Santa Claus & The Torts of Christmas

By

Josh Gilliland

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December 20, 2012

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We all know the song….

He sees you when you’re sleeping,

He knows when you’re awake,

He know if you have been bad or good, so be good for goodness sake…

Could a Plaintiff sue Santa Claus for watching them sleep and all other aspects of their daily life?

What other liability is Father Christmas personally incurring as he decides who is naughty or nice?

For example, how does Santa know if you have been bad or good?

Are there elves remotely forensically imaging computer hard drives and using computer-assisted review to recognize patterns of nice and naughty conduct?

Does Santa have another team of elves running keyword searches over the billions of text messages sent each year? Could a Plaintiff sue Santa Claus for violations of the Stored Communication Act?

Let’s review the possible Torts and Crimes committed annually by Santa Claus.

Invasion of Privacy

Privacy is essentially the right to be left alone. While the word “privacy” does not appear in the US Constitution, there are many common law and statutory remedies for invading someone’s private life. California went so far as to even write a right of privacy into the California Constitution, which states:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Cal Const, Art. I § 1.

Santa is watching us all the time, even when we are asleep.

Courts have held to be spied upon while in bed is an invasion of privacy. See, Oziel v. Superior Court, 223 Cal. App. 3d 1284, 1301 (Cal. App. 2d Dist. 1990) & Commonwealth v. Kean, 382 Pa. Super. 587 (Pa. Super. Ct. 1989).

The tort of the intrusion into private affairs requires a Plaintiff prove the following in California against Santa Claus:

John Doe claims that Santa Claus violated his right to privacy. To establish this claim, John Doe must prove all of the following:

1. That John Doe had a reasonable expectation of privacy in sleeping at home in his bed;

2. That Santa Claus intentionally intruded in John Doe’s protected activity by watching John Doe 24 hours a day since Doe’s birth;

3. That Santa Claus’s intrusion would be highly offensive to a reasonable person;

4. That John Doe was harmed; and

5. That Santa Claus’s conduct was a substantial factor in causing John Doe’s harm.

In deciding whether John Doe had a reasonable expectation of privacy in sleeping at home in his bed, you should consider, among other factors, the following:

(a) The identity of Santa Claus;

(b) The extent to which other persons had access to John Doe’s bedroom while Doe slept and could see or hear John Doe; and

(c) The means by which the intrusion occurred.

In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:

(a) The extent of the intrusion;

(b) Santa Claus’s motives and goals; and

(c) The setting in which the intrusion occurred.

1-18 California Forms of Jury Instruction 1800

The Trial of Santa Claus for violating John Doe’s privacy rights would raise many interesting questions that would focus on Santa Claus’s abilities to watch others. How does Santa see you when you are sleeping? Does Santa focus on specific individuals to check on behavior? Or, is it something Santa cannot himself focus, like hearing the roar of a crowd at a baseball stadium, instead of one conversation? Simply put, does Santa simply know when everyone is sleeping vs setting up a global camera network to spy on people?

What are John Doe’s damages to Santa knowing when Doe is sleeping? How is Doe harmed by Santa being aware of Doe’s sleep habits? Santa is not publishing Doe’s activities, but merely rewarding good conduct annually with a present under the Christmas Tree. With that said, there is still a creepy factor to knowing a man is watching Doe sleep.

Negligent Infliction of Emotional Distress

There is a good argument that Santa Claus watching John Doe can cause negligent infliction of emotional distress.

Generally, to prove this tort, a party must establish the following:

(1) Defendant’s negligence caused Plaintiff’s emotional distress,

(2) Resulting in physical harm manifested by objective symptomology, and

(3) A reasonable person would have suffered emotional distress under the circumstances.

Kunesch v. Noyes, 29 Mass. L. Rep. 625 (2012).

John Doe would first have to demonstrate negligence on the part of Santa Claus and that Doe suffered physical harm that a reasonable person would also suffer.

Doe cannot simply say he suffered from stress at a deposition. Doe ideally would have physical harm, such as loss of sleep, ulcers, and related harm that can either be confirmed by a medical professional or reported to others to verify the harm.

Trespass of the Bells

Santa Claus is trespassing in homes across the planet. Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

A very good argument can be made that Santa is not trespassing, because he is invited into homes for gifts by the homeowners leaving cookies and milk out for him.

If Santa is invited into homes with the cookie invitation, he technically is an “invitee.” As an invitee, the homeowner would have a duty to Santa Claus to inspect the property for anything dangerous and warn Santa of any dangers (See, Black’s Law Dictionary iPad App). As such, if someone is leaving out cookies and milk, also starting a large fire or leaving toys out as a trip hazard would put Santa at risk of injury.

The Naughty or Nice List

The public has a right to be concerned with someone who can watch the world sleep.

However, if people also leave cookies and milk out to invite Santa Claus into their homes, any claims for invasion of privacy are lost by the implied social contract to be nice in exchanged for gifts.

‘Tis the Season: My favorite sci book for this time of year.

By

Jessica_alegalgeek

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December 17, 2012

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I was thinking about the next post I’m doing, discussing my favorite holiday movie (along with a movie that is not holiday-like but is coming out on Christmas Day), and it got me thinking about holiday sci-fi books. I could only think of two sci fi books that deal with Christmas, although Google revealed this list of holiday-themed sci fi books (which fails to mention my favorite).

The first story I thought of is an Arthur C. Clarke one I read in high school – The Star. The ending is cool but otherwise I wasn’t crazy about it. My second Christmas sci fi book, however, is one of my favorite books, written by Terry Prachett. Pratchett is my favorite living science fiction author (an easy decision for me to make because Asimov, Heinlein, and Herbert are all dead) and I’ve been looking for an excuse to write about him.

I first fell in love with Pratchett when I read his short story, “Hollywood Chickens.” It’s funny overall but I knew I found a keeper when a reference was made to a Star Trek episode that was found on the side of an LA freeway. The next line described the episode as “the one where Captain Kirk falls in love with the girl.” Maybe I’m a huge dork, but I thought that line was hysterical (and if you don’t get it, I’m not going to explain it to you).

Anyway, Pratchett’s Christmas-themed book is Hogfather. Hogfather is the twentieth of Pratchett’s books to be set on Discworld, a flat world balanced on the back of four elephants who ride on the back of a giant turtle. Discworld is similar to our world, although there St. Nick is replaced by Hogfather, who delivers presents on December 32.

The brilliance of Hogfather the book is that the man himself has been “killed,” so Death has to take over delivering presents. Meanwhile, Death’s granddaughter, Susan, has to track down and rescue Hogfather. While there are many movies (and possibly other books) that base a plot on someone stepping in for Santa Claus, no other character is as funny a replacement as Death. And Death, who appears in several of the Discworld books, is always likable and relatable (a testament to Pratchett’s brilliance).

Pratchett’s skill lies both in taking humorous jabs at our world and in creating lovable, unforgettable characters. In addition to Death, Rincewind the incompetent wizard is a funny, fantastic character who shows up in many of the Discworld books. The leading law firm in Discworld, while not central to any of the stories, is still worth a mention because the three founders are a zombie and two vampires (how many law firms would secretly love such monsters as their lawyers?). Moist von Lipwig is a con-man and the Postmaster General who takes Ankh-Morpork off the gold standard in Making Money (a storyline my brother, the law and economics guru, would appreciate). Granny Weatherwax is also great, as are the Wee Free Men.

I could go on all day about the greatness that is Discworld and the characters Pratchett has created, but for now, let me just say…If you’re looking for a good holiday read, read Hogfather. It’s holiday magic!

A Hobbit’s Overview of Property Rights

By

Josh Gilliland

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December 13, 2012

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Cue the sweeping music and prepare yourselves for an unexpected journey into property rights.

The Hobbit and The Lord of the Rings are not just epic stories, but ones of basic property ownership.

My first law school reading assignment was for Property and understanding the concept of “a bundle of sticks.” This was not an epic journey across Middle-Earth, but over centuries of how human beings “own” property.

And what is the One Ring? It is a thing. And a thing is something that is owned.

So, who owns the One Ring?

A Timeline for My Precious

Sauron created the One Ring; defeated by Isildur;

Isildur, killed at Battle of the Gladden Fields. The One Ring is lost in the Gladden river for over 2,500 years;

Déagol discovered The One Ring on a fishing trip;

Sméagol murdered Déagol and took the Ring for himself. Sméagol becomes Gollum;

After 500 years in the Misty Mountains, the Ring falls off of Gollum’s finger after killing a goblin;

Ring found by Bilbo Baggins; Subsequently won in a game of riddles from Gollum;

Bilbo gives the One Ring to Frodo Baggins;

Samwise Gamgee takes possession of the One Ring after Frodo is thought dead; returns Ring to Frodo after rescue;

Gollum retakes Ring by biting off Frodo’s ring finger.

(Timeline from Timeline of Arda and The One Ring; it is worth noting that both Gandalf and Tom Bombadil each briefly held the One Ring)

“Short cuts make for long delays.”

As a preliminary matter, let’s review some basics of Property law.

Black’s Law Dictionary iPad App defines “property” as follows:

1. The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership <the institution of private property is protected from undue governmental interference>. — Also termed bundle of rights. 2. Any external thing over which the rights of possession, use, and enjoyment are exercised

Black’s Law Dictionary iPad App defines “lost property” as “Property that the owner no longer possesses because of accident, negligence, or carelessness, and that cannot be located by an ordinary, diligent search.”

Generally speaking, and this will vary state to state, someone who finds mislaid property has no right to it; a finder is entitled to possession of lost property against everyone except the true owner; and a finder is entitled to keep abandoned property. Wikipedia, citing Michael v. First Chicago Corp., 139 Ill. App. 3d 374, 382, 487 N.E.2d 403, 409 (1985).

“The road goes ever on and on”

Sauron was unquestioningly the original owner of the One Ring as its creator. This gave him the right to possess, use and enjoy The One Ring. However, during the final battle with the Elves and Man, Isildur cuts off Sauron’s finger, thus destroying Sauron’s physical form.

Isildur became the rightful owner of the One Ring after Sauron’s defeat as a “spoils of war,” which is property taken from the enemy in wartime operations. (See, Black’s Law Dictionary).

The One Ring is lost for over 2,500 years after Isildur’s death. Given that amount of time and no rightful heirs looking for the One Ring, Déagol became the owner of the One Ring once he found it in on his ill-fated fishing trip as a treasure trove or abandoned property.

Sméagol’s murder of Déagol did not make Sméagol the owner of the One Ring. One cannot benefit lawfully from committing a crime. While Sméagol was in possession of the One Ring for 500 years, he was never the lawful owner due to the murder.

Even if one can argue there was an undue influence over Sméagol from the evilness of the One Ring, Sméagol still killed Déagol to get the Ring. While the “control” of the Ring might not make Sméagol guilty of murder based on an insanity defense similar to the Twinkies Defense, it does not make him innocent of killing Déagol. A Court would be hard pressed to somehow have Sméagol inherit the Ring from Déagol based on the influence of the One Ring to drive Sméagol to kill, even if it was mutual combat from both Hobbits being corrupted by the One Ring.

Things get tricky with Bilbo acquiring the Ring. Technically, the One Ring was no longer in Gollum’s possession, as it had slide off Gollum’s finger. This raises issues of whether the Ring was lost or abandoned. The answer may turn on how much time had passed since the Ring had fallen off of Gollum’s finger on whether it was “lost” or “abandoned.”

Arguably, Bilbo found “lost” or abandoned property that was never lawfully Gollum’s. However, if the Ring was not considered abandoned, Bilbo’s games of riddles with Gollum would show a lawful transference of ownership, if Gollum had perfected title somehow (Gollum did have the Ring for 500 years without being challenged).

This theory is problematic, because it would require 1) murder being cured for ownership; and 2) Bilbo found the Ring before encountering Gollum while navigating his way through a pitch black tunnel. One could argue the Ring appeared abandoned to Bilbo, opposed to simply misplaced. However, if Bilbo was on notice the Ring belonged to Gollum, Bilbo could have problems with unlawfully taking the Ring. With that said, since Gollum planned to kill and eat Bilbo, Bilbo arguably took the Ring out of self-defense.

Bilbo made a direct gift of the Ring to Frodo. As such, the Ring properly belonged to Frodo as a gift and in his possession for 17 years [in the book; the filmed moved a lot faster]. However, after Gandalf’s return and the Ring is placed in fire, the text on the Ring was arguably a 3,000 year old mark of appropriation by Sauron.

A mark of appropriation is a way of showing ownership over an item with an identifying marking.

In the classic case of Ghen v Rich, a whaler was held to be the owner of a finback whale he harpooned because of the distinguishing markings of the bomb-lance. In effect, Ghen marked the whale as his own.

Arguably, Sauron had a mark of appropriation on the Ring showing he was the owner. Additionally, if Middle-Earth, and the Shire specifically, had laws like California that prohibit the appropriation of lost property when there are clues to the proper owner (CA Penal Code 485), Frodo would have to make reasonable efforts to notify Sauron that he (Frodo) had the Ring.

However, the mark of appropriation arguably would not be a valid claim of ownership due to the fact 3,000 years had past and that Sauron lost the One Ring when he was defeated by Isildur.

Assuming that Frodo was the proper owner, Sam briefly was the bailee of the Ring when Frodo was injured by the spider Shelob. While Sam first thought Frodo was killed (and thus took the Ring to keep it out of the enemy’s hands), Sam’s duty was to keep the Ring safe until he could return the Ring to Frodo as a bailee.

In the final battle at Mount Doom, Gollum once again steals the Ring by biting it off Frodo’s ring finger (raising many issues of intentional torts and criminal liability). However, this criminal possession is short lived as the Ring and Gollum fall into lava.

There And Back Again

Property rights give the owner the right to enjoy property and exclude others from using it. J.R.R. Tolkien may not have intended for his epic story of good vs evil to highlight issues of property rights, but Hobbits are not the only ones who take unexpected journeys.

Holiday gift ideas for the legally geeky in your life.

By

Jessica_alegalgeek

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December 7, 2012

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It’s that time of year again, when we all run around, frantically trying to buy gifts for family, friends, and co-workers. (Well, I run around frantically. I have friends who always annoy me during the holiday season because all of their presents are purchased by Thanksgiving.) The interwebs abound, of course, with gift-giving lists, but none of them address those of us who have legally geeky interests. So here’s my list to fill that hole.

Jewelry is always popular, and you can be both geeky and legal with this pulsating LED open source necklace, programmed with her (or his) favorite case citation.

Lawyers love complicated rules, geeks love Spock, and this tee shirt showing the rules of “Rock Paper Scissors Lizard Spock” is the perfect melding of those two loves. And if you haven’t seen Sheldon from The Big Bang Theory explain the rules of the game, go watch it now.

For the lawyer who wants to show off her geeky side at the office, these Wonder Woman, Batman, and Superrman bookends will totally jazz up her legal library collection.

If you have a legally geeky child like I do, this lightsaber nightlight is the compromise that may get them to stay in their own room at night, instead of arguing with you as to why they have a right to sleep in your bed…yet again.

President Lincoln is hot this year, with multiple movies about his life (some a bit more out there). For fans – new or old – of Honest Abe, this bust is a perfect present.

For those looking for a good financial investment, buy some artwork at Goodwill. Recently, for the fourth time in a year, a shopper at Goodwill bought a piece of art worth thousands of dollars.

And, finally, for the hardcore Legal Geek types, what better bet than some awesome Legal Geek merchandise? (Gotta push the merch!)

Catch You Later: The Serenity of Being a Whistleblower

By

Josh Gilliland

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December 4, 2012

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Stories of “whistleblowers” exposing government corruption have been popular for as long as there have been governments.

However, to what extent are “whistleblowing” movies within the scope of whistleblowing laws?

Moreover, how do these rules apply when the government’s form of retaliation is to kill the whistleblower?

Whistle While You Work

Whistleblowing is defined under the Black’s Law iPad App as “An employee who reports employer wrongdoing to a governmental or law-enforcement agency. Federal and state laws protect whistleblowers from employer retaliation.”

Here are examples of whistleblower statutes for government employees:

(1) (a) An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner which gives the employer reasonable opportunity to correct the waste or violation.

Idaho Code § 6-2104 (2012)

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:

(1) Because the employee, or a person acting on behalf of the employee, reports or is about to report to a public body, verbally or in writing, a violation which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false; or

(2) Because an employee participates or is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action, in connection with a violation as defined in this chapter; or

(3) Because an employee refuses to commit or assist in the commission of a violation, as defined in this chapter;

or

(4) Because the employee reports verbally or in writing to the employer or to the employee’s supervisor a violation, which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false. Provided, however that if the report is verbally made, the employee must establish by clear and convincing evidence that such report was made.

19 Del. C. § 1703 (2012)

Here are the basics of whistleblowing: Employers cannot punish an employee who is lawfully reporting to the government or law enforcement of the employer’s wrongdoing. This usually involves unlawful or wasteful government action, but there are private sector examples (think Karen Silkwood).

Let’s review three movies where the heroes “reported” violations of the law:

LA Confidential: On the Q-T And Always Hush Hush

Murder, drugs, vice, blackmail, and police cover-ups in post-World War 2 Los Angeles dominate the classic LA Confidential.

The multiple crimes are as complex as the LA freeway system. However, the goal of the dirty cops was simple: take over Mickey Cohen’s drug racket.

LA Confidential raises several twists with being a whistleblower. One was the DA was being blackmailed, thus destroying his ability to press any charges and making him a de facto co-conspirator by his silence. Second was the corrupt cops were killed in a gunfight while attempting to murder the remaining heroes. The story of how bad their actions were would have destroyed the reputation of the department for decades, so everyone participates in a cover-up.

The good guys win, but not by following the law. The authorities opt for the noble lie opposed to destroying the legitimacy of law enforcement with the truth. While this legally is abhorrent, the Machiavellian reasoning makes sense for the greater good [of the elected officials].

With that said, no Mayor, District Attorney, Police Chief or other elected or appointed government official should think cover-ups are a good idea. It always ends badly.

Blue Thunder: One civilian dead for every ten terrorists. That’s an acceptable ratio.

….Unless you are one of the civilians.

Blue Thunder was the story of the military developing an armed police helicopter prior to the 1984 Olympics in Los Angeles to combat terrorism. No one wanted a Munich repeat.

The political back story was the for the helicopter to be used to put down “civil disobedience” such as riots and eliminate political enemies. Moreover, there are unexplored 4th Amendment issues of the police having a silent helicopter that could record infrared video and audio of an unsuspecting public. Additionally, in the days long before the Internet and Google, the police had access to computer network of home security systems to know if homeowners were home.

The hero Frank Murphy, played by Roy Scheider, uncovered the secret purpose of Blue Thunder on a test flight, plus a conspiracy by Feds to kill him. Murphy’s whistleblowing actions included stealing the helicopter and having his girlfriend deliver an infrared video and audio recording to a news channel with Feds engaged in conspiracy planning. Along the way, the following property damage takes place:

2 Police Helicopters Crashed
1 Police Car Shot in Two
1 Police Motorcycle Crashes
1 BBQ Restaurant Hit by Heat Seeking Missile
One Downtown LA Building Hit by a Missile
1 F-16 (Which had to crash in downtown LA)
1 Military Helicopter
1 Freight Train Runs over Blue Thunder
Blue Thunder itself is Destroyed

Blue Thunder is problematic, because the amount of property damage and threats to life push whistleblowing, the necessity defense and self-defense to new limits (it is worth noting Murphy does not appear to get a police officer or member of the public killed). However, normal whistleblowing reporting was unavailable, due to political assassination of a city council woman, the murder of Murphy’s partner, and the active plot to kill Murphy, extreme measures appeared to be the only option. Time was also of the essence before the recording would be destroyed, resulting in the loss of evidence.

While no one gets killed on screen during Murphy’s flight besides the villain, this whistleblowing would be an insurance nightmare and have an extreme amount of litigation.

Serenity: They Won’t See This Coming

Malcolm Reynolds and the crew of Serenity were whistleblowers, provided the Alliance had allowed a private right of action to report on government corruption.

In the film Serenity, the Parliament experimented on the population of the planet Miranda in an attempt to weed out aggression. It did not work, resulting in 30 million dead and the creation of the Reavers, insane cannibalistic madman lacking any social structure.

The crew’s attempt of broadcasting a report from Miranda that exposed the government wrongdoing is whistleblowing in the purest sense. However, spaceships, gunfights and cannibal rapists on the other hand are generally not involved whistleblowing stories.

Whistleblower Ballads

Whistleblower movies far exceed the act of simply reporting unlawful activity. With few exceptions, whistleblowing does not have attempted murder of the whistleblower. However, it has someone brave enough to report the violation, which then results in lawyers conducting document review to find out what happened. This is less exciting than spaceships, helicopters and shootouts.

A story slightly closer to the truth on whistleblowing would be Michael Clayton. Granted, this story does involve corporate counsel organizing the murder of trial counsel (which is not the proper response to an attorney violating the duty of loyalty, attorney-client privilege and work product doctrine). However, it does end with the attorney hero getting an incriminating statement from corporate counsel for the police to start arresting corporate counsel and other executives.

Lawyers & Pop Music: Would the Police Open Fire on Ke$ha?

By

Josh Gilliland

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November 30, 2012

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Lawyers and pop music rarely mix.

Jackson Brown’s Lawyers in Love is Exhibit A of the musical challenge in writing legally themed songs.

Moreover, attorneys frequently expect lyrics that include “whereas” and “herein after,” which cause challenges for most vocal artists.

Additionally, attorneys will kick into issue spotting mode while watching music videos.

I befell that curse and endured a serious migraine from the legal issues presented in Ke$ha’s Die Young music video.

I am sure English teachers had similar freak out nosebleeds from the use of the non-word “childs” in the song.

Here are legal issues depicted in the Die Young video:

Trespassing on a church (possibly abandoned or condemned)

Probable cultist activity evidenced by pentagrams

Engaging in conduct that Professor Charles Whitebread said would never be on a bar exam and surely vindicates Tipper Gore’s views on music warning labels

Disturbing the peace

Possible permit issues on holding a public concert/dance/parade/protest

Let’s explore the trespassing in the church and the ultimate police involvement.

Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

Ke$ha’s kicking down the door clearly demonstrates entering an area without the consent of the owner.

Moreover, the property is then occupied by her gang of back-up dancers, meeting the “entering and occupying” requirements of the statute.

What is unclear is whether the pentagrams were added by Ke$ha’s followers or already existed in the church. If added by the “Ke$hans,” there would be additional vandalism charges.

Arguably placing pentagrams in a church could be a hate crime under California Penal Code 422.6, because the pentagrams 1) defaced the church property and 2) the placement of the pentagrams would cause intimation or interference with the church parishioners’ Constitutional right to practice their religion under the First Amendment.

However, if the property was condemned or otherwise deemed unusable, there probably was not a hate crime, due to the lack of individuals using the church, thus no one to intimidate. However, there was still no legal right for the dance trope to enter the property, thus meaning there was still a trespass. Simply put, if the state condemns property for habitation, you have no legal right to enter it.

Disturbing the peace (also known as breach of the peace) is the criminal offense of creating a public disturbance or engaging in disorderly conduct, such as making a distracting noise. (See, Black’s Law Dictionary). California Penal Code section 404(a) states:

Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.

California Penal Code section 405 states:

Every person who participates in any riot is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.

Would the Ke$hans’ actions be considered a riot under California law? This would require the kicking in of a door, followed by dancing, music and criminal congress to be either be 1) through force or violence, or 2) disturbing the peace, to qualify as a riot under California law. The facts do not support “through force or violence,” (besides kicking down one door), so the issue turns on disturbing the peace. The answer may turn on one simple issue: how loud were they?

The biggest oddity was the arrival of the police (who appeared to have been Mexican Federal Police), who opened fire on the Ke$hans.

The crime of trespassing is a misdemeanor (and unlikely a “shoot first” crime in Mexico). Moreover, loud parties normally do not end in police gunfire without a public threat.

While it is highly appropriate for the police to break up a breach of the peace and arrest trespassers, shooting at everyone appeared to have no legal justification.

Unless these were the grammar police and the use of the non-word “childs” is all that is required for lethal force.

Poor Howard: Does the Stern Show own its game show ideas?

By

Jessica_alegalgeek

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November 28, 2012

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I was flipping through channels last week and I stopped on Leno (only by accident, I’m a Letterman fan) and saw him quizzing three hot girls from a model reality show who were unable to answer even really easy questions (e.g., who was the first man to orbit the earth, can you identify a picture of Hillary Clinton).

The second I saw this game show I thought of Howard Stern. I’m a huge fan of Howard’s – have been since I saw Private Parts – and I’ve listened to him obsessively ever since he moved to satellite radio. Howard has many gripes, of course. It’s part of his charm. But one complaint I’ve heard him repeat several times is that people are always stealing his ideas and making money off of them.

When Robin and others ask him why he doesn’t sue, he says his lawyers tell him he won’t win. Are they right? Take the Leno game show as an example. Howard’s been doing a version of that (usually involving porn stars instead of reality-show models) for ages. He calls his show “Dumber than a box of rocks.” And once again it involves asking hot girls very easy questions (e.g., what does the D.C. in Washington, DC stand for) that they can’t answer. The idea is clearly the same (it’s apparently funny to watch hot girls show how dumb they are), but does that mean Howard could sue Jay? Probably not. Copyright law protects “the definite expression of ideas but not the ideas themselves.” See TMTV, Corp. v. Mass Productions, Inc., 645 F.3d 464, 469 (1st Cir. 2011). Other plaintiffs who have tried to sue those who have stolen their game show concept have lost because of that basic copyright principle. For example, in McSmith v. Poker Productions, 2011 WL 1838067, at *1 (D.Nev. 2011), the court dismissed a plaintiff who argued that the defendant had taken his game show concept and idea. But the court held that such ideas and concepts are not protectable under copyright law.

So Howard would have to show that not only did Jay Leno steal the idea of his game show, but that Jay also stole specific unique elements of his show (like the fact that the girls had to say “I’m dumber than a box of rocks” if they couldn’t answer questions correctly). Only then would he have a shot at suing Leno for copyright infringement. Until then, he’ll just have to keep on Leno bashing – and coming up with new games and contests. Baba Booey to y’all!