Writer, Arte Pşblico wrangle over rights

by Liz Carter

Daily Cougar Senior Staff

More than 500 years ago, European kings established laws that made it impossible for subjects and nobles to bring a legal case up against their monarch.

At the time, monarchs were suspicious of "greedy" nobles who were limiting kings' and queens' governing power with contracts like the Magna Carta.

"You can't sue the monarch without the monarch's permission," said Kenneth Kuffner, an intellectual property attorney.

Unfortunately for Kuffner and his client Denise Ch½vez, the Constitution's 11th Amendment gives state governments the same immunity from their own laws that European monarchs enjoyed in the Middle Ages.

Like the common law established in Europe under the 11th Amendment, state agencies are immune from state and federal laws and cannot be sued by their citizens.

When Denise Ch½vez, who wrote The Last of the Menu Girls, filed a lawsuit in 1992 against Arte Pşblico Press, a University of Houston publishing house, a state court did not rule in her favor.

Instead, the judge ruled that it is unconstitutional to sue a state-run agency like UH. Ch½vez immediately appealed to the 5th Circuit Court of Appeals in New Orleans.

"Do we as human beings have the right to sue the government?" Ch½vez asked. "(The case) also has to do with my rights as a writer and that the university has taken away my rights."

Ch½vez claims John Kanellos, director of APP, changed her contract with APP after she had signed it.

The original contract allowed for the publication of 3,000 books, but Kanellos scratched out 3,000 on the contract and wrote in 2,000 after Ch½vez expressed her dissatisfaction with typos and errors in the book when it was printed.

Ch½vez said after she confronted APP about the change in the contract, the publishing house told her the number on the contract didn't matter because the contract gave them the publishing rights to the book.

"What they said is, `No, we own your book,' (and) I lost all rights to my book," she said. "APP said that they bought the book outright."

After hearing the case, the New Orleans Court of Appeals ruled in Ch½vez's favor. Until the state of Texas appealed to the Supreme Court, it looked as if she would get her day in court.

But the Supreme Court sent the case back to the appellate court for revision after hearing a similar case against Florida in March.

With the Florida case, the Supreme Court ruled that a tribe of Native Americans did not have the right to sue the state government for land entitlements.

Justices ruled that under the 11th Amendment, it is unconstitutional for anyone to sue state agencies.

Now Kuffner and Ch½vez must wait to see if the appellate court will stay with its first decision and send the case back to the Supreme Court or change its decision in accordance with the Florida case.

"Basically, (the Supreme Court) said to reconsider the issue," Kuffner said.

If the appellate court affirms its earlier ruling and decides that the Seminole case doesn't apply to this copyright and trade law case, then the Supreme Court will take it, Kuffner said.

Kuffner said there is a very good chance the case will be accepted by the Supreme Court because there were four dissenting opinions in the Seminole case.

Only four justices have to agree to grant a petition to hear the case, he said.

"Theoretically, we have those four (yes votes) already with the four justices who dissented in the Seminole trial," he said.

Kuffner is optimistic because Ch½vez's case is about a contractual agreement. The case is far more substantial than the Seminole case, he said.

The Supreme Court needs to hear this case because "every state has a problem with this issue," Kuffner said.

"If the position of UH holds, APP has the copyright and the right to do whatever they want with the book," Kuffner said.

Now that Ch½vez has written another book, A Face of an Angel, APP is benefiting from the marketing and publicity of her new book, Kuffner said.

"A Face of An Angel has to be helping the sale of Last of the Menu Girls," Kuffner said.

Kanellos was not available for comment, but Fran Howell, director of UH media relations, said, "We're still waiting for what the courts ultimately decide. Until then, we can't have any comment."

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