For those of you in desperate need of Christmas present ideas for a New England Patriots fan, you can rest assured that your ironic backup option – a copy of the romance novel, A Gronking to Remember – is still available for sale. Truth be told, the self-published volume was not in serious danger of becoming unavailable, but the recent Sixth Circuit opinion in Roe v.… More
Category Archives: Defamation
What if people thought you said that “slavery wasn’t so bad?” Would it harm your reputation? Would it matter if the statement was contextualized with various caveats? According to the Fifth Circuit’s August 15, 2017 opinion in Block v. Tanenhaus, context is everything. The plaintiff, Walter Block, admits that he uttered the words: “slavery wasn’t so bad” while discussing the concept of “free association,” but argues that the New York Times took these words so badly out of context as to libel him.… More
Is it defamatory to falsely accuse someone of infringing intellectual property? Last month, the California Court of Appeal, in FilmOn.com v. DoubleVerify, Inc., affirmed the dismissal of a defamation action in which the defendant was accused of falsely labeling the plaintiff as a copyright infringer.
Does that mean you can just go ahead and call anyone you don’t like a copyright infringer,… More
Advertising can take many forms, including statements about a company’s products on websites and social media platforms. A wrong step can result in serious consequences, including legal challenges from competitors, consumers, the Federal Trade Commission, and other regulatory agencies.
Watch this webinar to learn how you can protect your company against legal challenges based on its advertising practices. You will also learn what options are available if your competitors are making false or misleading statements in their advertisements.… More
Last week, everyone in Washington, D.C. was talking about the invocation of “executive privilege,” the ability of a President to withhold information from, for example, an investigation into Russian influence on the U.S. election. Meanwhile, the Massachusetts Supreme Judicial Court (“SJC”) considered, and then punted on, a different kind of executive privilege: the absolute privilege of an executive to defame others without liability.… More
As all aspects of business inexorably shift toward online, it is not surprising that intellectual property infringement, cybersquatting, and related internet abuses abound. Luckily, there are various procedures available by which aggrieved companies can seek relief short of litigation.
On March 14, 2017, the Consumer Review Fairness Act (CRFA) will officially invalidate a whole bunch of consumer contract clauses that pertain to online reviews.
During the last decade, we started hearing reports about professionals using form contracts to prevent their clients or patients from publishing negative online reviews. Here’s an example of how it worked: You showed up for a dentist appointment and,… More
It’s March, which means that wedding season is nearly upon us. Let’s say you run your own wedding-related business with one employee: you. A customer gives you a review on the internet that is not only negative, but contains false statements. Who is harmed by this false review: you, your business or both? And if you want to sue the former customer, what is your cause of action?… More
Are journalists protected by anti-SLAPP statutes? Until last week, the likely answer would have been: “probably not,” at least in Massachusetts. But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the Massachusetts Supreme Judicial Court (which we Bay Staters refer to as the “SJC”). The case involved a Huffington Post story about a chemical consulting firm involved in the Deepwater Horizon oil spill litigation.… More
Just in time for the holiday season, we present our third annual Trademark Year in Wine and Beer, a wrap-up of alcohol-related trademark and trademark-ish disputes dating back to December 2015, when we published our last edition. Our scope includes lawsuits brought in U.S. Courts, actions before the Trademark Trial and Appeal Board (“TTAB”), arbitrations pursuant to the Uniform Domain Name Dispute Resolution Policy (“UDRP”),… More
Hypothetical: You go out for a nice stroll one Halloween only to have a neighbor emerge from his house with a pitchfork and accuse you of being a witch in front of the whole village. For the sake of argument, let’s say you are not actually a witch. Can you sue for slander?
For centuries, a civil defamation lawsuit has been available as a remedy —… More
This year marks the fiftieth anniversary of the premiere of the original series of Star Trek, which first aired on NBC in September 1966. On July 22, this milestone will be marked in earnest when Paramount Pictures releases the new film, Star Trek Beyond (which sadly includes the final Chekovian performance by the recently-departed Anton Yelchin).… More
Alexander Hamilton has more to do with American independence than you might think. His efforts as a Founding Father (the hottest Founding Father on Broadway, it should be noted) helped the United States achieve political independence from Great Britain. But Hamilton also made a vital contribution towards helping the American justice system declare jurisprudential independence from the English courts, particularly with regard to defamation and free speech.… More
When Is Internet Speech Protected Petitioning Activity? Federal Court Grants Anti-SLAPP Motion In FIRE CIDER Trademark Suit
On May 12, 2016, the District of Massachusetts held that that an online campaign in support of the cancellation of a registered trademark (FIRE CIDER) was protected petitioning activity, even though the campaign was organized and supported by the trademark owner’s competitors. Because the campaign activity was protected, the Court granted the competitors’ anti-SLAPP special motion to dismiss certain claims. The case, Shire City Herbals v.… More
Designers like Alexander Wang, Rebecca Minkoff, and Michael Kors are all gearing up to premier their 2016 fall/winter collections this month during New York Fashion Week. Fashion Week draws more than 230,000 attendees each year to over 500 runway shows and events in New York City. The economic impact of this biannual event is estimated to be close to $900 million.… More
Around this time last year, I started worrying about what would happen if someone at a Super Bowl party asked me to explain an NFL-related lawsuit, particularly one of those IP-ish lawsuits that I’m supposed to know about. So I put together the first Sue-per Bowl Shuffle, a guide to the year’s gridiron disputes over trademarks, copyright, the right of publicity and other matters with a First Amendment flavor.… More
What if were to tell you that I jointly authored this article with a colleague, but that I’m not going to give her any credit or attribution because I don’t feel like it? Can she sue me for copyright infringement? No, because we are joint authors, so I have as much a right to publish this article as she does. If we lived in Europe, my colleague might have relied on her inherent right of attribution,… More
Are You Sure This Isn’t About Copyright? Chicken Sandwiches, Monkey Selfies and the Boundaries of Copyright Law
Last week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The suit alleges that Slater infringed Naruto’s copyright in the famous “monkey selfies” (taken by Naruto with Slater’s camera). The complaint requests that the Court order Slater to disgorge any profits he has realized from the distribution of the images and establish a trust,… More
Just about one hundred years ago, Archibald Query of Somerville, Massachusetts invented the first commercial marshmallow cream, which he pedaled door-to-door in Union Square. Around 1917, he sold the recipe for $500 to two candy makers in Lynn who had just returned from World War I, and their company (Durkee-Mower) still makes Marshmallow Fluff today. In 2006, Union Square boosters began celebrating Query’s achievement with the Fluff Festival,… More
Construction projects often involve a complex array of contractors, subcontractors, banks, bonding agents, architects, engineers and so on. With that many parties depending on each other to complete a project, negative statements about the quality and integrity of other peoples’ work often arise. Such statements, if false, may give rise to defamation claims. However, even a false statement may be protected from liability by a “common interest” privilege.… More
On August 6, 2015, the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Lucas struck down Massachusetts General Laws, Chapter 56, § 42 (Section 42), which criminalized the utterance or publication of “any false statement in relation to” a candidate for public office or a ballot question. Violations of the statute were punishable by a thousand dollar fine or up to six months imprisonment.… More
On July 31, 2015, Harry Potter author J.K. Rowling celebrates her 50th birthday, according to muggle sources. The enormous success of Rowling’s literary creation and its associated multimedia empire has spawned countless jealousies, countless imitators, countless parodists and countless pirates. The franchise has kept dozens if not hundreds of lawyers busy with precedent-setting copyright cases, trademark disputes, First Amendment battles over religious expression,… More
Earlier this month, a man in Melbourne, Australia decided to take his very first selfie next to a Darth Vader poster at a local shopping center. A nearby shopper mistakenly thought that the man was taking pictures of her young children. Convinced she had espied a pedophile, the mother snuck a cellphone shot of the man and uploaded it to Facebook, along with commentary labeling him a “creep” and implying that he might be a “registered sex offender.” When word of the post reached the man,… More
We have written many times about attempts to use copyright law to do what defamation law can’t: take stuff down from the internet. Because Section 230 of the Communications Decency Act (“CDA”) prevents a defamation plaintiff from suing an internet service provider for merely hosting defamatory content, many allegedly defamed parties instead have attempted to use the Digital Millennium Copyright Act (“DMCA”) to “take down” the offending material.… More
Heading into this year’s Super Bowl party season, there are two things every lawyer should be concerned about. First, why can’t your team get it together? Second, what do you do if you are asked to explain to your friends and neighbors some NFL-related litigation that you haven’t been following? We can’t help you with the first problem (although, as an Iggles fan living in the heart of Patriots Nation,… More
The Massachusetts Supreme Judicial Court (SJC) has upheld the conviction of an Andover couple for violation of the Commonwealth’s criminal harassment statute by, among other things, posting fake ads on Craigslist. In brushing aside the couple’s challenges to the statute, the Court emphatically held that the First Amendment does not provide a defense to allegations of criminal harassment simply because the defendant uses words to carry out the harassment. … More
Court Rejects Glenn Beck’s “Limited Purpose” and “Involuntary” Public Figure Theories in Marathon Bombing Defamation Case
This week, Judge Patti B. Saris of the District of Massachusetts denied a motion to dismiss a defamation action that had been brought by Abdulrahman Alharbi against radio and television personality Glenn Beck. In denying the motion, the Court rejected Beck’s theory that Alharbi, by virtue of his attending the Boston Marathon and second-hand reports of “suspicious” behavior, had become a “limited purpose” or “involuntary” public figure with respect to the Boston Marathon bombing.… More
For those few of you who don’t know already, Yelp! (“Yelp”) is a wildly popular website where people can share their reviews, opinions, experiences, and ratings of businesses across the country. This service is invaluable when investigating new restaurants, dog walkers, dry cleaners, etc. However, it is important to take the reviews with a grain of salt because, no matter how great a store is,… More
Halloween is a good time to think about how you want to die. Do you want to leave the world peacefully? Or do you want to go down trash talking, making sure that your enemies know exactly what you think about them, and that everyone else knows what terrible people these enemies were?
In July 2014, Judge Barbara Jaffe of the New York Supreme Court dismissed the defamation claims in Kramer v. Skyhorse Publications. Kenny Kramer, the real life inspiration for the beloved eponymous Seinfeld character, had sued comedian Fred Stoller and his publisher because Stoller had written that a guide on the “Kramer Reality Tour” was shouting the catch phrase “not that there’s anything wrong with that” at passersby in Greenwich Village,… More
How Not To Market Your Business Online (Even If It Works): Claims Against Fake Review Sites And Stolen Obituary Photos Survive Motion To Dismiss
Despite celebrity endorsements from the likes of Dennis Miller and Alan Thicke, all that glitters isn’t gold when it comes to the marketing of precious metal investments. In March 2014, American Bullion, Inc., which is in the business of encouraging individuals to convert their retirement savings to gold and silver, brought suit against its competitor, Regal Assets, LLC, in the Central District of California, alleging a host of unsavory internet marketing practices. … More
So, how is copyright law doing as an online reputation management tool?
We have written many times recently about the use of copyright law to do what defamation law can’t: take stuff down from the internet. A politician in California claimed copyright in her campaign photo in order to have a satirical blog deleted. Dental patients have been asked to sign away their copyrights to hypothetical future online reviews so the dentists can take down the ones they don’t like.… More
A History Of Massachusetts Anti-SLAPP Legislation As A Vehicle For Protecting First Amendment Petitioning Activity From Retaliatory Defamation Claims
Before the passage of anti-SLAPP legislation, citizens engaged in First Amendment petitioning activity often found themselves the targets of retaliatory lawsuits. For example, a group of neighbors might speak out at a local zoning commission hearing to block approval for a new building development, only to find themselves defending against a costly lawsuit brought by the developer for, among other things, defamation or commercial disparagement.
This December will mark the 20th anniversary of the Massachusetts anti-SLAPP statute, … More
This summer marks the 100th anniversary of the outbreak of World War I. The Archduke Ferdinand was assassinated on June 28, 1914 and, by the end of August 1914, Germany, Russia, France and the United Kingdom had joined the war. The United States entered the fray on April 6, 1917, by declaring war on Germany. This was when the word “slacker” suddenly became defamatory.
The Slacker Lists
The U.S.… More
Defamation Claim Against HBO Sports Documentary Proceeds; International Sporting Goods Supplier Not a Public Figure
On May 16, 2014, in Mitre Sports v. HBO, the Southern District of New York allowed a defamation claim brought by a UK company against HBO to proceed to trial. In doing so, the Court ruled that Mitre Sports International, one of the world’s top sporting goods suppliers, was not a public figure.
Communications Decency Act Forecloses Liability For “Amplifying,” “Endorsing” and “Adopting” Defamatory Statements With Hyperlink
Two weeks ago, in Vazquez v. Buhl, the Appeals Court of Connecticut affirmed dismissal of a defamation claim against CNBC for hyperlinking to an online report by journalist Teri Buhl. The Court held that, although CNBC allegedly “amplified,” “endorsed” and “adopted” the offending report, it was not a “content provider” under the Communications Decency Act (CDA).
The Sex and Money Scandal Rocking Hedge Fund Land
In 2012,… More
Catholic Priest Permitted To Conceal Non-Privileged Nature Of Defamatory Communication Until Statute Of Limitations Runs
In a recent unanimous decision in Harrington v. Costello, the Massachusetts Supreme Judicial Court (SJC) held that the statute of limitations had run out on a Catholic priest’s defamation claim against his colleague, even though the colleague had allegedly fraudulently concealed the source of the defamatory statement.
The plaintiff, John Harrington, was a priest at St.… More