Wednesday's Weird But True Legal Cases - Vol XLIV

Today's weird (but true) legal case looks at a purim controversy which played out in Olson v. Tenney, 466 F.Supp.2d 1230 (D. Or. 2006).

As noted by the court in its decision, in 1994 Marilyn Olson, a professional writer and novelist, wrote and copyrighted a play entitled Hadassah based on (shockingly) Megillas Esther. At various times, the Plaintiff sent videos of her play to Trinity Broadcasting Network (TBN) and others. Usually the videos were returned to her.

In late 1999 or early 2000, Plaintiff called one of TBN's 800 numbers and asked the person who answered the phone whether TBN “would be interested in Hadassah.” She was transferred to another number where she left a message. Subsequently, she got a call back from another person whose name the Plaintiff could not recall. Following the conversation she sent a video of Hadassah, the Hadassah script, a brochure for Hadassah, and a coloring book to the man who called her back.

Thereafter, on December 7, 2000, Plaintiff posted two messages on the GodChasers Network website in which she stated, "Please let me know if you wanted to see a copy of the new musical named “Hadassah”. This is the story of Esther, 2 hours, 20 minutes long.... Funny, accurate, and extremely entertaining, you might want to consider it for your full length feature film. I can send you a copy of the script and music."

On December 28, 2000, Plaintiff received a response by e-mail from Jenni Baier of GodChasers Network, which stated "I would be interested in hearing more about the musical “Hadassah.” I visited the website, but it seem to be mostly “old” information. Is it currently being performed anywhere? Are there videos available? I am especially interested in finding credible sources that will help us set the historical context for the story." Plaintiff did not respond to Baier's email, and the email was deleted.

Thereafter, in 2002 Tommy Tenny (a Louisiana minister and owner of GodChasers) approached Bethany House, a division of Baker Book House, about writing a novel based on the Book of Esther. After agreeing that a a novel and a nonfiction book should be written, Tenny began to work on the novel with Mark Olsen. Among other things, Tenny and Olsen discussed Persian and Jewish history, Jewish teachings, and the circumstances in which a young Jewish girl like Esther would have been raised as an orphaned exile in Persia during the Fourth Century, B.C.

After the October 2002 meeting, Olsen created a manuscript based on historical reference materials, the Book of Esther, and the ideas he and Tenny discussed at their meeting. Johnson supervised the cover design of the novel and suggested it be named Hadassah. The novel was published in 2004.

On August 18, 2005, Plaintiff filed a copyight infringement lawsuit against Tenny, Olsen, and Baker Book House relating to the novel Hadassah and various derivative works including a children's version, a Spanish translation, and an audio book recording of Hadassah.

In considering the defendants motion for summary judgment, the court performed the traditional access review as well as the extrinsic and and intrinsic tests by which it looks for similarities between the two pieces. I have reproduced the extrinsic analysis below, in which the court found that:

Many of the similarities between the works identified by Plaintiff arise from historical fact. For example, both works relate the fact that women who were not chosen to be queen to Xerxes, the King of Persia in the Fourth Century, B.C., became his concubines, virtual prisoners, and shut away from friends and family. In addition, both works reference the fact that wealthy individuals were carried in litters by servants and observe that anyone approaching the Persian king without permission was killed unless the king granted them an immediate pardon. As noted, copyright protection does not extend to such historical facts.

In addition, many of the similarities identified by Plaintiff stem from the common source of the Book of Esther. For example, both works include the Biblical narrative that Hadassah is Esther's Jewish name and that Hadassah changes her name to avoid being revealed as a Jew in the King's palace. The phrase “Who would do such a thing?” appears in both works and is a phrase taken from the Book of Esther. The incident in which Xerxes takes his ring from Haman and gives it to Mordecai and the role of Memucan as a prince and advisor to Xerxes also are taken from the Book of Esther. As noted, copyright protection does not extend to material from common sources or “in the public domain.”

Plaintiff also identifies similarities between the two works that are considered scenes a faire: i.e.,“incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” For example, both works note Mordecai, Hadassah's relative and guardian, teaches her about her Jewish history and Jewish traditions. Similarly, both works include the theme of Hadassah's growing awareness of and faith in God, a standard development in a work based on a book of the Bible. Scenes a faire are not protectable material.

Plaintiff also alleges the novel's inclusion of the words “wonderful,” “joy,” and “his presence fills the air” when referring to Hadassah's feelings about God violate Plaintiff's copyright. In a work based on a book of the Bible, however, a character's feelings about God are likely to include joy or wonder when the character believes God is near. In addition, scenes in which the queen candidates fight over jewels and clothing and that describe the sadness of the concubines who are not selected for queen are scenes a faire“that necessarily result from the choice of a setting or situation.”

Plaintiff's list of similarities also includes metaphors or cliched language, which like “phrases and expressions conveying an idea that can only be, or is typically expressed in a limited number of stereotyped fashions,” are not subject to copyright protection. For example, both works include phrases such as “Your Majesty,” which is not unusual when a primary character is the King of Persia, and the phrase “fallen in love,” which is common in stories about characters who discover love.

On this record, the Court concludes the similarity of ideas between Plaintiff's musical and the novel and its derivative works arise from a common source, historical facts, scenes a faire, and cliched language rather than from any protectable ideas or expressions. Accordingly, a reasonable juror could not conclude Defendants infringed any protectable ideas or expressions of Plaintiff's musical.

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Tuesday's Thoughts on the Daf - Bava Kamma 65

Bava Kamma 65 begins with an analysis of Rav's computation of damages for theft. Rav explains that one who steals pays back the keren (principal) computed as the value of the object when it was stolen. Meanwhile, when he pays the 2x, 4x or 5x penalty, the value of the object is computed as of the date when judgment is handed down.

Rav's method is later modified by the gemara which limits the application to a situation where the value of the object has decreased subsequent to the theft. By example, if the object was originally worth 4 but is now worth 1, he pays keren as 4, but 2x, 4x or 5x as multiples of 1.

Rav Chanina then attempts to support this understanding by citing to a beraisa involving a shomer who swears an object was stolen (thus absolving him from liability) before recanting and obligating him to pay chomesh (1/5 of total value including penalty). In this beraisa, R' Yaakov states that if he only admitted to swearing falsely after witnesses come and expose his fraud, he pays kefel (2x) and the chomesh satsifies the kefel requirement. How is this accomplished? The gemara on 65b explains that the value was originally 4, but is now worth 1. The kefel (computed at present value) would be 1. The chomesh (computed as 1/5 of total original value inclusive of penalty) would be 1 as well. Thus, Rav Chanina concludes that Rav's principle is vindicated.

Later on 65b, the gemara offers a scenario where Rav Chanina's beraisa would not necessarily support Rav. The gemara suggests that the shomer swore four times that the object was stolen and then recanted. If the object was worth 4 and is still worth 4, then the chomesh would be 1, but this would be multiplied by 4 (based on the number of false oaths). The kefel would still be 4 as this is the present value. As such, Rav Chanina's beraisa could be interpreted in a way other than as a support for Rav.

When we learned this gemara tonight, a member of my daf yomi group asked how a person could swear falsely four times? Once the beis din had absolved him of payment for the object (based on his false oath that it was stolen) why would the beis din make him swear three more times? The Rashba and Me'iri ask this question, and answer that the four oaths were made in four different batei din.

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Max Kellerman's Monday Musings Vol XLIII -Batting Orders, Developing Players and Developing One's Self

As many of you who live on the East Coast are aware, a major snow storm hit today and wreaked havoc with our schools, jobs and lives. Although I did not get a chance to listen to the entire show today, Max Kellerman touched on a couple of important points which I would like to put my own spin on.

Max talked to Joel Sherman about possible changes to the Mets batting order. They theorized that Luis Castillo could be batted in the 9th spot in the order, thereby leaving Jose Reyes as the leadoff hitter, while still giving him the opportunity to drive in base runners. The Cardinals tried this with some success recently (they even inspired a blog called http://www.pitchershiteighth.com/). I don't know how seriously the Mets are considering it, but there are some advantages to it if the number seven hitter can be selective in his at bats.

There was more talk about Brett Gardner (proclaimed by Max as a "stud" last summer, but played more like a spud). Max has somewhat tempered his raving about Gardner as he now states that Gardner is a fourth outfielder. Still Max spoke about the continuation of Gardner's development and how he could replace Johnny Damon and be a good lead off hitter as Gardner is purportedly a Brett Butler clone. Based on the minor league stats compiled by Gardner and Butler I have to disagree with Max. In four ML seasons (347 games) Butler had a .338 BA, .913 OPS and had 302 BBs and only 183 Ks. By comparison over his four ML seasons (381 games) Gardner has a .290 BA, a .774 OPS, 233 BBs and 287 Ks. The only similarities between the two (other than their first name) is that neither hit for power.

Max also talked about the Juan Marques v Michael Diaz fight which he called on Saturday night, proclaiming it as the best sporting event of the year. He made a point of stating that it was a better show than the Superbowl, but this might have something to do with the media hype over February's SB being better than the prior year. Since I did not see the fight I can't comment on whether it was entertaining, but Max's brief description of the match made it sound thrilling. As per Max, both fighters came out firing punches from the opening bell and although Marquez was ten years older than Diaz, he was able to knock him out in the Ninth round.

Max had an interesting take on Johan Santana and his cancelled MRI and elbow issues. Max theorized that the reason why Santana was magically "all better" after 35 pitches in a bullpen session is that the Mets wanted to keep him out of the World Baseball Classic and that by claiming injury, they could save face for Santana and the team so that no one would be upset that Santana was held back from the meaningless tournament. (One of the update guys had a great line that the Yankees were playing an "exhibition exhibition game" tomorrow against Team USA).

Back to the snow issue - Max led the show off with a rant about how rare snow days are and that he only had three in his entire public school career. He then digressed to talk about how pressure packed the school day was and that it was "unnatural" for kids to sit at desks for six hours before being turned loose for recess. (I hope one day to hear Max talk about how he let Esther ditch school and not do her homework, but this is quite a few years off). As part of the recess discussion, Max noted that when kids go to recess, even before they make teams to play sports, they flail their arms and run and scream. Max opined that this was a universal phenomenon and that it was related to kids needing to express energy after being cooped up in school.

Max's discussion of recess is firmly grounded in Torah thought. I recall a high school rebbi who talked to us about using our time off productively so that we would have the ability to sit when we returned from gym/recess/vacation. Indeed, the etymology of the word recreation bears out this principle - as refreshment in body or mind, as after work, by some form of play, amusement or relaxation. By engaging in recreational activity, we re-create ourselves so that we can return to productive activity.

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Sunday Night Suds - Redhook Copperhook Spring Ale

Since its going to snow eight to ten inches in New York tonight, Sunday Night Suds will turn the page on the seasons and look at Redhook's Copperhook Spring Ale.

As readers of this blog are well aware, the Redhook Brewery is a unique craft brewing company as it brews on both the west coast (Woodinville, Washington) and the east coast (Portsmouth, New Hamphire). Regardless of where they are brewed, Redhook products are under the kashruth supervision of the Orthodox Union.

Although the Redhook Copperhook calls itself a spring ale, it does not fit within the parameters of that style of beer. I generally find spring ales to be lightly flavored (citrus of course) with a paler color and nearly no bitterness. The good folks at BA have labeled this beer as an American Pale Ale, which is much closer to the flavors in the brew. Indeed, the only reason to call this a Spring Ale is that Redhook only distributes it in the spring.

The beer itself is true to its name in one respect, it pours a nice copper hue. There is more than average foam and lacing on the glass (which would impress me if I was a Belgian). The beer does not make it to the IPA level of bitterness, but does have some aftertaste which reminds you that it is in the ale family. I would recommend pairing it with poultry or other lighter meat dishes.

Redhook Copperhook Ale is under the kashruth supervision of the Orthodox Union. For the experts take on the Copperhook Ale, please click here http://beeradvocate.com/beer/profile/18134/35061 .

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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Wednesday's Weird But True Legal Cases - Vol XLIII

Tonight's weird (but true) legal case analysis was inspired by a recent letter to the editor which I read in one of the local Jewish papers. The writer had written to the paper to express her displeasure with people not shoveling the snow on their sidewalks. The person then stated that people should shovel because: (1) it was not considerate or menchlich to leave the sidewalk messy; (2) the failure to remove the snow could result in a ticket from the municipality and (3) the property owner could be sued if someone fell on the snow and ice which had accumulated.

I can't argue with the first reason mentioned in the writer's letter above, but the second two have been the subject of numerous court cases. Tonight, I would like to discuss Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59 (1969) which dealt with a pedestrian who slipped an fell on ice which had accumulated on a public sidewalk under a hanging sign.

In Roark, the Plaintiff broke his ankle as a result of a slip and fall on an icy patch of sidewalk. In his complaint, the plaintiff alleged that the ice was a result of water which had flowed off the gutter and leaders of an overhead sign and pooled in broken sidewalk in front of the commercial building.

Following a trial, an Albany County jury awarded the plaintiff $19,000 in damages as against the owner of the commercial building. This award was then affirmed by the Appellate Division. On appeal to the Court of Appeals, the court first went into a discussion about the liability of property owners for snow and ice related accidents, stating:

The basic rules in snow and ice cases were reviewed by the Appellate Division in Cannon v. Pfleider:‘As a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk or to have defects and dangerous conditions in the sidewalk repaired, unless a charter, statute or an ordinance clearly imposes liability upon the owner in favor of the injured pedestrian. The parties cite no provision of any charter, statute or ordinance imposing such liability on an abutting owner. An abutting owner is not liable even though he fails to comply with a provision of a charter, statute or ordinance charging him with removal of snow and ice, nor is he liable for the removal thereof in an incomplete manner. It is also a general rule that an abutting owner is liable if, by artificial means, snow and ice are transferred from the abutting premises to the sidewalk; or if, by such artificial means, water from the property is permitted to flow onto the public sidewalk where it freezes. The basic distinction between liability and non-liability rests upon whether the water, snow or ice was conducted from private premises to the public sidewalk by artificial or natural means. The abutting owner may be held liable in the former case-where the unsafe condition was created by his own wrongful act. He is not liable in the latter case-where he committed no wrongful act.

So what did the Court of Appeals do? They reversed the decision of the lower court, since:

In the instant case there is not one iota of evidence that water flowed from the building or any instrumentality owned or controlled by the defendants. The evidence clearly shows that the water dripped from the sign and that this sign was erected by the tenant before [the landlord] bought the building. There is no evidence that [the landlord] controlled or maintained the sign, although it was attached to a pipe and bracket which were part of the exterior of the building. [The landlord] did testify that he was responsible for the exterior of the building, but the evidence fails to indicate that the water was conducted to the sidewalk because the sign was either negligently erected or maintained by the tenant, or because of a defect in the pipe and bracket which were affixed to the building owned by the defendants herein. The only evidence bearing on maintenance of the sign is the lease under which [the tenant] occupied the premises.

Keep in mind, the law in each municipality is different. However, if the writer of that letter lived in my town, she would be incorrect about the liability for the property owner, since the only liability would be if the homeowner did a poor job shoveling the snow, not of he chose not to shovel at all.

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Tuesday's Thoughts on the Daf - Preempted

Today's daf (Bava Kamma 58) continues a discussion started by the mishna at the beginning of the perek about the valuation of damages. The daf starts by discussing how the animal wound up falling into the field and whether the owner of the animal should pay the value of the benefit the animal received by falling on the produce or the value of the damage caused by the fall. This was largely dependent on the reason for the fall in the first place.

Rather than discuss the daf, I would like to take this opportunity to thank the Kadosh Baruch Hu, my family, friends and the many people who have viewed this 'blog over the last year. Today marks the first anniversary of kosherbeers and what started out as a hobby has quickly grown to be a regular part of my daily life. Through this 'blog I have the opportunity to express myself in writing, but in a different fashion than what I do in the work place. Unlike my work which is dictated largely by the cases I am working on, the 'blog allows me to choose the topics I am writing about, be it: beer, sports, gemara, law or parsha. As a result, I often find myself smiling while I write my posts, even though they are usually written at 11 PM.

So now, one year and two hundred and forty plus posts later, I find myself wondering who gets more out of the 'blog, the people who read my musings, or me for having the ability to express myself. Is this a cause and effect analysis like today's daf? I can't tell you for sure. But I can tell you that I appreciate the 8100 clicks I have gotten over the last year and I hope that you all have appreciated my writing whether or not you agree with me or my opinion on beer, sports, Torah or law (and not necessarily in that order).

Finally, to those of you have served as inspiration for my posting, please accept my apologies if you feel that you have been slighted. I try to attribute the posts b'shem omro (see my post for Max Kellerman's Monday musings here http://kosherbeers.blogspot.com/2009/02/max-kellermans-monday-musings-vol-xlii.html for more on that concept) so that people are credited for their perspectives, while still protecting the privacy of my friends and those who e-mail me questions and ideas (as far as my family goes - you have no privacy).

So here's to many more kosher beers and good friends to enjoy them with!

Neil