United States: Ten Questions To A Media Lawyer

Last Updated: May 2 2017
Article by Rick Kurnit

This article originally appeared in the March 2017 edition of the MLRC MediaLawLetter. More information here http://www.medialaw.org/

How'd you get into media law? What was your first job?

My father was a prominent "mad man" in the 60's and owner of an ad agency that was known for its outlandish and creative work. The agency created weekly ads that appeared in the Sunday Times Magazine for Talon Zippers (making a generic product into a brand). One Sunday the ad was a picture of the Statue of Liberty with a talon zipper down her back and the headline: "American women do'nt know what is going on behind their backs". It produced an outraged response from the Daughters of the American Revolution. I learned the glory of the First Amendment (as well as some copyright law) as a nine-year-old, and I resolved to become a First Amendment lawyer.

My first real job (dishwasher at a summer camp does not really count) was as a door-to-door encyclopaedia salesman. Following my arrest on the third day on the job, for peddling without a permit, my second job was working in ad agency. Knowing I would someday be a media lawyer, I paid particular attention to the rampant copyright infringement that is standard operating procedure in an ad agency, and I was fascinated by the creative process. Realizing that I had neither the talent nor inclination to compete with my famous father, I concluded that a legal career, helping the creative talents to accomplish their visions, was the way to go.

In law school, I pursued intellectual property and First Amendment courses, Paul Freund's Seminar on the First Amendment, and wrote a Note on "Enforcing the forgotten half of the

Fairness Doctrine", which I am pretty sure is the last attempt to save the obligation of the media to present accurate information on issues of public importance.

After clerking in the Southern District, it was possible to choose among the best law firms (who were all interested in bringing on former law clerks), so I was able to work a deal with Paul Weiss that I would be assigned to handling litigation for The New York Post. It turned out to be a great deal of defending libel claims by reputed mobsters who would sue every time the paper identified them, but never pursue their claims. I mastered the motion to dismiss for failure to prosecute, but after several months, I lost the client. Paul Weiss did not blame me -- someone from Australia purchased the paper from Paul Weiss' client and changed law firms. After that, I had first call on media litigation. Paul Weiss represented Warner Communications, so there was no shortage, and when Lew Kaplan (now Judge Kaplan) was allowed as an associate to take on the defense of a libel claim, I was offered the opportunity of a lifetime to work with him as the only associate assistance.

In addition, I sought refuge in representing the ad agency client that Paul Weiss represented, to fill out my time and avoid subject matter that was not media related. On my first visit to the agency, to defend the deposition of the agency in a copyright case , I was introduced to the owner. I will never forget his first words to me: "I just want you to know that, as far as I am concerned, if the lawyers are uncomfortable with it, it must be a good ad." I responded: " I am the son of a creative director, so I already know that I don't get to judge the creative. I'll tell you how uncomfortable I am, and you'll tell me how good an ad it is." He shot back: "Who's your father?" When I responded, Shep Kurnit, he smiled. My father was the inspiration for his own claim to fame: turning a generic product into a brand: Perdue chickens. After that, any time he got flak for something outrageous he wanted to do, he would say, "Get me Kurnit's kid," and I became the lead lawyer handling the day-to-day work for the agency.

And so I joined Frankfurt Garbus Klein & Selz, a law firm with a small advertising practice, that needed a publishing lawyer to handle its newly acquired client, Viking Press. (In the karma of all things, Viking Press had just been acquired by a British company which decided to change law firm). The client came with a number of legal issues and a recent setback in a case of libel by fiction, Springer v. V iking, which I appealed to the First Department and then to the

New York Court of Appeals, establishing the law in New York protecting authors of fiction from libel claims and resulting in further success in dismissing subsequent claims against Nelson Demille and Terry Mcmillan, among others. In addition, Viking was the recipient of many libel claims from distinguished plaintiffs, such a Judge Dominic Rinaldi, and Governor William Janklow of South Dakota and the FBI over Peter Matthiessen's book "In the Spirit of Crazy Horse." Through representing Viking I had the opportunity to become involved in the MLRC.

What do you like most about your job? What do you like least?

The ability to assist authors and creative people to create content and communications that they envision. The constant changes in the media business models and the technology and the problems they pose in applying intellectual property law to new and different media mean that the problems we address are always new and different. The negative is the inefficiency and cost of litigation.

What's the biggest blunder you've committed on the job?

When I tried to convince five judges in the Appellate Division that a New York Supreme Court Justice was libel proof. In my defense, I did limit it the circumstance of the republication of the same charge of corruption by the same author who made the charge repeatedly over many years, including in the same book that was now being relitigated as technically not within the single publication rule (Rinaldi v. Viking Press).

Highest court you've argued in or most high profile case?

That's hard to define. In addition to Springer v. Viking in the New York Court of Appeals mentioned above, I argued on behalf of John Deere the scope of trademark infringement in comparative advertising in the Second Circuit. I also argued the scope of the parody defense to a copyright claim on behalf of "Gone With the Wind" in the Eleventh Circuit.

But the case of Jackie Onassis against a look alike in an ad, which I argued in the Appellate Division First Department (on behalf of the look alike), may be the most notorious – at least until the movie Wolf of Wall Street brought back memories of Stratton Oakmont (his firm) against Prodigy (the first of the ISP's) where I defended Prodigy...which lead to Section 230 of the CDA. (The Onassis case led to my representation of a Woody Allen look alike at trial in the

Southern District and the advertising agency at trial in Los Angeles District Court in the Vanna White case...but both of those settled at trial).

What's a surprising object in your office?

The Blue Heart shaped necklace that I defended in the Second Circuit from the challenge mounted by Twentieth Century Fox to the advertising campaign that offered it for sale as a low cost alternative to the replica of the necklace featured in the movie "Titanic." It's the necklace the makers of the movie Titanic do not want you have. But my most treasured is the autographed reprint of Pierre Leval's seminal law review article enunciating transformative use for fair use which was adopted by the Supreme Court.

What's the first website you check in the morning?

Rebecca Tushnet's 43(B) blog. It is truly amazing how brilliantly she covers so much of the developments in intellectual property...and posts it in the middle of the night

It's almost a cliché for lawyers to tell those contemplating law school: "Don't go." What do you think?

Your career is a balance of fortune, fame, fulfillment, and fun. If you are not putting money first on your priorities, and you cannot make it as a rock star, you should take stock of your talents and innate abilities—what are you best suited to doing with your life that will afford you the satisfaction that comes from a job well done and helping people. The satisfaction in being a lawyer is most importantly in helping others to cope with the world (which lawyers have made so difficult and frustrating). If you can do that, and find fulfillment in doing it well, become a lawyer. The most fun you can have as a lawyer, and the best people you will work with, will be found in media law. The ever changing business of media and technology of communications means it will be easy to have fun.

One piece of advice for someone looking to get into media law?

Embrace all of the new technologies of communication. The application of existing law and legal principles to new technologies and the new consumers of information and entertainment will be the challenge you will face. Judges and legislators will continue for some time to be trying to fit square precedents, based on square business models into round problems. You will need to be able to see the world of intellectual property and information as differently as it is.

What would you have done if you hadn't been a lawyer?

A psychotherapist. The greatest satisfaction comes from helping people to cope.

What issue keeps you up at night?

My client's problems. Long ago a wise attorney told me that as lawyers, we are nothing but paid worriers. A client has a problem that is keeping her up at night. (perhaps because the law or lawyers have made the problem more complicated than it has any reason to be). So every client is a person with a problem that they need to have someone take on and worry about better than they can. They need to know that they can stop worrying and rely on me to tell them when they need to think about it again...hopefully in the context of a solution. I assure them that "I will worry about your problem better than you can..." And now the client can sleep at night... and I will be up at night worrying about their problem.


This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Rick Kurnit
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions