from the all's-well-that-ends-well dept
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, 2013.12While 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.