In Salon of Rue des Moulins, (La Fleur blanche), by Henri de Toulouse-Lautrec, 1894

If a person allegedly misappropriates copyrighted material, the copyright holder may sue the misappropriator for copyright infringement.

If the material is pornography, is the accused infringer entitled to additional protections because pornography consumption is widely viewed as private and embarrassing?

Apparently, the answer is, “Yes.

According to his lawyers, Mr. Greg Lansky, an owner of Strike 3 Holdings, LLC is a “three-time [pornographer/] director of the year,” and, according to his lawyers, Strike 3’s motion pictures “are among the most pirated in the world.”

(Also, according to Strike 3’s complaint, Mr. Lansky “has been dubbed the adult film industry’s ‘answer to Steven Spielberg.'” (Who did the dubbing? His lawyers? His proud mother? And what question did Mr. Spielberg ask to which the porn industry’s answer was supposedly, “Mr. Greg Lansky” (at least according to the anonymous dubber)?)

The issue of the legality of Strike 3’s subpoenas of internet service providers to identify accused infringers has been addressed repeatedly in the U.S. district court for the district of Minnesota and the results have not been consistent. The linked decision is Sr. U.S. District Court Judge Donovan W. Frank (D. Minn.) weighing in.

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As connoisseurs of 1970’s British ridiculousness know very well (indeed, some by memory): THINGS END BADLY WHEN YOU SELL CHEESE THAT YOU DO NOT HAVE.

Unfortunately, Minerva Dairy seems to have missed that lesson.

North Central agreed four times to buy cheese from Minerva Dairy. North Central agreed to buy the cheese (at a set price, quantity, and delivery date). Minerva agreed to sell the cheese (at the same price, quantity, and delivery date). Four times.

Minerva managed to make only one cheese shipment. Three out of the four times, Minerva was apparently cheeseless. North Central refused to pay Minerva for the one shipment, however, because of Minerva’s failures on the other three orders. Minerva’s cheese lapse allegedly caused North Central damages as it hurried and allegedly paid a premium to buy cheese elsewhere to cover for the cheese it had been expecting from Minerva.

Minerva sued North Central in Ohio for North Central’s failure to to pay for the one consummated cheese delivery and Minerva won that round.

North Central, in turn, sued Minerva in Minnesota for Minerva’s failure to deliver the cheese on the other three deliveries.

In defending against North Central’s claim in Minnesota, Minerva argued that there had never been any contracts between North Central and Minerva for the sale of cheese.

Who comes up with arguments like this (and why)? (Some people just like to argue and get paid money to, apparently.)

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The linked decision this week of the Minnesota Court of Appeals is of interest in at least two ways. First, we have posted at great length about the tendency of Minnesota courts (state and federal) to give attorneys’ fee petitions “haircuts” but we were happy to see the linked decision in which the district court paid the full sum claimed and the Minnesota Court of Appeals affirmed the full fee petition.

And we’re talking $217,209.11 in lawyers’ fees, not chicken feed. Minnesota trial lawyers would be smart to review the decision to see how the law firm, Morrison & Sund, handled its billing so that its fee claim withstood the attacks by the other side.

But the case is also a fine example of an occupational benefit of trial lawyers (as opposed to an occupational hazards, of which there are also many): humility. At least most trial lawyers should, over time, deeply appreciate the quality of humility.

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We recently discussed the complex relationship between art and money but, as complicated as that is, it is nothing compared with the relationship between love and money.

As many of us know from personal or professional experience, intra-family money battles give off volatile, highly combustible, and, sometimes, even seemingly intoxicating fumes, that addle, torture, and obsess normally (more or less) rational minds.

We recently stumbled across the professional malpractice lawsuit brought by Mr. Allen Schreier against a law firm and an accounting firm over their roles in the administration of Mr. Schreier’s parents’ trusts. The lawsuit was recently removed from state court (Nobles County) and it is now pending in U.S. District Court for the District of Minnesota (Schiltz, J., presiding). This complaint might be useful for Minnesota Litigator readers to share with their colleagues who do trust and estate work as a cautionary tale.

The 26-page complaint seems primarily focused on a few contentions: (1) Mr. Schreier believes that his brother got a sweetheart deal on farmland rental from the family trust, to Mr. A. Shreier’s disadvantage (as a beneficiary of the family trusts) (See Compl. Paras. 46-50); (2) the professionals (a law firm and an accounting firm) allegedly screwed up on a tax issue (a “Q deduction”) to the detriment of the family trusts (See, e.g. Compl. Para. 11, 74-79); and (3) the professionals (a law firm and an accounting firm) allegedly shut out Mr. Shreier from communications although, since he was a co-trustee, they had an obligation to communicate with him  (See, e.g. Compl. Para. 96-98). There is certainly more to the complaint but these points stand out (and highlight the challenges of trust administration with warring factions).

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Every year since 1894, as we head into coming school year, the United States of America has celebrated American workers.

These days, there are persistent, ubiquitous, and dire warnings that their days are numbered.

It seems that our jobs are less threatened by low wage off-shore workers, so feared over the past 30-40 years, than they are threatened by computer scientists and programs that they create to do away with the need for people — with their pesky family demands, illnesses, and other human failings — for countless jobs from astronauts to truck drivers.

Lawyers are far from immune from the threat of obsolescence. If you want to fight a parking ticket in the U.K. for example, from now on, you will probably go to this website before you will call a U.K. solicitor. And worldwide, you will probably take care of many legal matters via similar applications (forming companies, drafting wills, negotiating contracts, etc.).

So, take Labor Day off! Celebrate a day off and celebrate that you have a job (assuming you are one of the lucky ones). In years to come, the bitter irony is that many of us will not have the luxury of a job nor the treat of a day off.

Catrina Johnson called the police because her teenage son was out of control and she feared for her physical safety. The police arrived. Her son, unfortunately, was unable to gain control of himself even after the police came to the scene. The police had to restrain and handcuff him forcefully.

In the struggle to restrain young Johnson, Minneapolis Police officer Robert Heiple felt a sharp pain in his leg. He erroneously concluded that Ms. Johnson had kicked him.  So he arrested her and she spent three days in jail. (The U.S. Court of Appeals for the Eighth Circuit recently allowed her lawsuit to go forward claiming a deprivation of her clearly established constitutional rights.)

(Congratulations to Ms. Johnson and her lawyer, Mr. Peter J. Nickitas! (Some of our coverage of Mr. Nickitas has been less laudatory, which goes to show the importance of repetition, persistence, and tenacity for success in the practice of law.))

Going back to Ms. Johnson, hypothetically, if Ms. Johnson’s employer fired her for being absent for work for those three days in which she was jailed because a police officer erroneously thought she had kicked him, would she be entitled to unemployment benefits?

Or should she have been barred from unemployment benefits based on “absence due to encarceration” (if she had sought them)?

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Visual artists in the United States, defined as people who create unique and original visual experiences in any physical medium, are to capitalism as hedge fund managers are to socialism.

You can argue there is a positive correlation if you like, but it’s much easier to argue the negative. Some would argue that the relationship between art and capitalism is literally antithetical: to monetize art is to degrade it, at best, and possibly to destroy it.

(Aside: note that “visual artists” is a difficult term to define and, by our definition, arguably excludes any maker of unoriginal experiences, therefore arguably excluding famous art of Andy Warhol, Marcel Duchamp, and many other works widely considered “art.”)

In short, it is almost impossible for visual artists (as defined here) to earn a living in our society, maybe because the very idea of a “market” for”art” lacks validity.

Bruce Munro, the creator of the work portrayed in the above image, is one of very few “successful” visual artists (defining “success” in a particular way, which some would disagree with strongly).

He calls his best-known works “Field of Light” and “Forest of Light,” describing them as “large-scale, immersive, light-based installations, and exhibitions.”

With this as background, one can appreciate the galling and bitter disappointment that Mr. Munro must have felt when he discussed an installation of his work in Boston, Massachusetts, with lucy [sic], a women’s active-wear company, only to have lucy break off discussions. Thereafter, lucy launched a light exhibition and advertising campaign in Boston, titled “Light Forest,” for which lucy apparently paid Mr. Munro not one penny.

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Photograph by Maura Teague

Some Minnesota Litigator posts appeal to a broad readership. This is not one of them. If you are not a trial lawyer, you should probably stop reading here.

The Schwendiman v. Arkwright patent infringement lawsuit started on April Fool’s Day, 2011.

Schendiman won a $2,624,228 jury verdict on October 18, 2017.

Although this is a significant amount of money for most of us, it might have represented a devastating setback for Schwendiman if Schwendiman had to pay for over six years of lawyering, experts, and so on, to recover $2.6 million (or a hard hit to the law firm if it took the case on a pure contingent fee)(or a less-than-hard hit on lawyers and clients, alike if there was a hybrid fee arrangement (part-contingent, part-discounted hourly)).

And the trial judge, U.S. Chief Judge John R. Tunheim (D. Minn.) rejected Schwendiman’s separate effort to be awarded its attorneys’ fees.

Could Schwendiman bump up its recovery by invoking Minnesota’s rather generous “prejudgment interest statute” (which yields 10% per annum)?

Judge Tunheim answered, “Yes.” (See here at p. 50-53.)

But 10% of what, exactly, and counting from when, exactly? Judge Tunheim awarded prejudgment interest of $1,915,328.00, nearly doubling Schwendiman’s recovery. But did he miss something?

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Free picture (Big brother is watching you video surveillance digital background) from https://torange.biz/fx/big-brother-watching-you-video-172970

Ms. Omarose Onee Manigault Newman (widely known as “Omarosa”) has been in the news lately promoting her “tell-all” book about her stint in the Trump White House (words whose juxtaposition will sadden and nauseate Minnesota Litigator for life).

In promoting her book, Omarosa has revealed that she surreptitiously digitally recorded conversations that she had, even in the White House situation room from which cell phones and recording devices are prohibited. This news comes only days after the public has learned that Trump’s personal lawyer, Michael Cohen, surreptitiously recorded telephone calls that he had with Trump.

We do not comment on the legality of Cohen’s and Omarosa’s recordings but we do take the occasion to highlight that undisclosed audio recordings are now pervasive in our society. In our personal and anecdotal experience, we are frankly stunned at the number of clients who are non-consensually recording conversations (on the telephone or in person). The rate has spiked upward dramatically in recent years. (And, woe to the lawyers who fail to appreciate fully that many of their clients are recording their every word.)

Is it unlawful?

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Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update (August 16, 2018): Predictably, plaintiff’s counsel in the case described below want to keep the defense lawyers in the ring, or at least to avoid any delay caused by the lawyers’ attempt to thrown in the towel.

Update (August 10, 2018): Things have gone from bad to worse for Defendants, Geckobyte and R. Tiegen Fryberger, in the case described below.

Now their lawyers are seeking permission to withdraw from representing them. Will the lawyers get permission? Time will tell. As devout Minnesota Litigator readers know but others may be surprised to learn, although it is easy to ask for permission to withdraw from representation of a client, it is not so easy to get permission, at least in federal court in Minnesota (see here and here).

We lament this situation (involuntary representation) and we hope that Geckobyte and Fryberger’s lawyers are not collateral damage in this bloodbath, even if they were responsible for the rope-a-dope defensive strategy which seems to have failed.

Update (June 26, 2018): We saw this one coming. (Plaintiffs win on their motion for summary judgment, defendants lose on theirs).

Update (May 16, 2018): From the looks of it, Defendants Geckobyte.com, Inc., and R. Tiegen Fryberger did not enter the ring to win the match in their lawsuit in the U.S. District Court (D. Minn.). They were dragged into the ring. They do not appear to want to fight very much, if at all. On the other hand, they are obviously unwilling to forfeit the match.

As discussed in the original post (below), the Riddle et al. v. Geckobyte, et al., lawsuit is a common scenario in U.S. civil litigation involving small businesses: one business buys another and either they buyer protests that the purchased assets were not “as advertised” or the seller protests that buyer’s payment(s) were not made as promised (and often both). (These problems seem particularly common when the seller is to work for the buyer’s business and seller’s payout is based in significant part on post-sale business performance.)

In this case, Plaintiff is the seller, seeking to be paid for the business he sold to Defendant. Defendant’s defense seems to have been a variant of rope-a-dope, in which a fighter seems to take the opponent’s punches to tire him out, then slips out of passivity when his opponent is exhausted, to pummel the tuckered-out fighter. (See arguments on plaintiff’s summary judgment motion on defendant’s counterclaims here, here, and here).

Rope-a-dope, as the linked article points out, was a dubious and flawed strategy in real boxing. It seems worse in the context of civil litigation.

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