On February 16, 2016, Magistrate Judge Sheri Pym in the01-Caliguri-Er-15EX-web United States District Court for the Central District of California issued an order compelling Apple, Inc. to provide technical assistance to the F.B.I. so it can access an iPhone 5C that belonged to a shooter in the recent San Bernardino, California attack.

The order, which issued without obtaining Apple’s initial input, requires Apple to write new software and take other measures to disable passcode protection on the attacker’s iPhone. The court issued the order under 28 U.S.C. § 1651, the “All Writs Act,” which authorizes the United States federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The order also allowed Apple to make a request to the court for relief from compliance with the order if such compliance would be unreasonably burdensome. Apple made this request via a motion to vacate the order on February 25, 2016. In its motion to vacate the order, Apple raises three general arguments.

First, Apple argues that the relief the government seeks is not justified under an extension of the All Writs Act because law enforcement assistance by technology providers is already addressed by existing laws that specifically omit providers like Apple from their scope. Apple argues the Communications Assistance for Law Enforcement Act (“CALEA”), 47 U.S.C. § 1001 et seq., specifies when private companies must assist law enforcement in the decryption of electronic communications obtained during surveillance, and the nature of the assistance such companies must provide. Specifically, under CALEA a company has no obligation to assist law enforcement where the company does not retain a copy of the decryption key, which Apple says it does not have in this case. Thus, Apple asserts that Congress opted not to provide courts with the authority to compel companies like Apple to assist law enforcement in cases such as this one where Apple designed and manufactured the device but did not retain a decryption key. Therefore, Apple says the government’s attempt to use the All Writs Act to expand the obligations imposed by CALEA is improper and violates the separation of powers doctrine.

Continue Reading Apple Argues It Should Not Be Compelled to Write Software for the F.B.I.

In 2008, former Mayor of Washington, D.C., and then council member Marion Barry became ill with a kidney disease. To survive the illness, Mr. Barry required a kidney transplant, and one of his friends, Ms. Kim Dickens, came to his aid and donated one of her kidneys. Although the transplant helped Mr. Barry survive for several more years, he passed away in November 2014. Ironically, Mr. Barry’s widow is now suing Ms. Dickens.

In a lawsuit filed by Cora Masters Barry against Kim Dickens, Mrs. Barry alleges that Ms. Dickens has unlawfully used her late husband’s celebrity identity in order to promote the “Barry Dickens Kidney Foundation,” a charity formed by Ms. Dickens. According to the website of the Barry Dickens Kidney Foundation, Marion Barry played a role in the formation of that group, and the website even features photographs of Mr. Barry along with a detailed story of how Ms. Dickens came to donate one of her kidneys to Mr. Barry.

Mrs. Barry’s claims against the Foundation are not without legal precedent. In 1993, Wheel of Fortune hostess Vanna White sued Samsung Electronics of America in connection with a television ad which depicted a robotic version of Ms. White to promote sales of Samsung’s video cassette recorder. Ruling in favor of Ms. White, the Court of Appeal determined that television and other media create “marketable celebrity identity value,” and a celebrity has an exclusive right to exploit this value by prohibiting unauthorized commercial exploitation of their identity.

Continue Reading Move Over Vanna White, Here Comes Marion Barry’s Kidney

A case filed on April 9, 2014 in New York Federal District Court highlights the tension between celebrity endorsements and ordinary First Amendment communications in the digital age. The actress Katherine Heigl, who starred in various middlingly-successful motion pictures, has sued the drugstore chain Duane Reade Inc. for $6 million in damages for tweeting a paparazzi photo of her leaving one of its stores holding Duane Reade shopping bags, with Twitter the tag line: “Love a quick #Duane Reade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”

In her complaint, which alleges deceptive advertising in violation of the federal Lanham Act as well as a New York civil rights statute protecting the use of a person’s likeness, the actress argues that Duane Reade has tried to trick consumers into believing that she has made an endorsement of the company’s brand. The complaint further argues that the image and text has stripped the “story” of any viable news content. To that end, Heigl’s legal team argues that Duane Reade is attempting to obtain what essentially amounts to free advertising at Miss Heigl’s expense – without paying her – by turning her random shopping excursion into an advertisement.

The case raises a number of interesting questions for the advertising industry. It is well-known that the industry has moved to adapt itself quickly to the digital age. For many years now, advertisers and their agencies have moved well past print, radio and video images to which they were formerly limited. For example, it is now common practice for advertisers to run lifestyle blogs that cover topics of general interest but often focus on the latest company news or brand releases cleverly embedded within ordinary content to make it look informal or even off-the-cuff. It is the age of the non-advertisement advertisement. In many cases, readers don’t even know that an entire blog may be a paid “product” that exists solely to advertise a particular brand or item. Often, the blog, twitter feed, or other digital medium is not even connected to the company’s primary “.com” website.
Continue Reading Tweet, Tweet, Sue, Sue: Corporate Twitter Feeds and The Lanham Act

By: David R. Gabor

I. The Art World Is No Longer A Quiet Place

Decades ago, a former counsel for the Metropolitan Museum of Art in New York City commented that transactions in the art world are generally very "hush-hush" and have always been that way. See Gabor, Deaccessioning Fine Art Works, 36 UCLA L. Rev. 1005 (1989).

Much has changed in the intervening years. Like the now-ubiquitous tallies of weekend movie box office grosses, the ups and downs in the art market, driven by spiking art world prices, increasing art speculation, and an influx of the day-trader mentality into the art world, have become fodder for many major publications. Most recently, the value of a significant portion of the Detroit Institute of Art has made national news headlines, with various creditors and experts jousting over the proper valuation of the artworks, for purposes of potential sale within the context of Detroit’s municipal bankruptcy.

Despite the increasing public fascination with blockbuster art auctions, the rarefied world of the discrete art dealer, quietly buying, selling, or trading works, for any number of reasons, including to shore-up shaky owner finances to help them save face, still very much exists.

Continue Reading Red Rothko: Confidentiality Agreements in the World of Big Art