Judge: Mocking Lindsay Lohan Is Allowed; Plagiarizing A Court Filing, Not So Much

from the all's-well-that-ends-well dept

You may recall a couple of years ago, we wrote about the latest in a series of ridiculous lawsuits filed by Lindsay Lohan, whose lawyer seems to have a rather creative way of interpreting the law at times. This time, it involved suing the rapper Pitbull for mentioning Lohan in a song. Pitbull has a song with the lyric: “I got locked up like Lindsay Lohan.” Lohan’s lawyers tried to argue that this violated Lohan’s publicity rights under NY state law (a law designed to stop unauthorized product endorsements), as well as defamation law. The lawsuit was absolutely ridiculous from the very beginning, but took a slight detour into the absurd when Lohan’s lawyer, Stephanie Ovadia, responded to one of Pitbull’s filings with the most bizarre filing you’ll ever read. The entire thing was basically long cut-and-pastes from various online sources, with no credit given whatsoever. Many of the copied passages had nothing to do with the lawsuit at hand, and some others were simply completely nonsensical. Like this one:

The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one’s mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education….

What that had to do with the lawsuit was anyone’s guess, but it was copied from an online student essay.

Earlier this week, the judge (not surprisingly at all) dismissed the lawsuit on First Amendment grounds:

The Supreme Court has made clear that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Thus, because the Song is a protected work of art, the use of plaintiff’s name therein does not violate the New York Civil Rights Law.

Furthermore, the court went on to note that even if the lawsuit wouldn’t have been thrown out on purely First Amendment grounds, the case had no chance, because Pitbull’s use of Lohan’s name wasn’t for advertising purposes, or to imply she somehow endorsed the song. Lohan’s lawyer tried to argue that because Pitbull made money from the song, and Lohan’s name was in it, the use was “purposes of trade,” which is (yet again) a rather unique interpretation of what the law is clearly about, so the court pointed out that this, too, was hogwash.

The fact that the Song was presumably created and distributed for the purpose of making a profit does not mean that plaintiff’s name was used for “advertising” or “purposes of trade” within the meaning of the New York Civil Rights Law.

Going one step further, the court noted that even if the First Amendment didn’t suffice, and even if they found that the user of Lohan’s name was for the purposes of advertising or trade, the case still would have failed:

Even if the Court were to conclude that plaintiff had sufficiently alleged that her name was used in the Song for purposes of advertising or trade, the isolated nature of the use of her name would, in and of itself, prove fatal to her New York Civil Rights Law claim. “Courts in New York are reluctant to impose liability under §§ 50-51 for incidental use of a person’s name or image because of the danger of imposing an uncalled-for burden and hazard on publishers.”

The court also dismissed Lohan’s other ridiculous claims, including “unjust enrichment” and “intentional infliction of emotional distress,” basically stating that neither claim appears to make any sense at all.

Pitbull’s lawyers had hit back and asked for sanctions against Ovadia for her rambling cut-and-paste legal filing, and they got those too. Ovadia tried to defend herself first by throwing another lawyer in her office under the bus and saying it was all his fault, but then also that the filing was an early draft that had been filed incorrectly. The only problem? The “final” draft that she offered up as a replacement still contained much of the plagiarized text. So she was sanctioned $750 for lying to the court:

The Redline demonstrates that, contrary to Attorney Ovadia’s assertions in the Letter, not one of the changes in the proposed amended opposition would have corrected or cured the plagiarized portions of the Opposition. Instead, most of the changes to the plagiarized portions of the proposed amended opposition were merely corrections and insertions of citations to case law…. Attorney Ovadia, who is represented by her own counsel in connection with the sanctions motion, does not respond to the allegation that her representation in the Letter – i.e., that the proposed amended opposition would have “obviated any alleged plagiarism concerns” – was, in fact, untrue. Based on the fact that Attorney Ovadia made this undisputedly false representation to the Court, and pursuant to the Court’s inherent powers, Attorney Ovadia is hereby fined in the amount of $750.00. This amount shall be paid by Attorney Ovadia and shall be made payable to the Clerk of the Court on or before March 22, 2013.

And then there was another $750 sanction for the plagiarism itself. The court practically laughs off Ovadia’s attempt to throw her colleague under the bus as well. Ovadia tried to claim that sanctions weren’t appropriate because “additional fact-finding would be necessary” to determine who really wrote the filing. The court points out, in response, that Ovadia was the one who signed the filing, so the responsibility is all on her:

With respect to defendants’ allegations that the majority of the Opposition was plagiarized, plaintiff and her counsel do not deny these assertions. Indeed, defendants’ submissions to the Court evidence that almost the entire text of the Opposition is taken from unidentified, unattributed sources. (See Jimenez Decl., Ex. A.) Obviously, this type of conduct is unacceptable and, in the Court’s view, is sanctionable pursuant to its inherent powers. Attorney Ovadia takes the position that the Court should refrain from imposing sanctions because “additional fact-finding will be necessary” to determine which of plaintiff’s two attorneys is responsible for the plagiarism and/or the degree to which any such responsibility should be apportioned between them. (See Ovadia’s Sanctions Opp’n at 9.) The Court recognizes that Attorneys Ovadia and Ahuja dispute which of them drafted the final version of the Opposition that was ultimately filed. It is clear, however, that only Attorney Ovadia signed the Opposition. In the Court’s view, this leaves Attorney Ovadia solely liable for the sanctionable plagiarism. Cf. Kiobel v. Millson, 592 F.3d 78, 87 (2d Cir. 2010) (“‘The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most [situations] should be sanctioned for a violation.’”) (quoting Fed. R. Civ. P. 11 advisory committee note). Accordingly, pursuant to the Court’s inherent power, Attorney Ovadia is hereby fined an additional $750.00 which shall also be made payable to the Clerk of the Court on or before March 22, 2013.12

While the court notes that the $1,500 in sanctions is relatively small, it also notes that it chose this number accounting for the additional “negative impact on Attorney Ovadia’s reputation and livelihood that will inevitably arise from her involvement in this situation.”

The one area where Pitbull’s lawyers failed was in their attempt to force Lohan to also have to pay their fees. The court noted that despite Lohan’s claims failing, they didn’t fail at a level that would have made them “frivolous.” Also, the court said that the plagiarized filing didn’t lead to any real additional work for Pitbull’s lawyers. The court also slaps the wrists of Pitbull’s lawyers for failing to directly raise the issue of the plagiarized filings with Ovadia, despite corresponding with her after realizing that the filing was plagiarized.

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Comments on “Judge: Mocking Lindsay Lohan Is Allowed; Plagiarizing A Court Filing, Not So Much”

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out_of_the_blue says:

What's "simply completely nonsensical" in the first blockquote?

May be irrelevant to the suit, but didn’t you ever see “Mr Subliminal” on Saturday Night Live? That’s just a dull text version of a real effect. Are you unable to parse it?

Anyhoo, an LL story, replete with legal details, is DULL. And has no implications or applications outside of that. — “This is hardly surprising.”

Take a loopy tour of Techdirt.com! You always end up at same place!
Mike Masnick, the economist with the soul of a lawyer. Watch for (another in) his “At The Bench” series.

Anon says:

Re: Re: Re:

Go to her website. She’s a solo practitioner. She doesn’t have a million little minions whereby something could have slipped through the cracks. Moreover, the bizarre nature of the pleadings would jump off the page at someone with her experience, she wouldn’t just shrug and proceed if an intern handed her that crap.

btr1701 (profile) says:

Re: Re: Re:

This was an honest mistake her colleague was
the one who plagiarized not her.

I’m trying to figure out exactly when plagiarizing legal briefs became a bad thing.

Back when I was practicing, if you could find someone else who had plead a case similar to yours, you grabbed their brief and copied as much of it as possible, just substituting the facts and legal cites unique to your own case for theirs.

A legal brief isn’t a work of art. It’s essentially a government form. Who the hell cares if one person copies someone else’s government form?

Fake Name Poster (profile) says:

Re: Lower bar

A law license is available to anyone with enough money to go through law school and who had enough of a settled childhood to get the grades required to get into law school. The law schools graduate few enough new lawyers to insure only those with a lot of money will have representation in court. The rest join the 1/3 of the world’s prison population who happen to be confined to U.S. prisons.

GMacGuffin says:

NetSaavy Judge

[The court] chose this number [$1,500] accounting for the additional “negative impact on Attorney Ovadia?s reputation and livelihood that will inevitably arise from her involvement in this situation.”

$1,500 is a pittance sanction relatively speaking. So the discount for self-inflicted reputational harm just indicates the judge fully understood this story would end up all over the place — that the attorney has effectively sanctioned herself. Har. Brilliant.

Sanction offset by self-inflicted wounds…

mattshow (profile) says:

I often feel that I need to defend lawyers on here. Sometimes awful pleadings are the result of a client who insists on filing a lawsuit even after being advised by their lawyer that they don’t have a case. This leaves the lawyer with two options: file the best pleading they can, which involves making some pretty creative arguments since they have nothing to work with. Or they can refuse to represent the client. This second option sounds like it should obviously be the ethical option, but some clients will then go on to file the lawsuit anyway, and represent themselves. Nothing is more frustrating and time consuming than dealing with a determined and misguided self represented litigant. Sure, it would be best if this lawsuit didn’t get filed at all, but letting the client try and do it on their own is sometimes the worst case for everyone involved.

In this situation however, it sounds like these lawyers are both sleazy and lazy and deserve everything they got, and more. I wonder if Ms. Ovadia or her partner ever worked at a law firm under the supervision of other, more experienced lawyers, or if they just passed their bar exams and struck out on their own.

GMacGuffin says:

Re: Re:

The only real option when there actually is no case is to refuse to file. The only thing a lawyer really has at all is their reputation. Here, they had enough of a “creative” (phrase used incredibly loosely) take on the law to at least avoid sanctions for frivolity. Can’t have missed that sanction by much though.

And I too wonder if these folks just hung out a shingle straight out of law school. We blithely refer to that as “malpractice.” There is nothing more dangerous than a fresh lawyer without any guidance, nor more frustrating to have as an opponent.

McCrea (profile) says:

Re: Re:

Regarding your defense for lawyers, I’d have to say that your summary also explains why people hate lawyers. You may want to reconsider before using this argument again.

I interpret your summary to be that a lawyer has to take bad cases because it’s their job. If I understand that, allow to me to reword to express the lack of morality:

Lawyers lack the heart to turn down a paycheck and refuse a bad case.

That’s how I read it, and it suits the “money-grubbing” stereotype.

All admit that I have not addressed the portion where you claim they are nobel because they didn’t let the client file on their own. I don’t have the expertise to know whether or not that’s the obvious b.s. it sounds like.

mattshow (profile) says:

Re: Re: Re:

I interpret your summary to be that a lawyer has to take bad cases because it’s their job. If I understand that, allow to me to reword to express the lack of morality:

Lawyers lack the heart to turn down a paycheck and refuse a bad case.

For better or worse, the legal profession still embraces the notion (to a certain extent) that everyone deserves their day in court. For most people, lawyers are the gateway through which they will get that day. For this reason, ethical and moral guidelines published for lawyers sometimes
state that lawyers should be hesitant to refuse to represent someone simply because they believe that person will lose.

As someone else pointed out, of course there is a point where the case is completely baseless and frivolous and at that point the lawyer should refuse to represent that client, or they risk being sanctioned by the court and damaging their reputation.

But in less extreme situations: Yes, the lawyer is sometimes expected to file the case because that’s what the client wants and it’s their job. Though it’s not just because they want a paycheck. If a lawyer refuses to file simply because they think a case will lose, and not because it’s completely frivolous, the lawyer is usurping the judges role.

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