Category Archives: Supreme Court

CLE Course: Sex, Drugs, and Rock ‘n’ Roll – How Modern Lifestyle Industries Push the Limits of IP Law

Can a rock band named the “Slants” get a trademark on their band name? Can Apple get a patent for a device that can be used to vaporize marijuana? Does the owner of a “tube” website featuring adult content get immunity from user uploaded videos under the Digital Millennium Copyright Act (DMCA)?

While most of us have a basic understanding of copyright, trademarks and patents, we don’t always think about how intellectual property law can protect our client’s products, brands and services in the context of modern lifestyle industries.

This CLE course is a fascinating review of the specific rules that are triggered by clients who are in industries that push the edges of social norms – such as medical marijuana, adult content and the Rock n’ Roll music industry. Peter Afrasiabi also addresses the fascinating morality standards that apply and are deployed in the trademarking and patenting process to limit the scope of trademarks and patents in matter that is deemed scandalous by the government. To access this please click here: Sex, Drugs, and Rock ‘n’ Roll: How Modern Lifestyle Industries Push the Limits of IP Law.

We will start with an IP overview for the general practitioner and then explore the copyrighting, trademarking and patenting rules that are being tested by these industries.

From battles with Madonna over the “Material Girl” brand to fair use disputes with the Eagles’ Don Henley to protecting such iconic brands as Bettie Page in trademark and trade dress disputes, Peter R. Afrasiabi primarily handles copyright, trademark, and entertainment disputes. He is also the Chair of the Appellate Practice Group for One LLP and co-director of the Appellate Litigation Clinic at the University of California, Irvine School of Law.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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Digital Citizenship in Schools: From Policy to Practice


The schools of today are very different than the schools of our youth. Students today are faced with cyberbullying, sexting, Facebook and all the novel problems that our new digital world has created over the last decade. Schools and school districts must know how to address and respond to these new issues created by digital technologies so they can best help students and avoid potential liability.

In an era of sexting, cyberbullying, and Facebook, school administrators walk a fine line in trying to provide a safe school environment and at the same time, trying not to infringe on student first amendment rights. – Gretchen Shipley

If you would like to learn more about emerging legal issues in schools created by technology please join Gretchen Shipley as she uses a hypothetical fact pattern to discuss these emerging issues. The main topics covered by Mrs. Shipley include search & seizure, mandatory reporting of abuse & neglect, sexting, social networking, teacher-student online communication, teachers’ cyber conduct, student discipline for online speech, bring your own device & equal access, cyberbullying, student privacy rights and potential breaches of privacy law.  To access the course please click here: Digital Citizenship in Schools: From Policy to Practice.

Further issues discussed include:

  • eMatters
  • Klump v. Nazareth
  • Sexting by students
  • Freedom of association
  • “Fitness to teach”
  • The “related to school activity” standard
  • The substantial disruption standard
  • S. v. Blue Mountain
  • CIPA
  • J.C. v. Beverly Hills
  • The Fourth Amendment
  • GeoLocation & iPad tracking
  • School video cameras
  • Pictures on school websites
  • Data mining by technology vendors
  • Social media monitoring (GeoListening)
  • Device search & seizure

Gretchen Shipley is a partner in the San Diego office of Fagen Friedman & Fulfrost and co-chair of the firm’s eMatters Practice Group. A respected legal leader in education law and technology, Mrs. Shipley advises school districts and delivers workshops to students, employees and district leaders nationwide on the promotion of cyber-citizenship in the school community and the implications of cyber-misconduct in the classroom and workplace. She has also collaborated with the Association of California School Administrators to co-produce the popular “Logged On” seminars, created to offer guidance on employee and student issues that stem from embedding technology into public education.

This CLE course on digital citizenship in schools is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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Prop 8, Rational Basis & The Supreme Court

I was thinking about writing about something a little lighter today like song titles and the first amendment.[1] However, I came across another interesting little New York Times article that veered me back to the serious side of the law.[2]

The big news last week was the overturning of Prop 8, which effectively strikes down the same-sex marriage ban in California. After a nearly five-month wait Judge Vaughn Walker delivered a 136-page decision in the case of Perry v. Schwarzenegger.[3] In the decision, Judge Walker found that California’s voter-approved ban on same-sex marriage irrationally discriminates against gay men and lesbians.

Here are a couple of key quotes from the decision available here:

“Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect”

“Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

What struck me about the New York Times article that I read earlier entitled “In Same-Sex Ruling, an Eye on the Supreme Court” is the eventual fate of Perry v. Schwarzenegger.  Obviously the fate of the case and same-sex marriage rights are far from over, and we all know that this is all headed to the Supreme Court – an even more interesting wrinkle considering the Kagan nomination also took place last week.  And don’t forget that the Ninth Circuit will also get a chance to weigh in on the matter.

According to one expert “if the Supreme Court does not want to uphold same-sex marriage, its job has been made harder by this decision.”[4] This is due to the fact that appeals courts will often overturn lower-court judges on their findings of law, but give more deference to findings of fact.  And according to the article, Judge Walker’s decision, “lays a rich factual record, with extensive quotation of expert testimony from the lengthy trial.” Also, according to Constitutional expert Erwin Chemerinsky – dean of the law school at the University of California, Irvine – Judge Walker took a conservative approach to his findings of law, making it much harder for the Supreme Court to potentially overturn the decision.

Further, Judge Walker invoked a pretty easy standard – rational basis review – and the law still didn’t pass constitutional muster.  He could have analyzed the law through the harsh “strict scrutiny” standard that many laws fail.  He found that Proposition 8 didn’t meet a rational basis review for the legal distinction between same-sex marriage and heterosexual unions according to Professor Chemerinsky and further that gays and lesbians are the type of minority strict scrutiny was designed to protect

However, there are others who feel that the Supreme Court is not quite as constrained by the factual record and don’t seemed too concerned about the rational basis review standard invoked.  To many, it seems like too much of a stretch for this Court to hand down a sweeping decision that could overturn same-sex marriage bans across the country.

Regardless, according to the Huffington Post Walker offered a variety of findings that may be as important as the ruling itself. Among them were the following:

“Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.”

“Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”

“Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.”

“Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”

“Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.”

“The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.”

“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”

Whatever the outcome, it will definitely give us some insight into the minds of our two newest Justices – Elana Kagan and Sonia Sotomayor.

[1] Beach Boys label after Katy Perry’s “California Gurl”

[2] Prop 8, Rational Basis, and the SCOTUS … oh yeah, and Edward Chemerinsky too

[3] Proposition 8 was passed by California voters in November 2008.

[4] Andrew Koppelman, a professor at Northwestern Law School

Goodbye Justice Stevens!

Well, since I am heading off to the Padre’s season opener in a few hours with my Dad and brother, I figured I would start this blog with Justice Steven’s link to baseball history. It turns out that Justice Steven’s was in attendance at Wrigley on one of the most famous moments in baseball/American history – the day that Babe Ruth called his shot. Yes, the stuff of legends, but when an authority such as Justice Stevens vouches for it, we know it must have happened. Here is his account of that day’s events:

“My dad took me to the game. We had box seats behind third base, about fifteen rows back. There are millions of people who claim to have been there, but I can assure you we were. I saw it and it was really something. There was a byplay going on between Guy Bush and Babe Ruth. I don’t remember what the issue was, but they were razzing one another. Bush came out of the dugout and yelled something at Ruth. I thought Babe was responding to Bush and pointed his bat at the scoreboard. I remember thinking he was saying, ‘I’m going to knock you to the moon’ or something like that. It seemed to be part of the interchange. I didn’t interpret it as saying ‘I’m going to hit a home run’, which of course he did. He then hit the next pitch out of the ballpark.”

Truly an incredible first hand account of one of the greatest moment’s in baseball history. The only other one I think could compare would be “The Iron Horse” Lou Gehrig’s “Yet today I consider myself the luckiest man in the world …” speech. It turns out that Steven’s was an avid Cubs fan and his dad took him to the game that day. I like his proclamation “there are millions of people who claim to have been there” because that is truly one of those events that everyone claims to have seen in person – but Stevens was one of the lucky few to have actually been there.

There is more about Stevens that I didn’t know. Here are a few of the other gems I came across in my reading:

  • Born into a prominent Chicago family, his family operated what was then the largest hotel in the world
  • Served 34 years on the Supreme Court
  • Served in the Navy in World War II, signing up on Dec. 6, 1941
  • Republican
  • Became the senior justice in 1994 with the retirement of Justice Harry A. Blackmun.
  • Has written more than 600 dissents over the years,
  • Never joined the “cert. pool,”
  • Nominated in 1975 by President Gerald R. Ford, who said all he wanted was “the finest legal mind I could find”

And for that, we must thank President Ford, because he truly did find one of the finest legal minds in our country. A jurist that seems to understand the everyday implications of the law, as well as the duty to follow the rule of law – much the same qualities President Obama looks to find in Steven’s replacement.

We will miss you Justice Stevens!

The arrangement under which the justices share their law clerks and have them produce a single memorandum making a recommendation about whether the court should hear each of the more than 7,000 appeals that reach it each year.

Supreme Court to Weigh in on Reasonable Expectation of Privacy in Email & Text

Today, the Supreme Court announced that it will rule for the first time on whether government employees have a reasonable expectation of privacy when they send electronic messages on digital devices supplied by their governmental employers. At stake are employer’s and employee’s privacy rights in our new digital age and how far a government employer may go to monitor the private communications of its workers if they believe that the use of such equipment is being abused. The Court will hear oral arguments in the spring.

Last year, the 9th Circuit Court of Appeals broke new ground when they ruled that the police chief’s inspection violated the officers’ rights under the 4th Amendment because the police officers had a “reasonable expectation of privacy” in their text messages, despite the fact that the phones were supplied by the police department. The 9th Circuit also found the wireless company violated the federal Electronic Communications Privacy Act when it turned over the messages without the consent of Quon.

The 9th Circuit’s ruling was the first from a federal appeals court to hold that the Constitution protected the privacy rights of workers who were using electronic devices supplied by their employer. Until the decision, most judges had said employers who provide computers, cellphones or texting devices for their workers were entitled to control how those devices were used. Traditionally, courts have stated that private communications – even when delivered or transmitted through a public portal – are generally protected from “unreasonable search and seizure.” However, this has usually involved handwritten letters sent in sealed envelopes through the U.S. Postal Service, not text messages and emails transmitted through ISPs (Internet Service Providers) on employer owned phones.

The justices agreed to hear Quon’s case after his text messages – many of which were sexually explicit – were read by the police chief. Most employers, including the city of Ontario, have a formal policy stating that employees have no privacy rights when sending e-mails or other messages. Further, the city even told employees it “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.” And the department’s “Computer Usage, Internet and E-mail Policy” only gives workers limited use of government owned devices for personal communications. Quon even signed a statement acknowledging that “use of these tools for personal benefit is a significant violation of City of Ontario Policy” and that “users should have no expectation of privacy or confidentiality when using these resources.”

The problems for Quon began because he went over the texting limit supplied by the phone supplier. When his police chief asked to see the messages to determine whether the devices were being used for mostly personal messaging, Arch Wireless Company (which provided the texting service) turned over transcripts to the chief. It was only in reading the transcripts voluntarily provided by Arch Wireless from its electronic archives that the racy messages to his wife, his girlfriend and a fellow officer were revealed. This prompted an internal department investigation and Quon was eventually fired after more evidence was uncovered.

A one month review found that Quon had sent and received 456 personal messages while on duty – an average of 28 per shift – and only three were deemed work-related. The federal court judge had characterized sexually explicit in nature, and not “light personal communications,” as defined in the policy as generally acceptable. The 9th Circuit ruled for Quon because “the [police] department opted to review the contents of all the messages, work-related and personal, without the consent of Quon, we held that the search was excessively intrusive in light of the noninvestigatory object of the search.”

It is important to remember that this case deals with government employers and employees, and legal and technology experts are divided over its application in the private sector, where employees may enjoy less constitutional protection.

The case is USA Mobility Wireless Inc. v. Quon (08-1332). You can read more here.