Supreme Court Allows Transgender Military Ban to Remain in Effect

Written by Molly McDermid

 

On January 15, 2019, the United States Supreme Court decided in a 5-4 decision to allow the Trump Administration’s transgender military ban to remain in effect for the time being. The decision to stay lower court injunctions allows the policy to continue while cases challenging the ban, Trump v. Karnski and Trump v. Stockman, make their way through the United States Court of Appeals for the Ninth Circuit. The Court additionally denied the Government’s request to grant certiorari immediately in an effort to bypass the Court of Appeals decisions. Supreme Court Rules indicate that the process of reviewing a federal trial court decision, prior to the ruling of a Court of Appeals, occurs only in cases of imperative public importance requiring immediate action by the Court. By refusing to grant certiorari without comment, the Supreme Court’s decision indicates that this case is not one of those rare occasions. Therefore, the nation must wait for the issue to proceed through the courts in its normal manner.

Background

The ban at issue is the product of a series of tweets and memoranda issued by President Donald J. Trump. A tweet stated, “the Unites States government will not accept or allow . . . [t]ransgender individuals to serve in any capacity in the U.S. Military.” In his later released memo, the President directed the Secretary of Defense and the Secretary of Homeland Security “to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016.” President Trump’s policy effectively reverses the Obama-era policy, which allowed transgender Americans to openly serve in the military. The Obama Administration’s policy additionally prohibited transgender individuals from being discharged solely based on being transgender.

The Trump Administration’s policy prohibits most transgender Americans from serving in the military, with some exceptions. Exceptions include: (1) current active-duty members of the military diagnosed with gender dysphoria; (2) those stable in their biological sex for thirty-six consecutive months prior to entering military service; (3) those diagnosed with gender dysphoria after beginning service, but do not require gender change; and (4) those with a history of gender dysphoria, but who serve in their biological sex.

Supreme Court Ruling

The Government argued for the Court to bypass the Ninth Circuit decision and grant certiorari to rule on the District Courts’ nationwide preliminary injunction against the  transgender policy. However, the Court denied certiorari and accepted the Government’s alternative argument for a stay, in turn reinstating the transgender military ban while the matter is decided by the Ninth Circuit.

The Government’s argument focused on the district courts’ “trend” of issuing nationwide injunctions against major Executive policy decisions. The Government stated that in two years, the district courts have issued twenty-five nationwide injunctions against major Executive policy decisions. Additionally, the Government stated that these nationwide preliminary injunctions have led to “intrusive discovery into Executive Branch decision-making, in a number of instances, blanket abrogation’s of the deliberative-process privilege.” The Government argued that these acts by the lower courts have significantly infringed on the Executive Branch’s ability to implement its policies. The Supreme Court responded by lifting the injunctions that were blocked the implementation of the Executive’s transgender military policy.

Although the decision was viewed negatively to those advocating for transgender rights, advocates are also pleased by the Court’s decision not to immediately grant certiorari prior to the Ninth Circuit’s decisions. Jennifer L. Levi, director of the Transgender Rights Project of GLBTQ Legal Advocates and Defenders  stated, “In declining to hear these cases, the Supreme Court saw through the contrived efforts to gin up a national crisis.” Further, advocates say that the decision to deny certiorari at this time may have avoided an expedited decision in favor of the Trump Administration’s policy, due to the conservative majority on the bench.

Conclusion

For now, the status of transgender service members remains uncertain. According to the Supreme Court ruling, the Trump Administration’s transgender restrictions will remain in effect until the Ninth Circuit rules on the issue.


Sources

Adam Liptak, Supreme Court Revives Transgender Ban for Military Service, N.Y. TIMES, (Jan. 22, 2019).

Application for a Stay in the Alternative to a Writ of Certiorari Before Judgement to the United States Court of Appeals for the District of Columbia, Donald J. Trump v. Jane Doe 2, No. 18-667.

Ariane de Vogue and Zachary Cohen, Supreme Court Allows Transgender Military Ban to go into Effect, CNN, (Jan. 22, 2019).

David Welna and Bill Chappell, Supreme Court Revives Trump’s Ban on Transgender Military Personnel, For Now, NPR, (Jan. 22, 2019).

Memorandum from President Donald J. Trump to the Secretary of Defense and the Secretary of Homeland Security (Aug. 25, 2017) (on file with author).

Photo courtesy of The Hill.

January 2019: Hon. Bernadette Romano Clark (L’89)

“Are you sure you can run for Judge?” This is a question the Honorable Bernadette Romano Clark heard numerous times. As the first female to run for a judicial position in Oneida County, Bernadette faced many adversities. Though she faced difficulties, Bernadette became the first female judge from Oneida County and eventually made her way to become the first female Supreme Court Judge for the Fifth Judicial District of New York from Oneida County.

Growing up in Utica, Bernadette or Bernie, as she is known, loved her community. She had so much support and a loving family and knew eventually she wanted to give back to the community that raised her. Bernadette went to

Hon. Bernadette Romano Clark
NY State Supreme Court

St. Mary’s College of Notre Dame and graduated with a Bachelor’s degree in political science, cum laude. She always knew she wanted to go to law school.

Although she planned on attending law school, after graduation from St. Mary’s, Bernie ended up working for 12 years back in Utica at a pharmaceutical company in the sales and marketing department. Bernie enjoyed the opportunities and experiences in her new position especially traveling across the country and the challenges associated with the art of persuasion and sales.

Then in 1984, Bernie’s brother graduated from the Syracuse College of Law. As soon as her brother’s graduation ceremony was over, Bernie wasted no time and immediately started her law school application process. Though she took some time off, her love for the law never waned. Since she was already married and living back home in Utica, Bernie applied to Syracuse College of Law.

Being out of school for 12 years made the transition into law school a little difficult. Instead of letting the difficulty get the best of her, Bernie decided to embrace all law school had to offer. She knew going into law school she wanted to make a difference and was very determined to accomplish her goals. Bernie joined as many organizations and clubs as she could from trial and appellate teams to Law Review. She even went on to be the Student Senate President and a member of Justinian Honorary Law Society during her 3L year.

The Law Review and trial and appellate teams really helped Bernie shape her career. As a “write on” to the Law Review, Bernie was able to truly hone in on her legal writing skills and ended up having her Note, Is the New Standard for the Fourth Amendment Particularity Requirement in Obscenity Cases “I know It when I Seize It”?, published in Volume 39. When elected Technical Editor for the New York Survey, Bernie was also able to improve her legal citation skills.

Bernie also took advantage of the advocacy programs and enhanced her legal argument skills by being on both a trial and appellate team. Bernie wanted the full law school experience in order to embrace and learn as much as she could to truly prepare herself for the legal work force.

After graduating magna cum laude, Bernie went to work at Bond, Schoeneck & King. Her time there allowed her to improve her skills rotating through all the firm’s departments and receiving exceptional training. While she took great pride in her work at Bond, Schoeneck & King, she was commuting one hundred miles each day which was difficult being a new mother with a baby girl.

In 1994, the District Attorney of Oneida County offered her the position as First Assistant District Attorney. Although she hesitated initially, since she had never practiced in the criminal law field, Bernie accepted the position when she learned she would be the first woman ever to hold that office. Being a prosecutor became Bernie’s passion. She loved to help people and see the tangible results that made a difference in the lives of so many in her community. Her time as a prosecutor really sparked her interest in running for a judicial position.

When a seat opened up in Family Court, Bernie started her campaign and became the first elected female judge for Oneida County in November 2000. Especially as mother, Bernie took her work home with her every night. She felt the hardships and was shocked to learn about the tragedies that children were facing in her home county. Bernie spent five years as a Family Court Judge, and it was the “toughest job she ever loved.” Those with political power in Oneida County were not convinced a women should be a judge. When a seat opened up in the Supreme Court for the Fifth Judicial District, Bernie decided to run, Bernie was not deterred, she wanted to open the doors and show women that they were qualified for these positions and should not be afraid to run. As a female judicial candidate for the highest trial court in the state, Bernie faced a lot of backlash and comments. Questions were asked about her hair, makeup, and clothes. This did not discourage Bernie, it only motivated her to continue to push forward. Using her experiences from law school and speaking about her achievements, in November 2005, Bernie became the first female judge for the Fifth Judicial District of New York. Bernie’s election opened the door and inspired more women to run for judicial positions and there are currently two other female judges in Oneida County.

Being a Supreme Court Justice is no easy task. She hears a variety of cases from medical malpractice, contract disputes, property issues, election law cases, serious accident claims, and many more. Having to make split second decisions throughout the trial regarding evidentiary issues or jury charges has its difficulties but Bernie enjoys the challenge. She loves the excitement of the trials and writing her well-thought decisions. In 2006, Bernie established the Oneida County Domestic Violence Court which she presided over until 2009. Her term as a Supreme Court Justice will be ending in December of this year but Bernie is planning to seek another term.

If you ask Bernie what her favorite part of law school was, the answers will be endless. Her time at Syracuse prepared her fully for the legal world and gave her all the tools she needed. Law Review gave her close friends that she still keeps in touch with. She has had a variety of legal experiences from working in firms to being a Supreme Court Justice, all thanks to her beloved Syracuse College of Law. The collegial atmosphere, the professor’s open-door policies, and the rigorous training at the law school helped shape Bernie to be the successful woman she is today. Her advice for students? Take advantage of all the opportunities the school has to offer, enhance not just one set of skills, enhance them all.

This story was written by Alumni Editor Stefani Joslin and is the fifteenth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.’ Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.

Supreme Court Unanimously Defends Workers’ Rights in New Prime Inc. v. Oliveira

written by matt Bemis

 

On January 15th, 2019, in an 8-0 unanimous decision, the United States Supreme Court ruled that independent contractors who work in transportation cannot be forced into mandatory arbitration (Justice Brett Kavanaugh, who joined the Court after oral arguments in the case, did not participate in the decision). The ruling, written by Justice Neil Gorsuch, holds that a court’s authority to compel arbitration under the Federal Arbitration Act does not extend to all private contracts, and under Section 1 of the Act, excludes independent contractors engaged in foreign or interstate commerce.

Background Information

The petitioner, New Prime, Inc. is an interstate trucking company. The respondent, Dominic Oliveira, joined New Prime’s “Student Truck Driver Program,” a company-specific apprenticeship program. During his membership in this program, Oliveira had to first drive 10,000 miles as an unpaid trainee, followed by an additional 30,000 miles as an “apprentice,” working for approximately four dollars an hour. After his successful completion of the program, New Prime offered Oliveira a permanent position at the firm and gave him the option to work as an employee or as an independent contractor, the latter of which New Prime asserted would be more economical and beneficial to Oliveira. Oliveira ultimately elected independent contractor status, but soon found that, by virtue of his elected status, he would be responsible for a number of different additional expenses, including truck leasing fees, fuel, and equipment paycheck deductions. These costs often exceeded Oliveira’s base rate. He later rejoined New Prime as an employee, and although his duties remained the same, his take home pay greatly increased. In 2015, Oliveira started a class-action lawsuit against New Prime, arguing the company failed to pay fair wages to its independent contractors.

After filing a class action suit, New Prime asked the United States District Court for the District of Massachusetts (and later, on appeal, the United States Court of Appeals for the First Circuit) to invoke its statutory authority under the Federal Arbitration Act to compel arbitration. Oliveira countered and argued that Section 1 of the Act exempts disputes involving “contracts of employment” of certain transportation workers engaged in interstate commerce, and therefore, contractors hired by New Prime were exempt from compulsory arbitration. In response, New Prime argued that “contracts of employment” referred only to contracts that establish an employer-employee relationship, and not to agreements with independent contractors.

What is the Federal Arbitration Act (FAA)?

Generally speaking, arbitration is a method of legal dispute resolution in which a neutral, private third party, rather than a judge or jury, renders a decision on a particular matter. Although cheaper and more expedient than a traditional judicial proceeding, critics of arbitration contend that mandatory arbitration agreements create one-sided outcomes that deny consumers and employees the advantages (such as a jury trial) afforded in a court proceeding. President Calvin Coolidge signed the FAA in 1925. Congress’s primary motivation for drafting the Act was to protect the enforcement of arbitration agreements as agreed to by contracting parties. Under Section 2 of the Act, a written arbitration provision in any contract involving commerce is valid, irrevocable and enforceable. If either party fails to abide by the arbitration terms in the relevant agreement, a federal court may compel arbitration under Section 4 of the Act. However, Section 1 of the Act includes several transactions exempt from the scope of the Act, notably, “contracts of employment of. . .any class of workers engaged in foreign or interstate commerce,” the language at the heart of the dispute in the New Prime case.

Supreme Court Ruling

In its analysis, the Court employed a traditional textualist approach to the statutory question presented. To ascertain whether “contracts of employment” in Section 1 of the FAA includes employment contracts only (with a formal employer-employee relationship present), or more broadly includes independent contractor agreements, the Court interpreted the words within the FAA by looking to their ordinary meaning at the time Congress enacted the statute. According to the Court, in 1925, a “contract for employment” meant nothing more than an agreement to perform work, and was not yet a phrase of art implying a formalized employer-employee relationship. This interpretation is in step with other 20th century cases where the Court itself used the phrase “contract of employment” to describe work agreements involving independent contractors. Further, the Court looked to the statutory text to glean meaning. In Section 1 of the FAA, the Act excludes “contracts of employment of. . . any. . . class of workers. . .” (emphasis added). By using the word “workers,” the Court reasons, Congress intended to reach a broad class of work arrangements. As such, Dominic Oliveira’s independent contractor agreement with New Prime (as well as those of his similarly situated peers) falls within Section 1 of the FAA’s exception and as a result, the lower courts’ refusal to compel arbitration was correct and in keeping with FAA requirements.

Workers’ Rights Going Forward

Although this is a relatively narrow ruling, it is the second major case (following Epic Systems Corp. v. Lewis last year) addressing the confluence of workers’ rights and employer-friendly, compulsory arbitration. Following the release of the decision, shares of transportation stocks fell in the larger market. With millions of employees nationwide working under an independent contractor label in today’s “gig economy,” it is uncertain as to the extent that New Prime and future cases will permeate into the many commercial arenas where the definition of “work” has taken on new form.


Sources

9 U.S.C §§1–4 (2012).

Ed Kilgore, Gorsuch Defends Workers’ Rights in Trucking Arbitration Decision, NEW YORK MAG. (Jan. 15, 2019), .

JON O. SHIMABUKURO & JENNIFER A. STAMAN, CONG. RESEARCH SERV., 7-5700, MANDATORY ARBITRATION AND THE FEDERAL ARBITRATION ACT (2017).

New Prime Inc. v. Oliveira, 586 U.S. ______ (2019)

Tucker Higgins, Transportation stocks sink after Supreme Court backs truct who resisted being forced into arbitration after suing over wages, CNBC (Jan. 15, 2019, 4:39 PM).

Photo courtesy of Fueloyal.

Border Wall or . . . ?: The Legality of Declaring a National Emergency to Build a Border Wall

Written By Kali Schreiner

 

On December 22, 2018, the federal government came to a screeching halt in what is now the longest shutdown in United States history. The government shutdown is attributed to the inability of Congress and President Donald J. Trump to reach an agreement on the appropriation of funds for the 2019 fiscal year.

As a central promise of his campaign, President Trump ensured Americans he would build a border wall between the U.S. and Mexico. In order to achieve this, Trump requested approximately $5 billion in federal funds to be allocated toward the construction of a wall. The proposed spending bill which included the border wall funding failed and a partial shutdown ensued.

What’s Next?

Since the shutdown, President Trump has acknowledged his presidential power to declare a national emergency and move forward with plans to build the controversial wall. On January 4, 2019, he explained, “[w]e can call a national emergency because of the security of our country. We can call a national emergency and build it very quickly.” Several days later President Trump followed up on his previous remarks with a statement to reporters where he further explained, “I may declare a national emergency dependent on what’s going to happen over the next few days.” Although many believed these statements to be idle boasts by the President, Vice President Mike Pence has confirmed that the White House is looking into the legality of President Trump’s ability to declare a border emergency.

Declaring a National Emergency

To date, several legal scholars have expressed their opinion on President Trump’s ability to declare a national emergency in order to fund the border wall project. After a thorough review of constitutional law, most scholars believe that 10 U.S.C. § 2808(a) provides the most support to back the President’s claims that he has the power to declare a national emergency and build the wall. Under this statute, if a president declares a national emergency, military construction projects may be undertaken so long as they are “necessary to support such use of the armed forces.” Although critics question whether current issues at the U.S.­–Mexico border actually constitute a crisis, there is almost no restriction on the president’s ability to declare a national emergency. Additionally, in his most recent address to the nation, President Trump continued to stressing that there is a “growing humanitarian and security crisis at [the] southern border,” further bolstering his claim with respect to a national emergency.

In reviewing the plain meaning of the text of § 2808, the President’s authority to institute a construction project will only apply to a national emergency that requires the use of armed forces. As such, critics have questioned the applicability of § 2808 in relation to the current issues at the Mexican border. Specifically, U.S. Senator Jack Reed recently stated, “we are not at war with Mexico, and the proposed border wall has no core [Department of Defense] function.” To support his statement, he points to a review of the National Defense Strategy which makes no mention of the southern border as a national defense priority. Despite this argument, several scholars feel that President Trump’s deployment of troops to the southern border in October 2018 may have been sufficient to lay the groundwork for the involvement of the U.S. military.

Challenging the Declaration

After Congress revised the National Emergencies Act, it became considerably harder to override presidential power with respect to emergency declarations. Following the revision, termination of an emergency declaration requires a joint resolution signed by the president. Should the president refuse to sign, then a two–thirds majority vote in each chamber would be required to override the president’s veto. However, according to Elizabeth Goitein, “during the 40 years the law has been in place, Congress has not met even once. . . to vote on whether to end [an emergency declaration].”

In addition to any congressional challenge President Trump may face, an emergency declaration would almost certainly result in various legal challenges. After rigorous discussion among legal scholars, it remains unclear how such a challenge would play out in the court system. However, most agree that the questions at hand would ultimately focus on whether the emergency at the border actually exists and the limitations of presidential power.

Conclusion

Legal scholars across the world are grappling to determine what will likely happen in the coming weeks as uncertainty remains as to whether President Trump actually possesses the power to build the border wall through the declaration of a national emergency. As such, should Trump proceed with his plans, congressional and legal action will likely follow which could very well spill over into the 2020 election.


Sources

10 U.S.C. § 2808(a) (2012).

50 U.S.C. §§ 1601–1651 (2012).

Josh Dawsey & David Nakamura, “I can do it if I want”: Trump threatens to invoke emergency powers to build border wall, Washington Post (Jan. 4, 2019).

Eli Watkins, Manu Raju & Elizabeth Landers, Trump: “May declare a national emergency” to build wall, CNN (Jan. 7, 2019, 9:44 AM).

Jim Acosta & Betsy Klein, Pence says White House looking into Trump’s ability to declare border emergency, CNN (Jan. 7, 2019, 10:18 PM).

Trump Addresses Nation on Immigration, New York Times (Jan. 9, 2019).

Reed Opposes Trump Administration’s Plan to Declare National Emergency & Use Defense Dollars to Pay for Wall, Jack Reed (Jan. 4, 2019).

Grace Segers, A Trump national emergency declaration could face challenges, CBS News (Jan. 10, 2019).

Elizabeth Goitein, What the President Could Do If He Declares a State of Emergency, Brennan Center for Justice (Dec. 12, 2018).

Photo courtesy of BBC.

FINRA Fines Morgan Stanley For Five Years Of Ineffective Anti-Money Laundering Monitoring

written by Madeline Sheffield

 

The Financial Industry Regulatory Authority (FINRA) announced on December 26, 2018, that it has fined Morgan Stanley Smith Barney LCC (Morgan Stanley) ten million dollars due to failures with the large investment bank’s anti-money laundering (AML) program. Specifically, Morgan Stanley failed to comply with the Bank Secrecy Act over a period of five years. FINRA noted three specific failures of the program:

First, Morgan Stanley’s automated AML surveillance system did not receive critical data from several systems, undermining the firm’s surveillance of tens of billions of dollars of wire and foreign currency transfers, including transfers to and from countries known for having high money-laundering risk. Second, Morgan Stanley failed to devote sufficient resources to review alerts generated by its automated AML surveillance system, and consequently, Morgan Stanley analysts often closed alerts without sufficiently conducting and/or documenting their investigations of potentially suspicious wire transfers. Third, Morgan Stanley’s AML Department did not reasonably monitor customers’ deposits and trades in penny stock for potentially suspicious activity, despite the fact that its customers deposited approximately 2.7 billion shares of penny stock, which resulted in subsequent sales totaling approximately $164 million during that time period.

Morgan Stanley agreed to the fine as part of a settlement and consented to the entry of the regulatory agency’s findings.

Bank Secrecy Act

FINRA requires that firms like Morgan Stanley comply with federal law. In this case, the federal law at issue is the Bank Secrecy Act. In 1970 Congress passed the Bank Secrecy Act to fight money laundering in the United States. The Act requires financial institutions to keep appropriate records and file reports pertaining to currency transactions and customer relationships. The Act further requires “certain transactions by and through financial institutions in excess of $10,000 into, out of, and within the U.S.,” be reported to the Treasury. Since the enactment of the Bank Secrecy Act, several laws and regulations have expanded the scope of anti-money laundering measures and counter-terrorist financing, most recently the USA Patriot Act. In response to the September 2001 terrorist attacks on the United States, Congress enacted the USA Patriot Act as a provision of the Bank Secrecy Act “to prevent, detect and prosecute those involved in money laundering and terrorist financing.”

The Effect of Failed Anti-Money Laundering Programs

The two following case studies illustrate situations where poor surveillance led to financing of drug and terror organizations. Six years ago, the United States Justice Department, the Office of the Comptroller of the Currency, the Federal Reserve, and the Treasury Department found HSBC Holdings Plc. to have ineffective money laundering programs and compliance monitoring. The U.S. Justice Department found that, working together, Mexico’s Sinaloa cartel and Colombia’s Norte Del Valle Cartel laundered $881 million through HSBC. At that time only one to four employees were responsible for reviewing alerts signaling suspicious wire transactions and one or two compliance officials monitored bulk cash transactions for approximately 600 customers. FINRA’s second finding against Morgan Stanley on December 26, 2018 specifying the failure to “devote sufficient resources to review alerts generated by its automated AML surveillance system” is not unlike HSBC’s failure to monitor due to inadequate staffing.

Prior to the September 2001 terrorist attacks, detecting terrorist financing was not a priority. The September 11 hijackers used U.S. financial institutions to move, hold, and retrieve their money, and primarily deposited money into U.S. accounts via wire transfer and deposits of cash. Because the money-laundering controls established at the time were focused on drug trafficking and large-scale financial fraud, the hijackers’ transactions went undetected. Since the attacks, bank officials are now alerted of suspicious deposits and transfers that may be involved with financing terrorist organizations.

Looking Forward

As noted from the two case studies above, both federal regulators and federal agencies have an interest in tracking money movement. Regulations set forth, such as the Bank Secrecy Act require financial institutions to do the monitoring and, if needed, provide federal agencies and regulators with pertinent information regarding laundering, fraud, and funding terrorist organizations. Morgan Stanley’s failure to comply with specific portions of the Bank Secrecy Act and the subsequent fine by FINRA exemplify the federal government’s continued interest in cutting off potential threats to the United States at the money source.


Sources

Aruna Viswanatha, Brett Wolf, HSBC to pay $1.9 billion U.S. fine in money-laundering case, REUTERS (Dec. 11, 2012, 12:45 AM).

FEDERAL DEPOSIT INSURANCE CORPORATION, DSC RISK MANAGEMENT MANUAL OF EXAMINATION POLICIES Section 8.1.

Finra fines Morgan Stanley $10 million for lapses in anti-money laundering program, INVESTMENTNEWS (Dec. 26, 2018, 12:43 PM).

NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, MONOGRAPH ON TERRORIST FINANCING.

News Release, Financial Industry Regulatory Authority, FINRA Fines Morgan Stanley $10 Million for AML Program and Supervisory Failures (Dec. 26, 2018).

Ross Snel, Morgan Stanley Fined Over Anti-Money Laundering Program, BARRON’S (Dec. 27, 2018, 5:44 PM).

Suzanne Barlyn, Morgan Stanley unit to pay $10 million fine for anti-money laundering violations, REUTERS (Dec. 26, 2018, 10:39 AM).

Photo courtesy of NewsBTC.

Battle Royale: A Showdown Over Creative Expression

Written By Matthew Taghavi

 

The Fortnite Phenomenon

Fortnite is a phenomenon that has, for gamers, combined two seemingly unrelated concepts into an entertaining video game. Fortnite combines the cartoon elements of building games like Minecraft with the action of shooters like Call of Duty, resulting in tremendous success. Fortnite has approximately 200 million players, has brought in an estimated $1 billion in revenue from microtransactions, and has received $1.25 billion via investments. The company behind Fortnite, Epic games, was recently valued at $15 billion.

Fortnite’s business model is not unique, but it is effective. Fortnite is a “free to play” game, meaning it costs nothing to obtain and play—anyone with a video game console or mobile device can download it for free. Instead of charging to play, Fortnite makes money through transactions within the game itself, known as microtransactions. For example, for $9.99 players can purchase 1,000 “v-bucks.” These v-bucks can then be used to unlock cosmetic accessories in the game, such as costumes or dances for their in-game characters. An example is illustrative.

Fortnite’s success has not come without a price. Specifically, Fortnite is now being accused of stealing the intellectual property of various artists and individuals. Many of the dances Fortnite uses in its game are exact copies of dances created by people in the “real world.” Fortnite seemingly uses these dances without asking for consent. One of these artists, Terrence Ferguson (also known as rapper “2 Milly”), filed a lawsuit in the Central District of California alleging, among other things, that Fortnite illegally used his dance “Milly Rock,” in violation of the Copyright Act of 1976. Other artists followed his lead shortly thereafter. The question now is, do they have a case?

Copyright Law in the United States

The issue presented by these cases is seemingly simple, but complex in nature: can an individual copyright a dance? The Copyright Act of 1976 is the federal law that exclusively governs modern copyright disputes and protection. In order to have protection under the Copyright Act, a party must demonstrate three things: work of authorship, originality, and fixation. Because fixation is not at issue in the Fortnite case, only the first two requirements are relevant here.

Work of authorship is a requirement created by law. Copyright protection only exists in  “expression” which is legally recognized. The Copyright Act was the first federal law to recognize that dance movements, or “choreographic works” as the Act puts it, could be legally protected. However, the Act does not define what choreographic works means. The legislative history of the Act states that “choreographic works” is not defined because the term has a “fairly settled meaning.” The Congress that passed the Act felt that it was so obvious that “simple routines” are not protectible that it did not find it necessary to define the term. Ironically, the definition and scope of choreographic works is the issue here.

Originality is a requirement created by the constitution. In order to acquire copyright protection, an expression must have some minimum degree of creativity. When determining creativity, courts will not judge the artistic value of a work, but will look at whether the work has some creative spark. Ultimately, creative spark is nothing more than the selection and arrangement of ideas. A work becomes protectable expression when there are a sufficient number of choices made to display creativity. This is typically an easy standard to meet, but if a work of authorship involves no choices at all it cannot be protected.

Section 102(b) of the Copyright Act complicates the matter. Under the Act, only the expression of ideas may be protected, not the idea itself. For example, the Copyright Office has suggested that “commonplace movements,” such as yoga positions, are not eligible for copyright protection because they lack a “sufficient amount of authorship.” The Copyright Office has also ruled that copyright protection does not extend to individual words, short slogans, or phrases. These examples illustrate what is known as the “idea/expression dichotomy,” which is codified in Section 102(b). This legal concept exists to limit the scope of copyright protection described above. Thus, even original works of authorship will not be protected if they are characterized as ideas. This limitation is necessary to reinforce the basic purpose of copyright law, which is to incentivize the creation of new works.[1] Since all new expression borrows from basic concepts and ideas, it would be impossible to create new works if such ideas were protected by copyright. If the outline of a woman could be protected by copyright, the Mona Lisa would likely be an infringing and unlawful painting. Thus, a line between idea and expression must be drawn to ensure new works are created.

Frivolous lawsuit or legitimate complaint?

With regard to the Fortnite lawsuit, do the dances at issue here meet the requirements of copyright protection? The answer is maybe. The plaintiffs in these cases have alleged that Fortnite has directly infringed on their copyright by creating an unauthorized derivative work. However, before the court can deal with the issue of infringement, the plaintiffs will have to show that their dances are capable of being protected. They will have to demonstrate that these dances are sufficiently original by pointing to the different artistic choices they made. Epic Games, the creator of Fortnite, will likely respond by arguing that “choreographic works” does not include the type of dance moves at issue here because they are too simple. Epic Games may point to some of the elements that the Copyright Office has identified as being necessary to a choreographic work, such as a performance by a highly skilled individual or a story conveyed through movement. Epic games might argue that since the dances at issue here convey no message and require little skill that they are not deserving of copyright protection. While the Copyright Office’s statements are not binding law, they will be highly persuasive for the court in deciding this matter. Even if the court does find that the artists have protectable expression, they will then have to decide whether Epic Games infringed on this protection. In such a scenario, the court would have to decide whether the dances in Fortnite are similar enough to the dances in the real world. In short, the question would become whether Fortnite copied the expression or the idea.

This is a rather novel issue, and many scholars find these lawsuits are intriguing because the law is rather unclear. The California court will have to clarify the scope of protection afforded by the Copyright Act to choreographic works. Choreographers rarely litigate these types of matters, and artists have generally not taken legal action in these situations. In the past, the United States Court of Appeals for the Ninth Circuit has stated that “[e]xplicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.” This remains true today.


Sources

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)

Baker v. Selden, 101 U.S. 99 (1879)

Bikram’s Yoga College of India v. Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015)

Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir. 1986)

United States Copyright Office, Copyright Registration of Choreography and Pantomime, Circular 52.

Shanti Sadtler, Preservation and Protection in Dance Licensing: How Choreographers Use Contract to Fill in the Gaps of Copyright and Custom, 35 Colum. J.L. & Arts 253, 257 (2012).

37 C.F.R. § 202.1

Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (Oct. 19, 1976), codified at Title 17 U.S. Code Annotated.

Erica Yee, The real reason Epic landed a $15 billion valuation is not Fortnite’s viral video game success, CNBC.

Sarah E. Needleman and Katie Roof, Fortnite Creator Epic Games Valued at Nearly $15 Billion, Wall Street Journal.

Photo courtesy of Epic Games.

December 2018: Kenneth W. Irvin (L’92)

From an early age, Kenneth Irvin knew he had a calling for a career in the law. His mother worked as a secretary in a law firm, and he became friends with the lawyers at the firm.  Ken was intrigued by the world of law and used his passion to become the successful lawyer he is today.

Kenneth W. Irwin
Sidley Austin, LLP

As an engineer major, Ken was never afraid of a challenge. After graduating from Clarkson University, Ken worked for three years as sale engineer for Weidmuller, a company in Richmond, Virginia that manufactures and sells electrical connectors and terminal blocks for industrial applications and controls. Though Ken enjoyed the work he was doing, something was missing; he wanted to do something more rewarding and enriching. As an inquisitive child who often asked ‘why,’ Ken was counseled by many to pursue a career in law. With this advice in mind, Ken found himself applying to law school and drawn to the reputation of Syracuse. Two of the lawyers at his mother’s law office were Syracuse alumni who had nothing but praise for the school.  Ken soon packed his bags and headed to Syracuse.

Given his undergraduate degree in engineering, many folks thought Ken pursued a law degree to enter the field of patent law. From his days as a sales engineer, however, Ken found a love for presenting a case and persuading others- hence the courtroom beckoned and Ken aimed to be a commercial litigator. Ken really enjoyed Civil Procedure, Evidence, Trial Practice, and all the classes that dealt with being inside a courtroom. Ken participated in two trial competitions on environmental law as well.

Though he had a love for the excitement of a courtroom, Ken also found a calling to serve on the Law Review. As the Technical Editor, Ken was in charge of making sure the citations were proper and confirmed with the Bluebook standards. The best part to Ken for serving on the Law Review was the collaborative spirit of the organization.

Ken truly enjoyed his time at Syracuse, and he’s grateful for all the professors he came to know.  Several professors offered personal guidance about how to navigate law school and launch a career successfully. One professor in particular, Professor Richard Goldsmith, became an outstanding mentor. “Spike” as Professor Goldsmith was nicknamed had a razor-sharp wit and way of teaching that was loud and enthusiastic. The ‘tough nuggies’ rule was a favorite of Professor Goldsmith, who passed away in 2008. Ken enjoyed him as a professor and even went on to be his research assistant. When graduation came, Ken went on to pursue a legal career in litigation.

Graduating in 1992, for the next eight to ten years, Kenneth practiced predominantly in litigation. Initially, Ken worked for the same firm as his mom, and that role helped as outside counsel for the City of Rome, NY. One case in particular he remembers fondly was one that involved a mule getting lose and being hit by a car, which injured the driver. Ken helped the City successfully defend itself from liability by showing that NY law applied the “every dog gets one free bite” to mules that “jump a paddock fence.”

In 1993, Kenneth made his way from New York to Washington D.C. He worked at a small firm at first through Syracuse Law alumni connections, and then went to Morrison & Foerster LLP as a lateral associate. Ascending to partner in 2000, Ken saw his practice evolve from a litigation focus to a transactional and regulatory focus in the energy industry. In 2005, Ken joined the energy practice group at McDermott Will & Emery LLP.  His work for energy clients then lead him to Cadwalader Wickersham & Taft LLP in 2011, and then to Sidley Austin LLP in 2015, where he practices today.

Through his litigation experience, Ken was exposed to the word of telecommunications and energy. Ken became extremely interested in energy law and made a transition from just helping people in court to actually creating transactions. The idea that people use electricity every day and do not always think about how it works fascinated Ken. Now, he is a partner at Sidley in D.C. working on the things he loves. The work Ken does now is helping with reliable, affordable energy, and global climate change by helping to foster the role for renewable energy. Though the work could take years, supplying our needs for electrical energy through renewable sources is attainable goal. With that in mind, Ken and his practice team work to help make renewable energy affordable for everyone.

Ken truly enjoys the work he does now and loves being a part of something that helps make lives for everyone better. Ken’s experience in law school helped shape him to the hard working lawyer he is today. Syracuse pushed him and made him realize that the legal world is about learning and really gaining knowledge on what you are learning.

One advice he gives to students is to go out there and try different careers. The point of finding what you love is to see what is out there first. As Abraham Lincoln said: “The best way to predict your future is to create it.” Find good mentors, and take value into grades and what you learn; hard work pays off and will land job opportunities.

This story was written by Alumni Editor Stefani Joslin and is the fourteenth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.’ Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.