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Quick Reminder: Your Name Is Not Copyrighted

April 23, 2016 by Jay Leave a Comment

Background: Popehat covered a tenuous grievance filed over an April Fools satire in the University of Wisconsin-Superior’s student newspaper.  A UW-Superior student responded to Popehat’s coverage, to which Ken White replied here.  One of the greivances within the student’s missive was Popehat’s use of the complainants’ names without their express prior consent:

First of all, you’re using the name of Ilana Yokel and Debbie Cheslock without their consent and you attacked them on a personal level, which is a terrible thing to do.

(source)

Ken’s response was correct and succinct:

First: Mr. Doe, I do not need anyone’s consent to speak or write their name. There is no legal requirement that I obtain someone’s consent before expressing myself about them, and any such requirement would violate the First Amendment to the United States Constitution. Moreover, you have implied that I need people’s consent to write about them even after they have given quotes to newspapers about an issue of public interest, which takes your complaint from silly to utterly ridiculous.

(source)

Admittedly, this post is inspired by something that was not in the student’s letter, but I expected to see based on this kind of lukewarm assertion of privacy: A claim that the individuals’ names are subject to copyright, and that identifying them constitutes copyright infringement.  Given the letter’s shaky basis for claiming Popehat could not use the names of the people central to the story, why not double down and invoke the Copyright Act? Right?!

This seems laughable, but presumably it must work sometimes, because people keep trying it.  Some have tried–unsuccessfully–to claim copyright protection in band names, Domsalla v. Stephens, Case No. 3:00-cv-2763, 2001 U.S. Dist. LEXIS 5845 at *4-5 (N.D. Tex. May 3, 2001), and even car parts. Aftermarket Tech. Corp. v. Whatever It Takes Transmissions, Case No. 3:00CV-326-R, 2003 U.S. Dist. LEXIS 27933 at *37-46 (W.D. Ky. Aug. 12, 2003).  Short names and titles lack the originality necessary for copyright registration, though, and will be denied registration and any form of protection under the Copyright Act.

The clearest source of this limitation on copyright protection comes from the Copyright Office itself, in the form of Circular 34, last revised in October of 2015.  Right off the bat, the two-page document strikes claims that names are subject to copyright between the eyes:

Copyright law does not protect names, titles, or short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright. The U.S. Copyright Office cannot register claims to exclusive rights in brief combinations of words such as:

  • Names of products or services
  • Names of businesses, organizations, or groups (including the names of performing groups)
  • Pseudonyms of individuals (including pen or stage names)
  • Titles of works
  • Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
  • Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.

(source)

While the scope of copyright protection under 17 U.S.C § 102 should make this clear, Circular 34 reaffirms this principle.  Names are not copyrightable, and anyone claiming otherwise is wrong.

Filed Under: Copyright, Federal

Punitive Damages for Defamation in Nevada

April 5, 2016 by Jay Leave a Comment

The winds of tort reform have had some effect on Nevada, but it has been limited on claims for defamation, as seen in Chapter 42 of the Nevada Revised Statutes.  Under NRS 42.005(1), punitive damages–damages awarded to punish deliberate and especially reprehensible conduct–normally are capped at $300,000 for recovery under $100,000, and 3 times the recovery for amounts over $100,000.  There are exceptions to this rule, though, and defamation is one of them. NRS 42.005(2)(e).

The language of NRS 42.005(1) generally attempts to fit in with the United States Supreme Court’s prior holdings on punitive damages.  A popular line of attack on punitive damages is that the court’s award of them eventually crosses the line from being intended to punish the defendant and transforms into an unlawful taking under the Fourteenth Amendment’s due process clause.  While NRS 42.005 has not been updated since 1995, its language generally aligns with the United States Supreme Court’s guideposts on the award of punitive damages.

The U.S. Supreme Court’s Constraints on Punitive Damages

The Supremes’ trend line on punitive damages has been downward for roughly two decades.  In 1996, the United States Supreme Court noted that it previously upheld a punitive to actual damages ratio of up to 10-to-1, and that a 4-to-1 ratio before the court in another case was “close to the line” (although ultimately proper), but the 500-to-1 presently before the court ratio violated the Fourteenth Amendment’s due process clause. BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).  Less than a decade later–virtually the blink of an eye in the glacial realm of Supreme Court jurisprudence–the high court revisited this issue in State Farm v. Campbell, 538 U.S. 408 (2003).  In State Farm, the ratio at issue was a $145 million punitive damages award based on $1 million in damages.  While lower than the 500-to-1 ratio in BMW, the court rejected it out of hand.  It also led the Supreme Court to be more explicit about what it considered a proper damages ratio that would satisfy the Fourteenth Amendment’s due process clause:

The [BMW] Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish. While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1, [as in BMW], or, in this case, of 145 to 1.

(Internal citations omitted.)

This leads to the Supreme Court’s 2008 decision in Exxon Shipping Company v. Baker, which arose from the Exxon Valdez crash and oil spill of 1989. 554 U.S. 471 (2008).  In that case, the Supreme Court revisited the issues from BMW and State Farm, delving yet again into the question of punitive damage ratios.  The Supreme Court stated that there is a maximum 1:1 punitive damages ratio…in maritime cases.  While the Supreme Court did explicitly qualify its holding as applicable only to maritime cases, its proclamation that a 1:1 ratio was “a fair upper limit” in any circumstances would qualify as what Scott Adams calls a “linguistic kill shot” – a set of words that changes or ends a debate.  Despite the narrow applicability of the 1:1 ratio in Exxon, the fact that it existed changed the terms of engagement for parties disputing punitive damages; its creep into other bodies of law, just like the expansion of the death of presumed irreparable harm following eBay Inc. v. MercExchange L.L.C.,  547 U.S. 388 (2006), was as certain as the 1:1 ratio that the Supreme Court committed to paper.

So what does this mean for Nevada’s ostensibly unlimited punitive damages for defamation under NRS 42.005(2)(e)?

How the U.S. Supreme Court’s Rulings Bear on Punitive Damages for Defamation in Nevada

After BMW and State Farm, the Nevada Supreme Court had occasion to consider how the Fourteenth Amendment’s due process clause interacted with an award of punitive damages in a defamation case.  In Bongiovi v. Sullivan, a patient considering plastic surgery met with numerous doctors, including the parties, creating the facts for a defamation claim.  122 Nev. 556, 138 P.3d 433 (2006).  According to the court’s opinion, on two separate occasions, the defendant doctor told the prospective patient that the plaintiff doctor had recently killed a woman while performing the same procedure she was considering. Sullivan prevailed at trial, and the jury awarded actual damages of $250,000, and an additional award of $250,000 in punitive damages.  Bongiovi appealed the jury’s verdict.

Acknowledging both BMW and State Farm, the Nevada Supreme Court supplanted its own punitive damages analysis with the United States Supreme Court’s:

Although Nevada’s standard for excessiveness varies only slightly from the federal standard, its variation makes it necessary to analyze a punitive damages award under both standards because there may be instances where an award would not be deemed excessive under Nevada’s standard but would nonetheless violate a litigant’s due process rights, or vice versa. Therefore, in the interest of judicial economy and because the standards are similar, we conclude that Nevada’s standard for excessiveness should be replaced with the federal standard for excessiveness. By adopting the federal standard in Nevada, the necessity for both a state and federal review for excessiveness is obviated. Accordingly, the proper standard for reviewing excessiveness of a punitive damages award in Nevada is the federal standard’s three guideposts previously stated.

Based on this federal precedent, the Bongiovi court upheld the $250,000 punitive damages award, finding that the jury could have awarded three times that amount even under NRS 42.005(1)(a).  This decision did not present the Nevada Supreme Court with the opportunity to test the upper limits of a single-digit ratio that exceeded three times the plaintiff’s actual damages under the Fourteenth Amendment’s due process clause.  While the Nevada Supreme Court edged closer to this issue in Prestige of Beverly Hills, Inc. v. Weber, 2012 Nev. Unpub. LEXIS 422 (2012), an unpublished decision, it does not seem to have yet conclusively addressed this issue.

Consequently, the seemingly unlimited punitive damages allowed under NRS 42.005(2)(e) are subject to those that the due process clause would enforce upon them.  As seen in Bongiovi, though, this would not necessarily limit a significant punitive damages award.  As a recent example, Hulk Hogan’s invasion of privacy case against Gawker, arising from the unauthorized distribution of his sex tape, yielded a $115 million verdict for his actual damages, and a punitive damages award of $25 million.  (As of this writing, Gawker is in the midst of post-verdict motions and stated that it intends to appeal the verdict.)  It is not automatic that the due process clause will arise as an obstacle to sustaining an award of punitive damages.  Instead, it can even be used as a shield to protect such an award on appeal; even the Exxon case can be useful to show the constitutional soundness of a punitive damages award that is a fraction, rather than a multiple, of a damages award.

Like everything in life, something that sounds too good to be true likely is.  The prospect of unlimited punitive damages is no doubt appealing to many lawyers and parties.  While the due process clause may not whittle down many or even most punitive damages awards, it does stand as a limiting force on the otherwise “unlimited” punitive damages allowed for defamation under NRS 42.005(2)(e).

 

Filed Under: Nevada, Nevada Supreme Court, United States Supreme Court

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