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Things Lawyers Argue About:

Does "engaging in a three-way sexual encounter with [a current client] and [the client's] girlfriend" count as having sex "with a current client" (a practice forbidden by state bar rules)?

From Office of Lawyer Regulation v. Inglimo, decided last week by the Wisconsin Supreme Court (paragraph break added):

¶57 The relevant language of SCR 20:1.8(k) is as follows:

(k)(1) ... (i) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.... (2) A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

¶58 The referee found that Attorney Inglimo engaged in sexual relations with L.K.'s girlfriend while she was doing the same with L.K. The OLR essentially argues that the word "with" in SCR 20:1.8(k)(2) connotes a temporal and spatial connection. According to the OLR, as long as the lawyer and the client are both participating in a sexual act at the same time in the same place, they are having sexual relations "with" each other....

¶59 On this issue, we concur with the referee's conclusion [that Inglimo did not violate the rule]. The definition of sexual relations in SCR 20:1.8(k)(1) connotes conduct directly between the lawyer and the client. When the definition refers to touching, the rule speaks of the lawyer intentionally touching the intimate parts of "a person," but the subsequent alternative definitional phrase uses the more definitive "the person" when referring to a situation in which the lawyer causes the touching to be done to him/her. In addition, to the extent that sexual intercourse also qualifies as "sexual relations" under the definition, such conduct is likewise done intentionally (i.e., not by accident).

Further, SCR 20:1.8(k)(2) prohibits a lawyer from having "sexual relations" "with a current client." Thus, the definitional language of SCR 20:1.8(k)(1) and the prohibition of SCR 20:1.8(k)(2) together clearly indicate that the prohibited "sexual relations," whether intercourse or touching, must be intentionally done between the lawyer and one particular person, namely the client.... [B]ecause it does not appear that the definitional elements of "sexual relations" have been satisfied, the simple term "with" in the prohibitional phrase in SCR 20:1.8(k)(2) cannot transform this situation into a violation of the rule.

Note that Mr. Inglimo was found guilty of a good deal of other misconduct, involving sex, drugs, and money, and was suspended from the practice of law for 3 years.

TerrencePhilip:
The London Bridge or 2-guys-one-lady-simultaneously, in my view violates Man Laws, even if the bar disciplinary standards are weaker.
10.25.2007 3:42pm
Dilan Esper (mail) (www):
Note that Mr. Inglimo was found guilty of a good deal of other misconduct, involving sex, drugs, and money, and was suspended from the practice of law for 3 years.

In other words, either way, he was screwed.
10.25.2007 3:46pm
Anderson (mail):
The London Bridge or 2-guys-one-lady-simultaneously, in my view violates Man Laws, even if the bar disciplinary standards are weaker.

It does not however violate Anderson Laws.
10.25.2007 3:47pm
arthur (mail):
The decision is here.. The client was a criminal defendant, but the opinion doesn't seem to say how the criminal case resolved (based on a quick reading). Which seems highly relevant, since Inglimo would have no defense if he got his client off.
10.25.2007 3:53pm
L. Hand:
Clearly the members of the Wisconsin Supreme Court (3 guys, 4 gals) wants to assure themselves that their post-argument orgies don't mean they're gay.

Otherwise this decision is inexplicable.
10.25.2007 3:55pm
A.S.:
Which seems highly relevant, since Inglimo would have no defense if he got his client off.

Very impressive double entendre.
10.25.2007 4:01pm
Philippe (mail):
So if the swords don't cross, it isn't unethical?
10.25.2007 4:02pm
Sammimo (mail):
arthur wrote:

Which seems highly relevant, since Inglimo would have no defense if he got his client off.
You owe me a new keyboard.
10.25.2007 4:02pm
Eugene Volokh (www):
Thanks to commenters Steve and Anderson for pointing out that the original post had a bad link, and an unclear introduction; I've corrected both, and pruned the comments that simply alerted me to this.
10.25.2007 4:05pm
Constitutional Crisis (mail):
What if he went second?
10.25.2007 4:09pm
FC:
Ha ha ha! Ipse dixit.
10.25.2007 4:11pm
Anderson (mail):
Wow, the opinion is a gold mine:

Both P.K. and K.K. testified that the sexual intercourse was payment for prior legal services that Attorney Inglimo had rendered to K.K. P.K. testified that the videotaping was done to ensure that there was no dispute that the bill for legal fees had been paid in full.

I am going to have to reconsider my rates.

Alas, no video of L.K. it seems, so we can't evaluate my theory that the men might have exerted detectable pressure on each other's genitals, even though they were not in direct contact due to the interpostion of the rectal wall. That would be of profound legal interest.
10.25.2007 4:16pm
Constitutional Crisis (mail):

The referee found, based on L.K.'s testimony, that Attorney Inglimo had been high on drugs during L.K.'s trial, that Attorney Inglimo was not prepared, and that he had not represented L.K. adequately at the trial.

The referee concluded that this conduct by Attorney Inglimo constituted a violation of SCR 20:8.4(b).
Dude should have opened up practice in Texas.

The referee found that during the June 2002 videotaped incident, Attorney Inglimo, P.K. and K.K. also had snorted cocaine using a straw and a mirror. Attorney Inglimo admitted that he had used cocaine occasionally since becoming an attorney, although he said he wasn't sure whether the substance shown on the June 2002 videotape was really cocaine. He claimed that it may have been flour or salt.
If you can bake with it, you must acquit!

There's far too much entertainment value for the workplace. I'm printing this thing out to take home with me on the train.
10.25.2007 4:24pm
Tom952 (mail):

Attorney Inglimo admitted that he had used cocaine occasionally since becoming an attorney
Not to be confused with the really bad boys who used cocaine constantly since becoming attorneys.
10.25.2007 4:30pm
fishbane (mail):
He claimed that it may have been flour or salt.

Why, yes, of course many attorneys are occasionally videotaped snorting salt. (Just the thought of that makes my sinuses hurt.)
10.25.2007 4:36pm
Anderson (mail):
Attorney Inglimo admitted that he had used cocaine occasionally since becoming an attorney

Should've stuck to Scotch, or better, bourbon, like a real attorney.
10.25.2007 4:43pm
PLR:
P.K. testified that the videotaping was done to ensure that there was no dispute that the bill for legal fees had been paid in full.

Thereby insulating himself from a contract claim at the mere cost of a solicitation/prostitution charge. That's good lawyering right there.
10.25.2007 4:47pm
Crane (mail):
The referee did find that K.K. felt terrible about having sex with Attorney Inglimo and that P.K. had not consented.

I'm not a lawyer, so maybe someone who is can help me with this. According to the facts presented in the opinion, K.K. had sex with Inglimo as payment for services rendered to her, and her alone. P.K. did not have sex with Inglimo, nor did he benefit from K.K.'s having sex with Inglimo except insofar as she's married to him and he may be held liable for her debts.

Why would P.K.'s consent be required?
10.25.2007 5:26pm
Constitutional Crisis (mail):
P.K. was K.K.'s boyfriend, wasn't he? K.K.'s having sex with Inglimo--without P.K.'s consent--could have really messed up the P.K./K.K. relationship.

Now if he consented, then it would be all good.
10.25.2007 5:32pm
markm (mail):
It's reasoning like this that throws the whole legal profession into disrepute. Did the court consult Bill Clinton about the meaning of "have sex with"? Can anyone imagine a reason for an ethical rule against having sex with clients that doesn't come into play in this arrangement?
10.25.2007 5:53pm
Spartacus (www):
Can anyone imagine a reason for an ethical rule against having sex with clients that doesn't come into play in this arrangement?

Sure: having sex with a client creates a conflict of interest: you want to keep banging the client, instead of providing services appropriately, i.e., you will lie or provide substandard legal services to your client in order to keep screwing them.

If your client is instead paying you by letting you in on a threesome with his girlfriend, and assuming you are not actually sexually involved with your client himself (i.e., no sword crossing), you are presumably not romantically biased in the way you may be toward your clients gf: but she's not your client.
10.25.2007 5:57pm
Happyshooter:
I think they overeached. "With" has a usual meaning and he didn't do that.

Ordering him to pay the government's expenses is total crap. That is even worse than sentencing people who go to criminal trial worse than those who plead.
10.25.2007 6:06pm
PLR:
Sure: having sex with a client creates a conflict of interest: you want to keep banging the client, instead of providing services appropriately, i.e., you will lie or provide substandard legal services to your client in order to keep screwing them.

That theory (not that it's yours) doesn't really hold water. I believe the no-sex rules were a reaction to the perception that some domestic relations lawyers were taking advantage of their clients' states of mind, and so the powers that be got out the sledgehammer and said sex was bad.

So keep your hands off that hottie in-house counsel of your corporate client. I think. Maybe.
10.25.2007 6:10pm
Houston Lawyer:
So sex with a client is prohibited, but it's ok for your pimp client to get you laid with his girls.

I agree that it doesn't sound like he was having sex with a client, but violating man rules should also be unethical.

Great set of comments here.
10.25.2007 6:16pm
Constitutional Crisis (mail):
"Pimp" makes the whole thing sound so commercial and tawdry.
10.25.2007 6:17pm
An0n:
Well, at least he had a rockin' good time getting his licene suspended.
10.25.2007 6:34pm
Bruce Hayden (mail) (www):
My impression is that this type of rule came from the "Arnie Becker" rule of the CA bar, with Becker (Colin Bernstein) being the slime ball divorce attorney in LA Law who slept with a lot of his female clients.
10.25.2007 7:12pm
Anderson (mail):
you want to keep banging the client, instead of providing services appropriately

Same logic would ban accepting money for services, wouldn't it?
10.25.2007 7:13pm
Anderson (mail):
this type of rule came from the "Arnie Becker" rule of the CA bar

See, there's always some sleaze who has to ruin it for the rest of us.
10.25.2007 7:13pm
Apodaca:
This brings new meaning to the time-honored phrase "a full-service law firm."
10.25.2007 7:20pm
Javert:
This brings new meaning to the time-honored phrase "a full-service law firm."

And gives rise to a name for said firm: "Dewey, Bangham & Howe."
10.25.2007 8:05pm
The Supreme Court Jester (mail) (www):
The rule about not having sex with clients has been very difficult for those of us who are representing our spouses in various matters; not to mention the effect it has had on lawyers who appear pro se.
10.25.2007 8:25pm
NickM (mail) (www):
Since her sexual services were offered in lieu of monetary payment, they are income. I wonder if he reported them on his tax filings for that year. Of course, establishing the value could be one of the most interesting tax proceedings ever.

Nick
10.26.2007 12:03am
TomHynes (mail):
May I suggest a title to this post?

"A rooster clucks defiance, a lawyer ..."
10.26.2007 12:16am
Bill Poser (mail) (www):
I was expecting to learn that Mr. Inglimo was represented by a W. Clinton.
10.26.2007 3:12am
theobromophile (www):

Since her sexual services were offered in lieu of monetary payment, they are income. I wonder if he reported them on his tax filings for that year. Of course, establishing the value could be one of the most interesting tax proceedings ever.

Given the comments about man rules and crossing swords (or even the potential of such), it would be de minimus.


And gives rise to a name for said firm: "Dewey, Bangham &Howe."

"Dew" (or "Rocio") is another name for the Virgin, so you might want to rename your law firm. ;)
10.26.2007 3:34am
neurodoc:
To the extent that porno movies have story lines, the conduct of "nurses" is a popular subject. This fellow will probably need some cash to tide him over until he gets his law license back and re-establishes himself in practice. Is it his tape, and is he free to do with it what he wants? If the answer is "yes" and "yes," perhaps there are commercials possibilities in a home production such as this one featuring a real "lawyer." (The interest might be greater on the part of some if the lawyer were the do-ee rather than the do-er.) Paris Hilton got a lot of mileage out of the home production she starred in, and she isn't an RN, JD, or anything more than a wealthy heiress with a famous name.

(Did all the Wisconsin Supremes concur in that decision save for Judge Ziegler, who for whatever reason did not participate? I don't suppose these justice stand for re-election, at which time they be asked by the electorate to elaborate further on their reasoning in this matter. How many times did they have to replay the tape before satisfying themselves that they fully appreciated the relationships between the parties? I take it this was a case of first impression for them and when it is finalized it will have precedential value. Might the case have been decided differently if all of the participants were not of the same species? So many questions occur to enquiring minds, especially late at night.)
10.26.2007 4:17am
b.:

Does "engaging in a three-way sexual encounter with [a current client] and [the client's] girlfriend" count as having sex "with a current client" (a practice forbidden by state bar rules)?


i hope not.
10.26.2007 8:17am
Al Maviva (mail):
So if that was payment for services rendered, how does one keep a retainer of that sort of currency in escrow?
10.26.2007 9:41am
Pete Freans (mail):
...was suspended from the practice of law for 3 years

Interesting...
10.26.2007 9:45am
dmoo:
One leaves the retainer out
10.26.2007 9:53am
Ben9999:
If he didn't hit it, you must acquit.
10.26.2007 10:07am
Happyshooter:
In Michigan the issue of banning sex with clients came up for a bar vote and was defeated.
10.26.2007 10:22am
Javert:
And gives rise to a name for said firm: "Dewey, Bangham &Howe."


"Dew" (or "Rocio") is another name for the Virgin, so you might want to rename your law firm. ;)


Every firm needs diversity.
10.26.2007 10:33am
Dude (mail) (www):
"The London Bridge or 2-guys-one-lady-simultaneously, in my view violates Man Laws, even if the bar disciplinary standards are weaker."

Yes, but there is a Man Law exemption if the guys give each other a high five during the London Bridge. This is a little known loophole.
10.26.2007 10:35am
percuriam:
Dude,
that is not the loophole you are worried about filling in the 2 guys one girl situations.

Sounds like this guy had some serious issues.
10.26.2007 11:53am
LongSufferingRaidersFan (mail):
Joking aside, it sounds like this guy's real problem (in common with all too many others in our hyper-stress field) is chemical addiction(s). Wouldn't be surprised if he was actually doing speed as well as coke which can lead to a lot of rather uninhibited sexual behavior, if word on the street is any guide...
10.26.2007 12:07pm
North Shore:

The rule about not having sex with clients has been very difficult for those of us who are representing our spouses in various matters; not to mention the effect it has had on lawyers who appear pro se.


Re the first proposition: The sound of forheads being slapped resonates around lawyers' offices throughout the land. In men's offices because of the realization that their own actions lead to the faucets being shut; in women's offices because their cover has been blown, so to speak.

Re the second: They say justice is blind...
10.26.2007 12:37pm
willis (mail):
"you want to keep banging the client, instead of providing services appropriately."

"Same logic would ban accepting money for services, wouldn't it?"

It would you are over-billing them.
10.26.2007 12:40pm
M. Simon (mail) (www):
Since her sexual services were offered in lieu of monetary payment, they are income.

After income there is outgo.
10.26.2007 2:37pm
Hi Standards:
What does it take to get disbarred in Wisconsin? He comingled, dipped into client funds, paid some clients with other clients money, and kept lousy records. That's on top with coercing sex for payment of legal fees and more than a little illegal drug use. Three year suspension seems rather light.
10.26.2007 3:08pm
Shelby (mail):
This seems to be a novel interpretation of the attorney-client privilege.
10.26.2007 3:30pm
Gullyborg (mail) (www):
Sex with a client is a violation? I guess that depends on what the meaning of the word "is" is?
10.26.2007 3:58pm
theobromophile (www):

He comingled, dipped into client funds

That's quite a euphemism.

Is it his tape, and is he free to do with it what he wants?

Even if there is a copyright on it, both "authors" are allowed to exploit it, right?
10.26.2007 6:39pm
maltese parakeet (www):
does the transitive property of equality apply here? if a is having sex with b and b is having sex with c, then a is having sex with c. i'm just sayin', is all.
10.26.2007 8:07pm
Eugene Volokh (www):
maltese parakeet: No.
10.26.2007 8:34pm
theobromophile (www):
EV - obviously, you did not grow up in the era of AIDS and were not subjected to sex educators who would say, "When you have sex with someone, you are having sex with every person your partner has ever had sex with." (Horror of horrors, they even ended such sentences with prepositions.)
10.26.2007 10:31pm
AngryLiberal:
theobromophile,

The idea that you should not end sentences with propositions is just stupid.
10.26.2007 10:53pm
Eugene Volokh (www):
AngryLiberal: I agree.

Theobromophile: I had heard that. The answer to maltese parakeet is still no.
10.26.2007 11:28pm
Eli Rabett (www):
Up with something I will not put. (WC)
10.26.2007 11:45pm
Tonsure Wimple (mail):
"This is the type of arrant pedantry up with which I shall not put"-

Winston Churchill, not quite the original usage
10.27.2007 1:48am
theobromophile (www):
Ouch! Not my rule, although I try to follow it out of respect for the grammarians.

Sigh... back to outlining.
10.27.2007 1:50am
A Guest:
It's pretty clear that in simultaneous (often blindfolded) chess matches, where A is playing with B, C, D, and E, that B, C, D, and E are not playing with each other...

Are there Man Rules in chess?
10.27.2007 2:52am
Robert Munoz (mail):
BEST.

BLOG POSTING.

EVER!

[/Comic Book Guy]
10.27.2007 3:05am
Eugene Volokh (www):
All the grammarians I've read say that there's no rule against ending a sentence with a preposition.
10.27.2007 3:23am
Javert:
All the grammarians I've read say that there's no rule against ending a sentence with a preposition.

Quoting from the unparalleled Fowler (A Dictionary of Modern English Usage, Second Edition, Oxford, 1965)


It was once a cherished superstitution that prepositions must be kept true to their name and placed before the word they govern in spite of the incurable English instinct for putting them late ("They are the fittest timber to make great politics of," said Bacon . . .) "A sentence ending in a preposition is an inelegant sentence" represents what used to be a very general belief, and it is not yet dead.

The fact is that remarkable freedom is enjoyed by English in putting its prepositions late and omitting its relatives is an important element in the flexibility of the language.

Those who lay down the universal principle that final prepositions are "inelegant" are unconsciously trying to deprive the English language of a valuable idiomatic resource, which has been used freely by all our greatest writers except those whose instinct for English idiom has been overpowered by notions of correctness derived from Latin standards.
10.27.2007 12:18pm
Curious (mail):
Enough with this boring discussion. When is the videotape going to be released???
10.27.2007 10:46pm
neurodoc:
maltese parakeet: does the transitive property of equality apply here? if a is having sex with b and b is having sex with c, then a is having sex with c. i'm just sayin', is all.
You are trying to impose something like mathematical logic to a question of law, and the final arbiters of law in Wisconsin don't buy it, not even when all the sexual interacting is taking place at the same time.

Eugene Volokh: maltese parakeet: No.
I expect you require your students to explain their answers if they are to receive full credit. We don't doubt that "no" is the correct answer for purposes of Wisconsin law, but do you think you deserve full credit for "see Office of Lawyer Regulation v. Inglimo? (You didn't see the video, did you?)

theobromophile: "When you have sex with someone, you are having sex with every person your partner has ever had sex with."
The public health teaching you cite pointedly dismisses the temporal question (recency vs remoteness) as inconsequential. In Office of Lawyer Regulation v. Inglimo, but for the simultaneity of those sexual interactions, the court would never have had to decide whether the attorney was violating the bar rule at the same time he was violating the client's girlfriend.

When sex is involved, legal answers can seem paradoxical, until it is appreciated that the same facts can lead to very different results depending on the original question. For example, an individual engaging in autoerotic asphyxiation goes to far and kills himself. (Not "herself," because it is rarely a woman.) If the deceased is a civilian and it is determined the individual did not set out to kill himself, then it was an accident and an life insurance policy's "suicide" provision will not come into play, the beneficiary of the policy will collect. If the deceased was an active duty military member, then if it is determined that the individual did not set out to kill himself and he was only trying to derive greater satisfaction from masturbation, there will be no payment of death benefits because the military regards what the service member was up to as willful misconduct, and they don't pay when one of theirs is injured or dies as a result of willful misconduct. (If it is determined that the service member's intent was to commit suicide, however, benefits will be paid, because the military is enlightened enough to see suicide as the reflection of a disordered mind.) The "accidental" vs "intended" question has also come up when the female (usually it is the "she") dies of strangulation as the result of what may or may not have been "sex play." (OT? I did want to contribute something here.)
10.28.2007 1:03am
neurodoc:
: Even if there is a copyright on it, both "authors" are allowed to exploit it, right?
You say "both" authors. Why two "authors" rather than three? If two, they would be the "bookends"?
[Lexington must be particularly pretty right now.]

Now, seriously (or semi-seriously), what about ownership rights to the tape? If one of the three want to exploit the tape for personal gain, would he/she first need to get the permission of the other two? Would it matter whose camera was used, where the taping took place, etc. When the Hilton family tried to stop the commercial exploitation of what was supposed to be for personal use only, were any difficult questions of fact or law have to be decided, or was the answer a foregone conclusion? Does anyone know the history of the one? I don't expect that Paris or her family ever asserted an ownership claim of any sort in pursuit of a share of the profits, but if they had, would they have had a good claim to them. They were after an injunction and possibly damages, I presume. (I wonder if I was sleeping when they covered this sort of thing in class. And in what class should I have learned the answers - copyright?)
10.28.2007 1:18am
Eugene Volokh (www):
neurodoc: You are so right that I require my students to explain their answers if they are to receive full credit. And it is so good not to be a student any more.
10.28.2007 1:19am
neurodoc:
EV: You are so right that I require my students to explain their answers if they are to receive full credit. And it is so good not to be a student any more.
Surely some sage said, "The wisest among us are students throughout their entire lives." (If none has, then credit neurodoc for it.)

EV, if you would expand on your simple "no" in answer to maltese parakeet, who empowered by greater knowledge might one day turn into maltese falcon, then we might all gain in our understanding of the law.

I don't know about others, but when a certain lawyer from Arkansas, a graduate of Yale Law School and like you once a professor of constitutional law, had initimate contact with a young woman and so much attention focused on what went on between them, my knowledge of many legally relevant matters increased. And while it should be noted that the woman in that case was the lawyer's subordinate rather than client, in the end the lawyer, who was and still is very much higher up the food chain than Inglimo, also lost his law license. At the time, many thought it an out and out lie when he claimed, even under oath, never to have "had sex" with that woman, and the Wisconsin bar authorities wouldn't have bought it under their definition of "sexual relations." Around that time, though, the Journal of the American Medical Association published an article with survey data showing that a great many teenagers do not count oro-genital contacts, "hooking up" as they style it, as "having sex." (The long-time editor of JAMA, George Lundborg, lost his job for running that article, giving the appearance that JAMA was weighing in on a "political" controversy.) We also learned that people have gone to jail for lying about "having sex," though the sexual conduct itself was not illegal (e.g., a woman psychiatrist who had sex with a patient went to prison not for the sexual conduct but for lying about it). And we learned to our great surprise that some of our political leadership, even those known as stalwart champions of "family values," sometimes succumb to carnal desire.

Now here's a challenge in legal draftsmanship - if the outcome in the Inglimo case caused embarassment to the Wisconsin bar, as well it might have, then how should the state bar rules be revised to make what Inglimo did impermissible in the future? Would only a little tinkering be required (e.g., the lawyer may not have "sexual relations" with any person(s)/object(s) at the same time that a current client is having "sexual relations" with that same person(s)/object(s)), or a thorough reworking of the rule so as to preclude sexual possibilities (which should be proscribed) beyond just the way Inglimo went about it? It could be tricky to first decide what should and should not be allowed where current clients are concerned, then to craft a rule to bright line it, leaving no possibility of misunderstanding as to the limits of what is legally permissible for Wisconsin lawyers.

[EV, do you expect to teach Office of Lawyer Regulation v. Inglimo in the future?]
10.29.2007 12:50am
theobromophile (www):
You say "both" authors. Why two "authors" rather than three? If two, they would be the "bookends"?

Um... choose one or both of the following:
1. Temporary brain death; or
2. Treating the couple as a unit.

----
If one of the three want to exploit the tape for personal gain, would he/she first need to get the permission of the other two? Would it matter whose camera was used, where the taping took place, etc.


As for ownership: 17 U.S.C. Sec. 201(a) states that joint authors are coowners of a work.

IIRC, in IP, coowners are both allowed to exploit the work. I'm certain that is the rule in patent law, but am uncertain about the copyright rule. (Generally, though, the idea is to lean towards allowing all owners of the work to exploit, as that insures that the public can benefit from it.)

Sec. 201(b) states that a work made for hire is considered the property of the employer.

[A "work made for hire" is "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." 21 U.S.C. Sec. 101) ]

So, if they signed an agreement that this is to be a work for hire, the attorney is the exclusive owner of the work.

(As a side note, even if the attorney is not a copyright owner, he may still sell the tape, provided he owns a legitimate copy of such - he just cannot copy and distribute it. The rule is the one that allows people to sell used books, CDs, or DVDs without running afoul of copyright laws.)

Sec. 202 answers your question about ownership of the copyright v. ownership of the tape (i.e. the person who went to Target and purchased the DVD or VHS, if they were old-school about it).

Now, there is probably case law on this subject of which I am unaware, but my guess is that the party who wants the tape back can only sue for the cost of the tape, not the right to not have it distributed. Apparently, ownership in the equipment used to produce the tape does not vest any sort of right to the physical tape or the copyright work contained therein.

According to the opinion, it was the attorney's camera and equipment. Presumably, then, he has both copyright interest in the content and ownership in the tape.

In summary: if a work made for hire, he has a right to do with the tape what he wants. If not a work for hire, presumably (i.e. without evidence that only one or two are authors in the work), all three have a copyright interest in the work. All three may exploit. The person who purchased the tape has a property interest in that tape, but presumably has very limited remedies against a co-owner who would sell it or make reproductions.

If a REAL copyright person would like to clarify/amend/mulitate any of the above, he is more than welcome. (I've only taken copyright in the context of international IP, and that was a while ago.)

---

Yes, Lex is very beautiful right now. :) I was outside during daylight hours yesterday* and could fully appreciate autumn; it's not New England, but I'm not complaining. Went over to your hometown two weeks ago; the drive over is likewise beautiful, esp. on the scenic overlooks.

*Yes, being outside during daylight was a novel event. Whatever one may think of lifelong learning, there are certain advantages to NOT being a registered student.
10.29.2007 2:51am
neurodoc:
Theobromophile, thanks for what is above.

I do wonder about styling those who participated, presumably all aware that they were being recorded for posterity, though not anticipating that the Wisconsin Supremes would later critique how they went about it, as "authors." Perhaps "author" or "co-author" works for purposes of the property questions, in particular the "intellectual"(?!) property ones, but I skeptical for a number of reasons, none of them well-informed by any knowledge of the applicable law. (I did take a copyright course >15 years ago, but though the adjunct professor did an excellent job, I wasn't too attentive and I don't know that anything stuck.)

"All three may exploit." Before the tape could be commercially exploited in the manner of the Paris Hilton tape, don't you think Inglimo, L.K., and L.K.'s girlfriend would each have to consent to use of the tape for other than the originally intended purpose? [I doubt they set out to make a tape for commercial gain or the entertainment of others, rather than that they made it in order to have a "keepsake," something like the recordings couples make of their wedding ceremonies. There was no "employer" among them, and I would bet dollars to doughnuts that "the parties (did not) expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."]

Does copyright ownership necessarily mean unfettered rights to do whatever one please with the copyright material? Wouldn't there be "privacy" issues if there was no release, waiver, consent, etc. executed by all three of the "performers"?

Maybe someone more knowledgeable about the relevant law than I will give us the answers as to what any one of the three people could do with the tape absent permission of the other two. From time to time, Penthouse gets hold of photos taken of a celebrity when before she became famous by an old boyfriend and publishes those photos to the displeasure of the the now celebrity. Those may raise some of these questions (publishable if the boyfriend did not obtain a written release?). The Paris Hilton matter, though, probably comes closest to Inglimo (no signed releases, more than one "performer" in the picture, "defamatory"?, court contest, etc.)
10.29.2007 6:09pm
theobromophile (www):
Off the top of my head:

The United States doesn't have the rights of moral integrity that Europe has. Perhaps, in Europe, they would have a better chance of suppressing the tape, but I'm not so sure about the US (will check).

My guess is that a court would presume that the material could be exploited, regardless of any unwritten agreement between the parties or preexisting intentions. I'm pretty sure that copyright rights are triggered once the art is set into a fixed medium. As such, I don't think that they would have to consent to its non-original purpose use; I think it's the other way around (where they can use it however they want, unless there is a preexisting agreement).
10.29.2007 9:03pm
theobromophile (www):

Before the tape could be commercially exploited in the manner of the Paris Hilton tape, don't you think Inglimo, L.K., and L.K.'s girlfriend would each have to consent to use of the tape for other than the originally intended purpose?

I'm almost certain that they do not have to so consent. A lot of the IP jurisprudence is focused on ensuring that that which the public cannot exploit itself should be made available to the public. At least with patents, I'm pretty sure co-inventors don't even have to consent to the patent process (they only need to be listed); once their names are on the patent, they can exploit at will.


Does copyright ownership necessarily mean unfettered rights to do whatever one please with the copyright material? Wouldn't there be "privacy" issues if there was no release, waiver, consent, etc. executed by all three of the "performers"?

I think that's a separate issue... I'm pretty sure that my IP courses have never touched on erotic filmmaking. (In fact, I'm certain that no course I've ever taken - inside or outside of academia - has given me adequate background to discuss this particular issue.)

I still think that the default rule, at least for copyrights, is that all authors may exploit, unless there is a prior agreement among them beforehand. Default = publish, not default = keep it to yourself.

Let's be honest, though - the type of people to run about, making dirty movies, probably lack the foresight to protect themselves from adverse publicity.
10.30.2007 1:23am