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Taylor Swift and Lizzo are two shining stars occupying different spaces in the pop stratosphere, but they share the dubious distinction of being recently embroiled in legal spats over the allegedly unauthorized exploitation of short literary works written by other authors.

Never before have short literary works held so much value, importance, and cachet. The ability to express one’s self in a creative but pithy fashion drives online content creation, and public opinion now exalts tweets over long-form journalism.

So, in an age where tweets and Instagram captions reign supreme over most other forms of literature, it is in no way surprising that legal disputes have started to bubble up over the purloining of short written works.

But jurisprudence addressing such works has always been more Keats than tweets, with courts assessing poems and other works that while “short” are still pages or stanzas long. Only now, when literary works are shrinking to match the attention spans of this age, have courts begun to more carefully consider the creativity — and protectability — of pithy passages. Two recent cases, one in litigation and one settled, have thrust this issue into the public spotlight.

The first, and more developed, case involves T. Swift and can be summed up by the adage that “judges gon’ judge,” even when doing so improperly introduces the artistic sensibilities of the jurist into the legal process. While it has long been the rule that judges considering art and music copyright issues should consider only applicable legal doctrines and not whether a particular song is a bop, Swift’s case finds an appellate court again chastising a district court for letting its artistic sensibilities drive its decision.

Sean Hall and Nathan Butler had alleged that Taylor Swift’s “Shake it Off” copied without consent “a six-word phrase and a four-part lyrical sequence from their Playas Gon’ Play,” as the Ninth Circuit describes the dispute. The plaintiffs had written the song “Playas Gon’ Play” for the group 3 Little Women, more commonly known as 3LW. While they are now largely forgotten, 3LW was a major pop force at or around the turn of the century. In fact, the Playas Gon’ Play album, released in 2001, was certified platinum after selling more than a million copies.

The district court was unmoved by Hall and Butler’s claims, writing that the section that was allegedly copied was “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.” On that basis, the case was discarded, at least for a brief moment, into the rubbish can of history

The Ninth Circuit, though, only a couple of weeks after hearing oral argument on the issue, axed the district court’s order, holding that Hall and Butler’s complaint plausibly alleged originality. The Circuit also reiterated that originality is normally a question of fact and drops a classic Bleistein bomb on the district court. In 1903’s Bleistein v. Donaldson Lithographing Co. decision, the Supremes’ instructed that a legal education does not an art critic make, and that jurists should stay in their lane when deciding cases involved art, confining their analysis to legal questions and not those sounding in art criticism.

In the ruling, Judge Oliver Wendell Holmes, Jr. wrote compellingly (and, somewhat ironically, with great artistic flair) that:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke…. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge…. [A]nd the taste of any public is not to be treated with contempt.

Here, the district court flexed too much artistic judgment in deciding that the plaintiffs’ work lacked creative merit. While it is axiomatic that copyright protects a given expression of an idea, not the idea itself, and 37 C.F.R. § 202.1(a) holds that “words [or] short phrases such as names, titles and slogans” are not copyrightable, in applying those doctrines, the district court strayed into adjudging the artistry of the literary work at issue.

The issue is not a simple one, as there is no bright-line rule defining the number of words that an author must employ to qualify a short literary work for copyright protection. And the issue is complicated further by the fact that certain works are revered and considered particularly creative because of the fact that they express a feeling in a minimum number of words. Consider Billy Shakes, who wrote, “A rose by any other name would smell as sweet” — an expression of an idea that is beautiful, creative, and less than 10 short words long. Even Hemingway, that gruff old bear, extolled the virtues of brevity, noting that a work’s value can be judged not by the words used but those left out. We will look more closely at what was left out of the works at issue in the Swift and Lizzo cases when we reconvene.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

The price of basic commodities–such as food and fuel–have risen steeply, while the drought, increases in input prices and delayed availability of inputs are impacting farmers’ capacity to prepare for the upcoming maize planting season. Rolling power cuts of up to 18 hours per day are affecting the productive sector nationwide and further reducing employment opportunities.

From October 2019, nearly 38 per cent of the rural population–nearly 3.6 million people–will face severe food insecurity (IPC phase 3 and above). At least 1.1 million of them are already in emergency levels of food insecurity (IPC 4), according to the Integrated Food Security Phase Classification. In addition, a further 2.2 million people in urban zones nationwide are cereal food insecure and require immediate support, according to the latest information available. Rates of acute malnutrition are rising and the risk of communicable diseases is heightened as the rainy season approaches, including due to lack of access to potable water. There have already been 5,800 cases of typhoid recorded in 2019. The country is also dealing with shortages of essential medicines and strikes in the public sector, hampering people’s access to vital services, including health and education.

Escalating humanitarian needs are forcing families to adopt negative coping mechanisms, increasing the protection risks faced by women and children in particular. Nearly 841,000 Zimbabwean women and girls require some form of protection from gender-based violence in its various forms: sexual, physical, emotional, intimate partner violence, sexual exploitation and abuse. Education has been negatively impacted, with reports of school dropouts due to the deteriorating situation, as children are forced to seek food and jobs to support their families. Some 171 families who lost their homes due to Cyclone Idai are still living in camps and in need of assistance.

Post published in: Featured

African Parks in partnership with the Zimbabwe Parks and Wildlife Management Authority will implement management strategies to secure the park and restore wildlife populations, unlocking its ecological, social and economic value enabling communities to derive long-term benefits.

“Zimbabwe is among the world’s richest nations in natural resources and wildlife. These are assets which have drawn millions of visitors annually and form a vital base for our economy,” said Mr. Fulton Mangwanya, Director-General of the Zimbabwe Parks and Wildlife Management Authority. “Our public-private partnership with African Parks to restore Matusadonha helps to leverage conservation further as a sustainable mechanism for growth, promoting a tourism economy to benefit people while ensuring the protection of Zimbabwe’s wildlife.”

Matusadonha is an ecologically diverse landscape, with 700-metre-high hills descending to its northern boundary on the shores of Lake Kariba. The park harbours more than 240 bird species, baobab woodlands and wildlife including elephant, lion and buffalo. However, decades of poaching coupled with inadequate resourcing contributed to its decline.

“We are proud to be partnering with the Government of Zimbabwe for the first time to develop the potential of one of its most exceptional national parks,” said Peter Fearnhead, CEO of African Parks. “Zimbabwe has a strong history of conservation excellence, and our shared ambition is to ensure that Matusadonha is revitalised as one of southern Africa’s leading protected areas.”

Together the Zimbabwe Government and African Parks will fully restore the park, implementing good infrastructure, law enforcement, conservation and community development programmes, and will boost tourism enabling communities to derive long-term benefits. Once a stronghold for black rhino, the park will be secured and reestablished as a sanctuary for these critically endangered animals and other key species.

Matusadonha National Park is the first protected area in Zimbabwe to come under the management of African Parks, a new milestone which expands their portfolio to 16 protected areas, covering almost 11 million hectares across 10 countries. The Wyss Foundation, Oak Foundation and Stichting Natura Africae are strategic partners of African Parks and are contributing part of the operational support for Matusadonha’s management.

Post published in: Environment

People mean a lot of different things when they say “criminal justice reform.” Some people are talking about “prison” reform; some people are talking about “police” reform; you could be talking about the courts, or innocence, or really any host of things.

Some of those criminal justice issues break down along traditional left/right lines. But when it comes to overincarceration, it really does feel like we are nearing some kind of bipartisan consensus.

President Barack Obama got the ball rolling: He ended up commuting or granting clemency to over 1,700 prisoners during his terms in office, the most commutations in American history. Most of these commutations were of low-level drug offenders sentenced under outdated mandatory minimums.

Shockingly, Donald Trump continued the push, enacting the First Step Act. I’d rather give Kim Kardashian the credit for this, but hey, Trump signed it. That makes one Republican president and one Democratic one doing something about overincarceration in the last few years.

Ideologically, there’s always been an opportunity for the left and right to agree on this issue. Draconian sentencing for non-violent offenders is an issue that both ACLU-style civil libertarians and Ayn Rand-style civil libertarians care about.

That alliance seems now to be filtering down to the states. Oklahoma, which has the highest percentage of incarceration of any state in the Union, commuted the sentences of hundreds of people this week. From NBC News:

The Oklahoma Pardon and Parole Board approved the commutations Friday and forwarded them to Gov. Kevin Stitt, a former mortgage company CEO who was elected in 2018. The board voted unanimously to recommend that the sentences of 527 state inmates be commuted, with 462 of those inmates slated to walk out of prison Monday and 65 others being held on detainer.

“With this vote, we are fulfilling the will of Oklahomans,” Steve Bickley, executive director of the board, said in a statement Friday. “However, from Day One, the goal of this project has been more than just the release of low-level, nonviolent offenders, but the successful re-entry of these individuals back into society.”

Stitt, a Republican, has advocated for criminal justice reform, pledging to move away from policies that have made Oklahoma the state with the highest incarceration rate in the country. At a news conference Friday, Stitt hailed the decision to give hundreds of Oklahomans “a second chance.”

The move marked the largest mass commutations in U.S. history.

I tend not to praise bipartisanship for bipartisanship’s sake. I see no great virtue in “working across the aisle” when the Republican side has abandoned facts and reason in favor of craven, bigoted, or sexist positions.

But, here, the bipartisanship is an unqualified good. This is the example of the Republican party working as a partner in government as opposed to abdicating its responsibilities. The fight against overincarceration is strengthened if you have Republicans willing to at least acknowledge the problem and operate from the same base of facts as the rest of us.

More like this, please.

Hundreds of Oklahoma inmates being released Monday in largest commutation in U.S. history [NBC News]

Zimbabwe’s month-on-month inflation stood at 17.7% in September 2019 while year-on-year inflation, which is no longer officially published, is estimated to have reached 353% in the same month.

At the last official count, year-on-year inflation stood at 175.6%, before Finance and Economic Development Minister Mthuli Ncube banned publication of annual inflation figures saying they were not a true reflection of prices on the ground.

The Zimbabwean government abandoned the currency peg of the local currency to the US dollar, a move that has seen the Zimbabwean dollar lose 85% of its value in 9 months.

Retailers and service providers are however resisting the move away from the multi-currency system and when they are not charging in US dollars, they are pegging their prices at the unofficial, going exchange rate.

As prices continue to skyrocket, government workers recently gave notice to go on strike.

In a statement issued on Tuesday and signed by the public sector union Apex Council chairperson, Cecilia Alexander and organising secretary Charles Chinosengwa, the union said government had “brought nothing” to a “fruitless” meeting between the two parties earlier in the day.

“The employer brought nothing on the table. It was a zero offer, zero cushion and no interbank rate being applied. To add insult to injury, government has gone back on its earlier offer to pay all bonuses in November, confirming instead that they will pay over two months, meaning some civil servants will get inflation blighted bonuses,” according to the statement.

During a post cabinet briefing held on Tuesday, Information Minister, Monica Mutsvangwa said government does not dispute the need to give a cost-of-living adjustment to workers but it was faced with various competing national demands which include payment of annual bonuses that will take a significant portion of resources.

In addition, said Mutsvangwa, government is putting measures to “contain loss of the workers purchasing power and request worker representatives to provide three nominees to attend a Tripartite Negotiating Forum Technical Committee workshop.”

“The workshop is aimed at coming up with a Social Contract that is aimed at bringing the parties to a common position.

“This may result in the freeze of incomes and prices,” said Minister Mutsvangwa.

Post published in: Business

When attorneys at larger law firms work on legal matters, there is much rigidity in how they approach the representation. For instance, the bigger the firm, the larger the fees that are charged, and there is oftentimes less flexibility with fee arrangements at bigger shops. In addition, since larger firms usually assign associates to work on many of the tasks involved with a matter, there may be some separation between clients and the attorneys working on legal matters at bigger firms. On the other hand, attorneys who work at smaller shops are much more flexible with how they can structure a representation, and this can psyche out adversaries who aren’t used to doing business this way.

I have worked at firms of all sizes throughout my career, and I opened my own shop in March. I partnered up with my brother a few months ago, but I’m still basically able to call all of the shots related to the matters I handle. This includes not only legal strategies and the legal work completed on my matters, but all of the administrative issues that involve my clients as well. I have much flexibility about how to structure fee arrangements, how much work to devote to a matter, and pretty much everything about how our firm provides legal representation. This flexibility can be used to great effect when negotiating settlements and dealing with adversaries.

For instance, shortly after starting my firm, I represented a client who I had known for years. I knew that extended litigation would not benefit any of the parties, since many smaller disputes are best resolved without running the meter on attorneys’ fees. For many matters, the only people who benefit from extended litigation are the lawyers who can run up their legal bills.

My adversary tried to use the threat of legal fees to his advantage when negotiating a settlement. He asserted that since my client was a smaller fish than his, my client would be hurt more by paying the additional legal fees that came with extended litigation. The threat of legal fees piling up is a common tactic used to convince lawyers and their clients that it is better to settle now than extensively litigate a case.

However, I told my adversary that I had complete control of the amount of legal fees charged in a matter, and I could agree to any fee arrangement with my client. Indeed, this client was very close to me, and if I wanted to, I could propose a fee cap, a flat fee arrangement, or otherwise make it practical for my client to go the distance in the litigation. My adversary was extremely freaked out by this proposition, since I was breaking the cardinal rule of litigation that more time spent litigating a case meant more legal costs and hardship. We ended up settling the matter on pretty favorable terms for my client shortly thereafter, and my flexibility with fee arrangements took some of the wind out of my adversary’s sails.

Of course, every attorney has to earn a living, and I’m not suggesting that attorneys do work pro bono to get an edge over their adversaries. However, attorneys who work at smaller firms have the flexibility to structure fee arrangements to make it easier for their clients to go the distance in litigation. This can really psyche out adversaries who are charging hourly rates to their own clients.

Recently, I had another matter where small-firm flexibility helped me counter the threats made by an adversary. While engaging in settlement discussions, my adversary kept talking about the trial in the action and what types of evidence he hoped to introduce at trial. My adversary told me about all of the trial experience he had, and suggested that if this case went to trial, not only would he win, but my client would have to spend significant amounts of money on attorneys’ fees and costs. This attorney was evidently trying to scare me about taking the case to trial, since he rightly assumed that I had less trial experience than him.

However, I told my adversary that I would be thrilled if the case went to trial, since it would be a great learning experience. I even told my adversary that he could “take me to school” during trial, and maybe he could show me a few things that could be useful to me in future trials. I said offhand that maybe I would do the trial for a capped rate just for the experience, and since I was running my own shop, I had the flexibility to make such a statement. My adversary seemed freaked out by my statements, and backed off his aggressive position immediately. By using small-firm flexibility, I was able to psyche out my adversary by breaking another cardinal rule of litigation that trials are costly and should be avoided whenever necessary.

In the end, larger law firms are often rigid with how they structure representations, since they are usually limited in the fee arrangements they offer and how they approach legal services. However, the flexibility available at smaller law firms can often make the difference in resolving a case in a client’s favor.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

* Roger Stone left early from his trial yesterday because he complained of food poisoning. At least this is better than R. Kelly’s infected toenail excuse… [CNN]

* An attorney alleged to have smuggled a hit list out of jail has been denied the reinstatement of her law license. [East Bay Times]

* Attorneys for Theranos founder Elizabeth Holmes have filed a motion to withdraw from the case, stating that they haven’t been paid for more than a year. Holmes has come a long way from paying numerous attorneys hefty fees to go after Theranos whistleblowers. [CNBC]

* The Prime Minister of Antigua and Barbuda has asked that Harvard Law make reparations to that country for the impact Antiguan slave labor had on the creation of Harvard Law School. [Toronto Star]

* A celebrated cellist has won $11M in a slip and fall lawsuit against an upscale food market. That’s a lot of cheddar. [New York Post]

* Kentucky elected its first African American attorney general last night. [The Hill]

* The Supreme Court yesterday seemed to frown upon North Carolina’s use of copyrighted images of a pirate ship that sunk off its shores. If you want to see good images of a pirate ship, there’s a ride you should check out… [USA Today]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Poor facilities threaten the push up the maternal mortality rate in Zimbabwe, which is already high at an estimated 651 deaths per 100,000 live births [Farai Shawn Matiashe/Al Jazeera]

Harare, Zimbabwe – In September, Mitchell Matarause delivered her baby boy by candlelight at a clinic in Harare, Zimbabwe’s capital.

It was after sunset and the electricity supply had been cut.

“Midwives were using candles and torches for lighting,” said the 26 year old, holding her second-born. “I delivered in the evening, there was no electricity.

“There was a candle on the table. I heard the midwives say that they could not see properly, so they had to use torches as additional light sources. As one midwife assisted me, the others held the torches.

“I was just praying I deliver well, without complications. I feared the worst and sighed with relief when it was over.”

High-quality maternal healthcare is difficult to access and provide in Zimbabwe, a country struggling with regular power outages – sophisticated equipment relies on electricity.

Women across the country have reported similar experiences to Matarause, relying on a small flame or a cellphone to provide enough light to give birth safely during power blackouts.

Earlier this year, the state-owned Zimbabwe Electricity Supply Authority (Zesa) introduced 18-hour load shedding after reducing electricity generation due to low water levels in Lake Kariba, its main source of power.

While the power is not switched off at large referral hospitals in Harare, such as Harare Central Hospital and Parirenyatwa Hospital, it is cut at most facilities in residential suburbs and rural areas. 

A midwife at Mufakose Polyclinic, where Matarause welcomed her child, said the team usually asks pregnant mothers to provide their own lighting.

“[We] ask them to bring bulbs with batteries as it is difficult to see when using candle lights,” she told Al Jazeera.

Most women in Zimbabwe deliver at state-run hospitals, which charge a small fee, about 200 Zimbabwean dollars, that goes towards basic equipment.

The cost of giving birth at private hospitals is about 5,000 Zimbabwean dollars, a sum that is out of reach for most – civil servants earn just 500 Zimbabwean dollars on average each month.

Because of power outages, some hospitals purchase fuel at cost price from service stations for generators [Farai Shawn Matiashe/Al Jazeera]

Power blackouts threaten to worsen maternal mortality rates, which the Zimbabwe Demographic and Health Survey estimates at 651 deaths per 100,000 live births.

According to UNICEF, two regions, sub-Saharan Africa and South Asia, account for 86 percent of maternal deaths worldwide.

The United Nations Population Fund describes Zimbabwe’s rate as “unacceptably high”, even as the last five to 10 years show a decline.

Some hospitals and clinics, including private facilities, use fuel generators, but this option is out of reach for many – diesel and petrol are expensive with a 300-percent inflation rate as of August 2019, according to the IMF.

The fuel price is determined by the Zimbabwean dollar and US dollar interbank exchange rate.

At the time of writing, petrol was trading at around 16.6 Zimbabwean dollars a litre, while diesel was up at 17.43 Zimbabwean dollars.

At Chiredzi Hospital, a government-run facility almost 500km southeast of Harare, when authorities fail to purchase fuel for generators, midwives do whatever it takes to save lives.

“Hospitals need to provide comprehensive obstetric [and newborn care], among other things such as responding to emergencies and doing surgery. 

“That’s where the power issues come in. With the current cost of diesel to run generators, the situation is dire,” said Chiredzi district acting medical officer, Dr David Tarumbwa.

“We buy fuel straight from service stations at cost price, no subsidies. It’s not sustainable. You can’t run a generator for 12 hours daily. The next thing is, it breaks down.”

When they do not have generators, the doctors and nurses “explore whatever options will be available”.

Emmanuel Mahlangu, president of the Zimbabwe Confederation of Midwives, explained: “It is important to differentiate between normal pregnancy and childbirth with complicated pregnancy and childbirth. Eighty-seven percent of pregnancies and childbirths are normal.

“A normal childbirth occurring during the day may actually go through without much use of electricity. However, if it were to occur in the night, the priority is lighting. 

“A complicated delivery may require electricity for resuscitation of the baby, warmth from radiant heaters, lights and operative delivery.”

Against this backdrop, new technology that does not rely on fuel is being tried out.

Solar panels have been installed at several health facilities across the country in an attempt to overcome the negative impact of power shortages [Farai Shawn Matiashe/Al Jazeera]

We Care Solar, a California-based NGO, and the United Nations Development Programme (UNDP) are working with the government to install solar power systems in clinics and hospitals nationwide. 

We Care Solar has struck a partnership with local NGO ZimEnergy Eco Foundation, providing compact rugged solar electric systems called solar suitcases.

Designed in 2010, these “suitcases” provide bright lights and foetal heart monitoring.

More than 4,000 health centres in Africa and Asia have been equipped with this technology. 

Since 2016, We Care Solar has supported 136 maternal health facilities with reliable lighting and electricity in Zimbabwe, in the provinces of Matabeleland South, Mashonaland East and Masvingo, and aims to extend its project to other clinics across the country. 

“Before year-end, we aim to officially launch the Light Every Birth campaign in collaboration with the health ministry,” said We Care Solar Zimbabwe programme manager Shamiso Moyo. “We aim to install the solar system at a total of 1,000 clinics.”

UNDP also partnered with the health ministry on a Solar For Health Project and installed solar systems at 405 institutions across the country to ensure uninterrupted power, including at maternity wards.

“They are now primarily running on solar and only using the mains electricity grid as backup. The systems vary in capacity, depending on the size of the medical facility. Smaller clinics are now running on 5kW or 7kW, while larger clinics and district hospitals run on 10kW, 15kW or even 40kW systems,” said UNDP Zimbabwe resident representative Georges van Montfort.

He hoped that eventually, no woman would ever have to deliver by candlelight again.

As the rest of the country waits, however, Mahlangu said that while the use of candle and cellphone lights during delivery is not recommended, midwives will continue to use whatever means they have to offer women support during their critical hours in labour.

“Midwives cannot leave a woman unattended because of lack of electricity,” he said, “and childbirth will not stop because there is no electricity.”