Judge: Mocking Lindsay Lohan Is Allowed; Plagiarizing A Court Filing, Not So Much

from the all's-well-that-ends-well dept

You may recall a couple of years ago, we wrote about the latest in a series of ridiculous lawsuits filed by Lindsay Lohan, whose lawyer seems to have a rather creative way of interpreting the law at times. This time, it involved suing the rapper Pitbull for mentioning Lohan in a song. Pitbull has a song with the lyric: "I got locked up like Lindsay Lohan." Lohan's lawyers tried to argue that this violated Lohan's publicity rights under NY state law (a law designed to stop unauthorized product endorsements), as well as defamation law. The lawsuit was absolutely ridiculous from the very beginning, but took a slight detour into the absurd when Lohan's lawyer, Stephanie Ovadia, responded to one of Pitbull's filings with the most bizarre filing you'll ever read. The entire thing was basically long cut-and-pastes from various online sources, with no credit given whatsoever. Many of the copied passages had nothing to do with the lawsuit at hand, and some others were simply completely nonsensical. Like this one:

The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....

What that had to do with the lawsuit was anyone's guess, but it was copied from an online student essay.

Earlier this week, the judge (not surprisingly at all) dismissed the lawsuit on First Amendment grounds:

The Supreme Court has made clear that "[m]usic, as a form of expression and communication, is protected under the First Amendment." Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Thus, because the Song is a protected work of art, the use of plaintiff’s name therein does not violate the New York Civil Rights Law.

Furthermore, the court went on to note that even if the lawsuit wouldn't have been thrown out on purely First Amendment grounds, the case had no chance, because Pitbull's use of Lohan's name wasn't for advertising purposes, or to imply she somehow endorsed the song. Lohan's lawyer tried to argue that because Pitbull made money from the song, and Lohan's name was in it, the use was "purposes of trade," which is (yet again) a rather unique interpretation of what the law is clearly about, so the court pointed out that this, too, was hogwash.

The fact that the Song was presumably created and distributed for the purpose of making a profit does not mean that plaintiff’s name was used for “advertising” or “purposes of trade” within the meaning of the New York Civil Rights Law.

Going one step further, the court noted that even if the First Amendment didn't suffice, and even if they found that the user of Lohan's name was for the purposes of advertising or trade, the case still would have failed:

Even if the Court were to conclude that plaintiff had sufficiently alleged that her name was used in the Song for purposes of advertising or trade, the isolated nature of the use of her name would, in and of itself, prove fatal to her New York Civil Rights Law claim. “Courts in New York are reluctant to impose liability under §§ 50-51 for incidental use of a person’s name or image because of the danger of imposing an uncalled-for burden and hazard on publishers.”

The court also dismissed Lohan's other ridiculous claims, including "unjust enrichment" and "intentional infliction of emotional distress," basically stating that neither claim appears to make any sense at all.

Pitbull's lawyers had hit back and asked for sanctions against Ovadia for her rambling cut-and-paste legal filing, and they got those too. Ovadia tried to defend herself first by throwing another lawyer in her office under the bus and saying it was all his fault, but then also that the filing was an early draft that had been filed incorrectly. The only problem? The "final" draft that she offered up as a replacement still contained much of the plagiarized text. So she was sanctioned $750 for lying to the court:

The Redline demonstrates that, contrary to Attorney Ovadia’s assertions in the Letter, not one of the changes in the proposed amended opposition would have corrected or cured the plagiarized portions of the Opposition. Instead, most of the changes to the plagiarized portions of the proposed amended opposition were merely corrections and insertions of citations to case law.... Attorney Ovadia, who is represented by her own counsel in connection with the sanctions motion, does not respond to the allegation that her representation in the Letter – i.e., that the proposed amended opposition would have “obviated any alleged plagiarism concerns” – was, in fact, untrue. Based on the fact that Attorney Ovadia made this undisputedly false representation to the Court, and pursuant to the Court’s inherent powers, Attorney Ovadia is hereby fined in the amount of $750.00. This amount shall be paid by Attorney Ovadia and shall be made payable to the Clerk of the Court on or before March 22, 2013.

And then there was another $750 sanction for the plagiarism itself. The court practically laughs off Ovadia's attempt to throw her colleague under the bus as well. Ovadia tried to claim that sanctions weren't appropriate because "additional fact-finding would be necessary" to determine who really wrote the filing. The court points out, in response, that Ovadia was the one who signed the filing, so the responsibility is all on her:

With respect to defendants’ allegations that the majority of the Opposition was plagiarized, plaintiff and her counsel do not deny these assertions. Indeed, defendants’ submissions to the Court evidence that almost the entire text of the Opposition is taken from unidentified, unattributed sources. (See Jimenez Decl., Ex. A.) Obviously, this type of conduct is unacceptable and, in the Court’s view, is sanctionable pursuant to its inherent powers. Attorney Ovadia takes the position that the Court should refrain from imposing sanctions because “additional fact-finding will be necessary” to determine which of plaintiff’s two attorneys is responsible for the plagiarism and/or the degree to which any such responsibility should be apportioned between them. (See Ovadia’s Sanctions Opp’n at 9.) The Court recognizes that Attorneys Ovadia and Ahuja dispute which of them drafted the final version of the Opposition that was ultimately filed. It is clear, however, that only Attorney Ovadia signed the Opposition. In the Court’s view, this leaves Attorney Ovadia solely liable for the sanctionable plagiarism. Cf. Kiobel v. Millson, 592 F.3d 78, 87 (2d Cir. 2010) (“‘The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most [situations] should be sanctioned for a violation.’”) (quoting Fed. R. Civ. P. 11 advisory committee note). Accordingly, pursuant to the Court’s inherent power, Attorney Ovadia is hereby fined an additional $750.00 which shall also be made payable to the Clerk of the Court on or before March 22, 2013.12

While the court notes that the $1,500 in sanctions is relatively small, it also notes that it chose this number accounting for the additional "negative impact on Attorney Ovadia’s reputation and livelihood that will inevitably arise from her involvement in this situation."

The one area where Pitbull's lawyers failed was in their attempt to force Lohan to also have to pay their fees. The court noted that despite Lohan's claims failing, they didn't fail at a level that would have made them "frivolous." Also, the court said that the plagiarized filing didn't lead to any real additional work for Pitbull's lawyers. The court also slaps the wrists of Pitbull's lawyers for failing to directly raise the issue of the plagiarized filings with Ovadia, despite corresponding with her after realizing that the filing was plagiarized.

Filed Under: first amendment, free speech, lindsay lohan, pitbull, plagiarism, publicity rights, sanctions, stephanie ovadia

The Internet Wins Again! Writer Gets Rapper Pitbull 'Exiled' To Alaskan Walmart

from the because-what-could-possibly-go-wrong dept

Ah, the internet. Also: ah, social media. Powerful tools, which in the right hands, can turn unknowns into legends and overstepping entities into Wikipedia entries. However, in the fumbling hands of mega-corporations, these same tools become about as unwieldy as a screwdriver being used to hammer in nails. By a bear.

When these tools are put to "use" in amateurish ways, there's always the chance that they will be re-purposed for the amusement of internet natives, who know exactly how to turn these primitive tools into weapons of mass destruction/hilarity. Anyone remember Time Magazines' ill-fated effort to crowdsource the Most Influential in the World? Long story short: thanks to a combination of Time Mag's incompetence and No One's Personal Army suddenly cohering into one man's personal army, 4chan's moot ended up topping the list of names.

David Thorpe, writer for the Boston Phoenix and... wait for it... SomethingAwful, saw an opportunity too big to pass up when Wal-Mart announced (in conjunction with something called "Sheets Energy Strips") its plan to have Miami rapper Pitbull make a personal appearance at whichever Wal-Mart store could hoover up the most "Likes." Thorpe immediately mobilized his troops, (possibly with the help of Pitbull's Energy Strips) including other SomethingAwful contributors, in order to send the man of the hour to the most remote Walmart location in the US.'

Enter Boston Phoenix writer David Thorpe, a man so put off by celebrity marketing stunts that he rallied Web troops to"Help us help Wal-Mart exile Pitbull to Alaska."
"As of now, the Kodiak Walmart has over 22,000 new 'likes' on Facebook, putting it far ahead of any other Walmart in the nation - far ahead of Kodiak's actual population, in fact," Thorpe wrote.

By Pitbull's deadline, more than 70,000 users had liked the store, located on a southern isle of the Frontier State with a population of about 6,200.

To his credit, Pitbull has taken this all in stride, including tweeting about purchasing bear repellent and putting together a video explaining how he would "go anywhere for his fans." To top it all off, he invited Thorpe along for the promotional visit.


At this point, it looks as if Thorpe will have to pay his own way, but he intends on making the trip.

In an email to The Associated Press, Thorpe said it's "very likely" he'll be in Kodiak. Thorpe said he had to "raise the funds to get to Kodiak on my own, since Pitbull's invitation doesn't include actually getting me there."

Thorpe said he doesn't really have anything against Pitbull, and instead saw this as a way "to disrupt a corporate social media campaign, since they really set themselves up for it."

Thorpe's only regret seems to be that Walmart will somehow spin his prank into a social media "win" for the company, something he deems to be "gross." And in a way, it is a win for Wal-Mart, albeit one it scored without lifting a finger. Thousands saw its Facebook pages and thousands more are watching Pitbull's promo spot. And now both Pitbull and Thorpe are off to a destination best known for being way the hell away from anything else... and being home to Walmart store #2711.

Filed Under: alaska, david thorpe, internet, kodiak, pitbull, social media
Companies: walmart

Lindsay Lohan's Lawyer's Loopy Legal Argument Laced With Lifted Language?

from the why-don't-you-come-to-your-senses dept

Now here's a weird one. THResq has a report concerning Lindsay Lohan's lawyer in her ridiculous case against the rapper Pitbull. That lawyer has now been accused of plagiarizing most of a recent filing which tried to argue that Pitbull's First Amendment rights weren't an issue in the case. If you don't remember, Lohan sued Pitbull because he had a lyric in a song that reads "I got it locked up like Lindsay Lohan." According to Lohan's lawyer, this violates her publicity rights under NY state law. Publicity rights, of course, are a relatively recent phenomenon, found in various states, that are now being abused widely by semi-famous people to try to stop others from talking about them.

Lohan's lawyers seem to be particularly enamored with using publicity rights claims in new and increasingly bizarre ways. She's sued E*Trade for one of its commercials that refers to a baby named Lindsay and says she's a "milkaholic." Despite no other connection to Lohan, her lawyer insisted this was a violation of her publicity rights. Then there was the time that she threatened the jewelry store from which she took a necklace, leading to her arrest. What was the threat about? Believe it or not, the claim was that the video store surveillance footage was a violation of her publicity rights. Yeah.

Either way, Pitbull's lawyers filed their motion to dismiss (pdf) not too long ago, arguing that Lohan failed to state a legitimate claim:

... the First Amendment bars her claims because the Song is protected artistic expression. Moreover, the incidental use of Ms. Lohan's name was not for advertising and trade purposes and therefore is not proscribed by Section 51 as a matter of plain and unmistakable law. Ms. Lohan's remaining causes of action are equally baseless, since she has not -- and cannot -- allege facts warranting injunctive relief, monetary damages for severe emotional trauma or a finding of unjust enrichment.

Honestly, this should be a pretty easy case to dismiss, and I'd be surprised if the judge let it go much further. However, Lohan's lawyer, Stephanie Ovadia responded to that with an opposition filing that rambles on bizarrely about a variety of topics from the First Amendment to publicity rights to trademark law to consciousness (seriously, see below), with little effort to actually explain what that has to do with the case. For example, there are random discussions of "non-verbal expression," tattoos, inciting lawless behavior, trademark infringement, celebrity look-alikes and whether or not any of that is covered by the First Amendment. Of course, absolutely none of that has anything whatsoever to do with the case at hand or the issues it raises. Nor does Ovadia even attempt to try to connect these issues to the case.

There are also just some outright bizarre parts in the filing:

The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....

It goes on in the same manner for a few more sentences, never once even coming anywhere near a legal point, nor referencing any part of the case.

Pitbull's lawyers quickly hit back with a filing (pdf) and exhibit (pdf) of their own, noting that Lohan's filing doesn't actually address the pretty clear legal issues raised in their initial motion... and also pointing out that perhaps the reason the filing is so nonsensical is because nearly all of it is plagiarized from random web sources, which they highlight in a handy chart. That bizarre quoted text above apparently comes from the Thinkquest library, which appears to be a project of the Oracle Education Foundation, and whose content is "created by students around the world who have participated in a ThinkQuest Competition."

Other sources include a bunch of copied paragraphs from the Thomas Jefferson Center for the Protection of Free Expression (who, I would guess, would likely come down on Pitbull's side in this case), the LA Times, the Association for Corporate Counsel's website, some presentation about publicity rights found on Docstoc, some law firm websites and a variety of other sources. I'm not a lawyer, but it's not hard to read the filing and wonder what the hell Ovadia was thinking. As THResq wonders, beyond helping to make sure that this case is unlikely to live much longer, the cutting-and-pasting throughout the legal filing might actually expose Lohan and Ovadia to copyright infringement charges themselves, especially from the law firms whose content was copied.

Update: Eriq Gardner, who wrote the THResq story has an update:

Reached for comment, Ovadia's office pointed the finger at Anand Ahuja, of counsel at the firm, who wrote the brief.

Ahuja was contacted too and says that he turned in "4 or 5 drafts to Stephanie, who looks like somehow by mistake submitted the first one."

He adds that typically his first draft includes footnotes and references and that it gets amended along the way, but that the submission was turned in past the judge's deadline, stripped of his footnotes, and that it was Ovadia's job to review it before signing and filing the document.

None of that makes Ovadia or her law firm look very good. First, I love the finger pointing between the two lawyers in the press. It's like reality TV inside a law firm. Second, Ovadia's name is on the filing. It doesn't matter if Ahuja wote it, she should have read it and realized that it was almost entirely nonsensical. Third, I don't know how they write "drafts" but cutting and pasting huge chunks of totally irrelevant information -- including a treatise on consciousness, just doesn't seem like a particularly reasonable practice.

Filed Under: copyright, lindsay lohan, pitbull, plagiarism, publicity rights, stephanie ovadia