Memphis Bar Association
Memphis Lawyer Magazine - Volume 28, Issue 4 - Sept/Oct 2011

How Good People End Up Doing Bad Things: What Attorneys Can Learn From the Tuskegee Syphilis Study

by Anne Fritz, Executive Director, Memphis Bar Association

Dr. James H. Jones, the Alumni Distinguished Professor, Emeritus, at the University of Arkansas, captivated a standing-room-only crowd at the Bench Bar Conference with his presentation on the Tuskegee Syphilis Study. Dr. Jones is the author of Bad Blood: The Tuskegee Syphilis Experiment, A Tragedy of Race and Medicine, which was selected as one of the 12 “Best Books” published in 1981 by the Book Review Editors of The New York Times. In 1997, Dr. Jones published Alfred C. Kinsey: A Private/Public Life, which was a runner-up for the Pulitzer Prize in biography and a finalist for the Penn Award.

The Tuskegee Syphilis Study was conducted by the U.S. Department of Public Health in conjunction with Alabama state and local authorities. It began in 1932 and ended in 1972, becoming the longest non-therapeutic experiment in medical history. The study’s purpose was to find out what would happen if syphilis was left untreated in African-American men. Of the 400 men in the experiment, more than 100 died as a direct result of the disease.

While the study sounds like something that would have happened in Nazi Germany, the initial rationale behind it was to show that syphilis had serious consequences and should be treated in the African-American population. At the beginning of the 20th century, the prevailing medical view was that nothing could be done about syphilis in the African-American community. Common beliefs were that all black men had syphilis; syphilis didn’t have that much effect on black men; and black men were too stupid to stay on treatment. Some Southern physicians thought the disease held the key to the elimination of the “racial problem” because blacks would die of it.

Into this overtly racist atmosphere comes Taliaferro Clark, head of the U.S. Department of Public Health during the Progressive Era. He believed that any group could be treated by science and was part of the first generation of physicians and public health officials who wanted to do something about disease in the African-American population in the South. The men selected for the study were told that they were going to be treated for “bad blood”, not syphilis specifically; the experiment thus was built on a big lie. The study was not clandestine – there were 14 major articles on it in The Journal of the American Medical Association – but was kept primarily within the medical community. Even after the introduction of penicillin in the 1940s and the burgeoning civil rights movement in the late 1950s, the men in the study were not offered treatment.

Peter Buxton, who worked for the Public Health Service in the 1960s, began to question the ethics of the study, stating “I know a moral problem when I see it.” His efforts initially didn’t bear fruit. In 1969, a committee reviewing the study decides that to honor those who have died, the experiment needs to be continued, but done better! Buxton goes to law school where he learns about torts from Prof. Prosser (yes, that Prof. Prosser!) He’s also dating a bureau chief for AP who publicizes the story. The publicity brings a halt to the experiment and later, Fred Gray, an Alabama attorney, brought a class action lawsuit against those who conducted the study.

So what lessons can attorneys learn from this fascinating story of an experiment conducted by “good men” who wanted to help African-American men, but which turned into a moral lapse of the highest order? Prof. Jones offered several observations:

  1. Trust is key. The study, begun and perpetrated by lies, shattered trust in the African-American community. When the HIV/AIDS virus struck the African-American community in the 1980s, many believed that it was a “conspiracy theory” due to the legacy of Tuskegee.
  2. Those in positions of power at the U.S. Department of Health had all been involved in the study. There was no one with “fresh eyes” to ask what was going on. Everyone had been co-opted.
  3. Those involved in the study saw their motives as self-validating. They had “good intentions” so the study must be all right!
  4. This was a classic case of inertia; there was nothing and no one to stop the experiment. It was cheap to run and those involved in it had the same mindset.

The Tuskegee study was a watershed event in biomedical ethics. If any good came from it, it was that it forced the medical community to make institutional changes about how studies are conducted so future participants would be fully informed and protected.

 

Memphis Lawyer Magazine - Volume 28, Issue 4 - Sept/Oct 2011

Silver Screen Contra Black Letter Law: A Memphis Attorney Uses Hollywood Films to Educate Audiences about Intellectual Property Rights

by B. Tyler Brooks1
William S. Parks
   

The entertainment industry cares deeply about intellectual property protections.2   Hollywood films, however, are not known for being scrupulously accurate in depicting the law—or any other subject for that matter. So, what happens when filmmakers incorporate issues of intellectual property law into the plots of their movies? Memphis attorney William S. (“Bill”) Parks stands ready to provide an answer and in the process educate audiences about copyrights, trademarks, and patents.

Parks, a member at Wyatt, Tarrant & Combs, LLP, is the founding chair of the Memphis Bar Association’s Intellectual Property and Entertainment Law Section. After graduating with a B.S. in chemistry from Rhodes College, he moved to Northern Virginia to work as a patent examiner with the Patent & Trademark Office (PTO), during which time he sat for and passed the patent bar exam. After leaving his position with the PTO, Parks obtained his law degree from The John Marshall Law School in Chicago and worked for ten years as in-house intellectual property counsel for companies in South Carolina and Maryland. In 2007, Parks returned to Memphis and joined a law firm, where he expanded his practice and began representing a variety of inventors and companies in obtaining intellectual property protections.

In a CLE developed for the MBA’s Bench Bar Conference, Parks cleverly utilizes clips from popular films to illustrate important points about intellectual property law. For example, in the well-known comedy Coming to America3, Eddie Murphy plays an African prince who travels to New York to find a bride. Murphy obtains employment at a fast food restaurant named McDowell’s. McDowell’s is, in all material respects, an imitation of McDonald’s. A character in the film asserts that McDowell’s actions are permissible because, unlike McDonald’s, its buns do not have sesame seeds. Parks explains that the restaurant depicted in the movie is a clear rip off of McDonald’s. An establishment that tried the same business strategy in real life could expect a lawsuit from McDonald’s for trademark infringement, and—because the entire look and feel of the McDowell’s restaurant imitates that of a McDonald’s—it could also be sued for trade dress infringement.4 Additionally, Parks notes that a defendant whose actions lessen the uniqueness of a trademark may be liable for trademark dilution even in the absence of actual infringement.5

Parks questions whether the treatment of the infringement issues in Coming to America has created public confusion as to what practices are acceptable in the area of trademarks. By pointing out such errors, Parks uses films as a tool for introducing and discussing these topics. “Being a popular medium for mass consumption of ideas and situations, many folks put great credence in everything Hollywood presents on the silver screen; the ability to replay scenes with concurrent discussions aids in pointing out the correctness and/or the deficiencies of motion pictures in that respect,” he observes. Parks, for instance, explains how to properly provide inventor information on a patent application by reference to Steve Martin’s The Jerk6 —a 1979 rags-to-riches comedy about a dolt who invents a new device for eyeglasses.

Sometimes, Parks says, Hollywood deserves credit for getting aspects of the law right. One such example is the 2008 release Flash of Genius.7   Although the filmmakers took some artistic liberties, the plot is based on an actual patent action brought in the 1960s by a small inventor against Ford and others in the automobile industry. Parks explains that much of the law presented in the film is correct—or at least was correct for the time period in which it is set. He hastens to add, though, that the legal standard for patentability applied in Flash of Genius no longer represents governing law.8

Parks is always looking for films that will provide an interesting starting point for the discussion of IP law. Commenting on the importance of intellectual property rights, he remarks, “Innovation is the driving economic force in the world today, for the most part, and all businesses large and small need to know that intellectual property protections are available to further entrepreneurial work and benefit those that create and invent in the marketplace. Without such protections, investors may not take risks on the next great product.” He intends for the MBA’s new section on intellectual property law to provide a forum for more serious exchanges of ideas about these issues. He also hopes it will serve as a resource for members of the legal and business communities to understand the protections available to entrepreneurs.

Parks recently reprised his Bench Bar presentation at the U.S. District Court in Memphis for a group of law clerks and summer interns. He hopes to present to other groups in the future. And so, is it legal to use footage from copyright-protected works to teach about infringement? Parks says not to worry—it’s all fair use.9

 

FOOTNOTES:

1  B. Tyler Brooks, a graduate of Wake Forest University and Vanderbilt University Law School, recently completed a clerkship with U.S. District Judge Bernice B. Donald. Previously, he clerked for Judge Walter C. Kurtz, first in his capacity as Judge of the Fifth Circuit Court for Davidson County and then in his position as a Senior Judge for the State of Tennessee. Brooks now practices in Raleigh, NC, with the firm of Millberg Gordon Stewart, PLLC.

2  See, e.g., Reinhardt Krause, Will Trade Pact Satisfy Hollywood, ISPs? Goal is to Protect Copyrights, INVESTOR’S BUSINESS DAILY, Sept. 9, 2010, at A4; Ariana Eunjung Cha, Determining the Life of Corporate Copyrights; Supreme Court to Hear Case on Extensions, WASH. POST, July 4, 2002, at E6 (“The Sonny Bono Copyright Term Extension Act was passed in 1998 after some aggressive lobbying by large media conglomerates . . . . The case [of Eldred v. Ashcroft] pits several mom-and-pop Web site operators and publishers against the biggest names in Hollywood.”).

3   COMING TO AMERICA (Paramount Pictures 1988).

4  See Moseley v. V Secret Catalogue, 537 U.S. 418 (2003).

5  See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).

6  THE JERK (Universal Pictures 1979).

7  FLASH OF GENIUS (Spyglass Entertainment 2008).

8  Compare KSR v. Teleflex, 550 U.S. 398 (2007) with Graham v. Deere, 383 U.S. 1 (1966). Additionally, the film’s title came from an even earlier standard for patentability that Congress removed from the law by statute in 1952. See 35 U.S.C. § 103(a).

9  See 17 U.S.C. § 107 (codification of Fair Use Doctrine).

 


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