Woman Files Libel Claim Against CJR, J-Prof. for Update of 46-Year-Old 'False' Newsweek Article

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A woman has filed suit in the United States District Court for the Southern District of New York, alleging defamation and invasion of privacy claims against Columbia Journalism Review, a retired Newsweek editor and Columbia Graduate School of Journalism professor and a film documentarian based on a Nov./Dec. 2012, CJR article that updated a 46-year-old Newsweek article that she also claimed was defamatory.

In Margaret Won v. Columbia Journalism Review et al. (Case No. 1:13-cv-07723), the plaintiff claims in her complaint that Bruce Porter, 74, published a follow-up article entitled Lost and Found last year in CJR that portrayed her as a former drug user who slept on park benches and underwent an illegal abortion back in 1967. That year, Porter authored an article in Newsweek, Gentle Marcy: A Shattering Tale, that Won alleges defamed her by inaccurately portraying her as an underage runaway who abused drugs and engaged in casual sex that led to the abortion. In her complaint, Won contends she was 19, not a 17-year-old minor, when the original article was written, and she accused Porter of betraying a promise of confidentiality by revealing her first name and hometown in the Newsweek piece.

As reported by the Law360.com Lexis/Nexis co.-owned Web site and Courthouse News Service, Won alleges the CJR follow-up piece includes the full names of her deceased parents and first names of her siblings, along with a photograph of her and Porter outside her Michigan home to which she didn't consent.

Won's complaint seeks compensatory and punitive damages against CJR, Porter and filmmaker Daniel Loewenthal. The defendants did not comment in either the Law360 or CNS accounts of the case.

Federal Judge Blots Out Noted Art Authenticator's Libel Suit

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In a 51-page ruling in Biro v. Conde Nast et al. (Case No. 11-civ.-4442), United States District Court for the Southern District of New York Judge J. Paul Oetken tossed a defamation claim brought by a forensic art expert arising from an unflattering 2010 article in The New Yorker.

David Grann, author of the article, The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art, was sued for defamation by Canadian art authenticator Peter Paul Biro, as was The New Yorker's publisher, Conde Nast, and in subsequent amended complaints, Gawker Media, Business Insider, among others. The 16,000-word article casts a suspicious eye on Biro's methodology that matched fingerprints on artwork to the artists who painted the pieces.

Oetken, who according to accounts by Courthouse News Service and The New York Times, has been widely published in scientific journals and often lectures at universities, was deemed a limited public figure by the Court. Judge Oetken ruled Biro failed to meet the elevated burden of proof of actual malice in his defamation claim or show that Grann fabricated quotes or relied on "wholly unverified or patently unreliable sources" in preparing The Mark of a Masterpiece.

In granting the defendants' motion for judgment on the pleadings, Judge Oetken found: "There is little question that a reader may walk away from the article with a negative impression of Biro, but that impression would be largely the result of statements of fact that Biro does not allege to be false."  Attorneys for the plaintiff plan to appeal the ruling to the United States Court of Appeals for the Second Circuit.

Fuhgeddabowtit: Gov. Christie Grappling with NJ Daily Over Sandy-Related Records Request

North Jersey Media Group-owned daily The Record is engaged in a struggle in Mercer County Superior Court with feisty Gov. Chris Christie concerning a request under the Garden State's Open Public Records Act ("OPRA")[N.J.S.A. 47:1A-1] for Hurricane Sandy-related billing records, the Courthouse News Service reports.

The newspaper chain sued the state, the Governor's office and Custodian of Records Hilary Hewitt for invoices involving Witt Group Holdings dated from October 2012, to the present. Witt was hired to provide strategic support and consultation as the state attempted to regain its footing following the physical and economic devastation caused by Hurricane Sandy.
                                                                                
According to the media company's complaint, records regarding the Witt contract are a matter of public interest because of reports that Witt, along with at least four other companies hired by the state post-Sandy, have made political contributions to GOP causes and the Republican Governors Assn. The newspaper group alleges the state has been dragging its feet in response to the OPRA request, subsequently producing a Witt invoice for the period ending December 2012, in the amount of $553.812 that was unaccompanied by worksheets.

The NJMG claims worksheets ultimately produced by the Governor's Office were overly redacted as authorities relied on an advisory, consultative and deliberative privilege contained in OPRA. Hurricane Sandy was fierce, but "TUOL" suspects it's got nothing on a Gov. Christie agitated by a news media request for transparency.
                                                                                                         

Golden State Seeks to Strengthen Shield Law

California's Assembly Appropriations Committee this month  is expected to take up S.B. 558, a measure that would bolster the Golden State's already strong protection for journalists, after the bill unanimously sailed through the Assembly Judiciary Committee on its first policy reading, Courthouse News Service reports.

Article 1, Sec. 2(b) of the California Constitution already shields journalists from having to disclose confidential sources and information to authorities. Presently, news agencies are entitled to five days' notice from law enforcement agencies before a subpoena issues against journalists, thereby affording an opportunity to quash the subpoena or negotiate a narrower production of information. S.B. 558, sponsored by Sen. Ted Lieu (D-Torrance), would further broaden reporter shield law protection so that persons or agencies that issue subpoenas to third parties, such as cellphone carriers, rental car companies and data storage providers, would be required to give five days' notice as well.

The bill, which has the blessings of the state's press association, is a response to the recent U.S. Justice Department disclosures concerning the tracking of Associated Press phone records over a two-month period.

Fox News Network Sued by Widow Whose Husband's Suicide Was Inadvertenty Telecast

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A woman this week in Maricopa County (Ariz.) Superior Court sued Fox News Network, News Corp. and Fox Entertainment for intentional and negligent infliction of emotional distress after coverage of an 80-mile car chase involving her husband and police ended with his suicide being inadvertently telecast, according to a Courthouse News Service article.

Studio B with Shepard Smith broadcast portions of the police pursuit of JoDon Romero in Phoenix and the surrounding area on September 28, 2012, according to Plaintiff Angela Rodriguez's complaint. During one segment, Romero emerged from his vehicle, racing through the desert brandishing a gun. Despite Smith's instructions to "get off," according to the complaint, coverage didn't break off, and because of the alleged failure to delay the broadcast, Romero's fatal self-inflicted gunshot wound aired nationwide. The complaint cites Smith's on-air apology for the inadvertent footage of the suicide.

According to Rodriguez's complaint, her children suffered post-traumatic stress disorder symptoms after seeing the footage on YouTube that classmates purportedly discussed in school. The complaint seeks punitive and compensatory damages for the children, who Rodriguez claims have been too depressed to attend school since viewing their father's shooting.

No 'Puppy Love' Lost Between Al Fayed & Anka

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Harrods department store magnate Mohamed Al Fayed wants long-ago teen idol Paul Anka's autobiography My Way pulled off the shelves, and is seeking punitive damages from the Lonely Boy crooner, Courthouse News Service reports.

The billionaire's decision to drop Anka, so to speak, has taken the form of a multiple count complaint in Los Angeles County Superior Court, including claims alleging defamation, false light invasion of privacy and intentional infliction of emotional distress. Al Fayed alleges My Way co-authors Anka and David Dalton, along with defendants St. Martin's Press, MacMillan Publishers, Holtzbrink Publishers, the Daily Mail, Associated Newspapers and DMG Media, harmed him by portraying his late son, Dodi Al Fayed, as a cocaine-abusing, womanizing deadbeat who welched on a loan from Anka.

Dodi Al Fayed died in a Paris car crash on August 31, 1997, along with Diana, Princess of Wales. Condemning My Way as sensationalized, the plaintiff's complaint accuses Anka of trading on Dodi Al Fayed's name and the public's fascination and love affair with Princess Diana to boost sales of his book. The complaint claims Anka wrote that he lent Dodi $150,000 after U.S. Customs Agents allegedly seized money Dodi purportedly tried to smuggle into the States. The complaint alleges that Mohamed Al Fayed covered the sum that Dodi failed to repay, which the book purportedly portrays as "hush money" paid to Anka when he called the plaintiff and allegedly threatened to go to the police.

My Way was serialized last March, excerpts of which appeared in The Daily Mail newspaper in the U.K. Generally speaking, the dead can't be libeled, so Mohamed claims My Way harms his reputation by falsely suggesting he was "in agreement with Anka's outrageous assessment of Dodi's purported poor character as a criminal, womanizing, drug-using deadbeat who lived beyond his means and who had to have 'Daddy' come to his rescue, even to the extent of an alleged willingness to pay 'hush money.'"

Don't expect to hear Put Your Head on My Shoulders or Having My Baby piped into Harrods' elevators anytime soon.

Federal Appeals Court Sides with Time Warner Cable in Nexstar Contract Dispute

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A three-judge panel of the United States Court of Appeals for the Fifth Circuit yesterday in Nexstar Broadcasting, Inc. v. Time Warner Cable, Inc. (Case No. 12-10935) upheld a trial court's refusal to grant injunctive relief to Irving, Texas-based Nexstar, thereby, enabling Time Warner to retransmit television signals to its cable subscribers in remote markets.

The appellate panel ruled that Time Warner legitimately had a statutory license to rebroadcast the signals of  Nexstar's  television stations in Rochester, NY; Terre Haute, Ind.; and Wilkes-Barre, Penn., to subscribers in other markets, including Winston-Salem,  N.C., Cincinnati, Ohio, Louisville, Ky., Burlington, Vt.; Plattsburgh, NY; and Orlando, Fla. The plaintiff alleged in its July 2012, breach of contract action that Time Warner was not paying for retransmission of the signals and that it ran afoul of FCC nonduplication rules by, for example, broadcasting the same syndicated programming to its Winston-Salem subscribers at the same time as another station in the market.

The appeals court found the parties' retransmission consent agreement was broad and not geographically restrictive. Judge E. Grady Jolly concluded in the panel's opinion that the agreement gave "Time Warner broad authority to retransmit Nexstar signals on Time Warner stations." Moreover, the appellate panel ruled Nexstar failed to put Time Warner on notice concerning its alleged breach of the nonduplication rules.

Tip of the hat to Courthouse News Service for reporting on this decision.

Eminem Music Licensor Sues Facebook for Copyright Infringement

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Social media behemoth Facebook and an Oregon ad agency have been sued for copyright infringement [17 U.S.C. sec. 101 et seq.] in the United States District Court for the Eastern District of Michigan by the company that licenses and manages the music of 40-year-old rapper/songwriter Eminem (Marshall Bruce Mathers III).

In the Complaint filed May 20, Eight Mile Style, LLC & Martin Affiliated LLC v. Wieden + Kennedy Inc. & Facebook, Inc. (Case No. 2:13-cv-12268-GAD-MAR), the plaintiffs allege the defendants used an unauthorized version of Eminem's song "Under the Influence" from his Marshall Mathers LP to promote Facebook Home, an Android-compatible smartphone software application enabling users to post Facebook content from their mobile devices that was introduced in April 2013. The Complaint alleges the defendant ad agency selected the music to win over Facebook mogul Mark Zuckerberg, purportedly a big fan of Eminem.

According to a post about the suit by Courthouse News Service, Eight Mile Style LLC has brought 10 copyright infringement suits dating back to 2010. In an article about the copyright suit, the THR, Esq. Web site reported that the defendant ad agency claimed hip-hop producer Dr. Dre, who often collaborates with Eminem, wrote "Under the Influence" by allegedly cannibalizing a Michael Jackson hit, "Give It to Me."

Judge Gershwin A. Drain will preside over the parties' discordant notes.

Calif. Appeals Court Upholds Dismissal of Mayoral Candidate's Libel Suit Against Weekly

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A three-member panel of the California Court of Appeal's first appellate district this week upheld a trial judge's dismissal of unsuccessful Oakland Mayoral Candidate Marcie Hodge's defamation suit against weekly East Bay Express columnist Robert Gammon based on the Golden State's anti-SLAPP(Strategic Lawsuit Against Public Participation) statute [Cal. Civ. Proc. Code sec. 425.16].

When Hodge, an incumbent Peralta Community College District trustee, bid in 2010 to be Oakland's mayor, a piece by political columnist Gammon entitled The Baffling Mayoral Bid of Marica Hodge, according to the appellate court opinion by Justice J. Anthony Kline, "raised questions regarding whether (Hodge) was running for mayor as a favor to...fellow candidate for mayor Don Perata, who, Gammon suggested, was supporting her campaign in an effort to siphon off African-American votes from other, more viable mayoral candidates."

As reported by Courthouse News Service, Hodge sued the weekly and its editor, along with Gammon, for defamation, but an Alameda County Superior Court judge granted the defendants' motion to dismiss the action under the anti-SLAPP law, which upholds free speech against lawsuits brought to silence or intimidate individuals. The statute's successful application potentially could enable the defendants to recoup attorneys fees.

Justice Kline's opinion found Gammon's claim in his column that Hodge ran as a spoiler to be protected opinion because conjecture about her motives was neither true nor false and therefore, incapable of supporting a defamation claim. Likewise, Gammon's column's statement that Hodge's tenure as a college trustee "has been plagued with scandal" was rhetorical hyperbole and protected opinion, as was Gammon suggesting Hodge had "completely flopped" in her mayoral debate performance. Other statements in the column alleging a Peralta colleague had admonished her and that she had been the target of a probe by the board for alleged use of a district credit card, Justice Kline concluded, were protected under the fair report privilege.
 

Mark of the 'Z' Meets Mark of the 'C' in Zorro Suit

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Zorro ("The Fox"), the fictional heroic alter ego of foppish California nobleman Don Diego de la Vega battling oppressors in the Spanish colonial era, has entertained readers and viewers in stories, movies and television for nearly a century.

This month, the swashbuckling hero portrayed in film by actors including Douglas Fairbanks Sr., Tyrone Power, George Hamilton and Antonio Bandaras, and in a Disney tv series by Guy Williams, starred in a lawsuit filed in the United States District Court for the Western District of Washington. In Robert W. Cabell v. Zorro Productions, Inc. et al., the author of a musical based on the swordsman filed a complaint seeking declaratory judgment, cancellation of federal trademarks, injunctive relief and monetary damages.

Cabell alleges his 1996 musical tribute, Z--The Musical of Zorro, is based on Zorro creator Johnston McCulley's The Curse of Capistrano (1919) and Douglas Fairbanks Sr.'s silent classic The Mark of Zorro (1920).  According to his Complaint, reported by Courthouse News Service and THR, Esq., Cabell secured licensing for performance of his musical in Germany (nothing like multiple stabbings and shootings to get German audiences whistling as they leave the theater), but was purportedly confronted with threats of litigation by Zorro Productions, Inc. head John Gertz.

In support of its claim that Zorro has entered the public domain, Caball's Complaint cites a federal judge's footnote in a 2001 case from the United States District Court for the Western Division of the Central District of California, Sony Pictures v. Fireworks Entertainment (156 F.Supp.2d 1148 (2001)), that states: "It is undisputed that Zorro appears in works whose copyrights have already expired, such as McCulley's story, 'The Curse of Capistrano' and Fairbanks' movie, 'The Mark of Zorro.'"

The plaintiff's Complaint alleges the defendants have "fraudulently obtained federal trademark registrations" for various Zorro marks and "built a licensing empire out of smoke and mirrors." Long-time favorite fictional heroes, from Tarzan (see "TUOL" post 2/17/12) to Sherlock Holmes (see "TUOL" post 2/19/13) have been the subject of intellectual property lawsuits in recent times.

Rather than consume precious court time, "TUOL" suggests the parties settle their dispute with epees--the Z-Man would have wanted it that way.

Plaintiffs Fight to Keep Class Action Privacy Suit Against Google Alive

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United States District Court for the Northern District of California Judge Lucy H. Koh will hear arguments March 21, 2013, in Brad Scott & Todd Harrington v. Google, Inc. (Case No. 5:12-cv-03413) in deciding whether the social media giant violated California's Invasion of Privacy Act ("CIPA") [Cal. Penal Code, Pt. 1, Title 15, c.1.5, secs. 630-638].

As reported by Courthouse News Service, the plaintiffs sued Google last June, claiming Gmail scans users' emails for words and content and intercepts communications between users and non-subscribers pre-delivery and without the parties' consent.

Google, which filed a motion to dismiss the case after successfully removing the suit from state court to federal court, argues that CIPA doesn't contemplate the terms Internet, computer, email and electronic communication. Moreover, the defendant notes that Scott & Harrington, who are citizens of Alabama and Maryland respectively, have not linked their emails to California. Google further alleges that the plaintiffs have not shown they were injured by Google's purported actions and that their complaint merely alleges "their privacy rights were infringed in the abstract."

The plaintiffs counter that new technology such as employed by Google must abide by the same rules as telegraph communication and the telephone regarding users' privacy, irrespective of whether California courts have previously ruled on what plaintiffs allege is "wiretapping" and "eavesdropping."

Jury Gone Wild: Francis Socked with $40m Defamation Judgment

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Joe Francis, the force behind the Girls Gone Wild! soft-core phenomenon and lead Barbarian at the Gate, finds himself on the wrong end of a $40 million defamation judgment after a jury doubled its verdict in a suit in which Francis alleged that Las Vegas casino mogul Steve Wynn threatened to kill him over a  2009 disputed $2 million gambling debt.

Music legend Quincy Jones, Francis's neighbor, was dragged into the defamation claim brought by Wynn last April as a witness and proved to be the defendant's undoing, according to accounts by Courthouse News Service and THR, Esq. Francis alleged that Jones showed him emails from Wynn purportedly threatening to bash Francis in the head with a shovel and bury him in the desert over the gambling dispute, but Jones testified at trial that he knew nothing about any such alleged emails.

Wynn, who owns the Bellagio among other gambling resorts, reportedly will donate the $20 million award and $20 million punitive damages to charity. Francis plans to appeal.

Ebook Publishers 'E-void' Antitrust Trial with Settlement Offer

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A federal judge must still approve the proposal, but three ebook publishers have offered to kick in a total of  $69 million to settle an antitrust suit that alleges they attempted to fix ebook prices.

Attorneys general of 54 states and the District of Columbia filed suit in the United States District Court for the Southern District of New York, State of Texas, et al. v. Hachette Book Group et al. (Docket No. 12-cv-6625), claiming that Hachette, along with HarperCollins and Simon & Schuster, conspired to "raise the retail price of electronic books"  in violation of the Sherman Act [15 U.S.C. sec. 1] and the Clayton Act [15 U.S.C. secs. 12-27]. The publishers' settlement proposal would reimburse consumers who purchased ebooks from April 1, 2010, to May 12, 2010, at purportedly unreasonably elevated prices, in amounts ranging from 25 cents to $1.32 a book.

If the proposed resolution is accepted by the court, repayment would begin 30 days later. Besides the $69 million to reimburse consumers, the publishers would also bear the burden of legal fees and costs of $7.5 million. Tip of the hat to Courthouse News Service for their coverage of the class action suit.

Failed Cong. Candidate Loses Libel Suit

(Photo credit: Wikipedia)The Supreme Court of New York Appellate Division (Second Department) has affirmed Westchester County Supreme Court Judge Sam D. Walker's dismissal of a defamation suit brought by James Russell, an unsuccessful 2010 candidate for the 18th District U.S. Congressional Seat, against journalists and politicos, the Courthouse News Service reports.

In Russell v. Davies, et al. (2012 New York Slip Op. 05507), Russell sought $1 million damages apiece from a half dozen journalists and three GOP party officials for comments they allegedly made about a 2001 essay Russell wrote for the Occidental Quarterly entitled "The Western Contribution to World History." The essay was assailed for its purported racist and anti-Semitic sentiments and prompted the Westchester County Republican Party to drop Russell from the ballot two months before the election. Specifically, Russell's essay criticized several recent Hollywood films that featured young white women involved in interracial relationships and cited T.S. Eliot's viewpoint that "reasons of race and culture combine to make any large number of free-thinking Jews undesirable."

Judge Reinaldo Rivera's decision agreed with the defendants' argument that Russell could not prove malice and that their remarks were opinions that were not susceptible to a defamatory meaning. "In distinguishing between fact and opinion," Judge Rivera wrote, "the factors the court must consider are (1)whether the specific language has a precise meaning that is readily understood, (2)whether the statements are capable of being proven true or false, and (3)whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact."  Judge Rivera found the allegedly defamatory statements were opinions and that the defendants fully disclosed the facts supporting those opinions through express reference to Russell's essay.

Potboiler Publisher Won't Share the Pot, Romance Novelists Claim in Contract Suit

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Expect plenty of bodice-ripping, burning eyes and flaming lips, and waves crashing against the ocean in the United States District Court for the Southern District of New York as three romance novelists have filed a putative class action breach of contract/unjust enrichment suit against Harlequin Enterprises Ltd. ("HEL") concerning E-book royalties.

The case, reported on by Courthouse News Service and the Wall St. Journal Law Blog, is Barbara Keiler, Mona Gay Thomas & Linda Barrett v. Harlequin Enterprises Ltd., Harlequin Books, S.A. & Harlequin Enterprises B.V. (Case No. 12-cv-5558). Toronto-based HEL, the subject of a copyright infringement suit earlier this year reported here (see "TUOL" post 4/23/12), reportedly cranks out 110 titles monthly in 34 languages reaching 114 international markets from its stable of 1,200 authors. As faithful readers of this blog no doubt know, lead plaintiff Keiler is the author of Right Place, Wrong Time and Blooming All Over, Thomas penned His Secret Duchess and The Heart's Desire, while the collected works of Barrett include Apple Orchard [not to be confused with Anton Chekhov's obvious knock-off Cherry Orchard] and Love Money and Amanda Shaw.

The plaintiffs are seeking class-action status that would cover Harlequin authors who penned books for the defendants overflowing with heaving bosoms during the period from 1990 to 2004. The plaintiffs allege in their complaint that they are owed royalties on E-book editions of their works because of a standard contract clause that pays authors 50 percent royalties on net receipts of the "publisher, from the exercise, sale or license of digital rights to their works."

The plaintiffs contend that defendants Switzerland-based Harlequin Books S.A. and Netherlands-based Harlequin Enterprises B.V. are HEL subsidiaries that perform no publishing functions and merely provide tax benefits to the parent company. HEL claims it had to obtain a license from its Swiss arm to publish the authors' E-books and that any royalty calculation should be based on the publisher Harlequin Switzerland license, or 6 percent to 8 percent of the E-book's cover price, which means 3 to 4 percent for the authors.

As set forth in the plaintiffs' complaint:

 "In 2011, Harlequin Enterprises sent written communications to plaintiffs and the other class members in which it took the position that royalties for e-books were covered by the AOR [All Other Rights] Clause in the Publishing Agreements and that the authors' 50% royalty was to be calculated based on the net amount received by Harlequin Switzerland, from a 'license' that Harlequin Enterprises claims Harlequin Switzerland granted to it to publish the e-books," the complaint states. "Harlequin Enterprises claimed in those communications that the net amount received by Harlequin Switzerland was 6% to 8% of the cover price of the e-books, and that the royalties owed to plaintiffs and to other class members were therefore 50% of that amount, or 3% to 4% of the cover price.

     Under the publishing agreements, defendants have been paying plaintiffs and the other class members e-book royalties of 3% to 4% of the cover price based on the net amount received by Harlequin Switzerland from the claimed 'license' granted to Harlequin Enterprises, far less than what plaintiffs and the other class members would have been paid if their royalties were based, as they should have been, on the net amount received by Harlequin Enterprises." 

The "TUOL" staff can't help but wonder whether the judge hearing the case wears an eyepatch and has a handsome scar.

EFF Opposes Forum Shopping in Online Defamation Suit

(Photo credit: ElectronicFrontierFoundation)The Electronic Frontier Foundation ("EFF"), a nonprofit online free speech advocate, wants a California federal court to retain a defamation suit into which a federal judge in Illinois has inserted himself, the Courthouse News Service reports.

The United States District Court for the Central District of California is where plaintiffs last month initially filed an 18-page Complaint alleging, among other counts, defamation, trade libel and trademark infringement in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-04095). McFadden, a VH1 tv reality star of House of Consignment, alleges the defendant's blog posts amounted to cyberbullying and harmed her eBay business by accusing McFadden of engaging in "shill bidding", a practice that artificially inflates a product's value.

Since then, however, the plaintiffs obtained a temporary restraining order from United States District Court for the Northern District of Illinois (Eastern Division) Judge Matthew F. Kennelly prohibiting the defendant from levying "shill bidding" allegations against the plaintiffs in EDrop-Off Chicago LLC & Corri McFadden v. Nancy R. Burke Midley, Inc. d/b/a Purseblog.com (Case No. 12-cv-036323).

Enter the EFF, which has filed a 16-page amicus curiae brief urging that the case remain in California and that the court deny plaintiffs' motion to dismiss the California case without prejudice. The crux of the EFF's argument is that the plaintiffs are seeking to move to Illinois to avoid California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute and the United States Court of Appeals for the Ninth Circuit's free speech-friendly approach toward the Communications Decency Act. The EFF asserts transferring the case from California would have a chilling effect on free speech.

Alleged Neglectful Mom Remark Sparks Libel Suit

Kanawha River; downtown Charleston, West Virginia;  (Photo credit: Wikipedia)

A Fayette County (W.Va.) woman has filed libel and emotional distress claims against The Charleston Gazette parent Daily Gazette Co., alleging she was defamed by comments included in the daily's profile of a mortician suggesting she was culpable in the deaths of her four children who perished in a house fire.

The complaint in Bohanna v. Daily Gazette Company (Case No. 12-C-670), filed in Kanawha Circuit Court, includes counts alleging defamation and intentional and negligent infliction of emotional distress. Though not identified by name in the purportedly offending comments, plaintiff Linda Bohanna alleges she was defamed by statements that appeared in the Gazette's April 18, 2011, article entitled I Want Family to Mean Something attributed to funeral home director Junora Walton.

As reported by the Gazette and Courthouse News Service, in the article, Walton recounted  having to deal with  four children killed in the blaze one month after she became a mortician. "Their mother had left them alone in the house with a space heater while she went out with friends to a club," Walton is quoted as saying. The article contrasts the funeral director's response to the unnamed mother to the community's hostility, quoting Walton as saying: "Did I want to smack her around?...You bet I did...But I didn't...I told her, 'I'm not supposed to judge you.' And I was there for her. Compassionate."

The plaintiff alleges the article refers to her and her children who died in the September 1984, fire. Her complaint claims the defendant daily should have known Walton's statement was false, having covered the tragic event. The complaint seeks punitive damages and medical expenses against the defendant.

According to the Gazette article, the daily, in its online archives, subsequently included the following Note: "Correction. An earlier version of this story included a recollection by Junora Walton-of a fire that killed four children in 1984. According to a news clipping from the time, the recollection was misstated. The children's mother was home at the time of the fire, the past story states, and received burns in the blaze."

Author's Heart Throbs Over Romance Publisher's Alleged Infringement

Bob Casey Federal Courthouse (Photo credit: Wikipedia)

Toronto-based Harlequin Enterprises, Ltd., which boasts publishing more than 110 romantic potboilers monthly in 31 languages sold worldwide, faces a copyright infringement suit in the United States District Court for the Southern District of Texas from an author who claims the company produced a novel in 2011 that infringed on her work written two years earlier.

In her 8-page complaint, Rucker v. Harlequin Enterpises Ltd. (Case No. 4:2012-cv-01135), Kelly Rucker alleges more than 40 instances in which Harlequin's The Proud Wife purportedly infringes on her tome, How to Love a Billionaire. Although Courthouse News Service reports the complaint does not specify any purportedly plagiarized passages, Rucker claims the defendant had access to her work through her submission of the manuscript to competitions sponsored by the Romantic Writers of America.

The complaint alleges The Proud Wife has been financially successful for Harlequin and garnered positive reviews. Rucker is seeking all the profits from the Harlequin novel, along with damages for copyright infringement. Expect to see lots of heaving bosoms, burning stares and masculine tumescence in the courtroom.

Convict Journos Entitled to Bylines Under New Bureau of Prisons Rule

Central office of the Federal Bureau of Prisons (Photo credit: Wikipedia)Beginning May 3, avid readers of prisoner publications will know the names of the incarcerated scribes, Courthouse News Service reports.

The federal Bureau of Prisons adopted a rule it previously introduced in 2010 on an interim basis that will allow cons to have bylines on their stories. In 2007, a federal judge in Colorado held that the First Amendment rights of jailhouse journalists were being violated by rules proscribing bylines on prison paper stories.

"TUOL" wonders if convict columnists will have front- and side-view photos accompanying their work.

Actress Model Sues Distiller Over Controversial 'Rape' Ad

(Photo credit: Angelo)In Alicyn Packard v. Moet Hennessy USA, Inc. (Case No. BC481858) filed in Los Angeles County Superior Court last week, an actress/model sued the maker of Belvedere Vodka for negligent infliction of emotional distress and misappropriation of  likeness [Cal. Civ. Code sec. 3344].

As reported by THR, Esq., Courthouse News Service and elsewhere, Packard, best-known for her voice work in the animated The Mr. Men's Show, alleges an image of her and actor Chris Strickland, taken from an Awkward Moments comedy short, was used without her (or his) permission in an online ad on March 23. The image depicts a frightened Packard being grabbed from behind by a smiling Strickland and is accompanied by advertising copy that reads "Unlike some people, Belvedere always goes down smoothly."

According to the 10-page complaint, the plaintiff alleges the ad, which has since been pulled, sparked a negative online response for what she claims was its double-entendre message suggesting nonconsensual sexual conduct. Belvedere's president apologized on the company's Web site and indicated the vodka company had contributed to the Rape, Abuse and Incest National Network.