-Kathy Recchiuti

This post might well be more suited for my law partner, but I thought it was too important to pass up. There might be some overlap in the the matters I practice and the matters I comment on. But all in all, I thought this had to be brought to everyone’s attention.

I have commented in the past on issues about the clash between multi-media and criminal prosecutions. There are the comments about first amendment rights, use of the internet and how sometimes those freedoms we hold so dear to ourselves get kicked around by the government. Now, according to this recent AP story, I haven’t seen any criminal prosecutions coming out of the teens’ actions, but I do know that a prosecution for this action is not unprecedented.

The Associated Press recently ran a story about teenagers sending x-rated pictures of themselves on their cell phones to their friends. According to the story “The instant text, picture and video messages have become part of some teens’ courtship behavior, police and school officials said. The messages often spread quickly and sometimes find their way to public Web sites.” (Source).

So, according to this article, this is happening a lot. And both boys and girls are getting in on the action.
“For instance, a central Ohio high school teen made a sexual cell phone video of himself and sent it to female classmates. One of the girls forward the Westerville South High School’s video to at least 30 other people.” (Source).

So, where is the hypocracy you ask? There is nothing in the law that prohibits teen agers from engaging in consensual sexual contact with one another, so long as they are within the age limitations set by various state laws. In Colorado, if one of the participants is under the age of 15, the other participant cannot be more than 5 years older. And, if both participants are 15 to 17 years old, there are no legal issues, again, consent assumed. (Tough being a lawyer sometimes … have to qualify everything). So, with that precedent established, it is acceptable for those teens to engage in sexual endeavors with one another. BUT, if a photograph is taken, whether the person takes it him or herself, or if another teen takes the picture, the crime of child pornography, or sexual exploitation of a child has occurred — regardless of consent, infatuation or love.

In fact, this occurred in Douglas County Colorado, in one of the fastest growing communities in the country, Highlands Ranch. A group of high school students got together for a party and a “sex fest” (for lack of a better term) broke out. The students took pictures of themselves engaged in various sexual acts. They were all prosecuted for sexual exploitation of a child because of the sexual photos.

As the AP story indicates, “a study last year found teens are placing more of an emphasis on image and fame than in the past. Jean Twenge, a psychology professor at San Diego State University who studies young people’s trends, found that teens are more confident and assertive than ever before.” Image and Fame? Teens finding ways to express themselves? Expression? Isn’t that what we adults call constitutionally protected speech? Are we saying that teens don’t have the same constitutional rights as adults do to express themselves? Shouldn’t a teenager have the same right to expression? Or, do we follow the thoughts of Candice Kelsey, a teacher from California and author of Generation MySpace: Helping Your Teen Survive Online Adolescence, that “Adolescents are not known for thinking things through - that’s a generational constant.” (Source). Because of this, instead, perhaps we need to pull back on the reigns of teenage expression to keep the wagon from running amok and over a cliff.

This isn’t Entertainment related but it is worth the read.  Plus, supporting my colleague is always a good thing.

State v. Tyrell on the Defense Zzone with Lia Fazzone

I have to thank my student Jeniffer for bringing this to my attention. I have to admit, that I’ve actually seen stranger things happen in New York. And in this instance, I don’t know which is stranger, the Naked Cowboy or the lawsuit he has filed against Mars, Inc. for “trademark infringement under the Lanham Act and violation of his right of publicity under New York Civil Rights Law §51, arising from a video billboard for M&Ms.”

According to CNN, to lay a little ground work,

For the past 10 years, [the Naked Cowboy has been] the guy you’ve seen on the sidewalk, with the great body, strumming his guitar and singing, dressed in a cowboy hat, cowboy boots and underwear — and nothing else, even in the dead of winter. (Source)

A recent video ad produced by M&M, Mars, Inc. “depicts an M&M frolicking around New York, in what kind of looks like Times Square, in what kind of looks like The Naked Cowboy’s outfit — briefs and nothing more than a smile.”

Now, I don’t pretend to know (or even understand) trademark law in any great detail. I leave that to lawyers like my good friend Randazza to comment on. But, the limited amount of information I know, I have to agree with CNN that the guy might have a case.

According to the Naked Cowboy Complaint,

Burck has licensed The Naked Cowboy name and/or likeness to companies for the purposes of advertising and endorsement. Mars, Inc., had no immediate comment.

His character is part of the USA Network’s “Characters Welcome” campaign; he appeared in a music video for the song “Rockstar” by the multiplatinum artist Nickelback; and he’s featured singing in the video game “True Crime: New York City at Times Square.”

He also has appeared in several movies and television programs, including “Starship Dave,” “Survive This,” “Mulva: Zombie A** Kicker,” “Steve Harvey’s Big Time,” “New York Minute,” “Creature Feature,” “Lonely Planet,” “Troma’s Edge,” “American Icon” and “The Howard Stern Show.”

Well, as always, I will strive to keep you informed as to the developments of this case.

Yee haw!

There are provisions of contracts referred to as “non competition clauses.” In many instances, producers or employers will attempt to narrowly define what the talent or employee can or cannot do when he / she is not working for that particular employer. In many instances, such clauses are invalid. But this is not always the case, and such a discussion is beyond the scope of this posting. In this instance,

A Los Angeles Superior Court judge has voided Suicide Girls’ modeling contracts, ruling that their exclusivity terms are too broad to legally keep models from doing outside modeling work. (Source)

In many instances, those wishing to challenge the provisions will argue that such restrictions are against public policy. But it looks like here that the judge felt the competition provisions were too broad to be enforceable.

The Texas legislature recently enacted a broad prohibition on the “selling, giving, lending, distributing, or advertising” of “obscene devices.” The law defined “obscene device” as any device “designed or marketed as useful primarily for the stimulation of human genital organs.” The law was just struck down as unconstitutional by the 5th Circuit Court of Appeals.

I didn’t write about this, but my very good friend Marc Randazza did. Well worth the educational experience.

Read about it here!

That’s right! Abercrombie and Fitch has just been charged with obscenity. If the FCC’s allegations of a “side boob” and buttocks didn’t get you upset, these allegations against A&F might.

According to the Associated Press,

Police confiscated two display photos of scantily clad men and a woman from a national chain clothing store and cited the store’s manager on a misdemeanor obscenity charge, authorities said. (Source)

Apparently, after a warning, the store refused to remove the photos that

showed three shirtless young men, with one man’s upper buttocks showing. The other image was of a woman whose breast was mostly exposed, authorities said. (Source)

Here’s my issue: the kids are going to be wearing the clothes in this fashion anyway, so what’s the big deal with a picture of an adult wearing them this way??

I’ll keep you posted on the developments of this case.

Read the full Story.

Update: February 5, 2008

Two words: Case Dismissed

Posters of scantily clad youths that were seized by police at an Abercrombie & Fitch store in a Virginia mall this weekend may be inappropriate for young children, but they are not obscene, according to legal experts.

Virginia Beach police apparently have agreed. On Monday, they dropped charges against the clothing company that markets to prep chic teens through sexually charged imagery.

Read this update. 

According to a recent news report,

The Federal Communications Commission (FCC) has proposed fines totaling $1.4 million against 52 ABC Television Network stations in connection with a 2003 broadcast of the cop show “NYPD Blue” which included “multiple, close-range views of an adult woman’s naked buttocks.” (Source)

What’s indecent about this whole thing is the way the FCC is dealing with it! As IT is quoted:

“As an initial matter, we find that the programming at issue is within the scope of our indecency definition because it depicts sexual organs and excretory organs — specifically an adult woman’s buttocks,” the FCC stated in its notice published Monday.

Apparently, these FCC guys haven’t been getting any buttocks lately…

My good friend and fellow FALA member Dr. Marty Klein has a great take on this story. Do him the honors and read it here.

And also, my other good buddy Marco Randazza’s post here.

There’s a lot of law behind this case. So much that it’d take hours to go through it all. In many instances innocent people will end up with images on their computer that they had no idea existed. Under the many state and federal law, one has to “knowingly” possess illegal images to be convicted of violating the child pornography laws.

The 8th Circuit Court of Appeals has upheld the conviction of a Missouri man on a charge of publishing a “notice” offering to distribute child pornography through his use of the Kazaa file-sharing software, despite the defense’s claim that the ‘notice’ in question did not satisfy the definition of that term under the relevant statute.

Read the XBIZ story