FINAL CASE BRIEF PORTFOLIO

LEAP 670
Dana McGuire Scheibe
Dana McGuire Scheibe

LEAP 670

December 14, 2016

Dr. DeVereaux-

Thank you so much for taking the time to read through my Case Brief Final

Portfolio. In this portfolio you will find a culmination of the case briefs from this

semester. At the end of every case brief I have added any addition information I would

like to include as well as any additional comments I would like to make. In addition to

the comments added to the end, some of these assignments you will find have been

reevaluated and changes have been made accordingly. At the end of my portfolio you

will find my learning statement for said case briefs.

It is at this time I would also like to note that I have included any and all revisions

in this portfolio and not as resubmissions. I am aware that you have recently had to take

on two other classes in addition to ours due to loss of teaching staff. I thought it to be

more convenient for you if I include all documents here rather than in multiple

submissions for you to go through. Thank you so much for your time and I look forward

to hearing your feedback!

Sincerely,
Dana McGuire Scheibe
 UNITED STATES SUPREME COURT
ROTH V. UNITED STATES, NO. 582
ARGUED: APRIL 22, 1957 DECIDED: JUNE 24, 1957

FACTS:

Samual Roth directed a publication company in New York for photographs, magazines,

and books. Through his company, Roth distributed advertising and an obscene book that

fell in violation of the federal obscenity statute.

ISUEES:

Is Samual Roths mailing of obscene, lewd, lascivious, or filthy material protected by

the constitutional area of the First Amendment of free speech and press, or the Due

Process Clause presiding under the Fourteenth Amendment?

HOLDING:

The First Amendment does not protect the right to distribute obscene material without

sound social statue. Free speech is designated towards the constructive positive outcome

towards a betterment within society.

RATIONALE:

All ideas having even the slightest redeeming social importance - unorthodox ideas,

controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full

protection of the guaranties, unless excludable because they encroach upon the limited

area of more important interests. Obscenity, through having no social importance or

contribution, is not protected by the First Amendment.

ANALYSIS:
After reading this case, I immediately began to research the Miller Test in order to figure

out exactly how to view obscene through the eye of the law. According to Steven J.

Grocki, the Miller Test is defined as a three-part system consisting of:

1 Whether the average person, applying contemporary adult community standards, finds

that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic,

lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity,

sex, or excretion);

2 Whether the average person, applying contemporary adult community standards, finds

that the matter depicts or describes sexual conduct in a patently offensive way

(i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation,

excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual

abuse); and

3 Whether a reasonable person finds that the matter, taken as a whole, lacks serious

literary, artistic, political, or scientific value.

Any material that satisfies this three-pronged test may be found obscene.

(Grocki, S., The United States Department of Justice)

Through reading Grockis Citizens Guide to U.S. Federal Law on Obscenity, I could

easily relate Socrates idea of it being imperative for the rulers of cities to supervise the

makers of tales... and how that ..must be beneficial to the city. (Plato, The Republic.)

It is true that law exists in order to benefit our society and I agree, in a large scheme, the

idea of mailing controversial images works for Roth, but not the greater society.
Expanding on the idea of obscene art and the Miller Test, how does this affect art that is

sponsored by the government, such as the National Endowment for the Arts? If we use

the Miller Test in conjunction with Socrates ideas for the betterment of society, how is art

that is sanctioned by the government affected? Are there different laws when

approaching art in this new setting? In the case of NEA v. Finley, we can see that

explicit art will be denied grants based on the decency and respect under the decency

standards statute if in violation of the First Amendment. Will this continue for all art or

will this statute be amended as our society grows and has a need for new and profound

art?

ADDITIONAL AND AMMENDED COMMENTS:

When I originally wrote this I didnt have the full understanding of what is and

isnt obscene in the eyes of the law. In the eyes of the law I do believe that now I would

side with the court. I do not think that there truly is a relationship between the NEA v.

Finley and this case. I believe that Roth was in violation of obscenity law. He was not

using the First Amendment in order to make any true expression. I believe now that this

case was an example of an individual trying to take advantage of the Constitution or lean

on it for support when participating in an activity that was obscene. The freedom of

expression and speech denounced to us by the First Amendment does not give us the

innate right to do whatever we please at any given time.

 CALIFORNIA STATE CAPITOL

ALBERTS v. CALIFORNIA, NO. 61.

ARGUED: APRIL 22, 1957 DECIDED: JUNE 24, 1957

FACTS:

David Alberts was found guilty for the sale and distribution of obscene materials and

books. Alberts also created an obscene advertisement for circulation from said books.

ISSUES:

Is the publication and distribution of obscene material protected by the First Amendment?

HOLDING:

The First Amendment does not protect obscenities in speech in publication as it does not

contribute positively in the growth of society, finding the defendant guilty. In

conjunction, sex and obscenity are two separate measurements, however without

regulation, articles, such as pornography, can cause have an eroding effect on moral

standards. (CaseBriefs.com, 2016

ANALYSIS/COMMENTS:

The major difference that I have found between Alberts and Roth is that Alberts also

wished to sell obscene material. Although pornography may be viewed as obscene to

some people, that does not mean that it does not serve its purpose in society. As we have

seen throughout history, pornography has transcended all society and has been utilized as

an outlet for stress, the arts, and countless other states of affair. According to Steven J.

Grocki from the United States Department of Justice:

Federal law prohibits the possession with intent to sell or distribute obscenity, to send,

ship, or receive obscenity, to import obscenity, and to transport obscenity across state

boarders for purposes of distribution. Although the law does not criminalize the private

possession of obscene matter, the act of receiving such matter could violate the statutes

prohibiting the use of the U.S. Mails, common carriers, or interactive computer services

for the purpose of transportation (See 18 U.S.C. 1460; 18 U.S.C. 1461; 18 U.S.C.

1462; 18 U.S.C. 1463).

Grocki, however, looks more to protect individual and children rights rather than the

actual distribution of pornographic material. It is important for us, as a society, to

maintain two sets of laws for obscenity and pornography. By formulating two sets of

laws we can protect the individuals in the depictions, as well as societies right to

pornography. Although pornography does not adhere to our beneficial puritan beliefs, it

does hold some reverence to our society and is on obscenity. Pornography is something,

more often than not, to be enjoyed behind closed doors. Obscenity is more prominently

on display whereas pornography is something to be sought out with intent by an

individual and is regulated by law for individuals of age.

As far as distribution by a second party and participating individuals, these sexual acts art

protected under Part 75 of 18 U.S.C. 2257:

Once production is complete, a copy of the visual depiction must be maintained along

with

these records. All information on a performer may be redacted other than the name, date

of birth, and information that identifies the type and validity of the picture identification

card (e.g., drivers license or passport number). All of the primary producer's records for

all its visual depictions must also be cross-referenced by name and alias of the

performers. If a secondary producer produces a copy of the visual depiction, the

secondary producer must obtain from the primary producer the records associated with

that depiction. Finally, the visual depiction must be labeled with the location of the

records.

In addition, secondary producer is defined as:

"is any person who produces, assembles, manufactures, publishes, duplicates,

reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or

computer-manipulated image, picture, or other matter intended for commercial

distribution that contains a visual

depiction of an actual human being engaged in actual or simulated sexually explicit

conduct, or who inserts on a computer site or service a digital image of, or otherwise
manages the sexually explicit content of a computer site or service that contains a visual

depiction of, an actual human being engaged in actual or simulated sexually explicit

conduct, including any person who enters into a contract, agreement, or conspiracy to do

any of the foregoing." 28 C.F.R. 75.1(c)(2).

(28 C.F.R. Part 75 SMALL BUSINESS COMPLIANCE GUIDE)

ADDITIONAL AND AMMENDED COMMENTS:

I would like to reference the previous case brief. Upon reanalysis, I again agree

with the previous additional comments about obscenity law.

 UNITED STATES SUPREME COURT

MEMOIRS V. MASSACHUSETTS (1966), NO. 368

ARGUED: DECEMBER 7-8, 1965 DECIDED: MARCH 21, 1966

FACTS:

The Attorney General of Massachusetts brought to light the obscene images pictured in

Fanny Hill: Memoirs of a Woman of Pleasure by John Cleland. This book was written in

1750 and began legal distribution in the United States in 1963. The book does contain

images that are very sexually graphic.

ISSUES:

Are the depictions in Fanny Hill protected by the First and Fourteenth amendment?

HOLDINGS:

With the reasoning that Fanny Hill holds some cultural merit, the court found that the

book in question is protected by the First Amendment. Fanny Hill addresses issues that

are found of cultural value, although the images can be seen as obscene to some

individuals. Massachusetts was not allowed to halt production of the book.

ANALYSIS/COMMENTS:

After going through this case and going through images from Fanny Hill, I immediately

saw how said book could be misconstrued as pornography, due to its graphic images.
However, although the images are graphic, I believe this novel to lean more towards the

Romantic Novel genre rather than pornography. Wikipedia defines a romantic novel as

Novels of this type of genre fiction place their primary focus on the relationship and

romantic love between two people, and must have an emotionally satisfying and

optimistic ending. (quote used in Wikipedia definition taken from The Romance

Writers of America, https://www.rwa.org/p/cm/ld/fid=578) I believe that by this

definition, Fanny Hill, falls within the realm of a Romantic Novel, rather than

pornography. Romantic Novels hold a lot of cultural value for our society, as I am sure

they have in the past. Romantic Novels have been used to be the basis for countless

movies and have formed serious fan basis for generations. On May 1, 2014, due to the

large popularity of Romantic Novels, Barbara Keiler, Mona Gay Thomas, and Linda

Barrett motioned to press charges against Harlequin Enterprises Limited for withholding

royalties from e-book sales. Harlequin Enterprises holds the most contracts with

Romance Novelists in publishing. As they have increased in popularity over the last few

years, Harlequin Ent. began to withhold more money from their authors. Keiler, Thomas,

and Barrett, representing themselves and others like them, moved to retain the money that

the authors deserve. Fanny Hill had an increasing need in society, but instead of seeing

how this increased the novels cultural value, it was viewed as pornography. Romance

Novels are a piece of our society that serves great cultural value. As we saw with Keiler

v. Harlequin Ent. our society has a need for Romance Novels. I understand how the

images can be seen as profane, but the cultural weight of the novel, in my opinion, out

ways the graphic images.

ADDITIONAL AND AMMENDED COMMENTS:

After reviewing the two previous cases presented pertaining to obscenity law, I

can now see a correlation. The first two cases show how case law can be applied to

future cases and also create new laws when our society is faced with new issues. I can

now see how our society is like an ameba, constantly growing, changing, and adapting to

its surroundings. In addition, the first two cases were claiming the First Amendment,

when they were not truly covered. In the case of Fanny Hill, this particular novel serves

society in a greater purpose. I now relate this case back to Plato and his ideas of

obscenity being able to function in our society as long as it serves a greater purpose.

Fanny Hill, unlike Alberts and Roth, has artistic value. Fanny Hill is a true expression

that can be appreciated and is not obscene, in my eyes. I believe that Fanny Hill is a

piece of our history and serves a greater artistic purpose.

 UNITED STATES COUR OF APPEALS, NINTH CIRCUIT

SID & MARTY KROFT TELEVISION PRODUCTIONS, INC.

v. McDONALDS CORPERATION and NEEDHAM, HARPER, & STEERS, INC.

Hearing: October 12, 1977. Rehearing Denied: November 17, 1977.

FACTS:

Sid and Marty Krofft were approached by NBC Television Network to create a childrens

television show, resulting in the development of H.R. Pufnstuf in September of 1969.

H.R. Pufnstuff is a television show about a boy with a magical flute who travels to a

place called Living Island where talking mushrooms, moving trees, and talking books

live. While attempting to procure the McDonalds advertising campaign, Needham,

Harper & Steers, Inc. approached Marty Krofft with the idea of creating McDonaldland

based on the H.R. Pufnstuf television show. After discussing this idea at length, they

agreed to move forward, but Needham informed Krofft that the campaign was cancelled.

Needham moved forward with the campaign, however, and began broadcasting several

McDonaldland advertisements.

ISSUES:
Krofft, who procured the copyright to H.R. Pufnstuf, filed suit in September of 1971 for

copyright infringement. Krofft filed for damages of $250,000 and the accounting of

profits attributable. (Justia) Krofft stated that McDonalds copied directly from the H.R.

Pufnstuf and the Krofft copyrights of H.R. Pufnstuf merchandise.

HOLDINGS:

The court denied the plaintiffs request to motion for the total accounting profits of the

defendants. Although Krofft was denied their request for accounting profits, they did

find in favor of the plaintiff for copyright infringement and Krofft was awarded $50,000

in damages from the defendants. The result of this case was the development of the

extrinsic/intrinsic test. Through the intrinsic test, or substantial similarity determined by

a group of peers who have viewed, without bias, both parties, it was decided that there

was a large amount of substantial similarity. In addition to substantial similarity,

Needham admitted that they did in fact base many of their choices and characters off of

the H.R. Pufnstuf television show.

ANALYSIS/COMMENTS:

As history has shown us, since the development of the Statute of Anne in 1710 Britain

and the Copyright Act of 1790 in the United States, copyright has always served the

public good and further society. According to Peter Baldwins book The Copyright

Wars, The Statute of Anne was to encourage learned men to compose and write useful

books,. (p.66) This idea of creating something for a society to benefit from is, in my
opinion, the basis for the Krofft brothers to create H.R. Pufnstuf. They created a

whimsical world in which children could immerse themselves, but Needhams use of

their ideas was uninspired, a pure copy, and a basic need to manipulate society into

wanting one thing; cheese burgers. Where the Krofftss could bring joy and whimsy to

audiences through mechanical reproduction, Needham brought an unnecessary desire to

over indulge and consume through mechanical reproduction. Needhams production of

McDonaldland was a succubus leaching onto the individuality and success of H.R.

Pufnstuf. Even though I believe this to be true, I do not feel that the Kroffts are fully

innocent in this given situation.

Upon further research into the world of copyright infringement and motioning for

damages, I have discovered that filing for damages and account records is not the only

thing an individual in such situation may motion for. First, in order to prove my point, I

would like to state that early on in the creation of their puppets, the brothers were first

and for most artists. Their original creations and love of the puppeteering craft is what

gained their momentum and lead to the creation of H.R. Pufnstuf. Second, I would like

to state that upon filing for copyright infringement, the plaintiff may file to impound all

existing copies and mechanical means of production of said copies in possession by the

defendant. (Art Law in a Nut Shell, p. 188) Not only that, but under Section 503(b) of the

Copyright Act, the plaintiff, if found in favor at the conclusion of the case, may order

the destruction of all infringing copies and the means of making them. (Art Law in a Nut

Shell, p. 188)
Through their love of puppeteering and creation, the Krofft brothers created an aura, or

uniqueness whose significance points beyond the realm of art (Benjamin, II), but once

becoming a mechanical reproduction in television, the Krofft brothers diminished their

own puppets aura, however still intact. When the Kroffts became aware of the

infringement that had occurred, they could have immediately put a halt to the production

of McDonaldland in order to help protect their works aura by containing the mass

production of overwhelming similarity. Even after the findings of the court they could

have motioned the same, but instead they focused solely on the money and even after

obtaining the $50,000 in damages, continued to try and accrue more money in damages.

Once the brothers became interested in the money, their love of the craft and aura

withered away into what Benjamin calls spell of the personality, or a care for the

individual at hand rather than the preservation of the work itself. It is through the

brothers actions, that I believe they were the truly the ones who lost this case. They

became more interested in the wealth and mass production of their television show and

caused the aura and love for their own art to dwindle away and become no better than

Needham and McDonaldland.

 UNITED STATES COUR OF APPEALS, NINTH CIRCUIT

TWENTIETH CENTURY-FOX FILM CORPORATION, et al., Plaintiffs-

Appellants,
v.
MCA, INC., et al., Defendants-Appellees.

Argued: February 4, 1982 Decided: January 11, 1983

FACTS:

Following the release of Star Wars by Twentieth Century Fox Co. in conjunction with

Lucasfilm, LTD. on May 25, 1977, subsidiary of MCA, Inc., Universal Studios, Inc.,

released Battlestar: Galactica on May 18, 1979. Both Star Wars and Battlestar:

Galactica are motion pictures. In addition to said motion pictures, Star Wars has a

literary series. Battlestar: Galactica released a television series upon completion and

release of the motion picture.

ISSUES:

Star Wars, through Twentieth Century Fox Co., states that Battlestar: Galactica, through

MCA, Inc., has infringed upon their copyrights within not only the Star Wars major

motion picture, but the novel as well. Fox enlisted Lucasfilm, LTD. as a co-plaintiff in

order to support the infringement on both motion picture and novel. MCA moved for a

partial summary, admitted to access to plaintiffs work, and did not contest the copyrights

of Star Wars.

HOLDINGS:
The defendants were, in fact, granted a partial summary judgement. Subsequently, an

appeal ensued. The final agreement between both parties was settled outside of court and

Battlestar: Galactica was cancelled.

ANALYSIS/COMMENTS:

Upon prima facie, a term used here for first glance at both parties, they both contain

several overlaps. However, it should go without saying, to a blind eye, many science

fiction motion pictures could be perceived to have prima facie. Due to this common

prima facie within the science fiction, or sci-fi, genre one can see clearly that sci-fi has

historically fallowed common themes. To illustrate this point, I will list five motion

picture summaries, including Star Wars and Battlestar: Galactica, taken directly from the

Internet Movie Database, or IMDb.:

Battlestar: Galactica

The story of how the Twelve Colonies of Mankind are destroyed after 1,000 years of war

with the evil Cylon Empire. Through deceit, the Cylons are able to destroy the Colonies'

entire fleet, except for the Battlestar Galactica, captained by Commander Adama. Adama

gathers up the few remaining humans left on all the twelve worlds and embarks on a

journey to find the mythical planet Earth, the supposed thirteenth colony, lost millennia

ago when humans first left the motherworld Kobol. With food and fuel running out, the

fleet heads for a mineral planet, Carillon, hoping to get what they need. The Ovions, who

populate the planet, are being controlled by the Cylons, who set a trap for the Galactica.
Under a clever ruse, Adama convinces the Cylons that his pilots are on the surface at a

banquet, while the real pilots are at full combat readiness. The fleet gets their food and

fuel, and escapes, destroying Carillon and a Cylon Baseship hiding behind the planet.

Star Wars

The Imperial Forces, under orders from cruel Darth Vader, hold Princess Leia hostage in

their efforts to quell the rebellion against the Galactic Empire. Luke Skywalker and Han

Solo, captain of the Millennium Falcon, work together with the companionable droid duo

R2-D2 and C-3PO to rescue the beautiful princess, help the Rebel Alliance and restore

freedom and justice to the Galaxy.

Guardians of the Galaxy

After stealing a mysterious orb in the far reaches of outer space, Peter Quill from Earth, is

now the main target of a manhunt led by the villain known as Ronan the Accuser. To help

fight Ronan and his team and save the galaxy from his power, Quill creates a team of

space heroes known as the "Guardians of the Galaxy" to save the world.

WALL-E

In a distant, but not so unrealistic, future where mankind has abandoned earth because it

has become covered with trash from products sold by the powerful multi-national Buy N

Large corporation, WALL-E, a garbage collecting robot has been left to clean up the

mess. Mesmerized with trinkets of Earth's history and show tunes, WALL-E is alone on

Earth except for a sprightly pet cockroach. One day, EVE, a sleek (and dangerous)

reconnaissance robot, is sent to Earth to find proof that life is once again sustainable.

WALL-E falls in love with EVE. WALL-E rescues EVE from a dust storm and shows
her a living plant he found amongst the rubble. Consistent with her "directive", EVE

takes the plant and automatically enters a deactivated state except for a blinking green

beacon. WALL-E, doesn't understand what has happened to his new friend, but, true to

his love, he protects her from wind, rain, and lightning, even as she is unresponsive. One

day a massive ship comes to reclaim EVE, but WALL-E, out of love or loneliness,

hitches a ride on the outside of the ship to rescue EVE. The ship arrives back at a large

space cruise ship, which is carrying all of the humans who evacuated Earth 700 years

earlier. The people of Earth ride around this space resort on hovering chairs which give

them a constant feed of TV and video chatting. They drink all of their meals through a

straw out of laziness and/or bone loss, and are all so fat that they can barely move. When

the auto-pilot computer, acting on hastily-given instructions sent many centuries before,

tries to prevent the people of Earth from returning by stealing the plant, WALL-E, EVE,

the portly captain, and a band of broken robots stage a mutiny.

Serenity

In the future, a spaceship called Serenity is harboring a passenger with a deadly secret.

Six rebels on the run. An assassin in pursuit. When the renegade crew of Serenity agrees

to hide a fugitive on their ship, they find themselves in an awesome action-packed battle

between the relentless military might of a totalitarian regime who will destroy anything -

or anyone - to get the girl back and the bloodthirsty creatures who roam the uncharted

areas of space. But, the greatest danger of all may be on their ship.
Through these examples, one can see that within the sci-fi genre several common themes

arise, including ones which Star Wars used to support their case, the first of these being

The central conflict of each story is a war between the galaxy's democratic and

totalitarian forces. True, while Battlestar: Galactica also uses this theme within its plot,

as does every film I have listed above. Another similarity listed to support Star Wars in

their case is The heroine is imprisoned by the totalitarian forces. In Serenity, rescuing

the heroine at all costs is one of the main themes. Even in the childrens animated motion

picture, WALL-E, the capturing of EVE is a detrimental part of the movies over all plot.

The reason I illustrate the importance of these structural themes within the sci-fi genre is

to deduce that, within Copyright Law through Intellectual Property Law, ..a limited

monopoly in [their] creative work, in the expectation that public ultimately will benefit

from enhanced creative activity.(DuBoff, L., King, C., Art Law: In a Nutshell, p. 164)

In other words, one cannot own the entirety of these ideas and themes. If an individual

were able to own a full monopoly of copyright over two separate groups fighting in

space, it would diminish the creativity in the sci-fi genre, thus no longer benefiting

society, pushing against puritan idea of Copyright and Intellectual Property.

However, I would like to state that because the novel Star Wars Episode IV: A New

Hope, was released in 1976, and the motion picture Battlestar: Galactica was released in

1978. Outside of production, the team for Battlestar: Galactica would have ample time

to render ideas derived from the Star Wars novel. Although I still believe that many of

the ideas were not taken from Star Wars, the defendant would need to prove this due to
the regular availability of Star Wars and its general protection under the 1909 Act once it

was published.

ADDITIONAL AND AMMENDED COMMENTS:

Revisiting this case, I can now see that this case was the precursor to what was to

come from peer-to-peer sharing in the future. This is one of the first cases where we can

see that the ability to view work in the public contributes to the ability to copy anothers

work. Although Star Wars was not available on the internet, its prominence in

publication and motion picture debut made it readily available to the public. Once this

occurred, it made it possible to copy by others. In Copyright Wars Baldwin discusses

how print and visual piracy first began and those individuals became the Robin Hoods

of intellectual property. (p. 321) I can now see how this case was the beginning of

greater copyright issues.

 UNITED STATES COURT OF APPEALS, NINTH CIRCUIT.

MATTEL INC.

v.

WALKING MOUNTAIN PRODUCTIONS

Argued and Submitted: March 6, 2003. Filed: December 29, 2003

FACTS:

Thomas Forsthye, also known as Walking Mountain Productions, is a Utah artist who

creates photographs dealing with social and political themes. The case in question is one

pertaining to Forsthyes photographs showing Mattels Barbie nude and being

subjected to injury due to vintage kitchen appliances as well as in sexual or unusual

positions. Forsthye informed the court previous to judgment that the purpose of his

collection was to "critique the objectification of women associated with Barbie, and to

lambast the conventional beauty myth and the societal acceptance of women as objects

because this is what Barbie embodies." Forsthye also continued to state that Barbie is

the most enduring of those products that feed on the insecurities of our beauty and

perfection-obsessed consumer culture." which is why he chose her to be the object of his

series. (OpenJurist) His photographs serve the purpose of bringing to light an important

message, while also using humor.

However enticing his work, his success with the series was limited. Forsthye only

displayed his work at two art festivals. In addition to these festivals he printed 2,000

postcards, only 500 of which were ever circulated and 150 went to a bookstore in his
hometown where only 22 were sold. The entirety of the collection Food Chain Barbie

only grossed a total of $3,659.

On August 23, 1999, Mattel Inc. filed suit against Forsthye for copyright infringement,

trade dress, and trademarks.

Forsthye continued by moving to dismiss Mattels First Amended Complaint which was

then granted and Mattel filed a Second Amended Complaint, which Forsthye also moved

to dismiss. Fallowing Forsthyes motion for dismissal of the Second Amended

Complaint, the court granted in part and dismissed Mattels Eleventh Claim for trade

libel, or defamation.

ISSUES:

Mattel, Inc. owns the rights to Barbie and believes that Forsthye is committing

copyright infringement through likeliness of confusion or confusing similarity. Forsthye

states that he falls under parody law and is not encroaching on the Barbie copyright due

to his visual commentary, which, in fact, is the extreme opposite of what Barbie is in

actual representation of.

HOLDINGS:

The court found in favor of the defendant, Forsthye, stating that Mattel did not have the

grounds for trademark, trade dress, or copyright infringement. Forsthye, through his

artist statement on his collection in conjunction with fair use as a parody, had the case
dismissed. The court also awarded Forsthye $1,584,089 in attorney costs and

$241,797.09 in additional court costs.

ANALYSIS/COMMENTS:

My initial reaction to this case is how absurdly unnecessary it seems for Mattel to have

even filed a motion against Forsthye. Forsthyes work was only being viewed in a very

small area of Utah and wasnt selling for very much either. Furthermore, his collection is

quite clearly a parody and has no distinct correlation to the Barbie other than their use

within the photographs and for Mattel to file that it could be a likelihood of confusion is

offensive to the public. If anything, Mattel filing against Forsthye contributed to his

works popularity. This case displays how larger entities try to take advantage of smaller

artists. Although Mattel holds copyrights to Barbie, Forsthye was clearly creating a

parody and commenting on women in society. Due to his clear parody and commentary,

he is covered by fair use and is not encroaching on their copyright.

When Mattel filed against Forsthye, I can only imagine that they believed they could get

away with obtaining cost for damages from such a small time artist. It seems to me that a

large company saw an opportunity to pray on the weak to get money out of him. This is

sad, but a growing occurrence in our society. Large companies come in, steal designs,

and there is nothing the little guy can do about it. The cost alone of taking a large entity

to court is out of reach for the independent artists. Even if small independent artists

could afford to take such a large organization to court, being able to afford to win would

be almost impossible. Large companies can afford to continue trials costing the
individuals money that they simply do not have. In this case, it seems evident that Mattel

had hoped they could win this through greed, but Forsthye was able to not only win, but

was able to have the entire cost of the trial rectified.

This case also reminded me of Art Rogers v. Jeff Koons case from 1992. In that case, Jeff

Koons intentionally copied Art Rogers photograph and turned it into a sculpture. Koons

went as far as to ask his assistant to copy the photograph as exact as possible. Upon

completion, Koons went on to sell three sculptures for $367,000. When Art Rogers filed

against Koons he filed for copyright infringement and Koons stated that it was a parody.

In this case Koons was the big corporation trying to take advantage of the smaller artists.

Through the amount Koons made from selling his sculptures, you can see there is

motivation for money. He knew that Art Rogers was successfully selling his photograph

and then began making money off of an almost exact replica in statue form. The U.S.

Copyright Act covers Rogers in such a situation through moral rights by (1) the right of

attribution, also called the right of paternity because he is the rightful owner. (Wells,

Nicolas. What Are Moral Rights in a Copyrighted Work?) With our society growing and

technology advancing, moral rights as well as copyrights pertaining to individual smaller

artists is increasing every day. As a society, it is our responsibility to recognize this and

adjust accordingly. Whether or not we have the ability or willingness to do so is

something only time will tell.

 UNITED STATES COURT OF APPEALS, NINTH CIRCUIT.

A&M RECORDS, Inc. v. NAPSTER, INC.

BACKGROUND:

Napster, Inc. is a free computer program used for file sharing on a peer-to-peer level.

Napster gives the ability to the public to share MP3 files, or a compressed digital sound

file, across the internet.

A&M Records, Inc., or Alpert and Moss Records, is an American recording label that

holds the copyrights to several musical artists. In this case, A&M Records was also

joined by other major labels also holding copyrights to musical artists.

FACTS:

A&M Records has proven ownership over said files available on Napster. Over 87% of

the files may be copyrighted and over 70% may be owned by the plaintiff. Because of

this vast amount of available copyrighted or owned files, A&M Records is filing for

infringement. Napster has a collection of audio files that they consider sampling or a

form of reproduction of the original, thus creating fair trade. Upon A&M filing their

claim against Napster, Napster was ordered to cease any and all downloading until further

notice.

ISSUES:
Napster allows individuals to share files peer-to-peer for free through their program,

without permission from the owner or author. Not only does Napster allow individuals to

share files, but because of the use of MP3 files, users can download and share files at a

high frequency. Napster holds that their users are infringing, not themselves. They also

state that because users are altering their files and sampling their MP3s that the files then

become fair use rather which supersedes infringement.

HOLDINGS:

The court found that although owning a file sharing program is not infringement, by not

removing infringing files from the program, Napster is facilitating copyright infringement

for users. Napster must agree to paying royalties for works that are being used and

removing all other files that to not comply. Until royalties have been paid and

subsequent files that remain unpaid removed, Napster must continue to remain out of

function. Currently, Napster remains available, but the users pay a monthly cost as well

as certain specialty charges. Napster is currently paying its royalties to artists.

ANALYSIS/COMMENTS:

The first and most prominent thought that comes to mind when I read this case is the

constant battle between authors rights and copyright within the European and American

cultures. I am instantly reminded of the quote pertaining to the author as he who, owes

society nothing. He has no more obligations in this respect than the mason who builds or

the farmer who ploughs. Quite the contrary, society owes him. (Baldwin, p. 16) This
quote is in regards to French law with authors rights. When we think about peer-to-peer

sharing of musical files, by no means do we think of the author and what we owe him.

On the contrary, peer-to-peer sharing is a blatant disrespect to what we have been given

by an author as we exploit their creations. As a society we begin to strip the aura, or

being and essence outside of the original state, of a work when we share files freely and

mercilessly, but I digress.

Historically, we have seen American culture constantly adapting European laws in ways

that are portrayed as less exceptional to the high art the exists, namely in France. French

culture has always put the artist first and the audience second, if at all. When peer-to-

peer sharing through the internet became a prominent means of acquiring music,

American law moved to accommodate, while France pushed back the need to adapt such

laws. In 2006 America, the buying and selling of digital copies of work made up about

one quarter of the industry. In France, digital sales only accounted for about 7%.

However, the internet savvy French were downloading twice as much material as their

American, British, or German counterparts. Once this change was acknowledged by the

French, they were forced to relinquish their old world ideals of high culture in respect to

the artist and begin taking advice from the American law in order to protect their artists.

Taking what was always believed to be archaic in American copyright and apply it to

author rights. However, as the French author law grew to accommodate the audience as

well as the author, their laws became stricter than that of American law in order to

counteract an internet that was costless and to show no mercy for the pillaging of

cultural works. (Baldwin, p. 355)

This case portrays how the American way of constant adaptation for copyright combated

a growing issue in todays society. Although the French law has always pushed back in

order to account for the author first, American copyright law was better equip to handle

the growth with peer-to-peer sharing. Frances old world approach for protecting the

artist and lack of consideration for the growth within the new age put them at a

disadvantage with peer-to-peer sharing. Although the American copyright law may not

put the author first and adhere to Frances high culture ideals, they were prepared to

protect the artists rights and infringement when the issue of peer-to-peer sharing became

prominent.

Another issue that I was reminded of when dealing with author rights and copyright is

that the American laws allow for a more open sharing of creation, whereas European

copyright law can be very controlling, as in the case of James Joyce. Although I do

believe that European copyright law does protect the artist first and, in turn, help protect

the aura of an authors work, it can be very controlling and hinder society from any true

growth and knowledge. In the article Has James Joyce Been Set Free? by Mark

OConnell, we can clearly see that the copyright laws for exclusive rights for 70 years

can become costly to our society. Peer-to-peer sharing may be too open, but extreme

exclusive rights to an artist is also not the answer. The ability to share and learn and

expand upon ideas that an artist has is part of the art itself. The ability to share and think

freely is important. With laws that cut off the use of a body of work completely, we can

miss out on a growing wealth of knowledge. Finding a shared middle ground on this

stance is important to benefiting our society.

 UNITED STATES COURT OF APPEALS, SECOND CIRCUIT.

KONOWALOFF V. THE METROPOLITAN MUSEUM OF ART NEW YORK,

NEW YORK

Docket No. 114338cv.

Decided: December 18, 2012

FACTS:

Pierre Konowaloff is the great-grandson and sole heir to the estate of Ivan

Morozov, a Russian aristocrat who procured one of the finest art collections in Europe of

his time. In 1911, Morozov purchased a Czanne titled Madame Czanne in the

Conservatory, also commonly referred to as The Painting when discussed in case

reference. In March of 1917, the Russian Revolution caused the overthrow of Tsar

Nicolas II creating the Provisional Government, which was quickly recognized by the

United States, but quickly overturned in November by the Bolsheviks, or Soviet regime.

The Bolsheviks immediately began enacting decrees that halted private ownership and

began nationalizing property. Because of said decrees, Morozovs collection was

obtained by the State on December 19, 1918 as state property. In 1919 the collection was

renamed Second Museum of Western Art and the sale was deposit[ed] in a Soviet-

controlled bank account. Soviet Government was not recognized by the United States

until November 16, 1933. In May 1933 Stephen C. Clark purchased The Painting. It is
believed by Konowaloff that this could have been acquired in violation of Russian

Law.

Due to Pierre Konowaloffs sole heirship of The Painting, Konowaloff moved to

have the piece returned to him immediately. When the Metropolitan Museum of Art, or

MET, refused Konowaloff, the legal case ensued.

ISSUES:

The major issue at hand, pertaining to the American party or defendant, is the act

of state doctrine. When the United States recognized the Soviet Union as a sovereign

state, they agreed that when a revolutionary government is recognized as a de jure

government, such recognition is retroactive in effect and validates all the actions and

conduct of the government so recognized from the commencement of its existence,

(quoting United States v. Pink, 315 U.S. 203, 233 (1942) (quoting Oetjen v. Central

Leather Co., 246 U.S. 297, 30203 (1918)) (emphasizing the first), therefore we cannot

judge their choices as a nation, rather recognize and agree to them.

The MET does not denounce that The Painting was illegally ceased, but rather that

when the work was obtained, the Soviet Union was already recognized by the United

States.

HOLDINGS:

It was found that Konowaloff had no merit for his claims and was found in favor

of the defendant. Although the United States Government did agree that Konowaloff had
factual claims for illegal seizure of property, the recognition of a foreign state creates the

application of the act of state doctrine. Later, Konowaloff again tried to reclaim The

Night Caf by Vincent van Gogh from Yale University, only to come to the same

conclusion.

COMMENTS/ANALYSIS:

I would like to say that Konowaloff is right, but I do think that the ruling in this

case was right. I agree that The Painting was more than likely illegally obtained, which

in turn, leads to its illegal sale, but when it was obtained was, indeed, after the United

States recognition of the Soviet Union. Even though I, myself, agree that the piece was

illegally obtained, I cannot state that, without a doubt, this piece was illegally obtained

and sold. Being able to prove, without a doubt, both parts in such a case is detrimental to

a case. In order for Konowaloff to truly win this case he would have needed to utilize the

National Stolen Property Act, or NSPA, to solidify his case. The true task he was faced

with was giving true validity, because NSPA is under the criminal law, the prosecutor

must prove all elements of the statute beyond a reasonable doubt to a unanimous 12-

person jury. To do this, prosecutors might rely on foreign patrimony laws that vest

ownership of an antiquity with a particular nation. (Crimes Against Art, p. 77) In this

case, we can see that Konowaloff is going on his own investigation not by what has been

regimented or agreed to by the current Russian Federation, thus aiding to the idea of the

act of state doctrine.

 In addition, I would like to state that Konowaloff was the heir to an aristocrats

collection. This is not to say that Morozov should go without notation, but even as it was

stated in the case, he procured The Painting for its worth. Morozov was not in the

business of collecting art for its aura or essence, but rather its price tag. In Module 15 we

are asked to look at a website titled Artnet News. Within this website there is an article

titled 10 Young Power Players Set to Become the New Art World Aristocracy by Henri

Neuendorf. This article describes young individuals who have extensive art collections.

I do find it very extraordinary to acquire such a collection at any age, but this article in

particular describes their collections by using terms such as mega-collections

denouncing brilliant works to things. It is for this reason that I believe that Konowaloff

does not deserve The Painting. Although that is not a legal approach by any means, the

selfish need to procure art, simply because you can, is by no means just. I am brought

back to Cicero on De Legibus:

Right is uniform; human fellowship has been bound by it, and one law has established it;

that law is correct reason in commanding and prohibiting. He who is ignorant of it is

unjust, whether it has been written somewhere or nowhere. Now if justice is compliance

with the written laws and institutions of peoples, and if (as the same men say) everything

ought to be measured by advantage, he who thinks that it will be enjoyable for himself

will neglect and break through those laws if he can.

 Konowaloff, in his act to procure The Painting, thought selfishly. He wished not

to share the work, only to keep it for himself. By doing this, he not only lost on a legal

stand point, but also on a moral one. Cicero tells us that whether a law is written or not

we must act justly with our fellow man. To be good is to follow these ideas.

In the end, I do believe that Morozovs collection was illegally obtained, but as

Sheppard Mullin wrote in Russian Revolution Redux:

The Second Circuit has spoken: the Russian Revolution is over, to the victor belong the

spoils.
 U.S. SUPREME COURT

BARNS V. GLEN THEATRE, INC.

Argued: January 8, 1991 Decided: June 21, 1991

FACTS:

The two theatres in question, the Glen Theatre and Kitty Kat Lounge, are both

establishments that house nude erotic dancing. The Glen Theatre and the Kitty Kat

Lounge motioned to sue the District Court, stating that the local public indecency law

was in violation of their First Amendment for freedom of expression. A worker at the

Kitty Kat Lounge, which features go-go dancing and also sells alcoholic drinks,

believes she could make more money by dancing fully nude. The Glen Theatre features

movies, written material, and a live show bookstore where individuals may insert a

coin to view a women dance nude for an allotted amount of time. The local public

indecency law in the state of Indiana requires all nude dancers to minimally wear a G-

string and pasties. The state of Indiana upholds these limitations on nudity in order to

bring about moral approval in public places and allow for nudity as long as minimal

amount of coverage is present.

ISSUES:

Is this state law truly a violation of personal expression? Our First Amendment does

protect our innate right to expression, but the State must regulate in order to police what
could hurt the people in either a health, safety, or moral way. If the public could be put

in harms way, the First Amendment does not apply to its fullest extent. The public

indecency law protects from future criminal acts such as prostitution, sexual assault, or

rape.

HOLDINGS:

The court found in favor of the State of Indiana stating that it was functioning within its

rights for moral statutes and ability to police the public. Although there wasnt a

unanimous decision, the majority ruled that this was an act of expression, but the nudity

needed to follow the limitations of the public nudity statutes. Dancers must still wear

pasties and a G-string in order to cover the minimal requirements.

ANNALYSIS/COMMENTS:

My immediate thought its the age old question, what is art? Do we have the right to say

what is or isnt an artistic expression? In this instance, I do believe that this is not an act

of true artistic expression because the interviewed employees state clearly the need for

money by being fully nude. As Benjamin tells us, The cult of the movie star, fostered

by the money of the film industry, preserves not the unique aura of the person but the

spell of the personality, the phony spell of a commodity. (The Work of Art in the Age

of Mechanical Reproduction, Section X) This clear statement by these two women that

they wish to be fully nude to increase their income, takes away the aura of their nude

expression. If they were to state that they wish to be fully nude in order to clearly convey
their expression successfully, I would feel differently. However, these are only two

individuals who have expressed their personal feeling about their employment situation.

I cannot speak for all nude dancers, nor all nude dancers in the State of Indiana.

In regards to nude artistic expression, Burlesque has been an artistic medium that has

spanned generations. It is clear, that in some instances, being nude can be an artistic

expression. In addition, the Kitty Kat Lounge and the Glen Theatre, were more interested

in private viewing rooms of fully nude women by only one individual. Burlesque

dancing is usually done in an audience setting, much like a play. Burlesque dancing can

also be performed fully nude, yet we praise these women and shun those in gentlemens

clubs. A dear friend of mine, lovingly known by her stage name Stella Cheeks, preforms

regularly with the Nerd-lesque company of her creation, Plan 9. One of her acts about

Star Trek consists of her stripping down to pasties and a pasty of Captain Kirks face

covering only her vagina in the front, leaving her back completely open. Although she

performs mostly in Chicago, this is still less than a G-string, but because of her artistic

expression and nudity, she is able to perform without complaint. Stellas artistic

expression helps give an aura to her work, whereas the employees of the Kitty Kat

Lounge and the Glen Theatre diminished their nude expressions aura by linking it to

wanting more money.

Whether or not we wish to acknowledge these women for their art, this begs the age old

question of What is art? When Indiana finds that fully nude expression is vulgar, does

that mean it is not art? In the video pertaining to Antwain Steward, they briefly discuss

this. When he is simply creating art and rapping, it can be looked at as such, but when it
begins to describe a scene that others find dark, it can quickly turn into a confession

rather than art. In our society others will always quickly resort to what offends them and

like fire it will spread to others, effectively hurting the art itself. Determining whether

nude expression is or isnt art and if the expression holds an aura, I believe, is an

important part of what should be considered in such a case.

With the idea of aura aside, in Book II of the Republic, Plato, although referring to the

story of Cronos and Uranus and its dark nature, states ..not even if they were true would

I suppose they should so easily be told to thoughtless young things; best would be to keep

quiet, but if there were some necessity to tell, as few as possible ought to hear them as

unspeakable secrets.. (The Republic Book II, Line 378a) Here Plato is discussing a

gruesome tale that he feels could negatively impact the children, but could serve some

purpose. Socrates also agrees that it is imperative for the rulers of cities to supervise the

makers of tales. They discuss how such things should have merit and purpose in society

and how to address them if they have such purpose. When Plato states that we should

keep these things from children, we can relate that clearly to this case because the public

itself is not affected by such a case. Rather, the ability to be fully nude in a private room

relates to a willing party over the age of 18 who feels a need for such acts in their life to

be fulfilled. Through this idea we can see that it is not an issue of public indecency, but a

need in society that should be regulated by rulers as beneficial to the community rather

than the opinions of individuals. I understand that Indiana is a much more conservative

state, but if they were to address the need for fully nude expression with reasonable

limitation with age restrictions and that the expression be private and safe, I believe that
this would be fulfilling a societal need rather than the opinion of some. I am not for or

against nude expression, but I do feel that if an individual feel that need is necessary and

that they should be able to be fully nude during their expression that they should be

allowed to do so.
 UNITED STATES TAX COURT

SUSAN CRILE V. COMMISSIONER OF INTERNAL REVENUE

Filed: October 2, 2014

FACTS:

Susan Crile is a successful artist with a career spanning over 40 years. Criles

mediums include, but are not limited to, oil, acrylic, charcoal, pastels, lithograph,

woodcut, and silk screen. She has been regularly exhibiting and selling her art in

prominent galleries. In addition to having permanent pieces in museums such as the

Guggenheim and the Metropolitan Museum of Art, Crile is a full-time tenure professor at

Hunter College in New York City. Crile devotes around 30 hours to her art every week

and has created over 2,000 finished pieces in total over her career. Her work has been

acquired by nonprofit and for profit companies alike and some even belonging to

government entities. In addition, Criles work has been reviewed by almost every major

art publication and has received awards from the National Endowment for the Arts.

Although Crile is clearly a successful artist, she had no intention to profit from her art.

ISSUES:

The Commissioner of Internal Revenue has determined and filed that Crile has

insufficiencies in her Federal Income Tax Returns for the years 2004, 2005, and 2007-

2009. The Commissioner of Internal Revenue determined that, due to Crile not having an

intention for profit, she is not deductions. This conclusion was determined due to the
Internal Revenue Code Section 162(a) and Section 183(b). The Commissioner of

Internal Revenue stated that Criles independent art and art as an educator be ruled as a

single activity which should be a reimbursed business expense rather than a tax

deductible expense. Crile believes that her art has enough validity from years of work

previous to teaching that it should be a tax deductible expense.

HOLDINGS:

Through the use of a balancing test, it was found that Crile outweighed the

Commissioner of Internal Revenue. The court ruled that Criles art was used as more

than a hobby, but also as an additional source of income, thus justifying her claim for a

tax deductible expense.

COMMENTS/ANALYSIS:

Not only do I agree with this ruling, but I believe it was a major step in the arts.

Susan Crile is a notable artist, who has been recognized time and time again. The amount

that Crile has given to society in her artistic lifespan is something that we should respect.

As I have quoted in the past, the author owes society nothing. He has no more

obligations in this respect than the mason who builds or the farmer who ploughs. Quite

the contrary, society owes him. (Baldwin, p. 16) This case shows that society can still

show deep appreciation and care for their artists. So many of the case briefs from this

semester the artist has not been able to win in the end. It is heart breaking to see so many
talented individuals strive for so much and still be shut down. More often than not, the

artists in our society become the losers rather than the winners that they deserve to be.

In addition to this case showing the underdog finally succeeding, it brought to the

attention how expensive an artists life can truly be. Our society expects art to be readily

available to them at the drop of a hat. Everyday people attend openings or spend the day

enjoying the museum, but rarely is the artists life and expenses brought to the forefront

of conversation. This case shows how time consuming and expensive the life of an artist

can be. Crile was able to pave the way for artists and their ability to file for tax

deductible expenses.
 LEARNING STATEMENT

As this semester comes to its conclusion, it is time for me to reflect back onto the

things that I have learned over this semester through these case briefs. The most

important being the origins of law through philosophy.

When first faced with Plato, Austin, and Cicero, I felt very overwhelmed. To be

quite honest, I thought, Why am I even reading this? As it turns out, without these

brilliant thinkers and their beliefs in law, we would have nothing to base law on. The

idea of it being imperative for the rulers of cities to supervise the makers of tales (The

Republic, Book II) has stuck with me throughout the semester. If our rulers didnt work

in our best interests, then our laws would be frivolous. Although Plato does discuss

rulers serving themselves, I now know that the rules enforced within our society are

meant to guide us into being just individuals. Whether the law is written or not, we must

act justly in order to function as a good person in our society.

In addition to learning to appreciate the origins of law, I gained the ability to learn

how to research outside of my comfort zone. Although I probably spent too much time

reading outside of the course material this semester, I learned how to find useful learning

materials and apply them to said cases. Some of these cases I would struggle with

reading, but when I was able to reach outside of the materials given, I was able to find a

better understanding and relate to the cases provided.

One issue I ran into this semester was tax law. Last semester I had a hard time

working with tax and financial statements and this semester I noticed it become a trend.

Nearing the end, we began to talk about tax law and its need in the arts. After struggling
tirelessly with tax law, I came to the understanding that it would be in my best interest to

take the creative accounting class as my next elective.

To conclude, I would like to say that I really enjoyed this class. One thing I would

like to add to this is that I think this class should be a requirement for the final semester.

Through working with individuals in their final semester, I can truly see the work that

they have put in over their time in the program. I can also see how a culmination of the

classes they took prior truly aided them in accomplishing this course. I was very

impressed with everyone and what was contributed and accomplished. I am glad that I

was given the opportunity to take a course such as this one. I appreciate the opportunity

to be a part of this course and to learn about art and the law.