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Thursday Roundup

Something to ask about the next time you buy an office desk.  The Costanza Defense is an infrequently used, and even more infrequently effective, arrow in the defense lawyer's quiver.  It gets its name from the Seinfeld episode where George Costanza is confronted by his boss with the accusation that he's been having sex on his desk with the cleaning lady.  After inquiring as to the source of the boss' information - it's the cleaning lady, it turns out - George assumes a puzzled expression and asks plaintively, "Was that wrong?"  Of course, that defense gets you only so far; it's tough to argue that your client didn't know that the law frowned upon popping a cap in somebody during a driveby. 

And so we come to another episode of Life imitates Art, in the form of the 7th Circuit's decision in Orton-Bell v. IndianaOrton-Bell was a substance abuse counselor at a prison at Indiana.  An investigator told her that he'd discovered that night-shift employees were having sex on her desk; while this didn't fall within the investigator's purview of seeking out security breaches, he did offer the helpful tip that she wash off her desk in the morning.  Orton-Bell brought this to the superintendent's attention, but he too expressed disinterest, so long as it didn't involve inmates.

Apparently this gave Orton-Bell some randy ideas, because shortly thereafter, the superintendent learned that she was having an affair with the major in charge of custody, with his desk serving as a frequent location for their trysts.  Both were fired, and both appealed their terminations.  The prison settled with the major, and then used his testimony to successfully defeat Orton-Bell's claim.  She filed suit, claiming sexual harassment, hostile work environment, and retaliation.  The district court tossed it on summary judgment.

The 7th Circuit agreed that the night-shift employees having sex on Orton-Bell's desk was not sufficient to show a hostile workplace, because while she could establish that it was "objectively offensive and severe," she still "had to show that the night-shift employees had sex on her desk, and that the investigator told her to clean it up and the supervisor did not intervene because Orton-Bell was a woman."  If people were having sex on her desk because she was a woman, or if people were having sex on a man's desk and had been disciplined for it, that would be enough, the court explained. 

Still, the court reversed.  The evidence presented about the prison makes Hugh Hefner's mansion look like a convent; one of the least severe episodes of sexual harassment was Orton-Bell being told that she couldn't wear jeans on Casual Fridays because "her ass looked so good it would cause a riot."  That was sufficient to prove the hostile workplace claim, the court concluded.

Is this a great country or what?

Reason #1147 I don't do anything besides criminal law any more.  Not that intellectual property law was ever going to be in the running (<your joke here>).  Oh sure, I was as intrigued as anyone by the 1976 copyright infringement lawsuit where the Chiffons claimed that George Harrison cribbed the melody of "He's So Fine" for the "My Sweet Lord" track of his great album, "All Things Must Pass."  And there was one time when I actually did handle a tradename infringement claim, in which two bars in Cleveland, one on the West Side and one on the East Side, had the same name.  I don't remember what happened in the case, although I do recall spending time in both taverns as part of my "investigation."

monkey-selfie-2-199x300.pngAny lingering doubts that I'd chosen the correct career path ended with a story about this picture.   It's of a macaque monkey, and it was apparently the work of the monkey himself:  he'd snuck into the tent of David Slater, a famous wildlife photographer, and taken a "selfie."  Slater sold the photo, and has now demanded that Wikipedia's use of the photo infringes on his copyright.  "What copyright?" replies Wikipedia, contending that Slater doesn't own the copyright because he didn't take the picture, and the monkey, who did take the picture, doesn't own the copyright because...  well, because monkeys and other non-human life forms can't own copyrights. 

The issue, like just about everything else in this country, is headed to court. 


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