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Archive for the month “August, 2013”

Roger Dean and Avatar Revisited: Copyright Infringement? (with images!)

[Author’s Note: since this post this matter has come to a conclusion about which you can read here.]

A couple of weeks back I posted a Musing regarding Roger Dean’s lawsuit against James Cameron.  You can read the post here.  Since that time I have learned that the suit was filed in Federal Court, specifically the New York Southern District Court, with the case number 1:13-cv-04479-JMF.  The Judge assigned to the case is Jesse M. Furman.  Furthermore, the Defendants include also 20th Century Fox Film, 20th Century Fox Home Entertainment, Dune Entertainment, Lightstorm, and Ingenious Film Partners 2.  Finally, as a big Yes fan I cannot believe I did not ready know this, but “Roger” is Dean’s middle name; according to the Court docket, Roger Dean’s first name is “William”!

As I posted before, I will be keeping an eye on this case as it proceeds and will post relevant updates when they happen.  In the meantime, I found a website which had a bunch of images side-by-side which really showed, I think, how much James Cameron, at the very least, was “inspired” by Dean in making the movie Avatar, although some, notably Roger Dean, would say (though possibly in not these words) that these images show how much Cameron ripped off Dean’s images and concepts when making Avatar.

According to the Court’s docket, Dean sued Cameron under the “copyright infringement” umbrella.  Check out the images below (Dean’s and Cameron’s are intermixed; can you tell which is which?) and feel free to post your comments on whether you think Dean has at least a decent intellectual property case against Cameron.

avatar-the-game-20090923020805272_640wrd_04avatar-20091014035730519Roger_Dean___floating_islands133bb-archesmorning1680x1050avatar_image_3-535x301i_dean3avatar_concept_art-3DragonGarden1000x675pix41oWtrTqGQL._SL500_RogerDean-Morningdragon_kleinThe_Iridium_Controversy6a00d8341c630a53ef012876204b00970c-600wi71060-rogerdeangreentower

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Back to the Fifties

Check out Faye Cohen’s blog post “Back to the Fifties ” on her blog Toughlawyerlady here.

Supreme Court Spotlight: Hosanna In the Highest…Court

The First Amendment to the United States Constitution prevents Congress from making any law prohibiting the free exercise of religion. The question of how this freedom to exercise one´s religion intersects with one´s employment rights was considered for the first time by the United States Supreme Court in the recently decided case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. Hosanna involved Cheryl Perich, a teacher (“Teacher”) at a Lutheran (Missouri Synod) Church School (“Church School”) who was terminated after it was revealed that she had narcolepsy. She, through the advocacy of the Equal Employment Opportunity Commission (“EEOC”) which took her case, brought suit against the Church School claiming it acted in violation of the Americans with Disabilities Act (“ADA”). After an adverse decision in the Eastern District Court of Michigan, the EEOC appealed to the Sixth Circuit which remanded the matter to District Court. The Church School appealed to the United States Supreme Court which reversed the Sixth Circuit and is the decision discussed herein.

Pursuant to Lutheran Church Missouri Synod canons there are two (2) types of teachers: “called” and “lay”. A called teacher, in addition to the credentials typically required of a teacher, must also complete accredited theological training. Upon completion, a called teacher is granted the title of Minister of Religion, Commissioned. The Teacher for the Church School was a called teacher and, in addition to typical secular teaching duties, also taught a religion class, led daily prayer and devotionals in her class, took her students to a weekly chapel service, and occasionally led the chapel services herself.

During her tenure with the Church School, the Teacher developed narcolepsy and requested a full school year´s (September through June) leave. The Church School granted the requested leave and replaced the Teacher with a lay teacher for the school year during which the Teacher would be on leave. Despite requesting a full year´s leave, by January 27 of her year of leave the Teacher requested to return to work. The Church School Board denied her request, indicating that it had contracted with a replacement teacher for the year in reliance upon her request for a full year of leave. Accordingly, the Church School requested that she resign and, in exchange, offered to pay a portion of her health insurance premiums. The Teacher refused to resign and on the first day she was medically cleared for work she appeared at the Church School. She was asked to leave but she refused until she received documentation that she did, in fact, appear. When the Church School principal indicated that her conduct (refusing to leave) may lead to her involuntary termination, the Teacher indicated that she had consulted with an attorney with regard to her “rights.” After meetings of the School Board and congregation, the Church School ultimately decided to terminate the Teacher and rescind her status as a Minister of Religion, Commissioned. The Church School Board believed that the Teacher´s above-described conduct amounted to “insubordination and disruptive behavior” and her “threatening to take legal action” damaged her “working relationship” with the Church School and violated the Lutheran Church Missouri Synod doctrinal belief that Christians ought not pursue secular litigation against one another, but engage in intra-church dispute resolution options instead. Consequently, the Teacher brought suit against the Church School claiming it, when it terminated her, violated the ADA as she, suffering from narcolepsy, was covered by its protections.

The Supreme Court´s decision centered around what has become known as the “ministerial exception.” The ministerial exception had been established and employed for many years in the Circuit Courts but had never been addressed by the Supreme Court previous to Hosanna. In reaching its unanimous decision, the Court began its review of relevant precedent with the English Magna Carta of 1215. Under the Magna Carta, King John, the symbolic embodiment of the English government, agreed that the Church of England would have the “freedom of elections” for its clergy and prelates. Of course, as the Court noted, the relationship of the English Church and the government, and the religious control held by each, vacillated over a course of time, but ultimately those English Christians, seeking total religious freedom, migrated to the nascent United States. Moving forward, the Court then traced the concept of a religion being free from the state regarding the selection of its “ministers” in America through the coming of the Puritans from England to America in order to escape the religious control of the Church of England and to William Penn in Philadelphia seeking to declare the independence for the Quakers also from the Church of England. Moving forward to the Eighteenth Century, the Court noted the struggle in the American South between the Church of England attempting to exert control over the selection of clergy and prelates and the American Anglican Church. After this brief overview of the history of religion and law in America, the Court concluded that the preceding is the context in which the Religion Clauses of the First Amendment of the U.S. Constitution were written. Specifically, the Court observed that “the Religion Clauses ensured that the new Federal Government – unlike the English Crown – would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own…Our decisions in that area confirm that it is impermissible for the government to contradict a church´s determination of who can act as its ministers.”

The Court then went on provide an overview of First Amendment cases over the course of American jurisprudence, ultimately concluding that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes on the Free Exercise Clause, which protects a religious group´s right to shape its own faith and mission through its appointments.” Per the description of the Teacher´s role and position within the Church School, the Court determined that the Teacher was a minister and, therefore, within the ministerial exception. The Court concluded that by “[t]he [ministerial] exception …ensures that the authority to select and control who will minister to the faithful – a matter `strictly ecclesiastical.´” The Court also ruled that the First Amendment right to assembly only serves to buttress the Free Exercise Clause´s protection of a religion to make its employment decisions vis-à-vis its ministers.

In response to the argument that suggested the ADA ought to apply to the hiring and firing of a religion´s ministers because the ADA is a neutral and generally applicable law, the Court ruled that the selection of its ministers is an internal decision which affects the faith and mission of the religion itself. By contrast, the general principle of neutral and generally applicable laws is, per the Court, only applicable to the outward physical acts of a religion. The Teacher also argued that the Court´s ruling would suddenly create unfettered chaos with religious institutions´ hiring and firing. Of course, the Court observed that the ministerial exception had been in the Circuits for many years and no such consequence has yet to result.

Finally, the Teacher asserted that the Church School´s argument that she was terminated, at least in part, due to a violation of the Lutheran Church Missouri Synod´s canonical policy that Christians seek intra-church dispute resolution as opposed to a resolution in secular court was pretextual. The Court refused to decide whether the Teacher´s assertion was accurate as such a decision would require a constitutionally impermissible inquiry into the interworking of a church, its doctrinal teaching, whether someone violated that doctrinal teaching, and whether that doctrinal teaching was properly applied. The Court ruled that such an inquiry was clearly a violation of the First Amendment right to the free exercise of religion.

Justice Thomas wrote a concurring opinion simply to say that the ministerial exception also includes a religion´s right to determine for itself what a minister is. Justice Alito (with Justice Kagan joining) also prepared a concurring opinion to make it clear that not only does a religion have the right to determine for itself what a minister is, the Western and/or Judeo-Christian concept of a minister/clergy is also the province of the religion. Justice Alito pointed out that some Eastern faiths do not have “ministers” or “clergy” in the same way as a Western faith but that does not mean that the ministerial exception does not apply to them.

Through the Hosanna decision, the Supreme Court of the United States has formally adopted the ministerial exception ensuring religious groups have complete and ultimate authority in the employment of its ministers.

Originally published on February 14, 2012 in “Upon Further Review” and can be found here.

Employees Beware of Complaining

Check out Faye Cohen’s blog post “Employees Beware of Complaining ” on her blog Toughlawyerlady here.

Why is the Law so Complicated?

Check out Faye Cohen’s blog post ‘“Why is the Law so Complicated? ” on her blog Toughlawyerlady here.

Social Media Sites “Likes” New Law’s Status

Here is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  This article can be found on my website here and was originally published in Upon Further Review on January 11, 2012, and can be seen here.

Land Use Matter Taxing for Church

Nearly two millennia ago, Jesus of Nazareth sagely taught his followers to “render to Caesar the things that are Caesar’s”. In the 21st century it appears that the Commonwealth Court of Pennsylvania had similar advice for a Cheltenham congregation of the First Korean Church of New York, Inc. (hereinafter “the Church”) in the recent matter of First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (1551 CD 2010) (hereinafter “the Case”).

Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (hereinafter “the Government”) sought to collect property taxes on the real estate used by the Church.  The Church, of course, argued that it was entitled to a tax exemption as a principal place of religious worship.  The issue of whether the Church was entitled to an exemption to the taxes the Government sought forms the dispute addressed by the Court in the Case.

The Case’s procedural history is rather long and tangled, including stops at the Montgomery County Board of Assessment Appeals, Township of Cheltenham Zoning Hearing Board, the Court of Common Pleas (hereinafter “the Trial Court”), the Supreme Court of Pennsylvania, and one previous stop at the Commonwealth Court.  Ultimately, the Government was granted Summary Judgment by the Trial Court which was appealed to theCommonwealth Court.  TheCommonwealth Courtremanded to the Trial Court on the issue of whether the property was entitled to a tax exemption.  Upon remand, the Trial Court conducted a two-day non-jury hearing resulting in a decision adverse to the Church, specifically that the Church was not entitled to a tax exemption as an actual place of regularly stated religious worship.  The Church appealed to theCommonwealth Courtonce again, and it is the opinion issued from this appeal that is discussed herein.  The central issue discussed in the Case was whether the property-at-issue (hereinafter “the Property”) the Church claimed it was using, was an actual place of regularly stated religious worship; if it was, the tax exemption applies, if not, the Church would not receive the exemption.  In making its analysis, the Court focused squarely on the evidence presented by the parties at the aforesaid trial.

The Church initially alleged that it was a Korean Presbyterian denomination and that its pastor resides at the Property.  The Property is large, with multiple buildings surrounded by a chain link fence with a couple of locked gates as the only entrances.  Only one of the locked entrance gates was used and could be controlled by remote control from within the buildings at the Property.  The Church further alleged that a more senior cleric visits the Property once per month to preside over services and those services occurred each Sunday from4:30pmto6:00pm, which is followed by a congregational dinner.  The pastor testified at trial and admitted that the Church’s services are frequently attended only by his family and he controls the remote controlled security gate.  Additionally, while there is no sign at the Property identifying it as a church, the Church asserted that the lack of a sign was due to a zoning restriction.

The Government countered the Church’s allegations by asserting that the Property was in extraordinary disrepair and its grounds were overgrown and unkept.  Indeed, the Trial Court found that the Property requires more than $10,000,000 in repairs to make it usable.  In addition to “keep out” signs and other forms of security (such as the aforementioned remote controlled security gate restricting access to the Property), the only rooms on the Property which were heated were those used as the pastor’s residence.  The Government called a local police officer as a witness who conducted surveillance on the Property on seven (7) different occasions.  The police officer testified that he never saw anyone enter or exit the Property when services were alleged to have occurred, however he did see the pastor travel from one building to another within the Property to where services occur each Sunday.  Indeed, the Government implied that the Property was primarily the pastor’s residence as opposed to a church.

The Court determined that much of the Church’s evidence was not credible.  For example, the photographs presented by the Church were from before 1998, and the Church presented no recent photographs or recent church bulletins to demonstrate current religious use.  Ultimately, in view of the above evidence, the Court ruled that the Property was not used primarily as a church and, therefore, was ineligible for a tax exemption.

On appeal to the Commonwealth Court, the Church argued that that was no evidence that the Property was used for any other purpose aside from a church, that it has rooms which are clearly designed for a church to use, and that the Government repeatedly admitted the Church was what it claimed to be through various pieces of correspondence and such.  The Church also attacked the surveillance evidence by indicating that the police officer never interviewed anyone at the Church, that half of the surveillance reports were incomplete, and that, per the aforesaid reports, the lights were on in the building when the Church claimed to have services occurring.  Significantly, the Church pointed out that despite the claims for tax exemption made by the Church, and the allegedly extensive investigation and surveillance by the Government into the same demonstrating that the Church’s claims were allegedly bogus, the Government never pressed any charges when it allegedly discovered that the Church made spurious tax claims.  The Church asserted that the Government’s failure to act with regard to the crime of tax fraud allegedly committed by the Church was evidence that there was nothing illicit or false in the Church’s claim for a tax exemption and that the surveillance conducted on the Church was simply for the purpose of creating trial evidence.

Upon a full review of the evidence below, the Court ruled that the Trial Court did not commit abuse of discretion or an error of law in finding against the Church.  The Court found that there was sufficient evidence presented by the Government to prove that the Property was not primarily used as a Church.  The Court found that the Trial Court conducted an accurate and rather thorough analysis of the facts and issues presented and did not abuse its discretion or commit an error of law.  The Court found that there was simply insufficient evidence to prove that the Property was used by the Church primarily for religious purposes.

In the final analysis, when seeking a tax exemption, a Church must ensure that the Property it uses is primarily used for religious purposes; otherwise Caesar must receive what is his from it.

Originally published on January 10, 2012 in the Pennsylvania Law Weekly section of The Legal Intelligencer and can be found here.

A Prog Rock law suit? Roger Dean says “Yes!”

[Author’s Note: since this post this matter has come to a conclusion about which you can read here.]

The odds are that you have seen the 2009 James Cameron movie Avatar as it is, I understand, the highest grossing movie of all time.  Well, for progressive rock fans the world over, especially fans of the premier prog-rock band Yes, who saw the film, there were things that were surprisingly familiar with the imagery and graphics in it.  As it happens, Roger Dean, the cover artist for prog-rock bands like Yes, Asia, Uriah Heep, and Birdsongs of the Messazoic (among others), thought so as well!  Dean thought the images were so similar that he has filed an intellectual property law suit against James Cameron for, more-or-less, stealing his images for the movie.

I bumped into Dean at the August 3, 2013 Yestival and attempted to ask him about the law suit.  Unfortunately he said that he was not at liberty to talk about it at this time, but I will be following the case closely and hopefully, at a future prog-rock festival, Dean will be a little more forthcoming.  Be sure to check this blog in the future for any updates on this case.

I did notice that at Dean’s art gallery at the Yestival, he showcased the material that seemed most Avatar-like and some of the people browsing around did comment on the similarity between the paintings and the movie.  Coincidence?  Who knows.  Does this prove Dean’s point?  Maybe.

This is not the first time that Dean’s work has been used in film.  The Star Wars prequel trilogy made subtle use of Dean’s imagery and the sci-fi spoof movie Galaxy Quest completely ripped off Dean’s work onYessongs (this has been confirmed on the IMDB trivia site here): compare for yourself, click here for the Yessongs image and here for the Galaxy Quest image.  The difference, it would appear, is that these other film received Dean’s permission to use the images and/or use his images as direct inspiration.  Cameron and his team of movie makers evidently did not do this.

What do you think?  Do the images in Avatar look so much like Dean’s images to warrant the law suit?  Here are some examples for you to check out:

From the movie:
http://myuctv.tv/wp-content/uploads/2012/09/Avatar-landscape1.jpg
http://t3.gstatic.com/images?q=tbn:ANd9GcSF7UtjoyuClxaSAGVTJrSLVdzTJk428QR8TfnKGzJYwhv7LwgQ

http://t3.gstatic.com/images?q=tbn:ANd9GcQrdxkvlpQSTnDiDFqmuWQiImqs2dArCEQQp8sk7Ji1SVge7ZZo

http://liam887.files.wordpress.com/2010/07/avatar_movie_based_ubisoft_game_concept_art_1.jpg

http://www.crisiseconomica2010.com/Portals/0/avatar-afterpartyconceptart-fullsize02.jpg

http://www.wallm.com/images/2012/12/amazing-hd-of-the-3d-epic-movie-avatar-leawo-software.jpg

http://www.wallsave.com/wallpapers/1920×1080/cyborg/681563/cyborg-avatar-hd-by-ihateyouare-jpg-681563.jpg

http://storeimages.impulsedriven.com/product_gfx/avatar_ss6.jpg

http://fc02.deviantart.net/fs71/f/2010/128/a/6/Avatar_HD_Wallpaper_6_by_ihateyouare.jpg

http://blog.signalnoise.com/wp-content/uploads/2010/01/i_avatar1.jpg

http://fc08.deviantart.net/fs70/i/2011/337/1/8/avatar_floating_island_by_lian0013-d4i15pc.jpg

Some of Dean’s work:

http://piensoparagatos.files.wordpress.com/2010/01/roger-dean-arch-terminator-w-yachts.jpg

http://archive.nyafuu.org/foolfuuka/boards/wg/image/1371/33/1371335379420.jpg

http://t0.gstatic.com/images?q=tbn:ANd9GcSqhEy96-S6d12ZOIA6pMRQo8fZAuCr0Is4w5MZDgUnrZFvJM-l

http://www.ciaran-utting.co.uk/wordpress/wp-content/uploads/2012/06/RD-untitled.jpg

http://upload.wikimedia.org/wikipedia/en/thumb/8/8d/Freyja’s_Castle.jpg/300px-Freyja’s_Castle.jpg

http://thepaintednote.files.wordpress.com/2011/11/roger-dean-osibisa-lp-cover1.jpg

http://t1.gstatic.com/images?q=tbn:ANd9GcTH1bVTqBPNOVmPukeNVVeVsB4YH0nLci_Zw1CMZiltYqLYMGw4

http://www.sci-fi-o-rama.com/wp-content/uploads/2010/01/Roger_Dean_Floating_Islands.jpg

http://t0.gstatic.com/images?q=tbn:ANd9GcSs7zkFDhBYj2ExR9hRLlAR_StiaGkOwxWMNGjNji7499PF7R0C

https://judicialsupport.files.wordpress.com/2013/08/71060-rogerdeangreentower.jpg

http://wharferj.files.wordpress.com/2011/02/yessongs.jpg

http://t1.gstatic.com/images?q=tbn:ANd9GcSulhig7Cwth8k7RRVamrMNr0kDvb8a4BXRXXVbUvhB7tADh9bNmw

http://t0.gstatic.com/images?q=tbn:ANd9GcSy_eGwKMZcbK4ilJSTwzC_5XjwzEyA77OJSeIf2kUswNzgAPDj

http://www.progarchives.com/forum/uploads/25789/RogerDean-Morningdragon_klein.jpg

http://farm5.static.flickr.com/4071/4570175503_333ddc93c8.jpg

http://i240.photobucket.com/albums/ff257/taurussongs/yessongs_inside_3.jpg

http://userserve-ak.last.fm/serve/_/3457225/YesYears+disc+4+Yesyears.jpg

http://files.myopera.com/good-music/albums/879717/ArchesMorning1680x1050.jpg

http://t0.gstatic.com/images?q=tbn:ANd9GcTtdDQIiIkJextECuz89eUMFRRtZ_-7jLJ7AeLYRF2m0Vtbn4cb

8/1 Clinic Day!

Today is my first Clinic day since the first Thursday in June 2013.  We took the first Thursday of July off as that was Independence Day.  You can learn more about the Christian Legal Clinics of Philadelphia here.

Despite the issues we discussed at the Board meeting this past Monday, and mentioned in this very blog a couple of days ago, when it comes down to it, the Clinic is an attorney, a client, and God meeting at a church facility to talk about a legal issue.  This is what the Clinic started out as and, no matter how much we build the Clinic up, this is what the essence of the Clinic will always be.  I am thankful I have the opportunity to go into neighborhoods which are less fortunate than my own and help people in real and substantial ways.

Today it appears we have 8 people on the schedule for issues ranging from custody to real estate to taxes.  I hope and pray that I, and the other attorney and paralegal volunteers who appear tonight, can not only adequately address these legal issues but also show them that there is something bigger and greater than the man’s law they came into discuss: God’s law and how it applies to them with infinite and eternal love.

Please pray that we can be effective in assisting our clients tonight, and that our clients are able to connect with Jesus in a real and profound way as we do so.

Thanks!

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