Nashville Bar Journal | June/July 2017

JUNE/JULY 2017 | VOLUME 17 | NO. 3

FEATURE

All You Need Is Love (and a Good Lawyer)

ALSO

Is Unlicensed Sampling Back in Vogue?

Five Days in Cuba In re Tam Revue

YOU CHOOSE THE CHECKING WE’LL PAY YOUR NBA DUES Open a First Tennessee checking account with direct deposit, and we’ll pay your Nashville Bar Association membership dues (currently a $245 value) for one year. We have several great checking options you can choose – each available with the convenience of free Banking Online and Mobile Banking.

Learn more at FTB.com/checking or present this ad at any financial center in Middle Tennessee. See terms and conditions below for offer details.*

*Terms and Conditions: Offer valid August 1, 2016 - April 30, 2017. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum

opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by April 30, 2017. FSR: Use promo code NBADUE. ©2016 First Tennessee Bank National Association. Member FDIC. www.firsttennessee.com

JOURNAL 6 Journal Journal JUNE/JULY 2017 | VOLUME 17 | NO. 3

FE ATU R E

All You Need is Love (and a Good Lawyer)

Robert D. Martin & Chandler Farmer

DEPA R TM E N TS

From the President

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Calendar of Events

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Hear Ye, Hear Ye

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Nathan H. Ridley

2017 Attorney Directory Brews for Backpacks Carbolic Smoke Ball

NBA Happy Hour

Sister Cities Summer Save the Dates

CLE Schedule 100% Club

Member Updates

Five Days in Cuba 25

Michael L. Russell Music & Dance 27 Mike Sandler

19 26 32 38

Hearsay

Classifieds

40

Is Unlicensed Sampling Back in Vogue?

11 Melissa Ballengee Alexander

In re Tam Revue: The Slants 29

Tim Capria C O L UMNS

Background Check 13

Bart Pickett Capitol Notes 15

Peggy Sue, the Beagle Hound Gadget of the Month 17

Bill Ramsey & Phillip Hampton JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL FROM THE PRESIDENT Splash | Nathan H. Ridley Journal As the days of summer approach, Middle Tennessee’s Journal heat and humidity make many of us yearn to make a

NATHAN H. RIDLEY, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

ramseywt@nealharwell.com

ELEANOR WETZEL, Managing Editor

eleanorwetzel@jis.nashville.org

EDITORIAL COMMITTEE NOEL BAGWELL CHANDLER FARMER KIMBERLY FAYE DAYNE GEYER CAROLINE HUDSON TIM ISHII CALLIE JENNINGS TRACY KANE ROB MARTIN EVERETTE PARRISH BART PICKETT BILL RAMSEY ARRIN RICHARDS MIKE SANDLER KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, Nashville, TN 37219-2419.

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal.

The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Jill.Presley@ nashvillebar.org to be considered by the editorial committee for publication in as future print or online content.

NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1050 Nashville, TN 37219 615.242.9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with over 2,500 members—is the largest metropolitan bar association in Tennessee.

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splash in a pool, lake, or ocean. Of course, lawyers are making splashes all the time whether in the water or as we go about our professional lives. Last month, the NBA splashed with other bar associations across the country in celebrating this year’s Law Day theme, The 14th Amendment: Transforming American Democracy.

Lawyer John A. Bingham made a significant splash, too. He was the first elected to Congress from Ohio in 1854, served until 1862, then again in 1864, and served until 1873. During his early congressional service, he became friends with a fellow lawyer by the name of Abraham Lincoln. Mr. Bingham later served on the Joint Committee on Reconstruction, and these words in Section 1 of the 14th Amendment are his work product: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These words serve as the basis for cases desegregating public schools, securing women’s rights, and creating sexual privacy rights. They also serve to make the 2nd Amendment applicable to the states and is even cited in Bush v. Gore to elect a president. No wonder Justice Hugo Black called Bingham “the Madison of the first section of the 14th Amendment”.

We take it for granted today, but part of the mystery and genius of the 14th Amendment is having its enforcement left to the courts. President Lincoln asked Bingham to lead the prosecution of the surgeon general in 1864 in a court martial proceeding. Indiana University Law Professor Gerard Magliocca notes that Bingham was disinclined to take the job, citing no knowledge of military law. The convincing presidential quote is, “no common lawyer understands martial or military law, but I think you can learn it as soon as any man I know.”

As lawyers we have to learn it, and then we have to engage the decision makers. The enforcement of the equal protection of the laws does not arrive without effort. Our own NBA Law Day keynote speaker, Judge Shelia Calloway; Jack Norman Sr. Award winner, Public Defender Dawn Deaner; and Liberty Bell Award winner, Judge Todd Campbell, all noted the power of our Constitution and our duty as lawyers to uphold the power of its words.

President Lincoln included these remarkable words of humility and grace in his Gettysburg Address: “The world will little note, nor long remember what we say here; while it can never forget what they did here.”

Our community and our clients never forget what lawyers do. They expect us to assess their complicated facts and apply the law and guide them accordingly. . .to use courtesy and etiquette and civility as we do our work. As lawyers, we may sometimes make the perfect rip entry with its tiny splash like a graceful diver or we may more often soak all the poolside spectators with a less graceful cannonball entry. But in any event, they expect us to do, and we must. n

In a word, Splash.

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Calendar of Events | Full calendar online at NashvilleBar.org/ JUNE 2017 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY

Committee Meetings are held at the NBA Offices unless otherwise noted.

FOLLOW US:

High School Intern Orientation 3:00pm

Facebook.com/NashvilleBarAssociation LinkedIn.com/Company/Nashville-Bar-Association @NashvilleBar NBA Board Mtg | 4:00pm YLD Happy Hour 5:30-7:30pm | Fat Bottom Brewery

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Dial-A-Lawyer | 6:00-8:00pm

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LAW Board Mtg | 11:30am

Government CLE Committee Mtg 12:00pm

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15

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7 Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBA Happy Hour + Sounds Game 5:00pm | Dodson Parker Behm & Capparella, PC

NALS Mtg | 12:00pm

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1 Membership Committee Mtg 12:00pm

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YLD Board Mtg | 12:00pm Stites & Harbison

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LRIS Committee Mtg | 12:00pm

Ethics Committee Mtg | 12:00pm

NBF Trustees Mtg | 12:00pm Veterans Committee Mtg + Happy Hour 4:30pm

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Diversity & Immigration Committee Mtg | 12:00pm

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JULY 2017 M O N D AY

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T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY

Holiday | NBA Offices Closed

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4 LAW Board Mtg | 11:30am

5 Historical Committee Mtg 11:30am | Hal Hardin’s Office

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CLE Committee Mtg | 11:30am

NALS Mtg | 12:00pm

10 Probate Committee Mtg | 11:30am

11 Ethics Committee Mtg | 12:00pm

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YLD Board Mtg | 12:00pm Stites & Harbison

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Memorial Service Committee Mtg 12:00pm

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Solo/Small Firm Networking Cocktail Hour 5:30pm | Taco Mamacita

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13 NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell

14 High School Intern Closing Program 12:00pm

Finance & Executive Committee Mtg 4:00pm | Conference Call

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Solo/Small Firm Committee Mtg 11:30am | The Skillery

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JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL Journal Journal

2017 NBA BOARD OF DIRECTORS NATHAN H. RIDLEY, President

Hear Ye, Hear Ye | 2017 Attorney Directory

The 2017 Attorney Directory is hot off the press! Be sure to order your copy at NashvilleBar.org/AttorneyDirectory before they’re gone! Inside, you’ll find the most up-to-date court listings, integrated NBA member and non-member listings for attorneys practicing within Davidson County, attorneys categorized by practice area, and more!

Congratulations to Kimberly Faye and Philip Clark on winning the 2017 Attorney Directory Cover Contest. Thank you to all who submitted their artwork and we look forward to next year’s submissions! n

ERIN PALMER POLLY, President-Elect IRWIN J. KUHN, First Vice President

CLAUDIA LEVY, Second Vice President KYONZTE HUGHES-TOOMBS, Secretary STEPHEN G. YOUNG, Treasurer JEFF H. GIBSON, Assistant Treasurer JOYCELYN A. STEVENSON, Immediate Past President LAUREN PAXTON ROBERTS, YLD President LELA HOLLABAUGH, General Counsel ROBERT C. BIGELOW, First Vice President-Elect MARGARET M. HUFF, Second Vice President-Elect LAURA B. BAKER MARK S. BEVERIDGE

Events of Interest

Brews for Backpacks Presented by the Nashville Bar Association Young Lawyers Division

ROBERT C. BIGELOW HON. JOE P. BINKLEY, JR. HON. SHEILA D. CALLOWAY JACQUELINE B. DIXON SAMUEL P. FUNK TRACY DRY KANE HON. WILLIAM C. KOCH, JR. RYAN D. LEVY

WHEN? Thursday, August 10 | 5:30 – 8:00pm

WENDY LONGMIRE

WHERE? Craft Brewed (Melrose Neighborhood)

W. BRANTLEY PHILLIPS, JR. DAVID L. RAYBIN SARA F. REYNOLDS ERIC W. SMITH LAURA SMITH DARKENYA W. WALLER M. BERNADETTE WELCH STEPHEN J. ZRALEK

NBA STAFF MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator WENDY COZBY, Lawyer Referral Service Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director JAN MARGARET ROGERS, CLE Director VICKI SHOULDERS, Membership Coordinator, Office Manager MARIEL ZELHART, CLE Coordinator

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the magazine. Send your ideas to Jill.Presley@nashvillebar.org.

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Donate a new or lightly used backpack and any school supplies and receive a free pint of your favorite craft brew! This annual event benefits Middle Tennessee’s children in foster care with the Department of Children’s Services. Complimentary valet included. n

Carbolic Smoke Ball

The Carbolic Smoke Ball is an annual cocktail and dance party hosted by the Nashville Bar Association Young Lawyer’s Division. Named after the infamous case Carlill v. Carbolic Smoke Ball Co., this event has been 18 years running and hosted at various venues around Nashville.

The event features a live band, heavy hors d’oeuvres, an open bar, and a festive atmosphere. Lawyers, spouses, friends, and families come out each year in support of the NBA, the YLD, and selected beneficiaries.

The 2017 Carbolic Smoke Ball will be held on Saturday, July 29, at The Valentine on Broadway.

For more information and to purchase your tickets, visit NashvilleBar.org/CarbolicSmokeBall. n

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Take Me Out to the Ballgame

Join us on Thursday, June 15, for the next NBA Happy Hour Extravaganza from 5:00 – 6:30pm in Germantown at Dodson Parker Behm & Capparella, PC. It gets better! The Nashville Sounds have a game at 7:00pm that same night, and Herman Hicks of First Tennessee Bank—Official Banking Partner and Exclusive Sponsor of the NBA—has offered FREE tickets to any NBA member (plus one guest) who attends the happy hour.

To RSVP for happy hour, visit NashvilleBar.org/HappyHour. If you would like tickets to the Sounds game following happy hour, email Traci.Hollandsworth@nashvillebar.org to get your name on the list and she will have your tickets available to you that evening at Dodson Parker. Ticket quantities are limited, so email Traci today! n

Watch Your Emails for Details

In looking forward to Summer 2017, the NBA already has several events on the calendar. Save the dates for the following and watch your Thursday NBA Weekly Update emails* for details to come!

Aug 22 | NBA Happy Hour Aug 29 | Watergate CLE September 5 – 10 | Sister Cities Trip, Caen, France Sep 28 | Annual Free Member Picnic

*These emails also contain links to enhanced online content supplementing your print Nashville Bar Journal. n

Sister Cities Caen, France Delegation The NBA Sister Cities Committee is pleased to announce the dates for the Caen Delegation trip this fall. The visit will begin on September 5 in Paris with travel to Caen on the 6th, and end September 10th.

By way of background, in 1984, the Bar Association of the City of Caen located on the D-Day beaches in Normandy, France, invited the Nashville Bar Association to establish a relationship. In 1985, the two bar associations established an annual seminar where different areas of the law in France and the US are compared, and CLE credit is provided.

The trip is largely cultural with delegation participants obtaining housing with families in Caen. If you are interested in being a part of our delegation, please visit our information page at NashvilleBar.org/SisterCities.

The committee is also exploring a similar relationship with Belfast, Northern Ireland. Belfast has been a Sister City to Nashville since 1995. There will be a Nashville Sister Cities Delegation trip in October 2017. For those interested in traveling to Belfast and helping to plan a legal delegation trip for 2018, please contact Traci.Hollandsworth@nashvillebar.org. n

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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Feature Story | Robert D. Martin & Chandler Farmer

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NASHVILLE BAR JOURNAL | JUN/JUL 2017

All You Need is Love (and a Good Lawyer)

In January, Paul McCartney filed suit against Sony/ATV Music Publishing, seeking a declaratory judgment that, in October 2018, McCartney will be entitled to reclaim his interest in the copyrights of several Beatles songs he sold long ago.

The United States Copyright Act of 19761 provides that copyright interests transferred by creators prior to 1978 may be reclaimed by the creator (or his/her heirs) after 56 years from the date the work was originally registered.2 Some of the Beatles’ early works, famously composed by John Lennon and Paul McCartney, meet that 56-year mark in 2018.

Lennon and McCartney first entered into a publishing agreement in 1962 with Ardmore & Beechwood, publishing “Love Me Do” and “P.S. I Love You.” Throughout their career, Lennon and McCartney created multiple publishing companies that owned the copyrights to their songs and paid them royalties. Through a series of transfers, the catalog eventually was purchased by ATV publishing. Michael Jackson purchased ATV in 1985 for $47.5 million.

Ten years later, Jackson merged ATV with Sony. After Jackson’s death, his estate, riddled with debt, sold Jackson’s stake in Sony/ ATV—including the Beatles catalog—back to Sony/ATV for $750 million. Some estimates value the catalog at up to $2 billion.

McCartney has been sending notices—as required by the Copyright Act—to Sony/ATV (which has a major Nashville presence) of his intent to reclaim the copyrights since 2008.

At the time Lennon and McCartney wrote their songs, the 1909 Copyright Act was in force and governed the copyright interests in the songs. The 1909 Copyright Act entitled artists/authors to a 28-year copyright term, which they could then renew for an additional 28 years.3 In 1976, Congress revised the Copyright Act, extending the copyright term for works created before January 1,

1978, by 19 years, and the Copyright Term Extension Act of 1998 further extended the copyright term by another 20 years, for a total of 95 years from the date the copyright was originally secured.4

Obviously, the extension in 1976 could create a windfall for copyright holders who had been assigned rights prior to the passage of the 1976 Act. For example, an artist who wrote a song in 1970, may have sold the rights to his song to a publisher for a certain amount, with the understanding that the buyer would only be able to earn royalties off the song for 56 years before the song entered the public domain. The value of the copyright would be the expected royalties for that copyright over 56 years. But after the Copyright Act of 1976, the buyer would be able to continue earning royalties for potentially much longer, greatly increasing the value of many copyrights. Had the 1976 Act been in place in 1970, the artist probably would have sold the rights to the song for far more. Attempting to prevent that windfall for the buyers, and to institute a level of equity for the artists, Congress included the 56(continued on page 8) (continued on page 00)

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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Feature Story | year termination provision in the final Act, pursuant to which an artist may terminate the rights of a grantee to whom the artist had transferred the rights in his or her original work. “It’s a way to create more equity in the entertainment industry, and give creators a chance to be in control of their own creations again,” says Abe Stoklasa, a professional songwriter in Nashville.

Suits to reclaim copyright interest have been successful in the past. For example, the daughter of Eric Knight, author of the novel Lassie Come Home, was able to reclaim the rights to the famous fictional collie.5 Additionally, the heirs of J. Fred Coots successfully sued to reclaim the copyright to his classic song, “Santa Claus is Comin’ to Town.”6 Further, several artists have been successful in reclaiming their copyright interests under Section 203 of the 1976 Copyright Act, a similar provision which applies when the transfer of a copyright interest occurred on or after January 1, 1978. A notable case occurred when Victor Willis, songwriter/performer for the famous disco group the Village People, was able to reclaim his copyright interest in several of the group’s songs, including the hit “YMCA.”7 However, cases like this are rare.

Most of the time, publishers will simply negotiate with creators or their heirs so that the publishers will retain the copyright or catalog of copyrights in exchange for some type of payment to the creators.

Moreover, the situation can become even more complicated when the original transfer of the copyright interests is governed by foreign law. In a recent case before the United Kingdom High Court of Justice, band members of Duran Duran attempted to reclaim the copyrights (registered in the United States) of songs they had transferred to their publishers in the 8

All You Need Is Love (and a Good Lawyer) (continued from page 7)

United Kingdom. The U.K. Court held that Duran Duran’s attempt to reclaim their copyrights was a breach of the original contract and that British, not America, law original contract was governed by British, not American, law. The contracts apparently precluded Duran Duran from ever exercising their termination rights. Duran Duran appealed the decision in February.

McCartney’s original contracts are likewise governed by U.K. law. His complaint— pending in the Southern District of New York—seeks a declaratory judgment that his notices to reclaim his copyright interests do not amount to a breach of his publishing contracts.

The case poses an interesting issue regarding how foreign contracts addressing rights in American intellectual property are interpreted. McCartney is smart to seek an American court decision assuring him that his termination rights will be preserved, regardless of the terms of his foreign contracts. Obtaining his interest in the catalog would more than double his already staggering personal net worth.

Sony/ATV has not yet filed an answer, but has recently indicated that it seeks to file a motion to dismiss on the grounds that the complaint is not ripe for consideration. After all, McCartney’s termination rights have not been denied, and Sony/ATV has not formally declared that they do not intend to honor his request to reclaim his copyright interests. Sony/ATV also argues that the United States courts would have to apply British law when conducting the case since the publishing contracts were entered into in the United Kingdom between U.K. citizens and U.K. companies.

Lee Krabel, a music publisher in Nashville, thinks it is difficult to determine whether this will eventually happen with McCartney’s case. “What do you do when

NASHVILLE BAR JOURNAL | JUN/JUL 2017

two really, really rich parties negotiate?

Paul doesn’t need money, this is probably about something else.” Krabel, who was very clear that there are no bad guys in this situation, points out that most copyrights are not as valuable at 56 years as Paul McCartney’s copyrights. Nevertheless, depending on the outcome, McCartney’s case may have lasting implications for the many musicians, songwriters, and publishing companies in Music City. n Endnotes 1

See 17 U.S.C. § 304(c)(4).

2

17 U.S.C. § 304(c)(3).

3

See Copyright Act of 1909, § 23.

4

See 17 U.S.C. § 304(b).

See Classic Media, Inc. v. Mewborn, 532 F.3d 978, 979 (9th Cir. 2008).

5

See Baldwin v. EMI Feist Catalog Inc., 805 F.3d 18, 19 (2d Cir. 2015).

6

See Scorpio Music (Black Scorpio) S.A. v. Willis, No. 11-cv-01557-BTM, 2016 WL 7438325, at *1 (S.D. Cal. Dec. 27, 2016).

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ROBERT D. MARTIN is an attorney at Meridian Law, PLLC. He assists small businesses with their risk management and business organization needs. His practice also includes civil litigation.

CHANDLER FARMER is an associate attorney at Thompson Burton, PLLC. His practice focuses primarily on the areas of commercial real estate and real estate finance. Prior to joining the firm, he served as a law clerk to Judge Frank G. Clement, Jr. on the Tennessee Court of Appeal.

We have expanded our civil rights and public interest practice into the South with the opening of our Nashville office.

David Sanford Chairman

Jeremy Heisler

New York Managing Partner

Kevin Sharp

Nashville Managing Partner

Sanford Heisler Sharp represents attorneys and executives nationwide in gender and race discrimination matters. We represent employees in wage and hour cases, relators in qui tam actions, and victims of a broad range of financial abuse.

New York

Washington, DC

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sanfordheisler.com

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Nashville

CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Jill.Presley@nashvillebar.org and your name—along with the correct answer—will appear in the next issue.

APR/MAY GOLDEN OLDIES

W. Gary Blackburn, of the Law Offices of W. Gary Blackburn, correctly identified the individuals in the April/May Golden Oldies photo. Pictured (left to right) are Don Smith, Connie Summers, Doug Fisher, Ben Cantrell, Bob Balew, Hayes Cooney, Warner McNeily, and Frank Clement.

The NBA Takes on Havana, Cuba!

In April, a group of NBA members took an incredible trip to Havana, Cuba. Not only did they have a TON of fun, they also got five CLE credits, international style. Read about their Cuban adventure on page 25! For photos from this and other NBA events, visit NashvilleBar. org/PhotoGallery. You will also see highlights from this trip on page 31.

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NASHVILLE BAR JOURNAL | JUN/JUL 2017

Editorial |

Melissa Ballengee Alexander

Is Unlicensed Sampling Back in Vogue?

Resurrecting the De Minimis Doctrine for Sampling of Sound Recordings “All you need is your own imagination…” Madonna proclaims in her 1990 hit song “Vogue”. But, another “I” word—infringement—recently catapulted “Vogue” into national legal news.

Creating a circuit split on an important copyright infringement doctrine, a Ninth Circuit decision has thrown into flux the decade-old precedent established by the Sixth Circuit that the de minimis doctrine does not apply to digital sampling of a sound recording.1 The Ninth Circuit held that sampling should be treated like any other type of alleged copyright infringement. This dispute, which focuses on whether or not Section 114(b) of the Copyright Act intended to alter the de minimis doctrine, has major ramifications for music sampling and the entertainment industry.

To appreciate the competing decisions, it is helpful to start with a brief overview of U.S. copyright law. The Copyright Act gives the owner of a copyright certain exclusive rights.2 These rights include the right to make copies and the right to prepare derivative works. Anyone who infringes a copyright owner’s exclusive rights can be held liable for copyright infringement.3 However, copyright infringement requires both proof of copying

and proof of improper appropriation.4 Improper appropriation typically requires “substantial similarity” between the copyrighted work and the allegedly infringing work.5 When an allegedly infringing work copies a quantitatively and qualitatively small amount of a copyrighted work, courts may conclude that the copying is “de minimis” and does not rise to the level of improper appropriation.6 If the average audience would not recognize the copying, most courts have held that there is no improper appropriation.7 Courts have applied the de minimis doctrine for more than a century to limit the scope of copyright infringement liability.8 More than a decade ago, the Sixth Circuit challenged the scope of the de minimis doctrine in the digital age in Bridgeport Music, Inc. v. Dimension Films.9 In a case of first impression, the Sixth Circuit held that a literal reading of 17 U.S.C. §§106 and 114(b) of the Copyright Act mandated a bright-line liability rule for unauthorized digital sampling of sound recordings.10 Under the Sixth Circuit’s interpretation, any sampling of a sound recording without a license states a claim, regardless of amount or audience recognition.11 As the court admonished, (continued on page 12)

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Editorial |

Is Unlicensed Sampling Back in Vogue? (continued from page 11)

“Get a license or do not sample.”

The Sixth Circuit reasoned that this bright-line approach would aid judicial economy, result in predictability, and pose no real hardship as artists would remain free to imitate a sound or seek a sampling license (or to establish the fair use defense).12 The Sixth Circuit also suggested that Congress was free to clarify the Act if the Sixth Circuit’s interpretation was incorrect. While some district courts in other circuits have declined to apply the bright-line rule in Bridgeport, no other circuit court had weighed in on the Sixth Circuit’s approach until last summer.

In June 2016, the Ninth Circuit expressly rejected the Sixth Circuit’s bright-line rule in VMG Salsoul, LLC v.

Madonna.13 In VMG, the Ninth Circuit held that 17 U.S.C. §114(b) should not be read to eliminate the de minimis exception to claims alleging copyright infringement of a sound recording. The Ninth Circuit reasoned that in light of Section 114(b)’s express limitation on

the rights of a sound recording copyright holder, it makes little sense to read an implicit expansion of rights into Section 114. In reaching this conclusion, the Ninth Circuit relied not only on the Copyright Act’s structure but also on the legislative history of Section 114(b) and the consistent application of the de minimis exception across more than a century of copyright jurisprudence.14 With the split in circuits, a Supreme Court battle appears likely. Copyright law is designed to be uniform, and this circuit split creates differing levels of protection for copyright holders in different parts of the country. Until the question is resolved, however, practitioners should give strategic consideration to forum selection and the benefit of being the first to file any case involving allegations of copyright infringement based on digital sampling. n Endnotes Compare VMG Salsoul, LLC v. Madonna Louise Ciccone, 824 F.3d 871 (9th Cir. 2016) (affirming summary judgment that modified horn 1

segment allegedly sampled was “de minimis” and therefore not infringement of the musical composition or sound recording), with Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) (reversing grant of summary judgment, holding that the “de minimis” doctrine does not apply to digital sampling of a sound recording).

2

17 U.S.C. § 106.

3

17 U.S.C. § 501.

Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946); Newton v. Diamond, 388 F.3d 1189, 1192-93 (9th Cir. 2004); Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 274-77 (6th Cir. 2009).

4

Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir.1930).

5

The phrase de minimis derives from a Latin expression “de minimis non curat lex,” which is loosely translated as “the law does not concern itself with trifles.”

6

Newton, 388 F.3d at 1193; Dymow v. Bolton, 11 F.2d 690, 692 (2d Cir. 1926).

7

See, e.g., Folsom v. Marsh, 9 F. Cas. 342, No. 4901 (C.C. Mass. 1841); West Publishing Co. v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909) (“Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.”); Dymow, 11 F.2d at 692.

8

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

9

10

Id. at 800-01.

The Sixth Circuit did not preclude potential application of the affirmative defense of fair use, which narrows the practical impact of this holding.

11

12

Id. at 802-04.

VMG Salsoul, LLC v. Madonna Louise Ciccone, 824 F.3d 871 (9th Cir. 2016).

13

14

Id. at *8-9.

PROFESSOR MELISSA ALEXANDER joined the University of Wyoming College of Law in 2015.

Alexander received her Bachelor of Arts from Yale University and her law degree from the University of Virginia School of Law. She has served on the Executive Counsel of the Litigation Section of the Tennessee Bar Association and is a Fellow of the Nashville Bar Foundation.

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NASHVILLE BAR JOURNAL | JUN/JUL 2017

BACKGROUND CHECK

Magistrate Judge Alistair Newbern | Bart Pickett

Born in Fayetteville, she moved to Little Rock upon her father’s election to the Arkansas Supreme Court.

In 1991, Judge Newbern left the confines of Little Rock to head to Rhode Island for college at Brown University.

She majored in American Civilization and wrote her thesis on punk rock. After graduating from the Ivy League university magna cum laude, she joined AmeriCorps. Per her request, AmeriCorps assigned her to Little Rock, as she wanted to see her hometown from a different perspective. She spent two years working with community development corporations on issues such as affordable housing.

After her AmeriCorps stint, Judge Newbern went to the west coast for law school. She graduated from the University of California at Berkley School of Law in 2000. She always knew she wanted to do a clerkship following law school, researched all the available positions, and found her dream job with Judge Martha Craig Daughtrey in Nashville.

Following her one-year clerkship with Judge Daughtrey, Judge Newbern landed at the Nashville office of Lieff Cabraser. While there, her work focused

on plaintiff’s class action litigation. Judge Newbern enjoyed the work and all of the bright lawyers at the firm, but she knew ultimately that “firm life” was not for her.

When an opportunity to clerk for Judge Aleta Trauger arose, Judge Newbern took it. After a year clerking, she decided to give teaching a try. She went to Washington, D.C. to be a teaching fellow and supervising attorney at Georgetown University Law Center’s Appellate Litigation Clinic. She spent two years in that role before moving to Chapel Hill to be an Assistant Professor at University of North Carolina School of Law. Ultimately wanting to get back to Nashville, Judge Newbern jumped at the chance when she heard that Vanderbilt University had a clinical faculty opening.

She came to the law school in 2008 and created the Vanderbilt Appellate Litigation Clinic, practicing with her students in the Sixth Circuit and other courts of appeals. She stayed in this role until her appointment to the bench.

Having a continued desire for public service and a deep respect for the judges of the Middle District of Tennessee, Judge Newbern knew the magistrate position would be ideal for her. She remembers reading the job description and thinking not only that it would be an ideal position for her, but also that—as a law professor—she would be a long-shot candidate to get it.

In a fitting move for Music City, the judges of the Middle District of Tennessee federal courts appointed Alistair Newbern as a magistrate judge on September 1, 2016.

Judge Newbern truly enjoys her new role.

As a magistrate judge, she is constantly learning. One of the most challenging, yet rewarding aspects of her job, is the breadth of cases that come before her.

She deals with a wide variety of issues in both civil and criminal matters.

Judge Newbern not only inherited her father’s love for the law but also his passion for music. While her father plays the tuba, Judge Newbern’s instrument of choice is the fiddle. As a child she played the classical violin. Throughout high school and college, she played in numerous bands. Currently she plays in a “ragtag string band” called Bashful Mountain Broadcasters. The group formed at Bill Ramsey’s Ode to Otha Block Party where they still reunite annually for their sole, yearly performance. The band has released two records, which are available on iTunes.

Judge Newbern shares her musical talent by being a volunteer violin teacher to students at the nonprofit W.O. Smith School once a week. When not working or playing music, she can be found in East Nashville with her two “ornery” rescue dogs. n BART PICKETT is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty

Mutual

Group,

Inc.’s insureds and customers of its affiliated groups throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

13

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LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

Put out the fire and call the dogs in. The hunt is over. — Anonymous All Done for this Year With the adoption of SJR 464, the 110th General Assembly concluded its 2017 session early in the afternoon of May 10, and will stand in recess until 12:00pm on Tuesday, January 9, 2018.

As the dogs get quiet, here are a few observations. Governor Bill Haslam can count. With the strong support of new Senate Speaker Randy McNally, Governor Haslam was able to focus his efforts for the Improving Manufacturing, Public Roads, and Opportunities for a Vibrant Economy (IMPROVE) Act on the House.

Speaker Beth Harwell—with one eye on the 2018 gubernatorial race and one eye on her right political flank—opposed the legislation and floated a number of trial balloons as alternatives. With the Senate in lockstep with him, Governor Haslam worked to defeat Speaker Harwell’s proposals and continue to advance his own. On the House Floor, 23 of 25 Democrats joined 37 of 73 Republicans to enact the bill into law with 60 votes, including Speaker Harwell’s.

With its six cents per gallon increase in the gas tax and ten cents per gallon increase in the fuel tax to be phased in over three years, the Department of Transportation is poised to begin work on 962 projects in each of our 95 counties, and one of them is I-440 here in Nashville. The statute also includes reductions in the sales tax on grocery food, the Hall income tax, and the corporate excise tax for manufacturers. You may access a copy of Chapter 181 of the Public Acts of 2017 on the Secretary of State’s website.

Sleeper Bill of the Session Senate Bill 445 by John Stevens / House Bill 508 by William Lamberth is the legislative work product of the National Rifle Association. Tennessee has almost 600,000 handgun carry permit holders. The policy question quickly becomes where a handgun carry permit holder may carry his or her handgun. The legislation which is awaiting gubernatorial review at this yelping removes local governmental immunity for a civil action.

The bill authorizes a civil action against a local government which adversely affects someone lawfully pos-

sessing a firearm under Tennessee law.

A prevailing plaintiff may recover from the local government the greater of actual damages or three times the plaintiff’s attorney fees, and courts costs. This civil action flows a local government enforcing a prohibition or restriction on the possession of a handgun by a handgun carry permit holder at a meeting unless each public entrance to the property has a metal detector, an officer, and each bag brought into the property is subject to search. Exceptions are available to publicly licensed mental health and health care and juvenile facilities, schools, law enforcement agencies, libraries, and Head Start programs. The effective date is July 1, 2017, but it applies to ordinances or resolutions that are adopted or enforced after July 1, 2017.

Legal Services Corporation At the federal level, lawyers are howling about the Administration initiative to defund and eliminate the Legal Services Corporation. The LSC was created during the Nixon Administration with bipartisan congressional support. The LSC provides grants to 133 different civil legal aid organizations including our own Legal Aid Society of Middle Tennessee and the Cumberlands. Last year, the local agency served 440,000 Tennesseans in 48 counties through eight offices and had 42% of its funding come from federal grants.

Equal access to justice is an important initiative of our Tennessee Supreme Court and is an important ideal of our civil justice system. The funding cut would not only imperil the ability to provide legal services to poor Tennesseans, but it would also diminish the private bar’s capacity to help these same clients. The pro bono activity facilitated by federal funding (continued on page 16)

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

15

Capitol Notes | is the sort of public private partnership the federal government should encourage rather than eliminate.

Under the current federal budget, the Legal Services Corporations receives $386 million. For the fiscal year beginning October 1, 2017, the budget request is for $502.7 million. Failing to fund your LSC would be like failing to feed your dog...

Checklist for June 1. Write a note to your state elected officials congratulating them on surviving the session and thanking them for their service.

2. Sign up to attend the June 15 Happy Hour graciously hosted by the law firm of Dodson Parker Behm & Capparella, PC. Play your cards right and you can score some tickets that same evening for the Nashville Sounds game against the Iowa Cubs, compliments of the official bank partner and Exclusive Sponsor of

Peggy Sue, the Beagle Hound (continued from page 15)

the NBA, First Tennessee Bank.

3. Ponder who will succeed Governor Bill Haslam.

Calendar Notes State and NBA offices will be closed Tuesday, July 4, for the Independence Day holiday. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact. She is also a big believer that it’s not the size of the dog in the fight, but the size of the fight in the dog.

DIAL-ALAWYER

Dial-A-Lawyer is held the first Tuesday of each month from 6:00 – 8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact our LRIS Coordinator at Wendy.Cozby@nashvillebar.org.

Pro Bono credit applies, and a complimentary dinner will be provided.

TENNESSEE LEGAL VIDEO The Historical Committee has completed over 50 oral histories of NBA members!

THANK YOU to Tennessee Legal Video for donating time to make this possible!

Nashville, TN 37210 | 615-278-6058 Any NBA member age 65 or older may record an oral history.

For information or to schedule your time, contact Gareth Aden at Gaden@gsrm.com or Hal Hardin at HalHardin@aol.com.

16

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Thank you to our April and May volunteers!

HELEN CORNELL GINA CRAWLEY CHRIS HUGAN TOM LAWLESS DOUG PIERCE JOE RUSNAK

VOLUNTEER NOW!

Bill & Phil’s Gadget of the Month | Bill Ramsey & Phillip Hampton

Wireless Headphones—Cutting the Cord?

When Apple’s iPhone 7 shipped last year, our “geeky” curiosity was aroused.

As most of you know, iPhone7 lacks a headphone jack. Obviously, Apple is attempting to move the entire smartphone industry to a new wireless era. As you might expect, we pulled out our wallets and began our wireless headphone spending spree.

First things first. We are not including Apple AirPods in this review. In fact, this review does not include any completely “wire-free” headphones; that is, earbuds that are separate from each other and do not have a cable running between them.

There are many drawbacks to these wirefree models such as poor sound quality and battery life as well as the ease with which they can be misplaced or lost. So, we do not recommend any completely wire-free headphones. Hopefully, the technology will continue to improve and, when it does, we will be the first to go wire-free.

If you are looking for audiophile sound quality in wireless headphones, you will not find it. Bluetooth signals are compressed and, although technology has continued to improve the sound quality, wired headphones and earphones still retain a sound quality edge. However, the convenience of wireless headphones lets you avoid having a cable dangling down to your smartphone. And besides, they look cool. If you are looking to get a set of these babies, there are three decisions you have to make.

First, you have to decide if you are going to buy headphones or earphones.

In other words, do you want “cans” on your ears or just in-ear earbuds. The cans (headphones) generally sound bet

ter. Second, you’ll have to decide if you want noise-cancelling headphones or earphones. These headphones are particularly useful on airplanes or other noisy spaces, but cost extra. A third decision is how much you want to spend. Since we blow all of our money on gadgets anyway, this is our least important factor.

Bose QuietComfort 35

Now, let’s discuss the best wireless headphones. In a lot of ways, wireless headphones are the most convenient to use, even though they do cover up your entire ear. The wires connecting the speakers on each side run through the “strap” that goes over the top of your head. Our top three picks in this category are 1) Bose QuietComfort 35, 2) Plantronics Backbeat Pro 2, and 3) Bowers and Wilkins P7 Wireless.

The Bose QuietComfort 35 headphones ($349) are a world-class pair of headphones with probably the best noise cancellation available on the market. The battery life is long, they sound great, and the design and form are among the best on the market.

The Plantronics Backbeat Pro 2 headphones ($199) save you about $150. We love these headphones because they have a battery life of approximately 24 hours. In addition, they are very comfortable and the sound quality is very good (though not quite as good as the Bose). Similarly, the noise cancellation is good, but not as good as the Bose.

Finally, the Bowers and Wilkins P7 Wireless headphones ($399.98) also have an incredible battery life—17 hours.

They are probably the best sounding headphones on the market, but because they are so expensive and they do not include noise cancellation, they are our third choice in this roundup.

Now let’s talk about our favorite category, wireless earphones (in-ear headphones). We love this category. They are great while walking or working out, talking on your cellphone, or while you are relaxing but want to maintain a better awareness of your surroundings. Our favorite three items in this category are 1) Beats

by Dre Beats X, 2) Bose QuietControl 30, 3) JBL Reflect Mini BT, and 4) Jaybird X2.

The Beats X ($89.99) are our pick for the best in this category, especially if you have an Apple iPhone. These earphones have the Apple W1 chip that makes it easy to pair and connect these headphones wirelessly to an iPhone. The earphones are reasonably priced; they have good (but not the best) sound quality; and you can charge them in approximately five minutes. Unlike most Beats headphones and earphones, these earphones are not “bass heavy”. In addition, the Beats X stay paired with your phone well beyond 30 feet. Most Bluetooth earphones do not reach that far.

Coming in next are the JBL Reflect Mini BT in-ear, sports earphones ($79 at Amazon). We love JBL speakers and we love these JBL earphones. To our untrained music ear, these earphones provide the most accurate sound, both solid bass and accurate highs. These are sport model earphones (like the Jaybird X2 we talk about next), and they are (continued on page 18)

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

17

Gadget of the Month | sweat-proof with multiple options for ear tips, so they can stay in your ears during the most intense workouts. Moreover, the price is right.

Our third choice is the Jaybird X2 wireless headphones ($109). Jaybird was a pioneer in the Bluetooth earphone category. We first saw the Jaybird wireless Bluetooth headphones at CES approximately four years ago. The X2 is Jaybird’s latest offering and have fantastic sound performance and good battery life. Both the JBLs and the Jaybirds provide really a good “bang for the buck” and are good for workouts because both are sweat proof.

Finally, we have the Bose QuietControl 30 headphones ($299). These headphones provide great sound performance and noise cancellation. They also have a wide variety of earbuds, making it easy to find a good ear fit. We do, in fact, love these earphones and would give them a higher rating out of this group; however, the price ($299) is just a bit much for this category, since the primary use for

(continued from page 17)

these wireless earphones is casual and workout use.

There you have it. It is time to go wireless with your headphone and earphone choices. One day “in-ear” earbuds, like the Apple AirPods, the Skybuds, and the Motorola VerveOne earbuds will be good choices. But for now, we think it is best to go quasi-wireless and pick from one of the pairs we have listed above. n Until next time, Bill and Phil

LAWYER REFERRAL & INFORMATION SERVICE Join the NBA LRIS—the exclusive referral service for the Nashville Bar Association—and your practice will benefit from our unique marketing and advertising programs. In addition to our online presence—which attracts clients nationwide—LRIS receives client referrals through a variety of sources including the courts, Office of the Attorney General, employee assistance programs, other bar associations, and the Social Security Administration. In 2016, LRIS member attorneys collected almost $740,000 in fees generated by referrals from the LRIS program.

For information on joining the NBA LRIS, contact Wendy.Cozby@ nashvillebar.org or visit NashvilleBar. org/LRISAttorneyRegistration.

OFFICE SPACE FOR RENT? PROMOTING YOUR FIRM? ADVERTISE IN THE CLASSIFIEDS CLASSIFIED ADVERTISING RATES LINE ADS $85 for the first 50 words and $1.25 for each additional word. Must be received no later than the 15th of the month prior to publication.

DISPLAY ADS $400 for 1/3 page | $325 for 1/4 page | $275 for 1/8 page

Visit NashvilleBar.org/NashvilleBarJournal for more information.

18

NASHVILLE BAR JOURNAL | JUN/JUL 2017

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. T HURS DAY, J UNE 2 9 | LIVE SEMIN A R

TH U R S D AY, JU LY 20 | LI V E S EM IN A R

DON’T JUST GET AN AGREEMENT...GET AN APPROVAL

WHAT TO EXPECT AT THE COURTHOUSE

Hear from the Judges on What it Takes to Have Agreements Approved OVERVIEW When parties reach an agreement as a result of mediation or negotiation between their respective counsel, it is not guaranteed that the agreement will be approved by the Court. At this seminar, the judges of the Third and Fourth Circuit Courts of Davidson County will address questions and give general guidelines on what is necessary to have your mediated or agreed upon Marital Dissolution Agreements, Parenting Plans, and other miscellaneous agreements approved by the Court.

PRESENTERS Hon. Phillip Robinson Hon. Philip E. Smith M O D E R AT O R Edward D. Lanquist Jr., Patterson Intellectual Property Law

OVERVIEW This seminar—co-sponsored and supported by the NBA YLD Division—will focus on courtroom practice and is intended to instruct those who are young lawyers (in law practice 5 years or less) or are new to practice in Davidson County state court.

PRESENTERS Hon. Joe P. Binkley, Jr. Hon. Thomas White Brothers Hon. Hamilton V. Gayden Hon. Kelvin D. Jones Hon. Randy Kennedy Hon. Ellen Hobbs Lyle Hon. Amanda McClendon Hon. Russell T. Perkins Hon. Phillip Robinson Hon. Philip E. Smith Hon. William E. Young D E TA I L S

D E TA I L S

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:30 – 2:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00am – 4:50pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:00 – 4:00pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 General

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 General | 2.0 CME

Location. . . . . . . . . Jury Assembly Room, Historic Courthouse

Location. . . . . . . . . . . . . . Jury Assembly Room, Birch Building

COST

COST

NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $95

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $549

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $189 For registration after June 27, add a $10 late fee.

Young Lawyer & YLD Member . . . . . . . . . . . . . . . . . . . . . . $30 Young Lawyer & Non-YLD Member. . . . . . . . . . . . . . . . . . $60 For registration after July 18, add a $10 late fee.

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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WE DNE S DAY, J ULY 2 6 | LIVE SEMINAR

TH U R S D AY, A U GU S T 3 | LI V E S E M I N A R

DIGITAL FORENSICS 101

CONTENT MARKETING FOR LAWYERS Tips, Strategies, Ethics, & Winning the Long Game OVERVIEW

OVERVIEW In today’s world, digital devices are generating massive amounts of data. This large amount of data must be properly handled and analyzed in a specific manner to ensure the integrity of the data. The science of Digital Forensics is very complex and can be overwhelming if the basics are not understood. The course will provide an overview of digital forensic terminology, concepts, and case examples that will be helpful for attorneys to handle their cases more effectively.

Content marketing is a challenge for lawyers, but, in this course, Noel Bagwell teaches how to use it effectively. Content marketing gives attorneys opportunities to show their knowledge of the aspects of their practice. It also gives clients an opportunity to get a taste of legal insight for little or no cost. Lawyers have to strike a balance between giving enough value and not giving away too much. Plus, they have to be careful to protect themselves from liabilities arising from ethical violations. Blogs, podcasts, eBooks, digital magazines, and more are covered in this course.

Attorneys in large and small firms are encouraged to attend to learn the basic terms and theories of digital forensics, what information can be recovered, what a firm should look for in a digital forensics examiner, steps to take with digital devices prioer to examination, and who can use digital forensics and example cases.

PRESENTERS

PRESENTER

Dean Fowler Digital Forensics Examiner Liberty Business Associates

Noel R. Bagwell, III President & Chief Legal Counsel Executive Legal Professionals

D E TA I L S

D E TA I L S

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

COST

COST

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

For registration after July 24, add a $10 late fee.

For registration after August 1, add a $10 late fee.

20

NASHVILLE BAR JOURNAL | JUN/JUL 2017

PLI LIVE WEBCASTS L i ve CL E Cr e dit f r om Innov a t iv e We bcast s

N B A O N LI N E S E M I N A R S P ersonal i z ed Learni ng on Your Sc h e d u le

is the exclusive online support network for the NBA.

PLI and the NBA provide sophisticated programs to Tennessee attorneys through live webcasts held at the NBA Conference Center. Attendees will earn live CLE credit. Registration is free for PLI’s Privileged members. Visit NashvilleBar.org/CLE for course details and to register.

Health Care Technology 2017: Critical Issues in Cyber, Digital Medicine and Structuring Effective Agreements June 13, 8:00am – 4:00pm 5.75 General Complimentary breakfast included.

Internal Investigations 2017 June 19, 8:00am – 3:45pm

Check out our online seminars at NashvilleBar.org/CLE and register now. There is a variety of relevant and focused topics to choose from including the two new ones on land use below: Land Use: Practicing Before the Planning Commission and the Board of Zoning Appeals | 1.0 General

1.0 Dual | 5.0 General

Complimentary breakfast included.

Writing for Litigators 2017 July 11,1:00 – 4:15pm Ethics for In-House Corporate Counsel 2017 July 12, 8:00 – 10:10am

The Board of Zoning Appeals, and Metro Council 1.0 General 2.92 General

2.0 Dual

Complimentary breakfast included.

Ethics for Discovery 2017 July 12, 11:00am – 1:10pm Insider Trading Law 2017 July 21, 8:00 – 11:30am

With the amount of development currently taking place in Metro Nashville, the need for representation of parties that seek or oppose land use changes is paramount. Learn more online!

WE B I N A R S | FE ATU R I N G S E A N C A R T ER , ESQ .

Laugh Whi l e You Learn

2.0 Dual

3.0 General

Complimentary breakfast included.

Writing for Transactional Lawyers 2017 July 27, 1:00 – 4:00pm

Land Use: Advocacy Before the Planning Commission,

It’s Not the Fruit, It’s the Root: Getting to the Bottom of Our Ethical Ills June 15, 11:00am – 12:00pm

1.0 Dual

The 2017 Ethy Awards June 17, 11:00am – 1:00pm

2.0 Dual

2.58 General

How to Draft a Bad Contract June 20, 12:00 – 1:00pm

1.0 General

The Attorney-Client Privilege and Internal Investigations 2017 August 8, 2:00 – 4:10pm 2.0 Dual

Deposition Do’s and Don’ts June 21, 12:00pm – 2:00pm

2.0 General

17th Annual Municipal Law Institute August 14, 8:00am – 4:00pm 1.0 Dual | 5.25 General

Yelp, I’ve Fallen for Social Media and I Can’t LinkedOut: The Ethical Pitfalls of Social Media June 22, 11:00am – 12:00pm 1.0 Dual

Complimentary breakfast included.

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

21

W E B I NARS | F E ATURING SEAN CARTER, E S Q .

L au g h While You Le a r n The 2017 Ethy Awards June 24, 9:00 – 11:00am

2.0 Dual

The Ties That Bind: Avoiding Inappropriate Entanglements in the Practice of Law June 26, 12:00 – 1:00pm 1.0 Dual The UCC Made Easy June 27, 8:30am – 5:00pm

7.0 General

The Passion of the Barrister: An Ethical Lawyer is a Happy Lawyer June 27, 7:00 – 8:00pm

1.0 Dual

Nice Lawyers Finish First June 28, 9:00 – 10:00am

1.0 Dual

The 2017 Ethy Awards June 28, 11:00am – 1:00pm

2.0 Dual

Sue Unto Others As You Would Have Them Sue Unto You June 28, 4:00 – 5:00pm 1.0 Dual Don’t Be an Outlaw: The Ethycal Imperative to Follow the Law June 29, 11:00am – 12:00pm Fantasy Supreme Court Leage: The 2017 Season June 29, 1:00 – 3:00pm

1.0 Dual

2.0 General

Thou Shalt Not Lie, Cheat & Steal: The Ten Commandments of Legal Ethics June 29, 7:00 – 8:00pm

1.0 Dual

Don’t Try This At Home: Why You Should Never Emulate TV Lawyers June 30, 9:00 – 10:00am

1.0 Dual

Lies, Damn Lies & Legal Marketing: The Ethics of Legal Marketing June 30, 12:00 – 1:00pm

1.0 Dual

22

NASHVILLE BAR JOURNAL | JUN/JUL 2017

WE B I N A R S | FE ATU R I N G S E A N C A R TE R , ESQ .

Laugh Whi l e You Learn Legal Ethics Is No Laughing Matter: What Lawyer Jokes Say About Our Ethical Foibles June 30, 4:00 – 5:00pm 1.0 Dual Loose Lips Sing Partnerships (and Clients, Too): The Ethical Way to Honor Client Confidentiality July 12, 12:00 – 1:00pm 1.0 Dual The Truth, the Whole Truth, and Nothing But the Truth: The Ethycal Imperative for Honesty in Law Practice July 19, 12:00 – 1:00pm 1.0 Dual Show Me the Ethics!

The Ethycal Way to Bill for Legal Services July 26, 12:00 – 1:00pm

1.0 Dual

M A R K Y O U R C A LE N D A R S Save the date for these highly anticipated upcoming seminars!

Government Practice August 18 8:00am – 4:15pm 6.0 General Watergate August 29 3.0 Dual Sister Cities Trip Caen, France September 5 – 10 NashTech October 6 8:00am – 6:00pm Marsha Trimble November 2 1:00 – 4:30pm 3.0 Dual

GET A CLE EASY PASS & GO! 3 EASY PASSES TO CHOOSE FROM:

8-HOUR CLE PASS

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$265 (2 free CLE hours = $95 savings)

15-HOUR CLE PASS

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Valid from Nov 1, 2016 to Oct 31, 2017.

Purchase your members-only CLE Easy Pass now, and save up to $255 on cutting edge CLE! Choose a CLE Easy Pass that fits your “Live” CLE hour needs and your budget. For questions or to purchase your CLE Easy Pass, email NBA_CLE@nashvillebar.org or call 615-242-9272.

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CANCELLATION: No refund or credit will be issued after 5:00pm two business days ahead of the seminar; however, a substitute may attend for a registered participant. CLE EASY PASS HOLDERS: Cancellation must be received by 5:00pm two business days ahead of the seminar to retain CLE Easy Pass hours.

CLE Easy Passes are non-transferable, and a substitute may not attend for an Easy Pass Holder.

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

23

TENNESSEE CHAPTER

Nashville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 893-4160

Paul DeHOFF (615) 893-8896

Hon. Robert ECHOLS (615) 742-7811

Barry L. HOWARD (615) 256-1125

James KAY (615) 742-4800

Mark LeVAN (615) 843-0300

Gayle MALONE, Jr. (615) 651-6700

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Leigh Ann ROBERTS (615) 767-5900

Tracy SHAW (615) 244-3370

Matt SWEENEY (615) 726-5774

John TARPLEY (615) 259-1366

Mark TRAVIS (931) 252-9123

Jack WADDEY, Jr. (615) 850-8752

Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org www.TennesseeMediators.org is is free, free, funded funded by by members members

For more information about NADN, please watch the short video at www.NADN.org/about

CLE TRAVEL REVIEW

Five Days in Cuba | A few months after President Obama and Raúl Castro announced steps to normalize relations between their two countries, members of the Nashville Bar Association began discussing a cultural immersion tour to this communist island nation.

In April, 30 representatives of the NBA—lawyers, spouses, and staff—journeyed to this beautiful and complicated country. While Cuba lies a mere 45-minute plane ride from Fort Lauderdale, it is, in many ways, a world away from the constitutional democracy that NBA members are sworn to uphold. This is the story of our journey.

A Long and Complex Relationship Cuba and the United States have a long and complicated relationship. The United States entered the Spanish-American War to help free the fledgling island from Spanish rule. At the end of the war, the U.S. arguably acted more as occupier than liberator. The Platt Amendment prevented Cuba from truly freeing itself from American influence, and the U.S. maintained a number of vested interests in the future of Cuba. To add insult to this slight, the U.S. turned a blind eye to the corruption of Fulgencio Batista, Cuba’s leader turned dictator. This set the stage for the 1959 revolution led by Fidel Castro, Raúl Castro, and Che Guevara.

Following the revolution, the U.S. experienced its most complicated relationship with another country. For example, the Bay of Pigs, the Cuban Missile Crisis, the embargo, assassination attempts on Castro, the controversy around Elián González. . . The list goes on.

NBA’s Cuban Experience Our NBA delegation experienced a breathtaking array of Cuban culture in five short days. At the suggestion of

Michael L. Russell our trip: Do Cubans believe the revolution was a success? The response was nuanced: We believe it was a social success. We are proud of our race relations.

We are proud of our free and universal healthcare. We are proud of our free and universal education. As to whether it was an economic success, well, that is a different matter. I suppose our southern manners prevented us from asking about Cuba’s human rights record.

Lindsay Ison—whose husband, Mark, is partner at Sherrod Roe Voigt Harbison— we enjoyed a performance of the ballet at the historic performance hall a block away from the Cuban Capitol. A curator at the Cuban Museum of Art gave us a guided tour of the museum’s impressive collection. A visit to Ernest Hemingway’s home in a nearby fishing village provided an enjoyable respite from the busy streets of Havana. You can also count on a group of lawyers to enjoy Cuban rum at Havana’s most famous watering holes— two of which were Hemingway’s personal favorites—such as La Bodeguita del Medio and El Floridita. A few of us even found ourselves dancing on the stage of the world-famous Tropicana Nightclub.

The highlight of the trip, however, was our interaction with Cubans from all walks of life—law professors, a former member of the Cuban Supreme Court, bartenders, and cab drivers. Cubans are a warm and welcoming people. Perhaps I am naïve, but I sensed no animosity toward our group of American lawyers. The Cubans we encountered were proud of their country, but not too proud to speak candidly about its struggles.

During a conversation with an economist from the University of Havana, John Day—unable to resist a good cross-examination—asked the best question of

Hasta Que Nos Encontremos De Nuevo (“Until We Meet Again”) If you happen upon any of our delegation, please ask us about our trip. We will likely share stories of old cars, mojitos, and amazing colonial architecture, and you may end up with a Cuban cigar or a glass of Havana rum in your hand. Better yet, go experience Cuba for yourself. You will not regret it.

In 2018, Cuba will elect a new leader. For the first time since the Revolution, his or her last name will not be Castro.

Moreover, it is unclear how the present U.S. administration will view President Obama’s openness toward relations with Havana. Thus, the future of Cuban-American relations is far from certain. I can only express my personal opinion and my hope that the dialogue and road to normalized relations will continue and that our April adventure in Havana will be the first of many. Until then, adiós!

PS – If you see Will Cheek, please ask him whether the Cuban government frowns upon walkie-talkies being brought into the country. Thankfully, Will was not detained for very long. n MICHAEL L. RUSSELL is a labor and employment lawyer and mediator.

To see the full photo gallery from this trip, visit NashvilleBar.org/PhotoGallery and click on 2017.

Highlights can be found on page 31 of this issue.

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

25

Thank you for supporting your local bar association!

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. Members will be listed on NashvilleBar. org/100%Club, in the Nashville Bar Journal, and in our annual Attorney Directory. To become part of NBA’s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

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26

NASHVILLE BAR JOURNAL | JUN/JUL 2017

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Editorial |

Mike Sandler

Music & Dance

How it Can Improve Your Health and Make You a Better Lawyer Music and dance can improve your physical and mental health, but did you know that music and dance also can improve your performance as a lawyer?

Before we get to moving and grooving, let’s set a general baseline so you can see how much music and dance can do for you. I think we all can agree that good lawyers possess intelligence, creativity, analytical prowess, the ability to interact and develop trusting relationships, and a strong work ethic.

That said, what separates mediocre lawyers from great ones?

That’s a tough question to answer, but research scientists have interesting theories on how to work smarter—not harder—to improve your health and your performance as an attorney.

Decades of study and observation have shown physical activity improves mental health and cognition. Even if you think you’re already at the peak of your legal game, the following advice may be just what you need to move up to the next level.

Physical Activity & Mental Acuity Researchers at the University of Minnesota followed 2,747 healthy people between the ages of 18 and 30 for 25 years to determine how one’s physical condition during the aging process affects mental acuity. The researchers had participants

walk on a treadmill and measured their performance. Those in better physical condition initially performed better than their counterparts in testing. In follow-up tests conducted 25 years later, the fitness level of the participants declined with age—as expected—but those who were in better shape in 1985 showed improved performance over their less active peers. The study shows that physical activity has a positive cumulative effect on the body, but what about the brain?

In 2010, the researchers subjected the same participants to a battery of cognitive tests, assessing memory, and processing speed and executive function—all measures of a person’s ability to learn, reason, and problem solve. The researchers again found that people who were the most fit in 1985 performed 10% better than their less fit counterparts.

It is no secret that practicing law is primarily a sedentary endeavor. As lawyers, we are often seated in the courtroom or the office for long stretches of time. Since regular physical activity is known to improve your thinking, concentration, learning, and reaction time as you age, the take-away for our profession is that physical activity can enhance brain function over a lifetime, possibly making you better at everything you do, including practicing law. (continued on page 28)

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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Editorial |

Music & Dance (continued from page 27)

Music So, if exercise can improve cognitive functioning, how does music affect us? For one, studies have shown that music strengthens social bonds and increases contact, coordination, and cooperation with others-—traits all great lawyers should possess.

According to researchers, when we try to sync musically with others (keeping up with the beat or harmonizing) it leads us to have positive social interactions. Coordinating movement with another person is linked to the release of endorphins or pleasure chemicals in the brain, which could explain why people enjoy listening to music at home, in the car, or at a concert.

Music may also give us an oxytocin (a neuropeptide that plays an important role in how people bond and develop trust in one another) boost. Music activates circuits in our brains that help us understand what others are thinking and feeling and how they might behave. Scientists call this social skill the “theory of mind,” which is linked to our ability to be empathic.

In addition, research shows that music increases social cohesion. Social interaction with families and peers is higher when young people listen to music with other family members or their peers. For example, as part of their product development, audio speaker and device giant, Sonos, conducted a study to see if music actually brought people closer together. They discovered that families who play music in the house spend more time together, are physically closer to each other when music is playing, and eat dinner more often together—a ritual long believed to maintain strong family bonds.

Who knew that the simple act of

listening to your favorite song, humming a familiar tune, or playing a musical instrument could improve your skills as a lawyer? These are things we do because we enjoy them, and the fact that engaging in these activities can improve skills we use every day in our practices is a bonus!

Many types of dance require the ability to adapt to sudden changes. An example is free-style dancing, which requires many split-second, rapid-fire decisions, such as whether to step to the left or twirl to the right. With each change, our brains are stimulated to create new neural pathways. The more

Dancing Like music and other types of physical activities, dancing improves physical health and cognitive ability. For centuries, experts have praised the physical benefits of dance. More recent research has found that dancing reduces stress, increases the serotonin levels in the brain, and provides a sense of well-being.

For 21 years, scientists led by the Albert Einstein College of Medicine and funded by the National Institute on Aging, studied the effects of dancing on mental acuity as it relates to dementia in the elderly. Their report found that frequent dancing makes us smarter and increased cognitive acuity at all ages— not just the elderly.

pathways we have, the less likely we are to suffer from dementia and other age-related complications, because our brains have created other routes to pass information to different regions within the brain.

Like a dancer, great lawyers are able to think fast on their feet and adapt quickly to ever changing situations. The take-away here is that the constant decision-making required in many different styles of dancing leads to increased mental acuity, so keep on dancing!

Conclusion Until I started researching for this article, I did not realize how some of the activities I engage in outside of work affect me as a lawyer. Music and (continued on page 32)

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NASHVILLE BAR JOURNAL | JUN/JUL 2017

EVENT REVIEW

In re Tam Revue: The Slants | Tim Capria It’s not every day that a litigant before the U.S. Supreme Court contacts me seeking to collaborate on an event. However, The Slants—including its founder Simon Tam—are anything but ordinary. As if being the world’s first and only all-Asian American dance-rock band is not distinction enough, The Slants currently have a trademark case pending at the Supreme Court of the United States, In re Tam, which was heard in January.

As co-chair of the NBA Intellectual Property Law Committee (and a trademark geek), I was elated to have the opportunity to speak with Simon, much less the possibility of hosting a collaborative bar event in Nashville. Fortunately for our bar, through the hard work of many and the sponsorship of a generous few, the event became a reality last month.

Like many, I was familiar with The Slants’ case. The band had been refused a federal trademark registration on the mark “The Slants” by the United States Patent and Trademark Office (USPTO) under Section 2(a) of the Lanham Act, which provides that a mark is unregistrable if it “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute . . . .” This provision of trademark law is particularly well known in light of the recent cancellation of the Washington Redskins’s federally registered trademark, “Redskins”, as disparaging.

The facts of The Slants’s case, however, are distinguishable, as the allegedly disparaging term “Slants” relates to the band members’ racial background as Asian Americans. However, it was not until Simon Tam spoke at the NBA event

that I appreciated the importance and uniqueness of their case.

Framed by a picturesque view of the green hills of springtime Nashville, Simon Tam eloquently spoke about the discrimination he endured growing up in San Diego as a Taiwanese-Chinese American.

His story—while heart-wrenching—was dynamically delivered with comedic interludes. One of these comedic interludes included how, when faced with getting beaten-up after school, he embraced his stereotype (and his potential assailants’ ignorance), by assuming a karate pose to bluff his way out of a fight. In essence, Simon owned the stereotype to empower himself. Simon explained how this was a factor in adopting the “Slants” name— that is, reappropriation of the term to empower the band and Asian Americans.

Simon effortlessly transitioned from this discussion to the lens of the band’s pending trademark case. Simon detailed the overwhelming amount of evidence in support of their position of nondisparagment—much of which was obtained pro bono through the generosity of third parties—and at times, the inhuman process of dealing with the bureaucratic machine that is the United States Patent and Trademark Office. The most shocking part of Simon’s story was that the

USPTO supported its refusal of the mark by providing the rationale that it was the context of the band’s use of the mark— i.e., that the band was using “Slants” in connection with its Asian American membership—that made the mark offensive.

In addition to being racially discriminating on its face, this rationale likely has consequences unforeseen by the USPTO. Indeed, it seems almost unimaginable that The Slants could not register their mark in connection with their band because of their members’ Asian American backgrounds, while other non-Asian Americans could do so. It is this facial discrimination and unjust potential consequences that likely resulted in the Supreme Court granting certiorari to hear the case.

One thing that makes practicing law—whether trademark law or another aspect—so rewarding is supporting, protecting, and advocating for our clients’ passions. While Aristotle once said that “the law is reason, free from passion,” we cannot and should not forget the passions that drive our clients. For The Slants, their passion extended beyond merely obtaining a federal trademark registration on their band’s name and brand to righting unjust consequences resulting from a rigid law, and our minds were enriched from hearing their story. n TIM CAPRIA is an associate attorney at Bradley in Nashville. His practice focuses on acquiring intellectual property, patent opinion practice, and enforcing intellectual property rights. He primarily prosecutes patents in the life sciences and medical device fields and provides trademark counsel for clients operating in diverse sectors. Capria is currently co-chair of the Nashville Bar Association’s Intellectual Property Law Committee.

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PHOTO GALLERY

In re Tam Event Revue On April 14, Bradley law firm hosted a special CLE Committee event with the world’s first and only all-Asian American dance-rock band, The Slants. Read Tim Capria’s review of this event on page 29. For more photos, visit NashvilleBar.org/PhotoGallery and click on 2017.

Thor Urness, Kelly Fiata, David Lucas

Simon Tam of The Slants

The Slants performing at Bradley law firm.

Tim Capria, Jenna Harris, Shellie Handelsman

Jill Presley & Jan Margaret Rogers with The Slants

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NASHVILLE BAR JOURNAL | JUN/JUL 2017

PHOTO GALLERY

NBA Goes to Havana, Cuba

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Welcome New Members!

Congratulations on your new membership! Thank you for joining the NBA and all that it has to offer. We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org for questions and general information.

NEW MEMBERS (MARCH 1 - APRIL 30) Brett W. Arnold

Suzanne Gordon

Lauren Marie Poole

Mary N. Balthrop

Nate Gorman

James Risener

Margaret Ann Brooke

Karen Grochau

Meredith Silva

John Eric Butler

Whitney Henderson Harrington

David Hysom Suggs

Matt Byron

Spencer Hassler

Evan Cole Vineyard

Mark Chen

Jessica Kinnard

Ashley Waddle

Donald Cochran

Jeffrey C. Kovalski

Jacqueline Ward

Laura Elkins

Colton Starr McGee

William Wojcik

Ana Lucia Escobar

Charlotte Miller

Michael Andrew Womack

Justin McKean Gilbert

Dawn F. Myers

(Music & Dance. . . continued from page 28)

dancing are leisure time activities for me.

Like many of you, I listen to music in the car and at home, and I go dancing and to concerts with my wife. I do these things in part to escape from the pressure and the stress that goes along with being an attorney. Then, I started to look around at folks I admire and respect. I knew all of them exceled at work, but as I looked closer, I realized that music and dance played a large role in the lives of many of these people.

My ophthalmologist is a nonagenarian—who besides being a great doctor— enjoys ballroom dancing and learned to speak his seventh language (Russian) in his eighties. Cancer survivor and U.S. Supreme Court Justice Ruth Bader Ginsberg works out weekly with a personal trainer and is an opera fan who made her stage and National Opera debut at the John F. Kennedy Center for the Performing Arts at 83, playing the Duchess of Krakenthorp in “The Daughter of the Regiment”. And my

32

friend, Bill Ramsey, who we all know is a walking encyclopedia of musical knowledge, started a block party with his neighbors on the street in front of his house that has now grown into one of Nashville’s premier music and dance festivals. So, if you want to up your game and have a lot of fun doing it, get moving and grooving now! You’ll be happy you did. n

7

Suttle, supra note 5.

8

Id.

Diana Boer & Amina Abubakar, Music listening in families and peer groups: benefits for young people’s social cohesion and emotional well-being across four cultures, 5 Frontiers In Psychol 392 (2014).

9

Joe Stein. Study Shows Music Brings My Family Closer Together, Time (Feb.11, 2016), available at Time.com/4217077/music-study.

10

Richard Powers, Use It or Lose It: Dancing Makes You Smarter, Dancing Makes You Smarter, Longer (July 30, 2010), SocialDance.Stanford.edu/ syllabi/smarter.htm.

11

Endnotes David R. Jacobs, How Does Exercise Benefit Cognition?, SCI. AM (2016), ScientificAmerican. com/article/how-does-exercise-benefit-cognition.

1

2

Id.

3

Id.

4

Id.

Jill Shuttle, Four Ways Music Strengthens Social Bonds, Greater Good (Jan. 15, 2015), GreaterGood.Berkeley.edu/article/item/four_ways_ music_strengthens_social_bonds.

5

Bronwyn Tarr, Jacques Launay & Robin I. M. Dunbar, Music and social bonding: “Self-other” merging and neurohormonal mechanisms, 5 Frontiers Psychol. 1096 (2014).

6

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Joe Verghese, M.D., Richard B. Lipton, M.D., Mindy J. Katz, M.P.H., et al., Leisure Activities and the Risk of Dementia, 389 New Eng. J. Med. 2508-16 (2003).

12

13

Powers, supra note 11.

MIKE SANDLER Law, PLC, specializes in cyber and information security issues, automotive and franchise law, civil litigation, and family law. He is a Rule 31 civil and family mediator, a graduate of the Nashville School of Law and holds a Masters in Information Security from Lipscomb University.

Premier Members The NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to NBA programs and services. Contact Vicki.Shoulders@nashvillebar.org for information on how to become a Premier Member.

2017 PREMIER MEMBERS

Gail Vaughn Ashworth

Aubrey Harwell, Jr.

Andrea Perry

Heidi Barcus

Trey Harwell

Tracy Powell

Mark Beveridge

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Hon. Joe Binkley, Jr.

Jamie Hollin

Sara Reynolds

Jonathan Bobbit

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Charles Bone

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Andrew Laufman

James Stranch, III

John Day

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James Stranch, IV

Joy Day

Claudia Levy

Claire Thomas

Karl Dean

Hon. Randal Mashburn

Hon. Aleta Trauger

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Howard Vogel

David Downard

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Elizabeth Washko

John Floyd

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Keith Frazier

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Richard Green

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Larry Williams

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Patricia Head Moskal

Thomas Wiseman, III

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Mattison Painter

Ed Yarbrough

William Harbison

Rose Palermo

Stephen Young

Hon. Marian Harrison

Gregory Pease

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

33

Membership Benefits A FEW OF THE MANY REASONS TO BELONG TO THE NBA

The Nashville Bar Association builds a sense of community and camaraderie among our members and comes with tangible and intangible benefits for enriching your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

By joining the NBA, you not only gain access to cutting edge educational programs, fun networking events, and leadership opportunities within Nashville’s legal community—you invest in your future by becoming a member of the “it’ bar association in the “it” city.

Get Connected

Don’t just hang out with familiar faces! Join your fellow attorneys at one or more of our social gatherings held throughout the year— happy hours, the annual free member picnic, golf tournaments, trivia nights, committee meetings, and community projects—and build your network of contacts throughout the Nashville community.

Expand Your Business

Our exclusive Lawyer Referral and Information Service provides the groundwork you need to build your clientele. Established over 25 years ago, the NBA LRIS refers over 6,000 callers to Nashville area attorneys and agencies each year.

Stay Informed

Join the YLD

If you are a licensed attorney and are either under 36 years of age or have graduated from law school within the previous 12 years, take advantage of our exclusive Young Lawyers Division. An excellent, fresh addition to your NBA membership!

Give Back

Volunteer for Dial-A-Lawyer—a FREE, monthly, call-in service where members provide general legal information to the public, participate in community service projects offered throughout the year, or help with one of the many projects offered through the Diversity Committee.

Be a Leader

Receive a FREE annual subscription to our award-winning bi-monthly magazine, the Nashville Bar Journal. Enjoy insightful, relevant, and thematic articles in print or digital format—or both—it’s your choice.

Set the pace in the legal community by serving on committees, writing articles for the Nashville Bar Journal, helping produce or present CLE seminars, participating on the NBA and/or YLD Boards, or working with the Nashville Bar Foundation.

Sharpen Your Practice Skills

Refresh and Renew

The NBA is your local source for cutting edge CLE. Our skilled presenters will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates.

Take a moment to reflect on our bi-monthly wellness column. Watch out for our weekly Mindful Moment, or snack on something healthy while attending your next CLE...

Just a few ways the NBA can help you while juggling that big stack of motions, litigation preparation, or racing to that next meeting.

NBA Strategic Partners

34

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Receive the NBA Weekly Update eblasts every Thursday covering membership news, special updates, spotlighted events, court announcements, your 7-day CLE forecast, and member photo galleries.

Visit the NBA Career Center online as an employer or a job seeker where you can list job postings, upload your resume, search job postings and resumes, and access the career resources library.

Reserve an office or board room in downtown Nashville to host meetings, arbitrations, and depositions for attorneys who need a convenient place to meet. The NBA provides a Conference Center, a Board Room, and an Attorney Guest Office, complete with Wi-Fi and video-conferencing, available to all members.

Use the NBA Attorney Directory to find names, photos, and contact information for Davidson County lawyers and judges, firm listings, court information, and practice areas of local attorneys.

Save money on personal and business expenses while taking advantage of the many discounts that our Exclusive Sponsors, Strategic Partners, and Affinity Program offer—banking, dining, credit card processing, clothing—just to name a few!

NASHVILLE BAR FOUNDATION

Leadership Forum Graduation The Nashville Bar Foundation has established the NBF Leadership Forum—a local leadership program for lawyers with three to eight years of experience—designed to bring together emerging leaders who participate in monthly workshops for nine months to help them realize their potential and to benefit the legal profession and our local community. To find out more about how you can be a part of the Leadership Forum, visit NashvilleBar.org/NBFLeadershipForum or call Traci at 615-630-7050.

Congratulations to the 2016-2017 NBF Leadership Forum Class on your recent graduation!

Christopher Bellamy LaTonnsya Burney Justin Campbell Allison Cooley Alex Dickerson Mandy Floyd Stephanie Frey Courtney Grande

Jessica Hill Alexis Hoag Ryan Holt Martesha Johnson Kristin Kenney LaChina McKinney Sara Beth Myers Amanda Nichols

Sara Anne Quinn Ben Raybin Josiah Reid Gil Schuette Roger Scruggs Lauren Spahn John Spragens Maia Woodhouse

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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PHOTO GALLERY

Law Day Luncheon I am honored to receive this recognition, and humbled to join the distinguished company of the previous recipients. Although I never knew Jack Norman Sr., I have long heard the stories of his great character, integrity, legal skill, and his commitment to excellence in the practice of criminal law. Words cannot express how overwhelmed I feel today to be associated with such a legend in the Nashville Bar. I am grateful to the NBA and its membership for keeping Mr. Norman’s legacy alive through this award, and for recognizing me today.

I don’t, however, feel comfortable accepting this honor without acknowledging others who are equally deserving of recognition.

As the first woman to receive the Jack Norman Sr. Award, I accept on behalf of all the women warriors out there fighting against the injustice in our system. For the Mariah Wootens, Laura Dykes, Kim Hoddes, Kelley Henrys, and Jerri Mannings of the Nashville Bar.

I accept on behalf of the public defenders out there— past, present, and future. The American criminal justice system has never been equal, fair, or just for the poor or oppressed. All of us need you to keep pushing toward that ideal.

I accept on behalf of our clients. They are not here today in person, but I carry them in my heart. Their smiles; their tears; their struggles; their stories; their anguish; and their all too rare moments of triumph. I long for a day when their triumphs exceed their tragedies.

Criminal justice reform will require those of us in positions of power and privilege to examine how we contribute to the current injustices, including racism. We must work towards a less punitive system, and towards eliminating our two systems of justice—one for the poor, and one for the wealthy. To do that, we will have to act boldly and with courage. That is our obligation and responsibility, and as I look around this room, I see lawyers I have faith in to do just that.

—Dawn Deaner, Metro Public Defender

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NASHVILLE BAR JOURNAL | JUN/JUL 2017

PHOTO GALLERY

Law Day Luncheon Thank you for your kind and generous words. A special thanks to Judge Aleta Trauger—and all my colleagues at the court—who gave me wise advice over the years. Receiving the Liberty Bell Award is a great honor and I am humbled to accept it.

I am thankful to the Nashville Bar Association for the award, and appreciate your faith in me, although I feel as if I have not done enough to earn this honor. I did my best for the citizens of the United States. I had good days and I had bad days as a Federal District Judge. It was a privelege to serve. I only hope when the scales of justice are balanced, they tip in favor of the greatest good.

I want to thank the lawyers who appeared before me for their excellent work, for keeping me sharp, and for upholding our Constitution. It is lawyers who uphold our Constitution every single day. It is vital and important work for our democracy and system of justice.

I want to thank my staff of 21 years for making me look good. Janet Phelps, Charlotte Rappuhn, Vicki Holloway, and Doris Bush are here. . .I share this award with them.

Finally, I want to thank my wife, Margaret Akers, for the sacrifices she made which were innumerable and ineffable.

May we each lead meaningful lives to honor what the law—our noble profession—has done for us. Thank you.

— Judge Todd Campbell

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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Hearsay | Honors & Awards, On the Move, Firm News HONORS & AWARDS Julian Bibb, a Member (Partner) of Stites & Harbison, PLLC, earned two awards: the 2017 Elizabeth Collins Award for Distinguished Service by the Tennessee Lawyers Assistance Program (TLAP) and the 2017 Civic Leadership Award from the Education Foundation for Williamson County at its first annual “Be the Catalyst” award luncheon. Bibb is a member of Stites & Harbison, PLLC’s Real Estate & Banking Service Group.

Brigid M. Carpenter has been named managing shareholder for the Nashville office of Baker Donelson, making her the first woman to serve in this position. While serving as Office Managing Shareholder, Carpenter will maintain her legal practice, which includes products liability defense, catastrophic personal injury defense, and prosecution and defense of commercial disputes.

Christy Tosh Crider has been named chair of Baker Donelson’s Health Care Litigation Practice Group. Crider is a shareholder in the Firm’s Nashville office where she will continue to serve as chair of the Firm’s Long Term Care Group and the Firm’s Women’s Initiative. She concentrates her practice on the long-term care and behavioral health industries.

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Gerard Stranch, IV has been elected Managing Partner at Branstetter, Stranch & Jennings, PLLC. Stranch is the youngest attorney in the firm’s 60-year history to assume leadership at the firm. He was appointed to serve on the Plaintiffs’ Steering Committee in the multidistrict litigation against Volkswagen and the Tennessee State Chair for litigation in the New England Compounding Pharmacy case.

Baker Donelson has elected 13 new shareholders across the Firm, including three attorneys in its Nashville, Tennessee office: Caldwell Collins, Joy Boyd Longnecker, and Joshua Mullen.

Caldwell Collins is a member of Baker Donelson’s Advocacy Department and concentrates her practice on health care, products liability, and business litigation. A graduate of Washington University in St. Louis School of Law, Collins served as editor-in-chief of the Washington University Journal of Law & Policy and as President of Washington University’s Women’s Law Caucus.

She was a member of the Nashville Bar Foundation’s Leadership Forum 2015– 2016 class and is vice chair of the American Bar Association Health Law Litigation Committee. She currently serves as chair of Baker Donelson’s Nashville Women’s Initiative and co-chair of the Firm’s Parental Leave Committee.

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Joy Boyd Longnecker a member of the Firm’s Government Enforcement and Investigations Group, concentrates her practice on government enforcement, internal investigations and commercial litigation. Prior to joining Baker Donelson, Longnecker served as a prosecutor for more than four years, which allows her to advise and defend clients in matters involving potential criminal and/or civil liability. A graduate of the University of Alabama School of Law, Longnecker serves as co-chair for the Tennessee/Alabama Chapter of the Women’s White Collar Defense Association and is also a member of the Nashville Bar Association.

Joshua Mullen is a member of Baker Donelson’s Advocacy Department and Business Litigation Group where he focuses his practice on government contracts and complex commercial and business litigation. A graduate of the University of Tennessee College of Law, Mr. Mullen was a member of the Nashville Bar Foundation’s Leadership Forum’s 2014–2015 class and is currently a member of the Tennessee Bar Association Leadership Law Class of 2017. He also serves on the Strategic Planning Committee and the Recruiting Committee in the Firm’s Nashville office.

ON THE MOVE Tonya Austin and Jason Bergeron have been selected as Members at Frost Brown Todd.

Tonya Austin practices in the firm’s Business Litigation and Employment Practice Groups where she focuses on business litigation in complex commercial disputes.

Jason Bergeron is a member of the firm’s Bankruptcy and Restructuring and Business Litigation Practice Groups and advises lenders, companies, and creditors.

Paige I. Bernick has joined the law firm of Cornelius and Collins, LLP as an associate. Bernick will practice in the area of civil litigation. Prior to joining the firm, she served as a trial attorney for the U.S. Department of Labor in the Office of the Solicitor, and clerked for the Honorable Arnold Goldin in Memphis, Tennessee.

She received her Doctor of Jurisprudence from University of Tennessee College of Law School, where she was an active member of the National Mock Trial Team, Moot Court Board, and Advocacy Clinic. She holds a Bachelor of Arts in History and a Certificate in American Studies from Princeton University.

Frank W. Hunger has joined Bradley Arant Boult Cummings, LLP where he will serve as Counsel in the Litigation Practice Group. Previously, Hunger litigated civil cases in both private practice and the U.S. Department of Justice, where he served as Assistant Attorney General over the Civil Division.

Miranda Christy has joined the law firm of Dodson Parker Behm & Capparella, PC. Christy will focus her practice on business transactions and real estate. Her practice also includes the representation of nonprofit organizations and conservation finance.

David Goodman and Susan Neal Williams have joined Morgan & Morgan.

Goodman graduated from University of Tennessee College of Law, where he was Executive Editor of the Tennessee Law Review, won the Ogden & Sullivan Moot Court Brief Writing Award, and earned Certificates of Excellence in Law, Science & Technology and National Security Law. Williams graduated from Wake Forest University School of Law, where she was a member of the Moot Court. She is a

Steering Committee Member, graduate of the Nashville Bar Association’s Leadership Forum, and Director of the Nashville Lawyers Association for Women.

James P. Catalano and Alexandria S. Fisher have joined Frost Brown Todd.

Catalano is a member in the firm’s Business Litigation Practice Group, working with clients in the construction, health care, and transportation industries.

Fisher is a senior associate in the firm’s Regulated Business Practice Group and serves on the firm’s Health Care Service Team. She also is a faculty member of the Vanderbilt Center for Professional Health, where she teaches a continuing medical education course and assists in planning courses for nurse practitioners.

FIRM NEWS Brian Winfrey has merged his employment law firm into Morgan & Morgan, and now heads the firm’s state-wide plaintiffs’ employment practice. Winfrey, a graduate of Vanderbilt University Law School, also serves as secretary of the Tennessee Legal Community Foundation and is a member of the Executive Council of the Tennessee Employment Lawyers Association.

JUN/JUL 2017 | NASHVILLE BAR JOURNAL

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Classifieds PROMOTE YOUR FIRM! RENT OUT OFFICE SPACE!

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Downtown Window office for rent in five attorney office/suite, Bank of America Building, 9th floor. Includes reception and several other amenities. $1,000/month. Call 615-244-1110 and ask for Jodie Bell or Lindsey Waller.

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Downtown The NBA has two window offices available for rent in the One Nashville Place building downtown. Walking distance to courthouses, conference space upon availability, direct phone line, community kitchen, reception area access, furnished or unfurnished.

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The Nashville Bar Association offers its conference rooms to be used for arbitrations, mediations, meetings, depositions, and other events for attorneys who need a convenient place to meet in downtown Nashville.

We have a spacious Conference Center and a smaller Board Room—both of which have free Wi-Fi access, phone, and video-conferencing—available for your use. For more information, contact Vicki.Shoulders@nashvillebar.org or visit NashvilleBar. org/ReserveOurFacilities.

NASHVILLE BAR JOURNAL | JUN/JUL 2017

Economic Expert Witness For Plaintiff or Defense

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The Affinity Program EXCLUSIVE MEMBER SAVINGS ON LOCAL PRODUCTS AND SERVICES

The Affinity Program is a partnership between the NBA and local businesses that fosters a mutually beneficial relationship between the NBA, its members, and participating local businesses. In order to take advantage of these member benefits and to see individual discount information, login to NashvilleBar.org/AffinityProgram and show the business the Affinity Program members-only page.

For details on how to become an Affinity Partner, email NBA_Membership@nashvillebar.org. n

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