Monthly Archives: January 2008

FCC Proposes Fine of $1.4 Mil for Showing Buttocks

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.

Kazaa-Related CP Case; Conviction Upheld

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

Morphed images prosecution violate 1st Amendment

At least in New Hampshire is does…
Our finding that application of RSA 649-A:3(e) to the defendant’s conduct violates his First Amendment right to free speech is limited to the facts of this particular case, where the defendant is charged with mere possession of morphed images that depict heads and necks of identifiable minor females superimposed upon naked female bodies, and the naked bodies do not depict body parts of actual children engaging in sexual activity. Given this finding, we do not reach the defendant’s overbreadth challenge. Accordingly, the defendant’s convictions are reversed.

Fact vs. Fiction; DEA Agents Sue Over ‘American Gangster’

Uh oh! Here we go again. Another group of people suing the movies for falsely depicting them in a movie. This has happened before, many times and to no avail. (See Another Borat Lawsuit). According to the Associated Press, a group of retired federal drug enforcement agents sued NBC Universal on Wednesday, saying the movie “American Gangster” falsely portrayed them as villains in the story of a Harlem heroin trafficker.But, is this case different than the others?

The suit, filed in federal court in Manhattan, claims that the movie defamed hundreds of DEA agents and New York City police officers by claiming at the end that Frank Lucas’ collaboration with prosecutors “led to the convictions of three-quarters of New York City’s Drug Enforcement Agency.” (Source)

Is this just another case of Hollywood distorting reality? New York City Police Department spokesman Paul Browne thinks it is. However, according to NBC Universal Senior Vice President David Burg, the film is a “fictionalized work.”

According to the Complaint

The defamation involved the defendant NBC Universal, through its Universal Studios, falsely communicating, in writing, to millions of people in a motion picture called American Gangster that three quarters of New York City’s DEA, from approximately 1973 through approximately 1985, were convicted criminals. With this utterly false and defamatory statement the defendant has ruined and impugned the reputations of these honest and courageous public servants in the eyes of millions of people who have already been exposed to this defamation and damaged them in their current trades and professions, and, if not stopped by an injunction, will further ruin and impugn their reputations in the eyes of millions more who are about to be exposed to the defamation, and will further damage them in their current trades and professions.

The Complaint seeks relief for the following:

a. Ordering a preliminary and permanent injunction enjoining and estraining defendant, and all its officers and agents, servants, and employees, and all those persons in active concert or articipation with them form directly or indirectly using, distributing or showing American Gangster to anyone else with the false legend;

b. Ordering the defendant to recall each copy of American Gangster that contains the false legend;

c. Ordering that defendant immediately deliver up all signs, prints, packages, and advertisements in its possession or under its control bearing the false legend;

d. Ordering restitution of all moneys obtained directly or indirectly by defendant by means of this improper conduct;

e. Ordering defendant to disgorge all its profits from American Gangster;

f. Ordering defendant to publish in the same media outlets in which it defamed Plaintiffs and the Plaintiff Class the truth about the New York City DEA’s role in the investigation, arrest
and prosecution of Frank Lucas;

g. With respect to each cause of action awarding compensatory damages in an amount to be determined at trial, but at least in an amount of $5,000,000 exclusive of interests and costs;

h. With respect to the first and second cause of action awarding punitive damages of $50,000.000;

i. Awarding prejudgment interest pursuant to Title 28, USC Section 1961(a);

j. Awarding costs and attorneys’ fees in an amount to be determined at trial;

If you’re interested, here’s the American Gangster Complaint.

Announcing new blog — The Defense Zzone

Hey everyone! Check out and bookmark my colleague’s criminal defense blog The Defense Zzone with attorney Lia Fazzone. There you will find interesting takes on various criminal law related topics around the world. Enjoy!

Snipes tax evasion trial begins

I’m not going to spend a whole lot of time commenting on actor Wesley Snipes tax evasion trial going on in central Florida this week. But I will do my best to keep people apprised as to what is going on. I think it’s a good lesson in courtroom and trial procedure and it makes it that much more educational when it’s a celebrity at the center of the bulls eye. I like to look at it from an entertainment law standpoint that there are some very talented people in this world who just make idiotic decision. That doesn’t make them criminals. I wouldn’t say anything differently about any one of my own personal clients either. But, if Snipes was trying to thwart his nose at the US government and avoid paying taxes, he deserves a little taste of IRS Justice. (Read the update)

I’ll try to have my colleague over at the Defense Zzone to expand on the trials and tribulations that are bound to encompass this case.

WGA, Acts of God and Force Majeur

Variety is reporting that last Friday, ABC Studios notified nearly two dozen writers and nonwriting producers it is terminating their overall deals as a result of the WGA strike. (Source) Although the article headline describes ABC’ actions as “Force majeure ax falls at ABC Studios” it doesn’t get into a whole lot of detail what that means.

A “Force Majeur” clause in a contract is a provision that allows a party not to perform under a contract as a result of circumstances beyond a party’s control. This is a little more expansive than “Acts of God” terminology which typically refers to natural forces being the catalyst behind non-performance under a contract. In either instance, a party to the contract is claiming it is impossible for them to perform under the deal because of circumstances beyond their control.

According to Variety,

“The ongoing strike has had a significant detrimental impact on development and production. so we are forced to make the difficult decision to release a number of talented, respected individuals from their development deals,” ABC Studios said in a statement late Friday.

Well, it looks like ABC is going to argue that the WGA strike was an event beyond its control and hence, it is impossible for ABC to perform under the various wirters’ contracts. If that is true, termination of the agreement might be appropriate. However, I guess that begs the question, does ABC have any control over the WGA contracts with the WGA writers and the overall collective bargaining agreement? If it does, ABC could be SOL.

(Read the full story here)

An Associated Press January 15, 2008 follow up:

Report: 4 studios cancel TV writers’ contracts
Move is possible concession that current season cannot be saved

No Delay for Snipes

The Associated Press is reporting that Wesley Snipes attempts to continue his tax evasion trial in Federal District Court have been denied. His trial will continue as originally scheduled on January 14, 2008.

According to the article,

The 11th U.S. Circuit Court of Appeals denied a motion from Snipes’ legal team to delay the trial, which is set to begin Jan. 14. The court also granted federal prosecutors’ motion to dismiss a defense request seeking to move the trial out of Ocala, about 80 miles north of Orlando.

Snipes was indicted

with fraudulently claiming refunds totaling almost $12 million in 1996 and 1997 for income taxes already paid. Snipes was also charged with failure to file returns from 1999 through 2004.

Read the story here.