Last Wednesday, on August 12, 2009, a federal district court judge in New York ruled that the defamation case filed by Anna Nicole Smith's former attorney and companion, Howard K. Stern, against the publisher and author of the book "Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death" should proceed to trial against the author, MSNBC investigative reporter, Rita Cosby. Judge Dennis Chin's decision provides several interesting legal tidbits as well as a glimpse into the media frenzy that followed Smith and her death.

"Blonde Ambition" made several explosive revelations about Smith, Stern, and Larry Birkhead, Smith's other love interest and father of her baby, Dannielyn. Cosby wrote among other things that (a) Smith caught Stern and Birkhead having oral sex with each other at a party in Los Angeles, (b) Smith remarked that Stern was gay, (c) Smith watched a sex tape of Stern and Birkhead on a regular basis as witnessed by her nannies, (d) Stern regularly "pimped" out Smith to others to have sex with and (e) Stern played a role in Smith's death. As expected, these revelations made Cosby's book an instant best-seller. However, also as expected, Stern was none too pleased with the contents of that book -- and sued Cosby and her publisher for defamation in New York.

The following are the highlights of Judge Chin's decision. You can see a copy of Judge Chin's ruling here.

Perhaps the most interesting aspect of the decision is Judge Chin's ruling that calling someone gay is not defamatory per se. Traditionally, being called a homosexual was automatically considered by law to be defamatory -- and actionable. In other words, the law historically assumed that calling someone (falsely) a homosexual would automatically subject the target to "contempt" or "ridicule" by others.

Judge Chin's decision is among the few reported decisions which address the issue -- whether being falsely accused of homosexuality is automatically defamatory. Judge Chin stated that "[t]he past few decades have seen a veritable sea change in social attitudes about homosexuality" and that in 2009 "the 'current of contemporary public opinion' does not support the notion that New Yorkers view gays and lesbians as shameful or odious."

The decision recognizes that at least one other court disagreed -- and believed that being called "gay" was still defamatory per se because (among other things) of the discrimination and prejudice against the gay community. However, the decision found that the existence of discrimination and prejudice does not necessarily lead to the conclusion that society views homosexuals as "contemptible" or "disgraceful." I agree with Judge Chin on this point -- since if the test for being defamatory per se includes everyone who is subject to prejudice or discrimination, then being labeled as part of any number of groups -- minorities, women, a religion, etc. -- could be considered defamatory per se.

However, at the end of the day, Judge Chin did provide Stern with the opportunity to proceed with his defamation claim at trial. The decision concludes that the statements accusing Stern of having homosexual sex with Birkhead at a party were capable of having a defamatory meaning and that a jury would decide the issue. So while Stern might have preferred having a defamatory per se ruling in his favor, Stern survived summary judgment and can proceed against Cosby.

THE "LIBEL PROOF" PLAINTIFF AND INCREMENTAL HARM DOCTRINE

Aside from the more interesting analysis that being called gay is not defamatory per se, Judge Chin also analyzed the more mundane legal principles concerning whether Stern is a "libel proof plaintiff" and whether the "incremental harm doctrine" precludes liability. Judge Chin ruled that Stern's reputation is not so poor that his reputation could not suffer further damage -- i.e. that he cannot be libeled. Judge Chin also ruled that statements protected by the First Amendment did not do so much harm that the unprotected statements caused only "incidental" harm. Perhaps more importantly, Judge Chin's opinion recognized that the validity of both the libel proof plaintiff doctrine and the incremental harm doctrine were questionable in light of more recent Supreme Court precedent. For those of us who play in the media law space, this will be something to watch in the near future.

EVIDENCE OF ACTUAL MALICE PRECLUDES SUMMARY JUDGMENT

The other interesting part of Judge Chin's opinion is his recitation of the evidence of Cosby's "actual malice" -- the telltale signs that show she either had no regard for the truth or was reckless to the truthfulness of the statements in "Blonde Ambition." I won't repeat all the evidence here. But the somewhat shocking thing to me was the evidence that a skilled, experienced and decorated investigative reporter like Cosby could be so driven to publish such an explosive expose that she would fabricate sources and then seek to bribe other sources (after the publication) to provide sworn testimony that would provide support for her statements. Obviously, evidence that a reporter faked her sources, and then attempted to cover up her conduct through a post publication bribery of other sources, is strong evidence that the reporter cared little for the truth of her publication. So the finding that Stern had adduced sufficient evidence of actual malice against Cosby was expected.

However, Judge Chin did not attribute Cosby's conduct to the publisher, Hachette Book Group, USA, for liability purposes. Since Cosby was not an employee, Hachette was able to escape liability even though evidence of Cosby's actual malice was very strong. Judge Chin followed existing legal principles that a publisher need not "fact check" an independent author.

Of course, if evidence of fabrication was so strong, one would think that the publisher would know -- or should have known -- that the truth of such statements may be in question. And if the truth were in question in the extreme case, perhaps publishers should be held as accountable to the same extent as the author -- without regard to whether the author is an employee. I would have liked to have seen the publisher held mroe accountable in this extreme case -- if Cosby's story was so incredible (as Judge Chin seemed to believe), then a publisher shouldn't be able to just accept it as truth because of the reporter's credentials.

LESSONS TO BE LEARNED

The main takeaway from Stern's case in NY reinforces what I have been saying about defamation cases. The issues are complicated, and litigating them requires substantial resources -- on both sides. Stern's case involves evidence that the reporter (Cosby) fabricated sources and attempted a post-publication cover up and attempted bribery. Even with that kind of evidence, the publisher of "Blonde Ambition" escaped liability -- and Cosby still has a chance to win at trial. The typical defamation case will not have evidence of malice that is as explosive as what appears to have been produced in the Stern case.

So at the outset of any defamation case, clients must be fully aware of what they are getting into. More times than not, defamation cases are filed and later quickly abandoned when the legal complexities (and expense) becomes apparent. I insist that my clients and potential clients be fully aware of the complexities -- and the costs -- at the outset of any case -- regardless of whether they are a plaintiff or defendant in the case. That way, surprises are kept to a minimum.

Since the election of Barack Obama, there appears to be a rash of lawsuits filed by rock and roll stars against Republican candidates for office. I previously wrote about Jackson Browne's federal case against the Republican National Committee and Senator John McCain over the use of Browne's song "Running On Empty" in an Ohio internet campaign spot. That case reportedly has apparently settled on confidential terms, resulting in an apology from the McCain camp.

In April, Eagles star, Don Henley, and Mike Campbell, guitarist for Tom Petty & The Heartbreakers followed suit -- literally. Henley and Campbell filed two lawsuits against Republican California State Assemblyman, Charles DeVore who is running for the Senate seat currently held by Democratic Senator Barbara Boxer. The lawsuits arise from DeVore's use of of the music in the songs "Boys of Summer" (which Henley and Campbell co-wrote) and Henley's "All She Wants To Do Is Dance" in political spots where DeVore replaced the original lyrics with his own politically motivated lyrics.

While many are surprised that the RNC, McCain and the Ohio Republican Party settled so quickly, the issues in the Henley/Campbell suit seems less likely to favor the rockers.

The issue in the McCain lawsuit, as I previously wrote, was the unauthorized use of Browne's song -- unaltered -- in a campaign spot. There was no question in that case that the Ohio Republican Party failed to obtain a license and used the song anyway. Thus, the case turned on whether that "political" use was sufficiently protected activity to shield the ORP (and the RNC and Senator McCain) from liability for Browne's copyright and Lanham Act claims. (Browned claimed that the political spot's use of his song implied his endorsement of McCain for president.) That the case settled so quickly was a surprise to some because whether a campaign's use of a song (without a license) could subject the political parties and candidate to liability was an issue of first impression.

The Henley/Campbell lawsuits present a slightly different factual scenario. In these campaign spots, DeVore's supporters changed the songs at issue by replacing the lyrics on each song with the campaign's own message. In this regard, DeVore's use of the music is similar to an artist like "Weird" Al Yankovic -- whose entire career seemingly is based on altering the lyrics to well known songs for comedic effect. Thus, the Henley/Campbell lawsuits not only have to clear the political use issue present in the Browne/McCain case but Henley/Campbell will also have to contend with the First Amendment's "fair use" protection for "transformative" uses of material.

California law on this subject has been fleshed out in some detail by the California Supreme Court. If the new use by the DeVore campaign "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message" then the campaign's use of the Henley/Campbell songs will be "transformative" and protected by the First Amendment.

THE CHARACTER OF THE SONGS ARE CHANGED WHEN THE LYRICS ARE ALTERED SUCH THAT THE FIRST AMENDMENT PROTECTS THAT USE

The DeVore campaign's use of the Henley/Campbell songs would appear to be transformative and protected by the First Amendment. This case is unlike the direct copying situation in the Browne/McCain case. Thus, it does not appear that a court would need to reach the issue of whether the use of a song in a political campaign in and of itself is protected use. Instead, settled law concerning the "fair use" doctrine for a transformative use of a work should be sufficient to protect the DeVore use of the Henley/Campbell compositions. Just like Weird Al could change a song for comedic purposes with impunity, DeVore should be able to change songs for political purposes.

It should be interesting to watch where First Amendment advocates -- who I would expect to trend towards the political left -- will side in these cases filed against Republicans. However, unlike the Browne/McCain case which presented a unique and difficult analysis, the result in the Henley/Campbell lawsuits should be guided by fairly established "fair use" principles. As a practitioner in this area of law, I would hope that these cases go to decision so that the legal analysis with such unusual facts can be developed.

Technology and the explosion of social networking sites are changing the paradigm of how and when we communicate with each other. Facebook, YouTube and the most recent craze, Twitter, together with rapidly improving camera/video cellular phone technology, allow instant communication to thousands of people. Communication that includes pictures and video, as well as text.

The potential uses for these expanding media are seemingly endless. The question is -- is that a good thing?

Not that long ago, if asked, I would have had no clue what the term "social networking site" meant. By now, most people know about YouTube and Facebook. YouTube is the leading repository of user uploaded video content. On YouTube, you can see everything from cell phone videos uploaded by individuals to "professional" videos and clips from record companies, studios and television networks as well as from established and aspiring artists.

Facebook was once just a glorified directory for college students. (There is pending litigation on the genesis of FB, which I'll save for another day.) Now, everyone (including me) has "a Facebook." You can upload pictures and keep people apprised of what you're doing through "status" updates. People can converse in FB, through comments or wall "posts." It has become by far the easiest way to reconnect and stay connected with family and friends.

The new kid on the block is Twitter -- although Twitter isn't really "new" since it's been around for three years. But the use of and publicity about Twitter has exploded in recent months. Twitter allows you to send short, 140 character to the world. Twitter also now allows you to link to other webpages and post pictures (known in the Twittersphere as "twitpics"). My friend and Notre Dame classmate, Kelly Talcott, who goes by the Twitter handle kdtalcott, has written about Twitter basics here on his blog and here on Law.com. Those are good summaries of what Twitter is and can do.

It seems like everyone -- yes, including me (@bruinmel) -- is now on Twitter. (Kelly got me into Twitter when I was in New York last fall.) President Obama used Twitter to spread his message during his campaign. Shaquille O'Neal (@THE_REAL_SHAQ) made headlines when he began to use Twitter in order to stop a "fake" Shaq from impersonating him in the Twittersphere. Other NBA players followed suit. Milwaukee Bucks forward, Charlie Villanueva (@CV31), recently made headlines for "tweating" during halftime of one of his games. Countless other celebrities, athletes and politicians have "joined the conversation" on Twitter.

WITH THE FUN COMES RISK

There's no denying that all of this is entertaining -- and time consuming. The ease with which people can now publish information -- including pictures and video -- through Facebook, YouTube and now Twitter also means is private moments may be captured for the world to see. For example, two of the most popular celebrities on Twitter are Ashton Kutcher (@aplusk) and Demi Moore (@mrskutcher). Both are interesting to follow because their posts reveal the type of relationship with each other -- in a positive way. Perhaps none were as revealing as Kutcher's "twitpic" of Demi's behind with the playful tweat "don't tell the wifey." The exchanges between the couple are entertaining and feed into our voyeuristic tendencies.

Social media can also be educational. Surgeons at Henry Ford Hospital in Detroit conducted a live Twitter feed during a surgery -- answering in real time questions posed by students and the public and showing the surgery itself on YouTube.

These are examples of the positive aspects of the new social media. What if the picture of Demi's behind was taken by someone other than her husband? The patient at Henry Ford Hospital consented to the twittering and YouTube feed. But what if the subject of a picture didn't consent (before or after the fact)? Someone with a cell phone camera can easily capture moments at restaurants and places and upload them immediately on to Facebook or Twitter. Some people might not find Twitter to be so entertaining. And it certainly can be time consuming. (Published reports claim that Jennifer Aniston broke off her relationship with John Mayer because of the time Mayer spent on Twitter.)

There's also a big risk that the quick and instantaneous information being disseminated through FB and Twitter could be wrong. For example, Tweats concerning Nathasha Richardson's tragic skiing accident prematurely reported that she had died. Richardson hung on for over a day before she actually succumbed to her injuries. So accuracy is also at risk when the rush to disseminate the information becomes more important.

THE BOTTOM LINE

Since these technologies are here to stay, we need to find the balance between the dissemination of entertainment/information and the risks to privacy and accuracy which these new social media present. Despite the risks, the emerging social media will be a positive influence on society -- both to entertain and to educate. I have embraced these new media and can say without reservation that I have enjoyed it despite the risk to privacy and accuracy concerns I describe above. As King Benny said in one of my favorite scenes in the movie Sleepers, "life is a risk." Have at it.

In my prior post about protecting celebrities and their reputation, I commented on the defamation lawsuit that Roger Clemens brought against his former trainer, Brian McNamee. Clemens sued McNamee over McNamee's statements to investigators led by former Senator George Mitchell, as revealed in the infamous "Mitchell Report" concerning drug use in Major League Baseball, as well as statements McNamee made to Clemens' friend and Yankee teammate Andy Pettitte. As I previously wrote, a defamation lawsuit is a legitimate aggressive course of action to pursue -- but one which requires complete assurance that the factual and legal grounds of the case is solid, not just an expensive PR gambit.

On February 12, a federal judge in Houston dismissed the majority of Clemens' case against McNamee. Given the many embarrassing facts about Clemens' character and reputation that have been revealed, and now the order which effectively guts Clemens' case, the Clemens lawsuit is another example of that aggressive strategy gone awry.

The judge dismissed all of Clemens' claims for defamation which were based on McNamee's statements to Mitchell Report investigators. The judge ruled that McNamee's statements to the Mitchell report investigators were covered by his immunity deal with the government and that the Texas federal court did not have jurisdiction over those claims since McNamee made them while in New York.

The judge did permit Clemens' claims based on McNamee's statements to Pettitte to go forward. However, Pettitte has already gone on record that McNamee's statements to him were true. Naturally, as a public figure, Clemens will be required to prove that McNamee's statements were false and made with (at a minimum) reckless disregard for the truth.

That is a tough burden for any defamation plaintiff -- and seemingly impossible for Clemens' since Pettitte has acknowledged the truth of those statements. Also, according to published reports, Clemens may also be indicted for perjury for his allegedly false statements to Congressional investigators. Clemens' lawsuit against McNamee does not look promising at this point.

LESSONS TO BE LEARNED

The Clemens lawsuit is another cautionary tale when considering the most aggressive strategy in response to embarrassing publicity. The filing of the case provided great press coverage favorable to Clemens. Clemens appeared strong, fighting for his reputation and willing to "go to the mat" to vindicate himself. However, while lawsuits provide great vehicles for public relations and positive press, the decision to file a lawsuit must be based upon solid factual and evidentiary grounds. The court process has a way of vetting claims without legal basis. And the resulting negative "PR" from a loss in court will far outweigh any positive spin gained from the initial filing.

You can read Clemens' actual complaint here on ESPN's website.

The fight over the rights to "Push: Based on the novel by Sapphire" reflects the same battle that has been fought time and again in Hollywood: when is a deal considered a deal. "Push" was the undisputed darling of the Sundance Film Festival last month. The film built up a steady buzz during the festival week. "Push" ultimately garnered the festival's US grand jury and audience prizes. And now, "Push" has spawned dueling lawsuits in New York and Los Angeles filed by the two suitors for North American distribution rights, The Weinstein Company (TWC) and Lionsgate.

So who knew that this drama -- about an illiterate African American teen in late '80s Harlem who is pregnant by her own father and abused by her mother -- could cause such a legal ruckus?

All of the events giving rise to TWC's lawsuits in New York and Lionsgate's lawsuit in Los Angeles happened in the few days following the end of the Sundance Film Festival. As reported by The Hollywood Reporter, TWC negotiated with "Push" producer/financier, Smokewood Entertainment Group, and Cinetic Media, Inc., a powerful sales agent representing Smokewood, over the rights to the film. TWC says that it accepted an "offer" conveyed by Cinetic by email on January 27, waiting only for Smokewood/Cinetic to send over the written license agreement. So the deal was done, right?

Not so fast.

On January 30, Cinetic and Lionsgate apparently agreed upon a different deal -- in which Lionsgate (together with Oprah Winfrey's Harpo Productions and Tyler Perry's 34th Street Films) reportedly paid $5.5 million for the North American rights to the film.

THE LAWSUITS

On February 4, Lionsgate filed suit in Los Angeles against TWC seeking a declaration that TWC had not entered into a valid license agreement for "Push" and has no rights thereto. Not to be deterred, TWC filed multiple lawsuits against Lionsgate, Smokewood and Cinetic in New York. TWC asserts various legal theories: interference with contract against Lionsgate; fraud and breach of contract against Cinetic; and breach of contract against Smokewood. Interestingly, TWC's complaints seek monetary damages but -- at least in their current form -- do not seek the rights to "Push" or any injunction preventing Lionsgate from distributing the film.

THE END GAME

The legal questions which the courts will need to answer include whether TWC's acceptance of Cinetic's offer was sufficient to create a binding license agreement -- and whether Cinetic's alleged email could even be considered an "offer" for contractual purposes. At the heart of the dispute will be whether all the "material" terms of a license agreement for the film were agreed to. In my own experience, a court could find that the deal can be "a deal" when even just the most basic terms were agreed upon. The suits will require proof of what is/was "material" and may likely involve the customs and practices in the movie industry on what is "a deal." Proving these things will not be an easy task for the parties or the court.

However, the vast majority of lawsuits settle before a court has to rule on the various competing claims. These lawsuits have the potential of becoming a complex mess -- starting with the question of which court, New York or Los Angeles, is the proper court to hear the case(s). At some point, the parties will negotiate a settlement. Whether that requires each side to spend substantial legal fees to "beat each other up" before they come to the settlement table remains to be seen.

To the lawyers representing the parties, this case could be interesting and very lucrative. For those not involved in the case, the legal battles between well-financed parties can be entertaining.

Hopefully, the film will be as entertaining as the lawsuits it spawned.

I am the President and CEO of the PABA Foundation and on the Board of Governors of the Philippine American Bar Association. This is a fun evening in which we pay homage to our heritage while honoring leaders of our community. We need and welcome your support. Please RSVP by downloading the formal invitation here. Hope to see you there.