By Stephen Hooper

The Velvet Underground’s groundbreaking first album, “The Velvet
Underground & Nico” is an icon, giving birth to the punk rock
revolution and countless indie bands, and the sounds and images that
emanated from the band in the sixties have become inextricably
absorbed into our popular culture. The album also sports a cover that
is iconic in its own right, designed by famed artist Andy Warhol,
featuring a sticker of a yellow banana peel that listeners could peel
off to reveal a pink banana underneath. The counter-culture of the
sixties, as embodied in the incomparable work of Warhol and the
generation of rock bands that followed the influence of the Velvet
Underground, has had such strong reverberations in our culture that we
often take for granted the extent to which it has permeated the
popular imagination despite its counter-cultural origins. The Library
of Congress even added the album to its collection in 2006 even though
its subject matter covers such gritty material as drug use,
prostitution, and sexual deviancy.

Earlier this year though, the Velvet Underground filed a suit
against the Andy Warhol Foundation for licensing the banana design on
the cover to a manufacturer of iPod and iPad cases. The basis of its
claim is twofold: that the design is a part of the public domain and
cannot be licensed, and that the band has acquired a common-law
trademark in the image. By virtue of being associated with the banana
design over the course of four decades, in promotional materials and
in the album itself, the band claims that image has acquired a
secondary meaning associated exclusively with the band. The Velvet
Underground makes this claim even though the design is as synonymous
with Warhol himself as with the band. To further complicate things,
neither party has attempted to register a copyright or trademark in
the design. It also leaves open the question of whether the design is
truly in the public domain, or whether some entity has ownership
interest in it.

This lawsuit draws into relief the issues surrounding cultural
property from the recent past and how it should be owned or
controlled. The Warhol Foundation has run into similar problems with
other artwork since it has become such a commonplace part of popular
culture, and therefore seems to have no particular ownership. Where
contemporary cultural production relies on repackaging and
recontextualizing the past, lawsuits of this kind are bound to occur
more often. This suit also illustrates the way that art that
originates as a counter-cultural statement can become absorbed into
the mainstream, and therefore the legal system that controls property
and wealth distribution. Whatever the case, the Velvet Underground,
if it pursues this lawsuit further, will have to show that despite the
fact that the banana design is in the public domain, it should control
who can license and profit from it.

Do you think the Velvet Underground has a valid claim in this case?
Who do you think the cover design belongs to?

Who should have licensing power over works that have fallen into the
public domain, and what legal policy would best serve the interests of
the public in situation concerning a counter-cultural work such as
this?

By Paul Hershan

It’s a common refrain that our degree of privacy in modern life isn’t what it used to be.  Facebook, Twitter and the like pose the same dilemma- post on the website frequently and contribute to fun, interesting things being talked about online, while diminishing your level of personal privacy; not post on the website, maintain your privacy but miss out on the fun.  It is hard to stay completely off the grid, especially when more and more people use these sites for personal communication.  Should you really have to forgo your privacy when you send a message to your friend on Facebook or post a tweet?  Are you broadcasting whatever message you are sending to the world, or is it more personal?

Should a prosecutor be entitled to subpoena your tweets?   Recently, the Manhattan District Attorney’s Office subpoenaed Twitter at their San Francisco offices for the tweets of one Malcolm Harris.  Mr. Harris, 23, was among more than 700 people arrested on October 1 for blocking traffic on the Brooklyn Bridge as part of the Occupy Wall Street movement.  The DA is defending their actions by saying they are not going after any 1-on-1 direct messages, but rather his “public tweets.”  The prosecution’s theory supporting the subpoena is that they want to disprove Mr. Harris’ defense that he thought he had permission to be on the bridge as part of the protest.  Malcolm Harris is being charged with a violation.

The Occupy Wall Street movement began to protest wealth inequality in this country and the alleged collusion between our government and powerful financial interests.  The question of ownership centered is at the heart of the movement.  This case suggests, perhaps, that the next frontier in the Occupy movement is Internet privacy.  Who owns your communications online?  It is a crazy question to have to ask, one would think.  I am the one making the statement; I own it.  The law, combined with these technologies, complicate the clear answer to this question in pure moral terms.

The subpoena raises First Amendment, Fourth Amendment, and privacy concerns.  But do you in effect waive these rights when you go online and tweet, for example?  This seems to be what the prosecution is arguing.  “He has no proprietary or privacy interest in tweets that he broadcast to every person with access to the Internet,” Assistant District Attorney Lee Langston wrote.  Yet as more and more of our lives take place online, does Mr. Langston’s statement fully reflect the reality of the situation?  If you’re the judge, do you sign off on the subpoena?

By Sarah K.

On Thursday, the U.S. Court of Appeals for the Ninth Circuit upheld a
California law that permits law enforcement authorities to collect DNA
samples from people arrested for serious crimes, even prior to
conviction. Originally passed in 1998, the law was amended in 2004 to
permit DNA collected from any person charged with a felony offense.

In 2009, five California residents who were arrested, but never
convicted, filed a lawsuit which challenged the law as
unconstitutional. The plaintiffs allege that the 2004 version of the
law violates the Fourth Amendment’s guarantee of freedom from
unreasonable search and seizure. It is worth noting that the
collection of fingerprints from persons at the time of arrest is
widespread and remains virtually uncontested on a constitutional
basis.

In defense of the law, the Ninth Circuit majority explained that the
benefits of DNA collection for arrested persons, which include
California’s successful identification of 10,000 offenders thus far,
greatly outweigh any privacy concerns that such collection might
raise. Just this past July, the Third Circuit came to the same
conclusion, upholding DNA collection in similar circumstances.

Opponents of the law argue that people who have merely been arrested,
and not convicted, are innocent, and have no place in a criminal
database. Furthermore, ‘any felony offense’ can include non-violent
crimes, which may not necessarily warrant DNA collection. What is
further troubling to the law’s opponents, including the American Civil
Liberties Union, is the fact that even if only a tiny portion of a
person’s DNA ends up in the database, law enforcement authorities,
such as the FBI, retain the entire sample. What others find troubling
is the prospect that, eventually, technology will progress to the
point where the remainder of the stored DNA might be used to divulge
private, and possibly incriminating, characteristics, such as a
predilection for violence.

The 2002 movie, Minority Report, explored the scenario in which a
hands-on government could protect its citizens by predicting crimes
before they occur. In the film, set in the year 2054, the government
has the ability to prevent murder by using mutated humans to predict
the occurrence of such crimes in advance, thereby providing sufficient
warning to prevent their fulfillment. While such a scenario remains
beyond the scope of possibility in this day and age, we ought to argue
that if DNA may eventually be used to unearth private information,
such as a natural prevalence towards violent behavior, might we be
heading down a slippery slope? Would such evidence, revealed through
DNA, not arguably muddle the concept of ‘guilty until proven
innocent’?

The value of DNA use in criminal prosecution – and exoneration – can
hardly be understated. Yet, prior to conviction, the collection of
such personal information remains highly controversial. It remains to
be seen whether other U.S. Courts of Appeal will fall in line with the
Third and Ninth Circuits.

By Sarah K.

What do you get when you take the women’s lobby, add in some freedom
of religion, combine with an impending presidential election, and
throw in more reproduction-related controversies in one month than
most people can recall in recent memory? The answer is the month of
February, 2012. And boy, Saturday Night Live is certinaly enjoying it.

In an era where most young women take contraceptives and abortions for
granted, the events of the last few weeks have certainly shed doubt on
the security of these well-respected rights. As I was perusing the
internet this week, I noticed an advertisement on the bottom of my
screen, proclaiming “Birth Control under ATTACK!” While such an ad
might be slightly hyperbolic, watching the birth-control controversy
of the last two weeks unfold invoked the not-too-distant memory of
Fordham’s own birth-control fiasco last Fall. Fordham’s refusal to
explicitly disclaim its unwillingness to provide birth control
polarized the student body and proved prescient to the current
controversy. It is worth noting that rather than pushing Fordham, a
Catholic University, to provide birth control, Fordham students merely
wanted the University to be more upfront about its coverage policies
on its website. Fair enough.

It appears that President Obama picked up right where Fordham’s
student body left off. After initially mandating that
religiously-affiliated institutions that serve the public must provide
birth control, the President then issued a compromise, exempting
churches and other religiously-affiliated institutions from directly
covering the cost of birth control and instead allowed them to defray
the cost onto insurance companies. For the many clergymen who
conspicuously filled the House hearing on the issue in mid-February
(much to the notorious chagrin of women everywhere) this was not
enough. Citing the First Amendment’s guarantee of Freedom of
Religions, clergymen from both Catholic and Jewish backgrounds rallied
against this allegedly impermissible intrusion. Yet considering that
55% of Americans believe that contraceptives should be free in all
health-care plans, it appears that, at least when it comes to popular
opinion, Obama got this one right.

However, just as the furor – or fury – surrounding the birth control
controversy began to die down, reproductive rights activists saw their
next challenge when Virginia passed a law which required that women
seeking an abortion be forced to undergo an invasive ultrasound.
However, after keeping women’s health activists busy for a week, and
providing the internet with plenty of material for spoofs, Governor
Bob McDonnell recanted, alleging that the procedure was ultimately far
more invasive than he or his aids had initially understood it to be.
The governor said, in his statement, “Mandating an invasive procedure
in order to give informed consent is not a proper role for the state.”

It is most likely coincidental that both the birth control and
abortion issues made national news only a few days apart. Both involve
mandates, governmental intrusion, religious undertones, and a
polarized political spectrum. Yet if you look closely, there is a
difference in the mandates that serve as the basis for these issues.
With regard to birth control, religious organizations are being
required to merely provide the option of birth control for those who
choose to use it. And with 98% of American Catholic women responding
in the affirmative to the question, “Have you ever used birth
control?” it appears as though that option is virtually a necessity.
On the contrary, mandating a medically invasive procedure is
fundamentally different than providing the option for such a
procedure.

With regard to religious freedom, it has been suggested that the
government traditionally only interferes with religious freedom in
dire situations, such as mandating a blood transfusion for a dying
Jehovah’s Witness parent. Forced coverage of birth control would
arguably not meet this strict standard. But, again, the only thing
being mandated is the option to use it. Interestingly, one of the
bishops who attended the hearing at the House of Representatives last
week suggested that forcing a religious institution to provide birth
control is analogous  to forcing a kosher deli to serve pork. I find
the analogy interesting, and when it comes to religious freedom and
the right to be free from governmental intrusion, I do not have an
answer for how those two impositions are fundamentally
distinguishable. What I do know is that for women, preserving these
options is vitally important, and as February has proven, women must
keep a vigilant eye in order to protect these fundamental rights.

By Nicholas G.

The New York Football Giants and Jeremy Lin have more in
common than first meets the eye.  Yes they are both sports entities
within New York, but over the past two months they evolved into
something grander and more complex.  The two sports sensations
connected the citizens of New York for a brief moment in time
distracting us from reality.

The Giants had a magical run in the playoffs topped off by
an incredible Super Bowl win over one of New York’s fiercest rivals,
the New England Patriots.  The Giants began their Super Bowl push in
early January.  Over the course of the month the Giants toppled Super
Bowl favorites week after week.  The state of New York became
enveloped in Giant mania.  Throughout New York City the Giants
dominated the headlines, a sea of number 10 jerseys could be seen, it
felt as though the entire city was behind the Giants.  The true
culmination of this state-wide connection was most prevalent over
Super Bowl weekend.  Conversations in supermarkets, banks, malls, etc…
were dominated by discussions of the Giants.  It seemed as though the
routine of everyday life was disturbed for a brief period in time.
People were not as concerned about how vulnerable they were to a
variety of different factors that plague their everyday thoughts.  The
Giants were victorious in the Super Bowl and a parade was held in
their honor.  Citizens of New York City and the surrounding burrows
put their daily lives on hold and celebrated their team’s heroic
victory.

The New York connection formed by the Giants would be
elongated by the emergence of a true underdog in Madison Square
Garden, Mr. Jeremy Lin.  A week had barely past since the Giants’
victory before Jeremy Lin had taken center stage.  New York was once
again rooted together through their shared interest and connection to
this new sports sensation.  Lin’s captivating play lead the New York
Knicks to their longest winning streak of the season.  Once again it
became difficult to hide from the next New York sports sensation.

People seem to gravitate together toward a shared focal
point.  As human beings we are vulnerable by nature and we are aware
of our mortality.  Our knowledge of our own mortality leads to human
destruction.  In order for humans to live in harmony they must deflect
their self-awareness by distracting themselves.  Distractions are
present in numerous forms such as passion, religion or even sports.
An entire community found its distraction in the Giants and Jeremy
Lin.

By Nicholas G.

Ryan Braun, outfielder for the Milwaukee Brewers, recently
became the first baseball player to successfully dispute a drug
related penalty.  In the past few years, Ryan Braun has emerged as
more than just a solid left fielder.  In the 2011 season, Braun
sustained a .332 batting average, hitting 33 home runs, and driving in
111 runs.  He lead the Brewers to the 2011 National League
Championship and was awarded the National League Most Valuable Player
Award.  Ryan Braun is no longer just your everyday left fielder he
has become one of the faces of Major League Baseball.

Unfortunately and to the dismay of all baseball fans,
Braun’s outstanding 2011 season may have been achieved through
questionable measures.  The last two decades have been labeled the
“steroid era” in Major League Baseball.  All Star players from Mark
McGuire to Manny Ramirez have achieved greatness in the game of
baseball only to be severely tainted by their confirmed steroid use.
Major League Baseball has revamped its drug testing procedures and
positive drug tests have become quite rare as a result.  In
October 2011 Braun’s urine tested positive for elevated testosterone.
The results were revealed by ESPN in December of the same year.
Major League Baseball penalized Braun with a 50-game suspension.
Braun disputed the results of the drug test and the resulting penalty.
The dispute was to be settled via arbitration.  On February 23, 2012
Braun’s 50 game-suspension for a positive drug test was overturned on
appeal.  Braun’s victory was based primarily on the technicalities
surrounding his drug test.  Braun’s urine sample was sent to a World
Anti-Doping Agency-certified laboratory in Montreal 48 hours after
Braun had provided the sample.  According to Baseball’s drug
agreement, absent unusual circumstances the samples should be sent by
FedEx to the laboratory on the same day they are collected.  Braun
was permitted to attend spring training this week with the Milwaukee
Brewers.

In terms of legality, Ryan Braun is innocent but in terms
or morality Braun’s innocence is questionable at best.  Many suspect
Braun had taken an illegal substance and was found legally innocent
based on a technicality.  Few people know for certain whether Ryan
Braun had taken steroids and Braun himself is certainly among the few.
Taking steroids or any illegal drugs to enhance one’s performance on
the baseball diamond is flat out cheating.  Players who use steroids
receive an immense advantage over those players who do not use
performance-enhancing drugs.  Players on steroids also cheat the
public who pay money for tickets and baseball memorabilia.  The fans
are watching these athletes perform based on the notion they are
acting solely on natural abilities.  Whether or not Ryan Braun had
actually taken steroids is unknown but if he did use
performance-enhancing drugs it is clear that he has allowed his legal
duty to supercede his moral duty as a baseball player and a person.

It is also important to note that the moral duty here
extends beyond the actor.  If Braun had indeed used steroids, it seems
highly unlikely that no other player, coach, trainer, etc… had
witnessed or knew of the circumstances.  Legally there is no duty for
these people to act but morally they allowed Braun to cheat under
their watch.

By Victoria G.

On Friday, Dahrun Ravi, a former Rutgers University student went on
trial for setting up a webcam to spy on his roommate, Tyler Clementi.
A few weeks into their freshman year, Ravi and another hallmate
used the webcam to spy on Clemente kissing another man and later
commented about it on Twitter. Several days later Clementi committed
suicide by jumping off the George Washington Bridge after posting a
short but chilling Facebook status update: “Jumping off the gw bridge,
sorry.”

Now, Ravi is facing a 15- count indictment including tampering with
physical evidence, invasion of privacy, and bias intimidation.
Bias intimidation is a hate crime, usually attached to violent crimes
and carries a sentence of up to 10 years in state prison. Here,
the allegation is that Ravi set up the webcam with the intention of
harassing Clementi because he was gay or that Clementi felt that he
was being harassed because he was gay. While the prosecutor argues
that Ravi set up the webcam to intentionally deprive Clementi of his
privacy and dignity, Ravi’s defense attorney unsurprisingly paints him
in a different light, as simply an 18-year-old boy, who may have been
thoughtless, but “certainly not a criminal.” Interestingly, the
prosecutor did not mention Clementi’s suicide in her opening
statement.

While Ravi is not being charged in connection with Clementi’s death,
at the very least this trial will provide some sort of moral remedy
for the Clementi family: the opportunity to confront their son’s
tormentor and continue to raise nationwide awareness about the harmful
consequences of bullying.

By Victoria G.

This past week, Representative Yasmin Neal, a Democrat from Jonesboro,
Georgia, proposed a bill prohibiting men from getting vasectomies,
unless its purpose was to prevent death or serious injury. This
bill is a direct response to a bill that punishes abortions performed
after the 20th week of pregnancy, but also makes exceptions for death
or serious risk of bodily harm for the mother. She says that “[i]f we
legislate women’s bodies, it’s only fair that we legislate men’s,” and
hopes that this bill will stir up controversy and dialogue the same
way anti-abortion statutes have.

Neal makes it clear that the primary purpose of this proposed bill is
to shed light on the injustice in letting men legislate what women can
and cannot do with their bodies. She says “even if it were proposed as
a serious issue, it’s still not my place as a woman to tell a man what
to do with his body.” Anti-abortion advocates, however, believe that
she is making light of a very serious matter. Representative Doug
McKillip, who introduced the anti-abortion bill, feels that a bill
limiting vasectomies is a “poor attempt at humor.”

While this bill is certainly bound to stir up conversation, it is
probably not likely to generate the reaction Neal had in mind when she
proposed it. Advocates of anti-abortion legislation will either react
the way McKillip has and dismiss it entirely, or argue that
vasectomies do not warrant regulation the same way abortions do. Those
who are in the latter category are also likely to be those who believe
that life begins at conception and will argue that a vasectomy is
fundamentally different from an abortion because it does not involve
two lives. Simply put, abortion rights are not the same as
contraception rights. However, this argument would miss the point
entirely. The purpose of the bill is not to analogize vasectomies to
abortions (even if it does so indirectly), but rather to demonstrate
that there should not be a double standard for men and women with
regards to reproduction; if legislature can determine what women can
do with their bodies, they should do the same for men.

By  Paul Hershan

Roughly 3/4 of Americans believe it should be legal for doctors to prescribe marijuana for serious medical conditions.  For this and other reasons, it has come as a shock to many that the Obama administration has stepped up its pursuit of medical marijuana dispensaries over the past year.  During the campaign, President Obama (himself a frequent marijuana smoker in his youth, according to his memoir) stated that he would reverse the Bush policy of prosecuting medical marijuana dispensaries (legal in 16 states and the District of Columbia), promising to leave the issue up to states.  Not so much.  The federal government has prosecuted marijuana dispensaries nationwide, vowing to seize the property of those who simply rent to legal pot dispensaries, and threatening to imprison state employees responsible for regulating medical marijuana.

From a cynical perspective, the reversal in policy from the Obama Administration makes little sense- it risks alienating young voters, whose turnout is crucial for his re-election chances.  From a moral perspective, it is another disheartening example of a politician who lacks the conviction to implement his promises, preferring instead to indulge the need for self-preservation.  It also seems to reflect a disconnect between the law and culture.  Marijuana has emerged into the mainstream of American society, despite its illegality.  From tv (Showtime’s popular show Weeds) to movies (the 2008 comedy Pineapple Express took in over $100 million at the box office) to the blogosphere (blogger Andrew Sullivan had a running thread on his wildly popular blog The Dish called “The Cannabis Closet” that was such a hit he complied the best posts into a book of the same title) acceptance of marijuana use is clearly growing.  Why is more political might than ever spent on condemning this drug, when our culture seems to be moving in the opposite direction?

By A. Hsu

Last Thursday, the Asian Pacific American Law Students Association
(APALSA) of Fordham put on a reenactment of the trial for the murder
of Vincent Chin, which started the Asian American civil rights
movement. The reenactment was edited and adapted from the court
transcripts by Judge Denny Chin. Vincent Chin, a Chinese American, was
beaten to death by a baseball bat in Michigan by Ronald Ebens and
Michael Nitz. The murder was a hate crime, stemming from massive
layoffs in the Detroit auto industry (including Nitz’s layoff) because
it was losing market share to Japanese automakers. During the beating,
Ebens made the comment “It is because of you…that we’re out of
work!”

In the state criminal charges, Ebens and Nitz received a lenient
sentence through a plea bargain of 2 years probations and $3,700 fines
each, despite the brutal nature of the attack. Due to public outrage,
the two were later put on trial in a federal prosecution for violating
Vincent Chin’s civil rights. While the federal civil rights charges
did not result in any jail time for Ebens or Nitz, the trial served as
a wake up call to the discrimination that the Asian American community
faced and has provided relief by providing an opportunity to allow the
community to acknowledge the “spiritual violence” and hurt through
story-telling. It also memorializes it for the future, as seen in the
retelling of the trial by Fordham APALSA.

Following the trial reenactment, Judge Chin discussed the origins of
these trial reenactments. He had wanted to do a trial reenactment of
Korematsu as well and even went to the Supreme Court to try to find
the transcripts. Given the need of story-telling to victims, it was
surprising that the trial transcripts from Korematsu were missing. As
seen by APALSA’s reenactment last week, trial reenactments are
powerful ways to tell the story again.