May 5, 2026
By Laura Trachtman
Normally, I write about legal issues that I’m dealing with in my own practice, because it’s convenient and interesting for me. Today, however, I’ve got a bee in my bonnet about the prima facie tort doctrine.
To start, what is a prima facie tort? I’m so glad you asked! This doctrine provides a remedy for intentional harm caused by otherwise lawful conduct when no other traditional tort applies. In other words, the prima facie tort steps in when a defendant’s malicious intent transforms lawful acts into actionable wrongs and the defendant’s conduct is inexcusable or unjustifiable.
To clarify that weighty definition, let’s explore the history of prima facie tort and the limitations on the cause of action.
History of the Prima Facie Tort
The U.S. Supreme Court case of Aikens v. Wisconsin, 195 U.S. 194, 204, 25 S.Ct. 3, 5, 49 L.Ed. 154 (1904), which was authored by Justice Oliver Wendell Holmes, is arguably the most famous case addressing prima facie tort (if only because of its author). Holmes stated in pertinent part: “Prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law … requires a justification if the defendant is to escape.”
The New York Court of Appeals in Curiano v. Suozzi, 63 N.Y.2d 113, 117, 469 N.E.2d 1324, 1327 (1984) provided additional illumination:
Some years ago, this court recognized the general principle that harm intentionally inflicted is prima facie actionable unless justified (see Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401; American Guild of Musical Artists v. Petrillo, 286 N.Y. 226, 36 N.E.2d 123; Opera on Tour v. Weber, 285 N.Y. 348, 34 N.E.2d 349, cert. den. 314 U.S. 615, 62 S.Ct. 96, 86 L.Ed. 495). That principle has developed into the specific cause of action of prima facie tort consisting of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459; ATI, Inc. v. Ruder & Finn, 42 N.Y.2d 454, 458, 398 N.Y.S.2d 864, 368 N.E.2d 1230). While prima facie tort may be pleaded in the alternative with a traditional tort, once a traditional tort is established, the cause of action for prima facie tort disappears (Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 406, 380 N.Y.S.2d 635, 343 N.E.2d 278, supra).
This decision is very helpful, as it provides three important takeaways: (a) a clear explanation of the prima facie cause of action; (b) a description of the requisite elements to demonstrate entitlement to relief; and (c) an incredibly important limitation on the pleading of the cause of action.
Limitations on the Cause of Action
In case you missed it above, there is an important limitation on prima facie tort when it is pled in the alternative: a claim grounded in prima facie tort cannot be maintained if the primary cause of action is established. This makes sense, because a cause of action for prima facie tort can only be maintained in the absence of another tort. Of course, if that other cause of action isn’t established, then it’s a good thing you pled prima facie tort so the defendant doesn’t get away with bad conduct.
Another limitation on the claim is that the motivation for the actions which form the foundation for the prima facie tort must be malice, and nothing else. By way of example, “a claim for prima facie tort cannot be sustained where the plaintiff is alleged to be motivated by profit as well as malicious intent” Squire Records, Inc. v. Vanguard Rec. Socy., Inc., 25 AD2d 190, 191 (1st Dept 1966). That also makes sense, because the intent to harm another itself is the entire justification for the cause of action. If the defendant can provide another reason to explain away the action – greed, jealousy, or what have you – then it’s not a prima facie tort.
In this cause of action, you must also plead special damages. What are special damages, you ask? Great question! Luckily, we get an assist from the Second Department in Shahid v. Slochowsky & Slochowsky, LLP, 208 A.D.3d 1381 (2022), which held in pertinent part: “Special damages ‘must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts’ [internal citations omitted]. Here, the plaintiff failed to demonstrate that any losses he allegedly suffered were causally related to an act or series of acts on the part of the defendants.” In other words, a plaintiff must be able to demonstrate that she actually suffered damages (lost money, for example) and that the reason for that loss is/are the action(s) of the defendant.
So, What’s the Point?
The purpose of prima facie tort is to provide an avenue for redress in situations where someone is motivated purely and solely by malice; the harm that they do to another should not go unpunished. The problem is that humans are complicated beings and rarely have only one motivation for doing something. That makes successful prima facie tort claims exceedingly rare. Only about 4% of such claims involve intentional torts; and prima facie tort is just a tiny subset of that. Still, when I need a little reassurance that the legal system does occasionally ensure that evil people will be punished for hurting others, the very existence of this cause of action gives me comfort.
April 29, 2026
By Emily Poler
About a month ago, the Supreme Court in Cox Communications, Inc. v. Sony Music Entertainment reversed a $1 billion verdict against Cox, an Internet service provider. That verdict stemmed from Cox’s failure to prevent subscribers from infringing Sony’s copyrighted works by sharing pirated copies over Cox’s network. The Supreme Court held that a service provider can only be liable for what is called “contributory infringement” by a third-party (in this case, a user) if the service either induced the infringement or sold a service specifically tailored for infringement. In its decision, the Court held Cox was not liable for contributory infringement because it failed to do anything to affirmatively prevent it. Put another way, Cox’s inaction was not enough to incur liability.
One AI company quickly jumped on this decision to argue that it shouldn’t be liable for what users do with its own platform. In Disney Enterprises, Inc. et al v. MiniMax et al, Disney and other large studios are suing China-based MiniMax and its Singaporean owner Nanonoble Pte. Ltd., which offers an app called Hailuo AI. This app allows users to create short videos in response to prompts and is marketed with the tagline, “A Hollywood studio in your pocket.” In theory, this is cool, except that what Hailuo also does is let users make little videos starring Star Wars and Marvel characters, among other well-known properties.
Since Hailuo is AI, naturally the Plaintiffs claim it was created using unauthorized copies of the studios’ works. And, of course, Plaintiffs say any user output that publicly reproduces Darth Vader, Spiderman et al. are unauthorized copies or derivative works of the studios’ copyrighted properties.
MiniMax makes a bunch of arguments as to why the complaint should be dismissed, some of which have enough teeth to maybe lead to dismissal or partial dismissal. For example, MiniMax argues that much of its conduct took place outside of the United States and, therefore, cannot serve as the basis for a claim under U.S. copyright law. In fact, the Plaintiffs spent months after their initial filing unsuccessfully attempting to serve the Defendants in Singapore and China, and the federal judge in the case had threatened to toss the lawsuit in December as a result of these issues.
Other of the Defendants’ arguments are more, shall we say, creative. MiniMax asserts that while the studios complain that Hailuo’s outputs depict characters from their movies and TV shows, the studios can’t point to specific copyright registrations covering those characters. That argument is a bit much because it seems impossible to obtain an image of, say, the Mandalorian or Iron Man, without reproducing a portion of the copyrighted work they appear in. It seems equally hard to claim that a user can make a Shrek short without intruding on the copyright owners’ rights to make derivative works based on their copyrighted materials.
In the wake of the Supreme Court’s Cox decision, MiniMax also argues it shouldn’t be held liable merely because it didn’t prevent Hailuo from outputting infringing content, despite having that ability. (The company did put guardrails in place to prevent Hailuo from creating pornographic or violent content.) According to MiniMax, the failure to include these guardrails is, at most, inaction and not an affirmative act, and within the framework of Cox there’s no contributory liability for mere inaction. However, the line between inaction and action is pretty blurry here. Creating and marketing a platform that is appealing because it lets users make fan films of their favorite characters seems pretty active to me.
On top of that, MiniMax is claiming it’s not responsible for user infringement because it didn’t actively encourage that infringement. Really? Hailuo’s tagline of “A Hollywood studio in your pocket” sounds pretty encouraging to me. MiniMax says the slogan describes “the quality and creative capability” of Hailuo,” but I think it could be interpreted as urging users to create works based on those of Hollywood studios. My view is buttressed by the claim, according to the complaint, that MiniMax allegedly used Spiderman in Hailuo’s marketing materials. This type of question — a fact question — is going to make it hard for the judge to dismiss the complaint.
And that means that despite miniMax’s assertions, there should be plenty of action ahead in this case.
April 14, 2026
By Emily Poler
I do not play mahjong. I do, however, have a whole bunch of friends who are very into the game. I sit with them and knit while they play — it’s a low-key, social way to spend a weekend afternoon.
Now, you might be wondering: what is mahjong? Well, mahjong (or mah jongg or mahjongg; they’re all correct) originated in China in the 19th century and is similar to a card game but played with tiles that look a little bit like dominoes. Players draw these tiles and, relying on skill, strategy and luck, try to arrange them into particular combinations to win. In the United States, those combinations are determined each year by the National Mah Jongg League, which publishes an annual card listing the winning hands.
By now, I bet you’re thinking there’s literally no way she’s going to be able to connect this to IP law or litigation. Wrong!
The first time I ever sat to the side of my friends’ mahjong game, I picked up one of the cards sold by the National Mah Jongg League card and was rather surprised to see this:
I was, of course, immediately curious and went to the Copyright Office’s website to look up whether the National Mah Jongg League does, in fact, have a copyright for the card. Yes, it does, and has for many years. And if you’re going to (legitimately) play mahjong in the US, you need to buy that card every year from the League.
Seems weird, right? After all, if you buy Monopoly or a deck of cards, you’re done spending on it. The rules of Monopoly or poker don’t change every year. It doesn’t matter if it’s 1996, 2016 or 2066: a flush always beats two pairs. Most of all, the rules of a game can’t be copyrighted; nobody owns the rules for chess, checkers, or blackjack. However, a book or pamphlet that describes how to play any of those games is absolutely copyrightable. Such is the case with the yearly mahjong card, which expresses the rules for playing mahjong by listing the winning combinations the League has established for that year.
For what it’s worth, I haven’t seen anything suggesting that the National Mah Jongg League has sued anyone who copies a card from a friend, although, if I had to guess, I bet they send plenty of cease-and-desist letters to people offering copycat cards on Amazon or Etsy. (Maybe not, because, according to Reddit, the group isn’t exactly super tech savvy, and their website is pretty 2003.)
Again, I’m an observer, not a player, but one of the fascinating things to me is that players seem really conscientious about actually buying the cards each year. The mahjong group text I’m on was recently awash with people touting they had acquired the 2026 card, even though any of them could just buy one and pass around copies.
In a world awash in so much digital piracy, I find this astoundingly honorable. That said, I suppose it’s not that surprising: for one thing, the card is an awkward shape and folds into several pages, and it would be a pain to copy it or play off a copy. Also, at $15, it’s not terribly expensive. Most of all, I imagine that for those who love the game, buying the card each year is something of a ritual, and it just wouldn’t feel right to use a copy on flimsy printer paper. All this seems like a pretty marked contrast from lots of today’s aggressively online culture, which prioritizes virtual sharing and remixing of non-physical media, and, unfortunately, not paying for stuff. Exhaustion with such probably explains why more and more people are shunning such soulless activity to get together in person and play a game with physical pieces and rules.
In any event, I’m looking forward to a spring and summer of sitting to the side, knitting needles in hand, listening to the murmur of my friends and the clicks of tiles being drawn and discarded.
March 19, 2026
By Emily Poler
The last few weeks have been crazy over here (and, obviously, everywhere), so this post will be relatively brief, but interesting nonetheless. It’s about a proposed class action lawsuit initiated by New York Times writer Julia Angwin against Superhuman Platform, the parent company of writing-assistant software Grammarly. While I haven’t had a lot of time to delve into the complaint, the basics are that beginning last August, Grammarly launched its “Expert Review” tool that offered users the ability to revise text according to recommendations from well-known authors like Ms. Angwin, Stephen King, and Neil deGrasse Tyson. Did Grammarly ask permission of these scribes to use their names and writing styles? Of course not!
As you might imagine, Grammarly’s tool is entirely AI-based, having digested the publicly available work of the writers so as to then spit out editing suggestions from what it determines are “relevant experts,” based on the subject matter of uploaded user text. For example, you submit an essay on technology (one of Ms. Angwin’s core subjects) and Expert Review offers improvements it says are “inspired by Julia Angwin.” Pretty amazing stuff, especially considering Grammarly didn’t involve Ms. Angwin in the process.
Even worse than the theft of her style and the use of her name, according to Ms. Angwin, is that the AI advice might (ha! “might”) be crappy. “[A] Grammarly user could become displeased with Ms. Angwin if they…received a negative result after taking that advice (such as a bad grade in school or a negative performance evaluation at work), even though Ms. Angwin had absolutely nothing to do with the advice that she purportedly gave,” the complaint says. Having tested Expert Review herself, Ms. Angwin was appalled by the edits peddled under her name. “Its editing suggestions were so bad that they could destroy my reputation,” wrote Ms. Angwin in a Times opinion piece.
Luckily for Ms. Angwin, even though current laws are, shall we say, in flux regarding the use of AI to digest, learn from, and replicate copyrighted material, her suit rests on far more solid and clearly defined right of publicity laws. These laws, which are on the books in more than two dozen states, bar the commercial use of another’s name or likeness. The authors here have a pretty strong case as Grammarly was using their names without permission. Moreover, it certainly is not crazy for the authors to argue that the use of their names implied that they endorsed Grammarly, which is exactly what the right of publicity is supposed to protect.
How will Grammarly respond? Well, it has already taken down the Expert Review tool “for a redesign,” claiming it had “very little usage.” As for defending itself against the suit, a Superhuman statement says the company “believes the legal claims are without merit.” If you ask me that’s rather optimistic, since it would be quite a stretch to deny that their use of these authors’ names implied endorsement. Grammarly could also try to argue that the authors haven’t been harmed by its use of their names, which might have some legs because reputational damages can be hard to establish. However, such arguments aren’t going to get rid of this case any time soon, nor will the mothballing of the review application which, as Ms. Angwin wrote, “doesn’t make up for the eight months that service was in operation, making money from all of our names without ever seeking our consent.”
