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Kasowitz, Benson, Torres & Friedman, LLP

Second Circuit Affirms Dismissal Of Largest Ever Claim Under Section 16(b) Of The Securities Act
The Second Circuit Court of Appeals affirmed a district court decision dismissing all claims under Section 16(b) of the Securities Act 1934 against Comcast arising from its investment in Excite@Home. Plaintiffs sought damages of between $300 million and $1.5 billion under Section 16(b) which provides for strict liability and disgorgement of "short-swing profits" where an insider engages in matching transactions in the securities of an issuer within six months. The Second Circuit agreed that Comcast did not engage is such matching transactions and that Judge Buchwald of the Southern District of New York was correct in dismissing the claims. Comcast's defense was led by KBT&F partners Michael Shuster and Sheron Korpus and associate James Cain.

04-28-2006

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Franklin, Weinrib, Rudell & Vassallo, P.C.

Privacy Expectations
Originally published in the Entertainment Law column in the New York Law Journal, April 28, 2006

Two different people standing on two different streets in New York were photographed without their consent. Each brought suit in New York State Supreme Court alleging violation of his and her right of privacy. Earlier this year, the Court dismissed one case but allowed the other to proceed. This pair of decisions illustrates the interplay of the First Amendment, the text of the New York privacy statute, and a person's reasonable expectations of privacy in New York. They also raise questions about how the "art" and "news" exceptions to the statute are to be applied.

The cases are Nussenzweig v. Di Corcia1 and Nieves v. Home Box Office Inc.2 Both plaintiffs invoked New York Civil Rights Law Sections 50 and 51, which prohibit the use of a person's "name, portrait, picture or voice…for advertising purposes or for the purposes of trade" without written consent. As the Court noted in Nussenzweig, the rights contained in these sections are "intended to defend the average person from unwanted public exposure and the potential emotional damage thereby inflicted," but those rights have limits. For one, the statute provides "the exclusive remedies allowed in New York State for an unauthorized use of one's likeness" (emphasis added). Accordingly, if an unauthorized use is not for "advertising purposes or for the purposes of trade" then it lies outside the statute's exclusive protection. As a further limitation, the statute is circumscribed by First Amendment free speech rights and must be narrowly construed to embrace only "non-consensual commercial appropriations."3

The Nussenzweig Decision
In this case, plaintiff Erno Nussenzweig was photographed by a professional photographer named Philip-Lorca DiCorcia for a series of pictures taken on the streets of New York entitled "Heads." The photographer set up a camera in Times Square and took "candid, un-staged images" of people as they walked by a location where special lighting was installed. The photographer edited the shots down to a collection of 17, including the plaintiff's image, and neither sought nor obtained consent from any of the people whose likenesses were included.

The collection was exhibited at the Pace Gallery in 2001 and reproduced and distributed in a catalog. The exhibition was open to the public, and advertised and reviewed in local and national media including The New York Times and The Village Voice as well as art periodicals. Two reviews were illustrated with the plaintiff's image. Ten "edition" prints of the plaintiff's photograph (plus three artists' proofs) were created and sold for prices ranging from $20,000 to $30,000 each.

The plaintiff sued the photographer and the gallery. As an Orthodox Hasidic Jew and a member of the Klausenberg Sect, he was particularly offended because of his "deep religious conviction" that the use of his image for commercial and public purposes violated the prohibition in the Second Commandment against graven images. He argued that the photograph was not art and pointed to sales by the profit-making gallery to show that the use was both commercial and actionable.

The defendants argued that use of the plaintiff's photograph was not used for "advertising" or "trade" purposes and therefore lay beyond the scope of New York statutory protection. Invoking the First Amendment and the New York State Constitution, they further argued on free speech grounds that art cannot be prohibited by the state's privacy laws. The Court agreed with both arguments and dismissed the case.

The decision first addressed the question of what qualifies as art, noting that New York "has been fairly liberal in its protection." In determining that the plaintiff's photograph was indeed art, the Court said it relied not on a "subjective determination" based upon "the personal preferences of either party or the [C]ourt," but rather on the reputation of the defendant "as a photographic artist in the international artistic community," the creative process he used to shoot, edit and finally select the photographs, and the fact that the photographs were not simply offered for sale in a gallery but were "exhibited and reviewed by the relevant artistic community." Although an "extremely limited number of the photographs were sold for profit" (emphasis original) and the gallery had a "commercial objective of financial profitability," the Court decided that these facts did not "convert art into something used in trade."

The Court reached these results notwithstanding the plaintiff's contention that his constitutional right to privacy and the right to practice his religion should be weighed against the defendants' competing interests. The Court noted that the free exercise clause only restricts state action and there was no state action complained of in the case. And, although use of the plaintiff's photograph was "deeply and spiritually offensive" to the plaintiff, the Court declared that constitutional exceptions to privacy must be upheld as "the price every person must be prepared to pay for in a society in which information and opinion flow freely."

The decision cited several New York cases that "consistently found 'art' to be constitutionally protected free speech" and not actionable under the privacy laws of the state. In one, Altbach v. Kulon,4 the defendant's oil painting that caricatured the plaintiff, a town justice, was used in flyers to promote the opening of his art studio and gallery, and offered for sale on the Internet. Relying on constitutional grounds, the Third Department held that "artistic expressions – specifically a caricature and parody of plaintiff in his public role as a town justice…are entitled to protection under the First Amendment and excepted from New York's privacy protections…".

Nussenzweig also cited the Civil Court decision in Simeonov v. Tiegs5 in which the plaintiff created a plaster casting of the head of model Cheryl Tiegs with the intention of reproducing her likeness in ten bronze reproductions to be sold at $20,000 each. After the casting was inadvertently destroyed by workers in Tiegs's apartment, the plaintiff sued for $200,000. Ms. Tiegs and the other defendants moved to dismiss under Sections 50 and 51 on the basis that she never gave her consent to these uses. Their motion was denied on the basis of statutory construction against a backdrop of constitutional analysis. The court held that Sections 50 and 51 had no application because an "artist may make a work of art that includes a recognizable likeness of a person without her or his written consent and sell at least a limited number of copies thereof" without violating the statute. The court also declared in dicta that works of art, including sculptures, were deserving of First Amendment protection that superseded the right of privacy.

In a third decision cited in Nussenzweig, Hoepker v. Kruger,6 an image of one plaintiff, shot by a well-known German photographer, subsequently was incorporated in an original composite image by the defendant, a well-known artist. Art museums not only exhibited the composite work but also reproduced it in publications and sold copies in the form of post cards, note cubes, and other merchandise. The Southern District held that the composite was "pure First Amendment speech in the form of artistic expression" deserving of "full protection" that trumps the plaintiff's statutorily-protected privacy interests. Here, even the sale of copies on t-shirts and refrigerator magnets was deemed distribution of art in a "common and ordinary form that can be appreciated in everyday life" thereby retaining its "essential nature of the artistic expression that is entitled to First Amendment protection." It was therefore not actionable under New York's right of privacy statute.

In Nussenzweig and the cases on which it relies, it appears that once a work is declared to be "art," the defendant's burden is satisfied because the use falls outside the privacy statute and nothing further needs to be proved.

The Nieves Decision
In the Nieves case, the plaintiff was "standing on a New York street corner while the defendants were filming." Her image then appeared without permission in a television episode shown on Home Box Office in which the defendants "directly commented on [the plaintiff's] image in a derogatory and degrading manner utilizing what can best be described as scatological terminology." The Court accepted arguendo that the program was a "documentary" on the subject of a "'bounty-hunting' family."

When considering the defendants' motion to dismiss, the Court focused on the terms of the statute rather than engaging in constitutional analysis. It denied the motion because it could not determine as a matter of law whether the use of the plaintiff's likeness was for advertising or trade purposes, because "the purpose as for which plaintiff's likeness was employed" was still in dispute. The decision acknowledged that a picture illustrating an article on a matter of public interest would not be deemed a use for purposes of trade or advertising if it had a "real relationship" to the article. But the Court could not say whether or not the use of the plaintiff's image fell within this exception because first there had to be a "factual determination based upon the use of the plaintiff's image and the content of the program in order to determine whether the defendants meet the 'real relationship' standard."

That test was employed in a Court of Appeals case on which the Nieves decision relies. Arrington v. New York Times7 held that the use without consent of a photo of the plaintiff to illustrate a newspaper article entitled "The Black Middle Class: Making It" (also taken while the plaintiff was walking on a street in New York City) was not for purposes of trade or advertising because the illustration bore a "real relationship" to the informational content of the article. Most recently, the Court of Appeals reached a similar result in Messenger v. Gruner & Jahr,8 a case brought by a 14-year old model for unauthorized use of her image to illustrate an article about premarital sex, in which she was falsely portrayed to have gotten "trashed" and to have "had sex with three guys." The court dismissed her privacy claim because the photographs illustrated a newsworthy column, which under New York law was not "deemed produced for the purposes of advertising or trade." Although not basing its decision on constitutional grounds, the Messenger court observed that this principle, as well as narrow construction of the statute, reflect constitutional values in the area of free speech.

In Nieves, Arrington and Messenger, it is noteworthy that the scope of the statutory language, rather than the First Amendment, is the focus of analysis, and the defendants do not prevail by merely demonstrating a news use. They also must show a "real relationship" to informational content.

Conclusion
Despite their starkly different results, these two decisions, filed a month apart, have much in common: they treat Sections 50 and 51 in the context of unauthorized photography; the subjects were ordinary individuals standing on New York streets; their images were given substantial public exposure; and both were deeply offended by their inclusion in the defendants' works. While focusing on the narrow language of the statute and interpreting it in light of First Amendment principles, the decisions raise questions about the distinction between "trade" and "art" and what a "real relationship" to a newsworthy matter actually means.

A comparison of the decisions also shows that exceptions to privacy rights for news uses, which command considerable First Amendment weight, are tested more stringently than exceptions for art reproductions. The second hurdle, a test for a "real relationship," applies only to news.

Further, both decisions have something to say about rights of privacy, or lack of them, of individuals enjoying seemingly private moments in public places. The Nieves case suggests that an objectively offensive use may not easily be linked to newsworthy subject matter through a "real relationship," but its precedents remind us that the extent of offensiveness to a photographic subject otherwise matters little in a news context. Nussenzweig shows that for purposes of art, the extent of subjective offensiveness to the plaintiff, even if grounded in a firmly-held religious belief, is of no consequence.

04-28-2006

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Bodman LLP

Bodman Moves Detroit Office to ‘New Turf’
Bodman LLP, one of the area’s largest law firms focused on Michigan business, has relocated its Detroit headquarters to Ford Field. The new and expanded space is in the former Hudson’s warehouse attached to the home of the Detroit Lions.


“The firm’s decision to move to Ford Field underscores our commitment to downtown Detroit,” said Larry Shulman, Bodman’s chairman. “This new space offers us the ability to expand our offices in the future while continuing to be a part of the rebirth of this city.”

The firm had been a tenant in Detroit’s Renaissance Center since 1976 where they occupied approximately 47,000 square feet. The remodeled warehouse space at Ford Field will occupy 67,000 square feet with options for additional space.

Bodman’s new Detroit office is the firm’s largest. More than 75 attorneys along with administrators, legal assistants and support staff will occupy three floors of the historic space.

Gensler, one of the country’s most renowned architectural firms, designed the space to include a mezzanine level to utilize the massive 23-foot high warehouse ceilings.

The new office space has been designed to offer clients, attorneys and staff a comfortable and efficient environment. It includes a state-of-the-art eight-room conference center. The largest conference room overlooks the Detroit Lions playing field and several of the rooms have themed artwork.

Bodman, founded in 1927, has a diverse client base that includes individuals and businesses in a variety of industries, with emphasis on financial services, automotive, high tech, real estate, general manufacturing, and other sectors. National publications have ranked Bodman as one of Michigan’s leaders in key practice areas and eighteen of its attorneys have been selected by their peers to be included in the prestigious journal, The Best Lawyers in America. The firm maintains offices in Ann Arbor, Cheboygan, Detroit, Lansing and Troy.

04-28-2006

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Williams, Kastner & Gibbs, P.L.L.C.

WK&G\'s Douglas Hofmann Admitted to American College of Trial Lawyers
Douglas Hofmann, a Member in the Seattle office of Williams, Kastner & Gibbs PLLC, has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in America.

The induction ceremony at which Hofmann became a Fellow took place recently before an audience of 460 persons during the recent 2006 Annual Meeting of the College in Hollywood, Florida.

Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship.

Membership in the College cannot exceed one percent of the total lawyer population of any state or province. There are currently approximately 5,500 members in the United States and Canada, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows.

The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. Qualified lawyers are called to Fellowship in the College from all branches of trial practice. They are carefully selected from among those who customarily represent plaintiffs in civil cases and those who customarily represent defendants, who prosecute those accused of crime and defend them. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.

Hofmann has been with Williams, Kastner & Gibbs PLLC since 1975, and a Member since 1982. He is National and Regional Counsel for several corporations headquartered in the United States and abroad. Hofmann's practice emphasizes litigation in such areas as commercial disputes, construction, product liability, toxic tort, environmental, defamation, medical malpractice and business claims involving unfair competition, royalty, trade secrets and patents. Hofmann received his BA from Northwestern University in 1972 and his JD from St. Louis University Law School in 1975 where he was a member of the Law Review.

04-28-2006

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Foster Pepper PLLC

Foster Pepper Attorneys Recognized As Tops in Two New Surveys
Foster Pepper PLLC is pleased to announce that four of the firm’s attorneys have been recognized in two new surveys: Washington CEO magazine’s annual League of Justice: Washington’s Most Amazing Attorneys rankings, and Seattle Business Monthly's Puget Sound Top Business Lawyers rankings.

Washington CEO magazine's March issue features its annual League of Justice: Washington’s Most Amazing Attorneys rankings where attorneys are selected by their peers through a state-wide voting process. Foster Pepper’s Brad Berg, Health Care; Jack Cullen, Creditor Rights and Bankruptcy; Allen Israel, Business; and Mike Kuntz, Real Estate were selected as top lawyers in their respective fields. Seattle Business Monthly's April issue, which features a Top Business Lawyers ranking list, includes Allen Israel and Mike Kuntz who were chosen based on surveys received from Puget Sound-area law firms.

With offices in Seattle, Portland, and Spokane, Foster Pepper PLLC provides a full range of legal services to businesses, municipalities and individuals both regionally and across the country. In 2005, the firm entered its second century of service.

04-28-2006

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Preston, Gates, Ellis, Rouvelas & Meeds, L.L.P.

Preston Gates Named Fastest Growing Federal Lobby Firm
Preston Gates Ellis & Rouvelas Meeds was recently named the fastest growing lobby firm in the United States. Preston Gates was the only firm on the list with strong ties throughout the state of Michigan, and the 7th overall law/lobby firm in the U.S. in terms of revenue.

According to National Journal, a weekly publication that covers Congress and other related news, Preston Gates' growth rate of 46% was higher than any other federal lobbying firm on National Journal’s Top 25 list. Biannually, Preston Gates files lobby disclosure reports as required by the Lobbying Disclosure Act of 1995. In 2005, the firm’s federal lobbying revenues grew from $7.75 million in 2004 to $11.27 million.

The growth represented in these filings continues a trend in Preston Gates' lobbying work since revenues have steadily increased in recent years, nearly doubling since 2001.

About Preston Gates Ellis & Rouvelas Meeds LLP
Preston Gates Ellis & Rouvelas Meeds LLP was founded in 1973 as the Washington, D.C. office of Preston Gates & Ellis, and consistently ranks among the top law and lobbying firms in the nation. Founded in 1883, Preston Gates & Ellis LLP has long been recognized as one of the premier, full-service law firms in the country. Preston Gates provides clients with sound legal counsel and trusted representation, handling complex business transactions, litigation, intellectual property and technology matters, as well as governmental, regulatory and public policy work. The more than 400-attorney firm has 11 strategic locations on the West Coast, Washington, D.C. and Asia.

04-28-2006

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Pellettieri, Rabstein & Altman

Super 8! 8 PR&A Attorneys Named as \"NJ Super Lawyers\"!
In a selection process based on peer voting and credentials research, New Jersey Monthly magazine published its the 2006 “New Jersey Super Lawyers” list naming 8 of the partners from Pellettieri, Rabstein and Altman.

They are:

Anne P McHugh, Esq., Partner, Personal Injury
Edward Slaughter, Jr., Esq., Partner, Personal Injury
Bruce P. Miller, Esq., Partner, Workers’ Compensation
Ira C. Miller, Esq., Partner, Employment Law
Thomas R. Smith, Esq., Partner, Personal Injury
Arthur Penn, Esq., Partner,Mass Tort/Class Action
Martin S. Pappaterra, Esq., Partner, Personal Injury
Gary E. Adams, Esq., Partner, Workers’ Compensation


Congratulations to each of our attorneys!

04-28-2006

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