Now, having grown up in a household with two generations of Girls Scouts living in it, I noted on my first or second listen to the song almost thirty years ago that its distinctive flute part includes a dozen or so notes that quote directly from another song, "Kookaburra (Sits in the Old Gum Tree)".  "Kookaburra" is the Second Most Australian Song on Earth, surpassed only by "Waltzing Matilda," so the inclusion of a reference to it in "Down Under" -- a song that is itself all about Things Australian, about how the world perceives Things Australian and how Australians perceive and present themselves -- makes perfect sense.

To refresh the recollection of anyone who hasn't heard it for a while, here is a performance of "Kookaburra."  This version is slightly unusual in that it is sung as a solo: the song is more commonly sung as a round, by groups of Girl Scouts or schoolchildren or similar nice young persons.  The portion of the melody that recurs in "Down Under" comes just prior to the first round of applause in this video:

The incorporation of the "Kookaburra" tune into "Down Under" was always so obvious and so thematically appropriate that it never occurred to me to think that the Kookaburra bits didn't belong.  If I had thought about it -- which I confess I never did -- I would have assumed either that the Kookaburra song is an anonymous, traditional piece from the public domain, or that the snippet used by Men at Work was so brief as to constitute a permissible "fair use", or that the band had obtained permission before using it.  And I would have been wrong.

It turns out that "Kookaburra" was only written in 1935, that it has a perfectly identifiable author (Marion Sinclair, a teacher who wrote it for a troop of Girl Guides [Aussie Girl Scouts]), that it remains protected by copyright and that its copyright is now held by a publishing company, Larrikin Music.  Larrikin brought suit against songwriters Colin Hay and Ron Strykert of Men at Work and against the band's record companies for copyright infringement, after the connection between the two songs was pointed out in a question on a television quiz show. This past week, Larrikin prevailed:

'I have come to the view that the flute riff in ''Down Under'' ... infringes on the copyright of Kookaburra because it replicates in material form a substantial part of Ms. Sinclair's 1935 work,' [Australian] Federal Court Justice Peter Jacobson said. 

He ordered the parties back in court Feb. 25 to discuss the compensation Larrikin should receive from songwriters Colin Hay and Ron Strykert and Men at Work's record companies Sony BMG Music Entertainment and EMI Songs Australia. 

Adam Simpson, Larrikin Music's lawyer, said outside court the company might seek up to 60 percent of the royalties ''Down Under'' earned since its release -- an amount that could total millions.

The ruling seems an odd one given that the quote from Kookaburra is at the same time obvious and trivial.  If the case were tried under U.S. copyright law, I would have to give good odds on the success of a defense based on Fair Use.  (See, e.g., the 2 Live Crew case, Campbell v. Acuff-Rose Music.)  

Hay and Strykert have never claimed that piece of the song as their own original work, and this is not a case of "subconscious" plagiarism as famously occurred in the case of George Harrison's reinvention of The Chiffons' "She's So Fine" as "My Sweet Lord."  In fact, it seems Hay and Strykert didn't even include the Kookaburra bit in their song as written. The offending notes were inserted while the song was being recorded, by flute player Greg Ham, much as a jazz player might include a reference to Song B while soloing on Song A.  From an Australian television report:

Colin Hay, the lead singer of Men at Work says he's very disappointed by the result. 

COLIN HAY: It has some pretty serious, you know, possibly some pretty serious financial repercussions. 

SARAH DINGLE: He doesn't deny that the flautist Greg Ham used two bars of 'Kookaburra', but he says that addition came after the original song was composed. 

COLIN HAY: When it was written, there was no band, there was no Men at Work, and so there was no flute in the band at all, and so when you talk about Down Under that's what Down Under is to me.  I'll go to my grave knowing Down Under is an original piece of work, when I wrote that with Ron, we took nothing from anybody and it was one of those, it was an accident that, it was a musical accident that happened.

~~~

Cross-posted from a fool in the forest.

Today, a simple legal syllogism:

    If

1.  You cannot shout "fire" in a crowded theater,

    and

2.  Where there's smoke, there's fire,

    it follows that

3.  You cannot smoke on stage in a theater.

The Los Angeles Times reports that, in Colorado at least, this is indeed the law:

Smoking onstage by performers is a commonplace occurrence that most theater professionals don't think much about -- that is, until that right is taken away. 

This week, the Colorado Supreme Court handed down a decision that effectively upholds a ban on onstage smoking in the state.  The ban applies to tobacco cigarettes as well as herbal cigarettes, which are often used as a substitute by theater companies.

The Court's decision, in the case of Curious Theater Company v. Colorado Department of Public Health and Environment, is available via the Colorado Bar Association, here.

At the core of the dispute is the question: when smoking is called for by the playwright, is a prohibition on the act of smoking an interference with "expressive conduct" in violation of the First Amendment's protections of free speech?  When the issue is framed that way, it is no surprise that the theaters in this case were joined by amicus curiae including the Dramatists Guild (looking out for the interests of playwrights) and the American Civil Liberties Union (generally on the side of the angels where Free Speech is concerned).  

The Court majority is on board with the proposition that actions on stage constitute expressive conduct within the Constitution's protection, but concludes that the blanket smoking ban -- which is directed to public spaces generally, not targeted at theaters as such -- is a permissible and reasonable "time, place and manner" restriction:

Because it is clear, without further evidentiary support, that the state has a significant interest in protecting the health and welfare of its citizens and that the welfare of those citizens would be more exposed to harm without the smoking ban than with it, the ban is adequately tailored for purposes of the First Amendment to the United States Constitution.

A single puff of talcum powder, or a prop cigarette with a reflective tip or light placed at the tip, can hardly depict the 'boozy veil of smoke' necessary to Who’s Afraid of Virginia Woolf? . See Kirk Johnson, Colorado Court Rules "No Smoking" Means Exactly That, Even on Stage, N.Y. Times, Mar. 21, 2008. 

Neither prop nor talcum cigarettes allow an actor to dramatically exhale a puff of smoke, as Mrs. Robinson does in The Graduate. One of the witnesses at trial testified that the audience had responded to a fake cigarette with laughter, though the author intended no comedy. 

The ability of a theatrical performance to communicate a plot, depict characters, and evoke an era according to the playwright’s intent is severely limited by the inability to light a cigarette, pipe, or cigar on stage. Colorado’s smoking ban lacks an exemption for the expressive conduct of theatrical smoking, allows no adequate alternative to theatrical smoking, and prohibits the smoking of tobacco alternatives. Thus, it is not narrowly tailored to meet the state’s legitimate interest in protection of the public’s health, safety, and comfort.

~~~

Illustration: "Where There's Smoke There's Fire" (192?) by Russell Patterson; from the Library of Congress via wikimedia commons.

~~~

Bill of Rights Day was reputedly first proclaimed by President Franklin Roosevelt in 1941, on the Bill's 150th anniversary.  President Obama opted this year for an omnibus proclamation, including Bill of Rights Day in a package with Human Rights Day and Human Rights Week.

Tim Lynch, of the Cato Institute, takes stock and finds many of our enumerated Rights honored more in the breach than in th'observance in these times.  

Google, meanwhile, goes its own way and takes the occasion to honor LL Zamenhof, the deviser of Esperanto, on its home page, drawing the sort of unreasonable ire that only the Internet -- and rights of free expression! in the language of your choice! -- can generate.

The Presidential proclamation urges us all "to mark these observances with appropriate ceremonies and activities."   I recommend that you exercise your unenumerated right -- it is in the penumbra of one or another of The First Ten, I am quite sure -- to take five minutes from your day to observe and to meditate upon this stately, silent, kaleidoscopic and slightly trippy visual tribute, by Philip Bell. 

The Illustrated Bill of Rights from Philip Bell on Vimeo.

[There is a great deal of detail and fine print in this video.  I strongly recommend viewing it in full-screen mode on the fullest screen you have available.]

~~~

Cross-posted to a fool in the forest.

~~~

If you were looking for a counter-example to the proposition that "Republican elected officials can be counted upon, at all times, to side with Large Corporate Interests," you need look no further than the relationship between Florida's Republican Governor Charlie Crist and the property-casualty insurance industry. 

In a nutshell, in the name of a populist "I'm protecting the little guy" strategy, Crist throughout his administration has fought even the simplest and most uncontroversial proposals that might make the Florida insurance market more rational.   Martin Grace at RiskProf has been doing an outstanding job of tracking Gov. Crist's questionable policies for several years, notably in his blog's "hurricanes" category.

Now, speaking of hurricanes . . .

It may have escaped your notice that Florida has not been an actual target of hurricanes for some several years.  It has not escaped the notice of Governor Crist.  And Governor Crist is prepared to explain how it comes to be -- apart from Sheer Dumb Luck and the innate complexities of our planet's wildly chaotic system of meteorological phenomena -- that Florida, in particular, has been spared the depredations of Nature and her extremes of low pressure recently.  

The answer, citizens, is simple: 

Governor Crist -- yea! he himself, whether personally or by proxy -- has the ear of the Almighty:

Crist told a group of real estate agents Friday that he's had prayer notes placed in the Western Wall in Jerusalem each year and no major storms have hit Florida. 

Crist noted that just before his election in 2006, Florida had been affected by a total of eight hurricanes in 2004 and 2005. 

'Do you know the last time it was we had a hurricane in Florida? It's been awhile. In 2007, I took my first trade mission. Do you know where I went?' asked Crist, a Methodist. 

He then told of going to the Western Wall and inserting a note with a prayer. He said it read, 'Dear God, please protect our Florida from storms and other difficulties. Charlie.'

The Lord, so far as has been determined, has not protected Florida from any of the other the difficulties attendant to having Charlie Crist as its Governor.  But hurricanes?  We've got that covered.

Jim Morrison and the Doors were famously skeptical of the risk management method endorsed here by the Governor of Florida, as should wise Floridians be:

In late 2004, I wrote about the Bluestone case, in which a jury in Orange County, California, awarded a dog owner damages for his distress and loss of companionship in his suit against the veterinarians whose negligence was found to have caused the dog's death:

Although a minority of states -- Hawaii and Florida among them -- have permitted an animal owner to recover damages for the owner's distress when the animal is injured through negligence, the majority of states that have considered the question have come down on the side of the established common law rule: despite the well-known emotional bonds that can and do exist between humans and their non-human companions, the distress that the human may suffer when his or her pet is injured through negligence is not a loss for which any monetary compensation will be awarded.  No published California appellate case has addressed the question, though there are several cases indicating that merely negligent loss or destruction of other types of personal property -- irreplaceable family heirlooms, for example -- will not support an award of damages for emotional distress.  The Bluestone case will likely present that question squarely as it relates to animals.

Late yesterday [Friday, July 31,2009], the California Court of Appeal issued its decision in the case of McMahon v. Craig, holding unequivocally that California law does not permit an animal owner to recover damages for his or her emotional distress at the injury or death of an animal caused by negligence, and that there can be no recovery of damages for loss of the companionship of a non-human companion.

•  Opinion, McMahon v. Craig, Case No. G040324 [PDF]

McMahon v. Craig arises from the death of "Tootsie," a Maltese, following surgery to correct a breathing disorder.  Tootsie's owner brought suit maintaining that the veterinarians' negligence in post-surgical care caused the dog to develop aspiration pneumonia, resulting in Tootsie's sudden death.  The owner further alleged that the doctors had misrepresented the causes of Tootsie's death in order to cover up their negligence.  The lawsuit sought damages for the owner's emotional distress resulting from the veterinarians' negligence, damages for emotional distress caused by the intentional or "outrageous" conduct of the veterinarians in misstating the cause of death, and damages for the loss of Tootsie's companionship.  Prior to trial, the lower court struck out all of the emotional distress and companionship damages.  Because the case had little or no practical value in the absence of those claims -- the recoverable damages if negligence was proven would be limited to Tootsie's relatively limited market value at the time of her death -- the owner stipulated to entry of a judgment in favor of the defendants on all theories, then sought review of the emotional distress/companionship claims in the Court of Appeal.¹

The Court of Appeal rejected each of the plaintiff's claims in turn:

An animal owner does not fall into either of the categories in which California law permits recovery for emotional distress caused by negligence.  The owner is not a "bystander" directly witnessing the injury or death of a close [human] family member, nor can a pet owner be considered a "direct victim" of the claimed negligence.  The court noted that doctors treating children are not liable for the emotional distress of a parent whose child is injured by a doctor's negligence, adding:

Regardless of how foreseeable a pet owner's emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.

On the question of loss of companionship, the court was also influenced by California's existing limitations on such recoveries in cases involving humans.  While California permits damages for lost companionship (or "loss of consortium") in a marital relationship, no such recovery is available in cases involving parents and children.

We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog.  But given California law does not allow parents to recover for loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet.

The court also declined to expand the common law doctrine of "peculiar value" to include the companion-value of a pet.  "Peculiar value . . . refers to a property's unique economic value, not its sentimental or emotional value."

McMahon v. Craig is not so much a statement of a new rule of law in California as it is the first explicit statement of the manner in which existing rules apply to cases involving animals.  It provides a much needed clarification of the law, and aligns California with the majority of other jurisdictions that have considered these questions.²

~~~

Disclosure: George M. Wallace of Wallace, Brown & Schwartz, Pasadena, CA, the author of this weblog, was counsel for the successful defendants in McMahon v. Craig.

~~~

¹   Because of the procedural posture of the case, the Court of Appeal was obliged to accept all of the plaintiff's allegations as true.  The defendants denied that there had been any negligence, misrepresentation, or other wrongdoing on their part and,  in this writer's opinion, would have been able to prevail on the merits if the case had proceeded to trial.

²     At this writing, the decision is not yet final, and is subject to modification either on reconsideration by the Court of Appeal or if review is sought and obtained in the California Supreme Court.

~~~

Photo: "Faithful Dog," Highgate Cemetery, London, by Flickr user Aphexlee, used under Creative Commons license.

~~~

Los Angeles Times art critic Christopher Knight has a bone to pick with New York arts lawyer (and proprietor of The Art Law Blog) Donn Zaretsky.  In a post to the LAT's Culture Monster blog, "How not to deregulate art museums," Knight writes:

I once asked a donor of major art to an important museum what would happen if that institution proceeded with a tentative plan to sell one of the donor's art gifts to raise money to cover the museum's mounting bills.  That option has long been an art museum no-no.  Professional museum standards forbid using income from art sold from the collection — the term is deaccessioning — to pay for anything except future art acquisitions.  The answer I got from the donor was swift, brief and blunt.  'I'll sue.' 

Ever since then, any controversial deaccessioning story that turns up in the news makes me think of lawyers first.  It's not pretty, I know.  (Insert lawyer joke here.)  But whatever public benefits may or may not accrue from such a sale, the one sure winner will be lawyers.

Deaccessioning is a hot topic in the museum world these days as institutions feel the squeeze of the difficult economy, or of their own mismanagement in happier times, or both.  As the pressure mounts, a museum may be tempted to sell off parts of the collection simply to generate funds for day to day operations. Those who disapprove of that approach -- the establishment majority in museum circles, exemplified by the Association of Art Museum Directors (AAMD) -- view deaccession to cover operating costs as the equivalent of turning your car to ready cash by torching it and collecting the insurance money.  While the AAMD's policies permit the sale of current holdings in order to fund acquisitions -- eliminating parts of the collection in order to expand or improve it, or to fine tune its focus, by the purchase of new and different works -- if appropriate thought and soul-searching is brought to bear on the process, most any other deaccession is viewed with horror and met with howls of opprobrium.

. . . I suspect that, if the AAMD rule didn’t exist, deaccessioning practices wouldn’t change very much from what they are today: they’d still happen relatively infrequently, after much deliberation and careful consideration by museum curators, directors and trustees.

So where does that leave us?  Supporters of the AAMD position say that works can never be sold—except when they can be sold, in which case they’re somehow no longer held in trust.  And they say that if we allowed an exception for even the most mutually beneficial transaction (for example, a sale by a struggling institution like the National Academy to a healthy one like the Met), there would be no end to such sales—even though experience under their own rule shows that there are strong institutional constraints in place that act as a check on any abuse of such freedom.

Clearly, these internally inconsistent rules need to be re-examined, if not thrown out altogether.

Knight is having none of it, and accuses Zaretsky of doing no more than setting up and knocking down "a giant straw man" before condemning him as a wild-eyed cultural freebooter:

Minus the office on Capitol Hill, Zaretsky is to established deaccessioning policy what former Sen. Phil Gramm was to established banking regulation — an eager enthusiast for destructive reform, either unaware of or, worse, indifferent to the general chaos that would follow. Gramm went on to become a super-rich executive with a Swiss bank, but how's that banking deregulation thing been working out for you lately?

Christopher Knight's art writing belongs on the very short list of things that the much-abused Los Angeles Times still has left to be proud of these days.  That said, it is a disappointment to see that he has himself largely succumbed to argumentum ad strawmanum when he isn't stooping to outright argumentum ad hominem, dismissing both Zaretsky ("Such is the nature of routine blogging") and Art in America ("The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do . . . , it was apparently a wasted effort") with little more than an imperious wave rather than really engaging his opponent on substance.  

The core notion that there is some quasi-fiduciary relationship between museums and the public, that if art is not literally held "in trust" it should nevertheless be managed in a manner that will provide the greatest possible benefit (and access) to the broadest possible swath of that public, is not really in dispute.  The question is more what sorts of decisions that notion should permit.

Donn Zaretsky -- who can take some satisfaction, I suppose, from Knight's suggestion that there is a faction of "Zaretskians" among the managers of the nation's museums -- objects less to the concept of "the public trust" than to that concept being used as a great "Thou Shalt Not" to shackle all but a very limited class of deaccessions and dispositions.  Where Zaretsky sees imprisonment and an unreasonable restriction of curatorial freedom of choice, Knight and AAMD see a sort of protective custody, a binding of administrators' hands for their own good, to save them from their own worst instincts, or to serve a perceived Greater Good. Zaretsky would trust museum managers to exercise sound judgment, Knight and company would prefer that judgment to be exercised only within strictly proscribed limits.  The "correct" answer lies somewhere between them or perhaps exists only in theory or not at all.  I suggest we all go to our local museum of choice and think it through some more.

~~~

UPDATE [1724 PDT]:  Donn Zaretsky responds to Christopher Knight's post.

UPDATE 2 [040809 0804 PDT]:  Tyler Green of Modern Art Notes -- who, like Christopher Knight, has a spot near the top of my personal list of arts writers I follow and admire -- weighs in on the contra-Zaretsky side, with gusto.

UPDATE 3 [040809 0822 PDT]:  Donn Zaretsky, no surprise, fires back.  (Shameless self-interest alert: Zaretsky begins his riposte by quoting this post, and suggests that Decs&Excs has provided a "reasonable summary of the competing positions."  Heaven knows, we try.)  

Thanks as well to Walter Olson for his link from PointofLaw Forum.  

~~~

Photo: "NYC - Metropolitan Museum of Art Armors for Man and Horse" by Flickr user wallyg, used under Creative Commons license.

~~~

April Fool's Day has come upon us and, as is traditional, an extra edition of Blawg Review -- the April Fool's Blawg Review Appendix 2009 -- is posted to my more personal blog, a fool in the forest.  

Thematically, it is as spaced-out as Blawg Review #205, but focuses a little closer to home as hinted by the video above.

~~~

Video Credit: Moon Rise from David T. on Vimeo. Music by Ralph Vaughn Williams.

~~~

Welcome to Blawg Review #205, the Music of the Spheres edition.

The English composer Gustav Holst (1874-1934) was hugely prolific, but he is unquestionably best known for his orchestral suite, The Planets.  Composed between 1914 and 1916, the work was popular from the start, much to the chagrin of Holst, who thought that it unfairly overshadowed other, more worthy compositions.  Beginning in the 1960's, and particularly in the wake of the Space Age, the Apollo program to reach the moon, and the ultimate artistic affirmation of Space that is Stanley Kubrick's 2001:A Space Odyssey, Holst's Planets reached a new level of prominence among the popular classics, and it has never really gone away since.  (Playing soon at a summer amphitheatrical symphonic program near you, I would almost guarantee, if I were a fellow inclined to give guarantees.)

The Planets is structured in seven movements, each themed to a mystical/astrological attribute attached by Holst to that movement's regnant planet.  The Earth is omitted as is poor old Pluto, which had yet to be either discovered in or demoted from its place in the Solar System.  For reasons of his own, Holst ordered the movements to move first toward the Sun -- beginning with Mars and proceeding to Venus and onward in to Mercury -- and then out and away to the edges of the System -- Jupiter, Saturn, Uranus and Neptune in their proper astral order.

Blawg Review #205 is structured in seven movements, themed and ordered to parallel Holst's.  As above, so below.  Each segment is accompanied by a MIDI version of the relevant movement, courtesy of the Planets page at aquarianage.org.  Proper orchestral recordings of the suite are numberless as the stars, and any one of them will give a more fully satisfying experience of the work.

Now, set the controls for the heart of the Sun and beyond as we boldly go where no Blawg Review has gone before: in to the strange new worlds of this past week's finest legal weblog posts.  Whooosh!

The planet Mars and the Roman god for which it is named have always been associated with war and, as the Great War launched in Europe, Holst opened The Planets with orchestral music's most readily recognized and frequently imitated depiction of heartless, mechanized conflict.  If you know one part of The Planets, this is likely the one.  And what the makers of Hollywood preview trailers would do without "Mars" is terrible to contemplate.

Law is war by other means, right?  Battlefield metaphors have been the stock in trade of litigators for as long as there have been battlefields, metaphors, or litigators.  As an example, Walter Olson on PointofLaw.com noted this headline: "High Profile Plaintiffs Attorneys Start to Beat War Drums Over AIG Bonuses".

Even settlement negotiations can partake of the regalia of war, as when Victoria Pynchon of the Settle It Now Negotiation Blog considers the pros and cons of Pursuing a Divide and Conquer Negotiation Strategy.

Venus, the goddess, is more often associated with Love than with Peace, but Holst opts to set her namesake planet as a more direct counterbalance to the warrior rhythms of Mars (or, if you prefer, to the martial rhythms of war). Serene, stately, and peaceful it is.

In the world, good relations between the nations is a mark of Peace, and on those lines What About Clients? this week extended to palm of friendship south to Latin America, hosting a two-part discussion by guest-blogger Fernando Rivadeneyra, a partner in the Puebla, Mexico, firm of Rivadeneyra, Treviño & de Campo: "Reinventing" the Latin American Law Firm -- Part I and "Reinventing" the Latin American Law Firm -- Part II.

In the courtroom, jurors serve as peacemakers of sorts, given that their factual findings actually decide and resolve the issues before them. Why then, wonders Daniel Solove, do we treat jurors as second class citizens? Gideon, of the a public defender blog ponders jury selection and reduces it all to a single question: "Who Is This Guy?"

Speaking of jurors: should we be at all surprised that Anne Reed's Deliberations has been determined to be the best legal blog in Wisconsin? I am at peace with that notion.

Judges deserve credit as peacemakers as well.  Last week's Blawg Review #204 host, Above the Law, provides an unusual instance, in which the judge leaves the bench to defend a witness attacked by the defendant.  They have the video of this highly Alternative method of dispute resolution.

With the wind at his back and wings on his heels, Mercury is messenger of the gods, picking up a little extra change on the side as a corporate spokesmodel. The smallest and fastest moving of the planets, Mercury is represented musically as a spirit of increasingly speedy communication. While Holst painted this musical portrait of Mercury at the start of the last century, it is just as fitting a theme for the hoppity-poppity-nonstoppity iFaceBerry TwitterKindling world of today.

Communications technology is essential to contemporary lawyering, but also a subject on which contemporary lawyers can easily find cause to overthink. Take, for example, the "gripping issue of notice-provision terminology" noted at AdamsDrafting: should you refer to it as a "fax" or "facsimile" or "telecopier"?

Blogging is itself a mode of communication, even if directed to an audience of one. On his Compliance Building blog, Doug Cornelius observes: "I use my blogs to put my thoughts and ideas into a searchable place. I am happy that anyone takes the time to read any of them, but I think I am the biggest consumer of my blog material."

America is waiting for a message of one kind or another, and that message often takes the form of political speech. SCOTUSBLOG provided a thorough rundown of the issues and argument surrounding Hillary: The Movie. California Defamation Law Blog, meanwhile, offered handy procedural tips when suing because the defendant called you a Communist. And Downtown Lawyer Jodie Hill reports that the 8th Circuit has found that specialty personalized license plates are private speech protected against viewpoint discrimination under the First Amendment.

Ireland is having its own wrangles with political speech, after an unidentified sly boots of an artist not only painted satirical, near-naked portraits of the Irish Taoiseach (that's Prime Minister to we backwards English-speakers) Brian Cowen, but managed somehow to smuggle them on to the walls of upstanding cultural bastions the like of the National Gallery of Ireland and the Royal Hibernian Academy. The political authorities have been decidedly heavy handed in their efforts to track down the painterly perpetrator, to the extent of exacting an apology from the national television network for having covered the story at all and dispatching the constabulary to a Dublin radio station to demand information on the cartooning culprit's identity and whereabouts. Naturally, the entire situation has been christened "Cowengate." All of which is by way of prelude to a recommendation of the thorough review of the state of play and the legal questions presented offered by Eion O'Dell at cearta.ie: Cowengate and Freedom of Expression.

And what of old fashioned face to face conversation? Kevin O'Keefe strongly recommends it: Visiting one client at a time is a moving experience.

Jovial Jupiter is as much about awe and nobility as about jollity. After Mars, Jupiter's is the best known segment of The Planets, its central theme trotted out for hymns and processionals and other occasions of serious seriousness. For our purposes, though, the stuffy bits can be ignored as we seek out law-related posts with an element of the Pleasures of This World.

Where might pleasure lie? In the sparkling translucency of a fine Pinot Noir, perhaps, or the burly bruised purple of a fruit-bomb Shiraz? Robert Parker, whose judgments on matters wine-related can single-handedly change the course of rivers (of wine) and determine fate of nations (of wine drinkers) was once, wouldn't you know it, a lawyer. Bitter Lawyer has an interview with the man himself, including the answer to the question "What should law students buy if they've got $12 to spend?" See: Robert Parker, Vintage Lawyer.

Of course, to take pleasure in a scintillant glass or frosty beverage one must first be able to purchase it, something not so easily done in many jurisdictions.  Here is a most informative (and amusing) video on the byzantine bizarreries of the alcoholic beverage laws of one state, Virginia, via Radley Balko's blog, The Agitator: 

Jollity: you laugh until you cry.

Music, the thematic backbone of this week's Blawg Review, may also give pleasure, being as it is reputed to be the food of love and soother of savagery.  Whatever pleasures we listeners may be deriving, the prospects for the business of making money by getting people to pay for music is not particularly jolly. These are men of constant sorrow. The recently-launched Lawyer 4 Musicians blog focuses on the legal end of the business of music and this week turned to the major labels' latest attempt to rethink their revenue models: You Spin Me Right Round: Like a 360 Record Deal. [There's appropriate video accompaniment, likely to convince you that the current 80's nostalgia boom will never last, or shouldn't.]

Why Holst linked Saturn with old age is something of a mystery, as it is not a traditional association. The Planets' fifth movement depicts advancing age as a long, resigned but not depressive trudge to the destiny that awaits us all, which leads as well to the question: what sort of legal blog posts will fit nicely into this section?

Well . . . Nothing says "old age" like a birthday, as we were reminded over the weekend by the mysterious Editor of Blawg Review. Ed. apparently got Barenaked for the occasion. That he hints at this rather than sharing it more directly is an exercise of discretion for which we can all be grateful.

The elderly, and particularly the retirement savings of the elderly, were a particular target of convicted Ponzi schemer Bernard Madoff -- no spring chicken himself. On that note, let's spend a few moments contemplating corruption, which may or may not be connected to the advancing age of the allegedly Corrupt.

Madoff himself seems to have squandered the savings of . . . an equally dubious individual: Walter Olson of Overlawyered discovered that Eric Turkewitz reported that Madoff's victims include one Morris Eisen, a one-time notorious New York personal injury attorney whose work habits included the repeated and elaborate fabrication of evidence. Prior to taking his losses with Madoff, Eisen was disbarred and served a number of years in prison. He can offer Madoff tips on getting along behind bars, perhaps, if he is in the mood to share.

The world of Art is now alleged to have its own Madoff equivalent, in the person of formerly high flying gallery owner Lawrence Salander, now the target of some 100 counts of grand larceny, falsifying business records, scheming to defraud, and on and on. Donn Zaretsky's Art Law Blog is all over this story.

Giving generously to charity is a frequent privilege of the old and well off, and both givers and getters of charity are nervously eying the President's proposals to limit charitable tax deductions. Donn Zaretsky, again, is tracking the issue as it may affect donations of art: President Obama Stands By Proposed Charitable-Deduction Limits.

It is a canard whose age is measured in centuries: old men in power, aging judges for instance, are inherently suspect. As with most canards and over-generalizations, it is a statement that is overall untrue, but for which there are sufficient examples that its broader untruth is lost in the hurly-burly of vivid exceptions. As, for instance, when Austin criminal defense lawyer Jamie Spencer catches out some [aging? we'll assume it arguendo] judges whose decisions, it seems, Can Be Bought: Guilty Judges Say Thanks But No Thanks to Guidelines.

Some lawsuits live to a ripe or overripe old age as well. Dickens' Jarndyce and Jarndyce in Bleak House is the fictional example traditionally cited. Real life produces such antiquities as well, two of which from the Courts of California drew attention this week. Scott Godes' Corporate Insurance Blog (which I needs must add to the sidebar here at Decs&Excs) notes an excellent article by his colleague Steve Goldberg on the Stringfellow Acid Pits litigation, in which the coverage disputes threaten to outlast even the interminable cleanup of the site. And the California Civil Justice Blog updates the continuing saga of the so-called Kwikset litigation under California's infamously broad Unfair Competition Law, concluding there's Nothing Kwik About Kwikset.

Holst's Uranus enters the scene with a flash and a bang, then struts and frets through a series of rapid fire tricks and turns. As with Saturn and old age, the connection between Uranus and Magic meant something to Holst, but is less than clear to the rest of us. In any case, ol' Uranus puts on a whallopin' show before departing in as unsettling a fashion as he came.

The obvious place to turn for posts to include in this segment is the Law and Magic Blog, a blog that is all about . . . ?  Anyone?  Yes, you there in the back: "Could it be . . . Law and magic"?  Yes.  Yes, that's exactly right. Give yourself a cookie.  And among the legally magical news on the Law and Magic Blog this week, readers could learn that a down economy is a good market for psychics and that the operative standard of care when at the controls of a plummeting jet is: "Don't Pray, Pilot the Plane."

Not magical, perhaps, but also up in a down economy: commercial mediation, according to Geoff Sharp of mediator blah. . . blah . . . .

What if by some miracle you could take a large personal injury liability, say for the death of a hundred innocents in a nightclub fire, and transform it [presto! change-o!] in to something more palatable, such as an expense covered by federal stimulus money. Watch in amazement as Carter Wood of PointofLaw.com reveals the trick, as performed by the State of Rhode Island.

Holst's "Neptune" is an amorphous wash of elegant sound, emulating the distant and unknowable qualities of that far off planet as the suite drifts ethereally to its conclusion. It is often said that Holst here invented the "fade out" as a method of concluding a piece. This movement calls for an offstage female chorus, which continues to sing wordlessly and more and more quietly after the instruments of the orchestra have dropped out, until the sound disappears altogether. Holst's instructions actually call for the chorus to be in another room, and for the door from the concert hall to that room to be closed to cap the long diminuendo to the silence of empty space. (The MIDI version above really does not do the effect justice; you should by all means track down the real thing to hear how well the trick works.)

In the realm of the mysterious, I can point to my own stock in trade: the construction and interpretation of the English language as used, sometimes oddly, in contracts of insurance. Stephen D. Rosenberg of the Boston ERISA and Insurance Law Blog has been thinking long and hard on this topic recently and this week offered his latest thoughts on Deconstructing the Language of Insurance Policies. Additional hope for the perplexed in this field comes from the news that Martin Grace and company at the RiskProf blog will be making their wished for return this week. (There has been a good deal of attrition and suspension in the insurance blogging ranks this past year, Decs&Excs included, so the recent return of David Rossmiller and the promised return of RiskProf are welcome developments.)

Looking for a topic more mysterious than insurance? How about federal preemption doctrine in drug and device product liability litigation? The mind boggles. Fortunately, new insights were provided this week by Jim Beck and Mark Herrmann at the Drug and Device Law blog, reviewing a recent address on the subject by former Yale Law dean, now Judge, Guido Calabresi: Calabresi on Preemption.

Intellectual property is not the sole property of intellectuals, but it can easily sow confusion among those who are not among its adepts. Jeff Pietsch of The IP Law Blog assists the confused in his continuing series of trademark basics, this week explaining the concept of trademark dilution. Like a good scotch, a good trademark should not be excessively diluted.

A final conundrum before we part: Why do large and seemingly successful law firms suddenly go *poof*? John Wallbillich of wiredGC takes on a recent example of the phenomenon when he considers Proximate Cause and Law Firm Dissolution.

Now, as Blawg Review #205 fades into distance and silence and the infinite mystery of space . . ., Decs&Excs thanks you for reading and leaves you with this final observation, which is an eternal verity and no mystery at all:

• Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

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Photo Credits:

"Orrery Closeup," by Flickr user Binks , showing the orrery at the Long Now Foundation, San Francisco;

"Mars" by Flickr user andy z;

"The morning star rises" by Flickr user jpstanley;

"Mercury Transit 2006," showing the planet Mercury crossing the face of the Sun, by Flickr user Ethan Allen;

"jupiter_2008-06-18_008" by Flickr user alsand;

"The ringed planet" [Saturn, obviously] by Flickr user jpstanley;

"Uranus," NASA/JPL photo from Voyager 2 probe, Jan 25, 1986, posted by Flickr user topquark22; and

"Neptune" by Flickr user ringsofsaturnrock.

All photos used under Creative Commons license.

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The intersection of art and law has been a recurring topic here at Decs&Excs, especially when one declines to yield the right of way to the other.  One subset of that topic has been courthouses of artistic or architectural interest.  See, e.g., here or here.

The newish federal courthouse in Springfield, Massachusetts, boasts a highly respectable architectural pedigree.  The principal architect is Moshe Safdie, perhaps best known for Habitat, the apartment building he constructed for Montreal's Expo '67 by literally stacking modular residential units on and around one another.  Better yet, as Los Angeles Times art critic Christopher Knight reports online today,the Springfield courthouse is home to an important -- and large -- piece of contemporary art.

The late Sol LeWitt (1928 - 2007) worked in many media and is associated with both the Minimalist and Conceptualist strains of contemporary art.  Those strains meld in LeWitt's large body of "Wall Drawings."  As their name suggests, LeWitt's wall drawings are drawn (or painted or otherwise applied) on walls of existing buildings.  LeWitt rarely executed the drawings himself.  Instead, the artist's creative contribution was to devise the detailed sets of instructions that others would follow, with or without Lewitt's supervison, to bring each drawing into the material world.  The wall drawings, in other words, exist principally as sets of instructions for their own creation.  The idea of the drawing is the drawing.  This is the sort of thing that some of us like very much and that others point to as Exhibit "A" in support of their "Motion to Strike All Contemporary 'Art' as a Sham, a Frolic, and a Banter."

The wall drawing in the Springfield courthouse is one of the last LeWitt created.  "Wall Drawing No. 1259: Loopy Doopy (Springfield)" is 300 feet long, covering the entire length of the third floor and enveloping the entrances to four courtrooms.  Christopher Knight writes:

In the last decade or so of his life, LeWitt made a number of drawings by ... 

... taping together two pencils and rolling them through his fingers and twisting his wrist as he moved across the page. That became the template for the mural.

The energy of the piece derives from the way it negotiates the crazy play of its linear twists and turns with the strict rationality of the architectural setting.  (The building was designed by Boston architect Moshe Safdie.)  On a black acrylic ground, the wide white lines seem to emerge from the surrounding white-walled interior, which merges a rectilinear grid with a compound curve.  Buildings can be eccentric, but they must also subscribe to the logic of structural codes -- which an artist can happily ignore.  The loopy-doopy drawing, flooded with natural light from the building's glass facade and skylights directly above, takes that fundamental difference and runs with it.

He even provides video, walking the full length of the third floor corridor:

As public art goes, this is top flight.  I cannot speak for attorneys who actually have to practice in its presence, but I suspect that if I found myself in Springfield, Massachusetts, waiting to make an argument in one of those courtrooms, the contemplation of all those loops and doops would be just what I would want to get my head on straight.  Other advocates' mileage may vary.

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For Extra Credit: Since last November, and for the next couple of decades, the Massachusetts Museum of Contemporary Art [Mass MOCA] will be home to the world's largest assemblage of executed LeWitt wall drawings: 105 of them, to be exact.  This Mass MOCA video looks in depth at the variety of the drawings and at the processes involved in fulfilling the artist's instructions.  In some sense, these works are not so much art as they are repetitive motion injuries waiting to happen:

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Your Government has created a lavishly illustrated brochure [PDF] about the Springfield Courthouse, its architecture and art.  The photo at top has been excerpted from that publication.  A gallery of photos of the building, including one more of the LeWitt, is accessible on the Court's site.

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Meanwhile, a brazen and beefy Blawg Review #204 is to be had this week courtesy of the legal tabloidologists at Above the Law.  Get thee hence post haste, then hasten back here post hence.