U.S. Second Circuit: May 2012 Archives
U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

May 2012 Archives

Richard Prince: Fair Use or Derivative Copyright Infringement?

Where do we draw the line between fair use transformation in art and derivative images that constitute copyright infringement?

In 2009, the dominant fair use question involved Shephard Fairey's appropriation of an Associated Press image for his Barack Obama "Hope" design. Fairey conceded that "Hope" was based on an April 2006 AP photograph by Mannie Garcia. The AP sued Fairey, claiming that he didn't have permission to use the photograph, and that he must offer a photo credit and compensation. Fairey settled the matter in 2011, according to Photo District News.

Now the Second Circuit Court of Appeals is considering a similar copyright infringement lawsuit between artist Richard Prince and photographer Patrick Cariou, but the stakes are much higher.

Ineffective Counsel: It's All Fun and Games Until Sentencing

Every spring, hundreds of teenage, aspiring-lawyer types flock to the National High School Mock Trial Competition. Typically coached by a licensed attorney, these kids learn how to apply the Federal Rules of Evidence to a fact pattern, and eventually try a case before panels of judges.

Most of them are pretty good. At the end of each round, the judges exclaim, “Outstanding! You were better than some of the real attorneys who appear in my courtroom! Follow your dream!”

Of course, when the scores are tabbed and the courthouse empties, these pretend-lawyers stop pretending. In contrast, the fake lawyer in today’s Second Circuit Court of Appeals case, on the other hand, didn’t know when to stop. Which brings us to today’s topic: ineffectiveness vs. per se ineffectiveness.

Knock Off the Knock Offs: Gucci Wins $4.6M Judgment from Guess

Imitation may be the sincerest form of flattery, but it's also cause for damages in a trademark infringement lawsuit.

Monday, U.S. District Judge Shira Scheindlin ruled in favor of Gucci on four of five contested issues in the companies' trademark infringement litigation. Gucci had claimed that Guess and its licensees knocked off Gucci designs, producing items that featured the brand's diamond-shaped logoed pattern, square "G" design, a signature script and tri-striped motif, reports Women's Wear Daily.

CIA Can Withhold Detainee Photo, Waterboarding Cables

The Second Circuit Court of Appeals ruled on Monday that the Central Intelligence Agency (CIA) doesn't have to release a photo of an alleged al-Qaida operative following a session of enhanced interrogation techniques (EIT), reports The Associated Press.

The decision is the latest development in an eight-year-old dispute between the CIA and the American Civil Liberties Union (ACLU) over EIT records.

Greece Needs a New Prayer Policy

We’re used to reading public prayer cases from the Fourth Circuit Court of Appeals. This week, the Second Circuit took a stab at the Establishment Clause, finding that a New York town’s invocation policy was unconstitutional.

Greece, N.Y. has started its Town Board meetings with a short prayer since 1999. In 2008, residents Susan Galloway and Linda Stephens sued the town and Town Supervisor John Auberger in federal court, asserting that aspects of this prayer practice violated the Establishment Clause. The district court granted the defendants’ motion for summary judgment.

Reversed: No Assumptions Allowed in Mandatory Minimum Sentencing

The Second Circuit Court of Appeals reversed and remanded a defendant's life sentence on child pornography charges on Tuesday, finding that the district court did not take sufficient steps in analyzing the defendant's criminal history before sentencing him as a repeat sex offender.

The New York-based court directed the district court to delve deeper into defendant Flay Rood's criminal history to determine whether his 1991 conviction for sexual abuse of a child qualifies as a triggering offense for a mandatory minimum life sentence as a repeat sex offender.

Starbucks Can Limit Employees' Pieces of Flair

The lessons from Office Space occasionally transcend the late-90s cinematic zeitgeist and find their way to the Second Circuit Court of Appeals.

How, you ask? Through the only medium more prevalent than the very air that we breathe: Starbucks Coffee.

Second Circuit Upholds NY's Kosher Law

New York’s Kosher Law Protection Act is constitutional, according to a new Second Circuit Court of Appeals opinion.

The New York-based court ruled on Thursday that the Kosher Law does not infringe upon First Amendment religious freedoms, according to Bloomberg.

The plaintiffs, Commack Self-Service Kosher Meats, have sued multiple times to block New York’s kosher food laws.

Breast-Brushing or Saucy Words: Which is Worse in Harassment?

A brush with a breast could be an accident. Three brushes with a breast are enough to sustain a sexual harassment lawsuit.

Last week, the Second Circuit Court of Appeals resuscitated a same-sex sexual harassment lawsuit on the brink of summary judgment death, concluding that a reasonable jury could find that a supervisor created a hostile work environment by touching her female subordinate's breasts three times over a five-month period.

Gucci, Guess to Join YSL and Louboutin in Second Circuit Queue?

If you thrive on the drama of the Christian Louboutin-Yves Saint Laurent (YSL) red-soled shoe litigation, or any fashion litigation, then the Second Circuit Court of Appeals is a great place to get your fix.

While the Second Circuit is expected to issue its sole decision soon, we're guessing that red soles will soon make way for the appellate court to evaluate the power of the letter G in the Gucci v. Guess litigation.

What are the similarities and differences between these cases?

Tax Evasion Conviction Requires an Affirmative Act

Evelyn Litwok is a happy woman this week.

Monday, the Second Circuit Court of Appeals reversed Litwok's tax evasion convictions for the 1996 and 1997 tax years due to lack of sufficient evidence, and vacated and remanded her convictions for mail fraud and tax evasion for 1995 because the counts were improperly joined, reports The Wall Street Journal.