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Stephen Colbert Asked to Change Television Persona

Stephen Colbert, known for his political satire and witty social commentary, has inadvertently run into some intellectual property issues regarding his persona. Formerly of “The Colbert Report” which was the intellectual property right of Viacom, Colbert is now the host of “The Late Show” on CBS. Viacom insists that the Stephen Colbert persona and image no longer be used, as it is their intellectual property. Colbert aimed to create an alternate persona by identifying himself as “Stephen Colbert,” a twin identity to his well-known and celebrated image. This is not likely to hold much weight in court if a lawsuit is initiated.

The “Character” of Things

There are many different angles to this issue. For one, there is an obvious copyright implication. In the copyright world, stock characters generally are not given protection. Under the Copyright Act, before something is given copyright protection, the work must meet a certain level of creativity. A stock character, such as a cliché action hero is not given protection because it is generic and lacks the threshold creativity to warrant protection.

However, in this case, the Stephen Colbert persona is quite unique and is associated with the satirist himself and not a particular genre or other individuals in the same field. Of course, this is a matter that would be decided by the jury. If the jury associate the Stephen Colbert persona with Stephen Colbert himself and not that genre, then Viacom has a strong claim of intellectual property over the persona. Colbert

When it comes to a character, such as Bart Simpson or Batman, the question of whether there is copyright over that particular character depends heavily on the medium. Copyright law treats literary characters quite differently from visual characters. The standard is higher for a literary character. A literary character such as Tom Sawyer will be protected as a copyright work only if that character is essential to the story being told. In other words, if a character is merely an afterthought, then that character will not receive copyright protection. On the other hand, a visual character does not require the same standard.

For example, the xenomorph from the movie Alien will only have copyright over it if it is delineated; in other words, if it is fleshed out enough to be identified on its own. This is a lower standard and is easily met. Here, as Colbert is a visual character, it only has to meet this lesser standard. It goes without saying that the Colbert persona is a character with enough depth and substance to stand on its own, and as a visual character nonetheless, Viacom will be able to meet this standard.

Hence, Viacom might have a good shot at claiming copyright over the original persona developed on “The Colbert Report.” At the same time, Colbert might be able to create his own persona, a la this twin cousin. If the original persona and this doppelgänger of sorts can be viewed as separate concepts by everyday viewers, then Colbert can claim that it is a different character altogether. This will be difficult to do of course as both characters seem quite similar and not enough distinction is between them to set them apart.

Another side to all of this is the work-for-hire doctrine. Under copyright law, if a work has been done on behalf of someone else, the rightful owner of the copyright is the person who requested for the work to be done. In other words, the author or creator of the work doesn’t actually have ownership rights; instead it is the person who commissioned the work. If Viacom can establish that they in fact commissioned the work, which is likely the case as they funded the show and put Colbert on the seat, then they will have copyright over the persona.

Trademark Law

Aside from copyright implications, there are potential trademark issues here as well. Can the Colbert persona be viewed as brand imaging? Is there consumer confusion? There can be a potential trademark to the Colbert persona if it is viewed as a consumer brand. Trademark is easier to establish than copyright, as it is rather easy to place a trademark on something. If Viacom can establish that the Colbert persona is a trademark and that consumers identify with that persona when investing their time or money on it, then it will be deemed a trademark that belongs to them.

Change of Hands

Licensing is a big part of this kerfuffle. If licensing terms are clearly laid out, then it will become quite clear who owns the intellectual property rights to the Colbert persona. Even if Colbert decides to invent an alternate persona, there might be restrictions to this that are expressly stated in the license. Ultimately, this is something that will be addressed if the issue is taken to court.

Pokémon Go Now Catching Lawsuits

Unless you’ve been living under a rock, you probably have heard about Pokémon Go.

Pokémon Go has become a popular national pastime. It is an augmented reality game made for iPhone and Android devices. Once people download the app, they are asked to travel to a fictional world so they can collect every Pokémon creature. What they end up doing is traveling to public places, but also to private properties and places of business in order to “catch them all.” There have also been stories of people getting severely injured, even falling off cliffs or getting hit by cars, while playing the popular game. Now, the creators of Pokémon Go are fielding a slew of lawsuits.

Class Action Lawsuit for Personal Injury

The creators of Pokémon Go may be looking at a class action lawsuit as the amount of people who suffer various personal injuries while playing the game increases. As if texting and driving weren’t bad enough, many players play Pokémon Go while driving, and it’s only a matter of time before one of those players causes a horrific accident.

In Florida, two teenagers playing the game in a car parked in a residential area were shot at by a man who believed they were burglars. A group of young kids playing in Hawthorn, Wiltshire, became lost in caves and had to be rescued. And there are numerous other instances of personal injuries sustained while playing the game.  March of the Pikachu

How does Niantic, Pokémon Company, and Nintendo, the creators of Pokémon Go, avoid liability? The creators included a friendly welcome that warns players to abide by local laws. The game’s terms of service also explicitly state the following:

Players should be “aware of your surroundings and play safely. You agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services.”

There is legal precedent which establishes no liability for the makers of video games. The most famous lawsuit against a video game company was filed by the widow of a teacher who was killed in the Columbine High School massacre. The widow sought $5 billion in damages. The judge ruled that none of the defendants named in the lawsuit were liable for the slain teacher, primarily because “the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.”

But a case against Pokémon Go creators is different. The game very clearly puts people in harm’s way by making them collect characters in these dangerous places – while driving, on private property, in the middle of the street, etc. Nevertheless, they have a very well-crafted statement which states that the players assume the risk of playing the game and that the players are responsible for any personal injuries sustained while playing.

Only time will tell whether a lawsuit against Pokémon Go for personal injuries will hold water.

Invasion of Use and Enjoyment of Private Property

A Michigan couple recently filed a class action lawsuit against Niantic, Pokémon Company and Nintendo, claiming the game has turned their neighborhood into a “nightmare.” Evidently a Pokémon gym and Pokéstop is located near their private cul-de-sac. Players are blocking driveways and parking their cars on private lawns. According to the complaint, players also peer into their windows and even cuss at them when they ask the players to leave.

The lawsuit alleges the placement of Pokéstop and Pokémon Gyms on or near private property constitutes invasion of use and enjoyment. The couple requested that the gym and Pokéstop be removed as stops near their home, but their request was met with generic responses via the company website.

Trump Advisor Wants to Electronically Monitor Those on Terror Watch List

Rudy Giuliani wants to electronically monitor anyone on the terror watch list and, as an advisor to the Trump campaign, one can only assume Trump will soon take the same policy stance. Trump has faced scrutiny for wanting to ban all Muslims from the country and while his political stance has recently softened a bit from his original blanket ban, one can only wonder if this is masked as an attempt to specifically monitor Muslims.

The question came after news of an attack, claimed in the name of ISIS, on a French priest in northern France. One of the attackers was known as a jihadist sympathizer who was being electronically monitored by French officials after being caught twice trying to travel to Syria under a relative’s identification.

“I would think that’s an excellent idea,” said Giuliana. “If you’re on the terror watch list, I should you know you’re on the terror watch list.  You’re on there for a reason.” Monitor

This doesn’t come as much of a surprise, as Giuliani has a history of monitoring the Muslim community. In 1993, following the World Trade Center bombing, Giuliana put undercover agents inside mosques. Surveillance of the Muslim community only increased in New York after the 9/11 attacks, which included photo and video surveillance, police informants, and databases with personal information on innocent Muslims throughout the community.

Is This Type of Monitoring Even Legal?

Electronic monitoring isn’t a new concept. GPS tracking devices have been put on criminals when on house arrest, similar to the monitoring plan in France mentioned above. Sex offender registries are also electronically monitored. Although these type of registries don’t electronically monitor your every move and whereabouts, in depth personal information is included.

A major difference between those on house arrest and a sex offender registry versus those on the terror watch list is primarily a conviction—many on the terror watch list haven’t been convicted of anything and, even worse, many are put on there in error.

Today, approximately 680,000 people are included on the terror watch list. As with the no fly list, because of the number of errors and low standards of factual evidence required, there’s a lot of scrutiny surrounding the legality of these type of watch lists.  People can be listed even if they have no recognized terrorist group affiliation; it can even be something as simple as being associated with someone else the government deems a risk.

On top of that, the lists are notorious for ethnic and religious profiling, where American Muslims are disproportionately represented. Dearborn, Michigan, an area with the highest concentration of Arab Americans, has the second highest number of watch-listed individuals in the U.S.

So, Where Do We Draw the Line?

In 2012, the Supreme Court decided that GPS devices mounted to a vehicle qualified as a search within the meaning of the 4th Amendment, which called into question North Carolina’s law that requires convicted sex offenders to wear electronic GPS anklets for the rest of their life.  North Carolina needed to provide an explanation as to why the law did not violate the Constitution.  The 4th Amendment only prohibits unreasonable searches, so, if this is the direction Giuliani and the Trump campaign wants to take, they’ll have to come up with valid and reasonable explanation as to why it’s reasonable to electronically monitor those on the terror watch list.

Reasonableness depends on the totality of circumstances and the extent to which a search intrudes on privacy expectations.  Obviously, the government is typically given broad discretion when it comes to topics like national security.  There’s a heavy argument that national security trumps privacy expectations, at least to a point, so it’s possible this would fly.  But, is it really reasonable?

When you consider the fact that the monitors track a suspect’s whereabouts, at the end of the day, that’s probably not really going to prevent much. The attack in northern France happened while the suspect’s anklet was turned off during a time he was allowed to go to work.  He headed into a church and, just as with any other public place an individual is allowed to be, that doesn’t really do much to alert the authorities you’re up to no good.

Even though terror threats are a strong argument, an otherwise discriminatory rule requiring only certain persons to wear the electronic tags would no doubt be unconstitutional.

Is It Still Murder If You Shoot Your Friend in the Head Because He Asked You?

A strange form of what he claims to be assisted suicide, a man shot his friend of 40 years in the back of the head, claiming he only did so because his friend asked him to. Originally claiming he had nothing to do with the victim’s death, the man changed his tune after a couple hours into his interrogation and then claimed it was a staged suicide.

Beong Kwun Cho and Yeon Woo Lee were long-time friends, so close that Cho’s daughters even considered Lee an uncle, according to Cho. While being interrogated for Lee’s murder, Cho claimed a few months prior to his death Lee asked him for a favor.

Cho told officers that Lee expressed his business was failing, his marriage was falling apart, and that he wanted to die, but didn’t want to disgrace and burden his family with the trauma of a suicide.  Cho further claimed that Lee said he was unable to hire a “hit man” to complete the job, so he, instead, asked Cho to do it.  Don’t worry, it gets even stranger. Cho

According to Cho, Lee even orchestrated his own death. Lee bought the gun and ammunition, scouted possible sites for the death, arranged for the duo to attend target practice at a local gun range, and even went as far as taking Cho to buy black knit gloves and size 13 shoes as props to make his death look like a robbery gone bad, as well as chose the date of his death.

His wife’s birthday, nonetheless.  After driving separately to the location, Cho claims his friend flattened his own tire, ransacked his own car, smoked a cigarette, handed Cho the revolver, and knelt with his back before Cho to die.

Keep talking to me so that I won’t know when I’m being shot. And while I’m talking…shoot me in the middle of our conversation.”

The story isn’t entirely implausible, but Cho may not have been so innocent after all. After pressing him further, the investigating detective discovered a whole slew of slew of reasons Cho had for hating Lee. Among the motives driving his hatred, Cho claimed his family lost their home to debt collectors as a result of a bad business deal Lee made for him. He also claimed Lee was blackmailing him and sexually assaulted his wife.

Would you believe him?

Is Assisted Suicide an Affirmative Defense to Murder?

Generally, to be guilty of a crime, you need to both commit the crime that’s prohibited by law and have the intent or mental state required by law when committing the crime. The latter is where an affirmative defense could come in.  Affirmative defenses are legal excuses or justifications for committing a crime.  Although states vary in what they consider a valid affirmative defense, generally they include:

  • Self defense
  • Necessity defense
  • Entrapment defense
  • Insanity defense
  • Intoxication defense (this one’s a bit trickier and some states won’t recognize it)

As far as I know, shooting someone in the head just because they asked you to doesn’t qualify. In fact, the crime of murder doesn’t care what the motive is and no law allows mitigating factors for a mercy killing. In People v. Roberts, a Michigan Supreme Court case from the 20’s, upheld a murder conviction of a man that gave poison to his very ill wife because she asked him to.

Nevertheless, motive always plays a role in the decision of the jury and this case was no different.

Jury Bought Cho’s Story, At Least Partially

After a two-week trial, the jury found Cho guilty of voluntary manslaughter, a much lesser charge than murder.

Cho’s main argument at trial centered around the fact he claimed he had no intention of actually going through with Lee’s plan up until the very moment he pulled the trigger, claiming that he only did so in a “heat of the passion” moment because Lee was saying upsetting things about his wife and daughter.  Robert Kohler, Cho’s attorney, argued the jury needed to understand the importance of the Korean culture and the effect suicide has on bringing shame upon an entire family, not just the one that commits the act.

The state argued otherwise, that Cho had a clear intention to follow through with the plan when he arrived at the scene the night of the killing.

Did the Jury Get It Right?

The fact that Cho drove to the location, put on size 13 shoes and a pair of black gloves, is telling of the fact that he at least had some inclination to follow through prior to pulling the trigger. Crimes committed in the “heat of the passion” are commonly used as mitigating factors in crimes, but there seems to be plenty of evidence in this instance to show this wasn’t the case and that shouldn’t be enough to mitigate murder down to manslaughter.

Cho is set to be sentenced on September 23rd and faces a possible 21 years in prison, which is significantly less than the possible life sentence, or even death, he faced under the murder charge.

Life Sentences for Possession of Marijuana Remains Legal

Who would have ever thought you could get a life sentence for simple possession of marijuana? If you’ve been convicted of certain prior felonies, four states mandate a life sentence enhancement without the opportunity of parole for possessing marijuana, even in small amounts.

Lee Carroll Brooker, a 75-year-old Alabama resident currently serving a life without parole sentence, was convicted under Alabama’s Habitual Felony Offender Act for growing about three dozen marijuana plants in his son’s backyard.

Brooker has multiple chronic ailments and had absolutely no intention of selling the marijuana. Prosecutors conceded the fact that the plants were for Brooker’s own personal medicinal purposes, but despite that fact, Brooker was still charged and convicted.

Brooker’s prior felonies consisted of a slew of robberies, all of which he served a total of 10 years in prison for those crimes. Although the sentencing judge wished he could offer a different sentence, the judge had no choice but to impose a life sentence. Alabama law mandates a life sentences in case histories like Brookers.

Brooker filed a Writ of Certiorari to the Alabama Supreme Court asking the Court to consider whether his sentence violated the 8th Amendment’s cruel and unusual punishment clause. The Court ultimate denied Brooker’s request to review the case. Chief Justice Roy Moore concurred with the Court’s decision, but wrote separately expressing that he believed Brooker’s sentence was “excessive and unjustified” and that sentencing judges should have discretion to choose a lesser sentence. Life Sentence

Referencing the life imprisonment sentencing law, Justice Moore further wrote, “I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose.” The U.S. Supreme Court also denied to review Brooker’s appeal, leaving him to spend out the rest of his days in prison.

Is Brooker’s Punishment Cruel and Unusual?

How in the world is that justified that a person can serve 10 years for robbery, but a life sentence for simple possession of marijuana? Even more so when you consider the fact that Brooker’s plants weighed in at a grand total of 2.8 pounds…including unusable parts like stalks and leaves. Alabama law mandates a life sentence for 2.2 pounds or more. That’s less than a half-pound difference that got Brooker a life sentence. Oh, and don’t forget marijuana is now legal in 24 states and D.C. for medicinal use and 4 states for recreational use.

Brooker was allowed to remain free and out of jail after his conviction while he awaited sentencing, so he was clearly not a threat to society. Brooker received a punishment that’s typically given to an offender that’s committed a violent crime.

Life sentences, according to the Bureau, are rare with a whopping 1% of total prison sentences. The U.S. Department of Justice released statistics reporting that in the year 2000, the average sentence length in state courts for murder was nearly 20 years and 8 months.

That’s right—Brooker received a longer sentence than a murderer simply because he had prior felony convictions. Among the 8,600 persons convicted of murder or non-negligent manslaughter, only 23.3% were sentenced to life in prison.

To top off those statistics, federal law mandates a minimum sentencing of 3 years for possession of marijuana and that’s only after a 3rd offense. Under federal law, a person would have to cultivate at least 1000 plants before a life sentence would even be an option and the minimum sentence is only 10 years. Brooker had roughly 36 plants. This means under federal law, a sentencing judge has the option to choose a mere 10-year sentence, the minimum, for growing 1000 plants and is not required to direct a life sentence. The same goes for selling 1000 kg or more of marijuana.

Most states mandate a maximum sentence of five years for possession of less than three pounds of marijuana.

When Would a Life Sentence Be Justified For a Non-Violent Drug Crime?

In terms of severity, life without parole is the second worst punishment an offender can get. The first is the death penalty. Mandatory life sentences shouldn’t exist for any crime and in no instance should a life sentence be warranted for possession of marijuana.

Even in states that don’t have the life sentence enhancement for habitual offenders, some still have three-strikes laws that can send someone away for life. It doesn’t seem justifiable to sentence someone to die in prison for simple possession of marijuana. Currently, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma all sentence nonviolent offenders to life without parole for nonviolent crimes. Mississippi alone requires life sentences for being convicted of possession for barely one ounce of marijuana.

Mandatory death sentences and mandatory life without parole sentences for juveniles have already been banned. The Supreme Court did so on the basis that the 8th Amendment must adapt to “evolving standards of decency that mark the progress of a maturing society.” With the ever-changing views of marijuana and as more states begin to legalize, the court may be forced to review the issue in the future and in turn, force legislatures to change their minimum sentencing standards.

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