David B. Norris’s Report from Counsel Newsletter for Spring 2014

Business Law: Copyrights & the First-Sale Doctrine

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Under the “first sale doctrine,” the owner of a copyrighted item, such as a book or a recording, is free to use it, sell it, lend it, or give it away under whatever conditions the owner chooses to impose.  This doctrine derives from a long line of jurisprudence, see Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), and is now embodied in the Copyright Act, 17 U.S.C. § 109(a) (“[T]he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”).

Until now, the extent of the application of the first-sale doctrine to books sold overseas and then imported into the United States remained an open question.

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Property Law: Standing of Mortgagee Assignee to Bring Foreclosure Action

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Both state and federal courts have recently decided numerous cases addressing the issue of standing to bring a foreclosure action. Defendants to foreclosure proceedings often have few defenses, but they should closely scrutinize the ability of the plaintiff to bring the complaint if the plaintiff is allegedly an assignee of the noteholder and not the original lender.

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Personal Injury Law: Applying the “Golden Rule” to Liability Arguments

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A “golden rule” argument asks jurors to place themselves in the position of a party. For example, an attorney may ask jurors how much the loss of the use of their legs would mean to them or ask them to “do unto others as you would have them do unto you.” Virtually all courts have considered such arguments to be improper if made in regard to damages. However, courts appear to be split as to whether such arguments are permissible with reference to liability.

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Employment Law: Discrimination in the Workplace—Cautionary Tale for Employers on Religious Harassment

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Although sexual harassment is now a well‑known pitfall for employers, the potential exposure to liability for harassment based on religion often receives less attention. Recent decisions from state and federal courts show, however, that employers must be proactive to avoid potential claims based on religious harassment. See May v. Chrysler Group, LLC, 716 F.3d 963 (7th Cir. 2013); Cowher v. Carson & Roberts, 40 A.3d 1171 (N.J. Super. Ct. App. Div. 2012).

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