Banana Lady Loses Copyright Lawsuit

I wish this case had been decided before April 1st, because it sounds like a bad April Fools joke. 

The self-described "Banana Lady" (a singer and performer) was hired to perform a singing telegram at a credit union trade association event. After the event, she filed suit against the credit union association claiming they violated her intellectual property rights when employees and other audience members posted photos and videos of her performance on their personal Facebook pages. She claims that she made it clear to the arrangers of the event that audience members were not to take photos or videos and that they failed to inform the audience of these limitations until her performance had ended.

Judge Posner wasted no time in finding that the plaintiff's claims had no merit, and rejecting her argument that her version of the "banana dance" was copyright protected.  The rest of the court's opinion includes a summary of the plaintiff's many other lawsuits relating to her "Banana Lady" persona, including at least 8 federal lawsuits and 9 state lawsuits with similar allegations as the one before the 7th Circuit. The court concludes by suggesting that the district court consider enjoining the plaintiff from filing further lawsuits until she pays her litigation debts, which are well into six figures.

I wanted to post a photo of the Banana Lady [here] but restrained myself.  You can see a full-color photograph on page 2 of the 7th Circuit's opinion at Conrad v. AM Community Credit Union (7th Cir. April 14, 2014)

Social Media & Ethics CLE Webcast

On May 8, 2014, ALI-CLE will present a webinar titled "Ethical Considerations in the Use of Social Media: Avoiding the Common Mistakes" on May 8, 2014, from 12:30-1:30 p.m. (Eastern); 11:30-12:30 (Central), with blog author Julie Tappendorf as the presenter.  

ALI-CLE's summary of the webinar is below.  You can also learn more on ALI-CLE's website.

Attorneys are just as likely to use social media in their everyday lives as non-attorneys. They post pictures on Instragram, “check in” on Facebook, and tweet about politics, music, and what they ate for dinner just like everyone else. But where a hasty post or comment might lead only to embarrassment for some, a seemingly innocent disclosure by an attorney could lead to serious ethical repercussions!

This CLE ethics program on lawyers’ use of social media will help you avoid disclosures in social media that could create ethical problems for you. Designed by Julie Tappendorf, a leading authority on ethical issues, the 60-minute program offers an overview of the most common ways social media use could lead to ethical violations of the ABA Model Rules of Professional Conduct.

This program addresses a series of concrete situations that could generate ethical issues for attorneys, including:

• giving legal advice outside your jurisdiction

• forming attorney-client relationships inadvertently though online activities

• using web sites, blogs, emails and chat rooms

• using social media in litigation

• revealing personal information

• employees’ use of social media

Communicating in an Electronic Age

Blog author Julie Tappendorf recently published an article titled "Communicating in an Electronic Age" in the American Planning Association (APA) April edition of Planning magazine.  The article provides helpful tips and guidelines for plan commissioners and other elected and appointed officials in using email and social media communications in compliance with their obligations to comply with ethics, open meetings and records laws.  The article emphasizes the importance of establishing and ensuring compliance with a local e-communications policy.

You can read the article here.

Know Your Workplace Social Media Policy

We've reported on a number of "employees behaving badly" on social media, resulting in the employee being disciplined and even terminated.  You would think that people would learn from others' mistakes - yet, the examples keep coming in.  Here are a couple of new ones for you to ponder on a Monday morning:

• A 22-year old paramedic in Florida tweeted at work:  "Although everyone's asleep while I work around the clock, I absolutely love my job." 

• A Georgia high school teacher posted pictures on Facebook of her holding a beer in one hand and a glass of wine in another while on vacation in Ireland.

• A South Carolina firefighter posted a cartoon video "spoof" of an exchange between a doctor and paramedic at a hospital on Facebook that showed the doctor telling the paramedic to transport a patient ASAP to another hospital because he had a cold and a runny nose.

• A public relations director tweeted "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" shortly before a flight to South Africa.

What do all of these examples have in common?  All of these employees were terminated from their jobs for their social media activities.   Many of you may be thinking - "what's so bad about some of these posts?" Some of you are probably saying "doesn't sound so different from what I posted this morning/over the weekend/during my work day."  The key factor is that each of these employees violated their workplace social media policies.  

Employees need to read and understand the social media and electronic communication policies.  The policies may not be restricted to regulating social media conduct at the office, at least for some employees like public safety officers, teachers, and others in certain employment fields.  So long as the policy does not restrict "protected speech," whether protected by the First Amendment or labor laws, an employer can regulate it.

Lawyers, Ethics, and the Cloud

The ABA Journal recently reported on the potential ethical issues that can arise with lawyers computing in "the cloud."   Many law firms have begun storing their data in the cloud, which as the ABA article notes, is just “a fancy way of saying stuff’s not on your computer.”  The 18 states that have weighed in on the propriety of cloud storage of data have found it acceptable, but that does not excuse a lawyer or law firm from investigating the source to determine the extent of the security measures for sensitive and attorney-client confidential data.  To read more, you can read this article:  Ethics rulings tell lawyers to seek security when in the cloud. 

Public Employees, Facebook & the First Amendment

Government entities have been establishing and maintaining a pretty active social media presence, with many cities posting about community events on Facebook, tweeting emergency information, and uploading meeting videos on YouTube. And, government employees are just as active on social media as employees in the private sector. So, what is the difference? That would be the First Amendment, which can affect how government can regulate its own social  media presence and how it deals with its employees' social media activities.

Surprisingly, there have been very few cases on the First Amendment and social media use.  In 2012, the Honolulu Police Department was sued for removing negative comments from its Facebook page - that lawsuit is still pending.  Recently, a Court of Appeals ruled in favor of government employees who had been terminated by their boss for "liking" his opponent's campaign page.  And now, we have a new lawsuit filed against Maui County by a county employee who claims the county is violating his First Amendment rights by pressuring him to shut down is Facebook page, where he reports on county issues.  Mamuad v. County of Maui (Dist. Haw. Mar. 3, 2014). You can read the complaint here.

Mamuad is a part-time administrative assistant and volunteer liquor commissioner for Maui County.  In 2013, he established a Facebook page called "TAGUMAWatch." which he later renamed to "MAIUWatch, where he reports on news items of interest in Maui County.  Many of his posts (and public comments) were about the activities of Maui County police officer Taguma, an alleged prolific ticket-writer. Athough Mamuad did not advertise his involvement with the Facebook page, the county learned of the page (remember what I say - someone will always rat you out, and it's usually one of your "friend" co-workers).  The county attorney met with Mamuad and told him to shut down the page.  He refused to do so, and became the subject of a harassment complaint filed against him claiming that his Facebook activities amounted to cyber-bullying.

In his lawsuit against the county, h claims that the county's workplace policies against cyber-bullying violate his constitutional right to freedom of speech. He also claims that the county has "chilled" his First Amendment speech by threatening to terminate him if he does not shut down the Facebook page or moderate his speech.  

In deciding whether the county has violated Mamuad's First Amendment rights, the court is going to apply the Ninth Circuit Court of Appeals test for "public employee speech." That test will require the county to consider the following:

• Were Mamuad's postings on a "matter of public concern"?  
• Did he speak as a private citizen or public employee?  
• Was his speech a motivating factor in any adverse employment action? 
• Did the government have an adequate justification for treating Mamuad differently from members of the general public? 
• Would the government have taken the adverse employment action absent the protected speech?

Many government employers are understandably unsure about their legal limitations in regulating employee activities on social networking sites when those activities negatively impact the government or other employees. This case may provide some guidance to government employers, assuming it doesn't settle before a court issues a ruling.

Lawyer Suspended for Posting Video on YouTube

On March 14, 2014, the Illinois Supreme Court suspended a lawyer for five months after he posted a video he obtained through discovery of an undercover drug buy.  The lawyer thought the video exonerated his client by showing police planted drugs on his client, but the video actually showed his client delivering drugs to a buyer. He violated the attorney ethical rules by not obtaining informed consent before disclosing information about a client, which harmed his client in the criminal proceedings.

Attorneys should be aware of how their social media activities can affect their ethical obligations.