Would You Like Broccoli With That Health Insurance Plan? The Supremes Discuss The Slippery Slope Of ObamaCare

Broccoli, cell phones and burial services, oh my! What will the government force us to buy next? The parade of horribles was the topic du jour at Tuesday's oral argument before the US Supreme Court on the constitutionality of the individual mandate contained in the Affordable Care Act. The Supremes expressed concern over the slippery slope potentially created by the ACA and where the line should be drawn. At issue is whether the individual mandate of the ACA is authorized by the United States Constitution art. 1 sec. 8 clause 3, the Commerce Clause, which gives Congress the power to regulate interstate commerce. The Supreme Court has, over the past 190 years, interpreted the Commerce Clause to allow congress to regulate all sorts of industries, from ship navigation, to the Chicago meat industry, to wheat production for personal use.


Justice Scalia, notorious for his conservative legal opinions, asked the first question of Solicitor General Donald Verrilli, setting the tone for the day. Scalia queried, perhaps disingenuously, why couldn't the federal government just directly address the problems of individual access to health care rather than the individual mandate to purchase health insurance. The answer of course, is that the present Congress will not create a public health care option. Appropriately, Mr. Verrilli did not give this answer, but offered instead that the ACA is in fact addressing the problem directly.


The Justices' questions centered around the concern that if Congress can require individuals to purchase health care, why can't Congress require the purchase of a cell phone, of broccoli, of health club memberships or of funeral services? Verrilli;s answer to these questions pointed out the health care market is different because (a) it is the only market where you can show up without the means to pay and you will still be provided the service at the expense of those who do pay; (b) everyone will eventually need health care and thus everyone is a market participant; (c) the ACA seeks to regulate the health care industry, not the insurance industry, and requires the method of payment for health care be through health insurance; (d) the ACA uses the most efficient method that allows consumer choice among insurance policies; and (e) the ACA does not provide any enforcement powers--if insurance is not purchased, the penalty is not anymore than what one would have paid for the insurance.


The respondents arguing to strike the mandate did not have any easier a time with the Justices. Attorney Paul Clemente, arguing for the respondent 26 states, argued the ACA forces individuals to purchase a product. Clemente argued that defining the market as those who access health care was improper, and that the market being regulated was those that purchased insurance. Clemente suggested it would be constitutional for the ACA instead to only require that insurance be purchased at the point of sale; i.e. only when one gets sick and shows up to the Emergency Room. The Justices focused their questions to Clemente on issues regarding the definition of the market being regualted (insurance versus health care), the fact that uninsured patients already shift the cost of their health care to paying patients, and what difference does it make if the ACA requires the purchase of insurance prior to getting sick or at the time of receiving health care services.


Justice Breyer proposed a hypothetical situation several times to the respondent attorneys, asking, what if "a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the federal Government say all 40 million get inoculated?" Mr. Clemente avoided answering, which perhaps accounts for Justice Breyer's attempt three more times to get an answer. Justice Breyer then changed the hypothetical to whether the EPA could require all automobiles have anti pollution equipment if it turned out 60% of them caused pollution. Attorney Carvin conceded the commerce clause authorized Congress to enact such a law but pointed out only those who bought automobiles would be required to do so.


The problem with the respondents' argument is they attempt to limit the individuals affected in the market being regulated by the ACA to those purchasing insurance, leading to their protest that Congress is requiring an affirmative purchase of a product that would not otherwise be purchased. To hear the respondents say it, the 40 million uninsured are uninsured by choice, rather than because they cannot afford the premiums, and thus should not be forced to purchase an unwanted product. Justice Ginsberg's comparison of the ACA to the social security system is well taken, albiet, social security is funded by a tax, making it a different animal. The truth is, as many of the Justices pointed out, every person from the time they are born will at some point need to use health care. That is the industry that the ACA targets. The ACA mandates that health care is paid for by insurance, which the respondents concede is a proper Congressional power under the commerce clause. As Justice Kennedy pointed out, "the young [healthy] person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that s not true in other industries." Thus their participation directly affects the price others will pay not just for insurance, but for health care. Health care costs go up because hospitals are required by federal law to treat those who cannot pay for their services, thus shifting the costs to everyone else. The respondents' solution that those who "choose" not to purchase insurance can be required to purchase it at the time they do need health cares serices, is not only unreasonable and naive, but implausible.

As Mr. Vermilli pointed out, 40 million Americans can not obtain health care insurance because of the cost of the premiums. If a point of sale requirement were placed on these individuals as argued by the respondents, the cost of insurance would essentially be the cost of the health service. Actuarially, the premium you pay is based on some calculus of the chance you will get sick and how much the health care you might need could cost. If someone shows up at the Emergency Room and endeavors to purchase insurance then and there, the chance that you will get sick is 100% because you are currently sick, and the cost is more or less calculable. So, the premium, from an actuarial point of view and the point of view of the insurance company should be the cost of the treatment you are seeking. Which brings us back to the uninsured showing up to the Emergency Room with no means of paying The cost would still be shifted to others with insurance.

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Obama Care Oral Arguments Underway

On Monday, March 26, 2012, oral arguments in front of the United States Supreme Court got underway to hear the legal challenge to the Affordable Care Act enacted by Congress and signed into law by President Obama on March 23, 2010.


The Supreme Court scheduled an unprecedented six hours over three days for oral argument this week after granting certiorari. At issue is the Act's individual mandate to purchase health insurance or pay a tax penalty. two federal appellate courts have upheld the mandate, one declared it unconstitutional and one appellate court declined to decide the issue under the Anti-Injunciton Act, ruling the issue could not be decided until tax payers are actually harmed by having to pay the tax/penalty in 2015.


Monday's oral argument focused mainly on whether the Anti-Injunction Act prohibited the present challenge, and whether the requirement that a tax payer who fails to purchase health insurance is assessed a tax or a penalty, which would dictate whether the AIA applies. There was discussion between the Justices and amicus curiae court appointed counsel Robert A. Long whether the Anti-Injunction Act is jurisdictional, thus robbing the courts of the ability to hear the issue, or directed at the Solicitor General, thus prohibiting the litigants from filing suit.


Nomenclature was an issue regarding whether the assessment is actually a tax or a penalty. Right out of the box, Justice Alito quipped to the Solicitor General for the Department of Justice Donald B. Verrilli, "General Verrilli, today you are arging that the penalty is not a tax. Tomorrow You are going to be back and you will be arguing that the penalty is a tax." When Chief Justice Roberts referred to the assessment as a penalty, attorney for challengers to the Act, Gregory G. Katsas, corrected "taxes, Mr. Chief Justice."


The attorneys were peppered with questions mainly from Ginsberg, Scalia, Sotomayor, Breyer, Roberts and Kegan, with a few questions from Alito and Kennedy. Thomas remained characteristically silent during argument.


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Me and 500 of My Facebook BFFs: A Rambling Stream of Consciousness About Facebook

Okay, so this post is not a legal update. So sue me. Just accept that you will see more nonlegal posts interspersed among my legal analyses from now on.

The other morning I was thinking about how on-line banks and financial institutions these days are requiring users to answer “security questions” to verify identity and keep identity theft at bay. 
It then occurred to me,that on-line social sites such as Facebook put their users at risk, because they encourage people to share in a public setting the personal information banks use to verify
one’s identity. Perhaps people should not be using Facebook the way we all do because many of the answers to the “security questions” used most often can be found on the Wall of one’s
Facebook page. For example, my home town, my high school, a list of my family members, and now with the new timeline, my job history and places I have lived and the respective dates
are all posted for anyone to which I give access to find.  Thus, security questions like mother’s maiden name, city you were born in, first pet’s name, first employer, or even high school mascot
all potentially could easily be found with not too much effort.   To put this in perspective, if one’s security setting allows only friends of friends to see wall posts and information, and one has,
say, 500 friends, each of who have 500 friends, one’s “security” information is potentially accessible to tens of thousands of people.

But maybe the flaw isn’t in the information Facebook has lulled us into voluntarily posting on our accounts, or even in Facebook’s privacy settings.  Yes, I know, this is antithetical to the Facebook bashing of late and accusations that Facebook intentionally makes it difficult to control one’s privacy settings. But it is not as if the type of information posted on Facebook is super secret stuff like one’s social security number. With all the conspiracy theories about Facebook, I have yet to see an accusation that Facebook is gathering social security numbers, ATM PINs, or bank account information.  Realistically, the type of information contained on my Facebook wall is information I would have no problem sharing with a complete stranger I just met.  The usual mindless, boring, get-to-know-you chitchat is not infrequently comprised of where one was born, what high school one attended or what type of embarrassing first car one owned.  I am not often concerned nor do I even consider that the person with whom I might share this type of information is going to steal my identity.  So maybe the flaw isn’t Facebook.  Maybe the real flaw is the type of questions the bank considers “security” inducing.  Maybe the banks should be asking stuff that we do tend to keep super secret, such as what loathsome diseases one has, or one’s criminal history, annual income, number of late payments in the past twelve months.  Maybe using information we would divulge just to be social is not fodder for a security question to verify our identity. After all, it is those mundane details about one’s self that we use to socialize and with which we make friends with one another.  So, maybe Facebook has it right after all.

So, maybe the problem is the number of people we friend on Facebook.   Do we really need to
friend everyone we ever knew and his brother?  Do we really have 500 bffs in this world? 
Before on-line social networks, we made friends the old fashioned way; we hung out with
them.  According to research conducted by the likes of Festinger (1954), Schachter and Back (1950),
and Zajonc (1968), the one factor that most predicted whether two people became friends is
propinquity.  Throughout different stages of our lives, we share propinquity with different sets
of people: the kids on our street in elementary school; the kids in our class in high school; the
kids in our dorms in college; the colleagues and/or neighbors we have as young adults; the people
who parent the kids that hang out with our kids; and perhaps inevitably, the people whose rooms
are next to ours in the nursing home.

As we moved along life, we drop some friends, keep in touch with a select few, and move on
to a new set of friends. Part of what keeps us friends is being in close enough geographic proximity
to one another so that we may share the little mundane things about our lives.  For example,“Oh!
Did I tell you what so-and-so’s response was to my letter (email post 1990s)?” or “My wife wants
me to take her to another bad 70’s/80’s/90’s band/concert this weekend.  Wanna come?” or
“Dude, I want a rematch on that racquet ball game last week.”  If we didn’t have this semi regular
discourse, most people who were in our circle fell out, with the exception of the one or two with
whom we kept in touch regardless of where we were in life or where we moved geographically.

Facebook has really changed all that.  Not only do we keep in contact with more people, perhaps
people we would even be happier to have lost contact with, but we are kept up to date on all
those mundane details on a regular basis.  We post our status constantly. “Made it to the gym
today, did 50 push ups, my personal best.” Or “My three year old knocked out his front tooth.”
Or “I was offered a new job at Local Big Firm.” Propinquity is now present not only in real
space, but in cyberspace.  I was keenly made aware of this revelation when I updated my own
status last week to announce my accepting a job offer at Local Big Firm.  I received comments
or “likes” from somewhere around 50 separate people.  In my life, I have never had 50 people in
anyone circle of friends to which I would have made this announcement and in return received
so many heart warming good wishes.  And of course, these 50 people don’t include those closest
to me who don’t even have (gasp!) a Facebook account!  When I saw (what I consider) the large
number of good wishes, I started thinking about what the 217 people I have friended on Facebook
really mean to me. Like many, my (modest) Facebook posse consists of friends and acquaintances
from: elementary school, high school, college, neighbors from old addresses, work, family, present
neighbors, friends/acquaintances, friends/acquaintances made because of my kids’ friends, and all
their brothers. Surely I don’t have 217 bffs, do I??  The propinquity theory dispels this, doesn’t it? 
I don’t have regular contact and/or discourse with 217 people, except in cyberspace. Can the
propinquity theory be applied to cyberspace?  The answer is yes.  Propinquity explains cyberspace
just as well as real space.


Here’s the thing.  Facebook gives us the tool to create propinquity in cyberspace.  I had an
epiphany that brought this conclusion into focus for me.  I have a friend Matt E. from college
(not to be confused with my close friend Matt G. from grad school).  Matt E. and I were close
friends in college and for a few years after until our lives diverged.  He got married, I moved
to go to grad school.  I haven’t actually seen Matt E. in person since Bush Sr. was President. 
If not for Facebook, I likely would never have (recently) gotten back “in touch” with Matt. 
By Facebook standards, “in touch” means we friended each other and said something like,
“Long time no see!” and left it at that beyond public status updates. But I have read Matt’s
status updates and posts.  I was updated on his trip to Korea and saw pictures of his college-
aged daughter I have never met.  And presumably, Matt has seen my posts about my latest
work-out session personal bests and has seen pictures of my five year old’s cut finger that
resulted to an ER visit, along with the other 216 Facebook friends I have. 


Here’s how my epiphany went.  After making my post about my new job, Matt made a short,
tongue-in-cheek comment that reminded me just how well he knew/knows me.  That short
comment bridged both time and space to bring him back, if only briefly, to being one of my
closest friends. Without Facebook, that would never have happened. Without Facebook, I
might have looked him up on a trip back home. Maybe.  I might have suggested that we grab
lunch. We might have spent the two hours “catching up.” “So, how’s your daughter? In college??
Really???” and that would have been that for another ten or twenty years, if we were lucky. 
Facebook dispenses the small talk we engage in on a semi regular basis when we are in proximity
to each other and that brings us together and keeps us friends.  Even if we don’t act on the
information posted to Facebook, e.g., “How was your trip to Korea?” (and really, Facebook
relieves us of that social requisite of feigning interest in some subjects), nonetheless, it keeps
us friends.  So when Matt thinks of something short and witty to say to me that he knows only
I will get, time and space don’t get in the way of him making that comment to me. All he need
do is click on my post and type a comment.  Just like that, we shared an inside joke between
two friends.  So yeah, I really do have 217, give or take, bffs. Facebook, and all it’s evil
information-gathering, makes it possible for me to do so.

So, really, it’s the banks that need to come up with some other way to make our on-line banking
more secure. Using mundane facts to put up firewalls to our financial information is just a dumb
idea, even without Facebook putting it all out there.


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Just Pay The Attorney Consultation Fee: You'll Thank Me Later

There is a saying among attorneys that lawyers do well in good economic times and bad. Of course, the latter hasn't been so true in the present bad economic environment, simply because collecting what is owed has been more challenging for attorneys than in the past. But for some, the adage seems to be backwards; that in good economic times, one does not need an attorney. This could not be further from he truth. 

As a litigator, it never ceases to amaze me when a new client walks in my door with contract in hand asking me to defend a lawsuit that has been filed against him, and one look at the contract reveals 
the clients' ignorance of the contract's contents or the obligations the client agreed to. 

In good economic times, new business associates are giddy with anticipation when they venture into a new agreement together. They are in the honeymoon phase, shaking hands, back slapping, and congratulating each other on their new contractual arrangement, and pouring the champagne to celebrate how much money they are going to make. However, too often one party to a contract is handed a prewritten contract, that, though there may be some negotiation about the salient terms (e.g. how much is the monthly rent, what percentage of profits am I entitled to, etc.), they do not pay any attention to the "boiler plate" language, or do not recognize the obligations to which they are agreeing. This especially occurs where one party has more "bargaining power" than the other.  Generally, it is usually the small business owner who forgoes consulting an attorney to "save money." Thus, while everyone recognizes the need for the pre-nup, love is blind and one party may be blinded as to what the pre-nup should or should not say. 

Every party to a contract should consult an attorney to go over the contract with a fine toothed comb. Parties to a contract should not rely on one attorney to draw everything up, because the attorney must have allegiance to only one party. The attorney either represents Party One OR Party Two, OR the attorney represents the corporation, in which case she is not an attorney for EITHER Party One or Party Two. Small business owners must consult an attorney of their own to avoid buyer's remorse when five years later the deal goes south in an economic downturn. Here are some real life examples I have encountered over the years. 

Client A recognized that forming a corporation provided a layer of protection to keep his personal 
assets separate from the obligations of the business. Client A formed a corporation and entered into 
a commercial lease agreement for the benefit of the business, in the business's name only, but then 
signed a personal guarantee. Client A did not realize that a personal guarantee made his personal 
assets available for collection for the debts of the corporation. Had Client A come to me before 
signing the lease, he would have know what he was committing himself to, and could have avoided 
incurring thousands of dollars in legal fees.

Client B signed a 10 year commercial lease that stated if he broke the lease and vacated the premises prior to the 10 year term, then even if the landlord re-leased the premises at exactly the same or even higher rent, Client A would still be held to the balance owed for all future lease payments on the 10 year lease. Had Client B come to me before signing the lease, he would have understood this commitment, and could have perhaps negotiated a shorter lease term with an option to renew.

Client C signed a signature page presented to her by her cousin without asking to see the full document. Nothing more need be said here.

Client D signed a purchase agreement for a condominium that stated he was obligated to pay even 
if he could not secure financing from a bank. Client D did not realize this, but would have if he had 
come to me before signing.

Client E signed a contract that stated any litigation arising regarding the contract was to be brought 
in Florida. I had to explain he could not file suit in Nevada, but had to find an attorney in Florida to 
bring suit there.

Client F was in the business of purchasing and selling real estate by borrowing money from others. 
Client F put the title in other's names, but believed he "owned" the property based on an oral 
agreement he had with these other people. Had he consulted me, I could have explained that 
courts do not recognize oral agreements for the transfer of real property. A written agreement 
could have been drafted to accomplish his goals and reasons for recording the title as he did.

A couple of things to note: Consulting an attorney before you sign a contract will not make you 
"bullet proof." Even if after getting the advice of an attorney, you are able to change the terms of the 
contract so they are more favorable to you (and that is not always possible depending on with whom 
you are negotiating), there are always arguments that can be made in litigation to challenge even the 
most "iron clad" contract. An attorney also cannot tell you what the best business decision to make
is, only you can make the business decisions. But an attorney can do two things: (1) Help you negotiate the best terms possible, and (2) explain the ramifications of the contract so you can make an informed decision before singing on the dotted line.

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Noteworthy U.S. Supreme Court Decisions of 2010

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010.  Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

• Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

• If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

• Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days.  Thus, the new police interrogation  techniques will be to arrest and Mirandize  a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

• Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

• Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

• Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary.  This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions:  "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

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Finding That Elusive Legal Niche Is Not Always A Good Thing

The ABA Journal reports that a young Las Vegas attorney was so successful after opening his own practice two years 
out of law school, he had a "breakdown" from the sheer volume of clients. Citing the RJ, the ABA Journal reports 
that Jorge Sanchez launched his own bankruptcy practice catering to Spanish-speaking clients just two years out of 
law school. Apparently,Mr. Sanchez quickly became inundated with clients, and unable to keep up, struck a deal with 
Las Vegas attorney Joseph Scalia.But the deal between the two attorneys soured, resulting in what the ABA termed Mr. 
Sanchez's "breakdown." The ABA Journal reports that last week the Nevada Supreme Court temporarily suspended Mr.
Sanchez's license.
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Ninth Circuit Rules Lower Court Appropriately Considered Award of Attorney's Fees Under ERISA To Plaintiff After Grant of Summary Judgment Against Plaintiff's Claims

On June 24, 2010, the Ninth Circuit Court decided an ERISA case entitled
Simonia v. Glendale Nissan/Infinity.  Where a plaintiff's claim under ERISA 
has achieved "some degree of success on the merits," the plaintiff may seek
attoreny's fees under section 1132(g) under ERISA.

In this case, Plaintiff's claim for continuing disability benefits was dismissed on
summary judgment, and Plaintiff's "degree of success" amounted to Defendant
Hartford agreeing to dismiss its counterclaim for overpayment of benefits due
to retroactive SSDI payments received by Plaintiff, after Plaintiff informed
Hartford that the Social Security Administration subsequently retroactively
reduced his SSDI award.

The Ninth Circuit, relying on the recent Supreme Court case Hardt v.
Reliance Standard Life Insurance Co., 560 U.S. ___ (2010), concluded 
that in exercising its discretion to award attorney's fees, a trial court must apply
the factors enumerated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446
(9th Cir. 1980), to guide the trial court's decision as to whether to award
attorney's fees a determination that the plaintiff has acheived "some degree of
success" under ERISA..
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Federal Court, Rather Than Arbitrator, Had Authority to Rule on Enforceability of Arbitration Clause In Employment Agreement

Last week the United States Supreme Court decided a case originating out of Nevada,

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___ (2010).  An employee of Rent-A-

Center filed an employment discrimination suit in federal court, and the employer filed a

motion to compel arbitration.  On Certiorari from the Ninth Circuit, the Supreme Court ruled

that under the Federal Arbitration Act, codified in Title 9 of the United States Code (FAA),

the courts could decide the enforceability of an arbitration clause in an employment agreement 

that stated the arbitrator must decide the enforceability of the agreement as a whole,  

whereas only the arbitrator could decide whether the employment agreement as a whole

was enforceable.

In opposing the motion to compel arbitration, Jackson argued the arbitration clause was unconscionable under Nevada law.  The federal trial court dismissed, stating the arbtration clause prevented it from deciding Jackson's unconscionable argument. Jackson appealed to the Ninth Circuit, which reversed, stating the courts decide the threshold question of whether the agreement was enforceable, affirmed the trial court's finding against Jackson on part of his unconscionable argument, and remanding for the trail court to decide the remainder of Jackson's unconscionable argument.

Justice Scalia delivered the opinion, and pointed out that Jackson's challenge was not to the validity of the agreement but to his manifestation of intent to the arbitration clause based on his unconscionability agrument.  Additionally, Jackson's briefs argued the entire agreement was invalid.  Based on those observations, Scalia concluded that Jackson's challenge was to the validity of the agreement as a whole versus the validity of the arbitration clause, and reversed the Ninth Circuit's decision.

Relying on First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), Justice Stevens dissented, reasoning that the arbitration clause at issue did not "clearly and unmistakeably" evince Jackson's assent to arbitration because of his unconscionability argument.  Stevens characterized Scalia's opinion as a "'fantastic' and likely erroneous decision" because it went beyond what the parties asked the Court to decide.  Stevens also asserted that the majority opinion expanded the holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), where the challenge was to the validity of the agreement due to fraud in the inducement, and not to the embedded arbitration clause.  Thus, Stevens would have affirmed the Ninth Circuit's decision.

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A Copyright Primer for Photographers

Under the Copyright Act of 1976, any copyrightable work (such as a photograph) created on or after January 1, 1978, is automatically copyright-protected.  It is not necessary to formally register a photograph, although it is still an option.  Copyright protection lasts for the life of the author plus 70 years, thanks, primarily, to lobbying efforts by the Disney company after the death of Walt Disney.  A photographer has exclusive rights to the use of her photograph, with two notable exceptions.

1) All copyrights are subject to “fair use.”  The term fair use can be unclear, but basically includes use as an educational tool, news commentary or parody.

2) If a photograph is a “work made for hire,” authorship and copyright belong to the employer.  But for this to apply, the photographer must either be an employee, or she must be an independent contractor who has agreed in writing that the photograph is part of a collective work (such as a book) and is a “work made for hire.”

If a photographer gives her permission, another person may create a “derivative work” that revises, elaborates or modifies the photograph to create an original work, such as a drawing of a photograph.  The new work must contain substantial changes from the original.  The new author then has a copyright to the additions, changes or new material added to the photograph, but the original photographer retains the copyright in the original photograph.

For more detailed information, or to see how copyright laws apply to works created before 1978, go to www.copyright.gov.  For information about the Nevada Camera Club, go to http://nevadacc.org. 

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There's An App For Bar Exam Torture

It was only a matter of time that the iPhone would be used for evil. The ABA Journal reports that bar review courses are now available as an app in the iTunes store, with, sadly, the same four figure price tag as the live course. Sigh, there goes all the fun out of owning an iPhone if you are a recent law school graduate.
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