Tuesday, June 30, 2009

Fired Friedman Sues Fox

20th Century FoxImage via Wikipedia

Fired Fox News entertainment columnist Roger Friedman is seeking more than $5 million in damages from his former employer in a lawsuit filed in the New York Supreme Court.

The case, Roger Friedman v. Fox News Network,LLC, NewsCorp America, Twentieth Century Fox and Rupert Murdoch (No. 09-602005), includes counts alleging wrongful termination, tortious interference, and defamation arising from Friedman's ouster on April 4, 2009. The complaint alleges that Friedman, who currently writes for The Hollywood Reporter, was being paid $250,000 annually by the defendants in a contract that ran from January 1, 2007, through December 31, 2009.

According to the complaint, Friedman submitted a review of the Hugh Jackman actioner "Wolverine," that he viewed on the Internet before the 20th Century Fox film's release to theaters, and was dismissed for purportedly endorsing movie piracy by his actions.

Although not alleged in the complaint, Friedman has previously told NY Daily News gossip columnists and other media outlets that his dismissal over the "Wolverine" incident was pretextual and that his job loss was the result of pressure applied to the defendants by Hollywood heavyweights, including actress Kelly Preston, who wanted Friedman fired because he has been critical of Scientology in his column.

Friedman is represented by acclaimed First Amendment litigator Martin Garbus. The "dueling Rogers over Bucks" (Roger Friedman and Fox News President Roger Ailes) has The Huffington Post and blogmeister Gawker breathless with excitement, but it's doubtful the public will find a sympathetic horse in this race.
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Senate Dems to Get Franken Privileges?

Al FrankenAl Franken via last.fm

The Minnesota Supreme Court today ruled that Al Franken is entitled to a certificate of election as U.S. Senator in the Nov. 4, 2008, election in which he bested incumbent Republican Norm Coleman by 312 votes.

In a per curium opinion In the Matter of the Contest of General Election held on November 4, 2008, for the purpose of electing a United States Senator from the State of Minnesota, Cullen Sheehan and Norm Coleman, contestants/Appellants v.Al Franken, contestee/Respondent (A09-697), the Minnesota Supreme Court rejected Coleman's challenge on due process and equal protection grounds, and affirmed the findings of the three-member panel of judges it appointed in Franken's favor (See "TUOL" post 6/1/09).

Though the court found that the 58-year-old Franken is entitled to the certificate of election needed to assume office, the opinion did not direct Republican Gov. Tim Pawlenty to sign the certificate. Pawlenty, an aspirant for the 2012 GOP presidential sweepstakes, has previously indicated he would sign the certificate if so ordered by the Court. No response as yet from the 59-year-old Coleman, whose camp previously has raised the possibility of appealing an adverse ruling to the federal courts. The parties have spent more than $50 million to date on the eight-month-long post-election skirmish.
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Monday, June 29, 2009

Supreme Court Won't Hear Cablevision Case

Image representing CSC as depicted in CrunchBaseImage via CrunchBase

Wrapping up the 2008 Term today, the U.S. Supreme Court denied certiorari in Cable News Network, Inc., et al. v. CSC Holdings, Inc. (08-448).

The High Court's refusal, without comment, to hear the case lets stand the unanimous 3-0 ruling of the U.S. Circuit Court of Appeals for the Second Circuit, which overturned a trial judge, by deciding that the Dolan family-owned Cablevision Systems Corp.(CSC) would not infringe copyrights through its new television recording service. CSC will enable subscribers to store tv programs on CSC's computer servers, rather than on a hard-top box. Customers who do not have a digital video recorder (DVR) can rely on a remote storage DVR (RS-DVR) to store programs requested by the customers, who can retrieve them for viewing with a remote control and standard cable set-top box.

CNN, CBS Corp., The Walt Disney Co., General Electric, News Corp. and other video content providers are the big losers in the Court's decision not to disturb the 2d Circuit ruling. The video content providers, backed by groups as divergent as music companies, Major League Baseball, and the Screen Actors Guild, argued that cable companies such as CSC would be taking programs that they paid the providers to air on cable systems and misappropriating the programs for an additional unlicensed use via RS-DVR.

The Supreme Court denial of a writ of certiorari likely derails efforts by the content providers to seek additional licensing fees from CSC and their ilk. The case invited comparisons to Sony Corp. v. Universal City Studios, Inc. (464 U.S. 417 (1984)) in which the Supreme Court held that VCR makers could not be held liable for giving consumers the means to make cassettes of copyrighted programs broadcast on television.
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Media Pros: YouTube Can Be a Journalist

Image representing YouTube as depicted in Crun...Image via CrunchBase

News Media heavyweights Katie Couric, Bob Woodward, and Nicholas Kristof are among the journalists who have lent their talents to a new YouTube venture designed to teach citizen journalists how to report the news.

YouTube, the Google-owned site on which subscribers share videos (often with disregard for copyright laws and good taste), launched youtube.com/reporterscenter this week that features online journalism training in a variety of subjects. Woodward, who combined with Washington Post cohort Carl Bernstein to become the "Woodstein" that brought down the Nixon Administration with their coverage of the Watergate scandal, presents a five-minute tutorial on investigative journalism. CBS Evening News anchor Katie Couric's contribution to YouTube are pointers on conducting a good interview. Kristof, the New York Times columnist, weighs in on being a foreign correspondent.
Other participants include Ariana Huffington, editor-in-chief of The Huffington Post Website, who addresses citizen journalism (because talking about how to get professional journalists to write for you for no money seems tacky).

YouTube is looking for experienced journalists to upload instructional videos. With the public increasingly looking to social media and other nontraditional sources for their news, it may be a case for these celebrity journalists of "if you can't beat 'em, join 'em."
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Friday, June 26, 2009

Actual Malice Claim v. CBS May Proceed

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A U.S. District Court Judge for the District of New Mexico has ruled that a jury could find actual malice against CBS, giving the go-ahead to a defamation suit brought by a procurement assistant at Los Alamos National Laboratory.

The case, Lillian Anaya and Mel Anaya v. CBS Broadcasting, Inc., et al (No. 06-0476) involves several broadcasts alleging that Mrs. Anaya used $30,000 in government funds to purchase a customized Ford Mustang. The court allowed in part, and denied in part, the defendants' motion for summary judgment, holding that the plaintiffs could pursue punitive damages based on certain statements that aired in follow-up stories. In a 107-page opinion, the court also found that Mrs. Anaya, though initially a private individual when the accusations initially were broadcast, became, for defamation purposes, a limited public figure plaintiff in late 2003 and early 2004 because she sought out the news media to clear her name.

CBS reported that Mrs. Anaya was the target of an FBI probe for allegedly using a government credit card to purchase the Mustang. Court documents claim that an internal inquiry concluded that Mrs. Anaya provided the credit card information via fax to a Mustang dealership in the mistaken belief that she was ordering equipment from a government vendor, unaware that the vendor's phone number had changed and was now a car dealership.

The Court found that the CBS reporter in one story showed footage of a customized Mustang while doing a voiceover stating Mrs. Anaya purchased the vehicle with taxpayer money, despite evidence suggesting no car had been purchased and that the evidence, "supported, at most, an allegation she attempted to charge a car, and the attempt was stopped." The court will allow a jury to decide whetherr CBS intentionally took the report out of context.

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Daily Star Spends It on Beckham

David Beckham, England, own work (by ger1axg).Image via Wikipedia

Express Newspapers Group will pay David Beckham significant undisclosed damages and attorneys' fees in settlement of the 34-year-old English soccer star's defamation claim against 'The Daily Star' regarding an April 30, 2008, front-page story alleging that he "made a play" for Hungarian model Mariann Fogarasy.

Beckham did not appear in London's High Court where the settlement was announced. Counsel for the media defendant acknowledged that the story was untrue and "apologizes to Mr. Beckham and his family for the distress, embarrassment, and injury caused to him. "

The offending article featured the page 1 headline "Becks & the Blonde Beauty," and an inside heading on pages 4 and 5, "Topless model claims she was chatted up by footie star." The article claimed that following an AC Milan soccer match in Hungary, Beckham "made a play" for Fogarasy and continued to email her with "private invitations."

Beckham and his spouse, Victoria "Posh Spice," have reduced constant public attention and compensation unrelated, respectively, to goal-scoring or singing, to an art form.

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Thursday, June 25, 2009

The Never-ending Oscar Telecast

Oscar BackstageImage by NMCIL ortiz domney via Flickr

The Academy of Motion Picture Arts & Sciences announced this week that the 82nd Academy Awards, which will be broadcast on ABC on March 7, 2010, will double the number of films vying for "Best Picture" honors to 10.

The nominees for Best Picture and other categories will be announced on February 2, 2010. Between 1932 and 1943, anywhere from 8 to 12 movies contended for the Best Picture Oscar. Since 1944, Academy voters have selected from among five nominees.

The Best Picture Oscar is the last award doled out during the hours-long telecast. "Slumdog Millionaire" captured the prize at the 81st Academy Awards ceremony, hosted by Hugh Jackman on Feb. 22, 2009. Nearly 37 million people watched the program, making the telecast the third-lowest rated since Nielsen began tracking the awards show in 1967.

Doubling only the Best Picture category means snubbing the directors of five nominated films in the Best Director category. With Hollywood producing fewer films and the sagging economy causing more Americans to turn to Netflix and cable movies, this may be Tyler Perry's best chance to cop an Oscar. It's enough to make an accountant at PricewaterhouseCoopers weep.
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Blogger Busted for Alleged Death Threats to Judges

Dirksen Federal BuildingImage via Wikipedia

FBI agents in North Bergen, N.J, yesterday arrested controversial Internet radio host and blogger Hal Turner for allegedly posting death threats against three judges sitting on the U.S. Circuit Court of Appeals for the Seventh Circuit.

Turner was scheduled to appear before a federal magistrate in Newark, N.J., today, but will be tried in Chicago following a criminal complaint issued in the U.S. District Court for the Northern District of Illinois charging him with threatening to assault and murder three federal judges with intent to retaliate against them for performing official duties. If convicted, the 47-year-old Turner faces a $250,000 fine and up to 10 years in prison, according to a press release from the office of U.S. Attorney Patrick Fitzgerald.

Authorities claim Turner was upset by the appellate court's unanimous decision on June 2 in National Rifle Assn. v. Chicago (No. 08-4241, 08-4243, 08-4244) that upheld a trial judge's dismissal of challenges to handgun bans in Chicago and suburban Oak Park, Ill. The opinion was written by Judge Frank Easterbrook, who allegedly was targeted by Turner, along with Judge Richard Posner and Judge William Bauer, who joined in the decision.

The criminal complaint alleges that on June 2, Turner wrote a Web post entitled "OUTRAGE: Chicago Gun Ban UPHELD," that discussed the decision and allegedly stated: "These judges deserve to be killed." The post alluded to another 7th Circuit case involving the murder of a judge's spouse and mother, allegedly stating: "Apparently, the U.S. 7th Circuit Court didn't get the hint after those killings. It appears another lesson is needed."

According to authorities, on June 3, Turner 's blog included an item listing the names, photos, work address, room numbers, and telephones numbers of the three judges, along with a photo of Chicago's Dirksen Federal Courthouse modified with arrows marking anti-truck bomb barriers.

Earlier this month, Turner was arrested in N.J. by Connecticut State Police and charged with the felony of inciting injury to persons based on blog postings that allegedly called for violence against two Connecticut lawmakers and a state official.
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Facebook:The Movie

According to "Variety," David Fincher, director of the Oscar-nominated "The Curious Case of Benjamin Button" (2008) and cult classic "Fight Club" (1999), is in serious talks with Columbia Pictures to direct a film about the social network, Facebook.

"The Social Network," scripted by "The West Wing" creator Aaron Sorkin, chronicles the origins of Facebook in 2004 on the campus of Harvard by sophomore Mark Zuckerberg to the present-day 200 million-member powerhouse.

Given the 166-minute running time of "Benjamin Button," there are concerns that Fincher might film a scene about each of the social media's subscribers. One envisions the movie poster: "The first rule of Facebook is you don't talk about MySpace." Columbia Pictures is owned by Sony, which could provide for built-in product links in the movie.

Production is slated to begin later this year. Start "poking" your friends now.

Wednesday, June 24, 2009

MySpace, My Job!

Image representing MySpace as depicted in Crun...Image via CrunchBase

Social networking Web site MySpace, still reeling from a drop-off in ad revenues and by being dethroned by rival Facebook as the social networking site with the most worldwide users, will ax two-thirds of its international workforce, or 300 jobs.

Last week, MySpace laid off 400 employees in the U.S., so combined, has pared its total workforce by nearly 40 percent. About 150 international workers remain, along with approximately 1000 domestic employees. MySpace, which is owned by Rupert Murdoch's News Corp., Inc., hired former Facebook executive Owen Van Natta in April 2009, to run the company. MySpace reportedly will close at least four offices outside the U.S. and will center its foreign operations around London, Berlin and Sydney.

Murdoch paid $580 million for MySpace in 2005. Its ad revenues have been forecast to decline by 15 percent this year, while Facebook revenues are expected to climb 10 percent. Although lagging among international users, MySpace still attracts more users in the U.S. than Facebook, though demographically, it is bleeding older visitors and becoming the domain of rock bands. Since its inception, MySpace has been targeted to a wider audience, whereas Facebook originally was founded by Harvard students and formed for a more private community of Harvard students.

News Corp. reported an $89 million loss for the most recent quarter in the division that encompasses MySpace. News Corp. stock today is trading at $8.96 a share, down almost 44 percent in value over 52 weeks.

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Spammer Going to the Can for Wire Fraud

SIERRA MADRE, CA - MAY 29:  Seventieth anniver...Image by Getty Images via Daylife

Notorious spammer Alan Ralsky, 64, and his 38-year-old son-in-law, Scott Bradley, were among five men who pleaded guilty this week in the U.S. District Court for the Eastern District of Michigan to conspiracy to commit wire fraud, money laundering, and violating the CAN-SPAM Act of 2003.

Pursuant to their plea agreement, Ralsky faces a $1 million fine and up to 87 months in prison, while Bradley also is subject to a $1 million fine and a maximum 78 months in prison under federal sentencing guidelines. Sentencing is scheduled for October 29, 2009.

A 41-count indictment was returned against the defendants in January 2008. The defendants were accused of engaging in a multimillion dollar international stock fraud scheme that illegally employed bulk commercial emails, or "spam," to drive up Chinese stock prices.

The 108th Congress in 2003 passed the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003" or CAN-SPAM Act (15 U.S.C. sec. 7701, P.L.108-187) to regulate interstate commerce by imposing restrictions and penalties on the transmission of unsolicited commercial electronic mail via the Internet. Criminal provisions of the CAN-SPAM act forbid falsifying certain data used in transmitting emails.

Also pleading guilty were John Bown, William Neil, and James Fite, all of California. Ralsky's spamming activities led to his being sued in 2001 by Verizon Communications, Inc., with whom he settled a year later.
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Author's 'View': Hasselbeck Copied Her Book

Elisabeth HasselbeckImage by Geek Tonic via Flickr

Elizabeth Hasselbeck, co-host of ABC's gabfest "The View" and author of The G-Free Diet: A Gluten-Free Survival Guide, has been sued for copyright infringement in the U.S. District Court for the District of Massachusetts by self-published author Susan Hassett.

Hassett, author of Living with Celiac Disease, filed suit on June 22, seeking $3 million from the 32-year-old Hasselbeck and publisher Center Street Hachette Book Group (Case No. 1:2009cv11063). Hassett alleges that in April 2008, she sent Hasselbeck a copy of her book, along with a homemade cooking video, newspaper article and personal note, after learning that the tv host suffers from the autoimmune disorder. According to the complaint, Hasselbeck's best-seller reproduces lists of gluten-containing grains and otherwise allegedly includes numerous instances of paraphrasing and verbatim passages from Hassett's book, though the complaint cites no specific examples.

Hasselbeck has denied the accusation and her publisher released a statement dismissing the allegations as baseless, saying that it had yet to receive a copy of the complaint.

Hasselbeck, a Providence, Rhode Island native, has co-hosted "The View" since 2003. She has parlayed a 4th place finish competing on "Survivor: The Australian Outback" (2001) into a successful television career, appearing most recently on episodes of "Ugly Betty," "Entourage," and the movie "Tyler Perry's Medea Goes to Jail." She is married to NFL quarterback Tim Hasselbeck.

It falls on U.S. District Court Judge Joseph Tauro to separate the wheat from the chaff in this case.
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Tuesday, June 23, 2009

ASCAP Copyright Suit Against Phone Maker Doesn't Ring True

AT&T Mobility LLCImage via Wikipedia

The American Society of Composers, Authors, and Publishers (ASCAP) is locked in a copyright infringement battle with cellphone titan AT&T over ringtones. The Electronic Frontier Foundation (EFF) uncovered ASCAP's opposition to the phone company's summary judgment motion filed under seal June 12 in the U.S. District Court for the Southern District of New York (In the Matter of the Application for the Determination of Reasonable License Fees for Performances via Wireless Transmissions and Internet Transmissions by AT&T Wireless f/k/a Cingular Wireless, USA v. ASCAP, 41-1395(WCC)).

ASCAP is arguing that whenever a cellphone ringtone blares the theme from "Fresh Prince of Bel Air" or "Feelings" in a swanky restaurant or other public venue, AT&T is on the hook for violating Copyright Law concerning public performance without a license. Mobile carriers selling musical ringtones already pay composers and music publishers for ringtone downloads, but ASCAP contends another royalty is due for the public performance of the ringtones.

Not so fast, says EFF legal analyst Fred von Lohmann, who cites the exemption from copyright infringement found in 17 U.S.C. sec.110(4), namely: "performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers...."

The "pockets" of mobile phone carriers are deeper than those of the consumers containing the phones and downloading the ringtones, which may explain in part why ASCAP has AT&T in its crosshairs. Consumers are also shielded from a copyright claim by the "fair use" exception. The EFF notes that no court has yet ruled that the incidental cacophonous cellphone snippet of music in a public place constitutes a "public performance."

ASCAP seems to be arguing that although the consumer is not liable for copyright infringement when his or her phone blurts "The Mexican Hat Dance" during a church sermon, the copyright owner can sue the technology company that enabled the consumer to experience the abject humiliation of the ringtone going off in church.

Suing a cellphone giant is likely to generate bad vibrations for ASCAP.

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Rock Impresario Sues Waits Author for Libel

Tom Waits during an interview in Buenos Aires,...Image via Wikipedia

Manager Herbert Cohen, whose stable of rock stars has included Frank Zappa, Linda Ronstadt, George Duke and Alice Cooper, has sued British author Barney Hoskyns and publisher Random House for defamation, following publication May 19 of Low Side of the Road: A Life of Tom Waits.

The lawsuit, which was filed in the U.S. District Court for the Central District of California (cv09-4400) on June 18, claims the book damages the reputation of Cohen, Waits' long-time manager, by accusing him of stealing royalties from the singer-composer-actor and by including him in a group described as "fish-peddlars and professional vermin."

The complaint appends pages from the book that include the allegedly defamatory passages, including purported comments from folk rock musician Jerry Yester that Waits' wife told him that "Herbie nicked a lot of money from Tom," and "Waits absolutely trusted Herbie to his core, and it devastated him when he found out that he grabbed a lot of the royalties."

Although the 59-year-old Waits is quoted in the book, he is not named as a defendant. Waits, dubbed "one of the last beatniks" by music critics, recorded for Asylum Records in the '70s and Island Records in the '80s, including the albums "Swordfishtrombones" and "Rain Dogs." He also has appeared in several movies, including "Short Cuts," "Coffee & Cigarettes," and "The Fisher King."

Surprisingly, although Hoskyns is British and the book was released in the United Kingdom in March 2009, Cohen brought suit in California, rather than the more defamation plaintiff-friendly England.

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Monday, June 22, 2009

Blogger's Venom Not Protected by 1st Amendment

Seal of the United States Court of Appeals for...Image via Wikipedia

A teacher/blogger was not shielded by the First Amendment from a job demotion resulting from her rant against the school district, union and teachers with whom she worked, the U.S. Court of Appeals for the Ninth Circuit ruled last week in an unpublished Memorandum.

The appellate ruling in Tara L. Richerson v. Jeanne Beckon (No. 08-35310) upheld the U.S. District Court for the Western District of Washington, which granted summary judgment for Beckon, the director of human resources for the Central Kitsap School District, dismissing Richerson's complaint under 42 U.S.C. sec. 1983. Richerson argued that she was wrongly transferred from her position as "curriculum specialist" in July 2007, to a classroom teaching assignment in retaliation for comments made in the personal blog she has maintained since 2004.

On balance, the court accorded more weight to the school district's administrative interests over Richerson's 1st Amendment interests. The court held Richerson's blog posts would erode her relations with co-workers and disrupted the confidential, trusting relationship teachers should exhibit toward one another. Rather than raise issues of public concern, the court found her comments "highly personal and vituperative."

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Blowing the Whistle on Police Chief Affair with Reporter

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Former Milwaukee Journal-Sentinel Reporter Jessica McBride admits that she had an affair with Police Chief Edward A. Flynn, about whom she wrote a glowing profile in Milwaukee Magazine, but insists their liaison didn't begin until four months after she submitted the magazine article.

McBride, 39, broke her silence regarding her romance with the 61-year-old Flynn. Both parties are married. McBride presently is a lecturer in journalism at the University of Wisconsin-Milwaukee, teaching, among other topics, ethics. Flynn, who has been Milwaukee's top cop since January 2008, where he oversees a department of 2,000 sworn officers and 700 civilians, released a statement last week acknowledging the affair, but not naming McBride. Seeking forgiveness, Flynn stated, in part: "I have done my wife and family a great wrong, and I profoundly regret the hurt I have inflicted on them and others affected by my conduct. I accept the personal and public consequences of my private behavior. I have damaged my public reputation and violated the love and trust of my family." Flynn is the former police chief of Springfield, Mass., and was former Mass. Gov. Mitt Romney's
Secretary of Public Safety.

McBride's claim that her extramarital relationship began after she wrote the positive profile of Flynn for Milwaukee Magazine doesn't jibe with a letter she allegedly wrote to Flynn purportedly professing love at first sight and conceding that her feelings for him made it difficult for her in the article to give space to Flynn's "vitriolic baseless critics." Among the precepts of the Code of Ethics of the Society of Professional Journalists is to "avoid conflicts of interest, real or perceived," and to "remain free of associations and activities that may compromise integrity or damage credibility."

While covering the courts for the Journal-Sentinel, McBride began dating Waukesha County District Attorney Paul Bucher, whom she subsequently married. Hmm..she covers the courts and dates the DA, then profiles the police chief and becomes involved with him. It boggles the mind to wonder what might happen if she ever did a feature on the Milwaukee Zoo.

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Friday, June 19, 2009

TV News Icon Gravely Ill

"TVNewser," Mediabistro's blog, reports that 92-year-old legendary CBS anchor Walter Cronkite is gravely ill. The Chicago Sun-Times and The Los Angeles Times are among major media outlets that have run the TVNewser story.

Cronkite, known by his sobriquet, "Uncle Walter," was dubbed "the most trusted man in America" over the 19 years he served as managing editor and anchor of the CBS Evening News before vacating the chair for Dan Rather in 1981. He joined CBS in 1950 as a radio correspondent in Washington, D.C., after covering the WWII battlefront and the Nuremburg Trials for United Press and serving as UP Moscow bureau chief from 1946-48.

Born Walter Leland Cronkite, Jr., in St. Joseph, MO, in 1916, he became anchor of the 15-minute CBS Evening News in 1962. He is best remembered for his coverage of the JFK assassination, the U.S. space program and Apollo 13 in particular, and the Vietnam War. He is credited for swaying public opinion regarding the Vietnam War, following the bloody Tet Offensive (1968) when he said: "It seems now more certain than ever that the bloody experience of Vietnam is a stalemate," and called for negotiations with the North Vietnamese government.

Arizona State Univ. named its journalism school after Cronkite (a penny for his thoughts on ASU spurning President Obama?). His autobiography, A Reporter's Life (1996), was a bestseller. He lives in Edgartown on Martha's Vineyard.

He brought a gravitas to television news that is sadly lacking today. His "street cred" as a journalist was such that, long before the terms "infotainment" and "news lite" originated, he appeared as himself in the "newsroom" of "The Mary Tyler Moore" show and nobody flinched. Both his parents reached age 100, so one hopes that the reports of his failing health are exaggerated. The void his departure left from television news will never be filled.
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Thursday, June 18, 2009

UPDATE: A Catch in 'Rye' Sequel Publication Date

The cover of the 1985 Bantam edition.Image via Wikipedia

You might say that "60 Years Later: Coming Through the Rye," the unauthorized knock-off of J.D. Salinger's classic Catcher in the Rye (1951) by pseudonymous author John David California, is in a "Holden" pattern.

U.S. District Court Judge for the Southern District of New York Deborah A. Batts has issued a 10-day temporary restraining order preventing publication in the U.S. of the work while she weighs the copyright infringement claim put forth by the 90-year-old reclusive Salinger in
J.D. Salinger, Trustee of the J.D. Salinger Literary Trust v. John Doe writing as John David California, Windup Bird Publishing, Ltd., Nicotext, A.B., and APB, Inc. d/b/a SCB Distributors, Inc. (1:09-cv-05095) [See my "TUOL" posting 6/3/09.]. Based on Judge Batts' remarks yesterday during a hearing on the injunction, it doesn't appear as if book clubs are going to be discussing the "sequel" anytime soon.

Salinger's attorneys' argument that "60 Years" is too derivative and that Catcher's characters are copyright-shielded seemed to find a sympathetic ear in the federal judge. Attorneys for the Swedish author Fredrik Colting, who adopted the John David California nom de plume in writing the tale that includes among its characters Salinger himself and a 76-year-old "Mr. C," Salinger's protagonist Holden Caulfield portrayed as an upstate NY retirement home escapee, sought to defuse the infringement claim by describing "60 Years" as literary criticism because it sparked questions about the nature of Salinger's book, which has been a mainstay for generations of high school English students.

Judge Batts noted that notwithstanding some original characters, "60 Years" includes several characters besides Caulfield from Salinger's work, including Caulfield's kid sister Phoebe, fellow Pency Prep student Stradlater, and Pency Prep teacher Mr. Spencer, which supports the plaintiff's "substantially similar" works argument. Regarding the defendant's critique assertion to support its fair use exception defense to the copyright claim, Judge Batts said: "I am having difficulty seeing that it[, i.e, literary criticism] exists." Judge Batts further noted that "It would seem that Holden Caulfield is copyrighted."

The 277-page tome by Colting is slated to be published in England this summer and in the U.S. sometime in the fall. Colting didn't help his cause by initially describing his book as a "sequel" to Salinger's novel, which Salinger's attorneys pointed to as evidence that the literary criticism/fair use argument was not being advanced in good faith.

Meanwhile, there is no truth to the rumor that John David California's next novel will be entitled: "I Performed CPR on Jay Gatsby and He's Feeling 'Great' Again."

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Wednesday, June 17, 2009

PBS: Fund-raising, tote bags-yes, Religion-no

Member stations are prohibited from airing new religious programming, but existing "sectarian" shows may continue, The Public Broadcasting Service (PBS) board voted yesterday.

Although PBS stations must show noncommercial, nonpartisan, nonsectarian programming, the latter has been loosely interpreted. Based on yesterday's vote, the Mormon Church-affiliated KBYU in Salt Lake City, Catholic diocese-run KMBH in Harlingen, Texas, and Catholic lay organization operated WLAE in New Orleans, for example, may continue to air current religious lectures and local church services.

PBS stations may air religious programs on digital tv stations and Web sites provided the stations don't include PBS brand identification or include PBS programs, the board voted.

Now that PBS has addressed religious zealots, it should do something about Dr. Deepak Chopra and personal finance zealot Suze Orman.

Potter Publisher: Plagiarism Charges Untrue

Bloomsbury Publishing, PLC, which publishes the popular Harry Potter series written by J.K. Rowling, has vowed vigorously to defend against a copyright infringement suit by the estate of author Adrien Jacobs seeking 500 million pounds.

Lawyers for the estate claim that the fourth book in Rowling's series about boy wizard Harry Potter, "Harry Potter and the Goblet of Fire," which has sold more than 400 million copies worldwide since its publication in 2000, reproduces substantial parts of Jacobs' "The Adventures of Willy the Wizard," a 36-page booklet published in 1987. Jacobs died penniless in a hospice in 1997.

Jacobs' estate claims that Jacob had sought the services of literary agent Christopher Little, who subsequently became Rowling's agent. Bloomsbury dismissed the lawsuit as unfounded, contends that Rowling never heard of Jacobs or his work, and notes that the central character of Willy the Wizard is not a young wizard, nor does the story revolve around a school for wizards.

One can only dread what the penalty for plagiarism might be at Hogwarts School of Witchcraft and Wizardry.

4th Circuit Gives Whorley 'Bird'

The U.S. Circuit Court of Appeals for the Fourth Circuit on June 15 voted 10-1 to deny a rehearing on a Virginia man's obscenity convictions based on emails discussing fantasies involving minors' sexual conduct and receipt of cartoons depicting child sex.

Dwight Whorley was convicted in December 2005, and is serving 20 years on 74 child pornography and obscenity counts. Whorley used a Virginia Employment Commission computer to receive obscene Japanese anime cartoons depicting underage girls engaged in sex acts with men, obscene emails, and actual child pornography. Whorley was the first person in the country convicted under a 2003 law that prohibited cartoons depicting child sex (18 U.S.C. sec. 1466A). In December 2008, the 4th Circuit rejected his appeal (U.S. v. Whorley, No. 06-4288) on 1st Amendment grounds, holding that emails that don't include pictures may be deemed obscene, that the statute could prohibit child porn cartoons that didn't depict real-life children, and that interstate trafficking of obscene materials may be prohibited.

President Bush signed the PROTECT Act of 2003 that enacted 18 U.S.C. sec. 1466A(a)(1), which in relevant part states:

"Any person who... knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that... depicts a minor engaging in sexually explicit conduct and is obscene... or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1)...." Those penalties include a prison sentence of 5-20 years.

Judge Roger Gregory, the lone dissenter, argued that the emails at issue incorporated no pictures and that the 1st Amendment protects private fantasies.

Tuesday, June 16, 2009

Obama Cops Bush Attitude Toward House Guests

MSNBC personalities Chris Matthews, Keith Obermann and Rachel Maddow have taken their share of criticism for allegedly being front-row cheerleaders for President Barack Obama. They may want to move a few rows back based on the Obama Administration's refusal to turn over records requested by MSNBC containing the names of all visitors to the White House since January, thereby continuing the policy pursued by the Bush Administration.

The Secret Service declined to produce the visitors roster requested by MSNBC. The Obama Administration presently is arguing that the lists of visitors are not agency records of the Dept. of Homeland Security, under whose aegis the Secret Service operates, that would be subject to production under the Freedom of Information Act (FOIA) [5 U.S.C. sec. 552], but rather, are FOIA-exempt documents pursuant to the Presidential Records Act [44 U.S.C. sec. 2203].

The Obama Administration has professed to favoring a new era of "transparency" in the conduct of government, but has followed the path of its predecessor on issues such as releasing photos related to Guanatanamo Bay detainees. At Tuesday's White House press briefing, spokesperson Robert Gibbs said the Administration is reviewing its position concerning the visitors list.

Meanwhile,Citizens for Responsibility and Ethics in Washington ("CREW") today filed a complaint for injunctive and declaratory relief in the U.S. District Court for the District of Columbia against the U.S. Dept. of Homeland Security. CREW is seeking the release of any visitors list as to a select group of coal industry executives who have visited the Obama White House. Watchdog groups, such as CREW, frequently make such requests, arguing that such lists reveal whether any individuals or group are exerting excessive influence regarding governmental policy decisions.

In 2007 and again in January 2009, Judge Royce Lamberth of the U.S. District Court for the District of Columbia has ruled in CREW's favor on its requests for visitor logs from the Bush White House in search of leaders of the religious right, holding that the requested documents were covered under the FOIA. The Obama Administration is pressing the Bush Administration's appeal of Judge Lamberth's ruling.

Visitor records concerning the White House are maintained in two databases: "WAVES"(Worker & Visitor Entry System) and "ACES"(Access Control Records System).

USA Today Looks to 'Man of Steel' for Help

USA Today, the flagship in the Gannett Co.'s newspaper chain, endured a 35 percent drop in ad revenues in the first quarter of 2009, on the heels of an 18.5 percent decline in ad revenues for the fourth quarter of 2008. Meanwhile, circulation figures for the national daily sank to 2.3 million copies, 1.3 million of which were distributed to hotels, according to the Audit Bureau of Circulation.

Gannett executives have confronted the dire numbers and reached the same conclusion--this is a job for Superman!

Beginning July 8 and running for 11 consecutive Wednesdays after that, USA Today will run the adventures of Superman, the flying strongman from Krypton, and his alter ego, Clark Kent, mild-mannered reporter for The Daily Planet. The July 8 full-page strip will appear in the print edition and the remaining 11 strips will run at www.usatoday.com. The move coincides with D.C. Comics launching "Wednesday Comics," in comic book stores. "Wednesday Comics" will feature superhero members of the D.C. Comics stable, including Batman, Hawkman, and Sgt. Rock (he of the rugged facial scar), in a broadsheet format (14x 20 in.) selling for $3.99 apiece.

USA Today, which launched in 1982, has fallen on hard times like the rest of the newspaper industry, losing readers to television and the Internet and ads to Craigslist, Monster.com and other online sites. With the same kind of forward thinking that print journalism has shown in its struggle for survival against Internet competition, USA Today has put its faith in an icon that originated in the 1930s. Sorry, Gannett, but look no further than "Superman Returns" (2006), Brandon Routh's less than star-making vehicle, that cost $270 million to make and generated domestic ticket sales of $200 million from a jaded American audience that prefers hunky Wolverine and teen-angst ridden Spiderman to the straight-arrow Superman.

Sadly, although it lacked a color weather map, The Daily Planet is thicker and more news-laden than USA Today and never seemed to worry about advertising lineage.

Monday, June 15, 2009

House Seeks to Dampen Libel Tourism

The U.S. House Judiciary Committee last week passed H.R. 2765, designed to lessen the impact of "libel tourism," whereby plaintiffs seek out jurisdictions with harsh defamation laws to file suit against publications they claim impugned their reputations.

The bill, introduced by Rep. Steven Cohen (D-Tenn.), makes it more difficult for foreign libel judgments to be enforced in American courts. In relevant part, Sec. 4102(a) of H.R. 2765 says: "...[A] domestic court shall not recognize or enforce a foreign judgment for defamation whenever the party opposing recognition or enforcement of the judgment claims that the judgment is inconsistent with the first amendment to the Constitution of the United States, unless the domestic court determines that the judgment is consistent with the first amendment...."

No Jail Break for Black

Media Mogul Conrad Black must remain incarcerated pending his appeal to the U.S. Supreme Court, the High Court has ruled.

Associate Justice John Paul Stevens denied without prejudice Black's application for bail pending appeal of his 2007 conviction for mail fraud and obstruction of justice, for which he was sentenced to 78 months in prison. The Canadian-born, 64-year-old Black is the former chair of media giant Hollinger Intl., Inc., which owns newspapers in Canada, England, Israel and the U.S., including the Chicago Sun-Times (which filed for Chapter 11 Bankruptcy in March 2009), The Jerusalem Post, and The Daily Telegraph (London).

The Supreme Court will hear his appeal in November or December 2009 (Black v. U.S., 08-876). The government originally brought a 17-count indictment against Black, alleging that he diverted $80 million plus from Hollinger and its shareholders during the media conglomerate's $2.1 billion sale of hundreds of Canadian newspapers.

The Supreme Court will address the question of whether the "honest services clause" (18 U.S.C. sec. 1346) is applicable to mail & wire fraud cases absent a finding that Black "reasonably contemplated identifiable economic harm." Black's attorneys contend the "honest services clause" is not germane because Hollinger was not at risk of losing money from the transaction.

Before he was confined in March 2008, Black was free on $21 million bail, but restricted in his travel to the Chicago area and his Palm Beach, Fla. home. In applying for bail pending the appeal, his lawyers argued, among other things, that Black did not pose a danger to the community, which suggests that they don't subscribe to the Chicago Sun-Times.

Coming Subtractions: Cinema Ad Revenues Slow

Revenue from advertising in U.S. movie theaters jumped 5.8 percent last year, the smallest increase in the seven years that such statistics have been tracked.

Total cinema advertising revenues last year were more than $571 million, compared to almost $540 million in 2007, according to a report released today by the Cinema Advertising Council (CAC). However, movie advertising revenue increased by 19 percent in 2007 and by 15 percent in 2006.

Cinema advertising in 2008 broke down as 90 percent on-screen ads and 10 percent consisting of samplings, lobby-based ads, audio programming and concession promotions. The CAC, established in 2003, is a nonprofit trade association that serves cinema advertising sellers, the theatrical exhibition community and the advertising community. CAC members account for more than 82 percent of U.S. cinema screens.

The uptick, albeit slight, in cinema advertising revenues, compared to plunging advertising in more traditional media, means moviegoers can expect no relief from the high-decibel cellphone provider and fast-food company commercials that precede movie trailers and feature presentations. Don't rush that Raisinets vs. Gummy Bears decision--you won't miss a thing.

FOIA Own Good

The National Archives last week named attorney Miriam Nisbet to be the first federal ombudsman for the Freedom of Information Act [5 U.S.C., sec. 552] ("FOIA").

Created by the Open Government Act of 2007, the ombudsman position is empowered to mediate disputes between those seeking information pursuant to the FOIA and the government agencies receiving the requests. The ombudsman is also charged with evaluating how agencies comply with FOIA requests and recommending changes to the Congress and the president.

Nisbet, 61, most recently served as Director of the Information Society Division at UNESCO, which entailed issues of global access to information and digital libraries. Previously, she was legislative counsel at the American Library Assn. for eight years, and also worked 16 years at the Dept. of Justice as deputy director of the Office of Information & Privacy.

Nisbet, a graduate of the Univ. of North Carolina Law School, hopes to have the National Archives ombudsman office up and running in September 2009.

Friday, June 12, 2009

Au Naturel Athletes

Lines are beginning to form at newsstands in anticipation of the October 19 issue of ESPN The Magazine, which will feature pro, amateur and Olympic athletes posing in the nude.

The "Body Issue" is ESPN The Magazine's shot across the bow of Sports Illustrated, which for the past 45 years, has featured its moneymaker Swimsuit Issue every February, which, combined with videos, calendars and the like, reaches an estimated 67 million consumers. According to Audit Bureau of Circulations numbers, SI has a total per issue print circulation of 3.2 million, compared to 2.1 million for ESPN. Gary Belsky, editor-in-chief of ESPN The Magazine, promises the exposed jocks will have certain body parts artfully covered with sports equipment.

ESPN has yet to identify which athletes will appear in the issue. Not sure how eager I am to see NY Yankees Pitcher C.C. Sabathia or Pittsburgh Steelers' 344-pound Guard Chris Kemoeatu posing starkers with a "come hither" look. ESPN The Magazine is owned by the Walt Disney Co., which means both that the nudity will be "tasteful," and that the athletes-in-the-buff may be exposing themselves to derisive remarks about how "It's a Small World Afer All," from puerile bloggers like myself.

'And Now, a Scream from Our Sponsor...

Congress today is taking up H.R. 6209, the Commercial Advertisement Loudness Mitigation Act (CALM). Introduced last June by Rep. Anna Eshoo (D.-Calif.) and co-sponsored by 62 of her colleagues, the bill charges the FCC to "prescribe a standard to preclude commercials from being broadcast at louder volumes than the program material they accompany."

Eshoo, a 17-year veteran of Congress and member of the House Subcommittee on Communications, Technology and the Internet, complained: "Every time the ads came on, they blew me out of my seat." The big 4 television networks question the need for such a measure, and contend that FCC involvement would impede voluntary efforts by the networks to implement policies to control strident commercials.

A noble cause, but maybe health care reform, the economy, and a couple of other matters might warrant more immediate Congressional attention. Besides, if it weren't for the jarring loud commercials for "Icy Hot," I would remain asleep on the couch while the same cable movies play nightly into the wee hours.

Thursday, June 11, 2009

Twittering to Ourselves

Still recovering from a Nielsen research report earlier this year indicating that more than 60 percent of its U.S. users quit the social network within one month, Twitter, Inc., has taken another "cheep" shot from a study of 300,542 users by Harvard Business School Assistant Professor of Business Adminiistration Mikolaj Jan Piskorski and HBS graduate student Bill Heil.

The Harvard study found that 10 percent of Twitter users generate more than 90 percent of the content, compared to other social networks in which 10 percent of users provide 30 percent of content. The study discovered that half the people using Twitter updated their page less than once every 74 days, and that most of the people tweeted only once.

Not only does the Harvard study indicate Twitter is the preserve of the few, but also uncovered a significant gender gap. In the sampling, men were twice as likely as women to follow other men, and women more than 25 percent more likely to follow a man than a woman, despite overall slighty higher usage by women.

Time to start posting "One-Way Tweet" signs on the virtual highway.

New Playboy CEO Seeks to Energize Bunny

Last week, Playboy Enterprises tapped Scott N. Flanders to be its new CEO. Since 2006, Flanders has been CEO of the Irvine, Calif.-based Freedom Communications, the country's 14th largest media company. Before that, he was CEO and President of Columbia House Co., the mammoth direct marketer of music and videos. He also is the former president of MacMillan Publishing, the world's largest computer and reference publisher.

Flanders, a C.P.A. and law school graduate, has a storied track record of increasing revenues at these varied enterprises. In a recent interview with FOLIO Magazine, he blamed the advertising recession for Playboy Magazine's sagging sales. Although, he remains a "big believer in print," he acknowledged that "Playboy is having to shrink to grow in the future." Note to Mr. Flanders--the demographic attracted to the magazine hates the word "shrink." Flanders predicts that Playboy will rebound and characterizes himself as a "change agent" at every media company he has led.

With Playboy trading at $2.84 a share on the NYSE, his initial challenge may be to airbrush the magazine's financials to attract a buyer. Flanders will make his debut at Playboy at the same time as Miss July.

Wednesday, June 10, 2009

Sue West, Young Man

Two law professors may proceed with their defamation claim against West Publishing Corp., a federal judge has ruled.

In David Rudovsky & Leonard Sosnov v. West Publishing Corp. et al. (NO. 09-cv-00727), U.S. District Court Senior Judge for the Eastern District of Pennsylvania John P. Fullam rejected the defendants' argument that Pennsylvania was an improper forum to hear the case because the parties' contract selected Minnesota, home of the legal publishing giant, as the venue for any dispute.

Rudovsky of the Univ. of Pennsylvania Law School, and Sosnov of Widener University School of Law, co-authors of "Pennsylvania Criminal Procedure: Law, Commentary and Forms" (1987), allege that West damaged their professional reputations by including a poorly researched pocket part supplement to the text in December 2008, to which the authors did not contribute. In contrast to the average 150 cases the authors have added to the text in annual updates for more than two decades, the December 2008, pocket part added only 3 cases, according to the Complaint. The pocket part at issue listed the Plaintiffs as authors, but included "and the publisher's staff" in the byline as well. The defendants subsequently informed subscribers that the pocket part contained errors and that neither Rudovsky nor Sosnov had anything to do with its preparation. The defendants, "in rather small print," as Judge Fullam noted, offered subscribers who so requested, a financial discount on future pocket parts.

Judge Fullam ruled that the case could proceed in Pennsylvania, rather than Minnesota, because the Complaint was not grounded in the parties' alleging breach of contract, but rather, in alleged tortious conduct by the publisher after the contract was terminated. Judge Fullam, however, denied the Plaintiffs' motion for a preliminary injunction.

US Atty Threatens Publisher with Libel Suit

Patrick Fitzgerald has garnered considerable media attention prosecuting former Illinois Gov. George Ryan for political corruption and former aide to Veep Dick Cheney, Lewis "Scooter" Libby, for perjury. Now, the U.S. Attorney for Chicago has in his crosshairs the publisher and author of a forthcoming book critical of his performance while he served as Asst. U.S. Attorney in New York City.

Fitzgerald, who has been Chicago's top federal prosecutor since 2001, said he will sue HarperCollins if it publishes "Triple Cross" by Peter Lance later this month. In a letter to the publisher, Fitzgerald alleges the book defames him and casts him in a false light regarding his prosecution of terrorism cases during the 1990s.

According to Fitzgerald, the book portrays him as deceiving the court and blames him in part for the terrorist attacks on U.S. Embassies in East Africa in 1998 and the 2001 World Trade Center bombing. Lance denies leveling those charges, but counters that Fitzgerald has not responded to substantive allegations contained in the book.
A new edition of "Triple Cross" containing 26 additional pages and an introduction responding to Fitzgerald's accusations, is due out June 16.

Fitzgerald has received high marks for his handling of Gov. Ryan's corruption case, as well as the high-profile prosecution of the "blind sheik" Omar Abdel-Rahman in the 1995 Holland Tunnel bomb scare. Perhaps as an after-effect of being imbued with the considerable powers of a special prosecutor in the Libby case, Fitzgerald has forgotten the Constitution's First Amendment proscription against prior restraint. If Lance's work is shoddily researched and defamatory, then Fitzgerald can seek redress in the courts. Trying to preempt publication by threatening a lawsuit is censorship and beneath him.

Tuesday, June 9, 2009

Instant Replay: LaRussa Twitter Unsettled?

The lawsuit by St. Louis Manager Tony LaRussa against Twitter, Inc. for trademark infringement and invasion of privacy (that quacks like a defamation claim) [see "TUOL" posts on 6/4/09 & 6/8/09] has made a comeback, something LaRussa's team has yet to do this season.

As reported in "TUOL" yesterday, the lawsuit based on a since-removed false Twitter account in LaRussa's name that sent offensive messages, was purportedly resolved, with the social network company expected to pay the 64-year-old manager's legal fees and make a donation to his animal rescue foundation. Not so fast, according to Twitter, which posted in part the following:

"Mr. LaRussa's lawsuit was an unnecessary waste of judicial resources bordering on frivolous. Twitter's Terms of Service are fair and we believe will be upheld in a court that will ultimately dismiss Mr. LaRussa's lawsuit."

It seems as if counsel for LaRussa violated the Cardinal rule [no pun intended] of experienced litigators, which involves not celebrating the end of a lawsuit until the docket clerk has the Stipulation of Dismissal in the case file and all the parties have signed the Settlement Agreement.

Is the lawsuit, which has enough juicy aspects to excite even the most jaded media lawyer, nearing an end? Apparently that's not the word on the tweet, er, street.

LA Mayor's Full Press Courtin'

Former "Miss USA" Frances Louise "Lu" Parker, a reporter and anchor for KTLA-TV Channel 5 in Los Angeles, has been dating Mayor Antonio Villaraigosa since March, but station executives are not worried about a conflict of interest, even though Parker's newscast last Sunday featured a story about Villaraigosa's gubernatorial prospects next year.

Parker, who has interviewed the mayor on several occasions as a KTLA reporter, will no longer be covering local politics, according to Channel 5 honchos. Villaraigosa is still experiencing political fallout from his extramarital affair in 2007 with former Telemundo KVEA-TV Channel 52 reporter/anchor Mirthala Salinas, and his divorce from Corina, his wife of 20 years, is not yet final.

Parker, according to her Web site, has worked as a TV actress, appearing on episodes of Monk, Bones, and Shark (a problem with multi-syllabic programming, perhaps) and on the silver screen in An American Carol. A former Miss South Carolina and 4th-place finisher in the Miss Universe Pageant, Parker is the author of "Catching the Crown." She also is an Emmy-winning tv reporter who previously worked at stations in Charleston and San Antonio. She has twice co-hosted the Hollywood Christmas Parade, something that Nellie Bly never did.

Villaraigosa, 56, a former speaker of the state assembly and city councilor, was elected mayor in 2005. He graduated from the unaccredited People's School of Law, but failed the California Bar Exam on four occasions. Salinas, 35, resigned from KVEA, rather than accept reassignment to Riverside after the scandal broke, and landed a talk show on AM radio.

It remains to be seen how Villaraigosa's penchant for nubile newsies will affect his political ambitions. However, Parker's superiors are way off-base on the conflict of interest issue. Setting aside power couple Andrea Mitchell of NBC News and former Federal Reserve Czar Alan Greenspan for the moment (and expunging any thoughts of their canoodling to prevent temporary blindness), despite journalists' best efforts to remain objective, the appearance of a conflict of interest is a problem, even if Parker isn't covering city politics. Any "scoops" by KTLA will raise questions of favored status and inside information from City Hall, and a raised eyebrow by a Channel 5 anchor reading a story about a Villaraigosa political opponent will elicit complaints of biased reporting.

Maria Shriver was relieved of her duties by NBC in 2004 when she became California's First Lady, but at least when she married Arnold Schwarzenegger, he was chasing Predators and playing a barbarian, not governing the nation's third-largest, most populous state.

Monday, June 8, 2009

Internet Taxing for Bayou Bloggers?

Members of the Louisiana House voted 81-9 last week to impose a 15-cent monthly surcharge on Internet access over the objection of Gov. Bobby Jindal and possibly, in violation of federal law.

Sponsors of the bill characterize the estimated $2.4 million the measure would raise as a usage fee, but opponents brand the 15-cent assessment an Internet tax. The money would be used to fund a division in the state Attorney General's office to combat online criminal activity, with an eye toward sex crimes involving minors.

The La. Senate still must take up the bill, which if passed, would go into effect in 2010. The federal Internet Tax Non-Discrimination Act (Pub. L. 108-435), which was signed into law in 2004 by President Bush, prohibited the imposition of Internet access taxes by states and localities through November 2007. Bush later signed the Internet Tax Freedom Act Amendment Acts of 2007 extending the prohibition through November 2014 (47 U.S.C. Sec. 151).

This is the latest, but dryest, controversy surrounding a New Orleans levy.

'B Rude...B-R-U-N-O!'

No sooner has the dust-up at the MTV Movie Awards show involving rapper Eminem and comic actor Sacha Baron Cohen, in his guise as gay fashionista "Bruno," been exposed as a staged prank, than a real, but no less wacky, lawsuit has been brought against Bruno in Superior Court for the County of Los Angeles by a married couple.

Richelle Olson and Lance Olson sued Cohen, NBC Universal, and Cold Stream Productions, LLC, among other defendants, in an 11-count complaint that includes claims alleging assault, battery, negligence, emotional distress and loss of consortium (Case No. MCO20465) arising from an incident that occurred in 2007. Mrs. Olson, executive director of Desert Valley Charities, staged a charity BINGO event for an elderly audience in Palmdale, Calif., at which Cohen appeared as Bruno and proceeded to call a game, allegedly spewing vulgar and offensive language.

What best can be described as "Extreme Contact BINGO" ensued, as Mrs. Olson allegedly was knocked to the ground as she tried to wrest the microphone from Cohen, and subjected to the "humiliation and embarrassment" of being filmed by Cohen's camera crew. The complaint alleges that while sobbing uncontrollably in a room nearby, Mrs. Olson lost consciousness and fell, striking her head on a concrete slab. Mrs. Olson, 39, alleges that she sustained two "brain bleeds" and must now use a walker and a wheelchair.

Meanwhile, NBC Universal has fired back at what it branded a "frivolous" suit, claiming footage of the incident proves that Cohen never touched Mrs. Olson. Cohen was the target of a handful of lawsuits by individuals who claimed they were harmed by the actions of Cohen in his guise as "Borat."

Cohen's film version of his "Bruno" character opens in theaters July 10 and is unlikely to generate as many laughs as the lawsuit.

UPDATE: LaRussa & Twitter Settle Score

Tony LaRussa and Twitter, Inc. have settled the St. Louis Cardinals' Manager's lawsuit based on an imposter who created an account in LaRussa's name and sent offensive tweets (see "TUOL" post 6/4/09).

Anthony LaRussa v. Twitter, Inc. and Does 1-25 inclusive (CGC09-488101), filed in Superior Court for the City and County of San Francisco, included counts alleging trademark infringement, false designation of origin, trademark dilution, cybersquatting, misappropriation of name, misappropriation of likeness, invasion of privacy and intentional misrepresentation. In return for the 64-year-old manager dropping his suit, Twitter agreed to pay his attorneys' fees and make a donation to LaRussa's Animal Rescue Foundation.

The faux LaRussa site contained a bulleted sentence that read: "Bio Parodies Are Fun for Everyone." The parody defense, combined with the provisions of the Communications Decency Act that protect Internet Service Providers, posed an uphill challenge for LaRussa to prove his case.

No word on if the matter had proceeded to trial whether Twitter would have been limited to 140 character witnesses.

Friday, June 5, 2009

Oenophile Parker's Whine to Get Airing in French Court

Robert M. Parker, renowned U.S. wine critic and author of Parker's Wine Buyers Guide and The Wine Advocate, is a defendant in a defamation case slated for trial in France in July.

The plaintiff in the case is Parker's former assistant, Hanna Agostini, co-author of an unflattering book about Parker that was published in France. Agostini has denied allegations concerning forgery in a matter involving Belgian wine trader Geens.

According to the defamation suit, Parker allegedly misstated the potential penalties Agostini faces if found guilty and also purportedly wrote on his Internet site that Agostini "could end up stagnating in prison." Hard to resist the temptation of saying the case may be decided by a nose.

Yahoo: No 'Kickback' to NFL for Fantasy Stats

Yahoo, Inc. has filed a preemptive suit against the NFL Players Assn. in U.S. District Court for the District of Minnesota to avoid paying royalties for using players' images and statistics in its lucrative online Fantasy Football game.

In Yahoo, Inc. v. National Football League Players, et al. (09cv-1272), the Santa Clara, Calif.-based Yahoo contends that because the players' stats are already available to the public, it should not have to pay royalties. Any right of publicity claim the NFL players might assert, which Yahoo disputes, would not overcome protection afforded by the First Amendment and U.S. Copyright law, according to Yahoo's lawsuit. A licensing agreement between the NFL and Yahoo expired in March 2009. In staking out this position, Yahoo is relying on a 2007 ruling by the U.S. Circuit Court of Appeals for the Eighth Circuit that held the Major League Baseball Players Assn. and MLB Advanced Media were not entitled to payment from fantasy baseball company CBC Distribution and Marketing, Inc., although CBC admittedly profited from the use of the players' stats in its fantasy league.
Moreover, the NFL is appealing a decision in April 2009, by U.S. District Court Judge for the District of Minnesota Ann Montgomery that held that use by CBS Interactive, Inc., of NFL players' names and statistics was protected by the First Amendment.
Fantasy league players "draft" real players to create their own teams. Judge Montgomery's ruling stated that fantasy football games gross an estimated $1 billion annually from its 13 million to 15 million participants, who might otherwise be dating.

Thursday, June 4, 2009

This Cardinal Doesn't Tweet

St. Louis Cardinals Manager Tony LaRussa has sued social networking giant Twitter, Inc., in a California superior court for trademark infringement, among other claims, after an anonymous user created an account in the manager's name that included LaRussa's photo and sent vulgar postings.

The case against the Delaware corporation, Anthony LaRussa v. Twitter, Inc. and Does 1-25 inclusive (CGC09-488101), filed in Superior Court for the City and County of San Francisco, includes counts alleging trademark infringement, false designation of origin, trademark dilution, cybersquatting, misappropriation of name, misappropriation of likeness, invasion of privacy and intentional misrepresentation. The 64-year-old LaRussa, who resides in Walnut Creek, Calif., in the off-season and is himself an attorney, alleges that Twitter allowed a user to establish a false account in his name, from which originated numerous tweets that alluded to two deceased Cardinals pitchers and LaRussa's own brush with the law in a driving under the influence charge. The heading, "Hey there! Tony LaRussa is using Twitter," along with a picture of LaRussa, appeared above a series of tweets, including the following: "Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher...I'd call that an I-55 Series." Included on the bogus Twitter site was a bulleted item that read: "Bio Parodies are fun for everyone."
According to LaRussa's attorney, Twitter did not respond to his week-long efforts to contact the corporation, but the same day the complaint was filed, the phony LaRussa page and postings was removed.
LaRussa, whose 30-year managerial career for the Oakland Athletics, Chicago White Sox and St. Louis Cardinals includes a couple of World Series championships, claims the unauthorized use of his name and likeness injured his reputation, damaged his goodwill and caused him emotional distress.
The suit is pending. In the meantime, LaRussa's Cardinals are 30-23, in second place in the National League Central Division, a game behind the Milwaukee Brewers. The veteran skipper is more likely to obtain relief from the court than from his bullpen.

UPDATE: 'Mine' Is a Dud

As one of the chosen initial elite 31,000 subscribers to Mine magazine, the experimental personalized online periodical from Time, Inc., bankrolled by Toyota (see my "TUOL" post 5/27/09), I received my inaugural 36-page issue today. Unfortunately, as with many promising relationships, it turned ugly in a hurry and I was soon shouting at my hi-def monitor: "You don't know me at all!"
Things started awkwardly with the back cover (I always read magazines from back to front, right to left, a habit I developed in Hebrew School), which featured a Lexus ad for the snazzy 2010RX. The copy said: "The all-new 2010RX now with more [my name]," which made me feel optional, like extra cupholders or a tinted windshield.
As I noted in my blog on May 27, Mine attempted to get at the very essence of me through a series of probing questions about personal preferences, ranging from sushi or pizza, to whether I wanted to dine with Socrates or Leonardo DaVinci (the latter, because he was better-heeled and more likely to pick up the tab). Imagaine my disappointment when the results of this inquiry led to the following articles in the premiere issue:
  1. How to Look Out an Airplane Window
  2. Cover This (an article about tents)
  3. South Africa's Beautiful Wine Country
  4. 10 Tips to Get Kids Moving (promoting exercise)
  5. Tibetan Idol (profiling the Dalai Lama's possible successor)
  6. Solar Power
  7. Jeans by Me (about women's designer jeans)
  8. Profile of Fashion Designer Marc Jacobs
  9. Turning an Unfinished Basement into an Entertainment Center; and
  10. Keep Your Next Egg Safe from Uncle Sam.
Are you kidding me? If Mine really understood me, it would know that I always sit in the aisle seat on airplanes, because I thoughtfully defer to my spouse, who likes the window seat, and more important, because I am acrophobic. No one is less likely to pitch a tent than I, who considers a hotel room without cable tv and a nearby ice machine "roughing it." The only reason I glanced at "Tibetan Idol" is that I thought Simon Cowell was expanding his musical taste and searching for the next Monk (that was for you, jazz bloggers). I never heard of Marc Jacobs and the only women's designer jeans I've ever tried to get into, er... never mind.

I'm patient and still have 4 free issues remaining in my subscription. Be forewarned, Mine--if the next issue doesn't have any articles about the 3 Stooges, hardboiled detective novels, and how to retire without a nest egg, I'm dumping it.

Wednesday, June 3, 2009

J.D. Makes Wry Face Over Catcher Rip-off

"Catcher in the Rye" author J.D. Salinger lives a reclusive existence in Cornish, N.H., but the 90-year-old literary icon may have made a frightening discovery on a recent tour of the Amazon(.com)--"60 Years Later: Coming Through the Rye,"--a pre-pub unauthorized sequel by the pseudonymous John David California.
Salinger is seeking an injunction preventing the release of the book and damages in a copyright infringement suit filed in the U.S. District Court for the Southern District of New York. The case, J.D. Salinger, Trustee of the J.D. Salinger Literary Trust v. John Doe writing as John David California, Windup Bird Publishing, Ltd., Nicotext, A.B., and APB, Inc. d/b/a SCB Distributors, Inc. (1:09-cv-05095), was brought by Salinger, who holds the copyright on his literary work and its characters, and does not want a sequel. Salinger's complaint noted that "60 Years" is neither a parody nor literary criticism that could withstand a copyright infringement challenge, whereas the author himself was more blunt in describing the work as a "rip-off."
"60 Years" features a 76-year-old upstate N.Y. retirement home escapee identified as "Mr. C.," that the lawsuit claims bears a striking resemblance to Catcher's 16-year-old protagonist, Holden Caulfield. The work, available in London and scheduled for release in the U.S. in September, is dedicated to Salinger and also includes him as a character.
Salinger who wrote "Catcher" in 1951, has received numerous literary accolades for the novel about an alienated teen, which, according to the lawsuit, has sold more than 35 million copies worldwide. Salinger in the past has rejected overtures from Hollywood heavyweights such as Steven Spielberg and Harvey Weinstein, to make a film version, and in 2003 prevented the BBC from staging a television production of "Catcher."
Salinger has resorted to the courts before, successfully suing in 1982 to prevent publication in a national magazine of a fictitious interview with Salinger, and also sued Random House in 1987 to block an unauthorized biography gleaned from Salinger's unpublished letters.
Amazon's biography of J.D. California says he is the offspring of an American father and Swedish mother who toiled in a traveling circus. California is described as a former gravedigger and triathlete who has authored film scripts and done freelance travel writing for international magazines.
Judge Deborah A. Batts will hear the case, and it won't be surprising if she winds up "holden" for the plaintiff.
Apparently, Salinger thinks J.D. California is a crumb-bum and that writing a book about his character is a lousy thing to do. Guess I'll hold off on releasing my short story, "Zany and Frooey."

Tuesday, June 2, 2009

Weak Joe Gets Boost from Starbucks

"Morning Joe," the MSNBC daily yakfest co-anchored by Joe Scarborough and Mika Brzezinski, has a new official sponsor--Starbucks coffee. The program's logo will now include a Starbucks coffee cup. No word on whether Starbucks will further capitalize on its link to Scarborough, a 46-year-old former GOP Congressman from Florida, by creating a beverage that is white and bitter.
Meanwhile, The Huffington Post today offers a glimpse into a Q/A with Scarborough by Deborah Solomon that is slated to appear in the newly reduced New York Times Magazine. In the interview, Scarborough blames President George W. Bush for squandering the GOP majority and blasts the Party of Lincoln, suggesting the GOP "needs to reform or die." Sounds as if Scarborough consumed a few cups of high-test caffeinated Starbucks coffee pre-interview, which prompted him to "vente" against the party that backed his election in 1995.

Info on Detainees 'Escapes' from Gitmo

A federal judge has struck down the government's efforts to prevent the release of any unclassified judicial records pertaining to the incarceration of detainees at the U.S. Naval Base in Guantanamo Bay, Cuba.
Thomas Hogan, U.S. District Court Judge for the District of Columbia, denied without prejudice the government's motion to shield unclassified judicial records concerning the Gitmo detainees, citing a limited First Amendment right and common law right of the public to access unclassified factual returns. Judge Hogan imposed a July 29, 2009, deadline for the government either pubicly to file a factual return or file under seal a marked copy of the unclassified factual return specifying for which information the government seeks protected status regarding each of the 107 petitioners.
Judge Hogan held that the government's broad attempt to seal every unclassified factual return disclosed as to the petitioners' cases usurped the Court's discretion to seal judicial records. In Boumediene v. Bush, 128 S.Ct.2229 (2008), the U.S. Supreme Court put in place a Protective Order dictating the storage, handling and control of documents and data in the Gitmo detainee cases that covered classified and unclassified material alike. The Protective Order permits the government to request the Court to label certain unclassified information as "protected" because of national security concerns.
Judge Hogan's Memorandum Opinion is in In re Guantanamo Bay Detainee Litigation (1:02-cv-00828-UNA).

UPDATE: Keep on [Perp] Walkin'...

Judge Arthur D. Spatt of the U.S. District Court for the Eastern District of New York has denied a motion by attorneys for indicted Nassau County lawmaker Roger Corbin to enjoin Newsday and cable channel News 12 from showing photos of a manacled Corbin taken during his arrest on May 6 (See my "TUOL" post on 5/21/09).
Although the 84-year-old jurist found the use of the images of the handcuffed solon excessive, Judge Spatt conceded that he was powerless to "censor the press in this matter and cannot instruct the press as to what images are newsworthy." The court found that Corbin's counsel failed to demonstrate how the use of the images would impair the legislator's right to a fair trial. The attorney for the media outlets argued that Judge Spatt had options available to him to preserve Corbin's presumption of innocence, including changing the location of the trial and questioning prospective jurors to flush out potential prejudice, without compromising the news media's First Amendment right to run the story.
Previously, the U.S. Circuit Court of Appeals for the Second Circuit has ruled that broadcasting a videotape of a perp walk did not violate the defendant's rights under the Fourth Amendment (Caldarola v. County of Westchester, 343 F.3d 319 (2003)).
Besides upholding the longstanding prohibition against prior restraint of the press articulated by the U.S. Supreme Court in the landmark 1976 decision, Nebraska Press Assn. v. Stuart, Judge Spatt's ruling is welcome news for manufacturers of trenchcoats, the vestment of choice of mob figures for covering their heads as they trudge into federal court to answer racketeering charges.

Monday, June 1, 2009

Internet Libel Subject to Single Publication Rule, Ky. Court Rules

The single publication rule, long-recognized in newspaper and magazine libel cases, also applies to Internet publications, the U.S. District Court for the Western District of Kentucy ruled last week in Salyer v. Southern Poverty Law Center (37 Med. L. Rptr. 1693; 2009 WL 1036907).
Traditionally, under the single publication rule, the entire edition of a newspaper or magazine is a single publication that can give rise to only one action for defamation, irrespective of whether the allegedly defamatory work appears again after its original publication. Reissuing an allegedly defamatory publication does not restart the statute of limitations, the time period within which an action must be brought before it becomes time-barred.
U.S. District Court Judge John G. Heyburn II, has allowed the parties in the Salyer case time to engage in discovery on the narrow issue of the statute of limitations. The plaintiff, a Kentucky resident, purportedly learned about the allegedly defamatory statements on the defendant's Web site in July 2008, though the defendant concedes the statements at issue appeared on its Web site in July 2006, and a printed version containing the allegedly defamatory statements was mailed in August 2006. On its face, plaintiff's claim, which was filed in December 2008, would be knocked out by the statute of limitations defense.
Republication of material is an exception to the single publication rule. In the context of Web sites, republication involves substantially modifying the content. Discovery will determine whether any changes to the defendant's Web site during the germane time period constitute substantial modification.
In his decision, Judge Heyburn acknowledged that although the Internet affords widespread accessibility to allegedly defamatory content that can significantly harm the libeled party, that same accessibility also makes it easier for the victim to identify allegedly defmatory content. The court found no reason to distinish the Internet from other publication sources, and therefore, held that the single publication rule should apply to the online medium as well.