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Las Vegas street performers

Obscene Las Vegas Street Performers, Downtown and on the Strip

A relative of mine went to a show at the Smith Center last weekend, and made the unfortunate decision to walk down Fremont Street after a meal1)This is about 4 p.m. mind you. To say she was horrified by what she saw would be an understatement.  It was not even the folks out there panhandling in, what I will call, less-than-clean, costumes of popular children entertainment characters. Her concern was with the Las Vegas street performers (of each gender) panhandling on the street, nearly in the nude. She, reasonably, asked me, “how is this possible?”

Do we have laws forbidding lewd and obscene behavior from Las Vegas street performers? Why would they not apply in our most populated areas of the Valley? Won’t somebody please think of the children?!

 

A few (not so) obscene definitions

Oxford defines obscene as "(of the portrayal or description of sexual matters) offensive or disgusting by accepted standards of morality and decency."

Oxford defines lewd as “crude and offensive in a sexual way”

As our loyal Clear Counsel Legal Blog readers know, the law definitions differ distinctly from dictionary ones.  Let us take a look at how the Nevada Revised Statutes (NRS) define obscene:

 NRS 201.235  Definitions.

4.  “Obscene” means any item, material or performance which:

(a) An average person applying contemporary community standards would find, taken as a whole, appeals to prurient interest;

(b) Taken as a whole lacks serious literary, artistic, political or scientific value; and

(c) Does one of the following:

(1) Depicts or describes in a patently offensive way ultimate sexual acts, normal or perverted, actual or simulated.

(2) Depicts or describes in a patently offensive way masturbation, excretory functions, sadism or masochism.

(3) Lewdly exhibits the genitals.

 

The Clark County Code defines obscene using the same language, as does the Las Vegas Municipal Code.

And now, on with the show!

 

State regulation of the obscene

As I am sure you recall from our previous discussions on Home Rule, the state government of Nevada must expressly delegate legislative authority to the counties/municipalities before the localities are permitted to regulate an area of the law.

The state legislature did just that in NRS 201.239:

NRS 201.239  Power of county, city or town to regulate obscenity.

The provisions of NRS 201.235 to 201.254, inclusive, do not preclude any county, city or town from adopting an ordinance further regulating obscenity if its provisions do not conflict with these statutes. (Added to NRS by 1979, 364)

 

The state also criminalizes obscene behavior, though as you will see, demarcating the margin between obscene and free expression is quite difficult:

NRS 201.253  Obscene, indecent or immoral shows, acts or performances; penalty.

Except under the circumstances described in NRS 200.710, every person who knowingly causes to be performed or exhibited, or engages in the performance or exhibition of, any obscene, indecent or immoral show, act or performance is guilty of a misdemeanor.

(Added to NRS by 1967, 482; A 1995, 952)

 

How the County handles the obscene

In case you have not brushed up on your municipal boundaries recently, recall that the Las Vegas Strip is not in Las Vegas but in the unincorporated Clark County 2)really Paradise Township, which is governed by the County. Let us take a look to see how the County regulates the obscene:

Clark County Code 12.20.020 Materials and acts unlawful.

It is unlawful for any person to knowingly:

(a) Print, copy, manufacture, prepare, produce or reproduce any obscene item for purposes of sale or commercial distribution;

(b) Publish, sell, rent, transport in intrastate commerce, or commercially distribute or exhibit any obscene item, or hold any obscene exhibition or performance, or offer to do any such things;

(c) Have in his possession with intent to sell, rent, transport or commercially distribute any obscene item;

(d) Write or create advertising or solicit anyone to publish such advertising or otherwise promote the sale or distribution or exhibition of matter represented or held out by him to be obscene;

(e) Place, mark, post, draw or cause to be placed, posted, marked or drawn upon any fence, billboard, building, door, wall, pavement or other surface exposed to public view, any obscene, indecent, or profane word, picture representation or drawing. (emphasis added)

 

If being almost (or completely) nude is considered obscene, then subsection (b) would likely apply and Metro would have the statutory authority to invite the nudists to leave.  As we will see here in a little bit, Metro has become a bit trigger-shy3)talk about a pun in poor taste in arresting people at the behest of the Strip hotels4)at least for trespassing outside the hotels proper.  They have developed5)smartly a policy of checking with the district attorney before arresting anyone for trespassing outside of the Strip hotels.  Given that the code ordinance is ambiguous, Metro is unlikely to remove so-called trespassers until given the legal go-ahead from the DA.

Let us see if the rules for Fremont Street in Las Vegas are any different.

 

How obscene is the Las Vegas municipal code?

Beyond copying the state definition of obscene, Las Vegas defines and criminalizes lewd behavior:

10.40.050 - Lewd exposure.

Every person who wilfully(sic)6)Providence willing, this is a typo in the municipal code website and the actual code spells willfully correctly and lewdly either exposes his person or the private parts thereof in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or procures, counsels or assists any person to expose himself, or to take part in or make any exhibition of himself to public view, or to the view of any number of persons, such as is offensive to decency, or is adapted to excite vicious or lewd thoughts or acts, is guilty of a misdemeanor.(emphasis added)

(Ord. 178 § 5, 1931: prior code § 6-1-20)

 

Note that this ordinance has been in effect, unchanged since 1931. Also note the underlined portions above, a la when gendered writing goes wrong.  By not writing the code with gender neutral language7)who knows, perhaps women were not even allowed in Las Vegas in 1931..I kid our ancestors!, the city only outlaws lewdness by men! Thanks sexism!

How much of a sexual organ needs to be exposed until the act is lewd? A quick walk down Fremont between 3rd and 6th and you will see folks wearing about as little clothing as possible8)I will let your imagination fill in the details.  The Las Vegas Municipal Code, like the one for Clark County, suffers from an ambiguity that is almost impossible for Metro to enforce.   For giggles, take a look at what the city can enforce clearly:

10.40.030 - Profane, vile or obscene language.

The use of profane, vile or obscene language or words upon the public streets, alleys, or highway of the City is prohibited.

(Ord. 6 § 1, 1911: prior code § 6-1-28)

11.68.100 - Prohibited—Special conditions.

(A) The following are prohibited within the Pedestrian Mall:

(1) Parades;

(2) Sleeping or camping;

(3) Littering;

(4) Sexually oriented businesses as described in Section 19.04.040;9)Title 19 of the Las Vegas Municipal Code is no longer in effect, once someone from the city responds to my inquiry as to the definition of “sexually oriented business,” I will pass it along

(5) Feeding birds; and

(6) Solicitation by coercion, as defined in Section 10.44.010.

(B) The following are prohibited within the Pedestrian Mall, except under the conditions stated:

(1) Animals, unless used in connection with a mall activity authorized by The Fremont Street Experience Limited Liability Company or used for the purpose of assisting the visually or aurally impaired;

(2) Mall vending, special events or other commercial activities, unless such activities are conducted by or on behalf of The Fremont Street Experience Limited Liability Company;

(3) The use of unicycles, bicycles and other types of cycles, skateboards, roller skates, in-line skates, hula hoops larger than four feet in diameter, and shopping carts, except as authorized by The Fremont Street Experience Limited Liability Company in connection with special events and mall entertainment;

 

That is quite the list of prohibited activities; in subsection (B)(3) of the ordinance above note how the city council even regulates the maximum size of a hula-hoop.  If the city can regulate the plethora of activities listed above, how are the nearly nude street performers exempt? Oh, what a loaded question.

 

Las Vegas street performers, sidewalks, and the 1st Amendment

And here you thought we were going to talk about costumed folks and local ordinances. The city/county’s hotels have quite the history of preventing folks from performing/demonstrating on their sidewalks, only to be sued (or sue) and find out that the federal courts with jurisdiction over Nevada will not permit an all-out ban of folks that the properties do not desire outside of their establishments.

The 9th Circuit Court of Appeals held in 2001 that the sidewalks outside of the hotels in Las Vegas are public forums, and therefore, subject to the protections of the Bill of Rights of the U.S. Constitution10)The Venetian Hotel sued the Clark County government in an effort to get Metro to arrest the [more than 1,000] Culinary Union representatives protesting outside of the hotel. The Court was not persuaded by the Venetian’s arguments. Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 948 [9th Cir. 2001] Read the case here.  In 2011, the Venetian was back in federal court, this time being sued by Zorro11)obviously not the fictional character, but by a street performer that would dress up as Zorro and play-swordfight with tourists for tips.  The Venetian claimed that Zorro did not have right to perform on the sidewalk outside of the hotel. The Court disagreed. “This Court and the Ninth Circuit already have ruled that the sidewalk in front of the Venetian is a public sidewalk and Venetian Defendants have no right to exclude members of the public from the public sidewalk.”12)Perez-Morciglio et al v. Las Vegas Metropolitan Police Department et al No. 2:2010cv00899 - Document 119 [D. Nev. 2011] Read the case here.

Now that we know that the sidewalks outside the casinos are public forums, the analysis really start to get exciting.  We will now attempt to resolve if the city or county is permitted to pass an ordinance forbidding certain types of obscene or lewd street performances.

 

When is the government permitted to regulate speech?

In United States v. O’Brien13)391 U.S. 367 [1968] Read the case here , Mr. O’Brien was arrested for burning his Selective Service registration during a public war protest. He contended that the law applied to arrest him violated his First Amendment rights to free speech and expression. The Warren Court held that the law passed Constitutional muster, and provided the four part test to evaluate if a regulation preventing speech was constitutional:

[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.14)Id. at 377.

 

I want to call attention to the last clause of the Warren opinion. In essence, any regulation of content-neutral speech15)if the government attempts to censor specific types of speech, the analysis is much tougher, called strict scrutiny.  The analysis above for content-neutral speech is considered to be intermediate scrutiny. If all these terms seem a bit arbitrary to you, do not feel alone. must be narrowly tailored to meet the government interest cited as the first factor. What does that mean with respect to our street performers? The city/county may not outright ban all street performers as a means to prevent the publicly obscene.  So we can strike that idea.

In Barnes v. Glen Theatre, Inc.16)501 U.S. 560 [1991] Read the case here , The Rehnquist Court held that an Indiana statute requiring adult entertainers to “don pasties and g-strings” did not violate the 1st Amendment’s right to free expression:

Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity…The fourth part of the O'Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is "narrowly tailored;" Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose.17)Id. at 571-572(emphasis added)

 

So at least we know that governments may regulate public nudity without it being prima facie18)Latin for 'at first appearance' unconstitutional. Or at least we thought so until the court granted certiorari19)meaning when I higher court requests the records of a lower court case to adjudicate an appeal to similarly situated plaintiffs/defendants from Pennsylvania.

 

Erie v. Pap's A. M.

Erie, PA read the Barnes case above and modeled their own prohibition against public nudity after the law approved of by the Court in that case. Kandyland20)yes, the real name of the club contended that the law violated their First Amendment rights. The Court disagreed:21)though by no means unanimously; the justices were able to form a plurality holding up the Erie statute, but could not agree as to why it was constitutional

Being "in a state of nudity" is not an inherently expressive condition. As we explained in Barnes , however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection…The fact that this sort of leeway is appropriate in a case involving conduct says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we have said, so long as the regulation is unrelated to the suppression of expression, [t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. (internal quotations omitted) 22)529 U.S. 277; 120 S. Ct. 1382 [2000] Read the case here

 

So although the court has affirmed twice now that municipalities may prohibit public nudity, it is only when the nudity is for profit and not political.  You are probably thinking now that this is clear, the city and county should pass ordinances that prohibit lewd dress in public and all will be ok. I am not done with the caveats just yet.

What if, instead of dressing in a provocative manner for tips, the street performers were nude, or nearly nude in the name of political protest.23)Celebrities such as Chelsea Handler, Miley Cyrus, and Chrissy Teigen have all been posted topless photos of themselves in protest of the double standards for men and women..sorry, no links This would certainly qualify as nudity as an expressive condition, and it would be much more difficult for the city or county to codify ordinances against it.

 

So is there no solution?

Well, if you were patient enough to get through that discussion, and then we got to the end and I told you, “sorry, better luck next time,” I cannot imagine that you would come back and see me again.

Why is this important? First, there are children downtown and on the strip and parents have enough to worry about with the plethora smut cards being handed out.  Second, in response to folks that say “yeah, well, that is what happens downtown, if you do not like it, stay away,” I say that lots of folks visit Las Vegas for the first time, from all over the world24)with different levels of comfort with respect to modesty and as good hosts we should at least attempt to make as many of them as comfortable as possible.  But at the same time, the free expression cases are important and need to be respected.

Can we balance the countervailing interests?

Perhaps. A few of ideas:

  1. Require Las Vegas street performers to obtain a license from the county25)hopefully not for a large fee. Las Vegas requires all adult club employees to obtain a work card26)Las Vegas Municipal Code 6.35.080; it does not seem reasonable that the folks working on the street should not be held to the same standard.  Whatever health or safety presupposition that motivated the work card law should also apply to the street performers.  Additionally, lots of the costumed folks deal with kids; we certainly have sufficient justification to have them register with the city.  God forbid something horrific happen like in Times Square. A drop in the number of tourists will directly impact our casino workers, particularly those on the extra board.
  2. If there happens to be folks that perform in the nude as a political statement, we can allocate public areas as “free speech zones” like many college campuses currently have. It allows the opportunity for free expression while the city can protect the public morals.
  3. Prohibit children downtown on Fremont Street. That allows folks that want to perform in an adult manner a safe space to do so, while it makes clear the first-time tourists and families that they should use caution when going downtown.27)I cannot imagine the downtown Las Vegas project will like this idea very much. However, the strip brings in too much revenue for it to go child-free.
  4. Allow adult-oriented street performances only after a certain time of night. Perhaps it could align with the city and county curfew?

I am not contending that any of these ideas are perfect regarding Las Vegas street performers, but one (or more) might be preferable to the status-quo.  Leave a comment with your thoughts! Thanks for reading.

More resources for your perusal:

Vegas Inc.

Las Vegas Sun

LVRJ

Footnotes

Footnotes
↑1 This is about 4 p.m. mind you
↑2 really Paradise Township, which is governed by the County
↑3 talk about a pun in poor taste
↑4 at least for trespassing outside the hotels proper
↑5 smartly
↑6 Providence willing, this is a typo in the municipal code website and the actual code spells willfully correctly
↑7 who knows, perhaps women were not even allowed in Las Vegas in 1931..I kid our ancestors!
↑8 I will let your imagination fill in the details
↑9 Title 19 of the Las Vegas Municipal Code is no longer in effect, once someone from the city responds to my inquiry as to the definition of “sexually oriented business,” I will pass it along
↑10 The Venetian Hotel sued the Clark County government in an effort to get Metro to arrest the [more than 1,000] Culinary Union representatives protesting outside of the hotel. The Court was not persuaded by the Venetian’s arguments. Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 948 [9th Cir. 2001] Read the case here
↑11 obviously not the fictional character, but by a street performer that would dress up as Zorro and play-swordfight with tourists for tips
↑12 Perez-Morciglio et al v. Las Vegas Metropolitan Police Department et al No. 2:2010cv00899 - Document 119 [D. Nev. 2011] Read the case here
↑13 391 U.S. 367 [1968] Read the case here
↑14 Id. at 377
↑15 if the government attempts to censor specific types of speech, the analysis is much tougher, called strict scrutiny.  The analysis above for content-neutral speech is considered to be intermediate scrutiny. If all these terms seem a bit arbitrary to you, do not feel alone.
↑16 501 U.S. 560 [1991] Read the case here
↑17 Id. at 571-572
↑18 Latin for 'at first appearance'
↑19 meaning when I higher court requests the records of a lower court case to adjudicate an appeal
↑20 yes, the real name of the club
↑21 though by no means unanimously; the justices were able to form a plurality holding up the Erie statute, but could not agree as to why it was constitutional
↑22 529 U.S. 277; 120 S. Ct. 1382 [2000] Read the case here
↑23 Celebrities such as Chelsea Handler, Miley Cyrus, and Chrissy Teigen have all been posted topless photos of themselves in protest of the double standards for men and women..sorry, no links
↑24 with different levels of comfort with respect to modesty
↑25 hopefully not for a large fee
↑26 Las Vegas Municipal Code 6.35.080
↑27 I cannot imagine the downtown Las Vegas project will like this idea very much. However, the strip brings in too much revenue for it to go child-free.
General Interest / Las Vegas / Nevada Law - 07/27/2015
Flag of South Carolina

The Confederate Flag Has Little to do with Free Speech

Pardon my pontificating by wading into a politically charged subject, but the issue has really gotten under my skin and I cannot hold it in any longer. And, yes, I am going to take a side in this debate and you may not like it. I am talking, of course, about the hubbub about the Confederate battle flag (or whatever you prefer to call it). Here is my take on the issue: free speech has nothing to do with it.1)What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.

As is well-known, in the wake of the shooting in Charleston, SC, numerous companies and state and local governments have removed the Confederate flag and merchandise bearing images of the Confederate flag from their shelves and buildings. Wal-Mart, Amazon, Sears, and eBay (among others) have all announced that they will no longer sell any merchandise that bears the Confederate flag.2)CNN has the story NASCAR has asked its fans to not fly or display the Confederate flag at NASCAR events.3)The LA Times has the story The South Carolina legislature quite publicly determined to remove the Confederate flag from its state capitol building.4)Reuters has the story

Among other responses from defenders of the flag, the response that drives me crazy and makes me want to write a blog post about it is this: “But, what about my free speech rights? How can Wal-Mart take away my right to wear the flag? That’s unconstitutional!” AAAGH!! No, this is not about your free speech rights. I am not going to tell you5)in this blog post whether you are right or wrong to love the flag and want to fly it or wear it loud and proud, but I am going to tell you6)with peace and love that your free speech rights are not affected.

 

The Constitution and the confederate flag

The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press ….” Simply stated, the United States Supreme Court has consistently (and always) upheld the principle that governments (city, state, national) and their various departments may not codify or enforce laws that tell you what you may or may not say. Most importantly, in order for a restriction on speech to be unconstitutional, the restriction must have been imposed by the government, not by a private citizen or business7)Univision also did not violate the First Amendment by breaking up with Donald Trump.

Now let us look at the examples noted above. When Wal-Mart, Amazon, Sears, and eBay made a business decision that they will not sell merchandise bearing images of the flag, this was NOT an unconstitutional restriction on anyone's free speech rights because their decision was not compelled by a governmental action. In other words, no governmental entity forced these private companies to make this decision. However, if the government passed a law that told these companies that they are prohibited from selling merchandise with images of the flag, that WOULD be an unconstitutional restriction of free speech. To my knowledge, no governmental entity anywhere has yet passed a law telling private companies that they cannot sell such merchandise. These companies have simply made a business decision that they will not engage in certain speech. You, of course, still have every right to own, fly, and/or wear any item you want that shows images of the Confederate flag and no governmental entity has yet told you that you are legally prohibited from doing so. However, you do not have a constitutional right to require WalMart or eBay to sell it to you.

Whatever you feel about the “political correctness” of business decisions by private companies, please, for the love of the Constitution, do not ever say, “But what about my rights of free speech?”

Footnotes

Footnotes
↑1 What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
↑2 CNN has the story
↑3 The LA Times has the story
↑4 Reuters has the story
↑5 in this blog post
↑6 with peace and love
↑7 Univision also did not violate the First Amendment by breaking up with Donald Trump
General Interest / History / News / Politics - 07/22/2015
music and politics

Copyright Laws: When Music and Politics Do Not Mix

We are in the heart of political primary season, meaning we have reached that time, as we do every four years, where politicians play rock songs during their campaign events, followed by musicians becoming irritated and lashing out at said politicians in the press.

Who is in the right here? Are the musicians being overly sensitive or are the politicians violating copyright law? We will have to unpack a few laws to find out. We will have to start at the primary point of reference for all good legal discussions, the U.S. Constitution.

 

Who regulates copyright laws?

Ah, it is time to get out your pocket constitution that I know all of you are carrying!1)I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once. In case you left your pocket constitution in your other pants, I will reproduce Article VI, Section 2:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (emphasis added)

 

Supreme huh? The courts interpret Article VI, Section 2, to mean that if the federal constitution expressly grants authority to the federal government to regulate a subject matter, than the states are preempted and may not pass laws regarding that subject area. If the constitution is silent regarding an issue, then the authority to regulate the matter belongs to the states.

So does the constitution grant authority to the federal government to regulate copyright law? Indeed. Let us look at Article I, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

 

Courts interpret Article I, Section 8 to mean that the federal government has exclusive rights to regulate copyright laws2)copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws.

 

What are the federal copyright laws?

Now we must examine the U.S. Code, in particular 17  U.S.C. 106 and 107:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

§ 107: Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

As you can see, Section 106 grants an exclusive copyright to the author of a musical work to distribute the work as s/he sees fit.  Political campaigns often cite Section 107 as an excuse when accused of using a song at a rally without consent of the artist. To see if their excuse holds water, we will need to review each of the four elements in more detail.

 

How Section 107 of the copyright law applies to music played at a political rally

  • Purpose and character:
    • This is an inquiry into how the copyrighted music is being used. Courts will often look to see if there is a transformative quality in the art's application. By transformative, I mean the use of the work that has a copyright changes or updates how the art was originally published. Additionally, courts will look to see if the copyrighted art is being used for profit or not-for profit. Although most candidates go heavily into debt on the trail, they are using the music for personal gain (power if not money), so this factor will not help.
    • Neither have I seen a campaign transform any copyrighted music for their own devises, so this factor will not assist them.
  • Nature:
    • Is the copyrighted work creative or factual? Use of factual material is given more leeway. Courts will also look to see if the work is published or not; they will be more stringent with unpublished works as creators have the right to decide how and if to release their work product.
    • These rock songs are creative works of art, hard to say the nature of the work supports campaigns using the music without permission
  • Amount of the work used:
    • Courts will look to see how much of a song is being played. Playing less than 30 seconds is more likely to be fair use, than playing the entire track.
    • Yet another strike against the campaigns, unless the candidates want to start running to the stage before a speech.
  • Effect on market value:
    • Will the use of the song hurt the market value of the art? This is where the campaigns have the most trouble. There are few forums that are less ‘Rock and Roll’ than a political rally. If a musician cultivates a counter-culture image, then has a straight-laced3)square politician play his or her song, folks might think that the musician is endorsing this politician. If consumers think the artists is lame, that will hurt sales.
    • Although it is possible for a campaign to use a song without issue under the ‘fair use’ doctrine, it is unlikely.

 

Will a Blanket License help protect them from copyright infringement?

For those music industry insiders, you already know of big corporations that license music on a mass scale.  For the rest of us, a small primer. Most artists belong to one of big companies that license use of their artists’ music on a mass scale4)ASCAP and BMI are the two largest companies. They offer what is called a “public performance license” which allows venues to play the music of the company’s artists without copyright infringement.  Many hotels, convention centers, and restaurants purchase one of these blanket licenses that permits them to play any of the company’s artists.

So you would think that many if a campaign held rallies at the large establishments as discussed, they would be protected from copyright infringement actions by the venues blanket license. However, in the contracts for the license, the music licensing companies explicitly prohibit the application of the license for conventions or rallies, meaning the music may be played in the hallways/elevators/common areas but not to heighten the experience of an event.

Additionally, many, if not all rallies, are posted online or played on television.  These public performance licenses do not cover electronic dissemination, and the campaigns will need to get permission from the publisher. This means if a campaign posts a video of a rally with the candidate coming to the stage to the sounds of the hottest rock act going, they are in violation of the copyright laws.

In turn, campaigns will often buy their own blanket license so that they may play music no matter where a rally is held5)who is to say if your local Pizza Ranch is paid up on their music public performance license.  Even this may not be sufficient, as you can see above.

 

Copyright, The Lanham Act, and Music and Politics

By now, you have got to be thinking to yourself, would it just be easier for the campaign to write an original jingle like they did in the old days?6)Come on, the “We like Ike” jingle was gold. The answer is probably. We cannot wrap up this discussion without the Lanham Act signed by President Truman:

 

15 U.S.C. § 1125 - False designations of origin, false descriptions, and dilution forbidden

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

(2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.

(3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. (emphasis added)

 

This is similar to the fourth factor of the fair use doctrine. If a campaign was to use a song by an artist that did not like or endorse the politics of the campaign, subsection (A) would likely come into effect.  That is why you often will see campaigns claim that they have a blanket license to use the music of the objecting artist, but will cease playing it at future rallies.

If a campaign does not want to write original music, the course of action7)as I am sure you guessed by now is to ask permission of the artist.

 

What have we learned about copyright law in relation to music and politics?

But given that musicians have been making the same complaints publicly every four years since the mid-eighties, is it safe to assume the politicians now know better and will ask permission of the artists to avoid public shaming?

Does not seem so:

8)Is it worse to literally or figuratively hate someone?

 

Not to be outdone by Neil Young, who posted his thoughts on Donald Trump playing "Rockin in the Free World" during his Presidential announcement last month:

 

Yesterday my song "Rockin in the Free World" was used in a announcement for a U.S. presidential candidate without my permission.

A picture of me with this candidate was also circulated in conjunction with this announcement but It was a photograph taken during a meeting when I was trying to raise funds for Pono, my online high resolution music service.

Music is a universal language. so I am glad that so many people with varying beliefs get enjoyment from my music, even if they don't share my beliefs.

But had I been asked to allow my music to be used for a candidate - I would have said no.

I am Canadian and I don't vote in the United States, but more importantly I don't like the current political system in the USA and some other countries. Increasingly Democracy has been hijacked by corporate interests. The money needed to run for office, the money spent on lobbying by special interests, the ever increasing economic disparity and the well funded legislative decisions all favor corporate interests over the people's.9)Source

 

Sounds like just the kind of person you want to represent your mainstream candidacy for the Presidency! Of course, many media outlets picked up on Mr. Young's comments, bringing unnecessary negative attention to the campaign. I am hard pressed to think of examples when asking permission would lead to a less desirable result. Here is more reading on music and political rallies10)my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead's "Electioneering" as a campaign theme.

 

Daily Beast

CNN

NPR

Washington Post

Footnotes

Footnotes
↑1 I hear there is a new ithing case that can hold your pocket constitution and smart phone all at once
↑2 copyright laws are different than trademarks, which states are permitted to regulate so long as the state laws are not contrary to federal trademark laws
↑3 square
↑4 ASCAP and BMI are the two largest companies
↑5 who is to say if your local Pizza Ranch is paid up on their music public performance license
↑6 Come on, the “We like Ike” jingle was gold
↑7 as I am sure you guessed by now
↑8 Is it worse to literally or figuratively hate someone?
↑9 Source
↑10 my favorite section of the press pieces is in the Daily Beast article where Rep. Paul Ryan gets into a public spat with Tom Morello of Rage Against the Machine, oh the cognitive dissonance! That will be hard to top this election cycle. My hope is that a politician adopts Radiohead's "Electioneering" as a campaign theme
Constitutional Law / General Interest / History - 07/20/2015
Attractive Hispanic Woman Leaning on a One Hundred Dollar Bill.

What Woman Should be on the New $10 Bill?

“Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.”-Harriet Tubman

Here at Clear Counsel, we have a staff that includes a group of women that are as hard-working as they are intelligent.  Recently in the office there was a discussion pertaining to which woman should be put on the $10 dollar bill1)Why not the $100 by the way?.  More than a few of the answers were pretty great; we thought we would share three of our favorites2)note that if living women were being considered by the Treasury, we would have included a passionate argument for America’s greatest novelist, Toni Morrison

 

Woman 1: Jeannette Rankin

Of all these amazing women, Rep. Jeannette Rankin is probably going to be my number one pick.  Not only was she the first woman to serve in the U.S. House of Representatives during a time when permitting women in the world of Congress (or any sort of power for that matter) was still tenuous, but she took the challenge in stride. This position was not given to her on a silver platter, and she did not quit in the face of adversity. In fact, she succeeded with very little help (from her brother). I think that most U.S. Citizens could learn a thing or two just by simply hearing her story. What better teaching tool than putting her smack in the middle of a $10 bill?

 

Woman 2: Sarah Winnemucca

She utilized her agency in taking advantage of the fantasies of the patriarchal establishment and ideals of what Native American women were to sell photographs of herself as a Native American princess at as many outlets as possible.  Back in the day, for someone with no business upbringing, nor a thorough understanding of American commerce to come up with such an idea was astounding.  Not only did she make money, she made money for a purpose.  Native American children used to be taken from their families and brought to white boarding schools to be assimilated and to rid them of their culture and traditions.  Sarah used the money she made to petition the federal government for Native American policy reform and even built a school in Nevada just for the children so they would be educated while staying close to their families and keeping their traditions.  Did I mention that her whole tribe except for one was killed by settlers? And, as stated by Wikipedia:

The chief's two wives (including Sarah's mother) and infant son were killed. Although Sarah's sister Mary escaped from camp, she died later that winter due to the severe conditions. Her younger sister Elma was out of the area, as she had been adopted by a French family in Marysville, California.

This means her whole family was killed as well, except for her sister who was adopted by a settler family.  This woman made huge changes for Native Americans even when her own people were no longer around to support her.  Strength, resilience, and and tenacity... truly a hero.

 

Woman 3: Harriet Tubman

Harriet Tubman risked her life as a “conductor” in the Underground Railroad to help free enslaved folks even after she reached freedom. Less known, she was a spy for the Union during the Civil War, providing key information from her scouts about the Confederate positions.   She was the first women in American history to lead a military expedition with several hundred men to free slaves, saving 750 men, women, children and babies.  Tubman helped the Union army because she wanted freedom for people forced into slavery at the risk of being hanged herself. American abolitionist, humanitarian, and during the American Civil War, a Union spy. Need I say more? This women rocks.

Footnotes

Footnotes
↑1 Why not the $100 by the way?
↑2 note that if living women were being considered by the Treasury, we would have included a passionate argument for America’s greatest novelist, Toni Morrison
General Interest / History / News - 07/17/2015
nevada national monument

How the President Applied the Antiquities Act to Create the New Nevada National Monument

“The new Basin and Range National Monument is an area where the Mojave Desert meets the Great Basin and Joshua trees and cactus give way to a sea of sagebrush. It is home to desert bighorn sheep, mule deer, elk and pronghorn antelope. The land provided food and shelter for ancient people and we can still see the history of those people today in the incredible rock art panels. This area is a time capsule of our pioneering western history, from early explorers to mining to the ranching that still exists today. In its center is City, a grand modern art sculpture by world renowned artist Michael Heizer. It is a peaceful place. To me, it feels like home.” -Senator Harry Reid1)Elko Daily

 

“The immensity of man’s power to destroy imposes a responsibility to preserve.” -Congressman John F. Lacey, (R-IA), 1901

****Late December 2016 Update****

Image

28 December: President Obama, applying the very powers discussed below, named Gold Butte a national monument.

See below to learn about the political craftswork done by President Teddy Roosevelt to get this law put into effect.

(You must be wondering why the Congress would ever assent to assign such unchecked power to the executive..)

[End note]

Last week, President Obama, with the authority granted to his office by the Antiquities Act of 1906, declared 704,000 acres of land2)approximately the size of Rhode Island north of the Las Vegas Valley the Basin and Range National Monument.  Although much of the national press accords the credit3)or blame depending what you read to Sen. Reid for the creation of the monument; however, only President Obama has the authority to create the monument, and he alone decided if and when to act.

There are not many areas that the President has authority to act unilaterally; creating national monuments is one of the few.  Why was the office of the President granted this authority? And how has the power been applied in the 100 years since the act was signed into law by President Theodore Roosevelt?

Let’s get to it.

The Text and History of the Antiquities Act

The Act for the Preservation of American Antiquities (the Antiquities Act) was a product of the progressive political movement4)which consisted of members of both parties that began in the 1890s and culminated in 1916 with the creation of the National Park Service. Congress received multiple reports from the American Southwest that significant historical sites were being vandalized and pillaged by folks that want to steal artifacts and natural resources. Rep. John Lacy5)of the great state of Iowa attempted for more than ten years to pass this legislation to protect these areas, and finally, with the political assistance of the immensely popular President Roosevelt6)for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex, he was finally able to pass the bill in June of 1906.7)In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate. Section 2 of the bill states:

The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.8)16 U.S.C. [United States Code] 431, 1906(emphasis added) 9)Source

 

Richard Sellers10)a historian for the National Park Service wrote a great piece on the history of Federal preservation of land.  In it, he provides some context for how and why the Antiquities Act was passed:

In the realm of historic and natural preservation on the nation’s public lands, no law had ever approached the scope of the 1906 Antiquities Act. Much more broadly than with individual national park enabling legislation, the Act made explicit that preservation of historic, archeological, and other scientific sites on lands controlled by the federal government was indeed a federal responsibility. Somewhat analogous to the government’s concern for protecting private interests on private property, the national government accepted its obligation to protect the broad public interest on public lands, in this instance at places containing important remnants of the American past and significant scientific areas. The Act also made it clear that, unlike the forest reserves, the primary value of such special places lay not in their commercial value—in economics, sustainable harvesting, and profits—but in their contribution to education and knowledge for the general public good through research conducted and information disseminated by scientific and educational institutions.11)pg 293 Read the article here

 

The reasoning behind the law is fairly intuitive.  The language used is less so.  How is 700,000 acres of land a monument12)Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster? Does the term “scientific interest” really mean(in application)) any non-commercial interest? More from Mr. Sellers:

In what was from the first its most prominent section, the Act authorized the President to reserve special places located on lands controlled by the federal government: to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” These places were to be designated “national monuments,” a term Hewett13)Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time. devised, which distinguished them from national parks. While it employed the same proclamation procedure that had been used to establish the Casa Grande Ruin Reservation, it gave the President far greater authority, moving from the one-site authority for Casa Grande to placing no limits on the number of sites presidents could set aside. It thus significantly advanced the preservation authority of the Executive Branch, from not only managing preserved places such as archeological sites, battlefields, and national parks, but also establishing areas to be preserved. The Act’s inclusion of the phrase “scientific interest” opened the way for presidential proclamations that ultimately would set aside a huge array of scenic national monuments having important scientific values. (In 1978, the “scientific interest” wording of the Antiquities Act would help provide statutory authority for President Jimmy Carter to proclaim national monuments in Alaska that added more than 40 million acres to the national park system.) 14)Id. pg 294

 

Very sneaky, indeed. President Roosevelt went on to declare Devils Tower15)of Wyoming the first national monument under the new law in September of that year.  Like most power granted to the executive branch16)see the War Powers, generally, the reach of the authority expanded as the years passed.

This type unilateral executive power of the Antiquities Act was not unopposed

Our friends in the Congress have not17)and are not huge fans of the President's unfettered authority18)at least when it comes at no political risk to themselves to declare lands sole property of the federal government. The first spat between the President and Congress occurred in the 1940s when FDR wanted to expand Grand Teton National Park to include the area surrounding Jackson Hole, Wyoming. Congress refused, “because, in the words of Sen. Henry Ashurst of Arizona, ‘the other States are not going to put over on Wyoming something that her two senators do not want.’”19) Source

Congress, irritated that the natural wealth and beauty of Wyoming could no longer be sold for profit to the highest bidder20)I kid, I am sure this was only about state sovereignty, passed the first exception to the Antiquities Act which prohibits the creation of any national monuments in Wyoming unless there is express authorization from Congress21)16 U.S.C. 431a, by express I mean written, passed legislation.

President Carter was the next chief executive to take the power granted by the Antiquities Act beyond what Congress found palatable. In the late 1970s, Congress could22)or would depending your perspective not pass legislation to protect wilderness of Alaska.  President Carter took on the political risk and declared 56 million acres as a national monument using the Antiquities Act. “Like FDR, [President Carter] sidestepped Congress, which up to that point had failed to pass an Alaskan lands protection bill because Alaskans opposed it. Alaskans in the area were incensed, and citizens in Fairbanks even burned President Carter in effigy.”23)see the NPR story cited above.

Note though, that no matter what folks said (or burned), the national monument designation remained.

Some politicians are unhappy with the new Nevada national monument

This discord between the President and the Congress/state governments continues.  Governor Sandoval, Senator Heller, Rep. Heck, and Rep. Hardy all have made public statements condemning the President’s use of the Antiquities Act to create the new Nevada National Monument.  All are displeased with not being more involved in the process, with Rep. Hardy expressing additional concerns about the national monument hurting economic growth in his congressional district.  When asked by KNPR about the Republican objections, Sen. Reid responded “I told them all what I was going to do,” he said. “Maybe they should have said something then.” 24)Source.

As an added externality, could this be Yucca Mountain’s last stand? There is speculation now that it will be all but impossible to build the railroad necessary to connect a potential Yucca Mountain repository.  To quote Robert Halstead, director of the Nevada Agency for Nuclear Projects, "This is the final nail in the coffin.”25)Source

 

Read more about the Basin and Ridge national monument here

Footnotes

Footnotes
↑1 Elko Daily
↑2 approximately the size of Rhode Island
↑3 or blame depending what you read
↑4 which consisted of members of both parties
↑5 of the great state of Iowa
↑6 for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex
↑7 In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate.
↑8 16 U.S.C. [United States Code] 431, 1906
↑9 Source
↑10 a historian for the National Park Service
↑11 pg 293 Read the article here
↑12 Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster
↑13 Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time.
↑14 Id. pg 294
↑15 of Wyoming
↑16 see the War Powers, generally
↑17 and are not
↑18 at least when it comes at no political risk to themselves
↑19 Source
↑20 I kid, I am sure this was only about state sovereignty
↑21 16 U.S.C. 431a, by express I mean written, passed legislation
↑22 or would depending your perspective
↑23 see the NPR story cited above
↑24 Source
↑25 Source
General Interest / History / Las Vegas / News - 07/16/2015
Statue of Abraham Lincoln

Lincoln and Magnanimity

I enjoy reading, especially biographies1)Though I do admit to having read the Harry Potter series, the Divergent series, the Hunger Games series, The Maze Runner, The Giver, and an occasional John Grisham [among other mindless literature]. Do not judge me.. I have thoroughly enjoyed biographies of George Washington, Benjamin Franklin, John Adams, Alexander Hamilton (you probably sense a pattern there), Harry Truman, Theodore Roosevelt, and leaders of my church, among others. I love seeing how these quite imperfect human beings overcame their many human flaws to become powerful and influential leaders. I see in these leaders characteristics that I would like to develop within myself because I see my own weaknesses in their strengths. Of all of these character traits, the one that struck me as personally important, particularly within the practice of law and as a business owner, is to be magnanimous: very generous or forgiving, especially toward a rival or someone less powerful than oneself.

With deference to my favored author David McCullough,2)If there is one person that I would love to buy lunch to steal an hour of his ear, it is author David McCullough, who wrote biographies of Adams, Truman, and Roosevelt. A free estate plan is offered to anyone that can make this happen for me. my single favorite biography is Team of Rivals: The Political Genius of Abraham Lincoln by Doris Kearns Goodwin. In Team of Rivals, Goodwin profoundly impresses on the reader the power of Lincoln’s magnanimous nature. At the outset of his presidency, Lincoln surrounded himself with cabinet members that exceeded his own political power in the day3)thus a “Team of Rivals”. In a surprising move, Lincoln appointed to his cabinet William H. Seward (Secretary of State), Salmon P. Chase (Treasury Secretary), and Edward Bates (Attorney General), all of whom had vied for the Republican nomination as President, but were defeated by Lincoln. Not fearing the political influence of such strong personalities, Lincoln knew that he would be a better President with their advice than he would be with them acting outside of the White House4)possibly against him...I am looking at you Mr. Chase. Also, including them in his cabinet had the effect of strengthening the whole party that was on the brink of fracturing.

 

How Mr. Lincoln dealt with General McClellan

A well-known example from Lincoln’s presidency highlights his magnanimity. George B. McClellan was Lincoln’s General of the Union army as the Civil War began. It was no secret in the day that McClellan viewed himself as superior to Lincoln in every way and in fact publicly referred to Lincoln as “nothing more than a well-meaning baboon” and “ever unworthy of his high position.” Nevertheless, McClellan enjoyed unparalleled popularity among the Union troops and in the public.

At one critical early juncture of the Civil War, Lincoln, Seward, and John Hay called on McClellan at McClellan’s residence. Finding him not at home at the time, Lincoln waited. After an hour of wait, McClellan arrived home and was informed that Lincoln was waiting on him. Rather than meeting with his Commander-in-Chief, McClellan retired to bed without so much as a hello to the President of the United States. Lincoln waited an additional thirty minutes before being informed that McClellan had retired to bed and would not see the President that night. Both Seward and Hay were outraged at the open disrespect of the President. However, Lincoln famously replied that is was “better at this time not to be making points of etiquette and personal dignity.”5)Read more here

Lincoln’s example teaches several important principles for practicing lawyers, myself principally among them. First, there is no need to fear opposing viewpoints. We too often default to degrading opposing counsel’s arguments with hyperbole, superlatives, and personal attacks6)veiled and not-so-veiled. Instead, we should recognize that opposing counsel has generally worked diligently at their arguments and that even if we do not agree with their arguments, we can respond appropriately and effectively without resorting to ineffective hyperbole and personal attacks. At the very least, we can do more to give the benefit of the doubt to opposing counsel even if counsel’s effort is less than lackluster.

Second, there is no need to take personal offense to perceived (or actual) slights from opposing counsel that does not follow the first point above. When our clients’ best interests should be at the forefront of every response, we need not be distracted7)and run up our clients’ bill by engaging opposing counsel in the gutter. Our “personal dignity,” as Lincoln noted, will be greatly increased by not making “points of etiquette” at the expense of our clients’ bill.

Though my darts rarely hit the bulls-eye of magnanimity, particularly on these two points, I hope to score a few points by at least hitting the dartboard once in a while. At worst, I hope to keep my aim and attempt to be a little more magnanimous today than in previous days. Although none of us can be as patient and understanding as Mr. Lincoln, conscious effort is the first step.

Footnotes

Footnotes
↑1 Though I do admit to having read the Harry Potter series, the Divergent series, the Hunger Games series, The Maze Runner, The Giver, and an occasional John Grisham [among other mindless literature]. Do not judge me.
↑2 If there is one person that I would love to buy lunch to steal an hour of his ear, it is author David McCullough, who wrote biographies of Adams, Truman, and Roosevelt. A free estate plan is offered to anyone that can make this happen for me.
↑3 thus a “Team of Rivals”
↑4 possibly against him...I am looking at you Mr. Chase
↑5 Read more here
↑6 veiled and not-so-veiled
↑7 and run up our clients’ bill
General Interest - 07/10/2015
Young Couple Riding Motor Scooter Along Country Road

The Rights of a Scooter to Drive on the Shoulder

A client recently received a traffic citation for driving his motorized scooter on the shoulder of a city street in Las Vegas, Nevada, after an accident with another vehicle. The citation listed 0610 “restricted access” as the violation. I have seen many scooters drive on the shoulder of a road in the Las Vegas area; thus, I wondered whether the officer was correct in asserting that it is illegal for scooters to drive on the shoulder.1)For purposes of this blog post, “shoulder” means the area of the road to the right of the right-most lane, on the opposite side of the white, solid line.

The short answer is “most likely.” There is ambiguity in the law, but for the reasons stated below, an officer is most likely supported in citing a scooter driver for violating the law if driving to the right of a solid white line on a shoulder. However, if the scooter driver is involved in an accident while driving the scooter that was not his fault, he may not be precluded from recovering damages from the accident.

 

The rights of motorized scooters are not fully defined in the NRS

The Nevada Revised Statutes (NRS) that pertain to traffic laws and are found in NRS 484A-484E, and they do not contain a provision or law that appears to match the violation of “restricted access” cited by the police officer in my client’s case. A statute that refers restricted areas that may be the closest to the relevant situation is found in NRS 484B.510, which is titled “Stopping, standing or parking in restricted parking zone.” The NRS does not specifically define restricted parking zone, but the text of this statute makes such a zone sound like an area that has signs marking it—such as a 10 minute loading zone or similar. This is not the typical roadway shoulder found in the Las Vegas valley.

The violation of crossing a white line on the freeway is governed by NRS 484B.587, but there is no reference to non-freeways. Thus, while an officer may be supported in believing there was a violation for the driving of a scooter on the shoulder of a non-freeway, the “restricted access” violation likely does not match with the alleged improper actions.

 

Applying statutory definitions of moped, vehicle, roadway, and shoulder to better understand the rights of  a motorized scooter

My conclusions that scooters are nonetheless not permitted to drive on the shoulder are almost exclusively based upon the definitions found in the NRS with some corroboration with the Nevada Administrative Code (NAC) and the Nevada Department of Motor Vehicles (DMV). Case law on the topic in Nevada is silent. The main definitions upon which I rely are “moped,” “vehicle,” “roadway,” and “shoulder,” the last of which is only provided in the NAC.

Under Nevada law, a motorized scooter is identified as a “moped,” which is defined under NRS 484A.125:

a motor-driven scooter, motor-driven cycle or similar vehicle that is propelled by a small engine which produces not more than 2 gross brake horsepower, has a displacement of not more than 50 cubic centimeters or produces not more than 1500 watts final output, and

1. Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

2. Is capable of a maximum speed of not more than 30 miles per hour on a flat surface with not more than 1 percent grade in any direction when the motor is engaged.

 

NRS 484A.125 specifically states that “moped” does not include an electric bicycle. On the other hand, a moped is a “vehicle” under NRS 484A.320 because it is a transportation device that may be used on a highway and is not moved by human power: NRS 484A.320 defines a “vehicle” as follows:

“Vehicle” means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except:

1. Devices moved by human power or used exclusively upon stationary rails; and

2. Electric personal assistive mobility devices as defined in NRS 482.029.

 

Since a moped is a transportation device not moved by human power nor is it an electric personal assistive mobility device, it is a vehicle under Nevada law. There is some circularity in the definitions here because the definition of highway under NRS 484A.095 states that it designed for vehicles, and the definition of vehicle states it is a device allowed on a highway. However, to say that a moped is not a permitted on a highway would lead to an absurd result of not allowing a moped on the road at all; therefore, my conclusion assumes that mopeds are permitted on the highway and are thus vehicles. This means that any law that applies to vehicles also applies to mopeds unless there is an exception.

It is important to recognize that a highway in Nevada is defined very broadly as follows:

“Highway” means the entire width between the boundary lines of every way dedicated to a public authority when any part of the way is open to the use of the public for purposes of vehicular traffic, whether or not the public authority is maintaining the way.2)NRS 484A.095

 

Many people may think of a highway as a major street or road that is not a freeway, often due to famous highways such as Highway 69 or 101. As shown by the above statute, when dealing with the Nevada laws on traffic, the word “highway” is specifically defined and is simply the entire publicly open surface available for “vehicular traffic.” Under NRS 484A.215, a “road” is basically the same as a highway except that it is “outside the territorial limits of a city.”

On the other hand, a “roadway” is narrower in scope than “highway” because it includes just the improved portion of the surface that excludes the shoulder. NRS 484A.220 defines “roadway” as “that portion of a highway which is improved and ordinarily used for vehicular traffic, exclusive of the shoulder.” (emphasis added). The definition of roadway thus shows that the shoulder is not a part and it is for vehicles, which includes mopeds. It does not state that vehicles are not permitted to travel in the shoulder. The term “shoulder” is not defined in NRS 484A-484E.

It is a false inference to think that because the roadway is for vehicles, the shoulder is not. The fact that the roadway excludes the shoulder just differentiates the roadway from the shoulder, but there is nothing that states that the roadway is the only area for vehicular traffic or that the shoulder is not for vehicular traffic; the roadway is ordinarily used for vehicular traffic as opposed to the traffic of horses, pedestrians, bicyclists, sheep, or other possible roadway users, all of which may be permitted but are not the ordinary users. Just because the roadway’s ordinary use is for vehicular traffic does not mean that the shoulder is not also for a similar use.

The same logic may be applied to NRS 484A.300, which is titled “Traveled portion of highway” and is defined as that portion of a highway improved, designed or ordinarily used for vehicular traffic, exclusive of the berm or shoulder.” Just because the traveled portion of the highway is designed for or used by vehicles does not mean that the shoulder is not. The exclusion of the shoulder as part of the roadway or traveled portion of the highway is a physical characteristic of the respective public thoroughfares, and the use by vehicular traffic is a characteristic of its intended use.

There is no statute that specifically states that vehicles, including mopeds, are not allowed on the shoulder; however, there would be an absurd result if vehicles were permitted to travel on the shoulder. The shoulder is separate because it has a different function; it is also usually marked with a solid white line. If the shoulder were permitted for vehicular travel, then why paint the solid white line at all or even refer to it as a shoulder? Frequently, the shoulder is not large enough to safely drive a vehicle while remaining entirely on pavement and not encroaching on a neighboring lane.

Thus, logically, the shoulder is different from a regular vehicle travel lane, and since it has no specifically stated purpose, it is likely not a lane designated for ordinary vehicular traffic. It is a commonly accepted rule that cars and trucks are not permitted to drive on the shoulder. The law establishes that mopeds are vehicles. If you put the two together, mopeds are not allowed to drive on the shoulder.

 

The Nevada Administrative Code is instructive

The Nevada Administrative Code3)NRS 408.215 [4] grants authority to the Director of the Department of Transportation to "adopt such regulations as may be necessary to carry out and enforce" the intent of the NRS with regards to transportation regulation, while not a direct authority, provides more specific guidance. It defines “roadway” and “traveled way” similar to the NRS but also includes a definition of “shoulder.”4)NAC 408.245, 408.260 NAC 408.250, it states that “Shoulder” means the portion of the roadway contiguous with the traveled way for the accommodation of stopped vehicles, emergency use and the lateral support of the base and surface.

Thus, when read with the NRS definition of vehicle to include mopeds, NAC 408.250 shows that shoulders are not available for moped travel and may only be used for stops and emergencies.

The DMV Driver’s handbook contains a more thorough statement regarding the purpose and function of solid white lines. It states that “a solid white line is also used to mark the edge of the highway as well as the boundary between a travel lane and a highway shoulder.”5)DMV Driver’s handbook, page 30, July, 2014 While the DMV handbook is not an authority, it would be persuasive in its interpretation of the law.6)particularly because the term "boundary" is not defined in the NRS

While it is likely that a traffic citation issued to a driver of a scooter or moped for driving on the right side of a solid white line is likely proper. The law is not clear that mopeds are not allowed to drive on the shoulder, but the law identifies mopeds as vehicles, and vehicles should not drive on shoulders.

Even if a person violates that law by driving on the shoulder on a scooter, other drivers have a duty to drive safely and watch for other users of the highway. Just because the scooter driver was driving on the shoulder at the time of the accident does not mean that they will be found at fault for the accident. In 2005, the Nevada Supreme Court ruled that a violation of a traffic statute by a victim of a vehicle accident will not preclude the victim from recovery.  You can read Langon v. Matamoros here.

The outcome of every case is fact sensitive. Please contact an attorney if you have questions about this or any related matter as this is not legal advice.

Footnotes

Footnotes
↑1 For purposes of this blog post, “shoulder” means the area of the road to the right of the right-most lane, on the opposite side of the white, solid line.
↑2 NRS 484A.095
↑3 NRS 408.215 [4] grants authority to the Director of the Department of Transportation to "adopt such regulations as may be necessary to carry out and enforce" the intent of the NRS with regards to transportation regulation
↑4 NAC 408.245, 408.260
↑5 DMV Driver’s handbook, page 30, July, 2014
↑6 particularly because the term "boundary" is not defined in the NRS
General Interest / Las Vegas / Nevada Law / Personal Injury - 07/07/2015
Full moon over the Hofvijver - The Hague, The Netherlands

Service of Process under the Hague Convention

We recently had a wake-up call when trying to sue a Canadian defendant.  Our judge reminded us that we needed to serve the defendant in compliance with the Hague Convention.  We immediately did Google searches on service under the Hague, but came up with conflicting information.  So, we looked for process servers who understood the Hague Convention and could walk us through the process.  The result: highway robbery.  The process servers began quoting us prices between $2000 and $5000 for service.  I was shocked.  This is a far cry from the $50 to $200 I usually pay for service.

This caused me to research a bit more and carefully read through the provisions of the Hague Convention that govern the service of process.  Hopefully you will find my research beneficial.

 

The Basic Framework of the Hague Convention

Under the Hague Convention, the drafters were concerned about member states being able to use the civil and commercial judicial processes against the citizens of other member states.  The Hague wanted to (1) ensure that service of process was possible and (2) that it would not be abused.  To promote these principles, the Hague enacted the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.  The text can be found here.

Under Article 5 of the Convention, service under the Hague must be under a method that is approved of by the Receiving State, which in my case is Canada.   As a practical matter, your local court will likely also require that service is proper under your requirements.  Thus, service under the Hague Convention likely must comport with the rules of both jurisdictions.

 

Service Through the Hague Convention Authorities

Under Article 2 of the Convention, each member state must set up a “Central Authority” that will arrange service in its jurisdiction.  A list of the Central Authorities can be found here.  Articles 2 through 7 set forth many of the details pertaining to the Central Authority.  In essence, each member state must set up a governmental agency called the Central Authority that will accept service requests and will either serve the papers or have them served.  There is a form that must be filled out properly in duplicate with the papers to be served attached to each duplicate.  A copy can be found here from this webpage. There are also rules about language.  Once the Central Authority receives the form, it must accept the form and perform service, or reject the form with an explanation of why the form is deficient.   Once service has been completed, the Central Authority must provide a certificate of service, or if service was unsuccessful, a certificate of attempted service.

I have read the horror stories about how long it takes to serve through the Central Authorities. According to the Hague’s website, 66% of requests are executed within two months.  That means that 1/3 requests take longer than two months to complete.  In other words, if you are serving through a Central Authority, leave yourself plenty of time for service.

There is a provision under Article 15 of the Convention that seems to state that a judge is free to file a default judgment against a defendant and presume that service was proper under the Hague if

(a) the document was properly transmitted to the correct Central Authority,

(b) at least six months have passed since the transmission of the document to the Central Authority, and

(c) the Central Authority has not issued a certificate even though the requesting party followed the requirements for service.

The plain language of the Hague Convention1)which I have paraphrased seems to say that if the requesting party does everything right and the Central Authority is the party that preventing service by not doing its job, service may be presumed.  I am not sure how that works in conjunction with the local rules of service, but it may work when serving by publication locally.

In the end, service through the Central Authority may be slow, but service will be presumed under the Hague Convention after six months so long as the requesting party has done everything properly.

 

Alternatives to Service Through the Hague Authorities

The Convention also provides several alternatives to service through the use of a Central Authority:

Article 9.  Article 9 allows parties to serve through the use of consular channels.

Article 10.  Article 10 is probably the simplest to use.  Article 10 states that, so long as the receiving member state does not object, judicial offers or parties in the requesting state may send service documents to a judicial officer or “other competent person” in the receiving state for service.  In other words, attorneys in the United States probably may hire a process server in Canada to serve papers or, to be safe, could have a judicial officer (attorney) in Canada arrange for and supervise service.

Article 15.  If you use Article 10 to serve a summons, Article 15 states that default judgment shall not be entered unless (a) the document was served by the method allowed by the receiving state, OR (b) the document was actually delivered to the defendant or to his residence by “another method provided for by this Convention.”   Either way, a judge must allow a defendant proper time to respond to the complaint.

 

Takeaway

Based on the language of the Hague Convention, I am not sure that it makes sense to hire a third-party process server to deal with a Central Authority.  If you are going to go through a Central Authority, allow yourself at least six months for service.  Otherwise, so long as the receiving state does not object, you can simple find a judicial officer “or other competent person” to oversee proper service according to the laws of the receiving state.  The second option seems more efficacious.

Footnotes

Footnotes
↑1 which I have paraphrased
General Interest / International Law - 07/06/2015
Past due notice

Help! I need assistance with debt collection!

 

Often, people find themselves in a situation where someone owes them money, but refuses to pay. Clients often expect the process of collecting a debt that is clearly owed to be simple and straightforward. But unfortunately, as is often the case with the law, it is anything but. The process for debt collection is lengthy and complicated to say the least.

First, you, as the creditor, may make a demand for payment from the debtor under threat of a lawsuit. If the money is not paid, you may proceed with a lawsuit. You will have to follow through with the lawsuit by proving the accused owes the debt1)including the correct amount and obtain a judgment from which you may then collect. Once you get the judgment, if s/he still does not pay willingly, you may conduct a judgment debtor’s exam to acquire all of the debtor’s relevant information; where s/he works, what assets s/he has, whether the property may be exempt from collection and any other relevant factors that may weigh in on your collection of the debt.

 

How the debt collection process works

Keep in mind that the state of the Nevada lists many exemptions of property that you may not take from the debtor to ensure the debtor is not left destitute. But, notwithstanding those exemptions, you may levy bank accounts, take items of personal property2)not you, but a sheriff's deputy, place a lien on a house, and garnish wages all within the specific constraints of the law. The process at this stage is quite complicated because you need a government entity, such as a sheriff to actually take the property as you may not do it yourself. With each step, there are specific pleadings that need to be filed and served to make sure you are not wrongfully taking property. Although this may seem bizarre since the person owes you money, the legislature has created many protections against “self help” to prevent people from going to someone’s house and taking property to get the value of their money back. There are many possibilities to take property and sell it to get your money back and your attorney can discuss the pros and cons of each.

If you are afraid the debtor might hide assets from you early on, you might need to “attach” or freeze the property prior to obtaining a judgment. Before you may do this, you need to prove to the court that you are in fact owed the money and there is a likelihood that s/he will hide assets.

Client-creditors always want the debtor to pay their attorneys’ fees, but unless you had some type of  previous agreement providing for this, it is unlikely you will be able to collect the fees. In certain cases, you might be able to get your attorneys’ fees paid, but each case is different and depends on the unique circumstances.

In the future, before you lend money, have a lawyer draw up a contract with terms that benefit you such as interest owed, specific time limits for repayment, and a provision for payment of your attorneys’ fees if you have to seek legal action.

Each step of collection is so complicated, between filing deadlines, procedural hurdles, and proper documentation that it is always best to hire an experienced attorney to ensure that you are paid back the money you deserve.

In some cases, it may be the case that there is no money to collect from the debtor. But, if you continue to renew your judgment you will preserve your right to collect until such time that the debtor does have assets.

For reliable assistance with the debt collection process, contact us for a free consultation.

Footnotes

Footnotes
↑1 including the correct amount
↑2 not you, but a sheriff's deputy
General Interest / Nevada Law - 07/03/2015
Pile of files

Businesses Must Maintain Proper Records or Risk Discovery Sanctions for Missing Documents

Once a lawsuit is filed, all parties involved have an obligation to diligently search through their records and disclose to the other parties any and all relevant documents and witnesses. If you own a business and get sued, you have an obligation to go through your records and find anything that is relevant to the suit. If you do not, you risk being sanctioned for failure to participate in meaningful discovery. But how far this duty goes varies from case to case. For instance, it does not seem reasonable to hold a company liable for maintaining 15 years’ worth of paper files, but what if the lawsuit centers around the identity of a beneficiary of a 20 year old insurance policy? Situations have arisen where companies have taken old paper files, had employees make electronic records, and then shredded the paper files. But what if there is reason to believe that the named beneficiary was electronically inputted inaccurately? Did the company have a duty to maintain the records for something as important as the naming of a beneficiary 20 years ago? The answer is: Perhaps.

A scenario that could also cause problems for disclosing relevant documents is when companies have disorganized files. What if someone’s health insurance application gets misfiled and they are later accused of not disclosing their true health conditions? If a company is accused of negligently failing to disclose the relevant documents, they may have to pay the wronged party’s attorneys’ fees and costs caused by their actions.

 

A discovery example from California

In the California case of Finley v. the Hartford Life and Accident Insurance Company, the Hartford failed to disclose a highly relevant surveillance tape until very late in the discovery process. 1)249 F.R.D. 329 [N.D. Cal. 2008]. The Hartford claimed that they had diligently searched their files but did not initially find the tape. The Court agreed with Hartford that the failure to find the tape was an administrative oversight and not a malicious act but still sanctioned the company for not locating and turning over the tape earlier on. Although it was an accidental misplacement of the tape, the policy iterated by the court is that it is not an excuse to keep disorganized files and not promptly find relevant items and documents. The Court found that if something should show up in a routine search of the files, then it is not excusable when it does not turn up. This case is just one example of how important it is to maintain accurate and up-to-date files in the event that litigation arises. In the Finley case, if the videotape was disclosed earlier, the entire lawsuit could have been disposed of. The court did not look fondly upon an administrative error, and in turn, it cost the guilty party a lot of time, money, and stress.

If there were never the threat of sanctions, then parties would be incentivized to “misplace” documents, undermining the transparency/effectiveness of the judicial process. If you have reason to know a dispute is looming, it would be best to ensure that your files are properly preserved so anything relevant will be accessible during a routine search. Also always make sure to maintain accurate electronic records because courts expect this in the modern technology-driven world. Before you find yourself in a discovery mess, consult one of our attorneys for guidance through each and every step of the litigation process.

Footnotes

Footnotes
↑1 249 F.R.D. 329 [N.D. Cal. 2008]
General Interest / Nevada Law - 07/01/2015
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