A Blaze of Glory? The legal history behind flag burning as free speech

A Blaze of Glory? The legal history behind flag burning as free speech

Happy July 4th!  Perhaps nothing else symbolises America’s Independence Day quite like the American flag, also known as “Old Glory.” So what better day to consider the fascinating legal history which surrounds burning the American flag in protest?

This is my second blog post dedicated to exploring important United States Supreme Court cases on free speech. The first post, Regulating the Raunchycovered the basics of free speech protected by the First Amendment, together with the regulation of pornography under Miller v. California (1973). This post covers the history of flag protection in the United States, and the cultural shifts that led to Texas v. Johnson (1989).

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Unrest followed by Unity: the Revolutionary War and Civil War

Adopted on 14 June 1777, the American flag represents an incredibly wide variety of concepts, sentiments, and political positions. For many in the United States and abroad, the flag symbolizes normatively “good” things in Western culture, such as democracy, freedom, liberty, and self determination.

When considering why the American flag is such a potent symbol, it might be helpful to consider that the U.S. Civil War (1861-1865) not only revived that patriotic attachment to the flag, but expanded and intensified it, fostering a spirit of reverence and devotion (National Museum of American History). By the late 1800’s, flag protection movements had swept across the country in reaction to perceived commercial misappropriation on the one hand, and politically motivated abuse of the flag on the other. 

By 1932, each State had adopted some form of flag protection legislation, which prohibited “publicly mutilating, trampling, defacing, defiling, defying or casting contempt, either by words or by act, upon the flag” (emphasis added).

The Vietnam War was a watershed moment for political protests.

Following the Second World War, American prosperity and patriotism boomed. But by the 1960’s however, the counterculture movement began, marked by widespread revolution against established norms and conventions. In particular, the increasing unpopularity of the Vietnam war led many to question the infallibility of American foreign policy. After American bombing campaigns against North Vietnam intensified in 1965, small uprisings of peace activists and intellectuals on university campuses soon gained national prominence.

Anti-Vietnam war demonstrators burn the flag in Central Park, 1967.

1984: Counterculture against Ronald Reagan.

The Youth International Party or “Yippies” were one such offshoot of the countercultural revolutionaries of the free speech and anti-war movements of the 1960s. During the 1984 Republican National Convention in Dallas, Texas, the Yippies and like-minded groups protested against President Reagan, including his administration’s involvement in Grenada and Nicaragua.

Dozens of protesters were arrested, including Gregory Lee Johnson, whose participation during the protests involved the burning of an American flag. “We wanted to do as much as possible to puncture the whole chauvinistic, Rambo-istic atmosphere around that convention,”  Johnson later recalled.

Johnson was therefore charged with violating Texas Penal Code 42.09(a)(3), which prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger or offense in others. Johnson was initially sentenced to one year in jail, and assessed a $2,000 fine. After a series of appeals, the case was brought before the Supreme Court for final adjudication in 1989.

The decision and legal reasoning behind Texas v Johnson

In a 5-4 decision, the Supreme Court held that Johnson’s conviction for flag desecration was inconsistent with the First Amendment, which states inter alia that “Congress shall make no law abridging the freedom of speech.” Of course, the act of burning something is not written or spoken speech (also known as “pure speech”). So how can burning the flag possibly be construed as speech protected by the First Amendment?

The Court held that where the medium or conduct itself is the message, it is a special form of protected speech, known as “symbolic speech.” Put differently, symbolic speech is a nonverbal communication that takes the form of an action, in order to communicate a specific belief or position. 

To be considered symbolic speech, the action in question must be a form of expressive conduct. This requires: (1) that the individual intended to communicate a message, and (2) that the audience was likely to understand the communication.

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Joey Johnson (left) and his lawyer, William M. Kunstler – a civil rights activist known for his politically unpopular clients

The Supreme Court agreed that Johnson burned an American flag as a political demonstration that coincided the Republican party’s renomination of Ronald Reagan for President. The expressive, overtly political nature of Johnson’s action was both intentional and overwhelmingly apparent. At his trial, Johnson explained that he burned the flag because “a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.”

The Court found that Texas’ focus on the precise nature of Johnson’s expression violated the principle that the government may not prohibit expression simply because it disagrees with its message. This core doctrine of American free speech is not dependent on the particular mode or method in which one chooses to express an idea.

The judgment concluded with what I consider to be a particularly powerful point made by Justice Brennan:

We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. The flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.

The Impact of the Supreme Court’s decision. 

It is important to note that the Supreme Court however did not say that the government was prohibited from regulating symbolic speech. State legislatures can indeed constrict symbolic speech, provided that the law both: (1) reflects an important interest unrelated to suppressing the actual message (i.e., the law prohibits the non-communicative aspects of the act in question) and (2) is narrowly tailored to that substantial government interest. 

Because flag protection statutes in 48 of the 50 States did not meet this test, the decision in Texas v Johnson effectively invalidated those laws.

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Gregory “Joey” Johnson holds a flag, June 1989. (AP Photo/David Canto via the Smithsonian)

Lingering controversy

Although Texas v Johnson was decided 30 years ago, public sentiment regarding the treatment of the US flag remain controversial as ever.

Shortly after his election in 2016, President Donald Trump tweeted that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” And only two weeks ago (15 June 2019) Trump tweeted that he was “All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!”

While it is true that burning the flag is seen by many as provocative and disrespectful, the right to do so in certain circumstances is protected by settled law. As Justice Brennan said: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” On that final note, if you happen to see an American flag on this 4th of July, spare a thought for its special role in shaping and reaffirming our rights of free speech!

Regulating the Raunchy? A look at free speech and obscenity under Miller v. California

Regulating the Raunchy? A look at free speech and obscenity under Miller v. California

One of the most interesting aspects of being a technology lawyer is that it necessarily requires a strong understanding of Internet regulation and digital rights, including the right to express yourself online.  As such, free speech is one of my favourite areas of legal history and theory.  Coincidentally, two major US Supreme Court cases regarding free speech were decided on this day —  21 June!

This post takes a look at one of them: Miller v. California [1973].  In a later post, I’ll explore a second landmark free speech case decided on 21 June: Texas v. Johnson [1989].

The Constitution in Court.  

Most people know that the First Amendment of the US Constitution protects freedom of speech. However, it’s actually a bit more complicated than many would guess. In its entirety, the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Putting the aspects regarding religion, assembly, and petitions to one side, what this Amendment essentially does is prohibit the government from prohibiting freedom of speech. But what does that look like in practice?

Of course, we cannot travel back in time to 1789 to ask James Madison what he meant when he drafted the Bill of Rights. Instead, American Courts have over time developed various methodologies to apply modern facts to something written 230 years ago.

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Miller v. California – to what extent can the government regulate porn, and why should we care?

The case of Miller v. California, 413 U.S. 15 (1973) concerns pornography and whether or not the government is allowed to regulate obscene material. Marvin Miller was the owner/operator of a California mail-order business specializing in pornographic films and books. When his company’s brochures were sent to and opened by a restaurant owner in Newport Beach, California, the restaurant owner called the police. Miller was subsequently arrested and charged with violating California Penal Code § 311.2, which is paraphrased below:

Every person who knowingly sends into California for sale or distribution, or in this state possesses, prepares, publishes, with intent to distribute or to exhibit to others, any obscene matter is guilty of a misdemeanor.

The jury at Miller’s trial in State court had been instructed to consider the pornographic materials in question, and determine if they were “obscene.” The jury decided that they were, and Miller was found guilty. Because he objected with the way in which the jury had arrived at this conclusion, he appealed the decision to the Supreme Court.

Although the Supreme Court ultimately vacated the earlier jury verdict and remanded the case back to the California Superior Court, the matter became a landmark decision and the basis for what is now known as the Miller Test.

Writing the majority opinion, Chief Justice Burger reaffirmed in Miller that obscenity can be regulated by the government, because it is “unprotected speech.” Referring to Roth v United States (1957) and other similar cases, Justice Burger explained that obscenity was not within the area of constitutionally protected freedom of speech either under the First Amendment, or the Due Process Clause of the Fourteenth Amendment. “In the light of history,” Justice Brennan had said in Roth, “it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

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Legal Fun Fact:  The first conviction for obscenity in Great Britain occurred in 1727. Edmund Curll was convicted for publishing erotic fiction titled “Venus in the Cloister or The Nun in her Smock” under the common law offence of disturbing the King’s peace. 

Now that we are clear that the First Amendment does not protect obscenity, the next question is obviously therefore: what is obscenity?  

In Miller, Justice Burger acknowledged the inherent dangers of regulating any form of expression, and said that “State statutes designed to regulate obscene materials must be carefully limited.” As a result, the Supreme Court was tasked with confining “the permissible scope of such regulation to works which depict or describe sexual conduct.”

This brings us to Burger’s three-part test for juries in obscenity cases. Obscenity is now defined as something: (1) the average person, applying contemporary community standards, would find appeals to a prurient interest; (2) which depicts or describes, in a patently offensive way, sexual conduct; and (3) whether the work lacks serious literary, artistic, political, or scientific (or “SLAPS”) value. In short, obscenity must satisfy as the prurient interest, patently offensive, and SLAPS prongs.

The Miller test changed the way courts define obscenity, and accordingly, what does – or does not – deserve protection as “free speech.”  

This Miller obscenity test overturned the Court’s earlier definition of obscenity established in Memoirs v Massachusetts (1966). In Memoirs, the Court had decided that obscenity was material which was “patently offensive and utterly without redeeming social value.” Furthermore, the Memoirs decision made clear that “all ideas having even the slightest redeeming social importance have the full protection of the guaranties [of the First Amendment]”.

By adopting the Miller decision, the Supreme Court departed from Memoirs in favour of a more conservative and narrow interpretation of the types of speech which qualify for First Amendment protection. Rather than considering obscenity as simply that which is “utterly without redeeming social value” of any kind, obscenity is now a subjective standard. This offers wider discretion to State legislatures and police agencies, as well as prosecutors and jurors, to decide whether material is “obscene” under local community standards.

Not everyone agrees!  Unsurprisingly, the Miller decision was a narrow one, and split the Court 5-4.

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Chief Justice Burger wrote the majority opinion, with Justice Douglas penning the dissent.

Justice William O. Douglas wrote the dissent and, at the risk of sounding like a total legal geek, I highly suggest taking a quick read of it! One of my favourite excerpts is as follows:

The idea that the First Amendment permits government to ban publications that are “offensive” to some people puts an ominous gloss on freedom […] The First Amendment was designed “to invite dispute,” to induce “a condition of unrest,” to “create dissatisfaction with conditions as they are,” and even to stir “people to anger.” The idea that the First Amendment permits punishment for ideas that are “offensive” to the particular judge or jury sitting in judgment is astounding. 

Nevertheless, despite the dissent and criticism, the Miller test remains the federal and state standard for deciding what obscene. However, the rise of the Internet has complicated matters, not least because the concept of “community standards” is difficult to define given how interconnected we are today.

What do you think? After nearly 50 years, should the Supreme Court reconsider what “obscenity” means? Is the Miller Test due for an update?

Privacy Day 2019

Privacy Day 2019

In 2006 the Council of Europe officially recognised 28 January as a data privacy holiday, to celebrate the date The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was signed in 1981. Also known as Convention 108, this document remains the only international treaty in the field of personal data protection.

In honour of this year’s Privacy Day – also called Data Protection Day – here are a few excerpts from some of my favourite English and American legal cases about privacy.

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In 1762, the King George IV’s Chief Messenger Nathan Carrington and others broke into the home of the writer John Entick. Over the course of four hours, the messengers broke open locks and doors and searched all of the rooms, before taking away charts and pamphlets, and causing £2,000 of damage. The King’s messengers were acting on the orders of Lord Halifax, the newly appointed Secretary of State: Entick later sued Carrington for trespassing on his land. In his judgment in favour of Entick, Chief Justice of the Common Pleas Lord Camden wrote:

Has a Secretary of State a right to see all a man’s private letters of correspondence, family concerns, trade and business? This would be monstrous indeed; and if it were lawful, no man could endure to live in this country.

Today, Entick v Carrington is considered to have deeply influenced the establishment of individual civil liberties, and limiting the scope of executive power. It also served as an important motivation for the Fourth Amendment to the United States Constitution, which guarantees protections to Americans against certain searches and seizures. 

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Prince Albert v Strange was an 1849 court decision which began the development of confidence law, the common law tort that protects private information. By way of background, both Queen Victoria and Prince Albert sketched as a hobby. John Strange obtained some of these sketches after they had been stolen from Windsor Palace, and published a catalog showing them. Prince Albert filed suit for the return of the sketches, and a surrender of the catalog for destruction. The Lord Chancellor Lord Cottenham granted Prince Albert’s plea, and explained in his judgment that:

The Court of Chancery will protect everyone in the free and innocent use of his own property, and will prevent other parties from interfering with the use of that property, so as to injure the owner. It is certain every man has a right to keep his own sentiments if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. Privacy is a part, and an essential part, of this species of property.

 

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In 1967, William Baird was charged with a felony for handing a condom to an unmarried woman who had attended one of his lectures on birth control at Boston University. Under Massachusetts law on “Crimes against chastity”, contraceptives could only be distributed by registered doctors or pharmacists, and only to married persons. The Supreme Court of the United States overturned the law in the 1972 case Eisenstadt v. Baird, and the majority opinion was written by Justice Brennan, who famously wrote:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

In 1982, the state of Pennsylvania enacted legislation that placed a number of restrictions on abortion. In the resulting 1986 case Thornburgh v. American College of Obstetricians and Gynecologists, the Supreme Court overturned the Pennsylvania law, holding (amongst other things) that the “informed consent” and printed materials provisions of the law unduly intruded upon the privacy of patients and physicians. Justice Brennan penned the opinion, noting:

Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all. 

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In 2001, British supermodel Naomi Campbell was photographed leaving a drug rehabilitation clinic, despite having previously denied that she was a recovering drug addict. After the photographs were published in the tabloid The Mirror, Campbell sued for damages in Naomi Campbell v Mirror Group Newspapers. The House of Lords held the paper liable, and Law Lord Nicholls stated:

The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

In the 2011 case of Federal Aviation Administration v. Cooper, the Supreme Court considered if the United States Privacy Act of 1974 covers mental and emotional distress caused by privacy invasion. The Court held that the Privacy Act’s “actual damages” provision only allowed Cooper to recover for proven pecuniary or economic harm. Justice Sonia Sotomayor wrote the dissent, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. Perhaps unsurprisingly, I personally agree with Justice Sotomayor’s dissent, which noted:

Nowhere in the Privacy Act does Congress so much as hint that it views a $5 hit to the pocketbook as more worthy of remedy than debilitating mental distress, and the contrary assumption [in this case] discounts the gravity of emotional harm caused by an invasion of the personal integrity that privacy protects.

Of course, the cases above provide only a small glimmer of insight into the weird and wonderful world of privacy law. On international Privacy Day in particular, it’s important to remember that the legislation and court cases which shape our understanding of privacy and protection from intrusion go far beyond the modern notion of cyber security.

The right to privacy is a human right!

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Transatlantic Data Transfers: US-EU Privacy Shield under review

When personal data travels between Europe and America, it must cross international borders lawfully. If certain conditions are met, companies can rely on the US-EU Privacy Shield, which functions as a sort of “tourist visa” for data. 

Earlier this week (19 November) the United States Federal Trade Commission finalised settlements with four companies that the agency accused of falsely claiming to be certified under the US-EU Privacy Shield framework. This news closely follows the highly anticipated second annual joint review of the controversial data transfer mechanism. 

IDmission LLC, mResource LLC, SmartStart Employment Screening Inc., and VenPath Inc. were slapped on the wrist by the FTC over allegations that they misrepresented their certification. But this is just the latest saga in an on-going debate regarding the Privacy Shield’s fitness for purpose. Only this summer, the European Parliament urged the European Commission to suspend the Privacy Shield programme over security and privacy concerns.

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Background and purpose

Designed by the United States Department of Commerce and the European Commission, the Privacy Shield is one of several mechanisms in which personal data can be sent and shared between entities in the EU and the United States. The Privacy Shield framework thereby protects the fundamental digital rights of individuals who are in European Union, whilst encouraging transatlantic commerce.

This is particularly important given that the United States has no single, comprehensive law regulating the collection, use and security of personal data. Rather, the US uses a patchwork system of federal and state laws, together with industry best practice. At present, the United States as a collective jurisdiction fails to meet the data protection requirements established by EU lawmakers.

As such, should a corporate entity or organisations wish to receive European personal data, it must bring itself in line with EU regulatory standards, known as being “protected under” the Privacy Shield. To qualify, companies must self-certify annually that they meet the requirements set out by EU law. This includes taking measures such as displaying privacy policy on their website, replying promptly to any complaints, providing transparency about how personal data is used, and ensuring stronger protection of personal data.

Today, more than 3,000 American organisations are authorised to receive European data, including Facebook, Google, Microsoft, Twitter, Amazon, Boeing, and Starbucks. A full list of Privacy Shield participants can be found on the privacyshield.gov website.

Complaints and non-compliance?

There is no non-compliance. We are fully compliant. As we’ve told the Europeans, we really don’t want to discuss this any further.

—Gordon Sondland, American ambassador to the EU

Although the Privacy Shield imposes stronger obligations than its ancestor, the now-obsolete “Safe Harbor,” European lawmakers have argued that “the arrangement does not provide the adequate level of protection required by Union data protection law and the EU Charter as interpreted by the European Court of Justice.”

In its motion to reconsider the adequacy of the Privacy Shield, the EU Parliament stated that “unless the US is fully compliant by 1 September 2018” the EU Commission would be called upon to “suspend the Privacy Shield until the US authorities comply with its terms.” The American ambassador to the EU, Gordon Sondland, responded to the criticisms, explaining: “There is no non-compliance. We are fully compliant. As we’ve told the Europeans, we really don’t want to discuss this any further.”

Věra Jourová, a Czech politician and lawyer who serves as the European Commissioner for Justice, Consumers and Gender Equality, expressed a different view: “We have a list of things which needs to be done on the American side” regarding the upcoming review of the international data transfer deal. “And when we see them done, we can say we can continue.”

Photo: Ambassador Sondland with Commissioner Jourova in the Berlaymont.
Jourová and Sondland, via a tweet from Sondland saying he was “looking forward to our close cooperation on privacy and consumer rights issues that are important to citizens on both sides of the Atlantic.” 

The list from the Parliament and the First Annual Joint Review [WP29/255] (.pdf) concerns institutional, commercial, and national security aspects of data privacy, including:

  • American surveillance powers and use of personal data for national security purposes and mass surveillance. In particular, the EU is unhappy with America’s re-authorisation of section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorises government collection of foreign intelligence from non-Americans located outside the United States (Remember Edward Snowden and PRISM? See the Electronic Fronteir Foundation’s explanation here)
  • Lack of auditing or other forms of effective regulatory oversight to ensure whether certified companies actually comply with the Privacy Shield provisions
  • Lack of guidance and information made available for companies
  • Facebook and the Cambridge Analytica scandal, given that 2.7 million EU citizens were among those whose data was improperly used. The EU Parliament stated it is “seriously concerned about the change in the terms of service” for Facebook
  • Persisting weaknesses regarding the respect of fundamental rights of European data subjects, including lack of effective remedies in US law for EU citizens whose personal data is transferred to the United States
  • The Clarifying Overseas Use of Data (“CLOUD”) Act signed into law in March 2018 allows US law enforcement authorities to compel production of communications data, even if they are stored outside the United States
  • Uncertain outcomes regarding pending litigation currently before European courts, including Schrems II and La Quadrature du Net and Others v Commission.

 

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Max Schrems is an Austrian lawyer and privacy activist. In 2011 (at the age of 25) while studying abroad at Santa Clara University in Silicon Valley, Schrems decided to write his term paper on Facebook’s lack of awareness of European privacy law. His activism led to the replacement of the Safe Harbor system by the Privacy Shield.

What happens if the Privacy Shield is suspended?

In a joint press release last month, the representatives from the EU and USA together reaffirmed “the need for strong privacy enforcement to protect our citizens and ensure trust in the digital economy.” But that may be easier said than done.

In the event that the Privacy Shield is suspended, entities transferring European personal data to the United States will need to consider implementing alternative compliant transfer mechanisms, which could include the use of Binding Corporate Rules, Model Clauses, or establishing European subsidiaries. To ensure that the American data importer implements an efficient and compliant arrangement, such alternatives would need to be assessed on a case-by-case basis involving careful review of data flows, and the controller and processors involved.

Regardless of the method used to transfer data, American companies must ensure that they receive, store, or otherwise use European personal data only where lawfully permitted to do so. The joint statement noted above concluded by saying that the “U.S. and EU officials will continue to work closely together to ensure the framework functions as intended, including on commercial and national-security related matters.”

The European Commission is currently analysing information gathered from its American counterparts, and will publish its conclusions in a report before the end of the year.

“Faceswap” for Lady Liberty costs US Post Office $3.5M

Between 2011 and 2014, the United States Postal Service (USPS) used an image of the Statue of Liberty for its Forever Stamp series (a type of First Class postage stamp). Unfortunately for the USPS, the image they chose was not actually of the famous statue that towers over New York Harbor designed by French sculptor Frédéric Auguste Bartholdi in 1886. Instead, the image they chose was actually Robert S. Davidson’s replica Statue of Liberty which looks over the New York-New York Hotel & Casino in Las Vegas. Davidson sued for – and won – nearly $3.5 (£2.6) million in royalties, plus interest.

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the original in New York (left) and the “replica” in Vegas

As reported by Artsy, an eagle eyed stamp collector identified the mix-up in 2011. The USPS was made aware of the goof in 2013, but went on to print another 1.13 billion stamps with the replica’s image. For context, the judgement cited that the USPS made some $70 million in revenue resulting from sales of this Lady Liberty stamp alone.

The Post Office purchased the photo used on the stamp from the image service Getty for $1,500 (£1,140). However, the license only covered the rights to Getty’s photograph of the statue — and not the statue itself. The USPS neglected to seek permission from Davidson, likely because they simply assumed what it was using was in the public domain.

In its defense, the USPS asserted that the statue is a replica and accordingly, contains no truly original work. If true, this would render Davidson’s copyright claim invalid, and the government would owe nothing for its use of the replica statue’s image.

Davidson was therefore tasked with proving that his copyright in the statue was valid, which under US law requires only a showing of “some minimal degree of creativity” and that it was his own “independent creation” of those original elements.

By way of reminder, the focus is on the expression of an original idea and not the idea itself (Oracle Am., Inc. v. Google Inc., 2014). As such, Davidson’s statue did not need to be wholly original, but rather a “new and original expression” of some previous work or idea – namely, the famous Bartholdi statue.

Davidson argued in his lawsuit that he wasn’t trying to create a replica of the original, but rather to craft a fresher, more feminine version. As was later quoted in the ruling, he “envisioned his mother-in-law as inspiration … and viewed her picture every night during the construction of the face of the statue.”

The Court examined photographs and was satisfied that Davidson “succeeded in making the statue his own creation, particularly the face.  A comparison of the two faces unmistakably shows that they are different.” Ultimately, the Court agreed that Davidson’s statue “evokes a softer and more feminine appeal.  The eyes are different, the jaw line is less massive and the whole face is more rounded. “

The USPS’s defense that the stamp fell under the fair use exemption was rejected by the Court. As the USPS printed “billions of copies and selling them to the public as part of a business enterprise … so overwhelmingly favors a finding of infringement that no fair use can be found.”

In case you’re wondering how the USPS – which is a US government agency – can be successfully sued for copyright infringement, 28 U.S.C. § 1498(b) waives sovereign immunity for claims of copyright infringement against the federal government “for the recovery of his reasonable and entire compensation as damages for such infringement.”

California Bar Exam; introduction

California Bar Exam; introduction

I’ve decided to sit the California bar next year! I thought it might be a good idea to keep a written record of my experiences, thoughts, predictions, and study strategy: these posts will be marked by the “California Bar Exam” category tag.

Why become dual-qualified? And why California? Although I’ve lived in London for nearly seven years and am licensed to practice law in England, I’m still an American citizen. I earned my Bachelors’ degree in the USA, and after studying law and politics fully intended to go to law school in the States. My original plans to spend one year in London to do a Masters degree changed when I met my now-husband!

It consider it something special to be qualified to practice law in your “home” jurisdiction. The American Constitution is very much a part of my professional and personal DNA: as I’ve become more and more involved in English and European law (especially in matters concerning media, expression, and privacy) the more interested I am in American jurisprudence.

Maybe it’s the academic in me, but I’m genuinely passionate and curious about legal theory and the practice of law. I also think being dual-qualified will make me a better lawyer, not least because the majority of my clients have some sort of international aspects which routinely touch on US law.

Currently, only a few states allow foreign-qualified lawyers to bypass American law school and sit the bar as “attorney applicants” – New York and California are two of the most popular. For boring administrative reasons* I’m not eligible to sit the bar in New York without doing an LL.M. in the States. California on the other hand only cares about the fact that I’m currently a lawyer in good standing in my home jurisdiction. So California it is!

Even if I was eligible to sit the NY bar, I do honestly think that I’d prefer to do it in California. My practice is focused on media, internet companies, telecoms, creative content, defamation, publicity, and privacy: so many interesting cases on those matters come out of California. Furthermore, I come across contracts subject to Californian law on a weekly basis. It would be great to be able to advise on those contracts, and not need to defer to US counsel! Plus, as a girl originally from the West Coast of the US, I’ve always believed known West Coast, Best Coast. 

There are three key components of the exam process:

1.  The Multi-state Professional Responsibility Exam, or “ethics exam” (MRPE). This exam can be taken in any one of 300 test centers around the USA, and is offered three times each year. I’m taking the exam in November, in New York City. My test results will be “uploaded” to California.

In July 2019, I’ll be off to Los Angeles to sit the California Bar Exam, which occurs over a two-day period:

2.  The California Bar Exam. Day 1 consists of five separate one-hour essays on a variety of legal topics, and one 90-minute practice test in which candidates are expected to work through a series of documents and produce some sort of memorandum or client letter. I’m still trying to figure out which points of California law specifically will be testable.

3.  The Multi-State Bar Exam. Day 2 is the MBE, which consists of 200 multiple-choice questions on seven subjects, based upon principles of common law and Article 2 of the Uniform Commercial Code (covering sales of goods). The questions are not broken down into sections and the seven topics are distributed more or less evenly throughout the exam. Candidates receive three hours during the morning session to complete the first 100 questions, and another three hours during the afternoon session to complete the second 100 questions.

The topics covered are:
• Business Associations
• Civil Procedure – topic on both Day 1 and Day 2
• Community Property
• Constitutional Law – topic on both Day 1 and Day 2
• Contracts – topic on both Day 1 and Day 2
• Criminal Law and Procedure – topic on both Day 1 and Day 2
• Evidence – topic on both Day 1 and Day 2
• Professional Responsibility
• Real Property – topic on both Day 1 and Day 2
• Remedies
• Torts – topic on both Day 1 and Day 2
• Trusts
• Wills and Succession

 

*Why not New York? According to Section 520.6 of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, foreign lawyers must satisfy certain requirements to be admitted to the New York bar. In addition to passing the bar exam itself, applicants must have a “qualifying degree” that satisfies the educational requirements to practice law in a foreign country.

The normal route in England for aspiring lawyers is to do an undergraduate degree in law: the LL.B. They then do a year of law school (LPC) and two years of clerking (the training contract).

For students who don’t do the LL.B (for example. if they do history or chemistry and later decide to go into law) they can do a one-year “conversion” course known as the Graduate Diploma in Law (GDL) before doing the LPC. This was the route I chose, as – like many others – I did not do an undergraduate degree in law.

Unfortunately, despite being a qualified solicitor in England, the New York State Bar does not recognise the GDL as being a full “qualifying degree.” I can “cure” this by completing a 2-year LL.M. (a Masters’ degree in law) in the USA, but… nah. That’s not happening.

American Copyright law to get 21st century remix

American Copyright law to get 21st century remix

In my previous post, I wrote about the European Union’s sweeping new Directive on Copyright in the Digital Single Market, which is currently in draft stages. But copyright legislation is getting an update on the other side of the pond, too.

Since 1909 — before recordings of music even existed — Section 115 of the Copyright Act has regulated the licencing of musical works. Many songwriters and music publishers have trouble collecting royalties for the use of their songs played via digital streaming services. Amongst other things, the proposed Music Modernisation Act will modernise how compensation for mechanical licenses, which include digital streaming, is determined.

Last week, The United States House Judiciary Committee voted unanimously (32-0) to approve House Bill 4706, “to provide clarity and modernize the licensing system for musical works under section 115 and to ensure fairness in the establishment of certain rates and fees.” More commonly known as the Music Modernization Act (“MMA”), the bill now heads for consideration by the full House of Representatives. The MMA has received wide bipartisan support from Democrats and Republicans alike, and appears to be “on the fast track” for approval.

Importantly, the MMA will create an American agency or “mechanical licensing collective” that would house all music publishers under one roof. It is expected that the agency will have a database of ownership information, which will increase transparency and help identify music creators who are owed royalties.

Once established, the digital streaming services will pay the mechanical licensing collective, which in turn tracks and collects royalties on behalf of the artists. As explained by Committee Chairman Bob Goodlatte (a Republican from Virginia), the MMA “boosts payments for copyright owners and artists by shifting the reasonable costs of a new mechanical licensing collective onto digital music services, who themselves benefit from reduced litigation costs as a result of other provisions in the bill.”

Speaking to ABC news, John Simson noted that Americans “…have a 1909 statue trying to govern 2018 technology, and it doesn’t work.” Mr Simson is a professor at the American University and founding member of Sound Exchange, a non-profit organisation set up to collect and distribute performance royalties.

Intellectual Property Subcommittee Vice Chairman Doug Collins (a Republican from Georgia) noted that “the current music licensing landscape undervalues music creators and under-serves music consumers. Outdated copyright laws have produced unnecessary liabilities and inefficiencies within the music licensing system, and stakeholders across the music industry have called for reform. This bill moves the music industry towards a freer and a fairer market, enabling it to leverage the present and future benefits of the digital age.”

  • The first section of the bill concerns how modern digital music services operate, and will create a “blanket licensing system” to quickly license and pay for musical work copyrights. A key aim includes discouraging lawsuits in favour of simply ensuring that artists and copyright owners are paid in the first place without such litigation (see “No lawsuits over unpaid royalties after 1 January 2018?” below).
  • The second section, “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act” will focus on public performance rights for pre-1972 recordings. In particular, musicians with pre-1972 recordings will receive royalty payments when their tracks are played on the radio, online, or on television.
  • The third section, “Allocation for Music Producers (AMP) Act,” will ensure that record producers, sound engineers, and other creative professionals also receive compensation for their work.

No lawsuits over unpaid royalties after 1 January 2018?
Of course, the MMA is not without its detractors who are quick to point out several key issues. Firstly, the bill sets out a broad limitation of liability clause which essentially shuts down any potential lawsuits filed after January 1st 2018. That’s not a typo – Section 2(10)(A), the MMA really does apply a retrospective restriction on legal action.

Without the possibility of litigation, songwriters (and other copyright holders) who have unpaid royalties have one sole and exclusive remedy: they must go through the process set out in the legislation, governed by the dispute resolution committee of the mechanical licensing collective.

And while the mechanical licensing collective created by the MMA will have a board of directors, that board will be comprised of ten music publishers (record labels) together with only four songwriters! Furthermore, as currently written, the MMA provides no grievance process for excluded writers and those who receive unjust treatment. Is this likely to hit the right note with independent artists and smaller record labels?

 

Featured image – Francis Barraud, His Master’s Voice.