moira_j_moore1: (Default)
Just another article I found entertaining, which still doesn't have any information or claims that haven't already been used by everyone else, despite the fact that this article was posted only two days ago. http://art-nerd.com/newyork/copyright-vs-copywrong-by-addison-thompson/

It's a guest post. This guy is on the "How dare Lady Gaga seek costs" bandwagon. I googled his name. The only reference to an Addison Thompson who is a lawyer that I found is a guy in Washington whose services involve defending people against government allegations of misconduct. With the information available, I would propose that his grasp on copyright law in Illinois is no better than mine. (Possibly less, because I actually did some research.)

This is one fun part:

Lady Gaga heard an altered version of Ms. Francescatti’s music, offered to her by Francescatti’s former bass player/boyfriend and his DJ partner. Gaga doesn’t write her own songs, per se, but relies on songwriter’s to supply her with ideas to use as raw material. Francescatti’s song Juda resulted in Lady Gaga’s song Judas. Judge Aspen’s ruling in the case was based on an “ordinary observer” (listener) not being able to distinguish between the two songs. The two female artists have different styles and sonically Judas sounds like a Lady Gaga song, until you compare the lyrics. Gaga alternates using the names “Judas” and “Juda”; however, she effectively mimics Ms. Francescatti’s song.

So, basically treating Francescatti's allegations as though they were proven in court, while also misrepresenting what the judge actually said.

Then there's this:

Regardless, it is the nexus of the idea which has been transmitted, adapted and incorporated by Lady Gaga, into her version of Juda.

Sorry, hon, you can't copyright an idea. Not even a "nexus of an idea."

Then this:

Ms. Francescatti doesn’t have to worry about paying Lady Gaga’s legal fees. In a similar art law case, Honorable Judge Carol Edmead, NY State Supreme Court points out:

“….the rule embodied in 22 NYCRR 130-1.1 gives the Court, in its discretion, authority to award costs “in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees” and/or the imposition of financial sanctions upon a party or attorney who engages in frivolous conduct.” Conduct is frivolous is defined by: 1. it is completely without merit in law; 2. It is undertaken to prolong or delay litigation or to maliciously injure or 3. It asserts material factual statements that are false.”


How nice for New York. How about some case law or statutes relevant to Illinois? No? Took too much work to look into that?

Here's a link to an article about the state of awarding costs in Illinois, and I'm very happy I will never be a lawyer in Illinois, because gah. It's messy. Don't think that's as much of a slam dunk that Thompson claims. And I think it's pretty ridiculous to make a determination on the basis of court documents one hasn't read. http://www.schwartz-lawyer.com/schwartzlawyer-032014/docs/Recovering%20Costs%20in%20IL%20Civil%20Actions.pdf

And, of course, the writer of this post doesn't mention that Francescatti has filed for an appeal. I wouldn't be surprised if he doesn't know. Doesn't look like he's done much research on this thing.
moira_j_moore1: (Default)
La la la, how to make yourself look ignorant.

A link to a post written by someone who doesn't know anything http://www.rantchic.com/2014/10/04/lady-gaga-sues-starving-artist-and-wins/

Now I will admit to an area in which I'm ignorant. I have no idea whether it's appropriate to call Lady Gaga's actions to seek costs "suing." It wouldn't be called that here. Costs would normally be a remedy sought in the initial documents and when the judge makes a decision, s/he might invite a motion for costs right then or tell the parties that if they want to argue for costs, they should bring another motion on a later date. It would be part of the same court case and wouldn't be called "suing." But it might be different in the States.

Either way, the title is wrong. Either Lady Gaga was sued by Francescatti and won, or she is suing Francescatti and has not won, because it hasn't gone to court yet. In the article, the writer makes things a little more clear, indicating that Lady Gaga hasn't won the $1.4m, so the title is obviously click-bait and the writer is hoping no one will read the article, but her portrayal of events is confusing even to someone who knows what's going on.

Then the writer goes on to say because Lady Gaga wouldn't suffer from a loss of $1.4 m, it's greedy of her to seek costs, which could destroy Francescatti.

While Lady Gaga could probably afford to lose $1.4m, she can't afford to let everyone think they can take a crack at her without suffering any consequences.

If Francescatti's lawyers didn't warn her about the devastation a loss could deal, like having to sell her house in order to pay Lady Gaga's costs, maybe she should get better lawyers. Didn't they sit her down and say something like, "We all know she'll have a team of lawyers charging at least $1,000 an hour (each, with junior lawyers and paralegals adding to the total as well) and who knows how much for every piece of paper they produce, and if you lose you'll probably go bankrupt."

Again, I'm not saying the amount is reasonable, I have a hard time believing even high priced lawyers can go through $1.4m even in a case that had a lot going on and dragged on for three years, but it's perfectly legitimate for her to seek costs. And you always highball in that kind of situation.

And then she takes a crack at Lady Gaga's talent, because that's totally relevant.

Again, no mention that Francescatti has filed for an appeal, and that the appeal appears to predate Lady Gaga's case for costs. (Still can't find the paperwork by Lady Gaga.)
moira_j_moore1: (Default)
Someone has started a campaign on indiegogo to raise funds for Francescatti, seeking contributions for her legal fees. What I find absolutely hilarious is this bit from the blurb:

My goal is to get something started for her, as she is going to need to defend herself and in the litigation happy USA that is money or guns.

Tell me that guy isn't trying to make her look like the one being sued, instead of the one doing the suing. He provides a link only to her latest post, the one in which she talks about Lady Gaga suing her for costs. Everyone is supposed to ignore that Francescatti started the lawsuit in the first place and has filed an appeal, is the one who is keeping the litigation going. Sure, she has the right to seek an appeal, but if he thinks she's acting in a reasonable and legitimate manner, why is he trying to twist things?

The weirdest thing is that he's asking only for $500. That won't get her far. Makes me wonder what kind of deal she has with her lawyers.

Here's a link to the campaign page: https://www.indiegogo.com/projects/rebecca-francescatti

ETA: It appears that the page has been taken down. Perhaps the guy hadn't gotten her permission to start the campaign.
moira_j_moore1: (Default)
We want to root for the underdogs. We want to see the big corporation/rich person/government as a vast machine that is at best indifferent and at worst outright evil. And hey, a lot of times they are. But sometimes the underdog just isn't the one in the right. I have in the past written about situations in which people dug themselves into a hole and then claimed someone else was just being a big ole meanie for not saving them from the consequences. This is a situation I just heard about today, and as in so many situations, a little digging makes their story fall apart.

In 2011 a songwriter, Rebecca Francescatti, sued Lady Gaga with the claim that Lady Gaga plagiarised one of her songs. After three years the case was dismissed in a summary judgment. Now Lady Gaga is suing Francescatti for costs to the tune of $1.4 m.

I'm not talking about whether this is a reasonable amount, I'm just talking about how ridiculous I think it is that people are condemning Lady Gaga for seeking costs at all. Seriously? She was sued, she won, but she's supposed to eat the costs because she's rich?

Note: I'm not a fan of Lady Gaga. If I've ever heard one of her songs, I didn't know it. And for some reason her stage name drives me insane. I'm also not denying that creators get horribly screwed.

The case Francescatti puts for herself in her blog makes her look terrible. Here's a link: http://www.rebeccaf.com/id/why-you-should-care-that.html

Summary of the post:

She starts by saying that she and the reader are family members with bills to pay, and that makes them regular people. Because rich people don't have families or bills to pay, I guess.

She then makes a really snotty distinction between those who work alone - they're genuine - and performers - they're fake.

She insinuates that the common practice of singing songs written by others is new and that this is also fake. (Hey, you, opera singer, you bring nothing to the notes that come out of your mouth, crawl off the stage in shame.)

She describes a sequence of events explaining how her song might have gotten from her to Gaga's ears.

She describes the similarities between her song and Gaga's.

In his decision, the judge agreed that Francescatti might have a case for access. He then provided a fairly detailed analysis of the songs and found that only the titles of the songs and a sequence of four sixteenth notes were similar, and that such weren't sufficient to find a violation. As well, Francescatti was claiming a violation of elements that weren't protected by law, such as the title, or that succession of four notes. Also, the stories of the songs were completely different. He said that no "reasonable trier of fact" could find the two songs similar upon hearing them.

He also said there was evidence of Gaga coming up with the song completely on her own.

I'm not sure what Francescatti means when she says: The fact that a judge declared “Judas” its own entity after listening to her lyrics alone – which sound like high school English papers in the 80s, riffing on bullshit or “borrowing” from encyclopedias – is madness. It's quite clear that the judge examined both songs and received information from a variety of witnesses, and he referred to other court decisions.

She would have you believe that the judge decided against her solely because he felt the "ordinary observer" wouldn't find them similar.

Here's a link to that decision: http://www.gpo.gov/fdsys/pkg/USCOURTS-ilnd-1_11-cv-05270/pdf/USCOURTS-ilnd-1_11-cv-05270-0.pdf

She then says: He was able to shut down the case without trial because of a growingly popular corporate legal loophole gaining steam in recent years known as “Summary Judgment.”

The summary judgment is not new, it's not restricted to corporate law, and it's not a loophole. It is a perfectly legitimate means of shutting down a weak case. One of the duties of judges is to be gatekeepers. It was what saved a nurse from going through a trial after being charged with murder on disgustingly flimsy "evidence." (Criminal law.) It was what stopped a huge oil company from destroying highways and the environment by sending massive trucks that violated the law. (Little guys won.)

She says that access to the original work used to be considered very important but that this judge and others like him don't give it much weight. On the contrary, the judge in this case gave a lot of thought to access, made it clear it was important, and even agreed that Francescotti made a good case that access was possible. It just wasn't enough to override everything else, things that also needed to be proven.

She says this: Consider the Seventh Circuit’s recent decision in Peters v. West. Although Peters’ lawyers proved that Kanye West ripped off a vocal straight out of one of Peters’ song, manipulated it, and used it, “an ordinary observer” couldn’t tell that it had been ripped off.

Well, she might think the lawyers proved a violation, but the judge didn't. Again, there was an examination of the two songs, with a finding of lack of similarity and that the plaintiff was trying to get protection for elements that weren't protected by law. The term "ordinary observer" wasn't used in the decision. The judge did consider access and said that it was possible, but copying needed to be proven, and this was not done. Here's a link to that decision: http://mcir.usc.edu/cases/2010-2019/Pages/Peterswest.html

Then she says that Lady Gaga was asking for costs to punish her, to threaten her, and to threaten everyone else. (Which is why she feels we should care about her case.) It's meant to have a chilling effect.

And she's right. She dragged Lady Gaga through a lawsuit that no doubt cost Lady Gaga a mint, and Lady Gaga is getting her own back. She wants to be compensated, and she wants everyone else to be warned not to go after her. And what the hell is wrong with that?

The whole point of the legal right to costs is to a) compensate the winner and, b) discourage frivolous lawsuits.

And it's not as though Francescatti didn't know getting hit with costs was a possibility. She asked for them in her own complaint, which you can find here: http://mcir.usc.edu/inplay/Documents/Gaga%20Complaint.pdf

ETA: She's appealing. http://amradaronline.files.wordpress.com/2014/07/ladygaga-signed.pdf. I can't be sure, but I think the appeal was filed a considerable length of time before Lady Gaga's demand for costs. There is a possibility that Lady Gaga was going to leave well enough alone until Francescatti decided to keep the whole thing going.

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