Works for hire

Stanley Kaufman contributed numerous film reviews to The New Republic ("TNR").  Kaufman was not an employee of TNR and there was evidence going both ways as to whether he or TNR owned the copyrights on his pieces.  There was no written agreement until in 2004, the literary editor sent Kaufman a letter saying it had always been their understanding that the works were works for hire.  Kaufman checked "Agreed" on the letter above his counter-signature.  After Kaufman's death, the Rochester Institute of Technology ("RIT") published an anthology of Kaufman's reviews, including the TNR reviews.  Kaufman's executor sued, claiming copyright infringement.  RIT moved for summary judgment based on the letter and the executor cross-appealed for summary judgment against RIT as to liability.  The district court, based on the letter, granted summary judgment to RIT.

The Second Circuit reversed, holding that because the letter was not signed until years after the works were published, it did not transform the reviews into works for hire.  The case was remanded to the district court for further proceedings (presumably a trial as to damages).

The decision in Kaufman v. Rochester Institute of Technology can be found here.

Jurisdiction Divested under CAFA when class action allegations are removed

An attorney sued a group of title insurance companies for violating a Connecticut statute, which requires that  real estate title agents be attorneys licensed to practice in Connecticut.  After 12 years of litigation, the plaintiff-attorney amended his complaint to remove all class-action allegations.  The district court dismissed the action without prejudice because, by removing the class-action allegations,  the plaintiff had divested the court of jurisdiction under the Class Action Fairness Act.

On appeal, the Second Circuit affirmed, rejecting the plaintiff's assertion that the time-of-filing rule would allow it to continue to have jurisdiction.  That rule allows a court to retain jurisdiction if it had jurisdiction when the complaint was commenced. The Court held that the rule did not apply.  The Court had to look at the new amended complaint to ascertain what the facts were at the time of filing, but taking out the class action allegations, the complaint showed no basis for jurisdiction at the time of the commencement of the action. 

The decision in Gale v. Chicago Title Insurance Co. can be found here.

Trump Can't Block on Twitter

It's pretty well known that Trump does not like to be criticized.  And it's also well known that he really loves Twitter.  So to get the best of both worlds, he decided to block certain people from his Twitter feed -- people who criticized him, of course -- allowing him to tweet to his heart's content without these critics being able to respond.

And this being 21st Century America, he was sued for doing this.  The plaintiffs alleged that blocking them from his Twitter feed constituted a violation of their First Amendment rights.  The District Court granted summary judgment in favor of the plaintiffs and entered a declaratory judgment to the effect that Trump's actions had violated the First Amendment.

Trump appealed claims that he blocked the plaintiffs from a private, personal account.  The government did not argue that the account was independent of Trump's presidency, but that the act of blocking was not state action.  Trump contended that his Twitter account is exclusively a vehicle for his own speech to which the plaintiffs had no right of access, and, accordingly, the First Amendment did not apply.

The Second Circuit held that the Twitter account was not just personal, but official and concluded  that once Trump had chosen a platform and opened up its interactive space to millions of users and participants, he could not selectively exclude those whose views he disagrees with.

The decision in Dnight First Amendment Institute at Columbia University v. Trump can be found here.

Landlord can be liable under the Fair Housing Act for harassment on a tenant by another tenant.

A tenant was being racially harassed by another tenant.  The harassed tenant complained to his landlord who did nothing.  The landlord told its managing company not to get involved and refused to address the tenant's letters.  The harassing tenant was allowed to stay in the building until his lease expired.  The harassed tenant sued the landlord under the Fair Housing Act, but the district court dismissed the complaint.  On appeal, the Second Circuit reversed.

The Court, agreeing with the Seventh Circuit, held that "the FHA’s use of the terms 'privileges' and 'conditions' refers not just to the sale or rental itself, but to certain benefits or protections flowing from and following the sale or rental."  And, agreeing with the Ninth Circuit, the Court noted "that '[t]he inclusion of the word ‘privileges’ implicates continuing rights,' indicating that the 'natural reading' of the statute 'encompasses claims regarding services or facilities perceived to be wanting after the owner or tenant has acquired possession of the dwelling.'"  Based on this, the Court held that the post-acquisition claims (claims not related to discrimination in deciding whether to rent premises to an individual and which take place after the individual has acquired a lease for the premises) were actionable under the FHA.

The Second Circuit, agreeing with the Seventh Circuit, held that a landlord who knows of ongoing harassment and is in a position to take action against it, but does nothing can be found liable under the FHA.

Judge Raymond J. Lohier, Jr.  authored the decision and was joined by Judge Rosemary S. Pooler.  Judge Debra Ann Livingston dissented.

The decision (and the dissent) in Francis v. Kings Park Manor, Inc. can be found here.

Inculpatory testimony by police officer as to the statement of a third party is not admissible

The Second Circuit, in Orlando v. Nassau County District Attorney’s Office, a habeas action, the Second Circuit held that the state trial court had erred in allowing a police officer to testify that the defendant in a related case had told him that Orlando had hired him to kill Bobby Calabrese.  The defendant in the related case had not testified in Orlando’s case.  Orlando had argued that allowing the police officer to testify violated his rights under the Confrontation Clause.  The district court had held that because the testimony was not offered for the truth, but for a collateral reason (to explain a change in Orlando’s story), allowing the police officer did not violate Orlando’s Sixth and Fourteenth Amendment right.  (The district court had issued an instruction to the jury that the testimony should not be considered to show that Orlando had hired the other defendant to kill Calabrese.)  The district court issued a certificate of appealability.  The Second Circuit held that the limiting instruction was not sufficient when testimony directing incriminating Orlando was given.

The Second Circuit's decision can be found here.