THE “ATTORNEY-CLIENT” PRIVILEGE: How, When (and Why) the Communications between You and Your Attorney are Protected - Part 1

The power to punish is generally the role of the criminal courts. Civil courts concern themselves with making a plaintiff "whole." In fact, it would be legal error for a civil court to impose recovery against a defendant as a form of punishment--with one notable exception. When "punitive damages" are allowed, a civil court may "punish" a defendant.

In Louisiana, punitive damages are only allowed when a statute specifically says they may be awarded. One of these statutes is La. Civil Code article 2315.4, which allows punitive damages when the plaintiff’s injuries were caused “by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.” Based upon the words used, punitive recovery for drunk driving would appear limited to recovery against the individual who was "operating a motor vehicle." However, what if the driver was intoxicated while “on the clock,” in the "course and scope" of his employment? Can his employer also be liable for punitive damages? Unfortunately, the answer to these questions is unclear and may vary depending upon where the case was filed.

The First and Third Circuits indicate that an employer should not be liable for these damages. In Darby v. Sentry Ins. Auto. Mut. Co., the First Circuit held that an employer could not be liable for punitive damages when its intoxicated employee was at fault for an accident, even when the employer was aware the employee had a history of alcohol abuse. The court reasoned that the principle of strict construction of punitive statutes prevented it from holding anyone other than the driver liable. 2007-0407 (La. App. 1 Cir. 3/23/07), 960 So. 2d 226, writ denied, 2007-0638 (La. 3/28/07), 953 So. 2d 59. Similarly, in Romero v. Clarendon Am. Ins. Co., the Third Circuit ruled that an employer could only be liable for the compensatory damages caused by its employee, to the exclusion of punitive damages. 2010-338 (La. App. 3 Cir. 12/29/10), 54 So. 3d 789, writ denied, 2011-0551 (La. 4/25/11), 62 So. 3d 96. A federal court decision from the Western District of Louisiana also supports this conclusion. See Lankford v. Nat'l Carriers Inc., 2015 WL 518736 (W.D. La. Feb. 6, 2015).

In contrast, the Fourth and Fifth Circuits have found that an employer can be liable for its intoxicated employee’s punitive damages. The Fourth Circuit, offering little commentary, found that an employer could be responsible for damages caused by its employee’s acts, including punitive damages under art. 2315.4. See Curtis v. Rome, 98-0966 (La. App. 4 Cir. 5/5/99), 735 So. 2d 822. Punitive damages were also awarded against an employer in a Fifth Circuit case, Levet v. Calais & Sons, Inc., 751 So.2d 153 (La. Ct. App. 1987). However, in Levet, the employer stipulated to liability and essentially agreed to be responsible for punitive damages.

While the Louisiana Supreme Court has not squarely addressed the issue, language from Berg v. Zummo tends to indicate that the employer may not be liable for drunk-driving punitive damages. In Berg, the Supreme Court examined art. 2315.4 to determine whether a bartender could be liable for providing an intoxicated driver with alcohol prior to the accident. In that context, the Court held that art. 2315.4 did not extend to someone who “contributed to” the intoxication because that Article “reflects the legislature’s intent to penalize only the intoxicated driver.” 2000-1699 (La. 4/25/01), 786 So. 2d 708, 718. However, the Berg Court specifically acknowledged lower court decisions that permitted such liability for employers, reserving its judgment on that issue for another day.

So, if someone asks you whether a corporation can drive drunk, the proper answer may be this: depends on who you ask.

Under the Copyright Act of 1976, copyright protection “subsists in any original work of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived or otherwise communicated, either directly or with the aid of a machine or device.”^ The Act goes on to state that works that may receive copyright protection are not limited to script or printed material but may include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”^

Throughout its history, and despite the Act’s somewhat archaic language, copyright law has proven to be adaptable enough to cover all manner of works created with new and emerging technologies. However, the traditional understanding of copyright law is being challenged by the advent of artificial intelligence (AI) and its ability to produce new creations.

The US District Court for the District of Columbia. recently ruled that works created autonomously by AI are not susceptible of copyright protection. In Thaler v. Perlmutter, Stephen Thaler appealed an administrative decision by the United States Copyright office denying his application to register the copyright for an image generated by an AI program he developed. The court’s decision examined the meaning of what it means to be an “author,” as defined by the Copyright Act and held that only works of human authorship are susceptible of copyright protection under U.S. law.*

The court compared the issue to a case from 1884 that examined whether copyright protection could extend to the then-cutting edge field of photography. In Burrow-Giles Lithographic Co. v. Sarony, it was argued that a photograph should not qualify as a protected work because it was created by a camera. The US Supreme Court disagreed and held that while a camera may generate a “mechanical reproduction” of a scene, it does so only after the photographer develops a “mental conception” of the photograph^^. The court reasoned that the technology used to create the work was immaterial so long as there was human involvement in and creative control over the work.

In a later case, the US Ninth Circuit examined a case in which a crested macaque monkey took a photograph of himself, and various parties attempted to file suit on the monkey’s behalf to confirm copyright protection for the monkey’s photograph.** While the case was decided on standing grounds, the court considered whom the Copyright Act was designed to protect and concluded that the act was designed solely to protect humans.

The Thaler court identified no authority supporting copyright protection in any work originating from a non-human.* However, the issue presented in Thaler was limited to copyright protections for a work created solely by an AI, absent any human input. Therefore, it remains to be seen how courts will address issues related to copyright protection for images that blend human and AI origins.

We stand in a new frontier in both technology and copyright law. As artists and developers increasingly use AI as a tool, the increased distance between human creativity and the final product will present challenging questions regarding how much human input is necessary to afford these creations protection under copyright law.*

References:

^17 U.S.C § 102(a)

* Thaler v. Perlmutter, No. 22-CV-01564-BAH, R. Doc. 24 (Filed 08/18/23).

^^ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884).

** Naruto v. Slater, 888 F.3d 418 (9^th Cir. 2018).

A Louisiana federal jury awarded $5 million in favor of Spoked Manufacturing in a suit against Besco Tubular. Keogh Cox Partner, Tori S. Bowling and other counsel represented Spoked Manufacturing in the case. Find out more about this decision at LAW 360.

https://www.law360.com/articles/1180212/jury-hits-besco-with-5m-verdict-in-oil-drilling-patent-case