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Archive for January, 2015

Selma – The Screenwriter’s Dilemma

Posted on: January 30th, 2015

By: Seth F. Kirby

The movie Selma, which chronicles Dr. Martin Luther King Jr.’s 1965 voting rights campaign, has received critical acclaim and an Oscar nomination for best picture.  It has also generated controversy due to the Academy’s failure to nominate its lead actor and director for awards, which in the eyes of some is indicative of racial bias in Hollywood.  Interestingly, another potential controversy hidden within the film has apparently been avoided through the careful consideration of the film’s director and screen writer.  Their actions will certainly receive the thanks of the film’s insurers, but historical accuracy has been sacrificed to avoid copyright claims.

Dr. King’s speeches are protected by copyrights held by his estate.  In 2009, the estate licensed the speeches and the rights to his life story to Stephen Spielberg’s DreamWorks production company for use in a picture to be produced by Mr. Spielberg.  Due, in part to this licensing agreement, and in part to a reluctance to seek permission from the King family for right to use the speeches, Selma’s director sought to find a way around the problem.  The solution was simply to rewrite Dr. King’s speeches in an attempt to avoid copyright infringement.  By way of example, in the film Dr. King speaks at a funeral and asks “who murdered Jimmie Lee Jackson?”  His actual question was “who killed him?” Separately, Dr. King’s impassioned plea to “give us the ballot” was changed to “give us the vote.”  I am pretty sure that such minor alterations would not have saved me from a charge of plagiarism in my high school English class, but it is presently viewed as a sufficient change to avoid the ire of the King family.

Assuming that the film production maintained some form of liability insurance, which is almost guaranteed, it may afford the film protection from claims of copyright infringement.  While film production liability policies are somewhat unique, standard commercial general liability polices provide coverage for copyright infringement claims under “Coverage Part B,” which provides coverage for certain alleged “Personal and Advertising Injuries.”  Under such policies, coverage is provided for negligent infringement of a copyright, but excluded for knowing/intentional violations.  The workaround used in Selma presents a coverage dilemma.  The screenwriter was aware of the copyright and the potential that that the film would infringe on the protection yet he attempted to avoid a violation and may have subjectively believed that his alterations were enough to avoid a claim.  Is his objective belief enough to avoid the application of the policy exclusion, or would coverage be voided if the words used violate the copyright?

Hopefully, the film will avoid generating any claims associated with Dr. King’s copyrights and no one will be forced to wrestle with this coverage question or related defenses of fair use.  It is a shame that Dr. King’s actual words were not used in the movie.  In an age when our knowledge of history is reduced to what we see on film, Dr. King’s oratory has been purposefully altered, thereby shaping our memory and potentially diminishing the power of his words.  I hope that Mr. Spielberg has better success in historical accuracy in his project.  “I possess a desire” just doesn’t have the same impact.

Upcoming Deadline for H-1B Applications

Posted on: January 23rd, 2015

By: Nina Maja Bergmar

If your company is looking to a hire a foreign national at some point during the 2016 fiscal year, be aware that the deadline for submitting H-1B visa petitions is quickly approaching.

The U.S. Citizenship and Immigration Services (USCIS) will start accepting applications on April 1, 2015, for H-1B visas effective starting October 1, 2015. Under the current cap system, the USCIS allots a mere 65,000 visas per year for applicants with a Bachelor’s degree and 20,000 additional visas for applicants with advanced degrees.[1]

Last year, the USCIS announced on April 7 that it had received approximately 172,500 applications within the first 6 days of the filing period—more than twice the number of visas available under the cap. The USCIS thus performed a computer-generated process to randomly select 85,000 visas, which it then proceeded to review. All other applications were rejected outright.

This year, the USCIS is likely to receive at least as many applications as last year. It is therefore crucial that any employer who has identified a foreign national whom it wishes to hire in a specialty occupation take preparatory steps and/or seek legal assistance at its earliest convenience.


[1] On January 14, 2015, Republican and Democratic senators introduced a bill that would increase the H-1B Visa cap to 115,000 and allow a further increase of up to 195,000 visas depending on actual market demand. While analysts say the proposal is likely to pass both houses, employers are unlikely to see any changes in the caps during this year’s H-1B cycle.

TripAdvisor Defamation Case Dismissed Due to Media Shield Law

Posted on: January 21st, 2015

By: Matt Foree


As discussed in this blog previously, defamation attorneys and free speech advocates are anxiously awaiting the Virginia Supreme Court’s decision in the Yelp, Inc. v. Hadeed Carpet Cleaning matter as to whether Yelp is required to turn over identifying information regarding its anonymous reviewers.  That court heard oral argument in October such that a decision should be forthcoming early this year.

In the meantime, a defamation case filed in Oregon by a hotel based on a negative TripAdvisor online review has been dismissed based on that state’s media shield law.  In the Oregon case, an anonymous user (“12Kelly”) posted negative comments on TripAdvisor about a hotel, the Ashley Inn and Suites.  The review included comments such as “laundry and housekeeping are either high or drunk,” “breakfast is nasty, the rooms are nasty,” and “the owner smokes weed.”  The Inn filed a defamation lawsuit and sought to obtain the identity of the reviewer.  The court held that Oregon’s shield law protected TripAdvisor from having to reveal the identity of the anonymous poster.  Without a defendant to sue, the case was dismissed.

Oregon’s media shield law, enacted in 1973, prevents the disclosure of certain information, by subpoena or otherwise, by any person “employed by or engaged in any medium of communication to the public.”  Among other things, the law prevents the disclosure of the “source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public.” As such, the law was clearly intended to apply to reporters in media such as newspapers and magazines.  Accordingly, the Oregon court’s interpretation of this statute seems overly broad.

It remains to be seen whether other state courts will follow suit by relying on shield laws to prevent disclosure of anonymous users in such cases, but in the meantime, the result is unsatisfying for business owners seeking to protect their reputations against anonymous reviewers.

Freeman Mathis & Gary, LLP Partner Argues to the United States Supreme Court

Posted on: January 20th, 2015

Freeman Mathis & Gary, LLP                                                        For Immediate Release: 

Contact: Philip W. Savrin                                                                January 20, 2015

[email protected]

(770) 818-1405


Freeman Mathis & Gary, LLP Partner Argues to the United States Supreme Court


Atlanta, GA.  Freeman Mathis & Gary, LLP partner, Philip W. Savrin, argued in front of the United States Supreme Court today, assisted by firm members Dana K. Maine and William H. Buechner.  The case, Reed v. Town of Gilbert, involves a significant First Amendment issue regarding a government’s ability to regulate signage within its jurisdiction.  Mr. Savrin represents the Town of Gilbert, Arizona in this matter brought by a local church, Good News Community Church.  The church is being represented by the Alliance for Defending Freedom which explains on its website that its mission as “an alliance-building legal organization that advocates for the right of people to freely live out their faith.”

The church claimed the town’s regulation of qualifying event signs violated its First Amendment rights because there were more lenient standards for other types of signs.  The church maintains that the qualifying event signs both invite people to its services and guide travelers to the location of the services.  Because of the directional component, the town treated the church’s signs as qualifying event signs instead of invitation signs. Qualifying event signs must be smaller and must be removed shortly after the service has ended.  The town’s regulations allow invitation signs (regulated as “ideological signs”) to be larger and have no time regulation.  Nothing prevents the church from putting up an ideological sign, but the church has chosen to go the litigation route instead.

According to Mr. Savrin, “the questioning was very lively and clearly the justices are struggling with the parameters of the First Amendment for all regulations, including signs, parades, and demonstrations.  However they rule, clarity is much needed in this area of the law.”

A decision is expected by June.

US Supreme Court Rules TCA Requires Timely Written Reasons for Denial of a Cell Tower Permit

Posted on: January 16th, 2015

By: Kevin Stone and Dana Maine


Earlier this week, the United States Supreme Court, in T-Mobile South, LLC v. City of Roswell, Georgia, clarified the rules for what a local government must do when it denies an application for a telecommunications tower.  In an exercise of statutory interpretation, the Supreme Court concluded that the federal Telecommunications Act requires local governments to provide written reasons when they deny these applications.  Roswell met that requirement by relying on the detailed minutes of the hearing at which the decision was made.  The Court cautioned, however, that although not required, it might be more beneficial to provide the rationale in a separate statement, which would provide a clear explanation of the rationale and avoid the risk that a reviewing court would misinterpret the minutes.  In the end, the reasons need not be elaborate or sophisticated; they need only be clear enough to enable judicial review.

The fatal blow to Roswell was that it waited too long (26 days) after issuing its denial to provide or make available its written rationale.  The Act allows an entity whose application was denied to seek judicial review within 30 days of the denial.  In order to ensure that entities whose applications were denied have the full 30-day window to make a decision as to whether to seek judicial review, the Court held that a local government must provide or make available its written reasons at essentially the same time as it communicates its denial.  The Court explained that the timeliness requirement would not unduly burden local governments because they have between 90 and 150 days, depending on the circumstances, to issue denials.  Thus, if the government cannot promptly provide its reasons, it can “delay its denial within this 90- or 150- day window and instead release it along with its reasons once those reasons are ready.”  Local governments will need to work with their attorneys to decide how to not prejudge an application on which the governing body must vote but be prepared to provide a written document at the same time as the vote.

The bottom line is that when a local government denies an application covered by the Act, the government should, at essentially the same time as it communicates the denial, provide or make available written reasons that are clear enough to enable judicial review.