Project 1

Legal Analyst, inc

Legal Analysis

Future Legal Implications

Analysis of legal cases to determine the possible legal implications for the creation of Heather’s websites, and recommendations.

Introduction: 

As we have seen over the years, any issue that goes into the litigation is comprised of sensitive issues that cannot otherwise be resolved by two parties. Some of these issues are seen over and over such as freedom of speech, right of publicity, infringement of trademark and copyrights, and defamation. All these issues were raised once I began to analyze Heather’s situation.

As Heather’s case was introduced, I flagged certain issues that could possibly bring legal implications to her and her business. The decision to analyze similar cases, to determine the outcomes in the occasion of a lawsuit brought against her, was imperative to my conclusion. The cases analyzed have set, and will set precedents in the cases of infringement of copyrights, rights of publicity, and defamation.

Case Brief

In this case analysis the case of Heather, an entrepreneur who decided to start her own web-sites after the pardon bill was passed by President Bill Clinton, is examined. The pardons granted by former president Clinton in 2001, commonly known as the “pardongate”, produced 140 pardons at the end of his term. Unlike Bill Clinton, most presidents will issue pardons throughout their terms, but President Clinton waited until the last few days possible to issue his pardons. An issue raised by the “pardongate” comes from President Clinton’s refusal to turn over documents to Congress pertaining to the pardons. There was little justification on his side as to why he granted some of these exonerations. Years later, some of the pardonees were the same people making big donations to the presidential campaign of Bill’s wife, Hilary Clinton. Heather decided to register domain names such as “pardonmetoobill.com” and “outofjailfreewithbill.com”, in order to create a web-site and post jokes and anecdotes about the “pardongate”, and also to follow the lives of Bill and Hillary Clinton. Heather presumes that Clinton will not endorse her web-site, so in order to make profit she expects to be sponsored by third parties. She has also designed a business plan that involves bobble-heads and apparel sales for the support of her web-sites.

Issues: Is there an infringement in copyrights and right of publicity? Another issue is the manufacturing and sale of bobble-head dolls, which could also represent a possible infringement of copyrights laws, and right of publicity. The third issue raised is the issue of defamation: whether or not the bobble-head dolls and information on the web-site can qualify for defamation. Lastly, does Heather need to add taxes on her e-sales?

Case Background

In the case of Heather there are many variables that will come into play if the case goes to court. Some of the issues raised in her case are trademark and/or copyright infringement, the right of publicity, defamation, and taxation on e-sales in her web-site. The variables that come into play in the decision of such case include precedents and judges’ discretion, as well as decisions made by Heather that can change the course of her business.

In order to address the issue with the domain names and copyright infringement, we analyzed a similar case with the National Arbitration Forum that involved The William J. Clinton Presidential Foundation (complainants) and “Web of Deceptions” (respondents) . William Clinton, former president of the United States, contests that the domain names registered by “Web of Deceptions” were “identical or confusingly similar” to his name. The domain names were the following: “Williamclinton.com”, “williamjclinton.com”, and “presidentbillclinton.com”. All of which were presumed to infringe a common law trademark that William believed to have established in his name and its variations. William also claims bad faith in the company’s intention. The respondent in this case says that William is not commonly known by the names, and that they are entitled to the domain names in question. The respondent’s defense is that there are no elements of bad faith, especially those set forth by the Uniform Dispute Resolution Policy. As noted on section 4(b) of the UDRP, the respondent “has not registered the domain name for the purpose of selling it, or preventing the owner of the mark from using the name in a corresponding domain name or in order to disrupt his business, or in order to attract Internet users for commercial gain”. The respondent believes that their uses of the domain names are merely a case of fair use and should be protected by the 1st Amendment in the U.S. Constitution. In this case the Panelists have decided to deny the relief sought by William J. Clinton, who wanted the domain names to be transferred to him. This decision came after analyzing all three elements required under the ICANN Policy, (1) the domain name is identical or confusingly similar to a trademark in which complainant has tights, (2) respondent has no rights or legitimate interest in respect of the domain name, and (3) domain name had been used in bad faith. The only two elements to be proven was the assertion of common law rights that his name was commonly known and that the respondent is using the domain name to divert Internet users. The main element, which is the element of bad faith, could not be proven. So the panelists ruled against Clinton.

Another case that can be used as a precedent to address the issue of right of publicity is the case of CARDTOONS, L.C. - Appellant, v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, Defendant – Appellee. Cardtoons manufactured parody trading cards that featured caricatures of active major league baseball players. The players association decided that the manufacturing and sales of such cards violated the valuable property rights of MLBPA and players. On the state of Oklahoma, Cardtoons had been charged with violating the player’s rights of publicity. Respectively the district court reverted the judgment and claimed that the “parody card enjoyed First Amendment protection against infringement claims” and the court ruled that the “parody cards are an important form of entertainment and social commentary that deserves 1st Amendment protection ”.

A precedent towards defamation is also analyzed due to possible implications that may arise. In the case of Philadelphia Newspaper, Inc., Et al. v. Hepps Et Al., through the Supreme Court, in which the court ruled that the initial judgment by the lower court was wrong and set forth that “a showing of fault did not require a showing of falsity and held that to place the burden of showing truth on appellant (Newspaper) did not unconstitutionally inhibit free debate” or the First Amendment. This case came to the courts when the newspaper printed some unjustified news about Hepps, who in turn sued the newspaper alleging that the article was defamatory to his image.

Analysis of Current Implications of Case

There are important implications and examples to be extracted from the Clinton v. “Web of Deceptions” Co. case for current decisions in court. One of them is the fact that the Panelist, Mr. Ayers, decided that the complainant’s situation was viable for common law rights. Clinton was also able to prove that Web of Deceptions had no rights to the name. The main contribution for current cases that this case has set is the usage of the UDRP criteria when determining fault in domain name issues, which will help the justice determine case like this. It also provides that acting in “bad faith” is the number one aspect to be proven in this type of cases, if there is no evidence of bad faith there is a high probability of winning the case.

The implications in the Cardtoons case are of a tremendous importance to current case that could have legal implications against violation of the right of publicity. As noticed in the case, different states may have different laws about the rights of publicity. The implication that this case can have in the current decisions of the law, is that it sets a precedent for Freedom of Speech for the press. It is very important for the U.S. Government that they preserve the individual, business, and press right to express. In this case the courts set an example to distinguish false accusations and slander, from anecdotes and the right to entertain. It sets a precedent for current cases, that as long as one is not defaming another person’s name, they have the right to say what they want. It also sets forth the fact that public figures’ images can be used for caricatures.

In the case of Hepps as mentioned above, a tremendous precedent for current cases is uncovered. Under the Constitution’s First Amendment “a plaintiff who is a public figure must prove the falsity of the statements at issue in order to prevail on a suit for defamation ” (USCS - Constitution of the United States) . In the case of Hepps, the district court placed the burden on the defendant to prove truth. The findings in this case set forth that private individuals and public individuals face the same standards for winning defamation suits against the press. As the legal ability to protect one’s image and reputation grows limited, this case was possibly one of the most important ones favoring media in defamation suits. In a current case, this precedent is essential to affirm that for topics of public interest the 1st Amendment Rights of the press come first against libel common law. This case made this precedent liable for public and private individuals.

Analysis of Future Implications of Case

The implications the three cases that were analyzed above have in future decisions are very important. In a nut-shell, all three cases protect an individual’s right to expression. The Clinton case has set precedent for the use of UDRP criteria for the determination of fault for cybersquatting and it will help the promotion of the use of internet laws that have been created to regulate the cyber space. It is important that we abide by these laws, and criteria, so that we can give meaning to them. This ruling and others of the same kind are important to set a precedent for the application of internet laws, and their use.

For the Cardtoons case, the legal implication for future cases is one, which could possibly give lead-way for many businesses that want to use public images in different ways. It is important that right of publicity is defined within the scope of a case, and in this case the decisions set a precedent for future implication of the infringement of this right. The court findings have allowed a company to use the image of athletes, and public individuals, in caricatures and anecdotes for profit. This case sets precedent for the recognition of “fair use” protection under the First Amendment for commercial parody speech.

The third case analyzed, Newspaper v. Hepps , there is another important future precedent set for cases of this type. The court’s decision to affirm that for topics of public interest the 1st Amendment Rights of the press come first against libel common law, is very important for anyone involved in the use of public figure’s names in articles, web sites, etc. This finding implies that one’s opinion of a public-figure is protected under the 1st Amendment. It assures that the press or private individuals have the right to express their opinion.

Personal Opinion of Case

As I analyzed cases in order to determine possible legal implications of Heather’s idea to register domain names, that relate to the “pardongate”, and create a web site that will include parodies about the situation and information on Bill Clinton and Hillary Clinton, I was able to come across some very interesting and important precedents. I have come to conclude that legal implications to Heather’s idea could definitely come into play in the future. On the other hand the precedents described in this paper, could be enough to have her case dismissed or won.

In the case of Heather, the domain name should not be much of a problem, because the name Bill is very generic. The issue here is the content of her web-site which could bring the issue back to the domain name because the “pardongate” has become a historical event, which could bring up problems of common law, such as the Clinton v Web of Deceptions case. The second element pertaining to Clinton’s case was the ability to prove “at first glance”, prima facie, that the respondent lacked right and legitimate interest in the domain names because they are diverting the users to the opposition’s web site. In the case of Heather, the web-site is not diverting users, but she intends to profit out of the web-site, which could bring implications which we will address further into the analysis. Lastly, the most important element, “bad faith”, relates to Heather’s case because there was no bad faith proved. Although the respondent was using the web-site to divert people to the Republican National Committee web-site, which opposed Clinton, they still were acquitted from bad faith. In relation to Heather’s case, she has not infringed any of the provisions set forth by the UDRP to determine bad faith. According to Heather her goal is to have a web-site with anecdotes and jokes, which should not be deemed of bad faith. The decisions made by the National Arbitration Forum in the above case, can create a precedent that will acquit Heather in the case of a lawsuit or mediation from Bill Clinton, or his committee. The case will create a precedent for common law rights that in Heather’s case could favor Clinton, due to the historical effect of the “pardongate”. On the other hand, the final decision of the Panelist to reject the relief proposed by the complainant, due to a lack of evidence to prove bad faith, will help keep Heather out of trouble in the matter of a trademark infringement for the domain name and the President’s name. The remedy to this situation is to develop the web-site using the UDRP as a guideline. It is imperative that the web-site and its content do not violate any of the ICANN provisions or the UDRP criteria.

As I analyze the possible legal implications for Heather’s business I have also concluded that there is a precedent that could protect her in any accusations of privacy rights infringement and public rights infringement. Due to the fact that her web-site will be using parodies about the pardongate and will also be presenting information of Bill and Hillary Clinton’s lives, I grew concerned that there could be some sort of legal implications for her. The case of Cardtoons has helped me find a precedent that will protect Heather’s right to express her opinions, and create jokes and parodies about the Clintons and the pardongate. The Supreme Court ruling in favor of the “fair use” protection under the 1st Amendment has helped me determine that Heather has the right to use Clinton’s image in her web-site. This case is also helpful in determining another one of my concerns, which is the sale of bobble-heads. In the case of Cardtoons, they were sued for printing caricature cards of baseball players, and the court findings protected them to do so. Heather should not have a problem creating and selling the bobble-heads, as long as she keeps in mind the resemblance of the doll to Bill Clinton. If she is able to keep the dolls looking like a caricature and not the real image of the former president should keep her within the “fair use” defense.

Lastly, it was very important to me to determine if Heather was in risk of to being sued for defamation of Bill Clinton and Hillary Clinton. The issue in which Heather has based her idea is a very sensitive one. Her idea of creating the bobble-head dolls of Bill and his secretary, which he allegedly had sexual relations with, has also brought concern to me. The case of the Newspaper v Hepps has helped me determine that Heather needs to be careful during her developing process for her web-site, but she can also rest assured that her right of expression is protected by the Constitution. In the Hepps case, the newspaper accused Hepps of being involved in criminal activities. The court ruled that the burden of proof is on Hepps side, and protects the right to express for press and individuals. Hepps public image was enough to award the Newspaper the right to talk about him using facts that were available for the public. In Heather’s case I believe that as long as she sticks to facts that have been proven, and make “unreliable information” into jokes, or parodies she should be fine against such lawsuit.

Heather needs to be fair and not act in bad faith when creating the web-site. My recommendation is that she created the web-site with the purpose of providing entertainment to the public. The financial part of the web-site can come from the sale of souvenirs that state her web-site’s name only. It is important that she does not use the Clinton’s names on her products, and that she does not use their image. These remedies will keep her away from a lawsuit against copyrights and trade mark infringement.

My conclusion on the taxation of sales in her web-site will come from a the current law which implies that companies are not required to collect sales taxes from customers who line in states where the companies do not have a physical presence. “Consumers who live in states that apply sales-taxes are generally obligated to pay them on items they bought from out-of-state retailer ”. Many states today are trying to make it an obligation for e-sales, in general, to add sales-taxes. That is something to keep in mind for future implications. To answer the question of whether or not the state where she lives can make any difference to her business, I assume that there is not a particular state where she should live that will better her chances. As one can see on the above cases, although most states have different laws towards certain issues, there is enough evidence to assure Heather that the legal implications that could come up for her are defended in the Supreme Court above state laws.

Summary/Conclusion of Case

The analysis of case decisions have brought special attention to the First Amendment rights granted by the U.S. Constitution. It is clear that most of the legal issues that could possibly become real to Heather and her company are likely defended by constitutional rights, especially the 1st Amendment. The decisions awarded in the case of Clinton, Cardtoons, and Hepps have paved a clear road for future business law, and court cases, by setting precedents that protect individuals’ and businesses’ freedom of expression. These cases have also set an example to future cases by stating that public individuals, such as the President, can be written about and since their lives are public, so should their images be.

In conclusion, the most important precedent set by these cases is a precedent for freedom of speech, and expression. There have been many cases where this right is challenged by other circumstances, but it seems that as long as someone’s life, career, or business is not being damaged by what is said about them they cannot argue against someone’s opinion of them. This Constitutional right is the milestone for the U.S. and its protection is very important. Most of the possible legal implications for Heather, have been supported by the cases analyzed, and the main defense for her is of freedom of speech and expression.

Bibliography

Clinton v. Web of Deception, Claim No. FA0904001256123 (National Arbitration Forum, June 1, 2009). Retrieved from ADR Forum. http://domains.adrforum.com/domains/decisions/1256123.htm

Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959, 976 (10th Cir. 1996) ("Cardtoons II"). Retrieved from Lexis/Nexis Academic Database (1996 U.S. Lexis)

Philadelphia Newspaper, Inc., Et al. v. Hepps Et Al. 475 U.S. 767. Retrieved from Lexis/Nexis Academic Database (1986 U.S. Lexis 97)

Bobble Head Case. 2004. FindLawMV. http://library.findlaw.com/2004/Oct/27/133616.html . March 3, 2001.

The Constitution of the United States. Retrieved from the Government Archives. http://library.findlaw.com/2004/Oct/27/133616.html . March 3, 2011.

Stim, Richard. 2009. Sales tax on the Internet- When Sales tax must be Charged for Online Purchases. Retrieved from NOLO- law- for- all Web-site. http://www.nolo.com/legal-encyclopedia/sales-tax-internet-29919.html

� Clinton v. Web of Deception, Claim No. FA0904001256123 (National Arbitration Forum, June 1, 2009).

� � HYPERLINK "http://www.lexisnexis.com.ezproxy.umuc.edu/lnacui2api/mungo/lexseestat.do?bct=A&risb=21_T11431759899&homeCsi=6320&A=0.7859479320507752&urlEnc=ISO-8859-1&&citeString=95%20F.3d%20959,%20976&countryCode=USA" \t "_parent" �Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959, 976 (10th Cir. 1996)� ("Cardtoons II").

� Philadelphia Newspaper, Inc., Et al. v. Hepps Et Al. 475 U.S. 767

� Clinton v. Web of Deception, Claim No. FA0904001256123 (National Arbitration Forum, June 1, 2009).

� Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959, 976 (10th Cir. 1996) ("Cardtoons II").

� The Constitution of the United States. Retrieved from the Government Archives.

� United states Government Archives Web Site

� Philadelphia Newspaper, Inc., Et al. v. Hepps Et Al. 475 U.S. 767

� Stim, Richard. Sales tax on the Internet- When Sales tax must be Charged for Online Purchases.