class of 2017 Touro Law Review  Staff Member

Graphics Interchange Format (“GIF”) is a graphic image file that is “animated by combining several other images or frames into a single file.”[1] Animated GIFs are primarily used by internet users to help them convey creative and entertaining responses to digital content that could not be expressed by using simple words alone.[2] GIFs are incorporated in several different ways as they appear throughout many online articles and are heavily utilized in social media messaging platforms. The vast majority of GIFs are short clips taken from copyrighted comedy or reality TV shows, animated sitcoms, talk shows, and even music videos. Thus, the creator of the underlying works that are featured in these GIFs may bring a copyright infringement action against the alleged infringer—the creator of the GIF— for violating the author’s exclusive rights to his or her content. Although there is no case law to support how the courts would decide this particular issue, it is very likely that the courts would hold in favor of the alleged infringer based upon the “fair use” defense.

Once an author has received copyrighted protection for the material that she has created, she is given exclusive rights to these works. This means that she has the right to be compensated when an infringer uses this material without her permission. However, an author’s exclusive rights are not unlimited. For instance, the fair use doctrine allows others to use copyrighted material without the consent of the original author. To determine whether the fair use defense has been established, the court must analyze the following four factors: “(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”[3] Since several of these factors are broken down into additional subfactors, it is essential to examine each of these factors in further detail.

The first factor is divided into the following two subfactors. The court must first analyze whether the use of the secondary work is either for commercial or non-profit educational purposes. It must next determine whether the new work is “transformative” by looking to see whether the secondary work altered the original work by furthering its purpose or by adding a new message to it.[4] GIFs are freely accessible on most popular social media platforms and there is no compensation required to use these features. GIFs have no sound and are automatically played in a continuous loop. Moreover, they are sometimes accompanied by a group of words to further illustrate a specific expression being conveyed by an internet user. Since these GIFs will not likely be considered commercial in nature, this factor will weigh heavily towards the creator of the GIF. Furthermore, these types of alterations to the original content would likely be considered transformative because it adds enough new meaning to the original work to establish fair use.

The second fair use factor evaluates whether the nature of the copyrighted work is creative or factual, and also whether it is a published or unpublished work.[5] Within this very broad spectrum, an author has a much greater chance to shield his or her work against a fair use defense when the work is a creative published work rather than an unpublished biography. Since the majority of GIFs on the internet are based on creative published works, courts will have a difficult time favoring the alleged infringer under this factor. However, as further discussed below, when the court examines this factor in conjunction with the other three factors, there will be a significant preference towards finding for the alleged infringer.

The third factor for fair use utilizes the “quantitative and qualitative evaluation” to examine the portion of the copyrighted work that was used in respect to the entirety of the original work.[6] It is important to note that if the alleged infringer uses only a small portion of the author’s work, but that small portion is considered to be the “heart” or the main aspect of the entirety of the work, then the court will most likely find in favor of the original author.[7] GIFs, however, are only a few seconds long and are virtually incapable of capturing the heart of the original author’s work. For instance, if the court was to compare a GIF that lasts for only a few seconds to an original work—a work that could range in duration anywhere from three minutes for a music video and up to three hours for a movie—it would have a difficult holding that the two-second GIF infringed upon the “heart” of these longer works.

The fourth and final factor for fair use looks at the damage that the use of the author’s work will have on the market. There must be evidentiary proof that the use is harming the market or that such continued method of use will negatively affect the potential market.[8] It is unlikely that an author or a creator will have enough evidence to prove current or future harm caused by GIFs. Their intended use is to last no more than a few seconds, as its main purpose is to demonstrate a certain expression or reaction. After it has fulfilled its purpose, there is no further reason for its use. Thus, it has not harmed the author in any way. It could even be argued that these GIFs actually help to promote the shows and music videos featured in them. As people relate to these clips, they are more likely to start or continue watching that specific show. This trigger has a positive benefit for the author.

Since the ultimate purpose of the use of GIFs is to demonstrate a certain feeling, expression, or reaction, all four factors will ultimately favor the alleged infringer. Courts have not yet begun to tackle the issues that may arise from the use and share of GIFs, mainly because GIFs are new to the internet and social media world. However, the day will come when authors of a copyrighted content will demand compensation for the material being used on the internet without their consent. This issue may not arise directly out of the use of GIFs, but it may be based on similar applications with a comparable purpose. Thus, courts should consider the same type of analysis in determining whether a certain application satisfies the factors of the fair use doctrine.

[1] David William, What is a GIF?, Small Business trends, (Mar. 8, 2016), https://smallbiztrends.com/2016/03/what-is-a-gif.html.

[2] Id.

[3] 17 U.S.C. § 107 (1992).

[4]Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006).

[5] Blanch, 467 F.3d at 256.

[6] Wright v. Warner Books, Inc., 953 F.2d 731, 738 (2d Cir. 1991).

[7] Harper & Row, Publishers v. Nation Enters, 471 U.S. 539, 565 (1985).

[8] Rogers v. Koons, 960 F.2d 301, 312 (2d Cir. 1992).

Hidden Dangers in Cosmetics and the Need for Stronger Regulations

TLR BLOG

By Katherine Lalor, J.D. Class of 2016 Touro Law Review Senior Staff Member

Images of beauty slam into your vision at every turn. You cannot escape the bombardments of visual stimulation indicating what is beautiful. The little beauty in a bottle may or may not contain harmful chemicals such as formaldehyde or mercury, and the F.D.A. is powerless to ensure that what women and men slather on their face and body is safe. In a recent NY Times article, Their Hair Fell Out. Should the F.D.A. Have the Power to Act? the need to obtain stronger regulations in the cosmetic industry was highlighted.[1] The article also revealed how a new bill will provide the FDA with the necessary authority to regulate the cosmetic industry.[2]

The NY Times article exposed how dangerous cosmetics can be when it reported that Wen by Chaz Dean settled a class action suit for $26.25 million dollars.[3] The lawsuit alleged that the product caused consumers to experience itching, rashes, and even hair loss in large amounts.[4] For instance, a nine-year-old child lost all her hair within days of using Wen’s Sweet Almond Mint Cleansing Conditioner.[5] Although the adverse effect is not universal and there are other consumers who love the product, many other consumers are unaware of the potential dangers.[6]

In addition, there are other cosmetic products on the market that include cancer-causing chemicals.[7] The Center for Environmental Health (“CHE”) based in California discovered that 98 shampoos, soaps, and other personal care products made by Colgate-Palmolive, Colomer, and Paul Mitchell contained cancer causing chemical cocamide diethanolamine (cocamide DEA).[8] California listed the chemical “as a chemical known to cause cancer based on the assessment by the International Agency for Research on Cancer, which evaluated skin exposure tests on animals.”[9] Although the CHE has been able to persuade some companies in writing to change their products by excluding cocamide DEA, all of the companies must be required to exclude this hazardous chemical.[10] The companies that have agreed to the change are Palmolive’s Caprice Shampoo, Lush’s Fair Trade Honey Shampoo, and Michel Design Works’ Lemon Basil Shea Butter Hand Soap.[11]

Furthermore, a harmful chemical is included in almost every cosmetic product as illustrated in safecosmetics.org, Chemicals of Concern.[12] This website lists all of the harmful chemicals included in everyday products such as eyeliners, which consists of carbon black that has been linked to cancer; lip balms, which consists of cancer causing chemical benzophenone; and shampoos for adults and babies that contain formaldehyde that is also found to cause cancer.[13]

The Federal, Food, Drug, and Cosmetic Act was passed in 1938 after a “legally marketed toxic elixir killed 170 people, including many children.”[14] However, this Act mostly regulated the pharmaceutical industry and left the cosmetic industry unregulated.[15] Currently, the F.D.A. has the power to “take action against [a] company only if it could prove a product had been mislabeled or contaminated.”[16] However, the F.D.A. cannot compel companies to release “safety tests and other manufacturing data.”[17]   The F.D.A. relies on consumers to report issues directly to them.[18] This can cause unreliable data since most consumers complain directly to the companies who do not report to the F.D.A.[19] Moreover, once a company is found to have mislabeled or contaminated its product, the F.D.A. can only attempt to persuade the company to do a voluntarily recall.[20]

The legislature is proposing the Feinstein-Collins Bill that would strengthen the 1938 law.[21] Large cosmetic companies such as Estee Lauder, Johnson & Johnson, Procter & Gamble, as well as other diverse groups, are backing the bill.[22] The objective is to re-establish consumer confidence by obtaining “consumer regulations that best serve the public health and give consumers confidence in the products and ingredients they choose for their families.”[23] The bill would require that companies report “serious adverse” reactions directly to the F.D.A. with an annual report of all “adverse events.”[24] The F.D.A. would have the power to “order companies to recall products found to be dangerous.”[25] The bill would also “collect about $20 million in fees annually from beauty care companies to help cover the cost of confirming the safety of about five ingredients each year that are suspected of causing problems.”[26]

However, the Independent Cosmetic Manufacturers and Distributors, which include the distributor of Wen and Mary Kay, are part of the “beauty trade associations that has been aggressively lobbying Congress to block the passage” of the bill. The group claims that “it falls short in providing one clear national and uniform safety standard.”[27] An alternative bill has been proposed that would still require companies to notify the F.D.A. of “serious cosmetic adverse events,” but “it would not grant the agency the power to order a recall or collect industry fees to pay for new programs, such as the safety evaluation of cosmetics ingredients.” [28] Finally, it would ensure that the supporters of this alternative bill would “broadly and retroactively pre-empt any tougher state laws.”[29]

The need to regulate the cosmetic industry is long overdue, and the Feinstein-Collins Bill will ensure that products consumer’s use are safe. Currently, the cosmetic industry is not mandated to report adverse reactions even if someone dies using their products.[30] An independent party must oversee the ingredients used in cosmetics not only for the safety of consumers but also to relieve the consumer’s fear and confusion in using cosmetics.[31] The Feinstein-Collins Bill will give the proper authority to the F.D.A.[32] The bill will raise revenue that will be used to test products and can require companies to pull harmful cosmetics off the shelves.[33] The alternative proposal would not fully safeguard consumers because it lacks the resources to raise revenue used to test the products and it would limit the power the F.D.A would have in recalling destructive cosmetics.[34] Losing your hair can be traumatic especially if you are a nine-year-old girl. Having the power to prevent the effect of hair loss or a life-threatening illness such as cancer is imperative and can only be accomplished with strong regulations.

[1] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] L.V. Anderson, The FDA Can’t Recall Dangerous Cosmetics, and the Industry Wants to Keep It That Way (Aug. 16, 2016), http://www.slate.com/blogs/xx_factor/2016/08/16/the_fda_can_t_recall_dangerous_cosmetics_but_a_bill_could_change_that.html.

[7] Lawsuit Launched s Testing Finds Caner-Causing Chemical in Nearly 100 Hari Care and Personal Care Products, (Aug. 27, 2013), http://www.ceh.org/news-events/press-releases/content/lawsuit-launched-testing-finds-cancer-causing-chemical-in-100-shampoos-haircare-products/.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Chemicals of Concern, http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/,(last visited Dec.1, 2016).

[13] Id.

[14] U.S. Food & Drug Administration, www.fda.gov (last visited Nov. 12, 2016).

[15] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[31] L.V. Anderson, The FDA Can’t Recall Dangerous Cosmetics, and the Industry Wants to Keep It That Way (Aug. 16, 2016), http://www.slate.com/blogs/xx_factor/2016/08/16/the_fda_can_t_recall_dangerous_cosmetics_but_a_bill_could_change_that.html.

[32] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[33] Id.

[34] Id.

The Clash Between Parody and Copyright Infringement

TLR BLOG

By Daniel Pojero, J.D. Class of 2017 Touro Law Review Senior Staff Member

Parody and copyright infringement are constantly at odds within intellectual property law because of their paradoxical relationship. While copyright protection ensures an author exclusive rights to his or her original work of authorship, a parodist may rely on the Fair Use defense to forestall any liability for infringement, even though the parodist has copied part of the original work.[1] A parody is a method of criticism that operates by closely imitating a work for comic effect or ridicule; so a parody necessarily makes use of another creative work.[2] This is where the conflict between the two concepts exists.[3] Where typically a license is required to make use of a copyrighted work, the author is unlikely to grant permission or a license to a parodist since a parody by its nature will make fun or ridicule the author’s work.[4] Thus, the parodist employs the Fair Use affirmative defense, which allows for a reasonable and limited use of the copyrighted work without the author’s permission.[5]

Recently, Dr. Seuss Enterprises, L.P. (“Dr. Seuss”) filed a complaint against, inter alia, ComicMix LLC (“Comicmix”) in the Southern District of California for Copyright Infringement, Trademark Infringement, and California statutory Unfair Competition, seeking to enjoin ComicMix from distributing its alleged infringing work, “Oh the Places You’ll So Boldly Go.”[6]   Relying on the sustained familiarity of Dr. Seuss books, the alleged infringing work juxtaposed the recognizable Dr. Seuss theme, illustration, and stylization with the Star Wars characters.[7] The complaint was filed on November 10, 2016, and the Defendant, ComicMix, has not yet filed an answer.[8] Dr. Seuss alleges that ComicMix has misappropriated protected copyright elements into the infringing work, such as the title, story arc, characters, and illustrations.[9] The infringing work appears to recreate entire pages from the Dr. Seuss books with meticulous precision.[10]

ComicMix is likely to assert that its work is a parody that falls within the parameters of the Fair Use doctrine.[11] The courts have struggled with parody cases when ascertaining whether the parody falls within the scope of Fair Use, or if it is instead an infringing work.[12] The Copyright Act articulates criticism as one of the purposes behind Fair Use.[13] A parody is a transformative use of a well-known work that critiques or ridicules the original.[14] Therefore, the issue becomes whether there is an implication that parody enjoys more latitude than other types of works when Fair Use is asserted. If parody fails to be protected by the Fair Use doctrine, then the result could be the disappearance of parody as an artistic form of social criticism and comment.

Consequently, it must be determined by the Courts what constitutes a valid parody under the Fair Use doctrine.   Copyright Act section 107 enumerates four factors that must be analyzed to determine whether a use of a copyrighted work is fair use.[15] The first factor analyzes the “purpose and character of use, including whether the use is commercially motivated or instead is for non-profit educational purposes.”[16] The court analyzes the first factor by evaluating to what extent the use is transformative.[17] The use of the copyrighted material must be productive and put forth the copied material in a different manner or with a different purpose from the original.[18]  Where the alleged infringing work can be a substitute or makes the purchase of the original unnecessary, it is highly unlikely that the court will sanction it as being fair use of the original.[19]

The second factor ascertains the nature of the copyrighted work.[20] This factor recognizes that certain types of works are more deserving of copyright protection than other types of works.[21] Creative works do not enjoy as large a scope as do informational works designed to inform or educate its audience.[22]

The third factor looks to the “amount and substantiality of the copying in relation to the copyrighted work as a whole.”[23] This factor evaluates whether the quality and value of the copied portions are reasonable in relation to the purpose of the copying.[24]   Unfortunately, no black line rule exists. Courts have held that use of an entire work constituted fair use, whereas in other instances using a mere fraction of the work did not qualify as fair use.[25] The Supreme Court, however, with respect to parody, has held that “[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original’s heart.”[26] A parody enjoys more leniency here because it must use enough of the original work to conjure up a recognizable allusion to the work it is aiming to ridicule.[27]

The fourth factor evaluates the “effect upon the potential market or value” of the plaintiff’s copyrighted work.[28] The Second Circuit articulated this factor as a balancing between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.[29] If the adverse effect the alleged infringing use will have on the copyrighted work is minimal, then less public benefit need be shown to justify the use.[30] However, in the parody context, although a parody may aim at destroying the artistic or commercial value of the original work through its criticism, this sort of market effect does not produce a cognizable harm under the Copyright Act.[31] The Court must differentiate between fierce criticism that quashes demand and copyright infringement that usurps it.[32]

Whether ComicMix’s work satisfies the elements of fair use in the context of a parody will be the main issue decided by the court. ComicMix must show the juxtaposition of Dr. Seuss’s theme and stylization with the Stars characters conjures up the reasonable perception of a parody.[33] The fair use factors are a multifaceted analysis of assessing where the author’s exclusivity should stop to best serve the overall objectives of copyright law.[34] A dynamic interrelationship exists between the factors because the factors build upon each other to create the concept of fair use.[35]

[1] 4-13 Nimmer on Copyright § 13.05 (2015).

[2] Id.

[3] Id. On one hand, copyright protection does not permit copying of a work, and on the other, fair use allows for copying when the four factors of fair use are satisfied.

[4] See generally Rich Stim, Summaries of Fair Use Cases, Stanford University Libraries: Copyright and Fair Use (Nov. 26, 2016) http://fairuse.stanford.edu/overview/fair-use/cases. Weird Al, a parodist, relies on obtaining licenses to conduct his work, rather than relying on fair use, which begs the question if a parodist should be required to obtain a license since it is conceivable that an original author will license their work to parodists.

[5] Black’s Law Dictionary 676 (9th ed. 2011). 4-13 Nimmer on Copyright § 13.05 (2015).

[6] Pls.’ Compl. Dr. Seuss Enter., L.P. v. ComicMix LLC, No. 3:16-cv-02779-JLS-BGS at 1-4 (S.D. Cal. 2016) Complaint filed November 10, 2016.

[7] Id.

[8] Id.at 5-11.

[9] Pls.’ Compl. Dr. Seuss Enter., L.P., No. 3:16-cv-02779-JLS-BGS WL 274176015.5 (S.D. Cal. 2016).

[10] Id. at 6-9. Example images are provided within the Plaintiff’s Complaint.

[11] Id. at 10.

[12] 4-13 Nimmer on Copyright § 13.05 (2015).

[13] 17 U.S.C. § 107(2016).

[14] Black’s Law Dictionary 1226 (9th ed. 2011).

[15] 17 U.S.C. § 107(2016).

[16] Id.

[17] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591-92 (1994).

[18] Id.

[19] Peter Letterese & Assocs. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1315 (11th Cir. 2008).

[20] 17 U.S.C. § 107(2016).

[21] Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1268 (11th Cir. 2014). See generally Diamond v. Am-Law Corp., 745 F.2d 142 (2d Cir. 1984) (stating informational works may be more freely published).

[22] Id.

[23] 17 U.S.C. § 107(2016).

[24] Peter Letterese & Assocs. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1314 n.30 (11th Cir. 2008).

[25] See e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985) (copying a few hundred words from a book was too much to quote from essentially what was the “heart of the book”; Bill Graham Archives, LLC. v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324, 330–331 (S.D.N.Y. 2005) (reformatting the entirety of plaintiff’s images into thumbnail images constituted fair use.

[26] Campbell, 510 U.S. at 588 (1994).

[27] Id.

[28] 17 U.S.C. § 107(4).

[29] MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981).

[30] Id.

[31] Campbell, 510 U.S. at 591-92 (1994).

[32] Id. at 592.

[33] Id. at 582.

[34] Campbell v. Acuff-Rose: Justice Souter’s Rescue of Fair Use, 13 Cardozo Arts & Ent. L.J. 19, 22 (1994).

[35] Id. at 23. See Campbell, 510 U.S. at 577-78.

New York Catches Up Expanding the Rights of Nonbiological Parents – Overruling Alison D. in Brooke B.

TLR BLOG

By Mercedes Matias, J.D. Class of 2017 Touro Law Review Senior Staff Member

On August 30, 2016, in Brooke S.B. v. Elizabeth A.C.C,[1] the New York Court of Appeals held “[w]here a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing, as a parent, to seek visitation and custody,” effectively overturning the 25-year rule of Alison D., over nontraditional families.[2]

Decided in 1991, the holding in Alison D. v. Virginia M., stated that where there lacked a biological or legal relationship between the unmarried third-party partner and the subject child, as required under Domestic Relations Law § 70, the third-party lacked standing to seek visitation or custody regardless of the previous nurturing relationship between them.[3] The Court of Appeals further justified its position citing the constitutional rights of biological parents to be free from the imposition of third-party rights, which could “limit or diminish the right of the concededly fit biological parent to choose with whom her child associates.”[4] However, the Court of Appeals clearly stated that where a legal adoption or marriage of the parties existed, the nonbiological parent had standing to sue. Subsequent New York decision supported this holding over the next 20 years.[5]

In 2010 in the case of Debra H. v. Janice R.,[6] the Court of Appeals provided a glimmer of hope for nontraditional families. Debra H. and Janice R., a same-sex couple who prior to the marriage agreed to conceive a child.[7] Janice H. gave birth to the subject child after their civil union in Vermont.[8] Under Vermont Law, both Debra H. and Janice R. were considered the parents of the child. When the parties separated, Debra H.’s visits with the child were frustrated by Janice R. Debra H. petitioned for joint legal and physical custody. The New York Court of Appeals held that under the doctrine of comity, Vermont’s recognition of Debra H. as a “parent” conferred standing for her to petition for custody and visitation in the State of New York.[9] This case did not overrule Alison D. and did not resolve the lingering issues of nontraditional families who were unable to marry or seek formal adoptions of their children within the State of New York.

After Alison D. and Debra H., questions lingered: What happens to children who live in different homes, with loving adults who lack a formal legal arrangement? How can their interests be protected when their family structures are viewed as invalid? Brooke S B. has unlocked the door for nontraditional families. The limited nature of the holding identifies only partners that have mutually agreed to conceive and raise a child together.

Under this rule the non-biological, non-spouse, non-legal parent, a partner would fail to meet the threshold of the Brooke S.B., rule thus falling into the “nonparent” category. For example, if a committed couple disagreed if they should conceive a child, but the intended biological parent proceeded with insemination, and then prior to the birth the non-agreeing partner changed his or her mind, the now nonbiological parent would lack standing to sue in family court. This partner would also fail if the change of heart came after the child was born. Another example would be where a couple decided to conceive and raise a child but prior to the birth of the child they breakup, and a new party assumes the responsibilities and acts as the parent. This leaves partners at risk of losing their children if they fail to enter formal relationships recognized by the State. The court’s failure to impose a functional test for standing leaves petitioners and respondents without sure footing.[10]

The holding in Brooke S.B. is revolutionary because it gives the nonbiological parent a mechanism to gain standing but it has failed to provide a more inclusive rule recognizing the diverse configuration of families.

[1] Brooke S.B. v. Elizabeth A.C.C., 61 N.E. 3d 488 (N.Y. 2016).

[2] Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991).

[3] Id.

[4] Dom. Rel. Law § 70 (McKinney 1988); Alison D., 572 N.E. at 29.

[5] See Matter of Jacob, 660 N.E.2d 397 (N.Y.1995) (conferring standing to seek custody or visitation upon unmarried, non-biological partners—including a partner in a same-sex relationship—who adopted the child, even under the Courts restrictive definition of “parent”); see in Matter of Shondel J. v. Mark D., 853 N.E.2d 610 (N.Y. 2006) (holding that a nonbiological parent is estopped from denying paternity if the child detrimentally relied on that representation and the conferring of the third-party with standing equal to that of the biological parent).

[6] Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010).

[7] Id. at 186.

[8] Id.

[9] Id. at 196 (citing the definition of comity in Ehrlich-Bober & Co., Inc. v. University of Houston, 404 N.E.2d 726 (N.Y. 1980)).

[10] Brooke S.B., 61 N.E. at 488.

Felony to Withhold Brady Material

TLR BLOG

By Amanda Defeo, J.D. Class of 2017 Touro Law Review Senior Staff Member

Earlier this year, California’s Democratic Assemblywoman, Patty Lopez, proposed a Bill that would make it a crime “for a prosecutor to intentionally and in bad faith alter, modify, or withhold any . . . relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case.”[1] Prior to this Bill, Section 141 of the California Penal Code made it merely a misdemeanor to conceal or alter any relevant evidence.[2] However, on September 30, 2016, California’s governor making it a felony, punishable by imprisonment for up to three years, approved the bill.[3] The enactment of this new Bill has ignited a national discussion regarding the ethical duties of a prosecutor to disclose relevant exculpatory evidence.[4] It raises the question of whether other states, such as New York, should adopt this rule.

Exculpatory evidence is defined as evidence which tends to justify, excuse, or clear the defendant from alleged fault or guilt.[5] The landmark case, Brady v. California, established the rule of law which requires a prosecutor to disclose all exculpatory evidence that is material to the guilt of the defendant.[6] This evidence, known as Brady material, must be disclosed even if the defense has not requested its discovery.[7] Suppression of Brady material by the prosecution violates the defendant’s due process rights.[8] The amendment to California’s Penal Code expands the scope of the Brady rule and makes any violation of the rule, punishable criminally.[9]

California’s new law was enacted in response to allegations of prosecutorial misconduct during the capital murder trial of Scott Dekraai.[10] Public defender, Scott Sanders, discovered astounding evidence that Orange County District Attorney’s office knew about illegal activity occurring in the Orange County Jail. Specifically, Sanders alleged the prosecution was aware that the Orange County prison’s special handling unit was purposely placing jail informants in cells adjacent to criminal defendants in order to obtain incriminating statements from those defendants.[11] Evidence later confirmed that this activity was occurring not only in Dekraai’s case but also several other high-profile murder cases.[12] This arrangement is a violation of the defendant’s sixth amendment right under Massiah v. United States, which prohibits informants from coercing statements from defendants who are already represented by counsel.[13] Sanders filed a series of motions which alleged that the prosecution knew about, and failed to disclose this crucial information to the court and defense counsel.[14]

Superior Court Judge Thomas Goethals granted the recusal motion to remove the entire Orange County District Attorney’s office from the case for their “chronic failure” to comply with discovery orders to turn over evidence.[15] Goethals held that the District Attorney Tony Rackauckas had a clear conflict of interest which “stems from his loyalty to his law enforcement partners at the expense of his other constitutional and statutory obligations.”[16] The ruling, consistent with the Brady rule, exemplified the duty of a prosecutor to adhere to his dual interests as an advocate and also as a law enforcement official.[17]

In light of the happenings in California, the ABA journal reported that multiple defendants have received new trials and some of the results have been favorable to the defendant. Sanders said, “[t]he right to a fair trial is only meaningful when those who prosecute and investigate crimes are committed to both honoring defendants’ constitutional rights and disclosing evidence that is favorable and material, as mandated by state and federal law.”[18] The role of a prosecutor is central to our justice system.[19] New York ‘s model rules of professional responsibility exemplify that a prosecutor has a distinct role from an ordinary attorney by imposing separate rules that a prosecutor must follow.[20] Prosecutors are entrusted with the duty to seek justice for both their client and society as a whole.[21] As a result of this obligation to uphold the law, prosecutors must be held to more stringent ethical obligations than other lawyers.

[1] Assembly Bill No. 1909

[2] Assembly Bill No. 1909

[3] Section 1 §141 Penal Code

[4] Id.

[5] Black’s Law Dictionary 566 (6th ed. 1990).

[6] Brady v. Maryland, 373 U.S. 87 (1963)

[7] Id.

[8] Id.

[9] Assembly Bill No. 1909

[10] Lorelei Lard, California Makes it a Felony for Prosecutors to Withhold or Alter Exculpatory Evidence, ABA J. (Oct. 5, 2016), http://reason.com/blog/2016/08/16/california-bill-would-make-it-a-felony-f

[11] Lorelei Lard, California Makes it a Felony for Prosecutors to Withhold or Alter Exculpatory Evidence, ABA J. (Oct. 5, 2016), http://reason.com/blog/2016/08/16/california-bill-would-make-it-a-felony-f.

[12] People v. Dekraai, 2015 WL 4384450 (2015).

[13] 377 U.S. 201 (1964).

[14] People v. Dekraai, 2015 WL 4384450 (2015).

[15] Id.

[16] Id. at 6.

[17] Lisa M. Kurcias, Prosecutors Duty to Disclose Exculpatory Evidence, 69 Fordham L. Rev. 1205 (2000).

[18] People v. Dekraai, 2015 WL 4384450 (2015)

[19] Lisa M. Kurcias, Prosecutors Duty to Disclose Exculpatory Evidence, 69 Fordham L. Rev. 1205 (2000).

[20] Id.

[21] Id.

THE EXTENT OF WARRANTLESS SEARCHES REGARDING DWI: BREATH OR BLOOD?

TLR BLOG

By Ryan Blitz, J.D. Class of 2017 Touro Law Review Senior Staff Member

The Fourth Amendment was intended to uphold individual’s rights to privacy from unreasonable government searches or seizures.[1] Police officers may not conduct a full search of an individual’s person or belongings without a valid search warrant unless some type of exigency or another exception applies.[2] One may wonder, therefore, why police officers can force drivers to take breathalyzer tests or give blood samples after being suspected of drunk driving. Isn’t this a warrantless search?

Drunk driving kills thousands of people every year, becoming one of the most significant dilemmas facing state governments.[3] In order to remediate this growing problem, all fifty states have adopted “implied consent” laws which deem that all drivers have consented to warrantless tests for alcohol simply by driving on state roads.[4] This past summer, in Birchfield v. North Dakota,[5] the United States Supreme Court determined the legitimacy of these warrantless searches, namely, whether states may criminalize the refusal of a driver, arrested for driving while impaired, to take a test to measure his blood-alcohol level.[6] Writing the opinion for the Court, Justice Samuel Alito expressed that while states may criminalize the refusal to take a breathalyzer test, states may not criminalize refusal to take a blood test, absent a warrant as an ordinary incident of an arrest for driving while impaired.[7]

Historically, exigent circumstances, or circumstances justifying a warrantless search or seizure, only apply if an officer is in hot pursuit of a fleeing suspect, or where police fear the imminent destruction of evidence.[8] In Missouri v. McNeely,[9] the Supreme Court noted that natural metabolism of alcohol in the bloodstream does not present an exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood-testing.[10] While metabolism alone does not create an exigency, officers may still conduct such a search if reasonable under the totality of the circumstances. In order to determine the reasonableness of such searches, the Court applied the common balancing test of weighing the government’s interest in public safety versus the individual’s interest in his or her right to privacy.[11]

The same balancing test was applied to both breathalyzer and blood tests, yet the Court reached different outcomes. It appears that the reason for this is invasiveness. Breathalyzer tests, in general, include negligible physical intrusion.[12] They do not require piercing the skin, there is little likelihood of any enhanced embarrassment from that of any similar arrest, and unlike DNA samples, breathalyzer tests leave no biological sample in the government’s possession.[13]

Blood tests, on the other hand, are physically intrusive as needles must be inserted into the suspect’s skin.[14] This sample can may remain in the government’s possession, and reveal much more about an individual than simply determining the amount of alcohol in their blood, thus potentially increasing the anxiety of the individual.[15] Therefore, the Court determined that the invasiveness of a blood test outweighs the interest of the government, especially when there are reliable and less intrusive alternatives to determine one’s blood alcohol content. [16]

The impact of this decision will be felt differently depending on the jurisdiction.[17] For example, law enforcement in various Pennsylvania counties has exclusively relied on blood testing in DWI cases.[18] District attorneys in these cases will need to rely on other evidence of the impairment or the case may be dismissed.[19] While this case is a victory for privacy rights, the amount of DWI arrests is unlikely to change. As Justice Sotomayor points out in her concurrence in Birchfield, breathalyzers are a reliable alternative to blood tests, and the time it takes to obtain a search warrant over the phone is typically quicker than it takes to conduct the breath test.[20]

[1] U.S. Const. amend. IV.

[2] Welsh v. Wisconsin, 466 U.S. 740 (1984).

[3]Birchfield v. N. Dakota, 136 S. Ct. 2160, 2167 (2016).

[4] Id.

[5] 136 S. Ct. 2160 (2016).

[6] Id. at 2172.

[7] Id. at 2183-84.

[8] Welsh, 466 U.S. at 740.

[9] 133 S. Ct. 1552 (2013).

[10] Id.

[11] Birchfield, at 2176.

[12] Birchfield, at 2177.

[13] Id.

[14] Id. at 2178.

[15] Id.

[16] Id.

[17] Steve Marroni, Supreme Court ruling could reduce penalties in some DUI cases, Pennlive (June 30, 2016), http://www.pennlive.com/news/2016/06/supreme_court_dui_pennsylvania.html.

[18] Id.

[19] Id.

[20] Birchfield, 136 S. Ct. at 2191-92 (Sotomayor J., concurring); see also Sherry F. Colb, Birchfield v. North Dakota; An Acceptable Compromise, VERDICT, (July 6, 2016), http://verdict.justicia.com/2016/07/06/birchfield-v-northdakota-acceptable-compromise.