Desegregation: a new rule

Advocates of desegregation should take heart, and planners should take notice, because at last it's official: Land-use policies that perpetuate residential segregation are illegal.  A new rule from the Department of Housing and Urban Development (HUD) clearly spells out that the Fair Housing Act prohibits practices that have a discriminatory effect (disparate impact), even if there was no intent to discriminate.

Confirming the way most federal courts had long interpreted the statute, HUD's new rule states that "[a] practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin" 24 CFR 100.500(a), Subpart G. This applies to public and private entities alike, so it covers not only city councils and local housing authorities but also housing developers.

Federal courts generally apply a three-part burden-shifting formula to decide whether a land-use policy violates the statute's discriminatory-effects prohibition, and this is the course that HUD decided to follow. First the plaintiff has to show that the practice "caused or predictably will cause a discriminatory effect." The burden then shifts to the respondent to prove that the practice "is necessary to achieve one or more [of the respondent's] substantial, legitimate, nondiscriminatory interests." If the respondent succeeds, the burden shifts back to the plaintiff to prove that the respondent could serve those interests "by another practice that has a less discriminatory effect."

On the one hand, this does not represent a new departure or a substantive change to the federal law. But, on the other hand, it certainly helps plaintiffs who are trying to show that a zoning decision would violate the Fair Housing Act even if the city officials had no intention of acting in a racially discriminatory way. In practice, this may encourage challenges to the planning policies that undergird the de facto segregation of the public schools in and around Springfield, Massachusetts.

Springfield: Some of the most segregated schools in the nation

As before, any ordinance, bylaw, policy, or practice is open to a courtroom attack if it "creates, increases, reinforces, or perpetuates segregated housing patterns." Now, however, desegregation advocates will have an easier time defeating the customary motion to dismiss.

Right's Attack on NLRB Continues

Speaker Boehner and Leader McConnell

Employees and small business owners alike in Western Massachusetts need to know whether the current controversy around the National Labor Relations Board (NLRB) will affect their legal rights. The source of the uncertainty is the recent decision in Noel Canning v. NLRB, which involved a dispute between a Pepsi-Cola bottling and distribution company and the union representing the plant employees, Teamsters Local 760. Filing amicus briefs in support of the company were House Speaker John Boehner, Senate Republican Leader Mitch McConnell, and the Landmark Legal Foundation.

The NLRB ruled in favor of the union, but on appeal United States Court of Appeals reversed the decision. Why? The court said that the NLRB’s order was void because it had no quorum. And why did the court say there was no quorum? Because it held that President Obama’s three recess appointments to the NLRB were invalid. The court agreed with the Republicans leaders who had argued that when President Obama made the appointments the Senate was in session rather than in recess.

Somewhat more absorbing than the recondite issue of when a recess is not really a recess is the question of how this became a contested issue in the first place. Spoiler alert: The answer involves large amounts of money.

Many of the people who are going after the NLRB are also attacking climate science. It’s no secret that ultra-conservatives fund climate-change denialists. To its credit, the Landmark Legal Foundation is quite candid about its opposition to the “extreme environmental groups” that spread “global warming hype” and receive Environmental Protection Agency (EPA) grants. Under the moniker Greenwatch, the foundation provides a handy database for concerned conservatives that “identifies the location, leadership and membership of each profiled group.”

But if you happen to be an anti-green sleuth trying to follow the money from the EPA to the Vast Climate Change Conspiracy, don’t pin your hopes on the Greenwatch database. Its keyword search couldn’t even locate any EPA grantees with the words “green” or “climate” in their names. You’d be better offer using the EPA’s own grant site or (almost needless to say) Google.

Greenwatch’s funders include the Charles G. Koch Charitable Foundation and the Scaife Family Foundations. I learned this from Right Wing Watch, a project of People for the American Way. Presumably I could turn to Left Wing Watch or Secular Humanist Watch if I wanted to uncover the names and faces behind People for the American Way. Alternatively I could just read the organization’s Form 990, which it posts online.

But why are the Charles G. Koch Charitable Foundation and the Scaife Family Foundation helping pay for the courtroom assault on the NLRB?

Irking the people who write the checks for the Landmark Legal Foundation are decisions like Hispanics United of Buffalo. In that case, the employer fired workers who had engaged in an online discussion about their job performances. One worker had been critical, and others responded. The NLRB sided with the employees. It ruled that the workers were “taking group action to defend themselves against the accusations they could reasonably believe [the critical employee] was going to make to management.” So in preparing to engage in mutual aid and protection, their Facebook comments constituted “concerted activity” within the meaning of the National Labor Relations Act, Section 7.

The NLRB’s Hispanics United decision set “a low threshold” for concerted activity, to the chagrin of attorneys who work on the employer side of the aisle. So the company, with help from the Republican congressional leadership plus the Koch and Scaife foundations, challenged the legitimacy of the NLRB itself. Now they and their allies contend that the Court of Appeals decision in Noel Canning casts doubt on all the NLRB’s recent decisions, which they characterize as “pro-Bog Labor rulings,” e.g. Hispanics United.

So what does all this mean for workers and small business owners in Western Massachusetts? First, it’s important to bear in mind that the National Labor Relations Act (NLRA) does not cover all workers. Non-federal public employees in Massachusetts are covered by the state equivalent of the NLRA (M.G.L. c. 150E), as are some unionized employees in the private sector (M.G.L. c. 150A). So the Hispanics United and Noel Canning decisions, which interpret federal law, do not have a direct effect on these workers.

Second, most private-sector employees in this part of the world are at-will. Union members are in the minority. Employers can fire at-will employees for no reason, so long as the underlying purpose is not discriminatory or retaliatory. For my short video on this subject, just click here.

Third, focusing on situations like Hispanics United where employees are communicating online about their rights at work, several different state laws may offer varying degrees of protection. For example, the Right-to-Know Law (M.G.L. c. 111F) protects workers who work with toxic or hazardous substances. Employers that punish employees for exercising their rights under this statute could face suit in Superior Court. If workers use Facebook to discuss whether they should refuse to work unless the employer complies with the applicable regulations (450 CMR 21.00) would the employer be free to terminate them? That would be a very risky decision on the employer’s part.

Similarly, the state’s whistleblower law (M.G.L. c. 149, S. 185) is supposed to safeguard any employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” The statute also protects employees who object to policies and practices of that kind. If at-will employees organized their whistleblowing via Facebook, could their employer fire them? Again, that would be a very risky decision.

While keeping in mind that we should never post online anything we would not be happy reading on the front page of the newspaper, we should not let the Noel Canning case chill legitimate online discussions about workplace health and safety and the environment. After all, that is precisely what the people behind the Landmark Legal Foundation and Greenwatch would like.

This should be easy

Some aspects of intellectual property law are inherently complex. But other areas could be -- and should be -- much simpler. For example, you would think the law would have a crystal clear answer to this question: When a retailer is selling something produced by a famous manufacturer and wants to advertise the fact, is the retailer allowed to use the manufacturer’s name in its advertisements?

Reasonable readers may well ask themselves why this isn't settled law, something the trademark statute or an early decision interpreting the statute must have established long ago. But it was this very question that the Court of Appeals for the 1st Circuit considered this month (January 2013) in Swarovski Aktiengesellschaft v. Building #19, Inc. Here are the facts:

The plaintiff, Swarovski, makes crystal products.  The defendant, Building #19, bought some Swarovski products in order to sell them at its stores. To that end, Building #19 designed some advertisements, which informed the public that (a) it was offering Swarovski products for sale; and (b) Building #19 had no connection to Swarovski and was not an authorized Swarovski dealer. The advertisements prominently featured the mark Swarovski (replete with the circled-R registered trademark symbol). The disclaimer was much less prominent. Swarovski sued Building #19 and managed to obtain a preliminary injunction.

Crystal figurine by... oh, wait.

Yes, indeed: Swarovski persuaded a United States district court judge to prohibit Building #19 from using the word Swarovski in an ad that stated, truthfully, that the company was selling Swarovski crystal collectibles.  How, reasonable readers may wonder, was Building #19 supposed to promote its perfectly lawful sale of Swarovski products without using the name Swarovski? That is a question the district court can mull over at its leisure now that the Appeals Court has quashed the preliminary injunction.

In trademark law, the term we use to describe this situation is “nominative fair use.”  This is the judge-made principle that allows you to use another person's trademark so long as you're not trying to mislead anyone. The Appeals Court noted that although the First Circuit recognized nominative fair use it had “never endorsed any particular version of the doctrine.” I respectfully submit that now would be a good time. Business owners, creators, and the general public would appreciate some certainty.

Why remember William H. Lewis?

Before we say goodbye to 2012, the year in which we re-elected our first African-American President, I would like to mention an important centenary in civil rights law. One hundred years ago William H. Lewis, a graduate of Amherst College and Harvard Law School, completed his service as the first African-American Assistant Attorney General of the United States.

William H. Lewis, Esq.

It was President William Howard Taft who appointed Lewis, and President Woodrow Wilson, the winner of the 1912 election, who fired him. As Professor J. Clay Smith, Jr., points out in Emancipation: The Making of the Black Lawyer, 1844-1944, before leaving the White House, Taft tried, unsuccessfully, to persuade the Governor of Massachusetts to appoint Lewis to the bench.

Although Lewis never became a judge, he helped shape the state's anti-discrimination statutes. Even as a law student in the mid-1890s, Lewis was already part of Boston's network of African-American civil rights activists. Whether to bring a test case or just by chance, he visited a Cambridge barber shop for a haircut. When the owner refused him service Lewis and his allies -- including State Representative Robert Teamoh -- lobbied to add barber shops to the list of places where discrimination was unlawful.

The lobbying paid off. So even before his stint as a state legislator in 1902, Lewis had left an imprint on the statute book. Those of us who practice anti-discrimination law can be thankful for his efforts.

Tebowing Trademark Takeaways: Three Lesons

New York Jets quarterback Tim Tebow is in the news over rumors of a trade. Before that, the headlines were about his trademark. Wherever Tebow plays football, it seems a safe bet that he will be trying to control the use of the word “Tebowing,” a term that describes the Christian athlete’s practice of dropping to one knee in prayer. For fans and non-fans, faithful and faithless alike, Tebow’s recent experience with trademark law has three lessons.

Tim Tebow: a valuable image

But before the lessons, some background. In December 2011, Tebow filed a set of intent-to-use applications with the United States Patent and Trademark Office (USPTO) for the words “Tim Tebow” in connection with products such as jewelry, clothing, DVDs, and stationery, and services such as online seminars. The USPTO published three of the applications for opposition in the Official Gazette on October 16, 23, and 30 respectively. If nobody objects during the 30-day opposition period, Tebow’s name will become a federally registered trademark in three different classes in time for the holidays.

But Tim Tebow’s are by no means the only Tebow-related applications the USPTO has on its docket. There are currently seven live (and three dead) applications for the mark “Tebowing,” a verb that entered the lexicon in October 2011, according to Wikipedia. That was the authority the USPTO cited when it rejected the trademark application of Jared Kleinstein on February 22, 2012, a fact replete with irony in view of the fact that it was Kleinstein who – according to Wikipedia – coined the term Tebowing.

Kleinstein had filed his application (serial no. 85458244) to register “Tebowing” on October 27, 2011. Along with his application he submitted a screenshot showing a list of t-shirts he had sold that day via Café Press.

But before Kleinstein’s application could make it to the Official Gazette, Tim Tebow himself intervened. In January 2012, Tebow’s attorney sent the USPTO three letters of protest complaining that Kleinstein’s mark would cause consumer confusion: Consumers would presume a connection between the trademark and Tim Tebow. As evidence, Tebow’s counsel pointed to the athlete’s sponsorship deals with Nike, Jockey Apparel, and Electronic Arts. The USPTO concurred and refused Kleinstein’s application because it implied a false connection with a living individual, contrary to 15 U.S.C. section 1052(d).

Was that the end of Kleinstein’s application? No, it rose again and now –made reincarnate – has a new applicant, namely XV Enterprises, an LLC organized in Florida, with a business address of 5082 Hampden Avenue, Suite 115, Denver, Colorado. As the Hampden Avenue neighborhood might suggest (Temple Sinai on one side and Bethany Lutheran Church on the other) the owner of XV Enterprises is Tim Tebow.

So how did Tim Tebow’s company end up with Jared Kleinstein’s trademark application? The process seems to have involved nothing more miraculous than money. On May 10, 2012, Kleinstein assigned his trademark application to XV Enterprises “for good and valuable consideration.” Unfortunately for those of us who are curious about these things, the assignment does not state the number of dollars that moved from Tim Tebow to Jared Kleinstein.

With Tebow’s XV Enterprises as the applicant, the USPTO published “Tebowing” for opposition October 9, 2012. The 30 day opposition period runs until November 8, so if you have a legitimate claim to the mark “Tebowing” and do not wish Tim Tebow to acquire the exclusive, nationwide right to use it in commerce, you should act swiftly. In the meantime, what lessons can we draw from the mark’s sojourn in the USPTO?

1. Letter of Protest

Tim Tebow’s lawyer did not wait until the post-publication opposition period. He filed a letter of protest, a powerful weapon that enables third parties – not only the owners of competing marks – to step into the USPTO’s examination process at an early stage. Although it is an informal document, a letter requires factual, objective evidence, not mere opinion. But the evidentiary standards are not onerous. So trademark owners and concerned citizens who learn of applications with the potential to cause consumer confusion should not sit on their hands.

2. Assignment

Jared Kleinstein assigned his mark and “the goodwill associated with it” to XV Enterprises. As any intellectual property practitioner knows, you cannot assign a trademark in gross. What does that mean? It means that when you transfer trademark rights, you must convey not simply the mark, but also the goodwill associated with it.  The “amorphous goodwill concept,” as Professor Robert Bone calls it, refers to a mark’s consumer loyalty, but remains “abstract, and notoriously difficult to define.” Business owners and their attorneys should not fret unduly about the precise meaning of the word; all we need to remember is to include it in the assignment.

3. Right of Publicity

Tim Tebow is a resident of New Jersey, according to his Facebook page. New Jersey is one of the states that recognizes the right of publicity, which allows individuals to control the commercial exploitation of their name and likeness. Unlike federal trademark protection, the right of publicity does not depend on you registering your name anywhere, filing renewals, paying a fee, or using it in interstate commerce. These are clear advantages. On the other hand, whether you actually have a right of publicity depends on where you live. Almost half the states do not recognize it. Of those that do, only some have enacted statutes to delineate its scope; in the others it remains a common-law right and, therefore, less predictable. As a practical matter then, if your name has value in the marketplace, registering it as a trademark would be wiser than simply relying on the right of publicity.

Finally, it is worth remembering the power of parody. Although the Lanham Act does not explicitly provide fair-use exceptions like parody the way the Copyright Act does, judges are tending to imply it so as to uphold the First Amendment. This evolving area of law may affect Tim Tebow, because among the other entrepreneurs seeking to turn Tebow’s fame to their pecuniary advantage is Daniel Gordon of New Jersey. He has applied to register the word Tebow within the outline of a fish (think Jesus fish and Darwin fish). Does he have a prayer? Stay tun

Privacy, publicity, and identity

Sometimes judges give helpful hints. I think Judge Kenneth Neiman provided one recently when he denied a motion to dismiss in a case about a photograph, Peckham v. New England Newspapers, Inc., 40 Media L.Rep. 1849 (June 4, 2012). The thumbnail sketch is this:

A newspaper photographer took a photo of a motor-vehicle collision showing the victim's arm waving from the wreckage. The victim's face is not visible. After running the story about the collision, the newspaper made the image available for purchase and reproduction on a number of products via its website, as is its practice with other images in its portfolio. The victim sued. The newspaper moved to dismiss, and Judge Neiman denied the motion, thereby allowing the case to go forward. You can read the judge's order denying the motion to dismiss here, and a thorough description of the case in context by the Citizen Media Law Project here.

"Name, portrait, or picture"

So what is the legal basis for trying to prevent the newspaper selling an image in which it owns the copyright?

In the complaint, counsel for the plaintiffs alleged violation of the right to privacy but did not refer to a specific statute. Judge Neiman points out which statute in particular the plaintiffs might want to focus on, namely M.G.L. c. 214, section 3A. This law establishes the right of publicity, which is related to -- but not the same as -- the right to privacy. Unlike the right to privacy, which upholds your right to be left alone, the Massachusetts right of publicity law allows you to control the commercial exploitation of your "name, portrait, or picture." In that sense it is similar to trademark law and the people who sue for infringement are usually celebrities attempting to stop unauthorized advertisers free-riding on their fame.

In some jurisdictions, such as California, the right of publicity is expansive, covering an individual's persona, identity, and voice. Here in Massachusetts, it is narrow, covering only the "name, portrait, or picture." There is no suggestion in Peckham that the newspaper is using the accident victim's name, and no reasonable person would suggest that the image of an arm amounts to a "portrait." To prevail, the plaintiffs will need to show that the image of the arm ids a "picture" of the victim and that selling the image of the plaintiff's arm alone, with no face visible, violates his right of publicity.

I suspect that the outcome of the case will hinge on the definition of "picture." It would have been helpful if, back in 1973 when it drafted the right-of-publicity statute, the Massachusetts Legislature had included the phrase "readily identifiable," but it did not.

So the Peckham case raises three questions: (1) Does the image at issue identify the plaintiff; (2) Does an image that does not identify the plaintiff come within the statutory meaning of a "picture"; and (3) Would the answer be different if the owner of the arm was a celebrity?

Judge Neiman's order mentions the fact that the Massachusetts courts have yet to fully explore the law regarding "newsworthiness."  Let's hope the Peckham case also provides an opportunity to explore the question of when a picture is a "picture" within the meaning of the right-of-publicity statute.

Three Things I Learned About Campaign Finance

"You never want to see my name and your name in the same newspaper story," is how Mike Sullivan, director of the state Office of Campaign and Political Finance (OCPF) opened his seminar in Westfield recently. He pointed out that to date there has never been a Herald or Globe headline lauding a political candidate for filing their financial statements thoroughly and promptly. The only time an article appears about a candidate's interaction with OCPF, you can be sure it's one he or she won't be asking supporters to like and share on Facebook.

OCPF's seminars are a must for candidates, treasurers, and active members of political committees. I went along partly because I'm no longer in full-time higher education and just had to stem my withdrawal symptoms. The Master's program at the Center for Public Policy and Administration, UMass, gave me some invaluable new insights into the policy-making process, economics, statistics, and public management. But I do have one criticism: It only lasts two years! Now that I've graduated I have to feed my learning habit where I can.

Public policy class at CPPA

So here are the three things I learned at the OCPF seminar that I'm going to remember when I'm working on or counseling a campaign:

1.  Citizens United: My other (more serious) reason for attending the OCPF seminar was the need to catch up on the impact of Citizens United on campaigns at the state and local level. As Mike Sullivan reminded us, Citizens United does not permit corporations to make unlimited contributions to candidates. So our state's statutory ban on corporate contributions to candidates remains in full force and effect. If you're running for, say, state representative and a supporter sends you a check drawn on a corporate bank account, can you deposit it? No.

What the Citizens United decision does allow corporations to do, to the chagrin of groups such as Move to Amend, is make unlimited independent expenditures in support of a candidate. That freedom to spend freely has yet to spur corporations to spread the wealth around here in Massachusetts, at least at the statewide and legislative level. But perhaps mayoral and city council races will be where independent corporate expenditures happen in the future. We shall see.

2. Planning: Political committees must not use public buildings for fundraising, and that includes discussions about fundraising. If your political party's town committee meets in the town hall, the public library, or the community room at the police station, make sure that you don't devote meeting time to planning the committee's next money-making event.

This rule puts committees in a tough spot. On the one hand, you want to meet in a public building because it's ADA-compliant and usually free or very low-cost. On the other hand, raising money to help get your party's message out is central to the mission of any political committee, and always will be unless and until the Post Office starts giving away stamps and printers stop charging for brochures and yard signs.

But I know you can't helping wondering, "What's the likelihood of getting busted for breaking such a silly rule?" Just bear this in mind: All it takes is one disgruntled member to rat you out to OCPF. If your committee has never had (and never will have) any spats, feuds, or minor disagreements that quickly degenerated into vicious vendettas, you're probably safe. And unique.

3. In-kind Contributions: Political committees, e.g. the Democratic State Committee or the State Committee of the Green-Rainbow Party, can make unlimited in-kind contributions to candidates. Yes, the word in front of "in-kind" is, indeed, "unlimited."

An in-kind contribution is something of value that you give to a candidate without receiving fair market value, and the regulatory definition includes office equipment, function rooms, and transportation (970 C.M.R. 2.07). Personal services such as writing do not fall within the statutory definition of "contribution" (M.G.L. c. 55, Section 1). In short, there is a lot that a political committee can do to help a candidate in addition to, or instead of, writing a check.

The OCPF seminar was definitely a worthwhile use of my time, and I suspect most if not all the other 14 attendees feel the same way. If you're a candidate, committee chair or treasurer, or have political ambitions of some kind, and would like to find out whether a seminar is scheduled for your area, just click here. I recommend it. After all, as Mike Sullivan would put it, who wants their name next to his in the newspaper?