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You’ve probably seen the barrage of commercials for the BRCA (pronounced “brack”) test for women. It tests for the BRCA gene which indicates that a woman is 3 to 7 times more likely than the rest of the population to develop breast cancer. Last week a New York federal court invalidated the patent held by Myriad Genetics for this BRCA gene. Essentially, by establishing ownership of the gene through the US Patent and Trademark Office, Myriad has successfully prevented all others from testing for this mutation in the human body since 1996. The fact that the patents were granted for genes and gene mutations in the first place is very questionable. The ACLU sued Myriad Genetics on behalf of several patients and research scientists because the company’s ownership of two gene mutations resulted in women being unable to obtain a second opinion because only Myriad could perform the test. It also prevented scientists from further studying the gene. This decision puts other patents on genes in jeopardy (the ACLU estimates that some 2000 patents are currently held by private corporations on human genes). Although it is likely that this decision will be appealed, as Myriad is making $3,500 – $4,000 a pop on the test, in my opinion equity requires that genes and gene mutations be excluded from protection so that women may receive proper testing before undergoing radical preventative surgery. Corporations have no business owning any portions of the human body for any reason.

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Disney acquired Marvel Entertainment last year for quite a chunk of change. One of the most important assets of Marvel is its superhero collection, many of which were developed by Jack Kirby who has since passed away. The heirs of Kirby sent out a notice of copyright termination under Section 304(c) of the Copyright Act to both Marvel and Disney to have the copyrights in their father’s work revert to them. The Copyright Act permits the heirs to terminate the copyrights effective 56 years after the establishment of the copyright – which apparently occurred between 1958 and 1963 when the comics were originally published. On the west coast, Kirby’s children have asked the court for a declaratory judgment acknowledging the validity of the termination notices, spelling out the profit sharing going forward on any co-owned works, the return of their father’s original artwork, and to give their father credit for the movies based on his creations (The Incredible Hulk and X-Men Origins) in the case of Kirby v. Marvel, et. al. SACV10-00289 CJC (C.D. Cal. 2010). On the east coast, in the case of Marvel v. Kirby, 2010-cv-141, (S.D. NY 2010), Marvel is suing the heirs to have the notices declared invalid. Although Marvel claims that its relationship with Jack Kirby was a “work-for-hire,” the heirs allege that Kirby worked out of his home without a written agreement. If this is true, the relationship was most definitely not a work for hire situation. A work-for-hire requires either an actual employment relationship or a written agreement transferring the ownership in works created by an independent contractor. Since Marvel could have easily disposed of both cases by presenting a copy of such a written agreement or proof of employment, one can assume that they are unable to document their position. Since I can’t imagine that Disney was unaware of the ability of Kirby’s heirs to terminate the copyright, my guess is that as a part of the $4.3 billion dollar transaction, Marvel agreed to indemnify Disney for these claims by Kirby’s heirs. (To indemnify means that Marvel will defend Disney at Marvel’s cost and be responsible for any damage award against Disney). This is why Marvel filed the suit instead of Disney. Regardless, the Kirby children have requested a jury trial. When the jury hears how much Marvel made off of Kirby’s work, someone will need to get their checkbook out. Something tells me it won’t be Disney.

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Does telling a suspect that “You have the right to talk to a lawyer before answering any of our questions” and “You have the right to use any of these rights at any time you want during this interview” mean the same thing as “You have the right to an attorney during questioning?”

In the case of Florida v. Powell decided February 23, 2010, the U.S. Supreme Court reversed the Florida Supreme Court’s holding that the statements made by the police were misleading because they seemed to imply that the suspect only had a right to an attorney prior to the interrogation.  The case of Miranda v. Arizona (1966) requires that a suspect must be clearly warned prior to any questioning that he has the right to consult with a lawyer and to have the lawyer present with him during interrogation.

The Supreme Court stated that the exact warning given did satisfy the requirements in Miranda. The Court declined to prescribe any exact phraseology. What are your thoughts? Do you believe the statement “You have the right to use any of the rights at any time you want during this interview” is clear enough to inform a suspect that he or she can have an attorney present during an interrogation? Why or why not?

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In Salazar v. Buono, 08-472 (Supreme Court 2008 – not yet decided) the lower court held that the presence of a Christian cross located on land owned by the federal government was an unconstitutional endorsement of religion. The original cross had been erected in 1934 by the Veterans of Foreign Wars in remembrance of those who died. The original case was brought by a former National Park Service employee who felt that displaying the cross on public lands without other religions represented was offensive. In an attempt to get around the Establishment clause issue, Congress declared the cross a national monument and then attempted to exchange the parcel on which it was located for another so that the memorial would not be located on federal property. The lower court disallowed this as well.

Unlike Citizens United (see previous post) where the Supreme Court took a very limited issue and expanded it beyond recognition, in Salazar, the Supreme Court reduced this potentially far-reaching decision and limited their questioning on oral argument to whether the government had the right to exchange the parcel to allow the cross to stay where it was.

While Scalia suggested that the cross was a war memorial, and Alito implied that the Congress’ actions had solved the Establishment Clause issue, the rest of the Justices seemed focused on whether Congress even had the right to exchange the parcels under these circumstances. Had Souter remained on the court, it is likely he would have objected to the war memorial as being a religious symbol. It will be interesting to read the decision when it comes out and see what Sotomayor has to say, if anything.

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Copyright 2009 Kimberly A. Houser

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